Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 355
•14 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 355
File number: MLG 1679 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 14 December 2021 Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – decision to dismiss application for non-appearance at scheduled Tribunal hearing – whether the Tribunal took into consideration irrelevant considerations – whether the Tribunal failed to consider relevant considerations – whether the Tribunal failed to consider the merits of the applicants’ application – where applicants concede there is no error – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 360, 360A, 362B, 362C, 368, 379A, 379C, 476, 477
Migration Regulations 1994 (Cth), r 4.21, Sch 2 cl 457.223, Sch 2 cl 457.321
Cases cited: Gazi v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) [2013] FCA 1094
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NBBL v Minister for Immigration and Multicultural Indigenous Affairs (2006) 152 FCR 592; [2006] FCA 1045
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 8 December 2021 Place: Perth Applicants: 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
MLG 1679 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PAWANPREET KAUR
First Applicant
SATWINDER SINGH
Second Applicant
KUSHALPREET KAUR, BY HER LITIGATION GUARDIAN, PAWANPREET KAUR
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
14 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application filed on 2 August 2017 is 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 LADHAMS:
INTRODUCTION
By application filed on 2 August 2017, the applicants seek judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act), of a decision made by the Administrative Appeals Tribunal (Tribunal). On 17 July 2017 the Tribunal dismissed an application for review of a decision of a delegate of the Minister refusing to grant each of the applicants a Temporary Work (Skilled) (subclass 457) visa (visa) because the applicants failed to appear at the hearing (dismissal decision). The decision was made pursuant to s 362B(1A)(b) of the Migration Act, and it is this dismissal decision that is the subject of the judicial review application to the Court. On 2 August 2017 the Tribunal confirmed the dismissal decision (confirmation decision).
For the reasons outlined below, I have found that there is no jurisdictional error in the Tribunal decision. Accordingly, the application to this Court is dismissed.
BACKGROUND
The applicants applied for the visa on 15 March 2015 with the assistance of a migration agent. The first applicant was the primary visa applicant and she recorded her sponsoring employer as ‘EGreen Services’. The second applicant is the first applicant’s husband and the third applicant is the child of the first and second applicants. The second and third applicants were included in the visa application as secondary applicants.
On 18 June 2015 the Minister’s department wrote to the first applicant inviting her to comment on information that her prospective employer, Rahima Samar, did not have an approved nomination for the applicant. The documents before the Court suggest that Rahima Samar is the Director of EGreen Services.
On 10 September 2015 a delegate of the Minister refused to grant visas to the applicants. The delegate noted in the decision record that, following the letter of 18 June 2015, a further nomination application was lodged on 6 July 2015 and finalised on 10 September 2015. The delegate found that the first applicant did not meet the criteria in cl 457.223(4)(a) in
Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), as her prospective employer, Rahima Samar, did not have a nomination of an occupation in association with the first applicant’s visa application approved under s 140GB of the Migration Act. The delegate found that the second and third applicants did not meet cl 457.321 of the Regulations as they were not members of the same family unit as a person who, having satisfied the primary criteria, is the holder of a subclass 457 visa.
On 29 September 2015 the applicants applied to the Tribunal for review of the delegate’s decision with the assistance of a migration agent.
On 20 June 2017 the Tribunal sent to the applicants an invitation to attend a hearing on
17 July 2017. The Tribunal provided the invitation to the applicants by emailing it to the applicants’ migration agent, who was authorised to receive correspondence from the Tribunal relating to the applicants’ review application. The invitation included the following information:
If you are not able to attend the hearing, you need to advise me as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the member confirms the dismissal, the decision under review is take to be affirmed.
The invitation was accompanied by an information sheet that contained the following information:
What if I cannot attend the scheduled hearing?
If you are not able to attend the scheduled hearing, you need to advise us as soon as possible. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
If you seek to adjourn your hearing for a medical reason, you must provide a doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you are seeking more time to present information after the hearing you should advise the Member at the hearing and provide strong reasons.
