Maria De Los Santos-Aguilar and Migration Agents Registration Authority
[2015] AATA 157
•19 March 2015
[2015] AATA 157
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0988
Re
Maria De Los Santos-Aguilar
APPLICANT
And
Migration Agents Registration Authority
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin QC, Deputy President Date 19 March 2015 Place Sydney Pursuant to subsection 42A(10) the Tribunal reinstates this application.
......................[sgd]..................................................
The Hon. Brian Tamberlin QC, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – reinstatement – whether application for review was dismissed in error – whether discretion to reinstate application should be exercised – application reinstated
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 2A, 42A
CASES
Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383
Guse v Comcare (1997) 49 ALD 288
REASONS FOR DECISION
The Hon. Brian Tamberlin QC, Deputy President
19 March 2015
The applicant seeks reinstatement of an application for review of a decision by the Migration Agents Registration Authority (“MARA”) to suspend her registration as a migration agent.
The application for review was dismissed by this Tribunal under s 42A(5) of the Administrative Appeals Tribunal Act 1975 (“the Act”) because of the applicant’s failure within a reasonable time to proceed with the application and to comply with a direction of the Tribunal made under s 33(2) of the Act.
There are two questions:
(a)whether the application for review was dismissed in error; and
(b)if so, whether the discretion to reinstate should be exercised in the applicant’s favour.
The respondent’s primary contention is that the application for review was not dismissed “in error” and therefore the precondition to the exercise of the relevant power in s 42A(10) of the Act to reinstate the application for review does not arise. In addition the respondent contends that even if the power to reinstate is available in the circumstances of this case it is not appropriate for the application to be reinstated.
The relevant provisions of the Act are as follows:
42A Discontinuance, dismissal, reinstatement etc. of application
…
(5)If an applicant for a review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
…
(10)If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
HISTORY
The registration of the applicant was suspended on 28 February 2013 and an application for review of this decision was received by this Tribunal on 7 March 2013.
On 30 April 2013 at a conference convened by the Tribunal directions were made to prepare the matter for hearing. The applicant was directed to give the Tribunal a Statement of Facts, Issues and Contentions on or before 31 May 2013 and the respondent was required give the Tribunal the evidence on which it intended to rely and a Statement of Facts, Issues and Contentions by 28 June 2013.
The matter was listed for hearing on 30 September 2013 and a notice of listing given to the parties on 5 July 2013. On 17 September 2013 the applicant’s legal representative requested the matter be relisted so an application could be made for an order vacating the hearing on 30 September on the basis she could not attend, supported by a medical certificate stating she would be unfit to attend “until cleared by her Specialists”.
On 23 September 2013 the respondent’s representative wrote to the Tribunal stating that if the Tribunal decided to vacate the hearing, they requested that the applicant be required to provide an indication as to when the matter could again be listed for hearing in order to avoid the hearing being delayed indefinitely.
On 26 September 2013 the Tribunal sent an email to the applicant’s legal representative referring to “the open-ended nature of the medical certificate filed with the vacation request” and seeking further information. The response indicated the applicant had an appointment with a specialist on 5 October 2013.
A direction was made by the Tribunal vacating the hearing listed on 30 September 2013 and required the applicant to notify the Tribunal of the date from which she would be available for hearing by 7 October 2013. The applicant was required, if she was not available before 25 October 2013, to provide medical evidence in support of the delay.
No notification was given by the applicant or her representative and no medical evidence was provided in support of the delay.
A directions hearing with respect to the applicant’s failure to comply was listed for 12 December 2013. The listing notice sent to the applicant’s representative stated:
The directions hearing will be held unless you comply with the requirement [to provide the applicant’s availability] by 12 noon on the day before the directions hearing. If you comply by that time, you do not need to appear unless the Tribunal advises you that the directions hearing will still take place.
Please note that the Tribunal may dismiss an application under section 42A(5) of the Administrative Appeals Tribunal Act 1975 if an applicant fails within a reasonable time to comply with a direction made by the Tribunal. You may be asked to explain at the directions hearing why the application should not be dismissed.
Please also note that, if an applicant or an applicant’s representative does not appear at a directions hearing, the Tribunal may dismiss the application under section 42A(2) of the Administrative Appeals Tribunal Act 1975.
On 12 December 2013 there was no appearance by the applicant or her representative. At the directions hearing the Tribunal exercised its power under s 42A(5) to dismiss the application for review.
An application for reinstatement was made on 21 January 2014 and refused by another member of the Tribunal on 6 March 2014 on the basis there was insufficient evidence before the Tribunal to determine whether s 42A(10) was enlivened and the applicant had failed to address the discretionary considerations for reinstatement.
The current application for reinstatement was made on 18 August 2014.
ISSUE ONE – WAS THE APPLICATION FOR REVIEW DISMISSED IN ERROR ON 12 DECEMBER 2013?
The applicant has furnished two statutory declarations dated 13 August 2014 and 20 October 2014 in support of her reinstatement application.
In her statutory declaration dated 20 October 2014 the applicant states that she was represented by a solicitor in the employment of a firm of solicitors until March 2014. She states that she believed that her former solicitor has incompetently handled her application by either:
(a)submitting reasons why she could not attend the hearing on 30 September 2013 and in giving evidence of her medical conditions after the required deadline;
(b)mixing up dates for the filing of a hearing certificate and the non-compliance directions hearing;
(c)not appearing at the directions hearing notwithstanding his assurance that she did not need to attend the hearing.
