Ahmad v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 897
•20 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ahmad v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 897
File number: MLG 779 of 2019 Judgment of: JUDGE FORBES Date of judgment: 20 October 2023 Catchwords: MIGRATION - application for judicial review of decision of Administrative Appeals Tribunal to dismiss application for non-appearance at hearing – where Judicial Registrar summarily dismissed application - application for extension of time to seek review of decision of Judicial Registrar– extension of time granted – de novo hearing of Minister’s application for summary dismissal of substantive application – where applicant has no reasonable prospect of establishing judicial error – application summarily dismissed Legislation: Migration Act 1958 (Cth) ss 360, 360A, 362B, 379A, 379C Cases cited: AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426
Ahmad v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 799
AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44
Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886
Allison v Murphy [2021] FCAFC 232
EAZ22 v Minister for Immigration, Citizenship, Multicultural Affairs [2023] FedFamC2G 631
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64
Minister for Home Affairs v DUA16 (2020) HCA
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [58]); (2014) 231 FCR 437
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Spencer v The Commonwealth of Australia [2010] HCA 28
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
SZION v Minister for Immigration and Citizenship [2011] 191 FCR 123
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 26 September 2023 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
MLG 779 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAROOQ AHMAD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
20 OCTOBER 2023
THE COURT ORDERS THAT:
1.
The time for the Applicant to file an application for review of the decision of Judicial Registrar Cummings published on 1 September 2023 be extended to
11 September 2023.
2.The Applicant’s application for judicial review filed on 19 March 2019 be summarily dismissed pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.
3.The Applicant pay the First Respondent’s costs of the hearing before Judicial Registrar Cummings fixed at $4,189.38.
4.The Applicant also pay the First Respondent’s costs of this review application which, in default of agreement, shall be in accordance with the scale prescribed in Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) as at 31 July 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
By an application for judicial review filed on 19 March 2019, the applicant sought review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 20 February 2019 to dismiss the applicant’s application for review due to non-appearance at hearing pursuant to s 362B(1A)(b) of the Migration Act 1958 (Cth) (the Act).
In his substantive application for judicial review, the applicant contends that the Tribunal made an “error in judgement” and that he did not receive an invitation to a Tribunal hearing by way of email or post[1].
[1] Applicant’s Initiating Application dated 19 March 2019
At a directions hearing on 15 August 2023 and in an amended response filed on 16 August 2023, the Minister sought an order for summary dismissal of the application pursuant to rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (the Rules). The Minister contends that the applicant’s substantive application has no reasonable prospect of success.
The Minister’s application for summary dismissal was heard by Judicial Registrar Cummings on 31 August 2023. On 1 September 2023, Registrar Cummings published reasons and made the following orders in this matter:
1.The application for judicial review filed on 19 March 2019 be summarily dismissed pursuant to rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The Applicant pay the first respondent’s costs fixed in the sum of $4,189.38.
By an application filed on 11 September 2023, the applicant seeks a review of the Judicial Registrar's decision pursuant to rule 21.02 of the Rules.
The application for review of the Registrar’s decision was made just outside the time limit of 7 days prescribed by rule 21.02(a). That period may be extended by order of the Court. The applicant seeks an extension of time.
The review of the Registrar’s decision proceeded by way of a hearing de novo before me on 26 September 2023.
I have decided that the time for filing an application for review of the Registrar’s decision should be extended to 11 September 2023.
However, for the reasons set out below, the orders of the Judicial Registrar should be affirmed. I am satisfied that the applicant’s substantive application has no reasonable prospects of success and for that reason the application should be summarily dismissed pursuant to rule 13.13(a) of the Rules.
BACKGROUND
The relevant background to this application is largely uncontested and is conveniently set out in the Judicial Registrar’s published reasons in Ahmad v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 799 at [4]-[10]. While the hearing before me has been conducted de novo, I respectfully adopt the Judicial Registrar’s summary of the background as it accords with my own analysis of the documents in the court book.
The Registrar set out the following findings of fact:
4.On 2 November 2017, the applicant applied to the Tribunal for review of the delegate’s decision (Court Book (“CB”) 61). In the application form he provided a contact email address (the Hotmail address) and phone number (the 393 number) (CB 62). The Hotmail address was also the address given as the applicant’s personal email address in the visa application (CB 7). The applicant’s wife was subsequently joined to the Tribunal application (CB 63-78), she having been a secondary applicant in the underlying visa application (CB 4). She is not a party to these proceedings.
