Senanayake and Migration Agents Registration Authority (Migration) [2019] AATA 225 (22 February 2019)
Division:GENERAL DIVISION
File Number(s): 2017/6023
Re:S M Senarath B Chanaka Senanayake
APPLICANT
AndMigration Agents Registration Authority
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date:22 February 2019
Place:Sydney
The Tribunal therefore directs that:
1.the records produced by the Department of Home Affairs pursuant to the summons issued on 30 October 2018 be made available for inspection by the applicant except those records which relate to personal information. Accessibility to records relating to the personal information of the clients will abide the hearing of these proceedings; and
2.the documents referred to in the summons issued on 1 February 2019 at the request of the Applicant be produced and made available to both parties.
......................[sgd].............................................................
The Hon. Dennis Cowdroy OAM QC, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – application to set aside summons – substantive proceedings concern decision to cancel applicant’s registration as a migration agent – purpose of summons is to impugn the credit of a witness – whether legitimate purpose – witness credibility is a fact in issue – summons upheld
LEGISLATION
Evidence Act 1995 (Cth) s 101A
Migration Act 1958 (Cth) ss 287, 292, 303
Migration Agents Regulations 1998 (Cth) reg 8, Sch 2
CASES
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Proprietary Limited (1955) 72 WN (NSW) 250
Australian Securities and Investments Commission v Whitlam (2002) 42 ACSR 143; [2002] NSWSC 526
Brand v Digi-Tech (Australia) Ltd [2001] NSWSC 425
Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504
Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588
Fried v National Australia Bank Ltd (2000) 175 ALR 194; [2000] FCA 911
Jack Brabham Engines Limited v Malcolm John Beare [2010] FCA 35
Mackintosh v The Commissioner of Police (NSW) [2010] NSWSC 1064
Re Bird and Military Rehabilitation and Compensation Commission (2006) 91 ALD 691; [2006] AATA 109
Taylor v O’Neill (t/a O’Neill Marengo) (a firm) [2012] NSWSC 626Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90
WRITTEN REASONS FOR ORAL DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
22 February 2019
The applicant was registered as a migration agent under the provisions of the Migration Act 1958 (Cth) (“the act”), and the Migration Agents Regulations 1998 (Cth) (“the regulations”). Such registration was also subject to compliance with the Migration Agents Code of Conduct (“the code”) which was prescribed under Regulation 8 and Schedule 2 to the regulations. The name of the applicant was placed on the register of migration agents kept under section 287 of the act.
On 9 October 2017 a decision was made by the Migration Agents Registration Authority (“the authority”) to cancel the applicant’s registration as a migration agent under subparagraph 303(1)(a) of the act (“the decision”). Such cancellation was based upon a finding that the applicant was not a person of integrity or was otherwise not a fit and proper person…
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- AGLC
- Senanayake and Migration Agents Registration Authority (Migration) [2019] AATA 225
- Case
- [2019] AATA 225
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine whether the summons had a legitimate purpose, specifically whether it was aimed at discrediting witnesses whose evidence was relevant to the proceedings, or if it was merely a speculative attempt to uncover evidence. The Tribunal also had to consider the definition of a "fishing expedition" in the context of legal proceedings.
The Tribunal reasoned that while the applicant acknowledged the purpose of the summons was to discredit clients, this was permissible as the applicant claimed to have been misled by these witnesses. The Tribunal noted that the clients' allegations formed the basis of one of the grounds for cancelling the applicant's registration and that these clients were expected to give evidence. The Tribunal distinguished the present case from a "fishing expedition" by observing that the summons identified the class of documents sought, rather than being a general request to search for evidence. The Tribunal concluded that the credibility of the clients was a fact in issue, and the documents sought might assist the applicant in demonstrating that the allegations against him were baseless or that he was misled, thereby potentially facilitating his case.
The Tribunal therefore upheld the summons, finding that it had a legitimate purpose related to the issues in dispute.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In Comcare v Maganga (2008) 101 ALD 68; [2008] FCA 285 Bennett J referred to the decision in Fried. Jagot J in Jack Brabham noted that Bennett J observed that, in Fried, the documents sought were “wholly unconnected” to the issues. Bennett J accepted that the purpose in seeking the relevant documents “must be identifiable and are likely to facilitate the conduct of the proceeding, not merely to oppress a party or witness” (citing Fried at [29]). However Jagot J declined to set aside the subpoenas, stating at [25] that the subpoenae related to the criminal history of the second respondent in the proceedings; that that party’s credit was directly relevant to the resolution of the issues in the proceedings; that the respondent was a critical witness in the proceedings; and related to conduct involving offences alleged against him. For this reason Her Honour followed the approach of Gzell J in Australian Securities and Investments Commissionv Whitlam (2002) 42 ACSR 143; [2002] NSWSC 526 in which Gzell J distinguished the decision in Fried, because the documents in question related to the defendant’s conduct with respect to companies whose conduct was before the court.CONSIDERATION Mr Joel has frankly acknowledged that the purpose of the issue of the summons is to discredit the clients. Yet in debate, it is clear that the applicant claims that he was misled by the witnesses. It is possible that the information sought in the summons may assist the applicant in establishing the alleged misleading conduct. The Tribunal notes that the cancellation decision of the applicant’s registration appears to be based on several grounds. One of the grounds alleges conduct in breach of the code by the applicant based upon allegations made by the clients. The Tribunal has been informed that the clients will provide evidence and will be available for cross examination. The authority also claims that the purpose in issuing the summons is that of a “fishing expedition”, and accordingly it should be set aside. In Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Proprietary Limited (1955) 72 WN (NSW) 250 at 254, Owen J defined a “fishing expedition” as follows:“A “fishing expedition”, in the sense in which the phrase has been used in the law, means, as I understand it, that a party who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.”FINDINGS The summons issued by the applicant identifies the class of documents which are sought. To this extent, it does not constitute a “fishing expedition”, since the documents sought to be produced are identified. The applicant hotly contests the grounds upon which the cancellation has been made and claims that the allegations made against him by the clients are wholly fabricated. Accordingly an issue arising in the proceeding will be the veracity of the allegations. It is possible that the applicant may secure an advantage for his application to have the cancellation of his authority set aside if he can establish information relied upon by the authority was baseless or, as is claimed, the applicant was misled by the witnesses. In this event, the credibility of the clients becomes a fact in issue.