1800257 (Refugee)

[2018] AATA 437

1800257 (Refugee) [2018] AATA 437 (2 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1800257

MEMBER:Brendan Darcy

DATE:2 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 02 March 2018 at 1:50pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Repeat application – Review application previously decided – No longer a reviewable decision

LEGISLATION
Migration Act 1958, s.65
Migration Regulations 1994, Schedule 2

CASES
SZBWJ v MIAC [2008] FMCA 164
Jayasinghe v MIEA(1997) 76 FCR 301
SZASP v MIAC [2007] FCA 771

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. This is an application for review of a decision of a delegate of the Minister for Immigration [in] July 2016 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 3 January 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

3. An application for review of the same delegate’s decision was previously made to the Tribunal on 24 July 2016. The Tribunal made a decision on that application on 9 March 2017 to affirm the delegate’s decision (Tribunal file 1611236).

4. Subsequent to that Tribunal’s decision of 9 March 2017, the applicant lodged further applications for review with the Tribunal on 13 March 2017 (Tribunal file 1704611), 26 April 2017 (Tribunal file 1709149), 14 August 2017 (Tribunal file 1717931), 12 September 2017 (Tribunal file 1721455), 27 September 2017 (Tribunal file 1723282), 16 October 2017 (Tribunal file 1725241), 6 November 2017 (Tribunal file 1727382) and 14 December 2017(Tribunal file: 1731605). The Tribunal issued decisions on 13 April 2017, 7 August 2017, 28 August 2017, 25 September 2017, 13 October 2017, 18 October 2017, 30 November 2017 and 20 December 2017 respectively concluding that it did not have jurisdiction to consider the applications for review, on the basis that the Tribunal had already made a decision on the applicant’s application to review the decision of the delegate.

5. The Tribunal now has before it a further application for review, and it has found that the applicant is again seeking a review of the delegate’s decision [in] July 2016 to refuse to grant the applicant a protection visa. The Tribunal finds that the applicant has lodged ten (10) previous applications for review of the same decision, with only the initial application being validly lodged.

6. 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: 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.

7. The applicant should be aware that no further review of the delegate’s refusal decision could be made by the Tribunal without the Tribunal’s decision being successfully appealed at the Federal Circuit Court.

8. As the delegate’s decision has already been the subject of a valid review by the Tribunal, it is no longer a reviewable decision. Accordingly, the Tribunal no longer has jurisdiction in relation to that decision.

   DECISION

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

   Brendan Darcy
   Member