2110365 (Refugee)

[2021] AATA 4388

2110365 (Refugee) [2021] AATA 4388 (10 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2110365

MEMBER:Nathan Goetz

DATE:10 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 10 September 2021 at 11:41am

CATCHWORDS

REFUGEE – protection visa – China – repeat review application – no Tribunal-reviewable decision – 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 Home Affairs to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND

2. The applicant identifies as [age]-year-old male citizen of China who last arrived in Australia [in] August 2017 holding a visitor visa. On 5 October 2017 the applicant applied for a protection visa. On 20 March 2018 the delegate refused to grant the protection visa.

3. On 10 April 2018 the applicant applied to the Tribunal for review of the refusal decision. On 7 July 2021 the Tribunal affirmed the refusal decision in AAT [file number].

4. On 11 August 2021 the applicant again applied to the Tribunal for review of the refusal decision. The applicant’s review application form indicated that he was seeking a review of the decision made on 7 July 2021. On 20 August 2021 the Tribunal wrote to the applicant and invited him to comment on the validity of the review application, given that the Tribunal had no power to review its own decision, and the Tribunal had already made a decision in respect of the protection visa refusal decision. The applicant was requested to respond to this invitation by 3 September 2021. The Tribunal received no response from the applicant.

   FINDINGS AND REASONS

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

6. The Migration and Refugee Division of the Tribunal only has the power to review a Part-5 or Part-7 reviewable decision under the Act. A decision of the Tribunal is not one of those decisions.

7. 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.

8. 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

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

   Nathan Goetz
   Member