What happens if an application is dismissed?
If we dismiss your application, a written statement of the dismissal decision will be given to you. Within 14 days after receiving notice of the dismissal decision you may apply for reinstatement of the application.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so. If we reinstate the application, the application is taken never to have been dismissed and we will conduct (or continue to conduct) the review accordingly.
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application. If we confirm the decision to dismiss the application, the decision under review is taken to be affirmed. The effect of this is that the department’s decision remains in force.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
On 14 July 2017 the applicants’ migration agent emailed the Tribunal requesting an adjournment of the scheduled hearing until 30 September 2017. The adjournment was requested on the basis that the applicant had been able to secure alternative employment with another employer, Al Diwan Pty Ltd, and that employer was awaiting the outcome of a sponsor application and a nomination application lodged on 11 January 2017.
A Tribunal case note contains the following entry dated 17 July 2017 (the day of the scheduled hearing) at 9.38am:
Phone rep … as per Member’s request. I asked whether the rep and PRA intended on attending the hearing this morning. Rep advised he had not been given any instruction to attend, however he had told the applicant that she needed to. He stated that he was aware that as he had not received a response to his postponement request on Friday that the hearing would proceed as scheduled. I advised that this was the Member’s intention and that she had flagged she would likely dismiss the matter if the applicant did not attend. Rep stated he would call the PRA to confirm whether they will attend and would phone me back.
Rep called back shortly thereafter. He advised he had spoken to the PRA and that she had decided she would not attend the hearing. He stated he had explained the implication of this to the applicant and that she confirmed again she would not attend. I reiterated to [the representative] that it was therefore likely that the Member would dismiss the matter. Rep stated he understood.
Neither the applicants nor the applicants’ migration agent attended the scheduled Tribunal hearing on 17 July 2017, and the Tribunal made the dismissal decision.
On 18 July 2017 the Tribunal notified the applicants, by email sent to their migration agent, of the dismissal decision. The notification advised the applicants that they may apply to the Tribunal for reinstatement of the application by 1 August 2017, and enclosed a copy of the dismissal decision and a fact sheet published in February 2017 titled ‘Information about dismissal of applications – MR Division’ (dismissal fact sheet). The dismissal fact sheet relevantly included the following information:
What happens if an application is dismissed?
Within 14 days after receiving notice of the dismissal decision you may apply, in writing, for reinstatement of the application. 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.
On receiving an application for reinstatement, we may reinstate the application for review if we consider it appropriate to do so.
If we decide not to reinstate the application, or if you fail to apply for reinstatement within the 14 day period, we must confirm the decision to dismiss the application.
A written statement of our decision to reinstate the application or to confirm the dismissal of the application will be given to you.
What happens if we reinstate the application for review?
If we reinstate the application, the application is taken never to have been dismissed and we will conduct (or continue to conduct) the review accordingly.
What happens if we confirm the dismissal?
If we confirm the decision to dismiss the application, the decision under review is taken to be affirmed. The effect of this is that the department’s decision remains in force.
The applicants did not request reinstatement of their application and on 2 August 2017 the Tribunal made the confirmation decision.
TRIBUNAL DECISIONS
The dismissal decision
The Tribunal outlined that the applicants had been invited under s 360 of the Migration Act to appear before the Tribunal on 17 July 2017 and that the invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application.
The Tribunal acknowledged that on 14 July 2017 the applicants’ representative requested an adjournment until 30 September 2017 because the first applicant’s new sponsoring employer had lodged sponsorship and nomination applications.
The Tribunal noted that the applicants did not appear before the Tribunal at the scheduled time and place. The Tribunal was satisfied that the applicants were properly invited to a hearing in accordance with s 375A(5)[1] of the Migration Act, the invitation had not been returned to sender, and an SMS reminder had been sent to the applicant about the hearing.
