Zhang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 305
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zhang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 305
File number: SYG 2643 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 3 May 2022 Catchwords: MIGRATION – decision of the Administrative Appeals Tribunal – where the review application was lodged with the Tribunal outside of the prescribed 21-day time limit – whether the Tribunal erred when determining that it lacked jurisdiction due to the late filing – whether the applicant was validly notified – whether the applicant was afforded procedural fairness – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 66, 347
Migration Regulations 1994 (Cth), regs 2.16 & 4.10, cl 187.233 in Schedule 2
Cases cited: Abbas v Minister for Home Affairs [2020] FCCA 1051
Alam v Minister for Home Affairs [2019] FCA 389
Ali v Minister for Home Affairs [2019] FCA 1102
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Beni v Minister for Immigration & Border Protection [2018] FCAFC 228
Craig v State of South Australia (1995) 184 CLR 163
Manandhar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1426
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration & Border Protection [2020] FCAFC 31
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of hearing: 27 April 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms S Burnett Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
SYG 2643 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: XINYU ZHANG
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
3 MAY 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of the People’s Republic of China (Court Book (“CB”) 2).
On 13 October 2016, the applicant applied for a Regional Employer Nomination (Class RN) (Subclass 187) visa (the “visa”) (CB 1-12). She was nominated for the position of “Café or Restaurant Manager” (CB 5) by Highmount Foods Pty Ltd (the “sponsor”) (CB 23).
In her visa application, the applicant provided details of her registered migration agent (the “applicant’s representative”) as the “authorised recipient” for all correspondence from the then Department of Immigration and Border Protection (the “Department”) (CB 4-5).
On 22 May 2018, a delegate of the first respondent (the “Minister”) refused the sponsor’s nomination application (CB 23).
On the same day, the Department wrote to the applicant and invited her to comment on the fact that the sponsor’s nomination application had been refused (CB 14-17).
The applicant did not respond to that invitation to comment.
On 25 June 2018, a delegate of the Minister refused to grant the applicant the visa. As the applicant was not the subject of an approved nomination, the delegate found that the applicant did not satisfy cl 187.233(3) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 22-25).
A notification of refusal letter (the “notification letter”) (CB 18-21) was sent to the applicant’s representative via email on 25 June 2018 (CB 26-27).
On 19 July 2018, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 29-30). The applicant nominated the same registered migration agent as her representative in relation to the Tribunal’s review and provided the representative’s contact details to the Tribunal (including an email address) (CB 30).
On 25 July 2018, the Tribunal invited the applicant to comment on information that indicated that the application for review had been lodged outside of the statutory 21-day time frame (CB 31-33). That letter explained (CB 33):
I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed to you on 25 June 2018 and, on the basis that 25 June 2018 was the date on which you are taken to have been notified, the last day for lodging the application for review was 16 July 2018. As the application was not received until 19 July 2018, it appears to be out of time. However, this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 8 August 2018. Upon receipt of your response, your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
On 9 August 2018, the applicant’s representative provided a written response via email. The representative advised the Tribunal that the applicant was “still discussing with her sponsor” and asked the Tribunal for a two week extension within which to provide a response
(CB 34-35). The Tribunal granted an extension (CB 36-38) and advised the applicant (through her representative) to “make any comments on whether a valid application has been made, in writing, by 17 August 2018” (CB 38).
On 20 August 2018, the applicant’s representative provided a written response to the Tribunal by email. In that response, the representative explained that he was “instructed by the sponsor that a new nomination application will be lodged immediately once the documents get ready”. The representative also asked the Tribunal to “wait” until a decision on the new nomination application was made (CB 39).
On 23 August 2018, the Tribunal determined that it did not have jurisdiction to determine the matter as the application for review had not been made in accordance with the requirements set out in s 347(1)(b) of the Migration Act 1958 (Cth) (the “Act”). Specifically, the application had not been filed within 21 days from the date that the applicant was taken to have been notified of the delegate’s decision (CB 45-46).
On 19 September 2018, the applicant filed an application for judicial review of the Tribunal’s decision in this Court. The application is made pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
THE TRIBUNAL’S DECISION
The Tribunal’s decision two pages long and spans eight paragraphs. In full, it provides:
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Immigration on 25 June 2018 to refuse to grant a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 19 July 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
2.Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.
