De Los Santos-Aguilar v Migration Agents Registration Authority
[2014] AATA 269
•6 March 2014
[2014] AATA 269
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0988
Re
Maria Luisa De Los Santos-Aguilar
APPLICANT
And
Migration Agents Registration Authority
RESPONDENT
DECISION
Tribunal Ms J Redfern, Senior Member
Date 6 March 2014 Date of written reasons 6 May 2014 Place Sydney The application for reinstatement of the review is refused.
.........[sgd]...............................................................
Ms J Redfern, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE - Reinstatement - dismissal for failure to comply with a direction - failure to appear at directions hearing - failure to explain non-compliance - whether the application was dismissed in error - insufficient evidence to explain non-compliance – insufficient evidence in support of the application for reinstatement - importance of case management procedures - application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975: s2A; 42A(5), (10)
CASES
Goldie v Minister for Immigration, Multicultural and Indigenous Affairs (2002) 2 ALD 652
Re Schramm and Repatriation Commission (1998) 54 ALD 501
Re White and Secretary, Department of Families, Community Services and Indigenous Affairs (2007) 97 ALD 207
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REASONS FOR DECISION
Ms J Redfern, Senior Member
6 May 2014
Background
On 21 January 2014 the applicant, Ms Maria Luisa Los Santos-Aguilar, made an application to reinstate proceedings dismissed on 12 December 2013 pursuant to section 42A(5) of the Administrative Appeals Tribunal Act 1976 (the AAT Act).
The proceeding dismissed was an application by the applicant for a review of the decision by the respondent to suspend her registration as a migration agent. The suspension decision was made on 28 February 2013 under s 303(1)(b) of the Migration Act 1958, whereby the decision maker exercised discretion to suspend the applicant’s registration after finding she was in breach of the Migration Agents Code of Conduct, was not a person of integrity and not a fit and proper person to give immigration assistance.
The application for review was lodged by the applicant on 7 March 2013. On 30 April 2013 directions were made for the preparation of the matter, for hearing. The applicant was to provide the Tribunal and the respondent with her Statement of Facts, Issues and Contentions on or before 31 May 2013. The respondent was to provide to the Tribunal and the applicant by 28 June 2013 the evidence and documents on which it intended to rely together with its Statement of Facts, Issues and Contentions. The parties complied with these directions.
The matter was subsequently listed for hearing on 30 September 2013 with a listing notice sent by the Tribunal to the parties on or about 5 July 2013.
On 17 September 2013 the applicant’s legal representative made an application to the Tribunal to have the matter listed so that the hearing date of 30 September 2013 could be vacated. A medical certificate was provided in support of the application, which stated that the applicant had newly diagnosed medical conditions and was unfit to attend court from 12 September 2013 “until cleared by her Specialists”.
On 26 September 2013 the Tribunal responded to the following effect:
I refer to your request of 17 September 2013 to vacate the hearing in this matter listed Monday, 30 September 2013.
I have spoken to your associate on several occasions regarding the open-ended nature of the medical certificate filed with the vacation request. Please advise the Tribunal by 5 pm today where the matter is up to so the Senior Member can assess your request. If the Tribunal does not hear from you by 5 pm today, the requests will be refused and the hearing will go ahead on Monday, 30 September 2013.
In response to this email, the applicant’s representative forwarded an email from the applicant dated 18 September 2013. In this email, the applicant noted that her next appointment with her cardiologist was on 5 October 2013 and that she would email her representative with a medical certificate from her cardiologist specifying the date she could attend a hearing.
The Tribunal vacated the hearing listed for 30 September 2013 and directed as follows:
By 7 October 2013, the applicant must notify the Tribunal of the date from which she will be available for hearing. If the applicant will not be available before 25 October 2013, she must provide the Tribunal medical evidence in support of that delay.
Relevantly the direction noted as follows:
The Tribunal can dismiss an application if an Applicant fails within a reasonable time to comply with the direction made by the Tribunal. This power is set out in section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975.
If you are the Applicant and you fail to comply with a direction, the Tribunal may list the application either for a directions hearing or dismissal hearing. You may be asked to explain why your application should not be dismissed.
There was no response to this direction by 7 October 2013 or at all.
On 4 December 2013 the Tribunal wrote to the applicant’s legal representative advising that the matter had been listed for a non-compliance directions hearing on 12 December 2013. The letter was in the following terms:
I am writing to you about the direction made by the Tribunal on 26 September 2013 which required you to advise of hearing dates when applicant will be available for hear (sic).
