1802840 (Refugee)

[2018] AATA 441

1802840 (Refugee) [2018] AATA 441 (20 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802840

MEMBER:Meena Sripathy

DATE:20 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 February 2018 at 9:17am

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

LEGISLATION
Migration Act 1958, ss 65, 338, 411
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. This is an application for review of a decision of a delegate of the Minister for Immigration [in] 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 4 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 delegate’s decision was previously made to the Tribunal. The Tribunal (differently constituted) made a decision on that application on 19 December 2017. Since that decision, the applicant has lodged another application for review of the same decision with the Tribunal. The Tribunal (differently constituted) made a decision on 16 January 2018 that it did not have jurisdiction to consider the further application for review.

4. The Tribunal now has before it a further application for review.  It finds that the applicant is again seeking review of the delegate’s decision of [March] 2017 to refuse to grant the applicant a protection visa. 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.

5. 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.

6. Additionally, the Tribunal finds that the decision of the previous Tribunal on 16 January 2018 that it has no jurisdiction is not a reviewable decision under sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994. As this decision is not a reviewable decision under Parts 5 or 7 or the Act, it follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Meena Sripathy
   Member