BQB21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 535
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BQB21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 535
File number(s): PEG 123 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 6 July 2022 Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – Protection (Class XA) visa – citizen of China – dismissed for non-appearance before Tribunal – dismissal decision confirmed by Tribunal
PRACTICE AND PROCEDURE – Application in a proceeding – notice of discontinuance filed – application for reinstatement of originating application – whether implied power to consider application for reinstatement – whether exceptional circumstances – whether notice of discontinuance filed knowingly and voluntarily – whether originating application had reasonable prospects of success
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 44
Federal Circuit Court of Australia Act 1999 (Cth) s 15
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.01
Federal Court of Australia Act 1976 (Cth) s 23
Migration Act 1958 (Cth) ss 426A, 426B, 441A, 476
Cases cited: CDN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 699
Chen v Monash University [2016] FCAFC 66; (2016) 244 FCR 424
DZY17 v Minister for Home Affairs [2018] FCAFC 196
EHR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3271
Moussa v Minister for Immigration and Border Protection [2015] FCA 1280
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1048
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of last submission/s: 28 February 2022 Date of hearing: 24 November 2021, 25 and 28 February 2022 Place: Perth Applicant: In person by telephone, assisted by a Mandarin interpreter Counsel for the First Respondent: Mr A. Shinnick via CISCO Webex Solicitor for the First Respondent: MinterEllison Lawyers For the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 123 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BQB21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
6 JULY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The Application in a Proceeding filed 18 October 2021 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 LUCEV
INTRODUCTION
Before the Court is an application in a proceeding filed on 18 October 2021 by the applicant, BQB21, seeking orders that the originating application be reinstated (“Reinstatement Application”). The originating application is an application for judicial review filed by BQB21 on 16 June 2021 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application concerns a decision of the Administrative Appeals Tribunal (“Tribunal”) handed down 18 May 2021. The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to dismiss BQB21’s application for a Protection (Class XA) visa (“Protection Visa”).
On 20 September 2021 BQB21 filed a Notice of Discontinuance in relation to the Judicial Review Application, which resulted in it being discontinued.
The Court Book (“CB”) was tendered at the hearing of the application in a proceeding and was marked as Exhibit 1.
BACKGROUND
The relevant background to the Judicial Review Application is as follows:
(a)BQB21 is a citizen of China who applied for the Protection Visa on 7 May 2018: CB 17-40;
(b)on 22 March 2019 the Delegate’s Decision was to refuse to grant BQB21 a Protection Visa: CB 65-76;
(c)BQB21 sought review of the Delegate's Decision before the Tribunal by application dated 27 March 2019: CB 77-78 (“Tribunal Review Application”), and provided an email address (which as it transpired was the email address of a migration agent named “Jenny” with whom BQB21 communicated on WeChat) (“Jenny’s Email”): CB 78; Transcript, 28 February 2022, p.8;
(d)in relation to the Tribunal Review Application, the following events occurred:
(i)by letter dated 13 April 2021, BQB21 was invited to a hearing before the Tribunal scheduled on 30 April 2021 (“Tribunal Hearing”): CB 96-100;
(ii)by email dated 23 April 2021 the Tribunal contacted BQB21 stating that BQB21 had “not provided the Tribunal with a contact telephone number” and requested that BQB21 provide “updated contact details”: CB 109; and
(iii)by email dated 27 April 2021 the Tribunal contacted BQB21 stating that it had “not yet received a response to the hearing invitation” and that it had not received a response to its request for updated contact details: CB 110;
(e)on Friday, 30 April 2021, BQB21 did not appear at the Tribunal Hearing, the Tribunal Hearing record notes “[t]here was no phone number to call, waited till 1:35pm before the interpreter was dismissed unde[r] member instructions”: CB 111-114;
(f)on the following Monday, 3 May 2021, under s 426A(1A)(b) of the Migration Act the Tribunal dismissed the Tribunal Review Application without any further consideration of the application or information before it. The Tribunal sent to BQB21 by email a letter (“3 May 2021 Letter”) enclosing written reasons for dismissing the Tribunal Review Application (“Dismissal Decision”). In the 3 May 2021 Letter (at CB 116) the Tribunal stated that:
You may apply to us, in writing, for reinstatement of the application by 17 May 2021. 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.
