Shahi and Migration Agents Registration Authority (Migration) - [2020] AATA 3508

Shahi and Migration Agents Registration Authority (Migration) [2020] AATA 3508 (11 September 2020)
Division:GENERAL DIVISION
File Number(s): 2019/0190
Re:Maryam Shahi
APPLICANT

AndMigration Agents Registration Authority
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:11 September 2020
Place:Sydney

The application for review is dismissed pursuant to section 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).
...........................[sgd].........................................
Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – application for dismissal of substantive application –Migration Agents Registration Authority – decision to cancel migration agent registration – section 42A(5) – whether Applicant failed to proceed with the application – whether Applicant failed to comply with a direction by the Tribunal – application for dismissal granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 42A
Migration Act 1958 (Cth) s 303
CASES
Beard v Telstra Corporation Ltd [1999] FCA 999
Berry v Commissioner of Taxation [2015] FCA 1244
Charara v Commissioner of Taxation [2016] FCA 451
Guse v Comcare (1997) 49 ALD 288
McGrath and Anor and Inspector-General in Bankruptcy [2011] AATA 27
O’Sullivan v P & O Maritime Services Pty Ltd [2016] FCA 969
REASONS FOR DECISION
Chris Puplick AM, Senior Member
11 September 2020

On 15 July 2020 the Migration Agents Registration Authority (MARA) made an application to the Tribunal to dismiss proceedings which had been brought by Ms Maryam Shahi (the Applicant[1]) challenging a decision by MARA to cancel her registration as a migration agent under section 303 of the Migration Act 1958 (Cth).
[1] Application filed 14 January 2019.
This application was made under section 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act) which provides:
Dismissal if applicant fails to proceed or fails to comply with Tribunal's direction
(5) If an applicant for a review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
This determination is confined to matters related to the application for dismissal of the proceedings and does not touch upon any of the substantive matters involved in the original registration cancellation decision.
The application was heard on an interlocutory basis on 31 July 2020 by telephone, as a necessary consequence of the restrictions placed on the Tribunal’s proceedings by the COVID-19 pandemic. Both parties were afforded ample time to state their cases and were accorded procedural fairness in all respects.
Dismissal applications
Section 42A(5) of the Act has been explained by the Federal Court in Berry,[2] as follows:
[2] Berry v Commissioner of Taxation [2015] FCA 1244 per Davies J
[35] The starting point for consideration is the scope and purpose of s 42A(5) of the AAT Act. That section confers a discretionary power on the Tribunal to dismiss an application for review of a decision without proceeding to review that decision if the applicant fails within a reasonable time to proceed with the application…

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

AGLC: Shahi and Migration Agents Registration Authority (Migration) [2020] AATA 3508
Case: [2020] AATA 3508
Decision Date: 11 September 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by the Migration Agents Registration Authority (MARA) to dismiss an application for review made by Ms. Shahi. Ms. Shahi had sought review of MARA's decision to cancel her registration as a migration agent.

The primary legal issue before the Tribunal was whether Ms. Shahi had failed to proceed with her application for review or failed to comply with directions issued by the Tribunal, thereby justifying the dismissal of her application under section 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).

The Tribunal reasoned that Ms. Shahi had been afforded ample time to comply with the Tribunal's directions of 11 July 2019 and 2 April 2020, but had failed to do so. It found that a reasonable time had elapsed since her non-compliance, and that she had been provided with procedural fairness. While acknowledging Ms. Shahi's family circumstances and difficulties in obtaining legal representation, the Tribunal concluded that she had not taken reasonable steps to manage these competing demands with her obligation to comply with the Tribunal's directions. The Tribunal determined that the "particular circumstances" advanced by Ms. Shahi did not provide sufficient grounds for a further opportunity to comply, and that MARA was entitled to proceed with its statutory duties without further delay.

Consequently, the Tribunal ordered that Ms. Shahi's application for review be dismissed pursuant to section 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Considering the matters elucidated in Charara, the Tribunal is satisfied that:(a)The Applicant has had ample time to comply with the direction of the Tribunal dated 11 July 2019 and sufficient time to comply with the direction of 2 April 2020, and she failed to comply with both directions.(b)A reasonable time has elapsed since the Applicant’s non-compliance with both of the above directions given that the Applicant had access to the material and was aware of the procedures of the Tribunal.(c)The Applicant has been provided with procedural fairness in being allowed to state her case to the Tribunal directly and in accordance with the determination of Deputy President Constance when refusing a previous application for dismissal.(d)The Tribunal has considered each of the explanations given by the Applicant for her failure to comply with the directions and does not consider that they offer a satisfactory explanation. It is conscious of the impact on the Applicant of her family circumstances and her difficulties in obtaining legal representation, but she has not taken reasonable steps to manage the competing demands of her own circumstances with those of her need to comply with the directions of the Tribunal. Her responses to the directions of the Tribunal are separate considerations from those advanced by the Applicant in relation to her attempts at rectification of matters identified in MARA’s original de-registration determination.(e)The “particular circumstances” advanced by the Applicant do not provide sufficient grounds for allowing her a further opportunity to comply or remedy the default and the Respondent is entitled to have the opportunity to fulfil its statutory duties and the regulation of the migration agents registration scheme without further delay or distraction.DECISION The application for review is dismissed pursuant to section 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).

Ratio Decidendi

Legal Principle Established

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