MICHAEL SEYMOUR and MIGRATION AGENTS REGISTRATION AUTHORITY
[2012] AATA 86
•15 February 2012
[2012] AATA 86
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4918
Re
MICHAEL SEYMOUR
APPLICANT
And
MIGRATION AGENTS REGISTRATION AUTHORITY
RESPONDENT
DECISION
Tribunal M D Allen, Senior Member
Date 15 February 2012 Place Sydney The Tribunal directs:
(i)The time in which the Respondent must lodge with the Tribunal the documents required by subsection 37(1) of the Administrative Appeals Tribunal Act 1975 is extended to 21 December 2011.
(ii)The Applicant is to lodge with the Tribunal and serve on the Respondent a Statement of Facts, Issues and Contentions together with all evidence upon which he will seek to rely at the hearing of this matter by close of business on 9 March 2012.
(iii)The Respondent is to lodge with the Tribunal and serve on the Applicant a Statement of Facts, Issues and Contentions together with all evidence upon which it will seek to rely by close of business on 30 March 2012.
(iv)Both parties are to file hearing certificates on or before 30 March 2012.
(v)Liberty to apply.
........................................................................
M D Allen, Senior Member
CATCHWORDS
Practice and Procedure - Section 37 documents served out of time. Application to declare documents inadmissible. Purpose of s 37 documents and powers of Tribunal to seek evidence.
LEGISLATION
Administrative Appeals Tribunal Act 1975, ss 37(1), 38 and 40(1A)
CASES
Re Seymour and Migration Agents Registration Authority [2006] AATA 62
Re Hungerford and Repatriation Commission (1990) 21 ALD 568
Re Alexander and Migration Agents Registration Board (1996) 40 ALD 99
SECONDARY MATERIALS
Tribunal Practice Direction re section 37, Administrative Appeals Tribunal Act 1975 dated 26 March 2007
REASONS FOR DECISION
M D Allen, Senior Member
15 February 2012
On 7 November 2011 the Migration Agents Registration Authority (MARA) refused the Applicant’s request to register him as a migration agent.
By application lodged with the Administrative Appeals Tribunal (AAT) at Sydney on 17 November 2011 the Applicant sought review of that decision by the AAT. On 18 November 2011 the AAT wrote to MARA advising it of the Applicant’s application for review. It was not disputed in these proceedings that that notification was received by MARA on 22 November 2011.
Subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) reads:
“37 Lodging of material documents with Tribunal
…
Decision‑maker must lodge statement of reasons and relevant documents
(1) Subject to this section, a person who has made a decision that is the subject of an application for a review by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of:
(a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b) every other document or part of a document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.”
The said documents were in fact lodged with the Tribunal on 21 December 2011 ie one day outside the 28 day time limit mandated by subs 37(1) AAT Act.
In submissions to the Tribunal the Applicant maintains that as MARA had not complied with subs 37(1) of the AAT Act, MARA was estopped from lodging the documents required by subs 37(1) with the Tribunal and that the said documents were inadmissible.
The Applicant’s submissions as to the consequences of the Respondent’s failure to comply with the time limit in subs 37(1) were the subject of the directions hearing before me on 10 February 2012.
At the outset of the directions hearing the Applicant submitted that I should recuse myself from dealing with the matter, as I had previously made a decision adverse to him. That decision was made on 27 January 2006 and I found that the Applicant was not a fit and proper person to be registered as a migration agent, see Re Seymour and Migration Agents Registration Authority [2006] AATA 62.
Whereas it is apparent that it would be improper for me to hear and determine the substantive issues in the Applicant’s current application before the Tribunal, I considered that as the matters raised in these interlocutory proceedings were purely questions of law I was not required to disqualify myself.
At the outset I have difficulty in understanding what the Applicant seeks to achieve by opposing the Respondent’s new application for extension of time in which to lodge the s 37 documents.
The documents prepared by a Respondent pursuant to subs 37(1) are not akin to common law pleadings. Indeed, many of the Applicant’s submissions seemed predicated on a failure to draw the very real distinction between proceedings which are administrative as opposed to curial.
The purpose of having a Respondent prepare documents pursuant to subs 37(1) of the AAT Act was stated by the Tribunal in Re Hungerford and Repatriation Commission (1990) 21 ALD 568 at 577-8, namely:
“The Tribunal must be given assistance by respondents. The Tribunal has no personal knowledge of relevant facts and is not in a position to make its own searches. The Tribunal proceeds by way of a hearing at which parties are represented. Justice will not be done to applicants unless respondents, who are aware of the facts, or who readily can ascertain the facts, bring to the notice of the Tribunal all matters which the Tribunal ought to take into account. The review procedure will not function fairly unless respondents freely disclose to the Tribunal all the information which they have concerning the documents to which the applicant seeks access. If there are facts known to the respondent which are not know to either the applicant or the Tribunal, how is the Tribunal to be made aware of those facts unless they are disclosed to it by the respondent? The Administrative Appeals Tribunal Act 1975 provides that in every case the decision-maker is to be a party to the review; see s 30. This provision is not aimed solely at permitting a decision-maker to defend his or her decision. Part of its aim is to ensure that the Tribunal is fully informed.”
