Haider v Minister for IMMIGATION
[2020] FCCA 1113
•13 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
HAIDER v MINISTER FOR IMMIGATION & ANOR [2020] FCCA 1113
Catchwords:
MIGRATION – Reinstatement – application to reinstate – where Registrar dismissed the application at a First Court Date for non-attendance – where the applicant did not attend First Court Date – whether the Applicant had substantially complied with an Administrative Appeals Tribunal form – no arguable prospects of success – reinstatement refused.
Legislation:
Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)
Migration Act 1958 (Cth), ss.338(2), 347(1), 347(2), 379C(5), 476
Migration Regulations 1994 (Cth), reg.4.10(a)
Cases cited:
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
Le v Minister for Immigration and Border Protection [2019] FCA 427; (2019) 164 ALD 267
SZOBI v Minister for Immigration and Citizenship (No.2) [2010] FCAFC 151; (2010) 119 ALD 233Sikari v Minister for Immigration & Anor (No.2) [2019] FCCA 1341
Applicant: SYED ZESHAN HAIDER
First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 3347 of 2018
Judgment of: Judge Baird
Hearing date: 14 May 2019
Date of Last Submission: 13 May 2019
Delivered at: Sydney
Delivered on: 13 May 2020 REPRESENTATION
Counsel for the Applicant: Ms A Gibbons
Solicitors for the Applicant: Mr G S Sandhu, Sandhu Legal Professionals
Solicitors for the Respondents: Mr A Keevers, Minter Ellison ORDERS
THE COURT:
(1)AMENDS the name of the First Respondent to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
(2)DISMISSES the application for re‑instatement dated 9 January 2019.
(3)ORDERS that the Applicant pay the First Respondent’s costs fixed in the sum of $1,500.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SydneySYG 3347 of 2018
Syed Zeshan Haider Applicant
And
Minister For IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS First Respondent
Administrative Appeals Tribunal Second Respondent
REASONS FOR JUDGMENT
Introduction
1.This is an application for reinstatement dated 9 January 2019 made by the applicant, MrSyed Zeshan Haider, to reinstate his application to this Court for judicial review which was dismissed by a Registrar of this Court on 20 December 2018, pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), due to his failure to appear at the First Court Date.
2.By Mr Haider’s application for judicial review, filed 30 November 2018, made pursuant to s.476 of the Migration Act 1958 (Cth), Mr Haider sought judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal, made on 13 November 2018 (Tribunal Decision). The Tribunal concluded that it did not have jurisdiction to review the decision of a Delegate of the First Respondent, the Minister for Immigration and Border Protection (now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs), made on 16 August 2018 (Delegate’s Decision) to refuse to grant Mr Haider a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) Visa.
3.The Tribunal found that it did not have jurisdiction to review the application before it dated 4 September 2018 (4 September Application) because:
(a)the applicant on the 4 September Application, Namitha Nakul Pty Ltd (Mr Haider’s employer and sponsor) did not have the right to apply for the review pursuant to s.347(2) of the Act;
(b)an application submitted by Mr Haider on 7 September 2018 (purporting to amend the 4 September Application) was not made within the prescribed period of 21 days from the date of the Delegate’s Decision;
(c)there was no provision in the legislation to allow the Tribunal to substitute the applicant who made the application for review for another party in circumstances where the request to do so was made outside the prescribed period.
Factual background
4.Mr Haider is a citizen of Pakistan. He lodged the application for Visa on 28 August 2017 whilst in the migration zone. The Visa application specified that he was sponsored for the position of “cook” by a restaurant operator in Nowra named “Namitha” trading as “Adithya Kerala Restaurant”.
5.The Delegate refused to grant the Visa. The Delegate noted that Mr Haider failed to provide evidence of a successful result for a TRA 457 Skills Assessment (a requirement for the grant of the Visa) within the prescribed time. As a result, the Delegate was not satisfied that Mr Haider demonstrated that he had the skills necessary to perform the tasks of the nominated occupation as required by cl.457.223(4)(e) of Schedule 2 of the Migration Regulations (1994) Cth.
