Brott and Migration Agents Registration Authority
[2009] AATA 895
•20 October 2009
Administrative Appeals Tribunal
ORDER AND REASONS FOR ORDER [2009] AATA 895
ADMINISTRATIVE APPEALS TRIBUNAL Nº 2009/3445
GENERAL ADMINISTRATIVE DIVISION
Re:ISSAC ALEXANDER BROTT
Applicant
And:MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
ORDER
Tribunal: G. D. Friedman, Senior Member
Date: 20 October 2009
Place: Melbourne
Order:For reasons given orally at the hearing, in accordance with s 29(7) of the Administrative Appeals Tribunal Act 1975 the Tribunal refuses the application for an extension of time for lodging the application.
(sgd) G.D. Friedman
Senior Member
PRACTICE AND PROCEDURE – extension of time to lodge application for review - cancellation of registration as migration agent - consideration of factors relevant to exercise of discretion
Administrative Appeals Tribunal Act 1975 s 29(7)
Harding v Deputy Commissioner of Taxation [2009] FCA 1034
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
REASONS FOR ORDER
| 20 November 2009 | G. D. Friedman, Senior Member |
On 22 July 2009 Issac Brott lodged an application with the Tribunal for review of a decision dated 11 March 2009 to cancel his registration as a migration agent. As the application was made outside the 28-day time limit Mr Brott seeks an extension of time to lodge his application.
ISSUE
The issue before the Tribunal is whether an extension of time within which to lodge an application for review to the Tribunal should be granted.
RELEVANT LEGISLATION AND PRINCIPLES
Section 29(7) of the Administrative Appeals Tribunal Act 1975 states:
The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 stated that normally proceedings commenced outside the prescribed period will not be entertained. He set out six principles guiding the use of the discretion to grant an extension of time:
that the application for extension of time must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend the time;
whether the applicant has rested on his or her rights and whether the respondent was entitled to regard the claim as being finalised;
any prejudice to any other party;
the mere absence of prejudice to other parties is not enough to justify the grant of an extension. However, any wider prejudice to the general public is a relevant factor;
the merits of the substantive application; and
considerations of fairness between the applicant and other persons in a similar position.
CONSIDERATION
Explanation for the Delay
In his application for an extension of time Mr Brott stated that he …had not been in a position to provide proper instructions as a result of depression, anxiety, stress, medication and distress. He attached a medical report dated 1 July 2009 from Dr P Farnbach, psychiatrist, who stated that Mr Brott suffers from …a mixed anxiety/depressive disorder of at least moderate severity. Dr Farnbach said:
He currently has difficulties with lowered mood, self-deprecatory ideation, poor sleeping and marked difficulties with attention and concentration. Mr Brott has long-standing difficulties with organisation and his current condition has significantly exacerbated these -- he has missed or turned up late for appointments, and has presented when no appointment had been booked for him. He is markedly preoccupied with his recent financial and professional difficulties, and I regard his judgement as significantly impaired.
Dr Farnbach concluded that Mr Brott …is unable to deal with the issues involved.
On the first day of the hearing on 14 September 2009 the Tribunal gave Mr N Pinto, solicitor representing Mr Brott, an opportunity to present further medical or other evidence in support of the application for extension of time. None was produced and Mr Brott did not appear personally at the hearing, although he was represented by Mr S Matters of counsel at the resumed hearing.
The Tribunal takes into account that the 28-day time limit for application for review expired on 8 April 2009, so the application by Mr Brott was more than three months out of time. Dr Farnbach’s report is dated 1 July 2009 and does not explain adequately Mr Brott’s condition during the 28-day period. Further Dr Farnbach refers to current antidepressant medication but does not indicate the period of treatment or the impact of such treatment on Mr Brott’s ability to function on a day-to-day basis. Dr Farnbach refers to Mr Brott being …preoccupied with his recent financial and professional difficulties… which suggests that Mr Brott was aware of legal matters such as the need to lodge his application for review within the prescribed time.
In Harding v Deputy Commissioner of Taxation [2009] FCA 1034 Cowdroy J stated at [19] in relation to whether there was a satisfactory explanation for the delay:
Regardless of this ability to attend to business matters, the Court is prepared to accept that the applicant, because of various extraneous circumstances, has been unable to focus his attention on the serious matter of his own potential bankruptcy. The Court takes into consideration the apparent assault on his child, his own conviction for assault, and the illness of his father. The Court accepts that all of these events have distracted the applicant and the Court is prepared to accept that the applicant has provided adequate reason for the delay.