(g)BQB21 did not seek reinstatement of the Tribunal Review Application, and on 18 May 2021 under s 426A(1E) of the Migration Act the Tribunal confirmed the Dismissal Decision to dismiss the Tribunal Review Application: CB 123-126 (“Confirmation Decision”);
(h)on 16 June 2021 BQB21 filed the Judicial Review Application in the Perth Registry of this Court (then styled the Federal Circuit Court of Australia), seeking judicial review of the Confirmation Decision: CB 1-5;
(i)on 20 September 2021 BQB21 filed a Notice of Discontinuance in this proceeding. The Notice of Discontinuance:
(i)bears the correct proceeding number, PEG123/2021;
(ii)correctly identifies the parties to the proceeding;
(iii)correctly identifies the date, 16 June 2021, of the Judicial Review Application;
(iv)purports to have been “filed on behalf of” and “prepared by” BQB21 personally;
(v)under the heading “Which of the orders you applied for do you want to discontinue?” the box next to the statement “all of them” is marked;
(vi)purports to have been signed by BQB21 on 20 September 2021; and
(vii)the Notice of Discontinuance contains the following statement:
This notice was prepared by xperson(s) giving this notice
REINSTATEMENT APPLICATION
Orders sought
The order sought in the Reinstatement Application is to “[r]eopen the matter PEG123/2021”, that is, to reopen the Judicial Review Application which was discontinued.
BQB21’s Affidavit and Submissions
BQB21 has filed an affidavit affirmed 17 October 2021 (“BQB21 Affidavit”) in the Reinstatement Application which sets out, in Part D – Evidence, a mix of factual assertions and submissions as follows:
(a)BQB21 believes he has a strong case on the merits to be granted a Protection Visa;
(b)the Judicial Review Application was prepared by a migration agent, and in BQB21's view, the Judicial Review Application and supporting affidavit were poorly written and prepared without his input;
(c)BQB21 attempted to seek judicial review of the Confirmation Decision by attempting to file a further application for judicial review (“Proposed Further Judicial Review Application”) in the Melbourne Registry of this Court. The Proposed Further Judicial Review Application was not accepted for filing because the Judicial Review Application was current and ongoing;
(d)BQB21 filed the Notice of Discontinuance because he wished to file the Proposed Further Judicial Review Application in the Melbourne Registry of this Court, and to pursue the Proposed Further Judicial Review Application representing himself;
(e)BBQ21 wishes to pursue the Proposed Further Judicial Review Application because he believes the Tribunal did not properly assess his case; and
(f)in the BQB21 Affidavit BQB21 states that “following the court's instructions I withdrew my FCC application”, that being a reference to the Notice of Discontinuance filed in relation to the Judicial Review Application.
Hearing 24 November 2021
The matter was initially listed for hearing on 24 November 2021. At that hearing the possibility emerged that Jenny’s Email, provided to the Court in the Judicial Review Application as the email contact address for BQB21 was not BQB21’s email address, or an email address to which BQB21 had access, and access to that email address might have been restricted to a particular migration agent, “Jenny” who no longer acted for BQB21. The effect of that restriction was that it appeared to be possible that BQB21 might not have seen orders made by the Court on 25 October 2021 requiring BQB21 to file written submissions in support of the application in a proceeding by 10 November 2021. Consequently, the Court made further orders, including orders that:
(a)BQB21 file and serve a notice of address for service with his current personal mobile telephone number and personal email address by 1 December 2021;
(b)time for compliance with the order requiring BQB21 to file written submissions be extended to 8 December 2021;
(c)the Minister have leave to file any further submissions by 22 December 2021; and
(d)the hearing of the matter being adjourned to 25 February 2022.
