Kadeh and Migration Agents Registration Authority (Migration)

[2020] AATA 6019

Kadeh and Migration Agents Registration Authority (Migration) [2020] AATA 6019 (28 October 2020)

Division:GENERAL DIVISION

File Number(s):      2018/6381

Re:Imad Kadeh

APPLICANT

AndMigration Agents Registration Authority

RESPONDENT

DECISION 

Tribunal:Member M O'Loughlin

Date:28 October 2020

Date of written reasons:        12 March 2021

Place:Adelaide

For the reasons given orally at the conclusion of this matter, the Tribunal refuses the application for re-instatement.

...........................[Sgnd].............................................

Member M O'Loughlin

CATCHWORDS

PRACTICE AND PROCEDURE – reinstatement application - matter dismissed pursuant to section 42A(2)(a) of the AAT Act for failure to appear - whether reinstatement is appropriate pursuant to sections 42A(9) or (10) - application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

REASONS FOR DECISION

1. At the conclusion of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the respondent, pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975 (the “Act”), requested the Tribunal to provide a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for the decision, delivered on 28 October 2020, have been transcribed.  Some minor amendments and additions have been made to that transcript.  Whilst the oral reasons, as amended, may reflect the inelegance of an ex tempore decision, they are in fact the reasons for the said decision. Those reasons are set out below. 

3. On 9 July 2020 the Tribunal dismissed the application for review in this matter. The application was dismissed by reason of the applicant's failure to attend the hearing of the matter which had been listed to start on Wednesday, 8 July 2020 and continue on Thursday 9 July 2020. The dismissal was made under section 42A(2)(a) of the Act.

4. The Tribunal gave reasons for dismissing the application on 9 July 2020.  28 days elapsed after that decision without the applicant seeking re-instatement of his application for review. 

5. On 31 August 2020 the applicant sought an extension of time within which to apply for re-instatement of his application and was granted an extension of time to seek re-instatement. 

6. The applicant subsequently filed a further statement dated 6 October 2020 in which he indicated that the decision of the AAT to dismiss his application on  9 July 2020 was an error of law.  His statement does not identify the error of law that he says the AAT made. The Tribunal rejects this contention. 

7. The applicant further said that he believed at the time (by which the Tribunal assumes he meant the time for which this matter was listed for hearing), that the AAT had no jurisdiction to proceed. 

8. The applicant has made oral submissions which suggest to the Tribunal that he believed that the effect of some documents that he filed at the Federal Court, which he described as an appeal to the Federal Court in relation to his application, would have the effect of staying the AAT hearing.

9. The AAT has referred the applicant to emails that were provided to him by the registry at the time the matter was due to be heard, which indicated to him that the matter would not be stayed by reason of any documents that he filed with the Federal Court or for any other reason, aside from appropriate health reasons, which the applicant did not provide. 

10. The applicant has today submitted that he did not attend the hearing because he was suffering from a medical condition and that he had a medical certificate in relation to that medical condition.  The Tribunal indicated that no such medical certificate appears to have been filed and the applicant agreed that he did not provide it to the Tribunal or to the respondent.

11. The Tribunal is unable to find an indication of any suggestion that the applicant's health prevented him from being able to attend the hearing listed for 8 and 9 July 2020. 

12. The Tribunal's power to re-instate an application is authorised by sections 42A(9) and (10) of the Act.

13. Section 42A(9) of the Act applies where the Tribunal considers it appropriate to re-instate an application. The Tribunal is not satisfied that there is anything that suggests that it is appropriate to re-instate this application. The Tribunal is satisfied that the applicant should have known that documents he filed with the Federal Court did not have the effect of staying the application as he suggests he believed.

14. The Tribunal finds that if the applicant held that belief, that such belief was unreasonable and does not constitute an appropriate reason to re-instate this application. 

15. Section 42A(10) of the Act enables the Tribunal to re-instate an application if the application has been dismissed in error. The Tribunal has considered the submissions made by the applicant and does not find that any relevant error has been identified.

16. In the circumstances, the application for re-instatement is refused.

I certify that the preceding sixteen [16] paragraphs are a true copy of the reasons for the decision herein of Member O’Loughlin.

.................[Sgnd].....................................

Legal and Administrative Assistant

Date of hearing:	28 October 2020
Applicant’s Representatives:	Mr. I Kadeh, Self-represented
Respondent’s Representative:	Mr. K Eskerie, Sparke Helmore Lawyers