2218179 (Refugee)

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______«__€€Í“_____«{2218179 (Refugee) [2023] AATA 1558 (13 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2218179
MEMBER:David McCulloch
DATE:13 March 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 13 March 2023 at 5:03am
CATCHWORDS
REFUGEE – protection visa – China – 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

This is an application for review of a decision of a delegate of the Minister for Home Affairs on 8 July 2021 to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review application was lodged with the Tribunal on 10 December 2022. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
An application for review of the same delegate’s decision was previously made to the Tribunal. The Tribunal made a decision on that application on 8 July 2021. 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.
The Tribunal wrote to the applicant indicating that there appeared to be no valid application as this was a repeat application. The applicant was given the opportunity to respond but did not do so.
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
The Tribunal does not have jurisdiction in this matter.
David McCulloch
Member

CaseChat Overview and Summary

The applicant, a citizen of China, sought review of a decision concerning a protection visa. The Administrative Appeals Tribunal (AAT) considered whether it had jurisdiction to hear the application, given that the delegate's decision had previously been reviewed by the Tribunal.

The central legal issue before the AAT was whether it retained jurisdiction to review a decision that had already been the subject of a prior, valid review by the Tribunal.

The AAT Member, David McCulloch, reasoned that once a delegate's decision has undergone a valid review by the Tribunal, it ceases to be a reviewable decision. Consequently, the Tribunal's jurisdiction in relation to that specific decision is extinguished. The Member applied the principle that a matter, once finally determined by a competent tribunal, cannot be relitigated.

Accordingly, the Tribunal found that it did not have jurisdiction in the matter.

Reasons for decision

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 The Tribunal does not have jurisdiction in this matter.David McCullochMember

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established