2100111 (Refugee)

[2021] AATA 1442

2100111 (Refugee) [2021] AATA 1442 (3 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2100111

MEMBER:L. Symons

DATE:3 March 2021

PLACE OF DECISION:  Sydney

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

Statement made on 3 March 2021 at 4:38pm

CATCHWORDS
REFUGEE – protection visa – China – decision has already been the subject of review – 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 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 4 April 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 5 January 2021. 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 24 November 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.

4. On 8 February 2021, the Tribunal wrote to the applicant inviting him to make comments in writing by 22 February 2021 on whether a valid application for review had been made. This letter was sent to his current migration agent by email on 8 February 2021. The Tribunal received a response dated 19 February 2021 from the applicant. In his response, he stated that his previous migration agent was not contactable and he was not aware that he/she had lodged an application for review with the Tribunal on his behalf. He thought his application for a Protection visa was refused by the Department of Immigration in December 2020 and instructed his current migration agent to lodge an application for review with the Tribunal.

5. In his response, the applicant requested that the Tribunal give him an opportunity to attend a hearing. He stated that he previously lost the opportunity to do so as his previous migration agent could not be contacted.    

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.

   L. Symons
   Member