BBD23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 883
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BBD23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 883
File number: PEG 59 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 4 October 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal was correct to determine that it had no jurisdiction in this matter – whether the Tribunal erred in applying the Migration Regulations 1994 (Cth) – whether the conduct of the applicant’s lawyer or agent resulted in the applicant failing to appear at a hearing – whether the applicant was afforded common law natural justice – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 411, 412, 414, 426A, 476
Migration Regulations 1994 (Cth), Part 602 and cll 602.212 and 602.216 in Schedule 2
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
CLV21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 271
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Kioa v West (1985) 159 CLR 550
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZBWJ & Ors v Minister for Immigration & Anor [2008] FMCA 164
SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175
SZEYK v Minister for Immigration & Anor [2008] FMCA 1354
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 21 September 2023 Place: Perth Counsel for the Applicant: Applicant appeared in person Counsel for the Respondents: Ms G Ellis Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 59 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BBD23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
4 OCTOBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
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 KENDALL:
BACKGROUND
The applicant is a citizen of Taiwan (Court Book (“CB”) 1, 3, 7-9 & 28-29). She first arrived in Australia in May 2018 as the holder of a Tourist (Class TR) (Subclass 676) visa (CB 28).
On 23 July 2018, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-18). In that visa application, the applicant claimed to fear harm from the Taiwanese government on the basis of her support for and promotion of “National Unity” (CB 11-12). The applicant did not include details of any “authorised recipient” for correspondence in relation to her application. She did, however, include an email address for the receipt of electronic communications from the Department of Home Affairs (the “Department”) (CB 5-6).
On 21 December 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 28-38). The delegate noted that there was no evidence before it to suggest that the Taiwanese government did not allow citizens to express their political opinions and no credible evidence before it that the applicant was of any interest to Taiwanese authorities (CB 32). On that basis, the delegate did not accept that the applicant would face harm if she were to return to Taiwan or that that she would not be able to express her political opinions (CB 33).
On 23 December 2018, the applicant applied for review of the delegate’s decision (the “first review application”) by the Administrative Appeals Tribunal (the “Tribunal”) (CB 39-40). The applicant did not include details of any authorised recipient in that first review application. She did, however, include an email address for receipt of correspondence from the Tribunal (CB 40).
The Tribunal invited the applicant to appear before it to give evidence and present arguments in support of her first review application. The applicant did not appear at that hearing and the Tribunal dismissed the application for non-appearance pursuant to s 426A(1A)(b) of the Migration Act 1958 (Cth) (the “Act”) (the “Non-Appearance Decision”).
The applicant was notified of that decision and was advised of her right to apply for reinstatement.
The applicant did not apply for reinstatement.
On 21 November 2022, the Tribunal confirmed the Non-Appearance Decision (the “Confirmation Decision”) (CB 43-44).
On 7 December 2022, the applicant again applied to the Tribunal (the “second review application”). By that second review application, she again sought review of the delegate’s decision dated 21 December 2018 (CB 47-52). The applicant did not include details of any authorised recipient in the second review application. She included the same email address in that second review application as she had previously provided to the Department and to the Tribunal (in relation to the first review application) for the receipt of any correspondence from the Tribunal (CB 50).
On 6 January 2023, the Tribunal invited the applicant to comment on the validity of the second review application (CB 57-59). She was required to provide a response by 20 January 2023 (CB 58).
The Tribunal’s invitation letter relevantly provided (CB 58):
It appears that your application is not a valid application as an application for review of the same delegate's decision was previously made to the Tribunal. The case number for that first application is [omitted]. The Tribunal made a decision on that application on 21 November 2022. 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.
I am of the view that that your application is not a valid application. However, this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 20 January 2023. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
The applicant did not respond to this invitation to comment (CB 63).
On 16 March 2023, the Tribunal determined that it did not have jurisdiction to review the matter (the “Jurisdiction Decision”) (CB 62-63).
On 24 April 2023, the applicant applied to this Court for judicial review of the Tribunal’s Jurisdiction Decision. The application for judicial review is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
THE TRIBUNAL’S JURISDICTION DECISION
The Tribunal’s decision spans seven paragraphs. In full, it provides:
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Home Affairs on 21 December 2018 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 7 December 2022. 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 21 November 2022 (File no. [omitted]). 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 provided the applicant until 20 January 2023 to make submissions on whether a valid application had been made.
5. No response was received.
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.
APPLICATION TO THIS COURT
The applicant’s application for judicial review (filed on 24 April 2023) contains two “grounds of review”, as follows (without alteration):
1.The Department of Home Affiairs was unfairly treated my claims and evidence with wendesbury unreasonableness.
