_, __­____«­__€€Í“_­____«{Cheng (Migration)

[2023] AATA 2796

_,
__­____«­__€€Í“_­____«{Cheng (Migration) [2023] AATA 2796 (13 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ying Cheng

REPRESENTATIVE:  Ms Karyn Anderson (MARN: 9685990)

CASE NUMBER:  1930975

HOME AFFAIRS REFERENCE(S):          BCC2019/2839832 PNJ

MEMBER:Karen McNamara

DATE:13 July 2023

PLACE OF DECISION:  Sydney

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

Statement made on 13 July 2023 at 9:31am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) visa –no longer a reviewable decision – no jurisdiction to review a delegate’s decision twice – invalid application –no jurisdiction

LEGISLATION

Migration Act 1958, s 65, Schedule 2

CASES
SZASP v MIAC [2007] FCA 771
SZBWJ v MIAC [2008] FMCA 164

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 11 October 2019 to refuse to grant a Regional Employer Nomination (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review application was lodged with the Tribunal on 31 October 2019. An application for review of the same delegate’s decision was previously made to the Tribunal on 23 October 2019. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

3. On 1 November 2019, the representative wrote to the Tribunal via email advising that an administrative error resulted in the applicant lodging two review applications in regard to the Department’s decision of 11 October 2019. The representative requested the application for review lodged on 31 October 2019 be withdrawn and a refund processed.

4. Information before the Tribunal shows that on 11 December 2019, the representative contacted the Tribunal via telephone and requested the matter to remain active until the valid application is finalised in order for a refund of the application fee.

5. The Tribunal made a decision on that application on 13 July 2023 (AAT case file 1930117). 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.

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.

   Karen McNamara
   Member