2010928 (Refugee)

[2020] AATA 4677

2010928 (Refugee) [2020] AATA 4677 (15 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2010928

MEMBER:Helena Claringbold

DATE:15 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 15 September 2020 at 1:12pm

CATCHWORDS

REFUGEE – protection visa – previous application heard and decided – current application not valid – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), 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 dependants.

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 30 November 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 1 July 2020. 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 decided on that application on 15 June 2020. 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. This is the case even where the previous application for review was made to the Migration Review Tribunal or Refugee Review Tribunal before 1 July 2015: Item 15AD of Schedule 9 to the Tribunals Amalgamation Act 2015.

4. On 15 July 2020, the Tribunal wrote to the applicant and advised him of the following. It appeared the application for review is not valid. The application for review related to the same delegate’s decision as in Tribunal case 1732791 which the Tribunal decided on 15 June 2020.  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. He was invited to comment on the validity of the application by 29 July 2020.

5. On 22 July 2020, the Tribunal received comment from the applicant dated 17 July 2020. The applicant stated that he wished his application for review to be valid. He went on to describe the difficulties he would face if he returned to China.

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.

   DECISION

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

   Helena Claringbold
   Member