2.The Department of Home Affairs and Administrative Appeals were improperly applied the legal provisions: s65 of Migration Act 1958, part 602 of Schedule 2, cl 602.212(6), cl 602.216 of the Migration Regulations 1994 properly to assess my case.
With her application for judicial review, the applicant also filed an affidavit (deposed by her on 22 April 2023). That affidavit annexed a copy of the Tribunal’s Jurisdiction Decision (and associated notification letter) and repeated the grounds of review outlined above.
On 22 August 2023, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, any affidavit evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The matter came before this Court on 21 September 2023. The applicant appeared at that hearing without legal representation but with the assistance of an interpreter. Ms Ellis appeared on behalf of the Minister. The Court confirmed that the applicant had received a copy of the Court Book and the Minister’s written submissions.
At the hearing, Ms Ellis addressed an amended response (filed in this Court on 5 May 2023 on behalf of the Minister) and noted that the amended response incorrectly characterised the matter as needing an extension of time. Ms Ellis confirmed that the matter did not require an extension of time and told the Court that the Minister no longer sought to rely on the amended response.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 24 April 2023, a Court Book numbering 64 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 14 September 2023 and the affidavit of service of Mr Benjamin Mayne affirmed and filed on 18 September 2023.
Noting that the applicant was unrepresented, the Court gave her the opportunity to explain orally what she thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s Jurisdiction Decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272.
Against this background, the applicant explained that her “lawyer had not notified” her “of the hearing or that she needed to appear” and, for that reason, the applicant “did not appear at the hearing before the Tribunal”. The applicant also explained that she had asked her lawyer about her visa status and was told that her “second visa would be issued soon”. After following up again, she was told that her visa “had been approved”. When asked who had provided this advice to her, the applicant responded that her “lawyer was located in Sydney and his surname was “Xue””.
CONSIDERATION
Whether the Tribunal was correct to determine that it had no jurisdiction in this matter
Before considering the applicant’s grounds of review (as set out in her application for judicial review filed with this Court on 24 April 2023), the Court will first consider whether the Tribunal was correct to determine that it did not have jurisdiction to conduct a review (as requested by the second review application) in this matter.
Section 411 of the Act provides that a decision to refuse to grant an applicant a protection visa is a “Part 7-reviewable decision” and is thus reviewable by the Tribunal: s 411(1)(c) of the Act.
Section 412 of the Act outlines what is required in order for a valid application for review to be made.
Where a valid application for review is made, s 414 of the Act requires that the Tribunal review that decision. Section 414 of the Act relevantly provides as follows:
414 Tribunal to review Part 7‑reviewable decisions
(1)Subject to subsection (2), if a valid application is made under section 412 for review of a Part 7‑reviewable decision, the Tribunal must review the decision.
(2)The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
Here, a delegate refused to grant the applicant the visa on 21 December 2018 (CB 28-38).
The applicant then made the first review application on 23 December 2018 (CB 39-40).
The Tribunal, in relation to that first review application, invited the applicant to appear at a hearing before it. When the applicant failed to appear at that hearing, the Tribunal made the Non-Appearance Decision, dismissing the first review application pursuant to s 426A(1A)(b) of the Act.
The applicant was notified of the Non-Appearance Decision and of her right to apply for reinstatement. She did not avail herself of that right.
On 21 November 2022, the Tribunal made its Confirmation Decision, confirming the Non-Appearance Decision (CB 43-44).
In the circumstances of this matter, a valid application was made (by the applicant to the Tribunal) for review of the delegate’s decision by way of the first review application (CB 39-40).
That first review application was finalised when the Tribunal delivered its Confirmation Decision on 21 November 2022 (CB 43-44).
The applicant then filed the second review application with the Tribunal on 7 December 2022 (CB 47-52). That second review application also sought review of the delegate’s decision (dated 21 December 2018 and found at CB 28-38).
The Tribunal ultimately found that it did not have jurisdiction to review the delegate’s decision a second time, citing SZBWJ & Ors v Minister for Immigration & Anor [2008] FMCA 164 (“SZBWJ FMCA”). The relevant passage in SZBWJ FMCA as referenced by the Tribunal (at [3] in its reasons) reads as follows:
41.Where the decision of a delegate of the Minister has already been the subject of a valid review by the Refugee Review Tribunal it is no longer an RRT reviewable decision under s 411. Where the Tribunal concludes that it has already discharged its function under the Act to review the Delegate’s decision and a second application for review is not a valid application because the Tribunal no longer has jurisdiction in relation to that decision, there is no jurisdictional error.
The Court also notes comments made by Smith FM in SZEYK v Minister for Immigration & Anor [2008] FMCA 1354 (“SZEYK”) at [5] where it is stressed that the Tribunal does not have jurisdiction to review a delegate’s decision twice:
5.In its reasons, the Tribunal referred to well known authority which establishes that it does not have jurisdiction to review a delegate’s decision twice. That line of cases has recently been followed by Cowdroy J in SZCKX v Minister for Immigration & Citizenship [2008] FCA 526 and Moore J in SZBWJ v Minister for Immigration & Citizenship [2008] FCA 1175.
