2302015 (Refugee)

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______«__€€Í“_____«{2302015 (Refugee) [2023] AATA 2342 (5 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2302015
MEMBER:L. Symons
DATE:5 May 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 05 May 2023 at 8:56am
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 16 July 2021 to refuse to grant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
This review application was lodged with the Tribunal on 16 February 2023. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
An application for review of the same decision made by the delegate was previously made to the Tribunal (file number 2111672). The Tribunal made a decision on that application on 12 October 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.
On 6 March 2023, the Tribunal sent a letter to the applicant inviting the applicant to make comments in writing by 20 March 2023 on whether a valid application for review had been made, given that there had been a previous application to the Tribunal. This was sent by email on 6 March 2023. The Tribunal did not receive a response.
The Tribunal previously wrote to the applicant, in relation to file number 2111672, inviting her to make comments on whether a valid application for review had been made and she responded in writing.
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.
L. Symons
Member

CaseChat Overview and Summary

The applicant sought judicial review of a decision made by the Refugee Tribunal. The applicant, a citizen of China, had previously had a decision concerning their protection visa application reviewed by the Tribunal. The current application before the Tribunal was a repeat review application concerning the same delegate's decision.

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

The Tribunal reasoned that once a delegate's decision has been validly reviewed 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 undergone a prior review. The Tribunal concluded that it did not have jurisdiction in this 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.L. SymonsMember

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established