2110005 (Refugee)

[2021] AATA 3958

2110005 (Refugee) [2021] AATA 3958 (17 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2110005

MEMBER:Nathan Goetz

DATE:17 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 17 September 2021 at 3:46pm

CATCHWORDS
REFUGEE – protection visa – China – jurisdiction to review – previous application for review dismissed and refusal affirmed after non-appearance – decision no longer reviewable so application not valid – no response to tribunal’s invitation to comment – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 426

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 to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND

2. The applicant identifies as a [age]-year-old male Chinese citizen.

3. On 20 June 2017 the applicant was granted a tourist visa and travelled to Australia [in] June 2017 holding this visa.

4. On 21 July 2017 the applicant applied for a protection visa and on 24 August 2017 was granted a bridging visa to regularise his migration status while his protection visa application was considered.

5. On 13 November 2017 the applicant did not attend a delegate interview in connection with his protection application. On 13 November 2017 the delegate refused to grant the applicant a protection visa.

6. On 3 December 2017 the applicant applied to the Tribunal to review the refusal decision. On 6 November 2020 the Tribunal wrote to the applicant and invited him to appear at a Tribunal hearing on 3 December 2020 to give evidence and present arguments relating to the issues arising in relation to the decision under review. On 3 December 2020 the applicant failed to appear at the Tribunal hearing. That day, the Tribunal decided to dismiss the review application without further consideration of the review application or the information it had as the applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing: s.426A(1A)(b) of the Act. On 21 December 2020 the Tribunal confirmed the decision to dismiss the review application as the applicant had not applied to the Tribunal to reinstate the dismissed review application: AAT case 1730357.

7. On 6 August 2021 the applicant applied again to the Tribunal to review the refusal decision.

8. On 19 August 2021 the Tribunal wrote to the applicant and invited him to comment on the validity of the review application. The Tribunal noted its view that it did not have jurisdiction to review the refusal decision because the Tribunal had already made a decision in respect of the delegate decision. The letter invited the applicant to comment on the validity issue in writing by 2 September 2021. The Tribunal received no response from the applicant.

   FINDINGS AND REASONS

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

10. An application for review of the same delegate’s decision was previously made to the Tribunal. The Tribunal made a decision on that application. 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.

11. 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

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

    Nathan Goetz
    Member