Celik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 420
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Celik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 420
File number(s): SYG 420 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 31 May 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where the application to the Tribunal was filed out of time – whether the Tribunal erred in determining that it lacked jurisdiction – whether the applicant was validly notified – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 66, 347, 476, 494B, 494C, 494D
Migration Regulations 1994 (Cth), regs 2.16 and 4.10; cl 500.212 in Schedule 2
Cases cited: Abbas v Minister for Home Affairs [2020] FCCA 1051
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Lee v Minister for Immigration and Citizenship [2007] FCAFC 62
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Sandor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 281
Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 280
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 279
Singh v Minister for Immigration & Border Protection [2020] FCAFC 31
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of hearing: 20 May 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Mr E Taylor Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 420 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CISEM CELIK
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
31 MAY 2022
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 Turkey (Court Book (“CB”) 2 & 19). She arrived in Australia in December 2013 and has not departed Australia since that time (CB 68).
On 3 May 2018, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (the “visa”) (CB 1-18). In her application, the applicant nominated a migration agent (the “representative”) as an “authorised recipient” and provided the representative’s email address as the agreed method of communication for all correspondence from the then Department of Immigration and Border Protection (the “Department”) (CB 5-6).
The applicant also provided a completed “Form 956 – Advice by a migration agent/exempt person of providing immigration assistance” document which included the same contact details for the applicant’s representative (CB 22-24).
On 5 June 2018, the Department asked the applicant (through her representative) to provide more information in relation to her visa application (CB 63-69).
No response was provided by the applicant or her representative.
On 23 July 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 75-80). The delegate determined that the applicant did not meet cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (CB 80).
The Department notified the applicant’s representative of the delegate’s decision in a letter dated 23 July 2018 (the “notification letter”) (CB 71-74). The notification letter was sent to the applicant’s representative by email on 23 July 2018 (CB 70 and Affidavit of Edwin Jack Taylor affirmed and filed on 10 November 2021 (the “Taylor affidavit”), p 4).
On 29 October 2018, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 81-82).
On 16 November 2018, the Tribunal invited the applicant to comment on the validity of her application for review (CB 85-86). Relevantly, the invitation to comment letter provided (CB 86):
I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed to your authorised recipient on 23 July 2018 and, on the basis that 23 July 2018 was the date on which you are taken to have been notified, the last day for lodging the application for review was 13 August 2018. As the application was not received until 29 October 2018, it appears to be out of time. 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 30 November 2018. 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.
On 26 November 2018, the applicant responded to that invitation, by email, and provided a statutory declaration attaching correspondence between herself and her representative regarding the signing of a “Form 956 – Ending Appointment” document (CB 87-102) and which stated (without alteration):
6.Furthermore, although I had sent an 'Executed Form 956 - Ending Appoinment' to the Department of Home Affairs on the 12th of July 2018, this was not included in my file produced to me and my file was not updated accordingly.
On 15 January 2019, the Tribunal contacted the Department and queried whether there was “any record of the applicant notifying a withdrawal of representation prior to the [delegate’s] decision being made” (CB 105-106).
On 22 January 2019, the Department responded to the Tribunal advising as follows
(CB 103-110):
Ms Celik did send in a form ending the appointment of her migration agent; however, it was received by the Department on 27 July 2018, which was four days after her application had been refused. I have attached a copy of the form ending the appointment of the agent and the envelope in which it was sent. The envelope and the form are both date stamped 27 July 2018.
I note that Ms Celik had the option to upload documents to her ImmiAccount and could have uploaded a form to her ImmiAccount that would have withdrawn the agent in the system immediately.
Copies of the documents referenced in the Department’s response were also provided to the Tribunal via email (CB 111-113).
On 22 January 2019, the Tribunal determined that it had no jurisdiction in relation to the matter as the applicant’s review application had been filed outside of the legislated 21-day time period for filing (CB 119-120).
On 25 February 2019, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is two pages long and spans eight paragraphs.
In full, the Tribunal’s decision provides:
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Immigration on 23 July 2018 to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act1958 (the Act). The review application was lodged with the Tribunal on 29 October 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
2.Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.
3.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 23 July 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4.The applicant submitted a statutory declaration dated 26 November 2018 in which he claimed he did not become aware of his visa refusal until 25 October 2018. This was said to be because the decision had been sent to the applicant’s agent when the applicant claims that on 12 July 2018 he advised the Department the agent’s appointment had been withdrawn. The applicant provided a copy of the signed form ending the agent’s appointment which was dated 11 July 2018.