3.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 25 June 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4.On 25 July 2018 the Tribunal wrote to the applicant and invited the applicant to comment on the validity of the application for review. On 9 August 2018, the representative wrote to the Tribunal requesting an extension of time of two weeks to respond. The Tribunal considered the request, but decided that an extension of time for one week was sufficient for the applicant to provide a response on the issue of validity. The Tribunal informed the applicant that an extension of time has been granted and that she had until 17 August 2018 to provide comments on whether a valid application has been made. On 20 August 2018 the representative wrote to the Tribunal stating that the sponsor had instructed him to lodge a new nomination which would be lodged once the documents are ready. The representative requested the Tribunal to wait until the decision of a new nomination had been made.
5.The response received from the representative about the employer lodging a new nomination is not relevant to the issue of whether a valid application for review has been made. No information has been provided which suggests that the application for review is valid.
6.On the information before it, the Tribunal finds that the applicant is taken to have been notified of the decision on 25 June 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 16 July 2018.
7.As the application for review was not received by the Tribunal until 19 July 2018 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
DECISION
8. The Tribunal does not have jurisdiction in this matter.
PROCEEDING IN THIS COURT
The application for judicial review filed by the applicant on 19 September 2018 contains four grounds of review, which provide (without alteration):
1.The Tribunal made a jurisdictional error by affirming the decision rather than adjourning or refraining from deciding the proceeding before it.
2.the Department did not give the chance to the applicant to provide further information to refuse the nomination
3.the Tribunal has unfairly to process the applicant by dismissing the applicant without hearing
4.the applicant should be allowed to submit second application of nomination to continue the application of visa in the Tribunal
The applicant filed a supporting affidavit with her application for review. That affidavit contains copies of the letter notifying the applicant of the Tribunal’s decision (dated 24 August 2018) and the relevant decision record (dated 23 August 2018). The affidavit also contains copies of the notification letter and decision record from the Department (both dated 25 June 2018).
On 17 December 2021, procedural orders were made by this Court which gave the applicant an opportunity to file an amended application, any affidavit evidence and written submissions. No further materials were filed by the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 19 September 2018, a Court Book numbering 46 pages (marked as Exhibit 1), and written submissions filed by the Minister on 13 April 2022.
The applicant appeared before the Court via video link without legal representation on 27 April 2022. She was assisted by an interpreter in the Mandarin language. The Court thanks the interpreter for her considerable assistance with this matter.
The Court confirmed with the applicant that she had received a copy of the Court Book and the Minister’s written submissions.
To assist the applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Noting that the applicant was unrepresented, the Court gave her the opportunity to explain orally what she thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
Unfortunately, the applicant’s oral submissions were not particularly clear. In effect, the applicant explained that she believed the Tribunal should have given her “more time” but otherwise was unable to address why she believes that the Tribunal fell into error.
In this context, the Court is left to address the applicant’s grounds of review. This Court’s preferred approach is to be mindful that, where an applicant is unrepresented and may not have adequate knowledge and an ability to prepare for, or understand, what is required of them, the Court should read the applicant’s grounds of review as broadly as possible. Further, the Court should remain astute to the possibility of legal error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392. Likewise, it is expected that the Minister, as a model litigant, will raise any issues of concern that might not be raised by an unrepresented applicant.
CONSIDERATION
To the extent that the applicant’s grounds of review (noting, in particular, ground 2) raise concerns with the delegate’s decision, this Court has no jurisdiction (pursuant to ss 476(2)(a) and 476(4) of the Act) to review the delegate’s decision (which is a primary decision): Manandhar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1426 at [13].
It is fair to say that, read broadly, grounds 1, 3 and 4 raise two primary concerns:
(a)the Tribunal erred in finding that it lacked jurisdiction to hear the matter before it; and
(b)the Tribunal failed to afford the applicant procedural fairness.
Did the Tribunal err in determining that it lacked jurisdiction?
Arguably, by ground 1, the applicant is concerned that the Tribunal erred when finding that it lacked jurisdiction to hear the matter before it.
In Abbas v Minister for Home Affairs [2020] FCCA 1051 at [33], this Court provided the framework for assessing whether, in circumstances where an application is lodged late, the Tribunal was correct in determining that it lacked jurisdiction.
Relevantly, in cases such as this, the Court will assess:
(a)whether (and how) the applicant was notified of the delegate’s decision;
(b)the content and clarity of the notification letter; and
(c)whether the application for review was, in fact, filed late with the Tribunal.
Was the applicant notified?
Section 347(1)(b) of the Act requires that an application for review of the delegate’s decision be lodged with the Tribunal within the “prescribed period”. The prescribed period is set out in reg 4.10(1)(a) of the Regulations, which provides (emphasis added):
4.10 Time for lodgement of applications with Tribunal (Act, s 347)
(1)For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5‑reviewable decision must be given to the Tribunal:
(a)if the Part 5‑reviewable decision is mentioned in subsection 338(2) or (7A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received;
For the 21-day period to commence, the Department must notify the applicant of the delegate’s decision in accordance with the requirements set out in s 66 of the Act.
