1802838 (Refugee)

[2018] AATA 519

1802838 (Refugee) [2018] AATA 519 (19 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802838

MEMBER:Melissa McAdam

DATE:19 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 February 2018 at 11:12am

CATCHWORDS
Refugee – Protection Visa – Malaysia – Decision already reviewed – Tribunal has no jurisdiction to review a decision twice

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
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. The Tribunal has jurisdiction to review a range of decisions, including decisions to refuse visas of various kinds such as a protection visa. [In] March 2017 a delegate of the Minister for Immigration made a decision to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The current review application was lodged with the Tribunal on 4 February 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. The current application for review lodged 4 February 2018 was made on a form entitled “Application for Review to the Migration and Refugee Division”. The application for review form states that the decision sought to be reviewed is a “visa refusal” [a particular date in] January 2018; the visa type and subclass is said to be “XA 866” (protection). In response to the request for the “Department’s file number”, it states [File Number 1]. No documents were attached to the application for review form.

3. There is no evidence before the Tribunal of a refusal by the Department of a sub-class XA 866 (protection) visa for the applicant on [that particular date in] January 2018. The only protection visa refusal decision of the Department for file number [File Number 1], is a decision [in] March 2017 to refuse to grant the applicant a protection visa. The Tribunal finds that in lodging his current application for review, the applicant is seeking that the Tribunal review the delegate’s decision of [March] 2017 to refuse to grant him a protection visa.

4. The Tribunal notes however that, subsequent to the Department’s refusal to grant the applicant a protection visa [in] March 2017, the applicant lodged a previous application for review to the Tribunal which led to a decision of the Tribunal (differently constituted) [in] November 2017 to affirm the delegate’s decision (file reference [file number]).

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: 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 (or more): Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.

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.

   Melissa McAdam
   Member