1825109 (Refugee)

[2018] AATA 4026

1825109 (Refugee) [2018] AATA 4026 (27 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1825109

MEMBER:Brendan Darcy

DATE:27 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 27 September 2018 at 10:16am

CATCHWORDS

REFUGEE – protection visa –Malaysia – invalid application – review of the same delegate’s decision is currently pending – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), s 65

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 31 July 2018 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 28 August 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 on 13 September 2017 (1825108). 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 4 September 2018, the Tribunal emailed correspondence to the applicant. This correspondence invited the applicant to comment on the validity of the application for review and to forward written submissions to the Tribunal by 18 September 2018 to the correct email address.  The correspondence clearly stated that the application appeared not to be valid as an applicant for review of the same delegate’s decision is currently pending at the Tribunal.

5. On 10 September 2018, the review applicant forwarded the following comment:

   Regarding the application for a review, I was unable to send in an appeal in time as my phone broke and I have no access to laptops. I only got the email on 28th of August after I bought a new phone after which I immideately sent the appeal. I am sorry I couldn't do it in time and I hope the Member can accept my application and reasoning.Thank you.  (sic)

6. This response indicates that the applicant did not understand the reasons this specific review application appeared to be invalid, as it addressed the timeliness of the review applicant, and not that it was a repeat review application for the same decision, and therefore, not reviewable.  

7. The Tribunal is satisfied a merits review of the same decision has already taken place for the same refusal decision and that decision (1825108) is functus officio.

8. 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

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

   Brendan Darcy
   Member