Salomonn v Migration Agents Registration Authority - [2014] FCA 380

FEDERAL COURT OF AUSTRALIA
Salomonn v Migration Agents Registration Authority [2014] FCA 380

Citation: Salomonn v Migration Agents Registration Authority [2014] FCA 380

Appeal from: Application for extension of time: Raymond Salomonn v Migration Agents Registration Authority [2013] AATA 146

Parties: RAYMOND SALOMONN v MIGRATION AGENTS REGISTRATION AUTHORITY and ADMINISTRATIVE APPEALS TRIBUNAL

File number: NSD 1600 of 2013

Judge: PERRAM J

Date of judgment: 17 April 2014

Catchwords:
PRACTICE AND PROCEDURE – application for an extension of time in which to bring appeal from Administrative Appeals Tribunal – explanation for delay – decision making ability of applicant impaired

MIGRATION – review of decision of Migration Agents Registration Authority

ADMINISTRATIVE LAW – whether breach of rules of procedural fairness for the Tribunal to proceed in applicant’s absence after he left the hearing – whether Tribunal bound to adjourn

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 33(1), s 35, s 43 and s 44(2A)
Migration Act 1958 (Cth) s 276, s 280(1)

Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 cited
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 cited
Minister for Immigration and Citizenship v Li (2012) 202 FCR 387 cited
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 cited
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 considered
Minster for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited
Public Service Board (NSW) v Osmond (1986) 159 CLR 656 cited
Raymond Salomonn v Migration Agents Registration Authority [2013] AATA 146 cited
Soliman v University of Technology, Sydney (2012) 207 FCR 277 cited
Sullivan v Department of Transport (1978) 1 ALD 383 considered
Tisdall v Webber (2011) 193 FCR 260 cited

Date of hearing: 4 March 2014

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 62

Counsel for the Applicant: Mr P Afshar

Solicitor for the Applicant: Christopher Levingston and Associates

Counsel for the First Respondent: Mr P Knowles

Solicitor for the First Respondent: DLA Piper Australia

Solicitor for the Second Respondent: The second respondent filed a submitting appearance

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1600 of 2013

BETWEEN:
RAYMOND SALOMONN
Applicant

AND:
MIGRATION AGENTS REGISTRATION AUTHORITY
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

17 APRIL 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Extend the time for the applicant to appeal to 7 August 2013.
2.Treat the applicant’s notice of appeal as having been filed on 7 August 2013.
3.Appeal dismissed.
4.The applicant pay the first respondent’s costs.
5.Pursuant to section 37AF(1) of the Federal Court of Australia Act 1976 (Cth) (‘the Act’), being satisfied that the order is necessary to prevent prejudice to the proper administration of justice and to protect the safety of any person, it is ordered that:
5.1the information contained in Exhibits 1 and 2, being the orders of the Administrative Appeals Tribunal dated 18 February 2013 pursuant to section 35 of the

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.

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Details

Case: [2014] FCA 380
Decision Date: 17 April 2014

CaseChat Overview and Summary

In Salomonn v Migration Agents Registration Authority, the applicant, Salomonn, sought an extension of time to appeal a decision of the Migration Agents Registration Authority. The dispute involved the review of the Authority's decision, as well as the procedural fairness of the Administrative Appeals Tribunal (AAT) in handling the appeal process. The Federal Court was tasked with determining whether the Tribunal's decision to proceed without the applicant, who had left the hearing, breached the rules of procedural fairness, and whether the Tribunal was obligated to adjourn the proceedings.

The primary legal issues were whether the Tribunal's decision to proceed in Salomonn's absence constituted a breach of procedural fairness, and if the Tribunal had a duty to adjourn the hearing. Additionally, the court needed to assess the justification for the delay in filing the appeal and whether the applicant's decision-making abilities were impaired at the time of the original hearing.

The court found that while there was a breach of procedural fairness, it was not of a kind that could have affected the outcome of the proceedings. The Tribunal was not bound to adjourn the hearing, and the applicant's departure from the hearing did not necessitate an adjournment. The court also concluded that the applicant's decision-making ability was impaired at the time, which justified the delay in filing the appeal. Consequently, the court granted an extension of time for the appeal, treated the notice of appeal as filed on 7 August 2013, and dismissed the appeal. The court further ordered that the applicant pay the respondent's costs and imposed a non-publication order on certain information for a period of 20 years to protect the safety of any person and prevent prejudice to the proper administration of justice.

Orders

Orders of the court

1. Extend the time for the applicant to appeal to 7 August 2013.

2. Treat the applicant’s notice of appeal as having been filed on 7 August 2013.

3. Appeal dismissed.

4. The applicant pay the first respondent’s costs.

5. Pursuant to section 37AF(1) of the Federal Court of Australia Act 1976 (Cth) (‘the Act’), being satisfied that the order is necessary to prevent prejudice to the proper administration of justice and to protect the safety of any person, it is ordered that:

5.1 the information contained in Exhibits 1 and 2, being the orders of the Administrative Appeals Tribunal dated 18 February 2013 pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (Cth), and the reasons of the Administrative Appeals Tribunal dated 21 February 2013 for those orders; and

5.2 paragraphs 34 and 35 of the reasons for judgment of Perram J dated 17 April 2014,

are to be subject to a non-publication order within the meaning of section 37AA of the Act.

6. Order 5 operates for a period of 20 years commencing on the date of the order.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Salomonn v Migration Agents Registration Authority [2014] FCA 380
Appeal from:	Application for extension of time: Raymond Salomonn v Migration Agents Registration Authority [2013] AATA 146
Parties:	RAYMOND SALOMONN v MIGRATION AGENTS REGISTRATION AUTHORITY and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	NSD 1600 of 2013
Judge:	PERRAM J
Date of judgment:	17 April 2014
Catchwords:	PRACTICE AND PROCEDURE – application for an extension of time in which to bring appeal from Administrative Appeals Tribunal – explanation for delay – decision making ability of applicant impaired MIGRATION – review of decision of Migration Agents Registration Authority ADMINISTRATIVE LAW – whether breach of rules of procedural fairness for the Tribunal to proceed in applicant’s absence after he left the hearing – whether Tribunal bound to adjourn
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 33(1), s 35, s 43 and s 44(2A) Migration Act 1958 (Cth) s 276, s 280(1)
Cases cited:	Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 cited Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 cited Minister for Immigration and Citizenship v Li (2012) 202 FCR 387 cited Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 cited Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 considered Minster for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited Public Service Board (NSW) v Osmond (1986) 159 CLR 656 cited Raymond Salomonn v Migration Agents Registration Authority [2013] AATA 146 cited Soliman v University of Technology, Sydney (2012) 207 FCR 277 cited Sullivan v Department of Transport (1978) 1 ALD 383 considered Tisdall v Webber (2011) 193 FCR 260 cited
Date of hearing:	4 March 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	62
Counsel for the Applicant:	Mr P Afshar
Solicitor for the Applicant:	Christopher Levingston and Associates
Counsel for the First Respondent:	Mr P Knowles
Solicitor for the First Respondent:	DLA Piper Australia
Solicitor for the Second Respondent:	The second respondent filed a submitting appearance

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1600 of 2013

JUDGE:	PERRAM J
DATE OF ORDER:	17 APRIL 2014
WHERE MADE:	SYDNEY