You do not appear to have complied with the Tribunal's direction. The Tribunal has therefore listed this matter for a directions hearing at the time set out in the attached Listing Notice.
The directions hearing will be held unless you comply with the requirement by 12 noon on the day before the directions hearing. If you comply by that time, you do not need to appear unless the Tribunal advises you the directions hearing will still take place.
Please note that the Tribunal may dismiss an application under section 42A(5) of the Administrative Appeals Tribunal Act 1975 if an applicant fails within a reasonable time to comply with directions made by the Tribunal. You may be asked to explain at the directions hearing why the application should not be dismissed.
Please also note that, if an applicant or an applicant’s representative does not appear at the directions hearing, the applicant may dismiss the application under section 42A(2) of the Administrative Appeals Tribunal Act 1975.
The Tribunal held a non-compliance directions hearing on 12 December 2013. There was no appearance by the applicant or her legal representative. The Tribunal exercised its power under section 42A(5) of the AAT Act to dismiss the application.
By letter dated 21 January 2014, the applicant's legal representatives requested reinstatement of her application for review. According to the letter, the applicant had been experiencing “severe and intermittent health problems brought on by a combination of stress and general poor health”. Attached to the letter were various medical reports and letters about the applicant’s medical condition, including a letter from Dr Bennett Franjic dated 19 November 2013 which stated as follows:
Maria has stable heart disease and is cleared to attend a court hearing.
The letter dated 21 January 2014 sought to explain why the applicant was unable to comply with the direction of 26 September 2013, directing her to provide dates on which she was available to attend a hearing. There was, however, no explanation as to why the applicant and/or her legal representatives failed to provide this medical evidence and explanation to the Tribunal by 25 October 2013, or in response to the letter of the Tribunal dated 4 December 2013 or at the non-compliance directions hearing.
The application for reinstatement was listed for hearing before me on 6 March 2014. The application was refused, essentially because there was insufficient evidence provided by the applicant or her legal representative to support the application.
The respondent submitted that, having regard to the history of the matter, the application for reinstatement should be dismissed rather than adjourned and the onus should be on the applicant to make a proper application supported by evidence so it could be assessed. Having heard argument from the parties, I was persuaded by this submission.
On 8 April 2014 the applicant requested written reasons for my decision under s 43(2A) of the AAT Act. These are my reasons.
Application for Reinstatement and Submissions of the parties
The Tribunal may dismissal an application without proceeding to a hearing to review a decision where a party fails to appear (s 42A(2)) and where an applicant fails within a reasonable time to proceed with an application or to comply with a direction of the Tribunal in relation to the application (s 42A(5)). Both powers are discretionary.
If an application is dismissed under s 42A(2), a party may apply for reinstatement under s 42A(8) but any application must be made within 28 days of receiving notice of the dismissal. The Tribunal may reinstate the application “if it considers appropriate to do so”. Thus, the power is broad and entirely discretionary. If an application is dismissed under s 42A(5) a party may apply for reinstatement under s 42A(10) but the discretion to reinstate will only be enlivened if the matter was dismissed in ‘error’. There is no time limit for such applications although delay is likely to be a relevant consideration in exercising the discretion. Error is not defined but it is clear that it is not confined to an administrative error or fault by a Member or employee of the Tribunal. According to Wilcox and Downes JJ in the Full Federal Court decision of Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 2 ALD 652, s 42A(10) of the AAT Act is not limited to administrative error. The following is apposite [at 29]:
We do not think it is necessary, in order to enliven the Tribunal's power under s 42A (10), that the Tribunal, or a member or employee of the Tribunal, should have been at fault in relation to the dismissal. The dismissal may have lain elsewhere, provided it induced the error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party but have wrongly consented to a dismissed order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitor’s mistaking induced the dismissal of the action, it could properly be said the application has been “dismissed in error”.
Once section 42A(10) of the AAT Act is enlivened because it has been determined there was an error, the Tribunal has discretion to reinstate the application. As noted by Pearce in Administrative Appeals Tribunal (3rd Edition) it is necessary for the Tribunal to be satisfied that reinstatement is appropriate in the circumstances of the particular case (Re-Schramm and Repatriation Commission (1998) 54 ALD 501). The factors that should govern the exercise of the discretion include the need to have regard to the efficiency of the Tribunal's case management; fairness to the parties; and the strength of the applicant's case (Re White and Secretary, Department of Families, Community Services and Indigenous Affairs (2007) 97 ALD 207).
