Brott and Migration Agents Registration Authority - [2009] AATA 895

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brott and Migration Agents Registration Authority

Details

AGLC: Brott and Migration Agents Registration Authority [2009] AATA 895
Case: [2009] AATA 895
Decision Date: 20 October 2009

CaseChat Overview and Summary

Issac Alexander Brott applied to the Administrative Appeals Tribunal (AAT) for an extension of time to lodge an application for review of the Migration Agents Registration Authority's decision to cancel his registration as a migration agent. The Tribunal was required to decide whether to grant an extension of time under s 29(7) of the Administrative Appeals Tribunal Act 1975. The Tribunal considered several factors in deciding the issue, including whether there was an acceptable explanation for the delay in lodging the application, whether Mr Brott had rested on his rights, whether the respondent would be prejudiced if the extension were granted, and the merits of the substantive application. The Tribunal found that there was no acceptable explanation for the delay and that Mr Brott had rested on his rights. The Tribunal also found that there was little merit in the substantive application. The Tribunal concluded that it was not reasonable in all the circumstances to grant an extension of time.

The Tribunal refused the application for an extension of time for lodging the application.

Orders