6.Mr Haider then had 21 days from the day the Delegate’s Decision was transmitted (that is, in the circumstances of the present case, until 6 September 2018) to lodge an application for review with the Tribunal.
Applications to the Tribunal
The 4 September Application
7.On 4 September 2018, registered migration agent, MrRashpal Singh Chumber, submitted to the Tribunal an online application for review of the Delegate’s Decision using the form “eM1 – Application for review to the Migration and Refugee Division”.
8.As is apparent from the face of the form (see immediately below at [9]), the application for review to the Tribunal was made in the name of Namitha, Mr Haider’s employer and sponsor. Mr Haider is not named in the application.
9.The application form lodged on 4 September 2018 is reproduced in its entirety below:
Subsequent Application made on 7 September 2018
10.On 7 September 2018 (this date is according to [7] of Ms Dunlop’s affidavit affirmed 7 May 2019, filed and read on behalf of the Minister, the email does not otherwise disclose what date it was sent), Mr Chumber sent an email to the Tribunal explaining that a mistake had occurred when the 4 September Application to the Tribunal was lodged online. The email stated (without alteration):
We are representing our client Syed Zeshan Haider for his review application.
Unfortunately my staff lodged the application for review by selecting the nomination application refusal however nomination application has been approved by the department and only the 457 visa application has been refused and we suppose to lodge the review for 457 visa application and attached the correct refusal letter with the online application.
After talking to the staff at the AAT they suggested us to lodge the form M1 which we are enclosing, please make the necessary amendment in the application lodged on 4/09/2018 with online lodgement number 20180904-33378 and consider the application for review for 457 Visa refusal. We are enclosing the lodged online application, Tax Receipt and the 457 visa refusal decision.
11.Attached to the email was a purported “amended application for review” dated and signed 7 September 2018 (I refer to this as the Subsequent Application). Mr Haider’s details were listed in the section “details of the person applying for review” and the decision for review was specified as a visa refusal decision for visa class UC subclass 457 dated 16 August 2018 (that is, the Delegate’s Decision). Again, the “Department file number” was provided, corresponding to the file number provided on the Delegate’s Decision.
12.By letter dated 26 September 2018 (Tribunal letter), on its face addressed to Mr Haider, via his registered migration agent, Mr Chumber, the Tribunal invited him by 10 October 2018 to comment on the validity of the 4 September Application for review. The entirety of the letter is set out below:
Case number: 1825800
26 September 2018
Dear Mr Haider
INVITATION TO COMMENT ON VALIDITY OF APPLICATION FOR REVIEW – MR SYED ZESHAN HAIDER
I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Temporary Business Entry (class UC) visa.
The person who is entitled to apply to us in relation to this decision is the visa applicant. You are not such a person, and I am therefore of the view 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 10 October 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.
It is noted that an amended M1 application form was received on 7 September 2018, however, this application was received outside the time limit for lodging a review. The last day for lodging the application for review was 6 September 2018.
If you have any questions please email [email protected] , or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.
Yours Sincerely
[redacted]
For the Registrar
Telephone: [number]
13.On 10 October 2018, Mr Chumber provided a written submission to the Tribunal on behalf of Mr Haider. Mr Chumber submitted that:
(a)his staff selected the wrong category in the 4 September Application;
(b)as soon as the error was realised, the application for amendment was submitted to the Tribunal on 7 September 2018;
(c)the 4 September Application was a valid application because the Delegate’s Decision was attached to it;
(d)Mr Haider has paid the fees of the 4 September Application from his own credit card;
(e)the Subsequent Application was made to amend the 4 September Application; it was not a new application and should be considered to have been made within the prescribed timeframe; and
(f)it is against the principles of procedural fairness and natural justice if Mr Haider is denied the opportunity to be heard and to present his case.
