Sam (Migration)

[2017] AATA 1771

Sam (Migration) [2017] AATA 1771 (18 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sophal Sam

CASE NUMBER:  1702351

DIBP REFERENCE(S):  CLF2013/254370

MEMBER:K. Chapman

DATE:18 July 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 18 July 2017 at 7:06pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Tribunal earlier reviewed same primary decision – No longer a reviewable decision

LEGISLATION

Migration Act 1958, s 65

CASES

SZBWJ v MIAC [2008] FMCA 164
Jayasinghe v MIEA (1997) 76 FCR 301
SZASP v MIAC [2007] FCA 771

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 Immigration on 10 July 2015 to refuse to grant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (‘the Act’).

2. The present review application was lodged with the Tribunal on 10 February 2017. The Tribunal notes that the review application was lodged online using Form ‘eM1’ and indicates review is sought of a Class UK visa refusal decision dated 12 January 2017. The Tribunal has confirmed that no such visa refusal decision was made on that date. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

3. The applicant, who is a citizen of Cambodia, previously sought review in the Tribunal of the delegate’s decision of 10 July 2015 to refuse the grant of the Partner (Temporary) (Class UK) visa. On 12 January 2017, the Tribunal (differently constituted) affirmed that decision under review: Case Number 1510551. The present application for review is, therefore, an application for review of the same delegate’s decision.

4. On 14 February 2017, the Tribunal wrote to the applicant advising him that his application for review may not be valid, given the decision to refuse to grant him a Partner (Temporary) (Class UK) visa had already been reviewed by the Tribunal, and provided him with an opportunity to comment. On 2 March 2017, the applicant provided a response including a submission, Certificates of Marriage, extract of Birth Certificate, Certificate of Licence, Certificate of Australian Citizenship, supporting personal statement, and a medical report. The aforementioned material has been duly considered by the Tribunal.

5. 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: see for example 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. The Tribunal has carefully assessed the evidence pertaining to this matter. 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.

   K. Chapman
   Member