2209463 (Refugee)

[2023] AATA 617

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__­____«­__€€Í“_­____«{2209463 (Refugee) [2023] AATA 617 (3 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2209463

MEMBER:Nathan Goetz

DATE:3 January 2023

PLACE OF DECISION:  Sydney

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

Statement made on 03 January 2023 at 4:34pm

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

2. On 8 July 2018 the applicant applied for the visa. On 26 August 2019 the delegate for the Minister refused to grant the applicant a protection visa.

3. Applications for review of the same delegate’s decision were previously made to the Tribunal on 15 October 2019 in AAT case 1929292, 23 October 2019 in AAT case 1930015, and 23 January 2020 in AAT case 2001204.

4. All of those cases were finalised on the basis that the Tribunal did not have jurisdiction to review the decision because the applicant had not lodged the review application within the prescribed timeframe.

5. On 29 June 2022 the applicant again applied to the Tribunal for review of the delegate’s decision.

6. Where the Tribunal has received an 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.

7. As the delegate’s decision has already been the subject of a review by the Tribunal, it is no longer a reviewable decision. Accordingly, the Tribunal no longer has jurisdiction in relation to that decision.

8. If the applicant disagrees with the Tribunal’s decision that it does not have jurisdiction to review the delegate decision, then the proper course is not for the applicant to continuously apply to the Tribunal for review of the delegate decision. Instead, the applicant should lodge judicial review proceedings in the Federal Circuit and Family Court of Australia concerning AAT case 1929292.

   DECISION

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

   Nathan Goetz
   Member