5.On 18 January 2019, the Tribunal sent an email to the Hotmail address by which it invited the applicant and his wife to attend an “in person” hearing at the Melbourne Registry of the Tribunal on 7 February 2019 at 1:30pm (VIC time) (CB 82-83). The invitation relevantly stated the following (CB 85):
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.
6.The hearing invitation was accompanied by a brochure that reiterated the potential consequences of the applicant failing to attend the hearing (as reproduced as an annexure to the affidavit of Tareena Martin as filed on behalf of the Minister after close of business on 17 August 2023).
7.The Tribunal sent SMS “hearing reminders” to the 393 number five business days and one business day before the hearing (CB 86-87). The applicant told me during the summary dismissal hearing that he had received these messages. The messages stated:
Reminder - Your AAT hearing is on 07/02/19. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call [a specified 1800 number].
8.Neither the applicant nor his wife attended the Melbourne Registry of the Tribunal on the day of the hearing (CB 88). On 20 February 2019, the Tribunal dismissed the review application pursuant to s 362B(1A)(b) of the Act (the dismissal decision) (CB 93). The Tribunal’s decision record for the dismissal decision relevantly states the following (emphasis in original) (CB 93):
The review applicant was invited under s.360 of the Migration Act 1958 to appear before the Tribunal on 7 February 2019 at 1.30pm. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. No satisfactory reason for the non-appearance has been given.
In these circumstances, the Tribunal has decided to dismiss the application without further consideration of that application or the information before the Tribunal.
9.The Tribunal notified the applicant of the dismissal decision by email sent to the Hotmail address on 20 February 2019 (CB 90). The cover letter accompanying the dismissal decision relevantly stated the following (emphasis in original) (CB 91):
You may apply to us, in writing, for reinstatement of the application 6 March 2019. In a reinstatement application you should set out why you failed to appear at the hearing and provide any other information you want the Tribunal to take into consideration when deciding whether your reinstatement application should be granted.
10.Neither the applicant nor his wife applied for reinstatement of the review application by 6 March 2019 (CB 97, [4]). On the following day, the Tribunal exercised the power in s 362B(1E) by confirming the dismissal decision (the confirmation decision) (CB 96). The Tribunal’s decision record for the confirmation decision relevantly states the following (CB 97, [4]):
As the review applicants did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decisions under review are taken to be affirmed.
Extension of time
As mentioned in the introduction the application for review of the Judicial Registrar’s decision was made on Monday 11 September 2023. The 7 day time limit prescribed by rule 21.02 expired on Friday 8 September 2023. The application was filed 3 days out of time, two of which were a weekend.
The Court has a broad discretion under rule 21.02 to extend time. The Court may extend time on any terms it thinks fit or if the parties consent. There is no prescribed statutory criteria to inform the exercise of the Court’s discretion to extend time, but I accept the Minister’s submission that appropriate criteria include consideration of the length of the delay, the explanation for the delay, any prejudice to the respondent and the merits of the proposed substantive application. The Minister’s representative submitted, and I accept, that the principles enunciated by the High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 (‘Katoa’) provide guidance to the exercise of the Court’s discretion.
I allowed the applicant to make an oral application for an extension of time at the hearing. It is within the Court’s power to allow such an application[2] and it came as no surprise to the Minister.
[2]AHH22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 426 at [12]
In an affidavit sworn on 8 September 2023 (which I note was on the last day of the 7 day time limit) the applicant deposed that he had been caught off-guard by the Minister’s summary dismissal application, he was not able to obtain representation or advice before the hearing and he was denied an adjournment by the Judicial Registrar. He said that he had attempted to get representation up until the night before the hearing and then on the day of the hearing he was provided with an interpreter with whom he could not effectively communicate.
In relation to what he had done after the Judicial Registrar’s decision, the applicant explained that he was not aware of the 7 day time limit. He said he tried to get some legal assistance and that he had a lawyer help him prepare the application for review and a supporting affidavit. He said the lawyer he spoke to told him the time limit was 14 days.
