2315136 (Refugee)

[2023] AATA 4795

2315136 (Refugee) [2023] AATA 4795 (23 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2315136

MEMBER:Anne Grant

DATE:23 November 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 23 November 2023 at 10:17am

CATCHWORDS
REFUGEE – protection visa – China – previous application for review dismissed and refusal affirmed after no appearance at hearing – valid review finalised and no longer reviewable decision – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 426A(1F)

CASES
Jayasinghe v MIEA (1997) 76 FCR 301
SZASP v MIAC [2007] FCA 771
SZBWJ v MIAC [2008] FMCA

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

1. This is an application for review of a decision of a delegate of the Minister for Home Affairs on 25 July 2019 to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review application was lodged with the Tribunal on 24 September 2023. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

3. An application for review of the same delegate’s decision was previously made to the Tribunal. The Tribunal (differently constituted) made a decision on that application on 7 January 2022. The applicant had failed to attend the scheduled hearing on 7 December 2021. The presiding member made a decision to dismiss the application on that date (an initial dismissal, subject to the applicant’s right to seek reinstatement within fourteen days.) The applicant did not seek reinstatement of the application and the Tribunal confirmed the dismissal of the application on 7 January 2022. Where an application for review is dismissed in these circumstances, the legislation states that the decision under review is taken to be affirmed (section 426A(1F) of the Act.) Therefore the Tribunal made a final decision on the applicant’s review of the same delegate’s decision on 7 January 2022.

4. 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.

5. The Tribunal wrote to the applicant on 25 September 2023 informing her that it appeared that her application was not valid because the decision she was seeking to review had been previously reviewed by the Tribunal. The applicant did not respond to this correspondence.

6. 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

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

   Anne Grant
   Member