In SZEYK, Smith FM is referencing the reasons of Moore J in SZBWJ v Minister for Immigration and Citizenship [2008] FCA 1175 (being the appeal of SZBWJ FMCA referenced above). In that matter, much like in the present case, the applicants sought a further review of a delegate’s decision by the Tribunal. Relevantly, Justice Moore’s findings provide:
16.In my view, a proper construction of the Act tells against a conclusion that the Tribunal is empowered to again review the delegate’s decision in circumstances where the Tribunal’s original decision was not attended with jurisdictional error. Treating the Tribunal as authorised to undertake a second review of the delegate’s decision would be contrary to the statutory aim of providing a mechanism of review that is “fair, just, economical, informal and quick”: see s 420(1) of the Act…
…
19.In considering the operation of the relevant statutory provisions, I agree with Goldberg J in Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301, where his Honour concluded that the Tribunal did not possess the power to reopen or reconsider a decision that it had previously made. His Honour said (at 317):
When one takes into account the statutory provisions to which I have referred and in particular has regard to the provisions relating to the opportunity to make a further application to the Minister and a further application to the Tribunal, I do not consider it would be proper, in the absence of a clear legislative intention, to imply a power in the Tribunal to reconsider or re‑open a decision.
…
21.However, subsequent authority supports the proposition that the Tribunal was correct in deciding that it did not have jurisdiction to consider the applicants second review application. As the High Court said in Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at [30]:
It would be inconsistent with [the] scheme [of the Act] and contrary to the ordinary reading of Div 2 of Pt 7 of the Act to treat the decision of the tribunal as provisional in nature. In the situation where the tribunal had, without reviewable error, disposed of an application for review of the decision of the delegate . . ., the Act did not confer upon the tribunal any authority subsequently to reconsider the decision of the delegate by reason of later changed circumstances.”
As outlined above, the Tribunal in this matter discharged its function when it made its Confirmation Decision on 21 November 2022 (following the first review application made by the applicant) (CB 43-44). Having done so, the Tribunal did not have jurisdiction to consider any further review application made in relation to the same delegate’s decision. The second review application was not a valid application because the Tribunal no longer has jurisdiction in relation to the delegate’s decision: SZBWJ FMCA at [41].
The Court is satisfied that the Tribunal was correct to find that it did not have jurisdiction to conduct a further review in this matter and no error arises in that regard.
Grounds of review
Turning now to the applicant’s grounds of review, the Court notes that, as set out above, the judicial review application contains two “grounds of review”.
Those grounds of review provide as follows (without alteration):
1.The Department of Home Affiairs was unfairly treated my claims and evidence with wendesbury unreasonableness.
2.The Department of Home Affairs and Administrative Appeals were improperly applied the legal provisions: s65 of Migration Act 1958, part 602 of Schedule 2, cl 602.212(6), cl 602.216 of the Migration Regulations 1994 properly to assess my case.
To the extent that the grounds of review raise any issue with the delegate’s decision, this Court has no jurisdiction to review the delegate’s decision: ss 476(2) and 476(4) of the Act. Nor does the Court have the authority to review the merits of the applicant’s visa application or grant her the visa that she seeks: Wu Shan Liang at 272.
Insofar as the applicant references s 65 of the Act (in ground 2 above), the Court notes that that section of the Act references the requirement to either grant or refuse a visa. As set out above, the Tribunal in this matter did not have jurisdiction to review the delegate’s decision for a second time (having already done so). The Tribunal thus made no findings in relation to whether the applicant satisfied the criteria for the grant of the visa and neither affirmed nor set aside the delegate’s decision. Instead, it correctly determined that it did not have jurisdiction to consider the matter.
In relation to the reference to Part 602 and cll 602.212(6) and 602.216 in Schedule 2 of the Migration Regulations 1994 (Cth) (“Regulations”), the Court notes that the Tribunal did not apply any provisions of the Regulations when making its Jurisdiction Decision. Further, these provisions of the Regulations relate to a Medical Treatment (Subclass 602) visa. This is not the visa the subject of the application before this Court, nor is there any evidence before this Court to suggest that the applicant applied for a Medical Treatment visa.
No jurisdictional error arises in relation to grounds 1 or 2.
Applicant’s oral submissions
In oral submissions before this Court, the applicant raised concerns about not being notified of the Tribunal hearing by her “lawyer” or “agent”. The applicant stressed that this was the reason that she did not attend the Tribunal hearing and explained that, had she been notified of that hearing, she would have attended it.
