Gruszka and Migration Agents Registration Authority (Migration) - [2023] AATA 80

Gruszka and Migration Agents Registration Authority (Migration) [2023] AATA 80 (30 January 2023)
Division:GENERAL DIVISION
File Number(s): 2022/4779
Re:Monica Christine GRUSZKA
APPLICANT

AndMigration Agents Registration Authority
RESPONDENT

Decision
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:30 January 2023
Place:Sydney

The Applicant’s objection to the inspection of the material produced on 15 November 2022 by ANZ is disallowed.
...........................[SGD].............................................
The Hon. John Pascoe AC CVO, Deputy President
Catchwords
PRACTICE AND PROCEDURE – objection to the inspection of material produced under summons – whether the scope of the summons was too broad – whether there was a genuine forensic purpose for the summons – whether the summons was a fishing expedition – objection to inspection of the summonsed material disallowed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 40A, 40B
Migration Act 1958 (Cth) s 303
Cases
Comcare v Maganga (2008) 101 ALD 68
Jones and Comcare [2019] AATA 5407
Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
30 January 2023
Background

The reviewable decision in this matter is a decision of a delegate of the Authority, dated on 9 June 2022, who suspended the Applicant’s licence as a migration agent for three years’, conditional on her meeting a series of imposed conditions under section 303 of the Migration Act 1958 (Cth) (the Migration Act) on the basis that the Applicant had breached the Code of Conduct.
On 14 October 2022, the respondent requested that the Tribunal approve the issue of a summons to produce document to the Australia and New Zealand Banking Group Limited (‘ANZ’). On 27 October 2022, the Tribunal approved the issue of the summons.
Relevant material was produced from the summonsed party on 15 November 2022.
The Applicant in the matter has lodged an objection to the inspection of summons material produced on 15 November 2022 from ANZ.
The basis for the Applicant’s claim is that:
The scope of the summons for the AAT materials was overly wide, and included “all” bank statements for a period of time. As there is no way to separate out any transactions relevant to the respondent’s position from the huge number of non-relevant transactions, we are forced to object to the entire body of ANZ materials since each page of each account statement consists primarily of personal and non-relevant business transactions
The request to issue summons from the Respondent for ANZ stated;
The issue in dispute is whether the respondent’s decision to suspend the applicant’s registration as a migration agent on the basis that the applicant was found to have breached her obligations under clauses 2.1, 2.3, 2.4, 2.8, 2.9, 2.18, 2.23, 5.3, 5.5, 7.2, 9.3, 10.1B, 10.5 and part 6 of the Migration Agents Code of Conduct and did not satisfy section 303(1)(f) of the Migration Act 1958, should be upheld.
The applicant was found to have breached her obligations relating to financial duties (cl 7.2) and has failed to provide evidence…

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.

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Details

Case: [2023] AATA 80
Decision Date: 30 January 2023

CaseChat Overview and Summary

This matter concerned an objection by the applicant, Gruszka, to the inspection of material produced under a summons issued by the Administrative Appeals Tribunal (AAT). The Migration Agents Registration Authority (the Authority) had suspended Ms Gruszka's registration, and the summons was issued in relation to the review of that decision. Ms Gruszka argued that the summons was overly broad and that there was no genuine forensic purpose for the material sought, suggesting it constituted a "fishing expedition."

The Tribunal was required to determine whether the scope of the summons was too broad, whether there was a genuine forensic purpose for the material produced, and consequently, whether Ms Gruszka's objection to the inspection of the summoned material should be allowed. The Tribunal considered the principles relating to "fishing expeditions" and oppressive subpoenas, as discussed in relevant case law, which require a balance between obtaining evidence pertinent to the issues and the burden imposed on the recipient of the summons.

The Tribunal noted that the applicant's objection itself, particularly an email sent on 22 November 2022, indicated that there might be relevant material, suggesting "fish in the pool." The Authority argued that financial records from ANZ could reveal that Ms Gruszka had wrongly deposited money into her personal account, which was not initially a stated reason for the suspension but was raised as a potential issue. The Tribunal found that the summons was not overly broad and that there was a genuine forensic purpose for the material.