The Tribunal’s decision
14.The Tribunal in its Decision:
(a)identified the Applicant as “Mr Seyes Zeshan Haider”;
(b)identified the issue before it as whether there was a valid application made in accordance with s.347(2) of the Act;
(c)noted that an application was lodged on 4 September 2018 (i.e. the 4 September Application) for review of a decision of a Delegate of the Minister dated 16 August 2018 (i.e. the Delegate’s Decision) which decision is covered by s.338(2) of the Act; and
(d)stated pursuant to s.347(2) of the Act that an application for review of a decision covered by s.338(2) may only be made by a non‑citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and (3).
15.The Tribunal at [4] found that the 4 September Application for review was made by Namitha. At [5], the Tribunal noted that on 7 September 2018, the representative submitted that a mistake had occurred, and that a nomination application refusal had been lodged instead of a review for a 457 visa application. At [6], the Tribunal found that the Subsequent Application was not made within the prescribed 21 day period.
16.At [7], the Tribunal noted the contents of the Tribunal letter (see above at [13]) and the representative’s submissions provided on 10 October 2018. It noted the matters there submitted.
17.At [9] to [11], the Tribunal stated:
[9]The Tribunal has considered the representative’s submissions. The Tribunal acknowledges the representative’s claim that a mistake was made in the lodgement of an incorrect application on the 4 September 2018; however the Tribunal has no power in the circumstances of this case to accept that a valid application for review was made by the applicant within the prescribed period.
[10]The Tribunal has considered the M1 Application for review, online lodgement made on 4 September 2016 [sic]. It clearly states that the review applicant is the sponsor Namitha Nakul Pty Ltd. Details relating to the sponsor including the Director’s name and business address have been provided. No details of the visa applicant have been supplied. In response to the question ‘Capacity to apply for review’ it states sponsor or nominator In the Tribunal’s view these responses indicate the intention of the sponsor to lodge this application and do not suggest that it was the visa applicant who intended to apply for review on that day. The application for review clearly indicates that it is the sponsor applying for review.
[11]The corrected application for review (Form M1) by the visa applicant was lodged by the representative on 7 September 2018, which was not within the prescribed period of 21 days. Having considered the representative’s submission and in regard to procedural fairness and the principles of natural justice, in this instance the Tribunal has no discretion in these matters. There is no provision in the legislation to substitute the applicant who made the application for review in circumstances where the request was made outside the prescribed period.
18.The Tribunal determined that as the review application – the 4 September Application - was not made by Mr Haider, it was not an application properly made under s.347 of the Act, and at [13], found that it did not have jurisdiction to review the Delegate’s Decision.
Application for re-instatement in this Court
19.As I have said above, Mr Haider failed to attend the First Court Date on 20 December 2018. On 9 January 2019, Mr Haider filed an application in a case and supporting affidavit affirmed 8 January 2019, seeking that the proceeding be reinstated.
20.In his affidavit, Mr Haider stated that he was unable to attend Court due to a respiratory tract and chest infection, and annexed a medical certificate dated 7 January 2019. The medical certificate stated that Mr Haider was “receiving medical treatment/investigation” for “chest infection since December 2018, still having respiratory tract infection” and that he was “unable to attend work” between 19 December 2018 and 21 December 2018. Mr Haider annexed relevant prescriptions for Ventolin and Rulide.
21.Mr Haider’s affidavit evidence was that he tried to leave home on 20 December 2018 but was unable to walk or stand, and a doctor advised him “not to go out of the room and take complete rest”. Mr Haider further states that his non-appearance was “due to my physical and mental state which left me beyond my control” and that his “coughing was continuous and [he] did not want to spread infection towards the passengers in trains”.
Legal Principles – re‑instatement application
22.The Court’s power to reinstate is provided in r.16.05(2)(a) of the Rules where an order has been made in the absence of a party. The relevant principles for reinstatement have been summarised by Emmett J in this Court in Sikari v Minister for Immigration & Anor (No. 2) [2019] FCCA 1341 at [9]. The Court has a broad discretion which in general requires consideration of three factors, and the determination whether on balance they tend for or against reinstatement. These factors are:
(a)whether there is a reasonable excuse for the party’s absence at the hearing when the proceedings were struck out;
(b)whether there is any prejudice, and the existence and nature of any prejudice, to the other party from the reinstatement.