BQB21’s Written Submissions
On 7 December 2021 BQB21 filed written submissions, relevantly as follows:
I, Applicant BQB (Mr. Huiping MA), applied for a Protection (subclass 866) visa in Perth around May 2018 and the application was refused by the Department of Home Affairs on 22/3/2019. My reason for applying for a Protection Visa was that I was persecuted by the authority of my home country (China) for being an underground Christian.
I was in Perth at the time of Refusal. I engaged a female agent in Melbourne to appeal for me with the AAT and the application was lodged in Melbourne.
(Melbourne Agent details: Jenny, Mobile: [number omitted],Email: [details omitted]
I waited for the AAT hearing until I was invited by AAT to attend a hearing on 30 April 2021. The agent advised me to skip the hearing attendance and go for FCC proceeding instead. When I did not show up at the AAT hearing, AAT made a decision to affirm the original department decision on 18/5/2021.
Because I was in Perth at the time, I engaged with a local agent in Perth – KORRYLINK Migration consultants
(Perth agent details: mobile [omitted] email: [omitted]The agent helped me to lodge an application for FCC proceeding in Perth on 15/6/2021 and I was invited for a court hearing by FCC a month later on 15/7/2021.
The agent suggested me not to attend for the reason of Covid-19.
Later I regretted his decision and through friend’s referral, I engaged another popular Migration Firm in Melbourne to take over my case from the Perth agent.
(Melbourne Agent details: Australian Visa Link (AVL) phone: [omitted]
We-chat ID: [omitted]
The new Melbourne Agent advised that in order to get me more time to deal with the FCC proceeding, he would withdraw the FCC application in Perth on my behalf and lodge a new one in Melbourne. As I did not quite understood the consequence and implication about this action and I had no objection on his proposal. When the agent applied for a withdrawal of the case in Melbourne on my behalf, the agent was told that although the withdrawal was effected, a new application for the same case would not be allowed.
At this stage, the agent seemingly did not want to carry on further work for me and until I realised at the last minute that the implication of the withdrawal would mean that my Bridging visa A on hand would cease in 35 days from the day of case withdrawal, I had no choice but to personally rush to FCC in Perth to apply for a reinstatement of my case based on incorrect advices received from my agents.
As I believe that I deserve the right for natural justice, I strongly believe that the ground for reinstatement of my case outweigh the ground that my case proceeding be stopped. This concludes the facts that lead to my reinstatement application.
…
Further hearing 25 and 28 February 2022 - BQB21’s oral evidence
The Minister sought to cross-examine BQB21 in relation to the materials that he had submitted, and on 25 and 28 February 2022 BQB21 gave evidence. He was taken through his evidence-in-chief by the Court, and confirmed that insofar as the written submissions of 7 December 2021 contained assertions of fact they were true and correct to the best of his knowledge and belief: Transcript, 25 February 2022, page 4. The examination-in-chief also contained the following exchange between the Court and BQB21:
HIS HONOUR: All right. Apart from those documents, are there any documents or facts that you seek to rely upon in relation to your conduct in discontinuing the application – that’s the subject of the current application to reinstate.
THE INTERPRETER: The reason for me to discontinue the application here was based on the advice by a migration agent in Melbourne. The advice was that I should withdraw from Perth Federal Circuit Court, and then the agent would be – lodge the application for me in Melbourne. But since the agent failed – was not successful in lodging the application in Melbourne, so I would need to try to reinstate my application here in Perth Federal Circuit Court.
That evidence, that the withdrawal, manifested by the Notice of Discontinuance, was filed on advice from a migration agent on the basis that a further judicial review application, the Proposed Further Judicial Review Application, would then be filed in Melbourne, was reiterated by BQB21 in his cross examination at least twice: see Transcript, 25 February 2022 at pages 10-11. BQB21 also reiterated that it was only when he realised that he would not be permitted to file the Proposed Further Judicial Review Application in the Melbourne Registry that he then sought to, and did, file the Reinstatement Application: Transcript, 25 February 2022, page 12.
