Khan v Migration Agent Registration Authority

[2005] FCA 887

FEDERAL COURT OF AUSTRALIA

Khan v Migration Agent Registration Authority [2005] FCA 887

ADMINISTRATIVE LAW – no point of law – application dismissed

SHER AFZAL KHAN v MIGRATION AGENT REGISTRATION AUTHORITY

N 191 OF 2005

HILL J
23 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 191 OF 2005

BETWEEN:	SHER AFZAL KHAN APPLICANT
AND:	MIGRATION AGENT REGISTRATION AUTHORITY RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	23 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The applicant’s adjournment application be dismissed.
2. The application for review of the decision of the respondent be dismissed.
3. The applicant pay the respondents’ costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 191 OF 2005

BETWEEN:	SHER AFZAL KHAN APPLICANT
AND:	MIGRATION AGENT REGISTRATION AUTHORITY RESPONDENT

JUDGE:	HILL J
DATE:	23 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HILL J

1. On 7 January 2005, the Administrative Appeals Tribunal (“the Tribunal”) published its reasons for decision on an application made by the applicant, Mr Khan, to the Tribunal to review a decision of the Migration Agent Registration Authority (“the Authority”) given on 2 December 2003.  The Authority had decided to cancel Mr Khan's registration as a migration agent.

2. In affirming the Authority's decision, the Tribunal took into account a number of matters which are set out in the Tribunal's reasons.  These included his arriving in Australia in September 1998 and having answered "No" to a question on an incoming passenger card as to whether he had been the subject of any criminal proceedings.  In fact, he was convicted in New Zealand in 1997 of fraud and sentenced to a custodial sentence of between 12 and 18 months gaol.

3. The Tribunal relied also upon what it regarded as a false answer to a question in Mr Khan’s application for registration as a migration agent, namely: "Have you ever been declared bankrupt?".  It seemed that Mr Khan had become a bankrupt in New Zealand.  It seems that he understood this and perhaps the earlier question as relating only to convictions or bankruptcy, as the case may be, in Australia.

4. There was another matter to which the Tribunal made reference, namely that Mr Khan’s Australian citizenship had been cancelled when he took out New Zealand citizenship, although Mr Khan claimed not to be aware of this and thus had given a false answer in respect of that matter as well.  The Tribunal was of the view that Mr Khan was not a fit and proper person to be a migration agent.  It found that Mr Khan had exhibited a pattern of behaviour which demonstrated a consistent lack of truthfulness and that he was not a person of integrity.  The Tribunal thus affirmed the Authority's decision.

5. Mr Khan then appealed to this Court.  That appeal, in accordance with the Administrative Appeals Tribunal Act1975 (Cth), is an appeal on, that is to say limited to, a question of law. The appeal was filed in this Court on 10 February 2005. Most of the matters set out in the grounds of appeal relate to matters of fact, although at least one of the grounds would seem to involve an issue of law.

6. The matter was listed for directions on 11 March 2005 before me.  Mr Khan did not appear, nor did he send, at that time, any explanation.  I stood the matter over until 23 March 2005 and advised Mr Khan of the new date.  I indicated that the application to the Court would be dismissed should he fail to appear.

7. The matter was listed for directions at 9.30am.  Mr Khan did not appear when the matter was originally called but did appear some time later.  I re-listed the matter for 2.15pm and made orders for the hearing of the matter.  Those orders required Mr Khan to prepare an informal appeal book and serve a copy of that on the solicitors for the respondent as well as filing two copies with the Court.  I set the matter down for hearing on 14 June 2005.  In fact, no documents were served on the respondent in accordance with my orders until 23 May 2005.  There is some suggestion that the documents were not in order.  That is not a matter which I have to take into account.  From what Mr Khan said at the time it seems he was in New Zealand when the matter had first been listed for hearing and that explained his reasons for not attending.  It hardly explained his reasons for not indicating that he would not attend.