In written submissions made on behalf of the applicant, it was contended that the application had been dismissed by the Tribunal in error due to a failure to provide procedural fairness and “the misapplication of section 42A(5)”. It was further submitted that the decision of the Tribunal to dismiss the application was an ‘error of law’. The submissions were primarily focussed on this question and, as such, failed to address the matters relevant to section 42A(10) of the AAT Act, including whether the discretion to reinstate the application should be exercised.
Notwithstanding the written submission, it was conceded at the reinstatement hearing that there was no error by the Tribunal but rather the error rested with the applicant in failing to appreciate her application for review could be dismissed. There was no evidence from the applicant or her legal representatives about why there had been no appearance at the non-compliance directions hearing, why there had been no explanation for the applicant’s non-compliance either at or prior to the directions hearing, the applicant’s understanding about what may happen if she did not comply or appear and the applicant’s readiness and commitment to proceed with her review. It was submitted the applicant should be given the benefit of the doubt.
The respondent contended that the discretion in section 42A(10) of the AAT Act was not enlivened because there was no “error” identified within the meaning of the section. The applicant and her legal representatives had simply failed to comply with the Tribunal directions and had subsequently failed to appear at the non-compliance directions hearing to explain the non-compliance or to make further submissions to the Tribunal. It was therefore appropriate, and within power, for the Tribunal to dismiss the application. There was no breach of procedural fairness. The applicant and her representatives were notified of the consequences of breach, both in the direction of 26 September 2013 and in the listing notice dated 4 December 2013. Even if there was an error, there was no evidence to support the exercise of the discretion or to outline the circumstances of why there had been a failure to comply.
It is not in dispute that the applicant was aware of the directions made on 26 September 2013; that she did not comply with those directions; that she was sent a notice of the non-compliance directions hearing on 4 December 2013 and that neither she nor her legal representatives appeared at the directions hearing.
Consideration
Before dismissing an application under s 42A(5) of the AAT Act, it is critical that the applicant be forewarned of the likelihood of dismissal and be given an opportunity to provide an explanation for non-compliance. Dismissal is a last resort (Guse v Comcare (1997) 49 ALD 298). In this instance, the applicant was given forewarning of this dismissal by notice dated 4 December 2013. Despite this notice, there was no appearance at the directions hearing or explanation provided by the applicant or her legal representative for the non-compliance or non-appearance. It is relevant to note that a hearing of the proceedings had already been vacated at the request of the applicant, this request having been made less than two weeks before the matter was due to be heard. The medical certificate provided by the applicant about her condition at that time was “open ended” and, after considerable delay in obtaining detail about when the applicant’s fitness to proceed would be known, the hearing was vacated on 26 September 2013. At this time, The Tribunal made directions under section 33 of the AAT Act to, amongst other things, ensure that the proceedings were conducted with expedition. In this regard, I note that the objectives of the Tribunal set out in section 2A of the AAT Act are to “provide a mechanism of review that is fair, just, economical, informal and quick”.
It is common ground that there was non-compliance with these directions and no response to the Tribunal, either by the nominated date or at any time prior to the directions hearing on 12 December 2013.
By the time of the directions hearing on 12 December 2013, the Tribunal had conducted a preliminary conference, made directions about preparation of the matter for hearing and had listed the matter for a hearing on 30 September 2013. When vacating the hearing, the Tribunal made further directions on 26 September 2013 and, after non-compliance with those directions, listed the matter for a non-compliance directions hearing on 4 December 2013. At that time, the applicant was notified that her application was liable to be dismissed if she did not comply with the direction. In my view the applicant was given adequate notice of the potential dismissal of the proceedings and she was given ample opportunity to prosecute her review through case management directions. Failing to appear or otherwise communicate with the Tribunal in these circumstances, particularly when the applicant had legal representation, demonstrated a disregard for the Tribunal's case management procedures and directions and was indicative of a lack of interest by the applicant to proceed with her case. I therefore accepted the respondent’s submission that the dismissal was within power and, insofar as there was justification for the dismissal, there was no error by the Tribunal. I also note that the applicant's representative conceded this point during oral submissions.
The applicant’s representative sought to provide an account of why the applicant did not attend the directions hearing on 12 December 2013, although there was no evidence directly from the applicant about this.
