1914702 (Refugee)

[2019] AATA 6503

1914702 (Refugee) [2019] AATA 6503 (30 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1914702

MEMBER:Christine Cody

DATE:30 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 30 October 2019 at 2:04pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – incorrect primary decision indicated on review application – protection application already reviewed – no longer a reviewable decision – no decision made on bridging visa application – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 431

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 sections 431 and 440 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant lodged a review application with the Tribunal on 9 June 2019. Although the form stated that the visa class of the decision being reviewed was a “visa refusal” for a “WA-010” (bridging) visa, and the decision being reviewed was dated 19 January 2017, this form, as well as the documents attached to the application for review form, indicate that the decision under review is the delegate’s decision to refuse to grant the applicant a protection visa application (XA-866) on 13 April 2017. These documents include the Department’s acknowledgement of the applicant’s protection visa application dated 19 January 2017, a grant of a bridging visa on 18 January 2017, as well as a letter dated 10 May 2019 from the Tribunal (differently constituted) referring to an attached decision of the Tribunal affirming the delegate’s decision to refuse to grant the applicant a protection visa application. The Departmental file number listed in the application for review form relates to the protection visa application. The date of “13 April 2017” (the date of the decision of the delegate to refuse to grant the protection visa) is noted in the application for review form (it is recorded in the form as the Department decision notification date). The applicant did not provide a copy of a refusal of a bridging visa application to the Tribunal, and the Tribunal is not otherwise aware that there has been a refusal to grant the applicant a bridging visa. In the circumstances it appeared to the Tribunal that the applicant was seeking a review of the refusal to grant him a protection visa.

2. The Tribunal sent an acknowledgement to the applicant of his application for review on 13 June 2019, describing his application for review as seeking a review of the decision to refuse to grant the applicant a protection visa. The applicant did not suggest that this was an incorrect description of his application for review.

3. By way of letter dated 9 September 2019 the Tribunal wrote to the applicant stating:

   I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Protection visa.

   It appears that your application is not a valid application 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 1710187. The Tribunal made a decision on that application on 9 May 2019. 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.

   I am of the view that that your application is not a valid application. However this is a matter which must be determined by a Member.

   It is noted on the M1 application form under decision to be reviewed you put the visa class and subclass as WA 010 (bridging visa). The Department of Home Affairs has not a made a decision to refuse or cancel your bridging visa so there is no decision for the Tribunal to review. However, this is a matter which must be determined by a Member.

   If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 23 September 2019. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.

4. The applicant did not respond.

5. In the circumstances, the Tribunal finds that this is an application for review of a decision of a delegate of the Minister for Immigration on 13 April 2017 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act).

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

7. 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 9 May 2019. 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.

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.

   Christine Cody
   Member