1808832 (Refugee)

[2018] AATA 2544

1808832 (Refugee) [2018] AATA 2544 (25 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1808832

MEMBER:David McCulloch

DATE:25 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 25 May 2018 at 10:26am

CATCHWORDS
Refugee – Protection Visa – Sri Lanka – Repeat application – Non- reviewable decision – No jurisdiction

LEGISLATION
Migration Act 1958, s 65
Tribunals Amalgamation Act 2015, Schedule 9

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 on 10 December 2013 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 29 March 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. The Tribunal made a decision on that application 23 June 2015. 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. This is the case even where the previous application for review was made to the Migration Review Tribunal or Refugee Review Tribunal before 1 July 2015: Item 15AD of Schedule 9 to the Tribunals Amalgamation Act 2015.

4. The Tribunal wrote to the applicant on 2 May 2018 indicating that a previous decision of the Tribunal had been made on 23 June 2015 to affirm the refusal of a protection visa. On the basis that the Tribunal had already determined the matter, there no longer appeared to be a reviewable decision. The applicant was given the opportunity to respond to this preliminary view of the Tribunal.

5. In the application for review by the Tribunal, the applicant had not provided details of the visa decision, review of which was being sought. Records examined by the Tribunal found that the applicant had applied for a visa class XE790, however, this application was deemed invalid. Records showed that the applicant had not been refused any other visas other than the protection visa. The Tribunal therefore wrote to the applicant on the basis that this was the visa decision of which review was being sought. As the applicant did not respond to the Tribunal’s letter to counter this assumption, the Tribunal proceeds on this basis.

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.

   David McCulloch
   Member