There is no material before the Tribunal other than the medical report. Apart from the general reliance on this report, no explanation for the failure to lodge the application for review has been offered. Mr Brott’s practice as a solicitor and migration agent apparently was being conducted by Mr Pinto at the time of the respondent’s decision to cancel Mr Brott’s registration, and the Tribunal has no material to suggest that such an important matter could not have been attended to by Mr Pinto or anyone else who was assisting Mr Brott at the relevant time. Unlike the fact situation in Harding, in all the circumstances the Tribunal finds that Mr Brott has not provided an acceptable explanation for his failure to lodge his application for review within the prescribed time limit, and that this factor weighs strongly against granting an extension of time.
Has Mr Brott Rested on his Rights?
Since receiving the respondent’s decision in March 2009 Mr Brott has not made any attempt to notify the respondent of his intention to seek review. The Tribunal finds that Mr Brott has rested on his rights and that this factor weighs against granting an extension of time.
Prejudice to Other Parties
There is little evidence to suggest that the respondent would suffer significant prejudice if an extension of time were to be granted. This factor weighs in favour of granting the extension of time.
Wider Public Considerations
Time limits for review of administrative decisions should be observed in order to assist the proper administration of government agencies. There is also a public expectation that there be degree of certainty of time limits. The Tribunal finds that this factor weighs against granting an extension of time.
The Merits of the Substantive Application
The respondent’s decision to cancel Mr Brott’s registration as a migration agent was based on a finding that he was not person of integrity or otherwise not a fit and proper person to give immigration assistance. This followed a finding by the Victorian Civil and Administrative Tribunal (VCAT) that Mr Brott had made a false and misleading statement to the Family Court of Australia and was guilty of misconduct at common law. It found that Mr Brott’s conduct would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency. His practising certificate entitling him to practise as a solicitor was cancelled and he may not reapply before 4 January 2014. Mr Brott admitted to several other matters brought by the Law Institute of Victoria.
Mr Matters submitted that Mr Brott has an arguable case in his substantive application. He said that Mr Brott had not admitted to all of the charges that were the subject of the decisions by VCAT concerning his fitness to practise as a solicitor. Mr Matters stated that Mr Brott is lodging an appeal to the Supreme Court of Victoria against the decisions by VCAT and is challenging the cancellation of his practising certificate and the length of the cancellation period. He said that further material supporting his application would be forthcoming.
In Harding Cowdroy J stated at [23]:
The applicant must accordingly demonstrate that there is merit in the application, that is, that there is a claim which is arguable on the merits. This is an essential requirement. In Jeffers v R [1993] HCA 11; (1993) 112 ALR 85 at 86 the High Court of Australia, considering a criminal matter, observed as follows:
However, should the appellant be unable to demonstrate any prospect of success in the appeal which he seeks to prosecute he would, for that reason, not be entitled to an extension of time, despite the other circumstances.
The decision to cancel Mr Brott’s practising certificate as a solicitor and impose a lengthy period before he may re-apply was based on findings that Mr Brott’s conduct was extremely serious. The Tribunal is satisfied, on the material provided, that the respondent gave Mr Brott ample opportunity to produce supporting evidence in its consideration of whether to cancel his registration as a migration agent as a consequence of that decision, and he failed to do so, other than providing material to the respondent or to VCAT that included submissions that he was experiencing personal and family problems at the relevant time; had pleaded guilty to some of the matters brought by the Law Institute; performed pro bono work in the community; and had not been disciplined previously as a migration agent.
The Tribunal takes into account that the material submitted to the respondent and to VCAT was largely by way of mitigation of any sanction, and included an indication that an appeal against at least one of the decisions by VCAT is proposed. However the decisions by VCAT reflect the seriousness with which the matters were considered by that Tribunal. In view of the lack of additional material to suggest that the decisions were incorrect, the Tribunal finds that there is little merit in the substantive application for review of the respondent’s decision. The Tribunal finds that this factor weighs strongly against granting an extension of time.
Considerations of Fairness
There is nothing unique or special about Mr Brott’s situation that would make his situation markedly different from other applicants in a similar position.
CONCLUSION
The Tribunal finds that the two significant factors weighing against granting Mr Brott an extension of time are the lack of an acceptable explanation for the delay and the lack of merit of his substantive application. In considering all the relevant factors the Tribunal is not satisfied that that it is reasonable in all the circumstances to exercise the discretion to grant an extension of time.
ORDER
For reasons given orally at the hearing, in accordance with s 29(7) of the Administrative Appeals Tribunal Act 1975 the Tribunal refuses the application for an extension of time for lodging the application.
I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision of:
G. D. Friedman, Senior Member
(sgd) Grace Horzitski
Associate
Dates of hearing: 14 September 2009 and 20 October 2009
Date of decision: 20 October 2009Advocate for the applicant: Mr N Pinto (14 September 2009), Mr S Matters (20 October 2009)
Solicitor for the applicant: Issac Brott & Co
Advocate for the respondent: Ms K Miller
Solicitor for the respondent: Australian Government Solicitor
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