1837734 (Refugee)

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______«__€€Í“_____«{1837734 (Refugee) [2024] AATA 2317 (27 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1837734
MEMBER:Garry Fitzgerald SC
DATE:27 June 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 27 June 2024 at 12:42pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – repeat application – non-reviewable decision – no jurisdiction to review a decision twice – no jurisdiction
LEGISLATION
Migration Act 1958, s 65
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

This is an application for review of a decision of a delegate of the Minister for Home Affairs on 3 December 2018 to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
This review application was lodged with the Tribunal on 22 December 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
An application for review of the same delegate’s decision was previously made to the Tribunal on 21 December 2018. The Tribunal made a decision on that application on 27 June 2024.
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]. 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.
At the hearing on 31 May 2024 of the first application for review, the applicant explained that the second review application was a mistake. He thought that the first review application had not been successfully lodged. The Tribunal informed him that it did not have jurisdiction to review the same decision twice, and that accordingly this second application for review would be dismissed.
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
The Tribunal does not have jurisdiction in this matter.
Garry Fitzgerald SC
Member

CaseChat Overview and Summary

The applicant sought review of a delegate's decision concerning a protection visa application. The Administrative Appeals Tribunal (AAT) was asked to determine whether it had jurisdiction to review the delegate's decision, given that the decision had previously been reviewed by the Tribunal.

The central legal issue before the AAT was whether it retained jurisdiction to review a delegate's decision that had already been the subject of a prior, valid review by the Tribunal.

The AAT, constituted by Garry Fitzgerald SC, reasoned that once a delegate's decision has undergone a valid review by the Tribunal, it ceases to be a "reviewable decision" for the purposes of further review by the Tribunal. Consequently, the Tribunal determined that it lacked jurisdiction to entertain a second review of the same decision. The Tribunal made no orders as it found it had no jurisdiction.

Reasons for decision

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 The Tribunal does not have jurisdiction in this matter.Garry Fitzgerald SCMember

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established