The Minister opposed the extension of time application.
Ms Liddy, on behalf of the Minister, submitted that the applicant had not provided an adequate explanation for his failure to lodge the application within the prescribed 7 day period and had not provided any evidence to sufficiently explain the delay. Although the Minister conceded that the delay was very short and that the Minister would not be prejudiced by an extension of time, the Minister submitted that the mere absence of prejudice alone is not a sufficient reason to grant an extension of time[3].
[3] Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at [349]
The Minister also submitted that in line with the High Court’s reasoning in Katoa, consideration should be given to the merits of the substantive application. In that context, Ms Liddy submitted that the substantive application for judicial review had no prospects of success and that granting an extension of time in those circumstances would be an exercise in futility[4].
[4] WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]
In my view an extension of time should be granted. The applicant was only 3 days out of time, the Minister is not prejudiced and I accept that there was an adequate, although not entirely satisfactory, explanation for the delay. The applicant is self-represented and it is obvious that he obtained some assistance to prepare the affidavit filed in support of his application. I do not place much weight on his assertion that he was misled to believe that the time limit was 14 days, but I note that his application was filed within that period.
Summary dismissal of an application is a significant decision. In my view, the Court should extend some leniency where a self-represented party seeks a de novo review of a Registrar’s decision in a timely fashion, albeit just outside the prescribed time limit. I consider it to be in the interests of justice for the contested decision of the Judicial Registrar to be reviewed and determined by the Court.
The Court does have a broad discretion to extend time and in my view this is an appropriate occasion for the discretion to be exercised in favour of the applicant.
Minister’s application for summary dismissal
The Minister submits that the substantive application is without any merit. The Minister submits that the application should therefore be summarily dismissed.
Pursuant to rule 13.13(a) of the Rules, the Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim.
An application for summary dismissal requires the Minister to establish that the applicant enjoys no reasonable prospect of success. The Minister bears the onus. In a migration case the Minister needs to persuade the Court that the applicant has no reasonable prospect of successfully establishing that the Tribunal’s decisions are affected by jurisdictional error[5].
[5] AIZ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44 at [36]-[37]; EAZ22 v Minister for Immigration, Citizenship, Multicultural Affairs [2023] FedFamC2G 631 at [15] (‘EAZ22’). See also Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [22] (‘Spencer’); Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [6]-[7]
It would not be appropriate to summarily dismiss an application for judicial review if it raises a contested factual issue or a question of law that should be decided at trial. However, the threshold for dismissal is not so high that it is necessary for the Court to be satisfied that the application is completely hopeless or is bound to fail[6].
[6] AIZ22 at [36]
As the moving party, the Minister sought to rely upon the written submissions, court book and other materials which had been provided to the Judicial Registrar. Rule to 21.04 of the rules provides that a review of the exercise of a power by a Registrar proceeds by way of hearing de novo, but the Court is able to receive as evidence any affidavits or exhibits tendered before the Registrar and the Court may, with leave, receive further evidence[7].
[7] Allison v Murphy [2021] FCAFC 232 at [11]; Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 886 at [19]
The Minister’s case for summary dismissal, in a nutshell, is that the Tribunal was bound by statute to dismiss the applicant’s application for review of the delegate’s decision because the applicant failed to attend the Tribunal hearing and then failed to apply for reinstatement of the application within 14 days of the application being dismissed. The Minister submits that in the circumstances of this case, confirmation by the Tribunal of its decision to dismiss the application was the only course open to it and that there was therefore no judicial error.
It will be recalled that the delegate refused to grant the applicant a visa on 18 October 2017. On 2 November 2017 the applicant applied to the Tribunal for review of the delegate's decision. In his application for review[8], the applicant provided a Hotmail address for email correspondence and a mobile phone number. The applicant does not contest that the email address and mobile phone number were provided by him and that they are associated with him.
[8] Court Book (CB) 62
By an invitation dated 18 January 2019, the Tribunal invited the applicant to appear before it under section 360 of the Act. The Minister submits that the hearing notice complied with the requirements in section 360A of the Act which required it to:
(a)give the date, time and place of the hearing;
(b)be transmitted by email to the email address provided to the Tribunal by the applicant;
(c)comply with the prescribed notice period between the invitation and the date of the hearing; and
(d)contain a statement to the effect of section 362B of the Act.