To the above can now be added the positive requirements upon Respondents to assist the Tribunal as set out in subs 33(1AA) AAT Act namely:
“33 Procedure of Tribunal
…
(1AA) In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.”
Initially the Applicant submitted (in a written submission dated 19 January 2012) that as the s 37 documents were lodged with the Tribunal out of time and that no extension of time had been given, the Tribunal had no jurisdiction to extend time and that the Respondent’s decision should be “stayed”.
At the outside it can be stated that there is no decision of the Respondent that can be stayed. The decision was to refuse to register the Applicant as a migration agent, not to refuse to renew a registration. The difference in such decisions was made clear by Deputy President McMahon in Re Alexander and Migration Agents Registration Board (1996) 40 ALD 99 at 103, namely:
“Section 41(2) (of the AAT Act) is not positive in its effects but merely negative. The content of its power is limited by its legislative intendment. It is to preserve the situation obtaining prior to the reviewable decision. It is not intended to change the situation entirely and put the applicant in a different position from what he would have been prior to the reviewable decision.”
Before me the Applicant maintained his submission that as no leave had been given to lodge s 37 documents out of time then they were inadmissible in these proceedings. In support of his submissions he referred to Tribunal’s Practice Direction relating to s 37 of the AAT Act. That Direction was issued by Downes J the President of the Tribunal on 26 March 2007.
The said Direction reads inter alia:
“1. Time limit for lodging Section 37 Documents
…
1.2 The 28-day time period may be shortened in appropriate cases if application is made to the Tribunal pursuant to subsection 37(1A). The time period may be extended by the Tribunal under subsection 37(1).
1.3 If a decision-maker would like to have the 28-day time period extended, an application must be made to the Tribunal. An application for an extension of time must be made if the decision-maker will not be able to provide all or some of the Section 37 Documents within the 28-day time period. The application for extension is to be lodged with the Tribunal before the 28-day time period expires.
1.4 An application to extend the 28-day time period must be in writing. It must:
§ explain the reasons for requesting further time;
§ advise whether or not the applicant opposes the request; and
§ be lodged with the Tribunal and given to the other party.”
It is common ground that none of the above steps were undertaken by the Respondent in this matter.
Notwithstanding the mandatory language of the Practice Direction, the Direction is not itself a legislative instrument, and cannot amend the clear terms of subs 37(1) AAT Act. That subsection clearly states that the documents prepared pursuant to s 37 are to be lodged with the Tribunal within 28 days or within such further period as the Tribunal allows. (Tribunal’s emphasis).
The discretion enlivened by subs 37(1) of the AAT Act is entirely unfettered and would, in my opinion, permit an order extending time to be made nunc pro tunc.
In any event I fail to see how the application before me in anyway assists the Applicant. Even if I were to issue a direction that the subs 37(1) documents prepared by the Respondent were inadmissible, as being lodged with the Tribunal outside of the mandated period of 28 days, the decision of the Respondent is still extant. All it would mean is that the Tribunal hearing the matter would not have before it all material to enable it to make the correct or preferable decision.
In such a situation it seems to me that the Tribunal would be under an obligation to make its own enquiries as to material which might be made available to it. Proceedings before the AAT, although often appearing to be adversarial in nature, are also inquisitorial and the Tribunal, unlike a Court, is not necessarily bound to consider only the material placed before it by the parties. Thus the Tribunal has ample power pursuant to s 38 of the AAT Act to require the Respondent to lodge with it additional documents, it can also pursuant to subs 40(1A) AAT Act issue a summons for the production of documents.
I am satisfied that the orders sought by the Applicant are such that they are beyond the power of the Tribunal or totally inappropriate for the orderly conduct of this matter.
In order to advance this matter to hearing I will direct that:
((i) The time in which the Respondent must lodge with the Tribunal the documents required by subsection 37(1) of the Administrative Appeals Tribunal Act 1975 is extended to 21 December 2011.
(ii)The Applicant is to lodge with the Tribunal and serve on the Respondent a Statement of Facts, Issues and Contentions together with all evidence upon which he will seek to rely at the hearing of this matter by close of business on 9 March 2012.
(iii)The Respondent is to lodge with the Tribunal and serve on the Applicant a Statement of Facts, Issues and Contentions together with all evidence upon which it will seek to rely by close of business on 30 March 2012.
(iv)Both parties are to file hearing certificates on or before 30 March 2012.
(v)Liberty to apply.
I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Allen.
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Associate
Dated 15 February 2012
Date of hearing 10 February 2012 Applicant In person Solicitors for the Respondent Mr L Leerdam, DLA Piper Australia
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