If the notification does not meet these requirements, then there has been no “notification” of the decision and the time period does not commence: Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469 at [62].
Section 66(1) of the Act specifies that, where the Minister refuses to grant a visa, the Minister must notify the applicant in the prescribed way. Regulation 2.16(3) of the Regulations prescribes that the Minister must notify an applicant of the decision by one of the methods specified in s 494B of the Act.
A copy of the notification letter relevant to this matter is provided in the Court Book
(at 18-21). Having assessed that letter, the Court notes as follows.
Pursuant to s 494(5)(b) of the Act, the Department is permitted to communicate with an applicant via email. Here, the Department sent the notification letter by email to the applicant’s representative (a registered migration agent) in his capacity as the applicant’s “authorised recipient” for all correspondence from the Department (CB 26-27).
The applicant consented to the Department sending all written correspondence to the applicant’s representative via email (CB 4-5).
By virtue of s 494C(5) of the Act, the applicant was deemed to have received the notification letter on the date it was sent to the applicant’s representative via email. That is, at the end of the day on 25 June 2018 (CB 26-27).
The applicant was thus validly notified of the delegate’s decision refusing to grant her the visa.
Was the notification letter “clear”?
Section 66(2) of the Act provides that a notification of a decision refusing an application for a visa must:
(a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa, specify that criterion; and
(b)if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa, specify that provision; and
(c)unless subsection (3) applies to the application, give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500, state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made; and
…
Here, the notification letter and the delegate’s decision clearly identified that the visa was refused because the applicant did not satisfy cl 187.233(3) in Schedule 2 of the Regulations (CB 18 & 23). Furthermore, the delegate provided written reasons explaining why the criteria set out in cl 187.233(3) in Schedule 2 of the Regulations were not met (CB 22-25).
As outlined above, s 66(2)(d) of the Act requires that the notification contain specific information about an applicant’s right of review. In relation to this matter, the Court is satisfied that:
(a)having stated expressly that “the decision can be reviewed” and advising the applicant that she was entitled to apply to the Tribunal for review, s 66(2)(d)(i) of the Act was satisfied (CB 18-19);
(b)having indicated that if she sought review, the applicant must be “physically present in Australia” (as required by s 347(3) of the Act), the notification satisfied s 66(2)(d)(iii) of the Act (CB 18);
(c)by providing a large table indicating the address for each of the Tribunal’s registries, the national email address and the national fax numbers for the Tribunal, the notification letter satisfied s 66(2)(d)(iv) of the Act (CB 20).
A further issue in this matter is whether the notification letter satisfied s 66(2)(d)(ii) of the Act. Importantly, the Court must consider the content and structure of the notification letter as a whole in determining whether it is sufficiently clear to be valid: Singh v Minister for Immigration & Border Protection [2020] FCAFC 31 (“Singh”).
Having reviewed the notification letter in this matter (CB 18-21), the Court notes as follows:
(a)under the heading “Review Rights” it is stated that the application for review must be lodged “within 21 calendar days after the day on which you are taken to have received this letter” (CB 18). That heading and the advice beneath it directly encompasses the language of a statement referring to the time limit; and
(b)under the heading “Receiving this Letter” it is stated that, “[a]s this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted” (CB 20).
A person reading the letter “as a whole”, as explained by the Full Court in Singh, would be sufficiently alert to this and would be able to identify and determine that they were required to lodge their application within 21 days after the date on which the letter was emailed: Ali v Minister for Home Affairs [2019] FCA 1102.
The notification letter in this matter was clear. Its layout was not confusing. Clear headings and language were used and provided effective “signposts” that allowed the applicant to identify the information she needed in order to lodge a valid application for review.
Was the application for review, in fact, filed late with the Tribunal?
In its decision (at [2]), the Tribunal correctly notes that the applicant was required to lodge an application for review of the delegate’s decision within 21 days from the date on which she was notified: s 347(1)(b) of the Act and reg 4.10(1)(a) of the Regulations.
That 21 day period commenced on 25 June 2018 and ended on 16 July 2018. The applicant lodged her application for review at the Tribunal on 19 July 2018. The application was, thus, “out of time” by 3 days.
The applicant does not appear to dispute that her application to the Tribunal was lodged late.
Did the Tribunal err?
The Tribunal was correct to find that it did not have jurisdiction. The applicant was validly notified of the delegate’s decision and was correctly informed of her rights of review. Unfortunately, she failed to lodge her application within the requisite 21-day time frame.
