2108376 (Refugee)

[2021] AATA 5613

2108376 (Refugee) [2021] AATA 5613 (27 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2108376

MEMBER:Michael Hawkins AM

DATE:27 September 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 27 September 2021 at 6:55am

CATCHWORDS

REFUGEE – protection visa – Malaysia – repeat review application – no reviewable decision – No jurisdiction

LEGISLATION

Migration Act 1958, ss 5H, 65, 412, 414
Migration Regulations 1994

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 and Border Protection on 27 April 2016 to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review application was lodged with the Tribunal on 28 June 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 8 August 2017. 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. The Tribunal wrote to the applicant on 12 July 2021 advising that it appears that his application for review is not a valid application as an application for review of the same delegate’s decision was previously made to the Tribunal on 2 May 2016. The case number for that first application was 1606162. The Tribunal made a decision on that application on 8 August 2017. 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. The applicant was invited to comment on the information by 26 July 2021.

5. The applicant responded to the invitation by email on 23 July 2021, stating:

   THE ADMINISTRATIVE APPEALS TRIBUNAL MADE DECISION ON MY APPLICATION BY AFFIRMING NOT TO GRANT ME A PROTECTION VISA AFTER ME ATTENDING THE HEARING TO PRESENT ARGUEMENTS AND EVIDENCES FOR MY CLAIMS DATED 08 AUGUST 2017.

   THE TRIBUNAL DID NOT INVESTIGATE BUT AFFIRMED THAT I DID NOT MEET THE PROTECTION VISA OBLIGATION AND MEET THE CRITERIAN OF REFUGEE. ACCORDING TO MIGRATION ACT 1958 THE DEPATMENT OF IMMIGRATION HAS NOTIFY ME THAT I HAVE SUBBITTED A VALID APPLICATION AND ALSO WHEN I SUBMITTED TO TRIBUNAL FOR REVIEW THE TRIBUNAL ACKNOLEDGED MY APPLICATION AS VALID.

   ACCORDING TO MIGRATION ACT 1958 - SECT 414, TRIBUNAL MUST REVIEW THE CASE IN MATTER ACORDINGLY WHEN THE APPLICATION IS LODGED VALID UNDER THE SECTION 412 AND MAKE A DECISION THAT HAS TO HAVE FAIRNESS BUT IN MY MATTER TRIBUNAL DID NOT MUCH DO INVESTIGATION IN-ORDER TO GIVE A CONCLUDED DECISION. I THINK THAT TRIBUNAL MISSED THAT POINTS.

   I DONT HAVE ENOUGH CHANCES TO MAKE AN ASSESSMENT IN RELATION TO $5H(2) TO DEFINE s5H(1) OF THE ACT AND TO PROVIDE THE EVIDENCES FOR MY CLAIM AND PRESENT MY ARGUEMENTS TO VALID MY APPLICATION FOR PROTECTION VISA WITH A HEARING AFTER A DIRECTION WHICH WHAT I ATTENDED THAT DAYS. I HOPE MEMBER CAN CONSIDER THIS MATTER FOR MY APPLICATION. (sic)

6. The Tribunal has considered the comments provided by the applicant in response to the invitation. The issue for the Tribunal to consider is whether there is a reviewable decision. As explained above, the Tribunal is satisfied that the Tribunal has previously received a valid application for review of the same delegate’s decision and carried out its statutory duty to review the decision under the Act. Therefore, the decision is no longer a reviewable decision. Unfortunately, the Tribunal has no discretion in this matter.

7. 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

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

   Michael Hawkins AM
   Member