Mahato v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 504
•6 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mahato v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 504
File number: MLG 1415 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 6 June 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – where the Tribunal dismissed an application under s 362B(1A)(b) of the Migration Act 1958 (Cth) due to the applicant’s non-appearance at a hearing and subsequently confirmed that decision – whether the applicant was properly invited to the hearing – whether the applicant was properly notified of the dismissal decision under s 362C of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 360A, 362B, 362C, 379A, 379C, 379G, 476, 477
Migration Regulations 1994 (Cth) reg 4.21, Sch 2, cl 500.212
Cases cited: CRE21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 352
CYB18 v Minister for Home Affairs [2020] FCCA 819
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Kim v Minister for Immigration and Multicultural Affairs [2006] FCAFC 64
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submission: 21 May 2024 Date of hearing: 17 May 2024 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Ms K Petrovski Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 1415 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAROJ MAHATO
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
6 JUNE 2024
THE COURT ORDERS THAT:
1.The application 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
The applicant applied for a (Temporary) (class TU) Student (subclass 500) visa (student visa) in Australia in 2016 and that application was refused by a delegate of the Minister. The applicant sought merits review of the delegate’s decision by the Administrative Appeals Tribunal (Tribunal) but failed to appear at a hearing scheduled before the Tribunal. The Tribunal dismissed the application for non-appearance under s 362B(1A)(b) of the Migration Act 1958 (Cth) (Migration Act) and, when the applicant did not seek reinstatement of his application withing 14 days of the decision to dismiss his application, confirmed the decision to dismiss the application.
The applicant made an application to this Court to judicially review the Tribunal decision in its jurisdiction conferred by s 476 of the Migration Act.
For the reasons explained below, the applicant has not established that the Tribunal decision is affected by jurisdictional error. The application to this Court is therefore dismissed.
VISA HISTORY AND ADMINISTRATIVE DECISIONS
The applicant first arrived in Australia in 2013 as the holder of a (Temporary) (class TU) (subclass 573) student visa. That visa was granted to the applicant to enable him to undertake a Diploma of Health Sciences and Bachelor of Health Sciences courses at university. The applicant’s enrolments for those courses were cancelled, and the applicant enrolled in a vocational education and training (VET) sector course to study a Certificate III in Commercial Cookery.
On 23 August 2016 the applicant applied for the student visa the subject of this application to study a Bachelor of Business (Accounting).
On 4 November 2016 a delegate of the Minister refused to grant the applicant the student visa. The delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia, as required by cl 500.212 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
The applicant applied to the Tribunal for review of the delegate’s decision on 14 November 2016 and indicated in his review application that he was represented by a registered migration agent.
On 6 March 2018 the Tribunal sent to the applicant, via his representative, an invitation to attend a hearing on 5 April 2018 to give evidence and present arguments in relation to the issues arising in the review. The Tribunal’s case notes indicate that the Tribunal sent SMS messages to the applicant, to the number recorded in his review application, on 27 March 2018 and 4 April 2018 to remind him of the hearing.
The applicant failed to attend the hearing scheduled on 5 April 2018 and the Tribunal made a decision on that day to dismiss the application under s 362B(1A)(b) of the Migration Act (dismissal decision).
In its reasons for the dismissal decision, the Tribunal recorded its satisfaction that the applicant was properly invited to the hearing in accordance with s 379A(5), the invitation had not been returned to sender, two separate hearing reminders had been sent to the applicant and the applicant, without satisfactory reason, failed to appear before the Tribunal at the scheduled day, time and place. The Tribunal also recorded that the invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.
The Tribunal notified the applicant of the dismissal decision by way of a notice sent to him by email, via his representative, on 6 April 2018. The notice advised the applicant that he may apply to the Tribunal, in writing, for reinstatement of his application by 20 April 2018.
The applicant did not apply for reinstatement of his application by 20 April 2018 and on 23 April 2018 the Tribunal confirmed the dismissal decision (confirmation decision). In its reasons for the confirmation decision, the Tribunal said at [3]-[4]:
3. The review applicant was 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). The review applicant was 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.
4.As the review applicant did not apply for reinstatement of the application within the 14 days period, the Tribunal must confirm the decision to dismiss the application. In these circumstances, the decision under review is taken to be affirmed.
The applicant was notified of the confirmation decision on 26 April 2018, with the notice sent to him via email to his representative.
APPLICATION FOR JUDICIAL REVIEW
The applicant filed his judicial review application on 23 May 2018 and the application was therefore made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The judicial review application contains the following ground (reproduced without alteration):
The decision of the Second Respondent is affected by an error of law in that:
A. The Tribunal’s decision of 23 April 2018, was affected by jurisdictional error in that the Tribunal failed to consider or properly consider all the documentary evidence and take into account relevant information;
PARTICULARS
(i) The Tribunal erred in determining that the Applicant was notified of the dismissal decision made on 5 April 2018, and that the Applicant was given a copy of a written statement setting out the decision and the reasons for the decision, in accordance with s362C(5) of the Migration act 1958.