In these circumstances, the Tribunal had no jurisdiction to assess the application for review and made the only determination open to it.
Was the applicant denied procedural fairness?
Read broadly, grounds 1, 3 and 4 raise also concerns that the Tribunal denied the applicant procedural fairness.
Insofar as the applicant is suggesting that the Tribunal should have extended the 21-day time period within which she could file her application with the Tribunal or that the Tribunal should have adjourned the hearing so that the applicant’s sponsor could file a second (or new) nomination application, the Court disagrees.
As correctly contended by the Minister (in written submissions filed on 13 April 2022 (at [13])), the time limits imposed by the Act and the Regulations are inflexible. An application received outside of the statutory 21-day time limit is not a valid application. As such, the Tribunal has no jurisdiction to review it: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621. In those circumstances, the Tribunal has no discretion to extend time, adjourn the proceeding before it or refrain from making the determination that it had no jurisdiction in the matter: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228.
To the extent that the applicant contends that she should have been invited to attend a hearing before the Tribunal, for the reasons that follow, the Court, again, disagrees.
In circumstances where a Tribunal determines (correctly) that it has no jurisdiction (as the Tribunal did in this case), it is well settled that the procedural fairness requirements in Part 5 of the Act do not apply: Alam v Minister for Home Affairs [2019] FCA 389 (“Alam”) at [29]. The applicant is not “entitled” to attend a hearing once the Tribunal determines that no valid application exists upon which a substantive determination can be made.
However, procedural fairness obligations do apply to the Tribunal’s consideration of whether it had jurisdiction: SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 (“SZEYK”) at [36]-[38] and affirmed in Alam at [29]-[30].
In this case, procedural fairness required that the Tribunal give the applicant a “reasonable opportunity” to address the adverse information relating to the validity of the application for review: SZEYK at [37].
In this matter, a “reasonable opportunity” to do so was provided.
On 25 July 2018, the Tribunal sent a letter to the applicant (via email sent to the applicant’s representative) inviting her to comment on the validity of her application for review
(CB 31-33). That letter set out the details of the information before the Tribunal and also advised the applicant about how to provide comments, as follows (CB 14):
INVITATION TO COMMENT ON VALIDITY OF APPLICATION FOR REVIEW - MS XINYU ZHANG
I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Regional Employer Nomination (Permanent) visa.
I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed to you on 25 June 2018 and, on the basis that 25 June 2018 was the date on which you are taken to have been notified, the last day for lodging the application for review was 16 July 2018. As the application was not received until 19 July 2018, it appears to be out of time. However, this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 8 August 2018. Upon receipt of your response, your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
…
On 9 August 2018, the applicant’s representative responded to the invitation to comment by email and requested an extension of time of two weeks (CB 34-35). The Tribunal granted an extension and advised the applicant (through her representative) to “make any comments on whether a valid application ha[d] been made, in writing, by 17 August 2018” (CB 36-38).
The applicant’s representative did so. Unfortunately, he did not address the core issue he was asked to comment on. That is, he did not comment on whether the Tribunal had jurisdiction because of the late filing.
Relevantly, in an email to the Tribunal dated 20 August 2018, the applicant’s representative simply stated (without alteration) (CB 39):
Thanks for your email. I was instructed by the sponsor that a new nomination application will be lodged immediately once the documents get ready, could you please wait until the decision of new nomination application is made?
…
In its decision (at [4]), the Tribunal did consider the comments made by the applicant’s representative regarding the “new nomination application” to be filed by the sponsor and the request for the Tribunal to “wait” until a decision on that new nomination application was made. However, the Tribunal found that the comments were “not relevant to the issue of whether a valid application for review ha[d] been made” (at [5]).
That assessment was correct. Once the Tribunal had determined (correctly) that it lacked jurisdiction, it had no power to delay handing down its decision so that the applicant could obtain a new nomination. The Tribunal was simply not empowered to consider any second application or nomination in circumstances where it lacked jurisdiction. The Tribunal acted appropriately in this regard given the correspondence received and the content of that correspondence – none of which addressed the requisite 21-day time limit and whether the Tribunal had jurisdiction.
The applicant was afforded procedural fairness to the extent required in circumstances where the Tribunal was required to determine whether it lacked jurisdiction.
No jurisdictional error arises in this regard.
CONCLUSION
The applicant’s application for judicial review fails to identify any jurisdictional error. Nor has this Court identified any error on the part of the Tribunal.
The application for judicial review is dismissed.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 3 May 2022
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