[1] The reference to s 375A(5) appears to be a typographical error. It appears that the Tribunal intended to refer to s 379A(5) of the Migration Act.
The Tribunal set out the additional steps taken to contact the applicants about the hearing, including:
(a)On 17 July 2017 the Tribunal contacted the applicants’ representative about the hearing and was advised by the representative that he was aware that the hearing would proceed as he had not received a response to his request for postponement on Friday 14 July 2017. The representative also stated that he did not have instructions to attend the hearing, but had advised the applicants of the need to attend.
(b)The Tribunal then received a telephone call from the applicants’ representative to advise that he had spoken with the first applicant on 17 July 2017 and informed her that the Tribunal would likely dismiss the application if she did not appear. The representative told the Tribunal that the applicant had decided not to attend the hearing and he had advised the first applicant of the implications of any failure to attend.
The Tribunal found that no satisfactory reason for the non-appearance had been given and decided to dismiss the application without further consideration of the application or the information before the Tribunal.
The confirmation decision
The Tribunal noted that on 17 July 2017 the Tribunal dismissed the application pursuant to s 362B(1A)(b) of the Migration Act because the applicants did not appear at the scheduled hearing.
The Tribunal found that the applicants were:
(a)notified of the dismissal decision and given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s 362C(5) of the Migration Act; and
(b)advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.
As the applicants did not apply for reinstatement within the 14 day period, the Tribunal confirmed the decision to dismiss the application.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act. The applicants have only sought judicial review of the dismissal decision, and not the confirmation decision. However, I have made some brief comments about the confirmation decision below.
In their written application, the applicants have raised the following two grounds (reproduced without alteration):
1. The Tribunal took account of irrelevant considerations and failed to take account of relevant considerations.
Particulars
Tribunal failed to have regard to relevant factors and took account of irrelevant factors when assessing whether to dismiss the applicant’s application.
2. The Tribunal erred at law because it failed to consider the merits of the applicant's application.
Particulars
The Tribunal failed to give any consideration to the merits of the applicant’s case and failed to consider whether the applicant met the criteria to be granted a 457 visa.
The matter came before me for hearing on 8 December 2021. The first and second applicants appeared in person. The Minister was represented by Mr Edwin Taylor.
At the hearing, I explained to the applicants that the Court could only grant relief if the Tribunal made a jurisdictional error. I invited the applicants to tell me what they believed the Tribunal did wrong. The first applicant submitted that the Tribunal did nothing wrong. I referred the applicants to their grounds of application and invited them to say something in support of their grounds. The applicants did not wish to make submissions in relation to the grounds of application. I then asked Mr Taylor to make submissions, including a summary of the Minister’s written submissions in relation to the grounds. After Mr Taylor’s submissions, I invited the applicants to make submissions in reply, and they declined to make submissions in reply.
CONSIDERATION
In order to be entitled to relief before this Court, the applicants must show that there is jurisdictional error in the Tribunal’s decision.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the
decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”Notwithstanding the applicants’ submission at the hearing that there is no error in the Tribunal decision, I consider each of the applicants’ grounds below.
However, before addressing the applicants’ grounds, it is useful to address aspects of the statutory scheme. This is because there are certain formal requirements that must be met before the Tribunal’s discretion to dismiss an application for failure to appear is enlivened.
Statutory scheme and the discretion to dismiss an application for non-appearance
Section 362B of the Migration Act sets out the options open to the Tribunal in the event that an applicant fails to appear. The section applies if:
(a)the applicant is invited under s 360 of the Migration Act to appear before the Tribunal; and
(b)the applicant does not appear before the Tribunal at the day on which, or at the time and place at which, the hearing is scheduled: s 360(1).
Notice of an invitation under s 360 of the Migration Act to appear before the Tribunal must be given to an applicant in accordance with the requirements set out in s 360A of the Migration Act.
Section 360A provides:
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2)The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(5) The notice must contain a statement of the effect of section 362B.