If reinstatement were granted, the extent to which this may be addressed by adjournment, order for costs or other relief. This factor also includes consideration of the impact of reinstatement on the efficient allocation and use of scarce Court resources, noting that the mere absence of prejudice is not sufficient to grant relief; and
(c)whether the applicant has a reasonably arguable prospect of success on the substantive application.
23.In relation to the approach to be taken in considering the prospects of success of the substantive application in a reinstatement application, I note the observations of Mortimer J in CAL15 v Minister for Immigration and Border Protection (2016) FCA 1344 at [5] and [6]. In sum, whilst the Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application at final hearing, the threshold is whether the ground of review is arguable. “That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed.”
24.Where, however, a substantive application lacks prospects of success, reinstatement would be futile, and an application for reinstatement ought to be refused.
Grounds of review – substantive application
25.In his substantive application for review, Mr Haider set out 8 grounds of review. Grounds 1-7 recite the history of the Visa application and the 2 applications made to the Tribunal that I have set out above. Ground 8 is the only substantive ground of review. The grounds are as follows (without alteration):
1. I have lodged the 457 Visa which has been refused by the Department of Home Affairs on 16 August 2018. However, the relevant nomination was approved on 19th October 2017.
2. I supposed to apply for the review against the decision of 457 Visa refusal but instead selected the wrong category in the online application and applied for review of 457 nomination on 04/09/2018.
3. As soon as I realised that I have applied in the wrong category in the online application i.e., nomination the migration agent sent the application for the amendment to the Application on form Ml to the tribunal on dated 07/09/2018 and received the invitation to comment on the validity of the application.
4. I have applied for the review application on the approved form i.e Online and applied for the review application on 04/09/2018 and paid the prescribed fee on the same day, which was well within the prescribed period of 21 days hence fulfilling the requirements of the valid application.
5. I have applied for the AMENDMENT of the review application on 07/09/2018 which was initially lodged on 04/09/2018. The application was actually lodged on 04/08/2018 and the amendment was lodged on 07/04/2018 to rectify the mistake which should not be considered as new application.
6. I have paid the review application fees from my own credit card on 04/09/2018.
7. The Tribunal refused the review application on 13/11/2018 on the validity ground hence decided that tribunal does not have the jurisdiction in this matter.
8. The Tribunal failed to consider that an amendment application has been lodged subsequent to initial application and I have not initiated the new application. The Tribunal considered the amended application to be a new application.
Legislative framework – substantive application
26.Section 347(1) of the Act provides that an application for review of a Part 5 reviewable decision must be given to the Tribunal within the prescribed period, which in Mr Haider’s case was 21 days: see s.347(1)(b) of the Act, and reg.4.10(a) of the Regulations.
27.It is not in contention that Mr Haider is relevantly a non‑citizen in the migration zone, who made the application for the Visa whilst in the migration zone, and that the Delegate’s Decision is a Part 5 reviewable decision.
28.Section 347(2) of the Act provides that (emphasis added):
(2) An application for review may only be made by:
(a) if the Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—the non‑citizen who is the subject of that decision; or
29.Thus, applying s.347(2)(a) to the present case, only Mr Haider can apply to the Tribunal for review of the Delegate’s Decision (which related to his Visa application).
Proceeding in this Court
30.On 14 May 2019, I heard the reinstatement application. Before me, Ms Gibbons of counsel appeared for Mr Haider, and Mr Keevers for the Minister. Mr Haider was present, and was cross-examined.
31.The Minister opposes the reinstatement application on two grounds:
(a)first, the medical certificate is unsatisfactory evidence of why Mr Haider failed to attend Court. The certificate post-dates the date of the directions hearing by over two weeks. It lacks detail and does not address whether, and if so why Mr Haider’s condition prevented him from travelling to the Court and participating in the directions hearing, appearing by telephone, or contacting the Court regarding his condition; and
(b)secondly, and critically, the substantive application does not have sufficient prospects to warrant reinstatement.
