Shaheed and Tax Practitioners’ Board

[2011] AATA 938

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 938

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1434

GENERAL ADMINISTRATIVE DIVISION		)
Re		MOHAMMED SHAHEED

Applicant

And TAX PRACTITIONERS' BOARD

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date23 December 2011

PlaceSydney

Decision

Pursuant to s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal will:

           a) inform itself as to the circumstances of the Applicant's dealings            with Mr Nizam Khan and events arising during the Applicant's visit            to Fiji on 15 July 2003 by reference to the findings of fact made by            the Tribunal in Shaheed and Tax Agents' Board of NSW (2006) 92 ALD 758; [2006] AATA 880; and

           b) not permit the parties to adduce or lead evidence regarding the            matters described in paragraph a) above - including the following            evidence provided by the Applicant to the Tribunal: the statements            of Mohammed Aiyub (signed 9 November 2011), Akbar Ali (signed            10 November 2011), Junier Ali (signed 10 November 2011), and            paragraphs 13-29 (inclusive) of the Applicant's signed            statement dated 11 October 2011.

......................[sgd]........................

Ms N Isenberg
  Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for direction to prevent applicant from re-agitating findings of fact previously determined by the Tribunal – circumstances when a party may re-agitate findings of fact previously made by the Tribunal – whether evidence was not previously available – ensuring every party is given a reasonable opportunity to present his or her case – time to determine fit and proper person test – Tribunal directs applicant not to re-agitate findings of fact previously determined by the Tribunal.

Administrative Appeals Tribunal Act1975

Tax Agent Services Act 2009

Tax Agent (Transitional Provisions and Consequential Amendments) Act 2009

Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80

Shaheed and Tax Agents’ Board of NSW (2006) 92 ALD 758; [2006] AATA 880

Shaheed v Tax Agents’ Board of NSW (2008) 72 ATR 1; [2008] FCA 703

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

REASONS FOR DECISION

23 December 2011	Ms N Isenberg, Senior Member
Issue

1.The Applicant has filed several witness statements, at least some of which appear to have been prepared for the purpose of revisiting the findings made by Senior Member Allen in Shaheed and Tax Agents' Board of NSW (2006) 92 ALD 758; [2006] AATA 880 (‘the earlier matter’). The Respondent contends that the Applicant should not be permitted to re-open, before me, issues that have been considered and decided by the Tribunal in relation to Mr Shaheed and canvassed in Shaheed v Tax Agents' Board of NSW (2006) 72 ATR 1; [2008] FCA 703. The Respondent sought a direction to the effect:

Pursuant to s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal will:

(a) inform itself as to the circumstances of the applicant's dealings with Mr Nizam Khan and events arising during the applicant's visit to Fiji on 15 July 2003 by reference to the findings of fact made by the Tribunal in Shaheed and Tax Agents' Board of NSW [2006] AATA 880; and

(b) not permit the parties to adduce or lead evidence regarding the matters described in paragraph (a) above – including the following evidence provided by the applicant to the Tribunal: the statements of Mohammed Aiyub (signed 9 November 2011), Akbar Ali (signed 10 November 2011) and Junier Ali (signed 10 November 2011), and paragraphs 13-29 (inclusive) of the applicant’s statement signed 11 October 2011.

2.The outcome of the present application would assist the parties in identifying the scope of the substantive matter.

Background

3.In Shaheed and Tax Practitioners’ Board [2011] AATA 641, an interlocutory decision setting aside a summons sought by the Applicant, I set out the background to the substantive matter. In brief, the Applicant seeks review of the Respondent’s decision to reject his application for registration as a tax agent on the basis that he was not considered to be a ‘fit and proper’ person. The Respondent relied on the previous adverse findings made against the Applicant by the Tribunal in the earlier matter. Further, the Respondent understood that, since that time, amongst other things, Mr Shaheed may have been providing tax agent services whilst unregistered.

4.In his application for review the Applicant asserted, relevantly, that errors of fact were made by the Tribunal in the earlier matter.

Discussion

5.There was some overlap with the issues considered in the first interlocutory decision and some of the observations below are similar to those made in that matter.

6.There is no dispute that the Applicant is permitted to lead evidence as to whether he is a ‘fit and proper person’ within the meaning of s 20-5(1)(a) of the Tax Agent Services Act 2009.  The Respondent contended that it is not open to the Applicant to attempt to re-agitate facts and issues previously determined by the Tribunal, especially in circumstances where the Federal Court, in dismissing all grounds argued by the Applicant, held that the Tribunal in the earlier matter had not misdirected itself as to the law and had made findings which were open to it on the facts.

7.The Applicant relied on s 39 of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’) which states:

…the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case…

8.It was submitted that the Applicant would be denied natural justice if the new evidence is not admitted.  Further, the Applicant should be entitled to adduce new evidence in the interests of justice and procedural fairness.  It was apparent from the submissions that the Applicant regards Mr Akbar as a key witness.

9.Both parties referred me to Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80 where the Full Federal Court held that, in certain circumstances, a party should be given the opportunity to re-agitate findings of fact, with a view to persuading a subsequent Tribunal to reach a finding of fact contrary to the one previously made. One of those circumstances in which a party should be extended that opportunity, is where a party wishes to adduce evidence which was not previously available. As I understand the Applicant’s submission, the evidence of a witness, now sought to give evidence in the substantive matter, was evidence which was ‘not previously available’. As the Respondent points out in its submissions, and as I have observed from the file, Mr Akbar’s evidence was, in fact, before the earlier Tribunal - two written statements, apparently obtained by the Applicant’s representatives, were in evidence. In fact the Presiding Member referred to those statements in the earlier matter at [46] and they were included in the appeal book.