5.The Tribunal made inquiries with the Department and was advised the withdrawal form had been sent by mail and was received on 27 July 2018, four days after the date of the decision. Although the form had been received in an Express Post envelope that guarantees next day delivery, the envelope did not carry a date stamp to indicate when it was posted. A check of the tracking number with Australia Post indicated the item had not been scanned and had no tracking history. Although the relevant form was signed on 11 July 2018, the evidence indicates it was delivered at a later date. The Tribunal notes the applicant did not upload the withdrawal form and send an electronic copy to the Department which would have allowed for the records to be updated almost immediately. This was despite the signed form having been emailed to the applicant by their former agent on 11 July 2018, as shown in the applicant’s evidence. It would have been a simple matter to forward the form to the Department electronically.
6.The Tribunal finds that the applicant is taken to have been notified of the decision on 23 July 2018: r.2.55 of the Regulations. Therefore the prescribed period to apply for review ended on 13 August 2018.
7.As the application for review was not received by the Tribunal until 29 October 2018 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
DECISION
8. The Tribunal does not have jurisdiction in this matter.
PROCEEDING IN THIS COURT
The applicant filed her application for judicial review in this Court on 25 February 2019. That application contains two “grounds of review” as follows (without alteration):
1.The decision was affected by jurisdictional error in that the Department of Home Affairs failed to properly notify me of the decision and that I only became aware of the decision once the legislative time frame had expired to lodge a review to the Administrative Appeals Tribunal.
2.The decision was affected by jurisdictional error in that although I had updated the Department of Home Affairs that I withdrew services of my Migration Agent at the time, the decision was nevertheless sent to that Migration Agent who was no longer appointed by me.
In support of the application for review, the applicant swore an affidavit on 4 February 2019 (filed on 25 February 2019). That affidavit states (without alteration):
1.I made an application for review in respect of a decision made by the Department of Horne Affairs to refuse to grant a Student (Temporary) (Class TU) visa to me.
2.I made the review application on the 29th of October 2018 which was found to be out of time as the notification of decision and the decision record was sent to [omitted] (the Migration Agent with whom I had withdrawn my appointment on the 11th of July 2018) on the 23rd of July 2018.
3.[Omitted] did not notify me of the correspondence she received from the Department of Home Affairs.
4.On the 25th of October 2018, the Department of Home Affairs provided me with all the documents related to my Student Visa application in response to my Freedom of Information application.
5.Upon receiving the documents and going through them, I became aware that my Student Visa Application was refused on the 23rd of July 2018.
6.In addition to this, I also became aware that [omitted] informed the Department of Home Affairs that I have withdrawn my appointment on the 6th of August 2018, that is, long after I withdrew my appointment and long after the decision was made.
7.Furthermore, although I had sent an ‘Executed Form 956 - Ending Appointment’ to the Department of Home Affairs on the 12th of July 2018, this was not included in my file produced to me and my file was not updated accordingly.
8.I requested that the Administrative Appeals Tribunal accepts my application as a valid application as the delay in making the review application was not a result of my fault and the Notification of Decision and the Decision Record was sent to a Migration Agent, [omitted], who was not appointed by me at the time of decision.
9.The Administrative Appeals Tribunal found my application to be an invalid application. Annexed hereto and marked with the letter ‘A’ is the notification of decision and the Decision Record from Administrative Appeals Tribunal.
10.I kindly request from the Federal Circuit Court of Australia to assess my circumstances and allow me the opportunity to have my matter heard before the Administrative Appeals Tribunal.
On 22 December 2021, procedural orders were made by this Court giving the applicant an opportunity to file an amended application, any affidavit evidence and written submissions. No additional documents were filed by or on behalf of the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 25 February 2019, a Court Book numbering 120 pages (marked as Exhibit 1), the Taylor affidavit and written submissions filed by the Minister on 4 May 2022.
At the hearing before this Court, the applicant appeared without legal representation and was assisted by an interpreter in the Turkish and English languages. The Court confirmed with her that she had received a copy of the Court Book, the Minister’s written submissions and the Taylor affidavit.
Noting that the applicant was unrepresented, the Court gave her an opportunity to explain orally what she thought the Tribunal “did wrong”. This is the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, 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) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that she seek. 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 at 272.
Against that background, the applicant explained that she was “not very happy with the work that was being done by her representative” and decided to “deal with it herself”. She explained further that she had “signed some papers and sent them off to immigration” (presumably the documentation regarding the withdrawal of representative) and, in return, “they sent her some correspondence or paperwork” but she “never received anything from them” (presumably the notification of refusal paperwork and the delegate’s decision).
These issues will be addressed with the applicant’s grounds of review below.
CONSIDERATION
Having reviewed the application for judicial review and the supporting affidavit filed by the applicant and, giving consideration to the applicant’s oral submissions at the hearing of this matter, the applicant’s sole concern appears to be that the Tribunal erred in finding that it lacked jurisdiction because she was not properly notified of the delegate’s decision (noting that she had withdrawn the appointment of her representative).