The Court notes that the applicant here appears to be referencing the review undertaken by the Tribunal in response to the first review application. As set out above, the applicant failed to appear before the Tribunal in relation to that first review and the Tribunal subsequently dismissed the review application (pursuant to s 426A(1A)(b) of the Act) by way of the Non-Appearance Decision. When the applicant failed to seek reinstatement, the Tribunal ultimately confirmed the Non-Appearance Decision on 21 November 2022 by making the Confirmation Decision.
The Court notes that neither the Non-Appearance Decision nor the Confirmation Decision are the subject of the judicial review application now before this Court. The Court also notes that there is no evidence before the Court to suggest that the applicant was assisted by a lawyer or agent in relation to her visa application or subsequent applications for review filed with the Tribunal. In particular, the Court notes that the applicant did not include details of any lawyer or agent in her visa application (CB 5) or in her the first or second review applications (CB 40 & 50).
There is no evidence before the Court relating to how the applicant was notified of the Tribunal hearing before the Tribunal or the Non-Appearance Decision made by the Tribunal in relation to the first review application. However, as outlined above, the applicant did not indicate in that first review application that she had appointed any lawyer or agent to assist her with that review. The applicant also included the same email address for the Tribunal to correspond with her in relation to her second review application as she had used in her first review application. In those circumstances, it is difficult to understand how the actions of a lawyer or agent could have impacted on the applicant receiving email correspondence from the Tribunal or resulted in the applicant not being aware of any Tribunal hearing.
In any event, the Tribunal hearing that the applicant says she missed (as a result of her agent or lawyer not advising her of that hearing) related to a separate review application before the Tribunal that is not the subject of the current judicial review application. Unfortunately, that is not something that can amount to jurisdictional error in the Jurisdiction Decision made by the Tribunal (being the decision that is the Court is currently reviewing and that was made following the applicant’s second review application being made to the Tribunal).
No jurisdictional error arises in this regard.
Otherwise – whether the applicant was afforded common law natural justice
Where an applicant is unrepresented and may not have adequate knowledge and an ability to prepare for, or understand, what is required of them, the Court will remain astute to the possibility of legal error in the Tribunal’s decision and should raise any concerns in that regard with the Minister: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391.
Here, the Court will address whether any common law guarantees of natural justice more broadly arise. This was recently considered by this Court in its decision in CLV21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 271 (“CLV21”) (citing WZAVO as litigation guardian for WZAVP v Minister for Immigration [2022] FedCFamC2G 108 (“WZAVO”) at [83]) and stresses that common law rules of procedural fairness only require that the Tribunal bring to an applicant’s attention any critical issue upon which a decision is likely to turn and provide an opportunity for the applicant to provide any response: Kioa v West (1985) 159 CLR 550 at 584 and 587 and SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [35] to [36] per Bennett J.
In this matter:
(a)the delegate refused to grant the applicant the visa on 21 December 2018 (CB 28-38);
(b)the applicant was notified of the delegate’s decision by way of letter sent to the applicant via email on 21 December 2018 (CB 24-27);
(c)the applicant sought review of that decision by filing the first review application on 23 December 2018 (CB 39-40);
(d)the Tribunal invited the applicant to appear at a hearing before it in relation to that first review application;
(e)when the applicant failed to appear at that hearing, the Tribunal dismissed the first review application (pursuant to s 426A(1A)(b) of the Act) by way of the Non-Appearance Decision made on 3 November 2022 (CB 44);
(f)when the applicant failed to seek reinstatement of the first review application, the Tribunal confirmed the Non-Appearance Decision by way of the Confirmation Decision (CB 43-44);
(g)the applicant again sought review of the delegate’s decision (dated 21 December 2018) by filing the second review application on 7 December 2022 (CB 47-52);
(h)the applicant was invited (on 6 January 2023, by email sent to her nominated email address) to comment on the validity of her second review application filed with the Tribunal. She was required to provide a response to that invitation by 20 January 2023 (CB 57-59);
(i)the applicant did not respond to the Tribunal’s invitation to comment (CB 63 at [5]); and
(j)the Tribunal waited until 16 March 2023 before making its Jurisdiction Decision and no response was provided by the applicant prior to that date (CB 62-63).
Here (as was the case in CLV21 and WZAVO), it cannot be said that the applicant was denied the right to present her case. Further, even if the Tribunal had invited the applicant to attend a hearing this would not have assisted the applicant. As detailed by the Court above, the Tribunal no longer had jurisdiction in relation to the delegate’s decision and the second review application made by the applicant was not a valid review application: SZBWJ FMCA at [41].
No error jurisdictional error arises in this regard.
CONCLUSION
The application for judicial review filed by the applicant on 24 April 2023 has failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 4 October 2023
3
23
0