The applicant's objection to the inspection of the material produced by ANZ was disallowed. The Tribunal also noted that the matter was not yet listed for hearing, and there was sufficient time to address any issues that might arise.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 40A of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) contains the Tribunal’s powers regarding the issue of summons:Power to summon person to give evidence or produce documents(1) For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:(a)appear before the Tribunal to give evidence;(b)produce any document or other thing specified in the summons.(2) The President or an authorised member may refuse a request to summon a person.(3) A person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to appear before the Tribunal unless:(a)the summons or another summons requires the person to appear before the Tribunal; or(b)the Tribunal directs the person to appear before the Tribunal. Section 40B of the AAT Act provides that:Inspection of documents produced under summons(1) Any of the following persons may give a party to a proceeding leave to inspect a document or other thing produced under a summons in relation to the proceeding:(a)the President;(b)an authorised member;(c)an authorised officer.… (3) If an authorised officer decided whether to give a party to a proceeding leave to inspect a document produced under a summons:(a)a party to the proceeding may apply to the Tribunal, within 7 days or an extended time allowed by the Tribunal, to reconsider the decision; and(b)the Tribunal may reconsider the decision on such an application or its own initiative; and(c)the Tribunal may make such order as it thinks fit in relation to the giving of leave to inspect the document. I note the comments of Deputy President Forgie in Jones and Comcare [2019] AATA 5407 at [14]:The second aspect I need to explore further is one that I also considered in General Merchandise:If the summons is essentially based on mere speculation that the person named in it has relevant material, its being seen as for the purposes of the hearing of a proceeding becomes more tenuous. Principles developed by the courts in relation to ‘fishing expeditions’ when considering subpoenas will raise themselves for consideration. They are part of a wider group of principles developed by the courts to determine whether a subpoena is oppressive. Given that the person answering the subpoena is a stranger to the proceedings, the principles can be seen as tools to determine the proper balance between obtaining evidence and material to the issues between the parties in a matter and the burden imposed upon the recipient of the subpoena. Precisely the same balance must be achieved in deciding whether a request for a summons should be refused or, if issued, a summons should be set aside.A fishing expedition has been described by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd in this way:A ‘fishing expedition’, in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.As King CJ, with whom both White and Millhouse JJ concurred, said in Hunt v Wark: … There must be some reason to suppose that the documents sought will be capable of being used ….

Decision

Reasons for decision

I note that, at the time of this decision, the matter is not listed for hearing until April 2023, neither party has yet filed their Statement of Facts, Issues and Contentions, and there is clearly sufficient time to deal with any matter which might arise including the issue canvassed at paragraph 17. Decision The Applicant’s objection to the inspection of the material produced on 15 November 2022 by ANZ is disallowed.

Ratio Decidendi

Legal Principle Established

The issue before the Tribunal is whether the Applicant’s objection to the inspection of the produced material should be allowed, and the summons in question should be set aside or in some form narrowed because it is couched in terms that are too wide, and whether there is a genuine forensic purpose for the material produced under the relevant summons.CONSIDERATION At the interlocutory hearing on 22 December 2022 before the Tribunal, the Applicant argued that the summons was too wide, and that it would require significant effort to distinguish transactions from the Applicant’s day to day personal life and transactions which may show a breach of the Applicant’s obligations under the relevant sections of the Code of Conduct in relation to the Authority’s decision to suspend her registration. At the hearing, the Applicant also put to the Tribunal that the Respondent’s argument that the financial records from the ANZ could reveal that the Applicant had wrongly deposited money into her personal account was not raised as a reason for cancellation in the reviewable decision, and it was therefore a new argument and that the Applicant should be given notice and further time to prepare a response. Further, the Applicant submitted that the issue of money being deposited into the operating account may not be a breach at all depending on the timing of the deposit (for instance, pre or post provision of services), and that the Respondent would and should be able to make their argument in regard to this based on an email of the Applicant received by the Tribunal on 22 November 2022. The respondent argued that the email of 22 November 2022, which initiated the objection to the inspection of the material produced, further served to indicate that there were ‘fish in the pool’ for the purposes of these summons, and that a previous client of the Applicant had been directed to pay money into this account. Section 40A of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) contains the Tribunal’s powers regarding the issue of summons:Power to summon person to give evidence or produce documents(1) For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:(a)appear before the Tribunal to give evidence;(b)produce any document or other thing specified in the summons.(2) The President or an authorised member may refuse a request to summon a person.(3) A person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to appear before the Tribunal unless:(a)the summons or another summons requires the person to appear before the Tribunal; or(b)the Tribunal directs the person to appear before the Tribunal.