As required by section 379A(5)(b) and (d) of the Act, the hearing invitation was sent to the applicant’s nominated email address, being the email address provided by him to the Tribunal on 18 January 2019. The hearing invitation was accompanied by a brochure which set out the potential consequences for the applicant in the event he failed to attend the hearing. Evidence that the email was dispatched to the applicant’s nominated email address is found in the court book at page 82 and confirmed in the affidavits of Tareena Martin.
The applicant was also sent two SMS text messages reminding him of the forthcoming hearing. The first of these messages was sent 5 days prior to the hearing and the second on the day before.
In oral submissions to the Court, the applicant conceded that he did receive both SMS messages but he asserted that he did not receive the notice of the hearing. The applicant also conceded that the notice was sent to his nominated email address but says that at the time his migration affairs were being dealt with by a man who he described as his “migration agent”. The applicant said this man had told him not to worry about the hearing or the SMS messages as he (the so-called agent) “would deal with it”.
The applicant said that this man had helped him fill out migration forms and other paperwork and had charged him a lot of money. To illustrate the involvement of this other person in his migration affairs, the applicant took the Court to the Tribunal application form (CB 77) and stated that the signatures there were not his. The applicant also took the Court to a Tribunal casenote entry (CB 86) which records that a person representing himself as the applicant’s “brother” had approached the Tribunal counter to lodge an amended application form. The applicant said the “brother” was in fact the person who had been assisting him. The applicant said this person had mishandled his case.
The Minister submits that where the hearing invitation is correctly sent to the applicant’s nominated email address, s 379C(5) of the Act deems the applicant to have received the invitation at the end of the day on which it was transmitted. This is so whether or not the applicant actually received the invitation and is not for the Court to enquire into whether or not the document was in fact received[9].
[9] Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64 at [8]
It is common ground that the applicant did not attend the Tribunal hearing. The Minister submits that the Tribunal complied with the legislative requirements to invite the applicant to a hearing. Accordingly, the Minister submits that the Tribunal’s power to proceed to dismiss the application under s 362B(1A)(b) was enlivened.
The Tribunal exercised its discretion to dismiss the application and provided a written statement setting out the reasons for its decision. The Minister contends that the applicant's non-appearance at the hearing after having been informed of the consequences of not attending and his failure to contact the Tribunal or provide an explanation for his nonappearance constituted an intelligible justification for the exercise of the discretion[10].
[10] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [58]); (2014) 231 FCR 437 at 446-447
The Minister submits that the Tribunal complied with the statutory scheme by providing a written statement setting out the reasons for its decision to dismiss the application, including recording the day and time the statement was made. The applicant was subsequently notified of the dismissal decision by email to his nominated email address and he was provided a statement describing the effect of ss 362B(1B) to (1F) as required under ss 362B(5)-(6) and 379A(5)(b) (see CB94).
It is also common ground that the applicant failed to apply for reinstatement of his application within the 14 day period prescribed by s 362B(1B) of the Act.
The Minister submits that pursuant to s 362B(1E) the Tribunal was thereby required to confirm the decision to dismiss the application by providing a written statement to that effect. The Minister contends that the Tribunal was bound to do so and had no discretion to do otherwise.
CONSIDERATION
As mentioned earlier, the applicant’s substantive grounds for seeking to impugn the Tribunal’s decision is that the Tribunal member “made an error in judgement” and that he had not received an invitation to the hearing by “any email or post”.
In my view, the applicant has no reasonable prospect of successfully establishing jurisdictional error on the part of the Tribunal.
Section 362B(1)-(1A) of the Act provides as follows:
Scope
(1) This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings:
(1A) The Tribunal may:
(a)by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
The Tribunal’s power to dismiss an application without any further consideration of it is not enlivened unless the applicant has been validly invited to appear before the tribunal under s 360 of the Act. Accordingly, it is necessary for the Court to be satisfied that the hearing invitation was properly extended to the applicant in a manner which complied with the requirements imposed by ss 360 and 360A of the Act.
