Lee and Migration Agents Registration Authority - [2019] AATA 4547

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 305
REASONS 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…

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.

Continue reading Lee and Migration Agents Registration Authority

Details

AGLC: Lee and Migration Agents Registration Authority [2019] AATA 4547
Case: [2019] AATA 4547
Decision Date: 7 November 2019

CaseChat Overview and Summary

This matter concerned an application by Ms Lee for an extension of time to seek review of a decision by the Migration Agents Registration Authority (MARA) to cancel her registration as a migration agent. MARA had cancelled Ms Lee's registration due to serious findings of misconduct, including failing to advise clients of visa outcomes, failing to lodge applications within timeframes, non-compliance with trust accounting requirements, and fabricating evidence. The Tribunal was required to determine whether to grant a second application for an extension of time to lodge an application for review, following a previous refusal.

The central legal issue before the Tribunal was whether it was reasonable in all the circumstances to grant an extension of time under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth). This required the Tribunal to consider factors such as an acceptable explanation for the delay, whether the applicant had rested on her rights, prejudice to the respondent or the public, and the merits of the substantive application. The Tribunal also implicitly considered whether principles such as *functus officio*, estoppel, or *res judicata* might limit its jurisdiction, and whether the application constituted an abuse of process, although these were not the primary focus of the decision.

The Tribunal reasoned that in the absence of a substantive case, other factors took precedence. It found that considerable prejudice to the respondent, the public interest, and the significant period of time that had elapsed since Ms Lee was informed of the decision weighed against granting an extension. The Tribunal noted that while there were indications Ms Lee may have been unwell, she had not provided substantive evidence of illness or a medical diagnosis, and therefore no relevant mitigating circumstances were established. Consequently, the Tribunal was satisfied that it should not exercise its discretion to extend the time for Ms Lee to make her application for review.

The Tribunal refused the application for an extension of time to lodge an application for review of MARA's decision to cancel Ms Lee's registration as a migration agent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.