In the present case, the invitation to attend a hearing complied with the requirements of s 360A. The invitation clearly set out the date, time and place at which the hearing was scheduled. The invitation was sent to the applicants by email sent to their migration agent’s email address, which was the last email address provided to the Tribunal in connection with the applicants’ review application. The Tribunal is permitted to give documents to the applicant in this way pursuant to s 379A(5) of the Migration Act. The prescribed period of notice of the hearing was 14 days from the day the applicants received the invitation: r 4.21(4) of the Regulations. In the present matter, the applicants were given more than 14 days’ notice of the hearing. I have extracted above at [7] some of the information set out in the invitation to attend a hearing. The second paragraph of the extract at [7] is a statement of the effect of s 362B, as required by s 360A(5) of the Migration Act.
In circumstances where the applicants were properly invited to a hearing under s 360 of the Migration Act, when they failed to appear before the Tribunal at the scheduled date, time and place, the Tribunal’s discretions in s 362B were enlivened. Section 362B(1A) provides that the Tribunal may:
(a)by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Section 362B(2) makes clear that the Tribunal retains the discretion to reschedule an applicant’s appearance before it or to delay its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
In the present case, the Tribunal exercised the discretion to dismiss the applicants’ application without any further consideration of the application or information before the Tribunal.
Ground 1
Ground 1 alleges that the Tribunal took into account irrelevant consideration and failed to take into account relevant considerations in reaching its decision. The applicants have not identified any irrelevant considerations that they say the Tribunal had regard to. Nor have they identified any relevant considerations that they say the Tribunal overlooked. As indicated above, they did not elaborate on this ground at the hearing.
In making the dismissal decision, the Tribunal had regard to the invitation under s 360 of the Migration Act to attend a hearing that was sent to the applicants, as well as other steps taken to ensure the applicants were aware of the hearing, including in circumstances where they had sought an adjournment which had not been granted. The Tribunal also had regard to communications from the applicants’ migration agent confirming that the applicants had decided not to attend the hearing, having been informed that the application for review would most likely be dismissed if they did not appear. After taking into account these considerations, the Tribunal found that the applicants did not have a satisfactory reason for failing to attend the hearing. It was open to the Tribunal to have regard to each of these considerations in making the dismissal decision. They are all relevant considerations.
I am unable to ascertain any further relevant considerations that the Tribunal was required to, but did not, take into account in reaching its dismissal decision.
There is no jurisdictional error in the Tribunal decision based on any failure to take into account relevant considerations, or taking into account irrelevant considerations.
The Minister in his submissions has generously interpreted ground 1 as amounting to a complaint by the applicants that the Tribunal acted unreasonably in exercising its discretion to dismiss the application rather than to adjourn the hearing.
The power in s 362B(1A)(b) of the Migration Act to dismiss an application where an applicant does not appear at a hearing is discretionary. As with all discretionary powers, it must be exercised reasonably: see, for example, Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [63]. Likewise, in some circumstances, a failure to accede to a reasonable request for an adjournment can amount to legal unreasonableness, as can a decision not to reschedule a hearing in the exercise of the power conferred by s 362B(2): Li at [26]-[28], [47], [76], [90]-[92], [94]; Gazi v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) [2013] FCA 1094 at [34].
I agree with the Minister’s submission that there is nothing in the materials before the Court to suggest that the Tribunal’s exercise of the discretion to dismiss the application pursuant to s 362B(1A)(b) of the Migration Act, rather than to reschedule the hearing pursuant to
s 362B(2), was unreasonable, arbitrary, capricious, without common sense or plainly unjust: Li at [28]. Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [44]; NBBL v Minister for Immigration and Multicultural Indigenous Affairs (2006) 152 FCR 592; [2006] FCA 1045 at [20]-[21].
