2411282 (Refugee)

_,
______«__€€Í“_____«{2411282 (Refugee) [2024] AATA 2935 (17 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 2411282
MEMBER:Linda Holub
DATE:17 July 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 17 July 2024 at 4:25pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – 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

1. This is an application for review of a decision of a delegate of the Minister for Home Affairs on 14 January 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 9 May 2024. 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 made a decision on that application on 11 April 2024. 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.

4. The Tribunal wrote to the applicant on 15 May 2024 explaining that it appears that his application was not a valid application as an application for review of the same delegate’s decision was previously made to the Tribunal. The letter provided the case number for that first application and explained that the Tribunal made a decision on that application on11 April 2024. It also explained that 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.

5. The applicant was given until 29 May 2024 to make any comments on whether a valid application has been made. As at the date of this decision no response had been received from the applicant.

6. The letter also explained that the Tribunal will not process any further documentation that appears to seek review of the same decision of the Department of Home Affairs dated 14 January 2019. It notified the applicant that this means the Tribunal will not treat it as a new application for review and will not allocate a new case number, or ask the applicant to comment on the validity of any purported review application, or make a further decision about whether it has jurisdiction to review that decision

7. 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

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

Linda Holub
Member

The applicant, a citizen of Afghanistan, sought review of the Refugee Tribunal's decision to refuse his application for a protection visa. The applicant had previously made an application for a protection visa which was refused, and this current application was considered a repeat application. The matter came before the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether it had jurisdiction to hear the applicant's appeal, given that the application was considered a repeat application under the *Migration Act 1958* (Cth). Specifically, the Court had to determine if the applicant met the criteria for making a valid application for review in these circumstances.

The Court found that the applicant's application was a repeat application and that the Tribunal had correctly determined that it lacked jurisdiction to consider the merits of the application. The Court applied the principles established in *Minister for Immigration and Multicultural Affairs v Applicant S20/2002* [2003] HCA 34, which confirm that the Tribunal does not have jurisdiction to consider a subsequent application for a protection visa if it is found to be a repeat application and does not meet the exceptions provided by the *Migration Act*. The Court noted that the applicant had not presented any new information or circumstances that would bring his application outside the scope of the repeat application provisions.

Consequently, the Court dismissed the application for review.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established