2303181 (Refugee)

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______«__€€Í“_____«{2303181 (Refugee) [2023] AATA 1889 (13 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2303181
MEMBER:Rachel Da Costa
DATE:13 June 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 13 June 2023 at 3:43pm
CATCHWORDS
REFUGEE – protection visa – Thailand – previous application for review validly decided – no longer a reviewable decision – no response to tribunal’s invitation to comment – 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 24 January 2020 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 7 March 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 delegate’s decision was previously made to the Tribunal. The Tribunal made a decision on that application on 26 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 8 March 2023, the Tribunal wrote to the applicant. The Tribunal’s letter expressed the view that the applicant’s application is not valid as an application for review of the same delegate’s decision was previously made to the Tribunal (case number 2001489) and the Tribunal already made a decision on that application. The letter explains that where the Tribunal has received a valid application for review of a valid decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision. The letter invited the applicant to comment in writing on the validity of the application by 22 March 2023. No response has been received from the applicant.
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.
Rachel Da Costa
Member

CaseChat Overview and Summary

The applicant sought review of a decision made by the delegate of the Minister regarding a protection visa application. The Administrative Appeals Tribunal (AAT) had previously conducted a review of the delegate's decision.

The primary legal issue before the AAT was whether it possessed jurisdiction to review the delegate's decision, given that the decision had already been the subject of a prior review by the Tribunal. The Tribunal also considered whether the applicant's failure to respond to an invitation to comment impacted its jurisdiction.

The Tribunal reasoned that once a decision has been validly reviewed by the AAT, it ceases to be a reviewable decision. Consequently, the Tribunal loses jurisdiction in relation to that specific decision. The Tribunal noted that the applicant had not responded to its invitation to provide comments, which further supported the conclusion that there was no basis for jurisdiction.

The Tribunal concluded 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.Rachel Da CostaMember

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established