The hearing before the Tribunal was scheduled to take place on Monday 17 July 2017. On Friday 14 July 2017 the applicants requested an adjournment of the hearing. The information sent to the applicants with the hearing invitation on 20 June 2017 clearly indicated that if the applicants were not advised that an adjournment was granted, they must assume that the hearing will proceed. The case note made by a staff member of the Tribunal on 17 July 2017 indicates that the applicants had also been advised by their migration agent of the need to attend the hearing. That case note also states that the migration agent told the Tribunal that he had informed the applicants that the Tribunal would most likely dismiss the application if the applicants did not attend the hearing, and the applicants had still decided not to attend. In these circumstances, it was not unreasonable for the Tribunal to dismiss the application rather than to reschedule the hearing.
Ground 1 does not establish jurisdiction error in the Tribunal decision.
Ground 2
Ground 2 asserts jurisdictional error on the basis that the Tribunal failed to consider the merits of the applicants’ application.
This ground misunderstands the nature of the power in s 362B(1A)(b) of the Migration Act. As set out above, in circumstances where the applicants had been properly invited to a hearing under s 360 of the Migration Act and had failed to attend that hearing, the Tribunal’s discretions in s 362B(1A) were enlivened. Had the Tribunal decided to proceed to make a decision on the review without taking any further action to allow the applicants to appear before it, in accordance with s 362B(1A)(a), it would have been required to consider the merits of the applicants’ application. The applicants would not then have had any right to seek reinstatement of their application. However, the Tribunal instead opted to dismiss the application pursuant to s 362B(1A)(b) of the Migration Act. Having made the decision to dismiss the application under s 362B(1A)(b), the Tribunal was not required to consider the merits of the application. It did not need to consider whether the applicants met the criteria to be granted a 457 visa.
Ground 2 does not establish jurisdictional error.
Confirmation decision
The applicants have not expressly sought judicial review of the confirmation decision. However, in circumstances where the applicants are self-represented and where the confirmation decision is closely related to the dismissal decision, I make the following observations as to why there is no jurisdictional error in the confirmation decision.
Upon making the dismissal decision, the Tribunal was required, pursuant to s 362C(2), to make a written statement of decision that sets out the decision, the reasons for decision and records the day and time that the statement is made. The Tribunal did this and its written statement of the dismissal decision dated 17 July 2017 was sent to the applicants by email on 18 July 2017, with the email being addressed to the migration agent at the last email address provided for the purposes of the review. The provision of the written statement to the applicants was done in accordance with s 362C(5) which requires the Tribunal to provide a copy of the written statement within 14 days of the date of the statement to the applicants by one of the methods in s 379A of the Migration Act. The correspondence to the applicants included a copy of the dismissal fact sheet, which contained a statement describing the effect of ss 362B(1B) to (1F), as required by s 362C(6).
Pursuant to s 362B(1B) of the Migration Act, the applicants had 14 days from the date they received the notice under s 362C to apply to the Tribunal for reinstatement of their application. In circumstances where the notice was sent to them by email, pursuant to s 379C(5) of the Migration Act, they were deemed to have received it at the end of the day on which the email was sent, in this case at the end of 18 July 2017.
As the Tribunal’s correspondence to the applicants sent on 18 July 2017 correctly indicated, the 14 day time period expired on 1 August 2017. The applicants did not apply for reinstatement on or before that date.
Section 362B(1E) of the Migration Act provides that if an applicant fails to apply for reinstatement within the 14 day period, the Tribunal must confirm the decision to dismiss the application, by written statement under s 368. In the present case, the Tribunal made the confirmation decision on 2 August 2017 as required by s 362B(1E). Pursuant to s 362B(1F), the effect of the Tribunal making the confirmation decision is that the decision under review is taken to have been affirmed.
Essentially, in circumstances where the Tribunal had properly notified the applicants of the dismissal decision and the applicants did not apply for reinstatement, the Tribunal had no option but to make the confirmation decision.
CONCLUSION
I have found that there is no jurisdictional error in the Tribunal decision. It follows that the application must be dismissed.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 14 December 2021
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