Explanation – consideration
32.Turning to the criteria for reinstatement, the first factor to consider is the explanation for Mr Haider’s non-appearance. Mr Haider’s explanation for non‑appearance is reproduced above at [20], which was expanded upon by Mr Haider under cross‑examination at hearing.
33.I accept Mr Haider’s explanation that he did not attend the First Court Date because he was unwell. I also accept Mr Haider’s evidence under cross‑examination that although he signed the originating review application, he had at the time assistance from a representative who was not on the record. I accept that Mr Haider, “told [his representative] that I was sick, I can’t go, and he said that he will come, but later I got to know that he didn’t come to the Court”.
34.The Minister did not point to any substantive prejudice, save costs. The matter thus turns on the prospects of success of the substantive application.
Substantive application – prospect of success
Applicant’s submissions
35.Ms Gibbons relied on Mr Chumber’s 10 October 2018 submissions to the Tribunal (see above at [13]), and her submissions to this Court dated 13 May 2019. Ms Gibbons submitted that “whilst the Tribunal is required to satisfy itself that the application for review is validly made it is equally required to examine all of the application as to what the answer to that question might be”.
36.Ms Gibbons specifically relied on Le v Minister for Immigration and Border Protection (2019) 164 ALD 267; [2019] FCA 427 at [83]:
… The Tribunal must look to the entirety of the form and take into account in an evaluative way all the information recited in the form and have regard to the documents uploaded with it in order to decide whether the application is made by a non‑citizen who is the subject of the decision covered by s.338(2), in all circumstances reflected in the form by which the application for review is made.
37.Ms Gibbons submitted that the 4 September Application identified Mr Haider’s Department corresponding file number, identified the date of the Delegate’s Decision (16 August 2018), attached the decision relating to Mr Haider’s Visa refusal, identified Mr Haider’s representative, Mr Chumber, under the heading “Representative details” and that payment was made using Mr Haider’s credit card. She submitted that it followed that the Subsequent Application had sufficient nexus to the earlier 4 September Application, to render it a clarification of the former, and not as a second (new) application.
38.Ms Gibbons further submitted that the Tribunal’s letter addressed to Mr Haider (see above at [12]), in which the Tribunal said “I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Temporary Business Entry (Class UC) visa.”, reflected the Tribunal’s understanding that Mr Haider was the person initiating the review process in the 4 September Application. Mr Haider was the only person who could engage the fundamentally important review process conferred upon the Tribunal in respect of the Delegate’s Decision. She further submitted that there was substantial compliance with the 4 September Application sufficient to identify Mr Haider as the applicant, and that the Court should not “prefer form over substance”.
Minister’s submissions
39.Mr Keevers argued that Mr Haider’s contention that the correct application made on 7 September 2018 – the Subsequent Application – was not a new application but an “amended application”, cannot be made out because the 4 September Application was made in the name of a different person. As no valid application for review was received by the Tribunal within the prescribed time, it followed the decision of the Tribunal was the only one open to it.
40.Mr Keevers submitted that under s.379C(5) of the Act, Mr Haider was taken to have received the Delegate’s Decision at the end of the day on which it was transmitted (that is 16 August 2018). It was a statutory requirement, pursuant to s.347(1)(b) of the Act and reg.4.10 of the Regulations, that any valid application for review be lodged within the 21 day period. It was not.
41.Mr Keevers distinguished the present case from Le. He contended that in circumstances where the 4 September Application did not contain any details regarding Mr Haider, his is not a case in which it could be said that the Tribunal “could not be in any doubt” that the contents of the form indicated that it was Mr Haider who intended to make the application.
42.He submitted that once the 21 days had expired, the Tribunal had no discretion to accept the Subsequent Application in order to “amend” the invalidly made 4 September Application: see SZOBI v Minister for Immigration and Citizenship (No 2) [2010] FCAFC 151; (2010) 119 ALD 233; Beni v Minister for Immigration and Border Protection [2018] FCAFC 228.