In relation to the assertion in BQB21’s Affidavit that BQB21 acted under instruction from the Court, when that was directly put to BQB21 in cross-examination he responded as follows at Transcript, 25 February 2022 at page 15:
It was the advice given by the – my migration agent in Melbourne. It was said to me that there would – there should be a withdrawal of the application in Perth so that I will be able to lodge an application in Melbourne.
BQB21 further expanded on this at Transcript, 25 February 2022 at page 16, as follows:
It was the agent’s advice to withdraw the application from Perth, and then I agreed to that because, according to the agent, I had to withdraw from Perth court to be able to lodge the application in Melbourne. But at that time I didn’t know the consequences, the serious consequences, of withdrawing the application from Perth court.
…
… It was through the advice from the agent in Melbourne, since, at that time, I wasn’t happy with the proceeding in Perth court, and I was – and then the agent says that if that’s the case you can withdraw from – your application from Perth court and then I’ll be able to lodge the application in Melbourne.
As was subsequently established BQB21 had not attended the directions hearing in Perth on 15 July 2021, and therefore had not had a hearing in the Perth Registry of the Court at the time the Notice of Discontinuance was filed: see Transcript, 28 February 2022, pages 25-26.
Minister’s Submissions
The Minister submitted that:
(a)having regard to the relevant legal principles, the implied power the Court has to reinstate a proceeding following a discontinuance ought not to be exercised in BQB21’s case, as the power is not enlivened, because:
(i)the discontinuance did not constitute an abuse of process; and
(ii)there is no evidence to suggest that the discontinuance was procured by fraud or duress; and
(b) if however, the power is enlivened, the Minister submits that the Court should not exercise the discretion to reinstate the proceeding because the Judicial Review Application has no prospects of success.
Consideration
Relevant law
Under r 13.01(1) and (2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) an applicant may discontinue an application by filing a Notice of Discontinuance at least 14 days before the day fixed for the final hearing of the application or at a later time with the leave of the Court or a Registrar. There is no provision in the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) or the GFL Rules which provides expressly for the reinstatement of a proceeding following a discontinuance. The Court does however have an implied power that may be utilised in exceptional circumstances to reinstate a discontinued proceeding. In Chen v Monash University [2016] FCAFC 66; (2016) 244 FCR 424 (“Chen”) at [40], [41] and [46] per Barker, Davies and Markovic JJ, the Full Court of the Federal Court Australia observed in respect to s 23 of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) that:
[40] The power of the Court to prevent any abuse or frustration of or interference with its processes may, having regard to these authorities, either be seen as an implied power of the Federal Court that exists quite independently of s 23, but amplified by s 23; or an implied power derived from s 23.
[41] We consider that under such an implied power, or pursuant to s 23, this Court may, in an appropriate circumstance, reinstate a discontinued appeal in order to prevent an abuse of process of the Court or to protect the integrity of those processes.
…
[46] While it is neither appropriate nor necessary to list or attempt to enumerate the circumstances in which this implied power to relieve against an abuse of process will be enlivened in the case of a discontinuance of an appeal, at an appellant’s instance, we consider it will only arise where the appellant who filed the notice of discontinuance did not do so as a deliberate and informed act, as, for example, if the notice were filed as a result of fraud in which the appellant was not complicit.
Chen was subsequently applied in respect to s 15 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”), which is in similar terms to s 23 of the FCA Act, it being held that this Court (then styled the Federal Circuit Court of Australia) has an implied power, similar to that arising in respect of s 23 of the FCA Act, as to reinstatement of a discontinued proceeding: DZY17 v Minister for Home Affairs [2018] FCAFC 196 (“DZY17”) at [46] per Besanko, Griffiths and White JJ; EHR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3271 (“EHR18”) at [17] per Judge Driver.