Pursuant to an Order made by a Registrar of this Court on 24 July 2019, the applicant was required to file and serve any amended application with proper particulars of the grounds of the application, any affidavits, any supplementary court book and written submissions 28 days before the final hearing. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions in accordance with the Order.
At the hearing, I questioned Counsel for the Minister about whether the documents in the court book filed by the Minister showed that the Tribunal had complied with its statutory obligations when notifying the applicant of the dismissal decision, in particular s 362C(6) of the Migration Act. Counsel for the Minister acknowledged that an information sheet referred to as an attachment to the notice sent to the applicant on 6 April 2018 had not been included in the court book. Counsel for the Minister was able to check records available to her during the hearing and confirm almost immediately that the Tribunal sent the information sheet to the applicant, and she sought leave to produce this evidence to the Court.
The applicant objected to the Minister having leave to adduce further evidence, noting that the time for the Minister to file additional evidence had passed. The applicant’s concern is understandable. However, I allowed the Minister an opportunity to file an affidavit annexing the additional document and I allowed both parties an opportunity to file written submissions addressing whether the Tribunal complied with its obligations in s 362C(6) of the Migration Act because I considered that was the course that best served the interests of justice. The applicant bears the onus of proof in this proceeding, but the information sheet is a document in the Minister’s possession and control and which the Court would ordinarily expect to find in the court book filed in an application for judicial review of dismissal and confirmation decisions made by the Tribunal. The omission of the information sheet from the evidence before the Court would not, of itself, mean that the applicant has discharged his evidentiary onus. Rather, if the information sheet is not in evidence, the Court would be unable to properly assess whether the Tribunal complied with all of its obligations under the Migration Act.
On 21 May 2024 the Minister filed further written submissions and an affidavit of Kristina Petrovski annexing the email correspondence and attachments, including the information sheet, that the Tribunal sent to the applicant’s representative on 6 April 2018. The applicant did not file any documents in response to this.
Including the additional evidence filed by the Minister post-hearing, the evidence before the Court comprises:
(a)an affidavit of the applicant filed on 23 May 2018;
(b)the court book filed on behalf of the Minister on 7 August 2019;
(c)an affidavit of service of Amron Rath filed on behalf of the Minister on 7 May 2024 confirming that the Minister served a copy of the court book and his submissions on the applicant; and
(d)the affidavit of Kristina Petrovski filed on 21 May 2024.
CONSIDERATION OF APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was recently explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Consideration of the applicant’s grounds
Issues raised by the applicant’s ground and the parties’ submissions
While the applicant has sought judicial review of the confirmation decision, the Minister considered it appropriate to also address the validity of the dismissal decision. I agree that it is open, in reviewing the confirmation decision, to consider the validity of the dismissal decision. This is because the Tribunal’s power to make the confirmation decision only arises if the dismissal decision made by the Tribunal was valid: see, for example: CYB18 v Minister for Home Affairs [2020] FCCA 819 at [88]; CRE21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 352 at [90]-[91].
The gist of the applicant’s complaint is that he believes he was not notified of the dismissal decision. In his affidavit filed on 23 May 2018, the applicant deposed at [10]:
… A hearing of the review application was listed before the Second Respondent on 5 April 2018 and I did not attend that hearing. My application for review was accordingly dismissed under section 362B(1A)(b), of the Migration Act 1958. Though I did receive a notification informing me that the review application was listed for a hearing on 5 April 2018, I did not receive any written statement setting out the decision made on 5 April 2018, and the reasons for that decision in accordance with s362C(5) of the Migration Act. At the relevant time, I was represented by Ms Anu Bista, my Migration Agent. I have since made enquiries with my Migration Agent and I have been informed by my Migration Agent that he has at no time from 5 April 2018 up until 26 April 2018, received any communication from the Second Respondent on my behalf, notifying of the dismissal decision made by the Second Respondent on 5 April 2018.
In his oral submissions at the hearing, the applicant initially submitted that he did not receive messages or notice about the hearing and therefore did not attend. The applicant also submitted that he was not given a written statement of the dismissal decision or told that he could seek reinstatement of his application. When I referred the applicant to his affidavit and invited him to comment on any inconsistency between his evidence that he had received the notification advising him that the hearing would take place on 5 April 2018 and his submission that he did not receive notification of the hearing, the applicant confirmed that he had received the hearing notice and meant to say that he did not receive notification of the dismissal decision.
Based on the way in which the applicant has articulated his case to this Court, the critical issue for the Court’s consideration is whether the applicant was properly notified of the Tribunal’s dismissal decision.
