2218658 (Refugee)

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______«__€€Í“_____«{2218658 (Refugee) [2023] AATA 1389 (21 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2218658
MEMBER:Tania Flood
DATE:21 March 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 21 March 2023 at 9:50am
CATCHWORDS
REFUGEE – protection visa – China – repeat review application – no Tribunal-reviewable decision – no jurisdiction
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994
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

This is an application for review of a decision of a delegate of the Minister for Home Affairs on 10 December 2021 to refuse to grant protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The review application was lodged with the Tribunal on 17 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 10 January 2023. 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.
On 9 February 2023 the Tribunal wrote to the applicants advising them that their application for review appears not to be a valid application as an application for review of the same delegate’s decision was previously made to the Tribunal and finalised on 10 January 2023. The applicants did not respond.
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.
Tania Flood
Member

CaseChat Overview and Summary

The applicant, a citizen of China, sought a protection visa. The delegate's decision regarding the applicant's protection visa application had previously been reviewed by the Tribunal. The applicant subsequently lodged a repeat review application concerning the same delegate's decision.

The central legal issue before the Tribunal was whether it possessed jurisdiction to review a decision that had already been the subject of a valid review.

The Tribunal reasoned that once a delegate's decision has undergone a valid review by the Tribunal, it ceases to be a "reviewable decision" for the purposes of further review. Consequently, the Tribunal determined that it lacked jurisdiction to entertain a repeat review application concerning a decision that had already been reviewed. The Tribunal made no orders as no substantive review was undertaken.

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.Tania FloodMember

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established