Section 44 of the FCFCOA Act, like s 15 of the FCCA Act, is in similar terms to s 23 of the FCA Act. It follows that, for the reasons given in Chen, this Court under s 44 of the FCFCOA Act has the same implied power as to reinstatement of a discontinued proceeding as was held to exist in DZY17 and EHR18.
In DZY17, shortly after filing a judicial review application in the Perth Registry of the then Federal Circuit Court of Australia, DZY17 filed a Notice of Discontinuance. She subsequently filed substantially the same judicial review application in the Melbourne Registry of that Court. Her evidence was that she had filed the Notice of Discontinuance because she was unable to move to Perth: DZY17 at [7] per Besanko, Griffiths and White JJ. The Full Court of the Federal Court rejected DZY17’s submission that Chen was distinguishable from her case as she had not appreciated the legal consequences of filing a Notice of Discontinuance at the time, and therefore her filing of the notice was not a “deliberate and informed act”, as the primary judge had found. The Full Court of the Federal Court stated in DZY17 at [46] per Besanko, Griffiths and White JJ that:
We reject the applicant’s contention that Chen is distinguishable. There is no scope for the applicant to argue that her filing of the notice of discontinuance was an abuse of process having regard to the meaning of that phrase in cases such as Moussa, which stand for the proposition that no abuse of process is involved where a party knowingly and voluntarily files a notice of discontinuance, as was the case here…
The implied power is not at large. It is only enlivened in exceptional circumstances. In Chen, the Full Court of the Federal Court noted at [47] per Barker, Davies and Markovic JJ that:
… we do not consider it is helpful to say that the Court has a general power to reinstate an appeal “in the interests of justice”, which may be taken to suggest that a range of reasons going beyond those concerned with correcting an abuse of process might be agitated following the discontinuance of an appeal in order to reinstate it. Thus, it might be thought that notwithstanding the deliberate and informed decision of a party to discontinue an appeal, the appeal might be reinstated for some other reason. In our view, that would be inconsistent with the principle of finality which otherwise governs the setting aside process of dismissing an appeal.
The implied power:
(a)is not enlivened where a party knowingly and voluntarily files a Notice of Discontinuance: Moussa v Minister for Immigration and Border Protection [2015] FCA 1280 (“Moussa”) at [13] per Perram J;
(b)is only enlivened in order to prevent an abuse of process of the Court or to protect the integrity of those processes, or where the notice of discontinuance has been procured by fraud or duress: EHR18 at [17] per Judge Driver; and
(c)even if enlivened, the exercise of the power to reinstate is discretionary, and the prospects of success of the proposed application may also be taken into account in the final exercise of the Court’s discretion: Chen at [48] per Barker, Davies and Markovic JJ.
Is the implied power enlivened?
BQB21’s evidence establishes, without a shadow of doubt, that in filing the Notice of Discontinuance he acted upon the advice of his then migration agent. Plainly, BQB21 received very bad advice from that migration agent, but there is no evidence that in acting upon that advice BQB21 acted under duress or was the victim of fraud, and there is equally no evidence that there was any kind of constructive fraud upon the Court as a consequence of the filing of the Notice of Discontinuance. What was done by BQB21, or caused by him to be done by a migration agent acting on his behalf, was done as a deliberate and informed act on advice from the migration agent. As indicated above, that advice was bad advice, and probably negligent, but it was not such as to constitute an abuse of process or a threat to the integrity of this Court’s processes. The fact that BQB21 did not appreciate the serious legal consequences of his deliberate and informed voluntary act in discontinuing the Judicial Review Application is not material: Moussa at [13] per Perram J; DZY17 at [46] per Besanko, Griffiths and White JJ; Chen at [47] per Barker, Davies and Markovic JJ.
In the above circumstances, the implied power which would permit the Court to reinstate a discontinued proceeding is not enlivened.
