2413398 (Refugee)

_,
______«__€€Í“_____«{2413398 (Refugee) [2024] AATA 3801 (15 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 2413398
MEMBER:Linda Holub
DATE:15 July 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 15 July 2024 at 4:00pm

CATCHWORDS
REFUGEE – protection visa – previous application validly reviewed – no longer reviewable decision – claim of fraudulent dealing by previous agent – 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 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 30 August 2023 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 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 23 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.

4. The Tribunal wrote to the applicant on 14 June 2024 explaining that it appears that her 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 on 23 November 2023. 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 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 30 August 2023. 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

6. The applicant was given until 21 June 2024 to make any comments on whether a valid application has been made.

7. The Tribunal received a response dated 18 June 2024. The letter outlines that the purpose of seeking review is to make the Tribunal aware of the fraudulent manner in which the applicant had been dealt with by a previous migration agent.

8. 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

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

Linda Holub
Member

The applicant, a refugee, sought judicial review of a decision concerning a protection visa. The dispute arose from the applicant's claim that a previous application for a protection visa had been subject to fraudulent dealings by their former agent, which they argued rendered the previous decision no longer reviewable and thus created a new basis for jurisdiction. The matter came before Holub J of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether it possessed jurisdiction to review the applicant's claim, given that a previous application for a protection visa had already been validly reviewed. The applicant contended that the alleged fraudulent conduct by their previous agent constituted a new and distinct circumstance that removed the previous decision from the operation of finality principles, thereby permitting a fresh review.

Holub J reasoned that the applicant's argument concerning fraudulent dealings by a previous agent did not, in itself, confer jurisdiction on the Court to review a decision that had already been validly made and reviewed. The Court applied the principle that once a decision has been made and the avenues for review have been exhausted or expired, that decision is generally final and not subject to further challenge on grounds that existed or could have been raised at the time of the original review. The alleged fraud, while a serious matter, did not create a new decision amenable to judicial review in this instance.

Consequently, the Court found that it lacked jurisdiction to entertain the applicant's claim.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established