Consideration – proposed grounds of review
43.The role of the Court is to decide if the Tribunal’s finding is one that was open to it.
44.As stated in Le at [83], I accept that “the Tribunal must look at the entirety of the form and take into account in an evaluative way all of the information recited in the form and have regard to the documents uploaded with it in order to decide whether the application is made by the non-citizen who is the subject of the decision covered by s.338(2), in all the circumstances reflected in the form by which the application for review is made.” (emphasis in the original)
45.There are several factors that distinguish the present case from that of Le. The eM1 form submitted on 4 September 2018 (that is, the 4 September Application ‑ see reproduced form above at [9]):
(a)identified the decision for review as refusal of nominated activity or position;
(b)identified under the applicant details the type of review application as organisation;
(c)identified the sponsor Namitha’s details under organisation details; and
(d)identified Sponsor or nominator as having the capacity to apply for review.
46.The only information that could be said to relate to Mr Haider in the 4 September Application is the inclusion of his corresponding Department file number (but not client ID), and the attachment of IMMI Refusal Notification with Decision Record (that is the Delegate’s Decision refusing Mr Haider the Visa). Whilst the representative Mr Chumber’s details are set out in the 4 September Application, they there indicate that he is the representative for the named applicant, Namitha. It is only when the 4 September Application is subsequently compared against Mr Chumber’s details set out in the Subsequent Application (where he is listed as the representative for Mr Haider) that any suggestion could arise that Mr Chumber acts for both Namitha and Mr Haider.
47.In contrast, the eM1 form submitted in Le (at [42]):
“…correctly identifies the decision to be reviewed as the delegate’s decision concerning a visa refusal of a Class UK subclass 820 application; correctly identifies the particular decision of 11 October 2016 concerning the appellant; correctly identifies the Department’s corresponding file by the number bcc 2015/1518198; correctly identifies the application made by the appellant under the “client ID” as 380580348; correctly identifies the appellant as the “[p]rimary visa applicant”; correctly identifies the appellant’s representative as Mr Minh Duc Huynh; and correctly attaches two documents concerning the appellant, namely, the Department’s notification letter of refusal of the appellant’s application and the Decision Record explaining the reasons for the delegate’s refusal…”
48.That is, in Le, the correct person was named, and named as the primary visa applicant in the review application, whilst in the present case Mr Haider is not named. I conclude that the 4 September Application was made by Namitha as the review applicant.
49.Although the Tribunal letter (see above at [12]) is addressed to Mr Haider rather than to Namitha, it does not follow that the Tribunal should have proceeded to process the review application on the basis that it was Mr Haider who intended to evoke the Tribunal’s jurisdiction. I reject Ms Gibbon’s submission that the letter demonstrates the Tribunal’s understanding that it was Mr Haider who initiating the review process, and that it cannot resile from that understanding.
50.The Tribunal accepts that the review applicant sought review of the Delegate’s Decision attached to the 4 September Application (that is, in relation to a Temporary Business Entry (Class UC) visa). The Tribunal writes to the review applicant (who was Namitha) noting that it was not entitled to apply for the review of the Delegate’s Decision (as the Visa refusal decision concerns Mr Haider and his Visa).
51.The Tribunal correctly found that it did not have jurisdiction to review the 4 September Application. I am not able to discern any discretion open to the Tribunal to find otherwise.
52.The Subsequent Application was made on 7 September 2018, outside the prescribed time period.
53.It follows that I do not consider that any argument that there is jurisdictional error in relation to the Tribunal’s finding or approach as contended in Ground 8 would have any prospects of success. I conclude Ground 8 has no reasonable prospects. It would fail.
54.As I have said, Grounds 1 to 7 restate the factual circumstances. Whilst an unfortunate series of events, these circumstances do not engage the Court’s jurisdiction.
55.It follows that the Application in a case for re‑instatement should be dismissed, and Mr Haider should pay the First Respondent’s costs in the fixed amount of $1,500. I will so order.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 13 May 2020
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