Mark Mercurius and Migration Agents Registration Authority
[2012] AATA 889
•18 December 2012
[2012] AATA 889
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2070
Re
Mark Mercurius
APPLICANT
And
Migration Agents Registration Authority
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 18 December 2012 Place Sydney Mr Mercurius' application for reinstatement is refused.
............[sgd]............................................................
Senior Member J F Toohey
CATCHWORDS
PRACTICE AND PROCEDURE – application to reinstate application after dismissal for failure to appear at conferences – relevant considerations – no adequate explanation for failure to attend – application would have very limited prospect of success of reinstated – application for reinstatement refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 42A
CASES
Goldie v Minister for Immigration and Multicultural Affairs (2002) 72 ALD 652
Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133
Re Oates and Secretary, Department of Social Security (1994) 37 ALD 241
REASONS FOR DECISION
Senior Member J F Toohey
18 December 2012
This matter concerns an application by Mr Mark Mercurius for reinstatement of his application for review of a decision by the Migration Agents Registration Authority (MARA) to bar him from registration as a migration agent for five years.
BACKGROUND
Mr Mercurius lodged his application for review on 23 May 2012. By letter dated 24 May 2012, the Tribunal wrote to him at the post office box address in Winston Hills, New South Wales, which he provided in his application advising that his matter had been listed for a conference on 12 July 2012.
On 9 July 2012, the Tribunal received a letter from Mr Mercurius advising that he was suffering from coronary heart disease and other conditions, and asking that the conference be adjourned. In support of his request he submitted a medical report, medical certificate and evidence of recent admissions to hospital.
On 10 July and 16 August 2012, the Tribunal sent notices to Mr Mercurius’ post office box address advising that the conference had been rescheduled for 22 August 2012. On 20 August 2012, the Tribunal sent a reminder by SMS to the phone number he had provided in his application.
Mr Mercurius did not appear at the rescheduled conference and did not contact the Tribunal to explain his absence or to ask for the conference to be rescheduled.
On 23 August 2012, the Tribunal wrote to Mr Mercurius at his post office box address advising that the conference has been rescheduled to 20 September 2012. The Tribunal asked him to confirm that he, or someone on his behalf, would be available, and advised that he was required to notify the Tribunal in writing of any new contact details. The letter further advised that failure to make himself available for the conference could result in Mr Mercuruis’ application for review being dismissed.
Mr Mercurius did not appear at the rescheduled conference on 20 September 2012. On 25 September 2012, the Tribunal dismissed his application under s 42A(2) of the Administrative Appeals Tribunal Act1975 (the AAT Act) for failure to appear on two occasions. By letter of the same date, sent to his post office box address, the Tribunal notified Mr Mercurius of its decision.
On 3 October 2012, Mr Mercurius telephoned the Tribunal and, later that day, sent a fax confirming his call. According to the fax, he had rung earlier in the day:
to find out the outcome of any arrangement for the conference as in August I been advised that the conference been adjourned and the AAT will send a letter to confirm the date and time for the new conference [sic].
He wrote that he had not received any letter confirming the date of the rescheduled conference, and he asked that it be rescheduled. The fax indicated it was written from an address in South Australia but did not indicate whether that address should be used for future correspondence.
On 4 October 2012, the Tribunal wrote to Mr Mercurius at his post office box address advising that it was seeking the respondent’s views about reinstating his application, after which it would conduct a preliminary hearing at which he could appear in person or be represented.
MR MERCURIUS’ EVIDENCE
At a hearing by telephone on 27 November 2012, Mr Mercurius gave various explanations for his failure to attend the conferences. In particular, he said, he did not receive the Tribunal’s listing notices notifying him of the date and time of the conferences in August and September 2012.
Mr Mercurius told the Tribunal that he had to move with his family from Sydney to Adelaide earlier this year after receiving telephone threats. He said he moved to Adelaide permanently in August 2012 but has continued to return to Sydney. He confirmed that he has retained the Winston Hills post office box nominated in his application for review and where the Tribunal has been sending correspondence. He claimed, however, that he did not receive the Tribunal’s letters dated 10 July and 16 August 2012 notifying him of the conference on 22 August 2012, and nor did he receive the Tribunal’s letter dated 23 August 2012 notifying him of the rescheduled conference on 20 September 2012.
Mr Mercuruis’ evidence about his movements between New South Wales and South Australia, and why he did not receive the Tribunal’s notices, was not easy to follow. It is notable that the MARA’s 81 page decision considered 22 complaints against Mr Mercurius by clients, by the Refugee Review Tribunal in relation to applicants before it, and by the Department for Immigration and Citizenship. It referred throughout to Mr Mercurius’ repeated failures to respond to correspondence and telephone calls, including from the MARA and from his own clients.
The MARA has confirmed that it received all of the Tribunal’s letters. It is implausible, in my view, that three letters all made their way to the MARA but failed to reach Mr Mercurius’ post office box. I note that none of the letters was returned by the post office to the Tribunal, which suggests that he in fact did receive them. He did not dispute receiving the Tribunal’s first letter about the conference scheduled for 12 July 2012.