10.The Applicant’s solicitor made a number of submissions about the discussions between the legal representatives in the earlier matter, alleging that it was the Respondent who had failed to call Mr Akbar, and the Applicant had been misled that the Respondent proposed to call him.  Allsop J, on appeal, found otherwise at [8]:

Plainly, the legal representative of the applicant undertook to call Mr Akbar and was prepared to do so, having obtained a statutory declaration from him.

11.Further, the Respondent invited my attention to correspondence between the parties’ solicitors in the earlier matter, to the effect that the Applicant did not notify the Respondent that Mr Akbar was required for cross-examination, nor did the Respondent ever suggest that it proposed to call him.

12.I therefore do not accept that the evidence of Mr Akbar was ‘not previously available’.

13.In the first interlocutory decision I referred the Applicant to other avenues of complaint if he is alleging some inappropriate conduct by a solicitor.  Further, my examination of the file does not bear out the assertions made by the solicitor for the Applicant in his submissions in relation to what transpired in a directions hearing nor is there any correspondence to so suggest.

Scope of the substantive matter

14.Neither party should be distracted from the issue in the substantive matter, namely, whether, at the date of the decision being made by the Tribunal the Applicant is a ‘fit and proper person’ to be granted registration by the Tax Practitioners’ Board: per Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31. The issue in the earlier matter was for the Tribunal to determine whether, at the time of the Tribunal making its decision on 17 October 2006, the Applicant was a ‘fit and proper person’.

15.As regards the conduct which took place prior to the earlier decision; the Respondent informed me that, in the present matter, it seeks only to rely upon such of that conduct as was the subject of findings which were adverse to the Applicant.

16.The Applicant’s solicitor in his recent submissions dated 15 December 2011 referred to the Respondent having relied on a number of “alleged facts” to support a decision not to register the Applicant as a tax agent.  As I have observed, Allsop J held that the Tribunal in the earlier matter had made findings which were open to it on the facts.  Those findings by the Tribunal in the earlier matter were conveniently summarised by Allsop J at [34]:

...in the last three paragraphs of his reasons, the Senior Member identified the basis of his conclusion that the applicant was not a fit and proper person for the purposes of the 1936 Act, s 251JC(1)(a). The reasons were: first, that he did not show Ms Millerd the authority to pay Mr Akbar, contrary to the statement to the Board that he did; and secondly, that he used undue pressure to induce, improperly, Mr Khan to withdraw the complaint against him. The member appeared to identify these two matters as “...sufficient to state that the Respondent could have no confidence in him as a person of integrity.” To these matters he added the following:

...To add to this is the fact that he opened branch offices at Liverpool and Parramatta (later Harris Park) with knowledge that the Respondent had informed him such branch offices would not be approved. He then took no steps to notify the Respondent of the existence of those offices despite the requirement of Regulation 161 to do so. I can only regard this as a direct deception on the Applicant’s part.

In addition, at the time of the decision under review, the Applicant had not, despite stating he would do so, lodged an application for the appointment of an additional nominee or reduced his client list. I have also commented previously on his stating that matters had been done, where in fact they were to be done.

17.Without wishing to oversimplify the findings, they appear to me to identify the Applicant’s earlier conduct relied on by the Respondent as falling into five categories:

(a)the Applicant did not account to a client for monies received by way of a tax refund;

(b)the Applicant used undue pressure to induce a client to withdraw his original complaint to the Respondent;

(c)the Applicant failed to comply with an undertaking to the Respondent to close his offices, not to open new offices, and remove all advertising;

(d)the Applicant failed to notify the Respondent of the existence and continued operation of his offices despite being told he could not open them;

(e)the Applicant failed to lodge an application to appoint an additional nominee or reduce his client list despite saying he would do so.

18.The Applicant encouraged me to ‘seek the truth’.  In doing so, I rely on the facts as found by the earlier Tribunal.

19.It should be clear to both parties that a finding, once made, that a person did not meet the ‘fit and proper person’ test, does not mean that the person can never overcome that finding.  The door on re-evaluation at a later date, taking into account the Applicant’s conduct to the date of the future decision, is not closed.

20.No doubt much has occurred in the Applicant’s professional life since the previous matter, such that he asserts entitlement to registration, and that he is now, a fit and proper person for registration.  I commend this important consideration to the parties in the filing of their further evidence and submissions in the substantive matter.

21.Directions to progress the matter to hearing are provided separately.

Decision

22.Pursuant to s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal will:

(a)inform itself as to the circumstances of the Applicant's dealings with Mr Nizam Khan and events arising during the Applicant's visit to Fiji on 15 July 2003 by reference to the findings of fact made by the Tribunal in Shaheed and Tax Agents' Board of NSW (2006) 92 ALD 758; [2006] AATA 880; and

(b)not permit the parties to adduce or lead evidence regarding the matters described in paragraph a) above - including the following evidence provided by the Applicant to the Tribunal: the statements of Mohammed Aiyub (signed 9 November 2011), Akbar Ali (signed 10 November 2011), Junier Ali (signed 10 November 2011), and paragraphs 13-29 (inclusive) of the Applicant's signed statement dated 11 October 2011.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed:         ...................[sgd]............................................................
  C. Taylor, Associate

Date/s of Hearing  16 December 2011
Date of Decision  23 December 2011
Counsel for the Applicant         A. Powrie   
Counsel for the Respondent     C. Lenehan
Solicitor for the Respondent     N. Gouliaditis, Australian Government Solicitor