Lee and Migration Agents Registration Authority
[2019] AATA 4547
•7 November 2019
Lee and Migration Agents Registration Authority [2019] AATA 4547 (7 November 2019)
Division:GENERAL DIVISION
File Number(s): 2019/5170
Re:Christina Lee
APPLICANT
Migration Agents Registration Authority And
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date:7 November 2019
Place:Sydney
The Tribunal refuses the application under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) for an extension of time to lodge an application for review of a decision.
.......................[sgd].................................................
Mr S Evans, Member
CATCHWORDS
PRACTICE AND PROCEDURE – second application for an extension of time to review – applicant’s previous application for an extension refused – cancellation of migration agent registration – whether principles of functus officio, estoppel or res judicata limit Tribunal’s jurisdiction – s 42B(1)(c) – abuse of process – whether there is an acceptable explanation for the delay – whether applicant rested rights – prejudice to the respondent or general public – merits of the substantive application – second application for extension of time refused
LEGISLATION
Administrative Appeals Tribunal Act 1975(Cth) ss 29(7), 42B(1)(c)
Migration Act 1958 (Cth) ss 292, 309
Migration Agents Regulations 1998 (Cth) – Sch 2, Code of Conduct for Registered Migration Agents
CASES
Filsell v Comcare [2009] AATA 90
Benjamin and Commissioner of Taxation [2017] AATA 39
Conti and Secretary, Department of Family and Community Services [2005] AATA 199
Hunter Valley Developments Pty Limited v Cohen, Minister for Home Affairs and Environment (1984) 58 ALR 305REASONS FOR DECISION
Mr S Evans, Member
7 November 2019
Introduction
Christina Lee (“the applicant”) is seeking an extension of time to lodge a review of a decision made by the Migration Agents Registration Authority (“MARA”) on 19 May 2016 to cancel her registration as a migration agent for five years.
A previous application for an extension of time in relation to the same decision was filed on 19 June 2019 and that application was refused on 26 July 2019. The applicant filed this second application for extension of time on 22 August 2019.
The application was heard on 27 September 2019. The applicant was self-represented and appeared by telephone.
Background
Ms Lee was first registered as migration agent on 1 September 2004. Between March 2014 and January 2016 MARA received 11 complaints about the applicant relating to her conduct as a registered migration agent. In February 2016 two officers of the respondent met with the applicant and sought responses from her to these complaints. On 18 April 2016 the respondent issued notices under s 309 of the Migration Act 1958 (Cth) (“the Migration Act”) inviting the applicant to provide a written response no later than 16 May 2016.
MARA’s findings against Ms Lee were of a serious nature and included that she had failed to advise clients when the Department of Immigration and Border Protection (“the Department”) had requested further information, failed to advise her clients of their visa outcomes and failed to lodge applications within relevant timeframes. The applicant also failed to comply with trust accounting requirements. Further, the applicant provided false records concerning a skills assessment completed by the relevant assessment body to the Department in three applications. The applicant also encouraged one of her clients to be recruited into a position in a company owned by the agent’s family members which was in liquidation. The applicant then relied on the purported employment of the client in his application to the Department. The respondent found that this to be a fabrication of evidence.
Consequently MARA determined that the applicant had breached the Code of Conduct for Registered Migrations Agents (“the Code of Conduct”), and that the applicant was not a person of integrity or otherwise not a fit and proper person to give immigration assistance.
Pointedly all the complainants, which totalled 13 by the time the applicant’s registration was cancelled, were unsuccessful in their visa applications lodged by the applicant and seven became unlawful non-citizens due to the delays of the applicant. A further two complainants were subsequently removed from Australia.
In considering whether there were any mitigating factors relating to the applicant’s case the respondent noted that there were indications the applicant was unwell, but that she had not provided any substantive evidence of her illness or medical diagnosis. The respondent therefore found there were no relevant mitigating circumstances.
The respondent had not received a response from the applicant to the s 309 notices when it proceeded to cancel her registration on 19 May 2016. Pursuant to s 292 of the Migration Act, the applicant must not be registered within five years of the cancellation.
A second request for an extension of time
The Administrative Appeals Tribunal Act 1975(Cth) (“the Act”) provides under s 29(7) that:
The Tribunal may, upon application in writing by a person, extend the time for making by that person of an application to the Tribunal for a review of a decision … if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
As the applicant had already sought an extension of time to review the decision which was the subject of this hearing, and the previous application had been heard in July 2019 and refused, the Tribunal first addressed the issue of whether it was appropriate for Ms Lee to apply a second time for an extension of time.
The applicant had submitted new documents to the Tribunal the day before the hearing in addition to what she had previously provided the Tribunal for her previous application. Those documents included a letter from the applicant to the Tribunal and MARA dated 26 September 2019, a letter from consultant psychiatrist Dr Ian Harrison dated 28 March 2014, a certificate confirming that the applicant had completed 200 hours of yoga teacher training at VYASA Yoga Singapore in March 2017 and a certificate confirming that she had trekked the entire Camino de Santiago trail in Spain in late 2017.