In her earlier statutory declaration dated 13 August 2014 the applicant states that she could not provide a hearing date until she had seen her cardiologist and could not accept a date for hearing until she underwent stress tests which could not be done until November 2013.
She was advised of the non-compliance directions hearing set down for 12 December 2013, but was not aware she had to attend the hearing and she was not advised that her lawyer had to attend either. She further says that she has never received nor had any notice of a letter from the Tribunal which stated that she may be asked to explain at the directions hearing why the application should not be dismissed for failure to comply with the Tribunal’s direction and warned that if she or her representative did not appear at the directions hearing the application could be dismissed.
The applicant says that her solicitor requested that she sign a hearing certificate and provide this to him before 12 pm on 12 December 2013. She said that she duly provided this by 10 am NSW time as daylight saving was in operation at that time. The arrangement, she says, was that she was to sign a hearing certificate and the solicitor was to insert the appropriate dates for the hearing together with the date of the hearing certificate and then provide the hearing certificate at the directions hearing. She annexes to her August declaration copies of email correspondence with her solicitor.
She states that the principal of the firm employing her solicitor, after complaint by her provided a substantial refund of professional fees. This is an indication that some error or default occurred by her representative. She states that if the solicitor had advised her at the correct time that she was to forward the signed hearing certificate to him, he could have lodged it at the appropriate time and the matter could have been set down for hearing in February and proceeded as intended. She expresses her “belief” that her solicitor thought that the non-compliance directions hearing was on 13 December 2013 and the hearing certificate had to be provided by 12 pm on 12 December 2013. She also states a belief that if the matter were able to proceed to a proper review she would have a reasonable prospect of success.
The evidence in the statutory declaration of October 2014 together with the declaration of 13 August 2014 were not, of course, before the previous member when she rejected the application for reinstatement.
In Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383 the Court held that an “error” for the purposes of s 42A(10) need not arise from fault on the part of the Tribunal, or a member or employee of the Tribunal: see [29] and [77]. The fault must be one which induced or led to the error.
In my opinion, taking into account the applicant’s evidence there has been an error within the meaning of s 42A(10) of the Act. The Shorter Oxford English Dictionary defines “error” as including the condition of erring in opinion; the holding of mistaken beliefs; a mistaken belief; or false beliefs collectively. It also includes “something incorrectly done through ignorance or inadvertence”; or a “mistake”.
On the evidence presently available I consider that there was a significant mistake, inadvertence or error by the applicant’s representative in not obtaining proper instructions or not properly informing the applicant as to what needed to be done and the consequences of failure to comply. The expression “error” is sufficiently wide to cover the present circumstances. I am not persuaded that there has been any error on the part of the Tribunal but that is not the question. The issue is whether the application has been dismissed in error. In the present case the decision of the senior member dismissing the application in December 2013 can be said to have arisen as a result of the failure, inadvertence or mistake of the solicitor or a miscarriage in the performance of the duty of the solicitor.
I therefore decide, having regard to the above considerations, that in this case the application has been dismissed in “error” so that the discretion to reinstate arises under s 42A(10).
ISSUE TWO - WHETHER THE DISCRETION TO REINSTATE SHOULD BE EXERCISED IN THE APPLICANT’S FAVOUR
In Guse v Comcare (1997) 49 ALD 288 at 291 Burchett J in referring to the discretionary power in s 42A(5)(b) said that it was plainly a valuable discretionary power but it does involve denying an applicant a hearing on the merits of his application and that should be done very sparingly and only as a decision of last resort.
The proper exercise of the discretion in the present case requires a weighing of a need for effective, efficient and prompt management of the review process, on the one hand, and the need to ensure that the correct or preferable decision is made having due regard to the objective of the Tribunal which s 2A of the Act states is to provide a mechanism of review that is fair, just, economical, informal and quick.
I have given consideration to the unsatisfactory history of this matter having regard to the vacation of hearing date and failure to comply with a Tribunal direction but I consider that these deficiencies were not attributable to the applicant who on the evidence had a history of significant illness during the period. Subsequent to the application for review it has become apparent these failures arose from inadvertence and misunderstanding on the part of the applicant’s representative and were not the fault of the applicant who, on her evidence, which is uncontradicted, took steps to comply with requests from her solicitor and clearly relied on him to conduct the review process in a proper and effective manner.
If the application for review is not reinstated then the consequence is that the applicant is prevented from ventilating the merits of her case and is deprived of a hearing and the chance to lead evidence and make submissions. The suspension of registration will arguably impose serious hardship on the applicant and prevent her exercising her occupation and will no doubt reflect adversely on her reputation.
At this stage of the proceeding it is not possible to express any properly informed view as to whether the application for review will or will not succeed. There is nothing before me which would substantiate a conclusion that there is no reasonable case which can be presented by the applicant or to indicate that her case on review is without any arguable merit.
CONCLUSION
Having regard to the forgoing, I reinstate the application and I refer the matter to a Conference Registrar to give appropriate directions as to the further conduct of this review.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President .................[sgd].................................................
Associate
Dated 19 March 2015
Date of hearing 15 December 2014 Solicitors for the Applicant Mr A Carroll, Carrolls Law Practice Solicitors for the Respondent Mr W Sharpe, Sparke Helmore
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