Was the dismissal decision valid?
It is, however, convenient to first briefly address the Minister’s submissions on the validity of the dismissal decision as, chronologically, the dismissal decision came before the notification of that decision.
The Minister submitted that the Tribunal’s hearing invitation sent to the applicant on 6 March 2018 complied with the relevant legislative requirements because it gave notice of the day, time and place of the hearing, it complied with the prescribed notice period and contained a statement to the effect of s 362B of the Migration Act. The Minister also submitted that the invitation was sent to the applicant via his representative’s email address recorded in his application, which was the last email address provided by the applicant in connection with the review, and that the correspondence was sent in accordance with s 379A(5)(b) of the Migration Act.
I accept these submissions. The notice of the invitation to attend a hearing sent to the applicant on 6 March 2018 complied with the requirements of s 360A of the Migration Act. The notice clearly advised the applicant that his hearing would take place on 5 April 2018 at 10.30am at Level 4, 15 William Street in Melbourne and therefore gave the applicant notice of the day on which, and the time and place at which, the applicant was scheduled to appear before the Tribunal, as required by s 360A(1) of the Migration Act. The notice was given to the applicant by one of the methods specified in s 379A of the Migration Act, as required by s 360A(2). Specifically, the notice was given to the applicant by email sent to his representative at the email address provided in the applicant’s review application, which was the last email address provided in connection with the review, which is a method of notification authorised by s 379A(5) of the Migration Act. I further note that the applicant’s representative was his authorised recipient for the purposes of the review and the Tribunal was required by s 379G of the Migration Act to give the notice of the invitation to attend a hearing to the authorised recipient, rather than directly to the applicant. The period of notice of the hearing given to the applicant exceeded 14 days, as required by s 360A(4) of the Migration Act read in conjunction with reg 4.21(4) of the Regulations. The notice was also required, by s 360A(5), to contain a statement of the effect of s 362B of the Migration Act, which sets out what may happen if an applicant does not attend a hearing. The following statement in the notice of the invitation sent on 6 March 2018 explains the effect of s 362B:
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 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 taken to be affirmed.
In circumstances where the applicant was properly invited under s 360 of the Migration Act to attend a hearing before the Tribunal and did not appear at the hearing on the scheduled day, time and place, the Tribunal’s discretion in s 362B(1A)(b) of the Migration Act to dismiss the application without any further consideration of the application or information before the Tribunal was enlivened. The Tribunal was required to exercise its discretion reasonably: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [4] (Kiefel CJ), [80], [89] (Nettle and Gordon JJ), [131] (Edelman J). I accept the Minister’s submission that it was open and reasonable for the Tribunal to make the dismissal decision in circumstances where the Tribunal, in addition to inviting the applicant to the hearing, sent him two SMS reminders of the hearing and where the Tribunal had received no correspondence from the applicant prior to the hearing.
The Tribunal did not make any jurisdictional error in making the dismissal decision.
Did the Tribunal properly notify the applicant of the dismissal decision?
Section 362C of the Migration Act relevantly provides:
Decisions to which this section applies
(1)This section applies in relation to the following decisions (each of which is a non‑appearance decision):
(a) a decision to dismiss an application under paragraph 362B(1A)(b);
(b)a decision to reinstate an application under paragraph 362B(1C)(a) and to give directions (if any) under that paragraph.
…
Written statement of decision
(2)If the Tribunal makes a non‑appearance decision, the Tribunal must make a written statement that:
(a) sets out the decision; and
(b) sets out the reasons for the decision; and
(c) in the case of a decision to reinstate an application:
(i) sets out the findings on any material questions of fact; and
(ii)refers to the evidence or any other material on which the findings of fact were based; and
(d) records the day and time the statement is made.
…
Notice to applicant
(5)The Tribunal must notify the applicant of a non‑appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:
(a)within 14 days after the day on which the decision is taken to have been made; and
(b)by one of the methods specified in section 379A.
(6)In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 362B(1B) to (1F).
While the applicant’s ground asserts that the Tribunal failed to notify him of the dismissal decision as required by s 362C(5) of the Migration Act, it is appropriate to consider that together with the additional requirement in s 362C(6).
The Tribunal’s written statement of the dismissal decision complied with the relevant requirements of s 362C(2) of the Migration Act, in that it:
(a)set out the decision, namely that the application was dismissed under s 362B(1A)(b) of the Migration Act;
(b)set out the reasons for decision, comprising three paragraphs; and
(c)recorded that the statement was made on 5 April 2018 at 2.43pm.
The written statement was given to the applicant on 6 April 2018, the day after the dismissal decision was made. It was therefore given to the applicant within 14 days of the dismissal decision, as required by s 362C(5)(a) of the Migration Act.