Ms Lee claimed that during the previous hearing to determine her application for an extension of time she was very nervous as she had not been interacting with society for several years. She told the Tribunal that that the hearing was one of the first interactions that she had had aside from visits to her doctor. As a result, she felt that she did not present her case in a way that she would normally do so and was unable to adequately answer the questions from the Member. She requested a second hearing on the grounds that she was now more able to make her case with confidence. In considering this argument I am mindful that the applicant is self-represented.
I note the respondent’s contention that the Tribunal has no jurisdiction to review the Tribunal’s previous decision of 26 July 2019 regarding the same matter. However, the Tribunal proceeded on the basis that this is a second application de novo of the respondent’s decision of 19 May 2016, not a review of the first application for an extension of time. There is no jurisdictional bar to the consideration of a second application for an extension of time to review the respondent’s decision.
I am sympathetic to the respondent’s contention that if this second application for an extension of time sought only to revisit the same decision, and in similar terms to the initial application, it would be appropriate for the matter to be dismissed as an abuse of process under s 42B(1)(c) of the Act.
In Filsell v Comcare [2009] AATA 90, Deputy President Jarvis noted that the “power of the tribunal to dismiss proceedings under s 42B is a power that should be used cautiously”. In considering this matter I refer also to the conclusions of Deputy President Forgie in Benjamin and Commissioner of Taxation [2017] AATA 39. Deputy President Forgie’s conclusions in this matter address the issue of a second application for an extension of time in relation to the same decision raising issues regarding the Tribunal being functus officio to consider the second application, issues of estoppel and res judicata. She wrote:
1) Issues regarding the Tribunal's jurisdiction and, in particular, whether it is functus officio are determined by reference to the relevant enactment conferring the right to apply to the Tribunal of review of a decision and by reference to an analysis of the particular decision of which review is sought.
a) A decision may be in the same terms as a decision that has been made and reviewed at an earlier time but be an entirely separate decision made on a separate claim or application.
b) The same approach applies to an application for an extension of time within which to lodge an application for review of a decision.
2) The Tribunal does not have power under s 42B of the AAT Act to dismiss an application for an extension of time for review of a decision.
a) The power under s 42B is limited to the dismissal of applications for review.
3) Where the Tribunal has jurisdiction but the decision is in the same terms as a decision previously reviewed by it or an application for extension of time has previously been considered, it may consider whether it should adopt the decision previously made.
Having considered if the Tribunal should dismiss this second application as an abuse of process under s 42B(1)(c), I have determined that in this instance it is not appropriate to do so. I have also considered adopting the previously made decision, but decided against that in light of the applicant’s circumstances and the presentation of additional evidence to the Tribunal.
Consideration
The Act provides the Tribunal with a broad discretionary power to grant an extension of time if the Tribunal is satisfied that it is reasonable to do so. The Tribunal’s approach to applications for extension of time has been guided by the principles outlined in HunterValley Developments Pty Limited v Cohen, Minister for Home Affairs and Environment (1984) 58 ALR 305 (“Hunter Valley”). Wilcox J set out six principles which guide the use of 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 the respondent caused by the delay;
·that the mere absence of prejudice to other parties is not enough to justify the grant of an extension, and that wider prejudice to the general public is also a relevant factor;
·the merits of the substantive application; and
·considerations of fairness between the applicant and other persons in a similar position.
The explanation for the delay
The applicant has provided a medical certificate to the Tribunal from Dr Robert Lopis who writes that he has been treating her since 2010. The certificate dated 25 July 2019, states the applicant has “medical issues” including PTSD, depression and generalised anxiety. Dr Lopis writes that the conditions manifested over a long time and having seen the applicant he was now confident that she was ready to “redress and resolve her professional affairs”. The applicant has also submitted a letter from consultant psychiatrist Dr Hugh Morgan who has been treating the applicant since March 2014. He writes that the applicant was diagnosed with ADHD, severe anxiety, depression and stress and notes that “Major Depressive Disorder (MDD) is a serious mental disorder which is associated with significant impairment in quality of life” and that can lead to “sedentary behaviour where carrying out simple tasks is overwhelming”.