Furthermore, there was no evidence from the applicant to address the considerations relevant to the exercise of the discretion under section 42A(10) of the AAT Act. The only evidence provided was evidence about the applicant’s medical condition, which was to the effect that she was hospitalised twice in Queensland for atrial fibrillation and chest pain, was prescribed with Warfarin and discharged into her doctor’s care. While there was a medical certificate that the applicant was unfit from 23 October 2013 to 23 January 2014 there was also a certificate from Dr Franjic dated 19 November 2013 that the applicant was fit to attend a court hearing from this date.
In deciding whether to reinstate this application for review, the Tribunal must not only be satisfied that there was an error for the purposes of the section but it must be satisfied the discretion should be exercised in favour of the applicant, having regard to the efficacy of the Tribunal's case management procedures, fairness to the parties, the conduct of the applicant and the strength of the applicant’s case.
The respondent submitted, and I accepted, there was insufficient evidence about these matters for me to properly determine the application for reinstatement. First, there was insufficient evidence about the circumstances leading to the dismissal and the nature of any error to assess whether s 42A(10) was thereby enlivened. Secondly, the applicant failed to address the discretionary considerations for reinstatement. In particular, I could not be satisfied from the material provided and the oral submissions made on her behalf that if the application for review was reinstated the applicant would be in a position to expeditiously prosecute her case. This is illustrated by the following passage of transcript [at T11]:
MR SADLER: I think if we can just give the applicant the benefit of the doubt that, sure, through most of last year she had demonstrated a very scatty response to both the Tribunal - - -
SENIOR MEMBER: Yes.
MR SADLER: But in our dealings with her she had been similarly scatty in this way. We can only give her the benefit of the doubt that there are certain things going on to explain.
SENIOR MEMBER: But there is no explanation for any of that though. We don't have any evidence to explain any of that.
MR SADLER: No, that is granted.
In summary, even though I accepted the applicant had a medical condition that was sufficiently serious to render her unable to attend the Tribunal hearing on 30 September 2013, I was not satisfied reinstatement was warranted based on the available evidence.
The respondent submitted that, rather than adjourn the application for reinstatement to give the applicant an opportunity to provide this evidence, the Tribunal should refuse the request to reinstate her application for review, noting the possibility that a fresh application may be filed. The applicant would not be precluded from making a fresh application given there is no time limit. It was submitted that this would be preferable course given there was a possibility that the reinstatement application would “drift into the future without any firm resolution”. Given the history of the matter, I indicated to the applicant's representative this course would seem appropriate. The representative nonetheless contended the application should be reinstated and that, although the applicant's “explanation was weak and inadequate”, she should be given “the benefit of the doubt”. While it was asserted that the applicant was ready to proceed with the matter, it was also conceded that the applicant’s “private life at the time was all over the place”.
Taking into account the history of the matter, the failure of the applicant to comply with directions and attend the non-compliance directions hearing, the lack of evidence about her explanation for her failure to comply or instruct her solicitors to attend the directions hearing and, in particular, the failure of the applicant to provide evidence in support of this application for reinstatement and to confirm she is ready to proceed, I decided to refuse the application for reinstatement. I also decided not to adjourn the application.
To reinstate the application or even adjourn the application given the unsatisfactory nature of the material provided would have been, in my view, inconsistent with the objectives set out in section 2A of the AAT Act. There is cost and delay to applicants, respondents and the Tribunal when case management procedures are disregarded and when parties, especially those who are legally represented, do not properly prepare their applications. It is a significant matter when an application is dismissed under section 42A(5) of the AAT Act. The question of whether a dismissed application should be reinstated is equally significant. It should not be approached casually and I do not accept an applicant should be given the “benefit of the doubt” without proper attention to the requirements of section 42A(10) of the AAT Act. The applicant bears the burden of establishing why her application should be reinstated and adjourning the application to allow for further unspecified evidence in support would not have, in my view, promoted the objects of the AAT Act. It was made clear at the hearing that refusing the current application for reinstatement did not preclude the applicant from making a fresh application properly addressing the issues for reinstatement but the onus would be on the applicant to progress that matter.
I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Ms J Redfern, Senior Member .......[sgd].................................................................
Associate
Dated 6 May 2014
Date of hearing 6 March 2014 Solicitors for the Applicant Mr P Sadler, Christopher Levingstone and Associates Solicitors for the Respondent Mr W Sharpe, Sparke Helmore
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