The Minister also addressed the applicant’s grounds of review along similar lines in written submissions filed on 4 May 2022.
Whether the Tribunal erred in determining that it lacked jurisdiction
This Court has addressed its preferred approach (and the relevant jurisprudence) in relation to “jurisdictional decisions” of the sort seen here in previous decisions – most recently, Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 280; Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 279 and Sandor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 281.
The Court repeats the relevant statutory and jurisprudential analysis it provided in these judgments below.
In Abbas v Minister for Home Affairs [2020] FCCA 1051 at [33], this Court provided a framework for assessing whether, in circumstances where an application for review is filed “out of time”, the Tribunal was correct in determining that it lacked jurisdiction.
Relevantly, in cases such as this, the Court will assess:
(a) whether (and how) an applicant was notified of the delegate’s decision;
(b) the content and clarity of the notification letter; and
(c) whether the application for review was, in fact, filed “late” or out of time.
Applying this three tiered approach to the current matter, the Court finds as follows.
Whether the applicant was notified of the delegate’s decision
The applicant claims that she was not properly notified of the delegate’s decision because she only became aware of the decision after the legislative time period within which a valid application could be made had lapsed. Further, the applicant claims that she did not receive notification of the delegate’s decision because, whilst she had provided the Department with a withdrawal of representative form, the notification of the delegate’s decision was still provided to her representative.
Section 347(1)(b) of the Act requires that an application for review of the delegate’s decision be lodged with the Tribunal within the “prescribed period”. The prescribed period is set out in reg 4.10(1)(a) of the Regulations, which provides (emphasis added):
4.10 Time for lodgment of applications with Tribunal (Act, s 347)
(1)For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5‑reviewable decision must be given to the Tribunal:
(a)if the Part 5‑reviewable decision is mentioned in subsection 338(2) or (7A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received;
For that 21-day period to commence, the Department must notify the applicant of the delegate’s decision in accordance with the requirements set out in s 66 of the Act. If the notification does not meet those requirements, then there will be no valid “notification” of the delegate’s decision and the time period within which an application to the Tribunal must be made does not commence: Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469 at [62].
Section 66(1) of the Act specifies that, where the Minister refuses to grant a visa, the Minister must notify the applicant of that refusal in the prescribed way. Regulation 2.16(3) of the Regulations prescribes that the Minister must notify an applicant of the decision by one of the methods set out in s 494B of the Act.
A copy of the “notification of refusal” letter relevant to this matter is provided in the Court Book (at 71-74). Having assessed the contents of that letter, the Court notes as follows.
Pursuant to s 494B(5)(b) of the Act, the Department is permitted to communicate with an applicant, or an applicant’s representative, via email.
The applicant here claims that she provided a withdrawal of representative form to the Department and that the Department erroneously sent the notification letter to the applicant’s representative (rather than to the applicant directly).
As outlined above, the applicant in this matter nominated her representative (a registered migration agent) as an “authorised recipient” and provided the representative’s email address for all correspondence from the Department (CB 5-6). The applicant also provided a completed “Form 956 - Advice by a migration agent/exempt person of providing immigration assistance” document which included the same contact details (including an email address) for the applicant’s representative (CB 22-24).
Pursuant to s 494D(1) of the Act, if an applicant gives the Minister or the Department written notice of an authorised recipient, for the purposes of s 494B, then the Minister or the Department must provide documents to that authorised recipient (instead of the applicant): Lee v Minister for Immigration and Citizenship [2007] FCAFC 62.
The applicant may vary or withdraw that notice given under s 494D(1) of the Act at any time, provided that no more than one person is the applicant’s authorised recipient: see s 494D(3) of the Act.
While the applicant in this matter completed a withdrawal of representative form on 11 July 2018, that form was sent to the Department by express post and the Department did not receive that document until 27 July 2018 (CB 111-113). That is, the Department received the withdrawal form after it had already notified the applicant’s representative of the delegate’s decision (which it did on 23 July 2018) (CB 70-74).
In circumstances where the Department had not received the notice of withdrawal at the time of the delegate’s decision, the Department was required to send notification of that decision to applicant’s representative and did so via email on 23 July 2018. Pursuant to s 494D(2) of the Act, if the Minister (or the Department) gives a document to the authorised recipient, the Minister (or the Department) is taken to have given the document to the applicant.
By virtue of s 494C(5) of the Act, the applicant was deemed to have received the notification letter on the date it was sent to the email address she provided to the Department (being the email address of her representative) – that is, at the end of the day on 23 July 2018. This is so even if the applicant’s representative did not forward a copy of that correspondence or the delegate’s decision to the applicant. Further, by sending the document by one of the methods set out in ss 494B or 494C of the Act (in this case, to the valid nominated email address of the applicant’s representative), the applicant is taken to have received that document at the time specified in that section of the Act, regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36] per Barker J.