Dr Morgan writes that from “From March 2016 until recently, [the applicant] was housebound and unable to function leading her to leave Sydney to stay with her family while she attempted to resolve her issues”. The issue of being housebound for a long period was also explored by the applicant in her submission to the Tribunal. She writes:
In the past 3 years and odd months due to my condition I have lead [sic] an ascetic type of lifestyle where I spent my days mostly bedridden or housebound. I have not generated any income during this time and have been under the care of my family at all times. I had not received any financial assistance from the government and could not see any doctors or attend to even the most basic matters including retrieving a renewed Medicare card. To facilitate my well-being and return to health I completed a Yoga Teacher Training Course in Singapore, and travelled the entire Camino de Santiago trial by foot which is an 800km pilgrimage in Spain…
I accept without reservation the potential of a major depressive condition to render the sufferer unable to attend to responsibilities and to become bedridden, housebound and isolated as claimed by the applicant. Yoga teacher training in Singapore and trekking in Spain appear incongruous with these symptoms. Participation also raises the question of why these activities were not delayed in order to review the decision much earlier. I accept, however, that depression is a baffling condition and recovery may require sustained participation in the types of activities on which the applicant has embarked. Consequently, whilst acknowledging that her travel and activity during this time is incongruous with her claim to be housebound and bedridden, I place minimal weight on it.
Whether the applicant has rested on her rights
In Conti and Secretary, Department of Family and Community Services [2005] AATA 199 Senior Member WJF Purcell allowed an extension of time for an applicant who had lodged an application some seven years after the receipt of a decision. The reasons for the delay were essentially related to the applicant’s mental health. There are similarities in this matter. Whilst the applicant has rested on her rights in relation to the initial MARA decision to cancel her registration, consistent with Conti, I do not find this should preclude her from an extension of time in this matter.
Prejudice to the respondent or general public
The respondent’s decision to cancel the applicant’s registration rests upon the complaints and evidence given by 13 people and relates to events dating back as far as January 2013. The respondent states that at least two of these people had been removed from Australia as unlawful non-citizens at the time of the decision. The respondent contends that even those still present in the country or traceable may be unable to give evidence or unable to remember matters in sufficient detail. The respondent also notes that the applicant failed at the time to provide copies of her client’s files to the respondent meaning that the documentary record is incomplete. Prejudice to the respondent is a significant factor in this application.
Furthermore, the nature of this matter is such that members of the public, in particular the applicant’s former clients, were impacted by her conduct. The purpose of the regulation of migration agents is to protect the public. For those with an interest in this case there is an expectation that this matter is settled. Migration agent disciplinary decisions are publicly accessible via the MARA website and consequently there is a public notice that the applicant was deregistered for a period.
The merits of the substantive application
I have already detailed the key findings against the applicant. The applicant did not challenge the findings of fact during the hearing and conceded that she “shouldn’t have been working” during that time. She indicated that her main concern was the severity of the sanction imposed by MARA. She said:
…I’ve read a lot of other cases of migration agents with actually serious breaches and perhaps intentional breaches, and perhaps intentionally bad conduct, and because they engaged in the process they received a letter, like a punishment or something, not a five year cancellation, and instead a two or three year suspension at most. And I feel that if I had some frame of mind to have engaged in the process at the time and say, clearly I am not well and I need to take a break, or they say to me, and I say, “look I am very sorry I should have looked after all my clients”… I do not think it would have been a cancellation and for that reason I want to have the application with the decision reviewed.
One difficulty for the applicant is that her mental health conditions do explain some aspects of her conduct, such as preventing her from engaging more productively with MARA. Her condition does not, however, account entirely for some of her most serious breaches of the Code of Conduct, including fraudulent conduct, which required effort and engagement with both her clients and the Department.
Should the Tribunal grant an extension of time
The Tribunal has considered all the material before it including the submissions from the applicant and respondent.
I accept that the applicant suffered from a health condition that may have prevented her from exercising her right to appeal the decision within the required time. It is apparent that the applicant has now recovered from her illness to the extent that she wishes now to begin rebuilding her life. She informed the Tribunal that she has worked as a migration agent since 2004 when she was 23 years old. It appears to be the only career she knows. She wishes to get her license back and rebuild her business.
In looking at the various competing factors, the Tribunal gives considerable weight to the prejudice to the general public in this matter. The harm that the applicant’s conduct caused to her clients, some of whom were removed from Australia, the sums of money involved and the gravity and number of breaches are significant. In taking the action it did, MARA has performed its central function of protecting the public. The understanding that the matter was settled in 2016 is also an important consideration.
I also place considerable weight on the applicant’s limited prospects of success should she be granted an extension of time. There was scant evidence presented to the Tribunal which indicated any grounds for a successful appeal. Indeed, the applicant herself indicated that she was not challenging the central findings of wrongdoing.
In the absence of a substantive case other factors take precedence in deciding this matter. Specifically, the considerable prejudice to the respondent, the public interest and the determinative period of time that has passed since the applicant was informed of the decision. For these reasons the Tribunal is satisfied that it should not exercise its discretion to extend the time for the applicant to make her application for review of the decision of 19 May 2016.
Decision
For the reasons outlined above, the Tribunal refuses the application under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) for an extension of time to lodge an application for review of a decision of the Migration Agents Registration Authority to cancel Ms Lee’s registration as a migration agent.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member
...........................[sgd].............................................
Associate
Dated: 7 November 2019
Date(s) of hearing: 27 September 2019 Applicant: In person Solicitors for the Respondent: Australian Government Solicitor
0
4
0