2110531 (Refugee)

[2021] AATA 4387

2110531 (Refugee) [2021] AATA 4387 (20 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2110531

MEMBER:Justine Clarke

DATE:20 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 20 September 2021 at 2:20pm

CATCHWORDS
REFUGEE – protection visa – China – application was not valid – non-reviewable decision – no jurisdiction to review a decision twice – 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. On 15 August 2021, the applicant an application lodged with the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Border Protection made on 23 December 2016 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

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

3. Previously, an application for review of the same delegate’s decision was made to the Tribunal. The Tribunal assigned the case number 1700080 to that previous application for review. On 27 April 2020, the Tribunal made a decision on that application.

4. 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.

5. On 20 August 2021, the Tribunal sent a letter to the applicant, by email, inviting him to comment on the validity of the application for review. The letter requested any comments to be provided in writing by 3 September 2021. The letter also included the following paragraph.

   The Tribunal will not process any further documentation that appears to seek review of the same decision dated 23 December 2016. This means the Tribunal will not treat it as a new application for review. It will also not allocate a new case number, or ask you to comment on the validity of any purported review application, or make a further decision about whether it has jurisdiction to review that decision.

6. To date, the Tribunal has not received a response.

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.

   Justine Clarke
   Member