The Court is satisfied that applicant was validly notified of the decision to refuse to grant her the visa.
Whether the notification letter was clear
Section 66(2) of the Act provides that a letter notifying the applicant of a decision to refuse an application for a visa must:
(a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa, specify that criterion; and
(b)if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa, specify that provision; and
(c)unless subsection (3) applies to the application, give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500, state:
(i)that the decision can be reviewed; and
(ii)the time in which the application for review may be made; and
(iii)who can apply for the review; and
(iv)where the application for review can be made.
Here, the notification letter identified that the applicant’s visa application had been refused because the “applicant did not satisfy the provisions of the … Regulations” (CB 71). Further, the delegate’s decision explained that the visa was refused because the applicant did not satisfy cl 500.212 in Schedule 2 of the Regulations (CB 80). The delegate provided written reasons why the criteria in cl 500.212 in Schedule 2 of the Regulations were not satisfied and the visa was refused (CB 75-80).
On the basis of the above, the requirements set out in ss 66(2)(a)-(c) of the Act were satisfied in this matter.
Section 66(2)(d) of the Act requires the notification contain specific information about an applicant’s right of review. The Court is satisfied that:
(a)having stated expressly that “[t]he decision can be reviewed” and having advised the applicant that she was entitled to apply to the Tribunal for review, s 66(2)(d)(i) of the Act was satisfied (CB 71);
(b)having indicated that, if she sought a review, the applicant must be “physically present in Australia” (as required by s 347(3) of the Act), the notification satisfied s 66(2)(d)(iii) of the Act (CB 71); and
(c)in providing a table indicating the address for each of the Tribunal’s registries, the national email and the national fax numbers for the Tribunal, the notification letter satisfied s 66(2)(d)(iv) of the Act (CB 72-73).
A further issue here is whether the notification letter satisfied s 66(2)(d)(ii) of the Act.
In this regard, it is necessary for the Court to consider the content and structure of the notification letter as a whole when determining whether it is sufficiently clear to be valid: Singh v Minister for Immigration & Border Protection [2020] FCAFC 31 (“Singh”). Further, whether a notification letter is “clear” will turn on the language and terms in which the notification letter is expressed when read “as a whole” by a person exercising a reasonable level of care: Singh; Ali v Minister for Home Affairs [2019] FCA 1102.
Having reviewed the notification letter in this matter (CB 71-74), the Court notes as follows:
(a)under the heading “Review Rights” it is stated that the application for review must be lodged “within 21 calendar days after the day on which you are taken to have received this letter” (CB 71); and
(b)under the heading “Receiving this Letter” it is stated that “[a]s this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted” (CB 73).
On the basis of the above, the Court is satisfied that a person reading the letter “as a whole” (required by the Full Court in Singh) would be “sufficiently alert” to what was required of them and would be able to identify when that information was required.
The notification letter in this matter (dated 23 July 2018) was clear. Its layout was not confusing. Clear headings were used that provided “signposts” for the applicant to identify the information that she needed in order to lodge a valid application for review.
Whether the application for review was, in fact, filed late
The applicant here does not appear to dispute that her review application filed with the Tribunal was lodged late.
In the Tribunal’s decision (at [2]), the Tribunal correctly explained that the time within which the applicant was required to lodge an application for review of the delegate’s decision was 21 days from the date upon which she was notified: s 347(1)(b) of the Act and reg 4.10(1)(a) of the Regulations.
The 21 day time period commenced on 23 July 2018 (being the day upon which the applicant’s representative was notified of the delegate’s decision) and ended on 13 August 2018. The applicant lodged her application with the Tribunal on 29 October 2018. The application for review was thus 77 days out of time.
Whether the Tribunal erred
The Tribunal was correct to find that it did not have jurisdiction in this matter. The applicant was validly notified of the delegate’s decision and was correctly informed of her review rights. She failed to lodge her application for review within the legislated 21-day time period.
In the circumstances, the Tribunal had no jurisdiction to assess the application for review and made the only decision open to it.
No error arises in this regard.
Otherwise
The Tribunal, in paragraph [4] of its decision, refers to the applicant as “he” (see [4], lines 1, 2 and 4).
The Court considers this to be no more than typographical errors. It is clear from the remainder of the decision that the Tribunal was referencing the correct applicant and her case, the correct dates and the relevant evidence provided. Whilst this is an unfortunate oversight, no error arises in this regard.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicant on 25 February 2019 fail to identify any jurisdictional error on the part of the Tribunal. The Court has otherwise been unable to identify any error in the Tribunal’s decision.
The application for judicial review is, accordingly, dismissed.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 31 May 2022
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