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______«__€€Í“_____«{2100169 (Refugee) [2023] AATA 1513 (28 March 2023)DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2100169
MEMBER:Mara Moustafine
DATE:28 March 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.
Statement made on 28 March 2023 at 12:51pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – previous application heard and decided – no reviewable decision – no jurisdiction
LEGISLATION
Migration Act 1958 (Cth), s 65
CASES
Jayasinghe v MIEA (1997) 76 FCR 301
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
This is an application for review of a decision of a delegate of the Minister for Home Affairs on 11 January 2018 to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review application was lodged with the Tribunal on 6 January 2021. 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. The Tribunal made a decision on that application on 27 March 2023. 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.
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.
Mara Moustafine
Member
- AGLC
- 2100169 (Refugee) [2023] AATA 1513
- Case
- [2023] AATA 1513
- Decision Date
CaseChat Overview and Summary
The central legal issue before the AAT was whether it retained jurisdiction to review a decision that had already been the subject of a prior review by the Tribunal. This question turned on the interpretation of the relevant provisions of the *Migration Act 1958* (Cth) and the *Administrative Appeals Tribunal Act 1975* (Cth) concerning the finality of decisions and the scope of the Tribunal's review powers.
The Tribunal reasoned that once a decision has been validly reviewed by the AAT, it ceases to be a "reviewable decision" for the purposes of further review. Consequently, the Tribunal concluded that it lacked jurisdiction to entertain a subsequent application for review of the same delegate's decision. The principle applied is that the Tribunal's jurisdiction is engaged by a specific, unreviewed decision, and once that decision has been subject to the statutory review process, the Tribunal's power in relation to that particular decision is exhausted.
Accordingly, the Tribunal made an order that it did not have jurisdiction in the matter.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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