Nguyen (Migration)

[2018] AATA 3344

Nguyen (Migration) [2018] AATA 3344 (17 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Loan Nguyen
Miss Thi Ngoc Quynh Tran

CASE NUMBER:  1817770

DIBP REFERENCE(S):  CLF2014/70608 CLF2018/27176 PNJ

MEMBER:Margie Bourke

DATE:17 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 17 July 2018 at 2:14pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – duplicate review application – no Tribunal-reviewable decision – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 338, 347, 411, 412
Migration Regulations 1994, r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 18 June 2018 for review of a decision by the Department to refuse an application for a Subclass 801 visa, for both the primary visa applicant and the secondary visa applicant, dated 4 June 2018. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse visas of various kinds, but the evidence before the Tribunal indicates that the applicants had made two applications for review of the same decision of the Department. The decision of the Department is a reviewable decision, but the Tribunal cannot review the same decision made by the Department more than once (except in the circumstances that the Department decision is remitted back to the Tribunal by the Federal Court).

3. Based on the information before the Tribunal, I am satisfied the applicants lodged this application for review on 18 June 2018 and lodged a second application for review on 19 June 2018. I am satisfied the two applications for review were given separate review file reference numbers.  The applicants’ representative advised the tribunal on 25 June 2018 that the applicants did not wish to proceed with this review (reference number 1817770), and would proceed with the other application for review.

4. I am satisfied the applicants and their representative were aware they had applied for two reviews of the same decision.  I am satisfied the applicants and their representative were aware the tribunal did not have jurisdiction to hear more than one review of the department decision. The Tribunal sent the applicant an invitation to comment in writing by letter dated 27 June 2018 addressed to their representative, as to the validity of the application for review as the Tribunal cannot review the same decision made by the Department twice.  The Tribunal did not receive any submissions as to the validity of the application for review.  The representative advised the Tribunal that the applicants had withdrawn their instructions from the representative.

5. As there is no reviewable decision it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Margie Bourke
   Member