On the evidence before the Court, I am so satisfied. The invitation to the applicant informed him of the date, time and means by which he could attend the hearing. The invitation was addressed to the applicant and transmitted to him by email to the address provided by him to the Tribunal. That was a permissible means of communicating with the applicant. I am satisfied that the Hotmail address was, for the purposes of s 379A(5), the last email address provided by him.
The applicant’s contention that he did not “receive” the hearing invitation cannot be sustained. The transmission of the hearing invitation to the email address nominated by the applicant is deemed, by operation of statute, to have been received by him at the end of the day on which it was transmitted. Such is the effect of ss 379A(5)(b) and 379C(5) of the Act.
It matters not that the applicant may not in fact have personally received the invitation on that day or at all. The relevant statutory scheme deems receipt.
The involvement or intervention of the applicant’s so-called “migration agent” does not give rise to jurisdictional error. The applicant conceded that the hearing invitation was transmitted to his Hotmail address but, in a manner which still remains unclear, he asserts that his “agent” either intercepted the invitation by controlling the email address or assured the applicant to leave the issue in his hands.
The conduct of a third party which is not known to the Tribunal can result in jurisdictional error - but only in extremely limited and rare cases[11]. This is not one of them. This is not a case where the Tribunal has been disabled or stultified from discharging its statutory function by a fraud perpetrated on the Tribunal by third-party. The applicant’s assertion that his “agent” mishandled his review application might be a complaint about bad or negligent advice “or some other mishap, that applies to a party’s detriment” but it does not vitiate the Tribunal's decision[12].
[11] SZION v Minister for Immigration and Citizenship [2011] 191 FCR 123 at [60]
[12] see eg SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [34]; Minister for Home Affairs v DUA16 (2020) HCA 46 at [15]
The other element of the applicant’s substantive attack on the Tribunal’s decision is that it “made an error in judgement”. It is not entirely clear what the applicant means by this, but I infer that the applicant is of the view that the Tribunal incorrectly exercised its discretion in dismissing his application.
In written submissions the Minister conceded that the dismissal power in s 362B(1A)(b) must be exercised reasonably[13]. I am satisfied that the Tribunal exercised its discretion in that manner. The discretion to dismiss was enlivened by the applicant’s failure to attend the Tribunal hearing. The notice had been properly sent to the applicant and is deemed to have been received. The applicant had been reminded of the hearing date by SMS text messages and he was on notice of the possible consequences of not attending. The applicant did not contact the Tribunal or offer any explanation for his non-appearance. It was open to the Tribunal to dismiss the application and the Tribunal’s published reasons reveal no jurisdictional error.
[13] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 549
There is also no jurisdictional error in the Tribunal’s decision to confirm the dismissal decision. After the Tribunal dismissed the application it provided the applicant a written statement setting out the reasons for its decision as was required of it by section 362C(2). The notification to the applicant of the dismissal decision included a statement which described the effect of ss 362B(1B) to (1F). The decision and statement were sent to the applicant’s Hotmail address and by reason of the deeming provisions discussed above, I accept that it was received by him in accordance with the statutory scheme.
When the applicant failed to apply for reinstatement within the 14 day period, the Tribunal was bound to confirm the decision to dismiss the application by reason of s 362B(4). The period for seeking reinstatement of the application expired on 6 March 2019. The only decision the Tribunal could validly make in light of the applicant’s failure to apply for reinstatement of the review application was to confirm its earlier decision to dismiss the application. As the Tribunal was bound to make that decision, it was not procedurally unfair to the applicant nor was it an error in judgement.
CONCLUSION
The time for filing an application for review of the Registrar’s decision should be extended to 11 September 2023.
However, having regard to the matters discussed above, I am comfortably satisfied that the applicant does not have reasonable prospects of successfully prosecuting his substantive application for judicial review. The requisite test for summary dismissal has been met and the Minister is entitled to the relief sought.
I will order that the application be summarily dismissed pursuant to s 13.13(a) of the Rules.
The applicant should pay the Ministers costs of the hearing before the Judicial Registrar fixed at $4,189.38. The applicant should also pay the Minister’s costs of this hearing as agreed or, in the absence of agreement, pursuant to the scale set out in Division 1 of Part 2 of Schedule 2 of the Rules.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 20 October 2023
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