2111793 (Refugee)

[2021] AATA 4641

2111793 (Refugee) [2021] AATA 4641 (12 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2111793

MEMBER:Phoebe Dunn

DATE:12 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 12 October 2021 at 12:51pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – Repeat application – 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. This is an application for review of a decision of a delegate of the Minister for Home Affairs on 25 February 2019 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 4 September 2021. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

3. In the review application, the applicant stated that he was seeking review of decision to refuse a Subclass 866 Protection visa notified on 13 June 2020 and referenced Departmental file number [number] on the application form. The applicant attached a copy of the Department’s decision dated 25 February 2019 and re-notification letter dated 13 June 2020 (following an assessment that the applicant was not correctly notified the first time).  The Tribunal finds that the applicant was correctly notified of the decision on 13 June 2020.

4. Evidence before the Tribunal shows that an application for review of the same delegate’s decision was previously made to the Tribunal on 15 December 2020. The Tribunal made a decision on that application on 22 February 2021, determining that it had no jurisdiction to review the application as the application was lodged out of time. 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. By letter dated 8 September 2021, the Tribunal wrote to the applicant inviting the applicant to comment in writing by 22 September 2021 on its preliminary view that the application for review was not a valid application on the basis that the applicant had made a prior application to the Tribunal for review of the same decision (Tribunal file 2017943) and the Tribunal had already carried out its duty to review that decision under the Act, making a decision on 22 February 2021, and as such the decision was no longer a reviewable decision.  The applicant did not respond to the Tribunal’s correspondence and no further submissions or documentation has been received by the Tribunal in relation to this review.

6. In its letter dated 8 September 2021, the Tribunal advised the applicant that the Tribunal would not process any further applications or documentation that appear to seek review of the same decision dated 25 February 2019 (validly notified on 13 June 2020). The Tribunal stated that the Tribunal will not treat it as a new application for review and will not allocate a new case number and nor would it invited comment or submission on whether the application is valid or make a decision on whether it has jurisdiction.

7. Following careful consideration of the information before it, the Tribunal is satisfied that the applicant is seeking review of the same decision that has already been the subject of a review application before this Tribunal (Tribunal file 2017943) and in respect of which the Tribunal has already carried out its duty to review that decision under the Act and made a decision on 22 February 2021.

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.

   Phoebe Dunn
   Member