1729673 (Refugee)

[2017] AATA 3006

1729673 (Refugee) [2017] AATA 3006 (12 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729673

MEMBER:Luke Hardy

DATE:12 December 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 12 December 2017 at 12:46pm

CATCHWORDS

Refugee – Protection Visa – Bangladesh – Decision previously reviewed – No jurisdiction to review decisions already finalised

LEGISLATION
Administrative Appeals Tribunal Act 1975 s 29
Migration Act 1958, ss 15AD, 48B, 338, 347, 411, 412, 416

Migration Regulations 1994, r 4.02

CASES
Jayasinghe v MIEA (1997) 76 FCR 301
SZASP v MIAC [2007] FCA 771

SZBWJ v MIAC [2008] FMCA 164

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 27 November 2017 for review of a decision by the Minister’s delegate [in] June 2014 to refuse a protection visa ([file number]).

2. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

3. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse visas of various kinds.

4. However, the evidence before the Tribunal indicates that the applicant already applied for review by what was then the Refugee Review Tribunal, but failed to appear on the date of the Tribunal hearing. The Refugee Review Tribunal made a decision on 23 April 2015 affirming the decision to refuse him a protection visa (RRT # 1412449).

5. Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision: see for example SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.

6. The Refugee Review Tribunal merged into the AAT as of 1 July 2015 and according to the law its work is carried on by the Migration and Refugee Division of the AAT subject to the same Migration Act. As shown below the applicant either does not understand this fact or chooses to ignore it.

7. The applicant made a further merits review application on 4 October 2016. The Tribunal made a decision on 6 December 2016 to the effect that it did not have jurisdiction in this matter (MRD # 1616308).

8. The applicant then attempted to seek judicial review in the matter but his application for an extension of time was dismissed by the court.

9. The applicant again sought merits review of the original decision by the Minister’s delegate. The application was lodged with the Tribunal on 6 March 2017 and constituted to the present Member (MRD # 1703953).

10. As noted in MRD  decision 1703953, the Tribunal’s case officer undertook a telephone conversation with the applicant, informing him that his application for review of the delegate’s decision had previously been finalised. The applicant evidently acknowledged this, the officer reporting that he said he was lodging an application with the AAT because his Refugee Review Tribunal application had been unsuccessful and two courts had upheld the Refugee Review Tribunal’s decision.

11. The applicant contacted the Tribunal by email, later the same day, saying:

    I am requesting you please do not send any email expressing "what is your view
    about the jurisdiction of AAT about my application". Please comply with Migration act.
    Everyone I have mentioned above advised me the same thing.

    1. My visa decision was reviewed by RRT. It is clearly written on the decision paper
    that I sent to you. Please be legal about the legal context by document that , AAT
    never reviewed my decision. The migration act I have quoted with my application, is
    still valid to apply for second review. I have confirmed it with 5 different immigration
    lawyers.

    2. I humbly request, please don't put me in a situation to run another case at FCC to
    get back to you after 6 months or more. It is harassing, discriminating and also
    wasting of people's time, expressing personal view about law or an act that clearly
    expresses it's [sic] jurisdiction.

12. The applicant told the Tribunal in the previous instance that he did not want to be invited to comment on the “no jurisdiction” issue any further. His present attempt to seek review contains several dozen pages of densely drafted and collated legal arguments, many of them seeming to defeat his own intentions. For example, he cites s.15AD of the Migration Act in relation to “Duplicate applications for review”.

13. The applicant’s current attempt to seek further merits review of the [original protection visa decision] may also be based on a genuine misunderstanding of s.416 of the Migration Act. He seems to be arguing in his latest application that the AAT has jurisdiction to conduct fresh merits review in this matter because the present application is a “further application”; however, it is not a further application, because the further applications he appears to be discussing are, in the first instance, lodged with the Immigration Department, and may only be deemed valid subject to Ministerial intervention under s.48B of the Migration Act. On the evidence before the Tribunal, the applicant has not been permitted to lodge any such “fresh application”. The applicant also appears erroneously to assume that the Refugee Review Tribunal, for the purposes of review by the AAT, is another decision-making body, whereas one merged into the other by law as of 1 July 2015.

14. In any event, it remains that there is no reviewable decision before the Tribunal. As there is no reviewable decision it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

    DECISION

15. The Tribunal does not have jurisdiction in this matter.

    Luke Hardy
    Member