Moreover, when Mr Mercurius contacted the Tribunal on 3 October 2012, he said he was waiting to hear about the rescheduled August conference. He has not explained how, if he did not receive the listing notice for that conference, he knew a conference had been listed for that date. Either he did not receive the letter as he claims, or he did not know about the conference.
Mr Mercurius also said that the MARA had failed to send him and the Tribunal documents relevant to his application for review. It is not clear precisely what documents he is referring to, but any delay would not explain why he did not receive the Tribunal’s letters.
Mr Mercurius has been a solicitor in the past and was a registered migration agent for 13 years. He would be well aware of the importance of advising an agency such as the Tribunal of any change of address or telephone number. When asked about this at the hearing, he said he did not do so because he had kept his Winston Hills post office box. He then said he had notified the Tribunal of his change of address as soon as he moved – which he had already said was in August. There is no record of any advice from him of change of address around that time.
Mr Mercurius claimed there are special circumstances in his case that mean his application should be reinstated. He said he has been in and out of hospital “constantly” in Adelaide and Sydney, including for emergency treatment of heart condition, and that he has suffered a stroke.
I accept that Mr Mercurius has been unwell. A letter from Dr Ashraf Aboud, a general practitioner in Merrylands, New South Wales, dated 22 June 2012 shows that he has ischaemic heart disease, severe anxiety and depression, and was admitted to hospital on eight occasions in 2010 and 2011. However, nothing in Dr Aboud’s letter supports the conclusion that Mr Mercurius was unable, because of his medical conditions, to collect his mail or attend the conferences in 2012.
The Tribunal gave Mr Mercurius seven days in which to submit further supporting evidence from his doctor, and explained why Dr Aboud’s letter of 22 June 2012 and the information attached to it did not assist him in these proceedings. A letter from Dr Aboud arrived several days after the allotted deadline.. Reproduced in full, it states:
I look after Mr Mercurius who was admitted to hospital on many occasions. He is looked after and under treatment by many specialists.
At the same time that he sent Dr Aboud’s letter, Mr Mercurius wrote to the Tribunal claiming that, on 12 July 2012, he advised the Tribunal by fax of his postal address in South Australia. There is no record on the Tribunal’s file of that fax. The first indication of a change of address was in a fax received by the Tribunal on 3 October 2012 in which Mr Mercurius listed an address in South Australia. On 4 October 2012, the Tribunal wrote to him at his Winston Hills post office box address asking whether he wished to be contacted in future at the address in South Australian. On the same day, Mr Mercurius telephoned the Tribunal about his application, and his change of address was confirmed.
The fact that Mr Mercurius also uses an address in South Australia does not change the fact that, by his own evidence, he has continued to use his Winston Hills post office box and collects mail from that address. Nothing about his change of address would explain why he did not receive the Tribunal’s listing notices.
Taking all of these matters into account, I am satisfied that Mr Mercurius received the Tribunal’s listing notices and failed to respond to them. I am not satisfied that he was unable to respond for medical reasons.
SHOULD MR MERCURIUS’ APPLICATION BE REINSTATED?
By s 42A(9) of the AAT Act, the Tribunal may, if it considers it appropriate to do so, reinstate an application that has been dismissed under s 42A(2) for failure by the applicant to appear. The Act is silent as to the circumstances in which it might be appropriate to reinstate an application under s 42A(9).
In some cases, the Tribunal has applied the principles generally relevant in applications for an extension of time in which to lodge and application: see, for example, Re Manoli and Secretary, Department of Social Security (1994) 35 ALD 133. Those principles include whether there is an acceptable explanation for the delay; the likely prospects of success if an extension of time is granted; fairness to other applicants in a similar position; and whether the respondent would be prejudiced by the extension being granted. In others, a prima facie case for reinstatement, and fairness to the other party, have been sufficient: see, for example, Re Oates and Secretary, Department of Social Security (1994) 37 ALD 241.
I am not satisfied that Mr Mercurius has provided an adequate explanation for his failure to attend either conference. His claimed illness and hospitalisation does not explain why he did not receive letters. For the reasons set out above, I am satisfied that he did.
The MARA decision goes into a great deal of detail of the matters which led to the reviewable decision. It contains a great deal of material concerning all 22 complainants. The nature and extent of the complaints astrongly suggest that Mr Mercurius’ application would have very limited prospects of success if reinstated.
Taking all of these matters into account, I am not satisfied that it is appropriate to reinstate Mr Mercurius’ application.
For completeness, I would add that an application dismissed under s 42A(2) of the Act may also be reinstated under s 42A(10) if it appears to the Tribunal that it was dismissed in error.
The meaning of dismissed in error was considered in Goldie v Minister for Immigration and Multicultural Affairs (2002) 72 ALD 652, in which the Full Federal Court decided that dismissed in error comprehended any error in the application of s 42A that led to the dismissal. Nothing in the material before me suggests that Mr Mercurius’ application was dismissed in error, meaning that s 42A(10) has no application in his case.
Mr Mercurius’ application for reinstatement is refused.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. ............[sgd]............................................................
Associate
Dated 18 December 2012
Date(s) of hearing 27 November 2012 Date final submissions received 7 December 2012 Applicant In person Solicitors for the Respondent Clayton Utz
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