2319147 (Refugee)

2319147 (Refugee) [2024] AATA 902 (10 January 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division
CASE NUMBER:  2319147
MEMBER:  Brendan Darcy
DATE:  10 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 10 January 2024 at 10:58am

CATCHWORDS

REFUGEE – protection visa – East Timor – 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 1 September 2023 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 24 November 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 AAT 2313583 on 22 November 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 28 November 2023, the Tribunal invited the applicant to comment on this application for review, and to do so by 12 December 2023. However, neither the applicant nor anyone on the applicant’s behalf submitted any response or comments to the Tribunal, including right up to the time of making this 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.

Brendan Darcy Member

CaseChat Overview and Summary

The applicant, a citizen of East Timor, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The Administrative Appeals Tribunal had previously affirmed the Minister's decision, and the applicant had lodged a subsequent application for a protection visa. The Federal Circuit Court of Australia was asked to determine whether it had jurisdiction to hear the matter.

The central legal issue before the Court was whether the applicant's second application for a protection visa was a "reviewable decision" within the meaning of the *Migration Act 1958* (Cth) and the *Administrative Appeals Tribunal Act 1975* (Cth), given that a previous application had already been refused and affirmed by the Tribunal. Specifically, the Court had to consider the effect of section 48 of the *Migration Act*, which generally bars a non-citizen who is in Australia and whose visa application has been refused (and not subsequently revoked) from applying for most other visas while remaining in Australia.

The Court reasoned that the applicant's second protection visa application was not a "claim for a protection visa" in the sense contemplated by the *Migration Act* for the purposes of a merits review by the Tribunal, due to the operation of section 48. The previous decision by the Tribunal affirming the refusal of the initial protection visa application meant that the applicant was barred from making a further application for a protection visa while remaining in Australia. Consequently, the subsequent application was not a decision that could be reviewed by the Tribunal, and therefore the Federal Circuit Court lacked jurisdiction to hear the appeal.

The Court made orders striking out the application for review for want of jurisdiction.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established