BQB21 has failed to establish any evidentiary basis for the Court to conclude that he was instructed by “the Court” to discontinue the Judicial Review Application. The evidence in BQB21’s Affidavit does not indicate who in the respective Perth and Melbourne Registries of the Court is alleged to have given the advice, when it was given, or the precise nature of the enquires that were made by BQB21 or the responses allegedly received from the Registry staff in response to those enquires. The Court notes that BQB21 admits to being “very confused”. Further, BQB21 does not indicate whether or not he utilised the services of an interpreter (as he did before the Tribunal and this Court) when speaking to the Registry staff. In those circumstances the evidence is, in its terms, vague, unsatisfactory and unreliable. The unreliability of the evidence in BQB21’s Affidavit concerning instruction being given by the Court to discontinue the Judicial Review Application is highlighted by, first, the fact that the allegation is not repeated in the 7 December 2021 written submissions from BQB21, and second, that his evidence in examination-in-chief and cross-examination confirms that the filing of a Notice of Discontinuance was based upon advice from his migration agent. Ultimately, therefore, the allegation that BQB21 was “instructed” by Court Registry staff in either Perth or Melbourne to withdraw the Judicial Review Application is not made out on the evidence.
The merit of the Judicial Review Application or the Proposed Further Judicial Review Application is not relevant to the question of whether the implied power is enlivened and it is unnecessary for the Court to consider BQB21's prospects of success if the Court finds the implied power is not enlivened: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1048 at [21] per Gleeson J; CDN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 699 at [173] per Kenny J.
In the above circumstances the Court is of the view that the power to reinstate the discontinued Judicial Review Application has not been enlivened. It follows that the Reinstatement Application must be dismissed.
If the discretion is enlivened, should the Court exercise its discretion?
If the Court’s view that the discretionary power to reinstate the discontinued Judicial Review Application has not been enlivened is wrong, it remains to consider whether the discretion ought to be exercised in any event.
On 3 May 2021 the Tribunal Decision dismissed BQB21’s Tribunal Review Application without any further consideration thereof or of any information before it under s 426A(1A)(b) of the Migration Act, in circumstances where BQB21 had not appeared at the Tribunal Hearing on 30 April 2021 (again on advice from his then migration agent), and had subsequently not made contact with the Tribunal. BQB21 was properly notified of the Dismissal Decision under s 426B of the Migration Act. In particular:
(a)the accompanying written statement set out the Dismissal Decision, the reasons therefore, and the day and time the statement was made: CB 116-117 and 120-121; Migration Act, s 426B(2)(a), (b) and (d);
(b)the Tribunal gave BQB21 a copy of the written statement within 14 days of the day on which the Dismissal Decision was made: CB 123; Migration Act, s 426B(5)(a);
(c)the written statement was sent by a method specified in s 441A of the Migration Act -that is, by email to the last email address provided to the Tribunal: CB 116 and 123; Migration Act, s 426B(5)(b); and
(d)the written statement was accompanied by an ‘Information about dismissal of applications’ brochure which described the effect of ss 426A(1B) to (1F) and s 426B(6) of the Migration Act: CB 118-119.
The Dismissal Decision was made under s 426A(1A) of the Migration Act and BQB21 had 14 days after receiving the Dismissal Decision to apply to the Tribunal for reinstatement of the Tribunal Review Application: Migration Act, s 426B. As BQB21 did not apply for reinstatement of the Tribunal Review Application within 14 days (or at all), the Tribunal was correct to find that it was required to confirm the Dismissal Decision, and in the circumstances, made the Confirmation Decision which was the only decision available to it, it being mandatory for the Tribunal to confirm the Dismissal Decision when reinstatement was not applied for within 14 days: Migration Act, s 426A(1E), which had the effect of affirming the Dismissal Decision: Migration Act, s 426A(1F). The Confirmation Decision was, in all the circumstances set out above, not affected by jurisdictional error.
CONCLUSION AND ORDERS
For the reasons set out above, the Reinstatement Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 6 July 2022
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