The written statement was given to the applicant by an email sent to his representative. Section 379A(5) of the Migration Act allowed a member or an officer of the Tribunal to give a document to the applicant by ‘transmitting the document by … email … to … the last … email address … provided to the Tribunal by the recipient in connection with the review…’. The email address used to send the written statement to the applicant was the last email address provided by or on behalf of the applicant to the Tribunal in connection with the review. Further, as discussed above in the context of the hearing invitation, the Tribunal was required by s 379G of the Migration Act to send the written notice to the applicant’s representative, who was his ‘authorised recipient’ and the Tribunal was taken to have given the document to the applicant by giving it to his representative: see s 379G(1) and (2) of the Migration Act. The method by which the applicant was given a copy of the written statement therefore complied with the requirement in s 362C(5)(b) of the Migration Act that it be given by one of the methods in s 379A.
Pursuant to s 362C(6) of the Migration Act, the written statement in relation to the dismissal decision was required to be given to the applicant together with a statement describing the effect of subsections 362B(1B) to (1F). Those subsections provide:
Reinstatement of application or confirmation of dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.
(1C)On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a)if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or
(b)confirm the decision to dismiss the application, by written statement under section 368.
(1D) If the Tribunal reinstates the application:
(a)the application is taken never to have been dismissed; and (b) the Tribunal must conduct (or continue to conduct) the review accordingly.
(1E)If the applicant fails to apply for reinstatement within the 14-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.
(1F)If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
Ms Petrovski’s affidavit shows that the correspondence sent to the applicant, via his representative, on 6 April 2018 included an information sheet that contained 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.
I accept the Minister’s submission that the notice contains information to the effect of s 362B(1B)-(1F) and therefore complies with s 362C(6) of the Migration Act.
The applicant gave evidence that he did not, in fact, receive the notice of the dismissal decision and that his representative said that she did not receive the notice of the dismissal decision. The applicant’s representative did not give evidence to the Court and the applicant’s evidence that his representative informed him that the representative did not receive any communication from the Tribunal on his behalf from 5 to 26 April 2018 is not probative evidence that the representative did not, in fact, receive any relevant communication from the Tribunal. In any event, this evidence is not determinative of the judicial review application and I am not required to make any factual finding as to whether the applicant or his representative in fact received the correspondence sent by the Tribunal on 6 April 2018.
This is because the applicant was deemed to have received the documents given to him by the Tribunal on 6 April 2018 at the end of that day. Section 379C of the Migration Act sets out when a person, other than the Secretary, is taken to have received a document from the Tribunal. Subsection 379C(5) provides that if the Tribunal gives a document to a person by a method referred to in s 379A(5), which includes giving them the document by email sent to the last email address provided to the Tribunal in connection with the review, the person ‘is taken to have received the document at the end of the day on which the document was transmitted’. I have found above that the correspondence given to the applicant on 6 April 2018 was given to him by a method in s 379A(5) of the Migration Act and it follows that the Migration Act ‘conclusively provides’ that he received it at the end of that day: see Kim v Minister for Immigration and Multicultural Affairs [2006] FCAFC 64 (Kim) at [8]. Section 379C(5) does not operate as a rebuttable presumption and I cannot inquire into whether the documents sent by the Tribunal on 6 April 2018 were in fact received by the applicant: see Kim at [8]; Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [13] in relation to other similar provisions of the Migration Act.
The applicant was therefore properly notified of the dismissal decision, whether or not he in fact received it.
Was the confirmation decision valid?
Pursuant to s 362B(1E) of the Migration Act, if an applicant fails to apply for reinstatement within 14 days after receiving notice of the dismissal decision, the Tribunal is required to confirm the decision to dismiss the application. Given the applicant’s submissions in the present matter, it is appropriate to reiterate that the 14 day period commences on the day that the applicant was deemed to receive notice of the dismissal decision, whether or not he in fact received the notice on that day.
The Tribunal, in making the confirmation decision, recorded that the applicant was notified of the dismissal decision in accordance with s 362C(5) of the Migration Act and that he did not seek reinstatement of the application within the 14 day period.
As the applicant was deemed to have received notice of the dismissal decision at the end of 6 April 2018, the applicant’s submission to this Court that the Tribunal erred by failing to consider that he had not in fact received notice of the decision cannot be sustained. The Tribunal had no obligation to consider or to inquire about whether the applicant in fact received notice of the dismissal decision.
I accept the Minister’s submission that the confirmation decision was the only decision open to the Tribunal in circumstances where the applicant had not sought reinstatement of the dismissal decision within 14 days of being notified (or being deemed to have been notified) of the dismissal decision.
There is therefore no jurisdictional error in the confirmation decision.
CONCLUSION
In circumstances where the applicant has not established jurisdictional error in the Tribunal decision, the application for judicial review must be dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 6 June 2024
0
10
2