8. On or around 10 June 2005, Mr Khan wrote to the Registrar seeking an adjournment on the grounds, among others, that he was suffering, he said, from severe depression.  He referred also to his brother dying in New Zealand and his brother-in-law (104 years old) being also in a serious condition.  He enclosed a copy of a letter from a Dr Adams of Parramatta dated 8 June 2005 in which Dr Adams wrote that Mr Khan was depressed and "hence" was unable to travel to a court hearing on 14 June 2005.  Dr Adams said that he proposed to refer Mr Khan to a psychiatrist for further treatment.  He requested that Mr Khan be excused from attending court for a period of two months.

9. When Mr Khan did not appear on 14 June 2005, I spoke to the doctor in Court by telephone-link.  He said that there must have been some misunderstanding as he understood that Mr Khan was to attend court in New Zealand and give evidence.  He said there was no problem at all in Mr Khan travelling to court in Sydney or proceeding with his appeal on a question of law.  A transcription of the discussion with Dr Adams reads as follows:

   “HIS HONOUR:   Please don't feel that you have any compulsion to answer. My concern really  is only this:  I notice in your report that you talk about Mr Khan as being unable to travel to the court hearing today, and I was a little perplexed about the travel part.  Am I to take it that subject to travel, there is nothing - no real impediment to his actually being in court? There's no witness question.  It's just he's saying there is an error of law in a Tribunal decision.  There is no evidence; it's just a matter of his arguing the case. I guess what I'm interested in is:  is your report saying that he couldn't be in court to argue a case - in Australia, of course, not in New Zealand – for two months?
   DR ADAMS:  No.  Look, that was a misunderstanding, I think, because I knew that there was an assault case in relation to his wife.  My understanding was that it was travel to New Zealand.  So certainly there was no worry about travelling to a court in the city, you know, in the foreseeable future.
   HIS HONOUR:   Sure.  And I take it from that that in your view, there would be no impediment upon his arguing a case - if he is able to; obviously, he can get lawyers, but he hasn't done that - - -
   DR ADAMS:  Right.
   HIS HONOUR:   - - - some time in the near future.
   DR ADAMS:  No impediment at all, I would have thought, no.
   HIS HONOUR:   Thank you, Doctor.” 

10. I stood the hearing over until today and directed that Mr Khan be advised that if he did not attend, his application to the Court would be struck out.  When the matter was called this morning, Mr Khan again asked for an adjournment.  He said that he was depressed and would be unable to argue the appeal.  He said, as I understood it, that he had been unable to see Dr Adams since the last occasion he had seen him and that Dr Adams was in some way confused about the situation.  He said also that he had a serious cough which would prevent him from arguing his appeal, not that there was any actual physical demonstration of that fact. 

11. The second ground on which Mr Khan sought an adjournment was that he was engaged in proceedings in New Zealand, which he said, if successful, would put an end to the present appeal.  He said that these proceedings were proceedings taken by the Accident Compensation Commission in New Zealand against his wife and himself for fraud.  Success in these proceedings would then lead to having his conviction for fraud overturned.

12. It is not clear whether these are the same proceedings as are referred to in paragraph 23 of the decision of the Migration Review Tribunal.  That paragraph refers to there being a judgment in favour of Mrs Khan in relation to a compensation action she had commenced.  Apparently, Mr Khan told the Tribunal that the judgment in Mrs Khan's case would be relied upon by him in an application to have his convictions overturned.  The Tribunal did not regard that matter as of significance to it.

13. Whether it is the same proceeding or there are new proceedings does not matter here.  Mr Khan's appeal is an appeal in which to succeed, he must demonstrate an error of law on the part of the Tribunal and on the facts before it.  No doubt, if he had the conviction for fraud ultimately overturned in New Zealand, it would be open to him to apply to the respondent Authority for re-registration.  However, the proceedings have no relevance at all to the appeal.

14. Having regard to the fact that there was no medical evidence before me other than the medical evidence of Dr Adams, which was to the effect that Mr Khan was perfectly able to argue his case, I refused the adjournment.  Mr Khan then indicated that he did not wish to proceed with his appeal.  He said he had no confidence in the Court.

15. In the circumstances, I would dismiss the application and order Mr Khan to pay the respondent's costs of it.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             29 June 2005

Counsel for the Applicant:	The applicant appeared for himself.
For the Respondent:	Mr A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 June 2005
Date of Judgment:	23 June 2005