1811229 (Refugee)

[2018] AATA 1695

1811229 (Refugee) [2018] AATA 1695 (18 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1811229

MEMBER:Rosa Gagliardi

DATE:18 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 18 May 2018 at 4:01pm

CATCHWORDS
Refugee – Protection visa – Malaysia –Decision previously reviewed by the Tribunal –Unable to review same delegate’s decision twice – No jurisdiction to review the 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 6 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 20 April 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 twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.

4. On 1 May 2018 the Tribunal wrote to the applicant in the interests of natural justice to advise that it appeared that the applicant’s application was not a valid one as an application for review of the same delegate’s decision was previously made to the Tribunal.  The case number for that first application is 1705705.  The Tribunal explained that it had made a decision on that application on 8 March 2017.  Further the applicant had lodged a subsequent application, case number 1806842, prior to this current application.  Where the Tribunal has received a valid application for review of a reviewable decision and has carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision.

5. The applicant was provided an opportunity to comment on the validity of his application but he has elected not to respond.

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.

7. The Tribunal emphasises that if the Tribunal receives any further documentation that appears to seek review of the same delegate’s decision, it will not treat it as a new application for review. It will not allocate a new case number, or ask the applicant to comment on the validity of any purported review application, or make a further decision about whether it has jurisdiction to review that decision. The Tribunal will instead advise the applicant that the Tribunal cannot consider this case further.

   DECISION

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

   Rosa Gagliardi
   Member