1802818 (Refugee)

[2018] AATA 728

1802818 (Refugee) [2018] AATA 728 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802818

MEMBER:Rosa Gagliardi

DATE:1 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 01 March 2018 at 3:05pm

CATCHWORDS
Refugee – Protection visa – Malaysia – No Jurisdiction – Repeat application – Non-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 on [date] March 2017 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 [date] February 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. 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 more than once: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.

4. On 7 February 2018 the Tribunal wrote to the applicant in the interests of natural justice to advise that it appeared that the application was not valid because the applicant was seeking to have reviewed a decision that had previously been decided upon by the Tribunal.  The applicant first lodged an application to have this decision reviewed on 15  March 2017 and the Tribunal made a decision to affirm the visa refusal on 12 October 2017 (case number 1704811).  Two further applications were made resulting in the Tribunal deciding that it had no jurisdiction to review the cases because the Tribunal is not able to review the same decision more than once.   The Tribunal noted that this is the fourth application for review of the same decision.

5. It is open to an applicant to seek judicial review of decisions by the Tribunal in instances where it is considered that the Tribunal may have made a jurisdictional error(s).  Filing repeated applications for the Tribunal to review a decision which has already been reviewed may indicate that the applicant is not engaging with the review process in good faith.

6. 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

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

   Rosa Gagliardi
   Member