1824483 (Refugee)

[2018] AATA 4970

1824483 (Refugee) [2018] AATA 4970 (4 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1824483

MEMBER:Simone Burford

DATE:4 October 2018

PLACE OF DECISION:  Perth

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

Statement made on 04 October 2018 at 10:58am

CATCHWORDS

REFUGEE – Protection visa– Malaysia – no decision record or notification letter provided – unclear what decision the applicant is seeking to review – no decision had been made on WC-subclass 030 visa – review application not validly made – repeat application – No jurisdiction to review a decision twice – non-reviewable decision – No jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

Migration Act 1958, ss 65, 338, 347, 411, 412,

Migration Regulations 1994, r 4.02, Schedule 2

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 lodged by the applicant on 23 August 2018. 

2. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

3. The review applicant lodged an application form but did not provide either a decision record or a decision notification letter. The review application indicated that the decision for review was a ‘Visa Cancellation’ of a WC-subclass 030 visa. The application lists the date of decision as 16 September 2016 and the date of notification as 13 August 2018.

4. Departmental records indicate that the review applicant holds a current WC- subclass 030 visa (a ‘bridging visa’). That bridging visa was issued on 16 September 2016. Departmental records indicate that the applicant has never had a bridging visa cancelled. Departmental records indicate that the applicant previously had a protection visa application refused on

   
   

   20 March 2017. That decision was affirmed by the Tribunal on 10 August 2018.  The application was lodged on a form eR1 which is the application form used for protection visa review applications.  No fee was paid with the application, consistent with a protection visa review application. Applications for review of bridging visa cancellations are made on a different form and attract a fee for lodgement.

5. As it is unclear from the applicant’s application precisely what decision the applicant is seeking to review, the Tribunal has considered whether a valid application has been made  on two alternative bases:

   a.That the applicant was seeking a review of the cancellation of his WC-subclass 030 visa – which, according to Departmental records, has not yet been cancelled; or

   b.That the applicant is seeking a second review of a decision of a delegate of the Minister for Immigration on 20 March 2017 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act).  This protection visa refusal was affirmed by the Tribunal on 10 August 2018.

6. On 24 August 2018 the Tribunal wrote to the applicant indicating that it appeared that his application was not a valid application because it sought review of a decision which had already been the subject of a review by the Tribunal. The applicant was advised that if he wished to make comments on whether a valid application had been made, he should provide these comments to the Tribunal, in writing, by 7 September 2018. No response was received from the applicant.

7. As it was not clear on the face of the application what decision the applicant was seeking to review, on 14 September 2018 the Tribunal wrote again to the applicant indicating that the Tribunal had also considered that he was seeking to review a decision to cancel a subclass 030 visa.  The letter indicated that it appeared that his application was not a valid application on this basis because records indicate that no subclass 030 visa held by the applicant has been cancelled. The applicant was advised that if he wished to make comments on whether a valid application had been made, he should provide these comments to the Tribunal, in writing, by 28 September 2018. No response was received from the applicant.

   An application for review of the applicant’s WC-sublass 030 visa

8. On the basis that the applicant is seeking review of a decision to cancel his bridging visa, the Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse and cancel visas of various kinds and a range of sponsorship and nomination decisions, but the evidence before the Tribunal indicates that at the time the review application was lodged, no relevant decision had been made.

9. As no reviewable decision had been made at the time the review application was lodged it follows that the application was not properly made and the Tribunal does not have jurisdiction in this matter.

   An application for review of the decision to refuse the applicant’s application for a protection visa

10. In the alternative, assuming that the application is seeking review of the decision to refuse the applicant for a protection visa, the application for review of the same delegate’s decision was previously made to the Tribunal. The Tribunal made a decision on that application on 10 August 2018. 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.

11. In this case, as the delegate’s decision on the applicant’s protection visa application 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

12. Accordingly, the Tribunal does not have jurisdiction in this matter.

    Simone Burford
    Member