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).
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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 or to comply with a direction by the Tribunal in relation to the application. That power is in aid of the objective in s 2A of the AAT Act. Section 2A provides:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.
[36] Section 33 is also relevant. Section 33(1)(b) relevantly provides that in a proceeding before the Tribunal:
The proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit.
For the purposes of s 33(1), the Tribunal may give directions as to the procedure to be followed at or in connection with the hearing of a proceeding: s 33(2). Section 33(2A) sets out the types of directions that the Tribunal may make, which include requiring any person who is a party to the proceeding to provide further information in relation to the proceeding (s 33(2A)(a)) and requiring any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing (s 33(2A)(c)). Section 33(1AB) provides that a party to a proceeding before the Tribunal and any person representing such a party must use his or her best endeavours to assist the Tribunal to fulfil the objective in s 2A of the AAT Act.
[37] The power to dismiss under s 42A(5) is “plainly a valuable discretionary power“, as Burchett J observed in Guse v Comcare (1997) 49 ALD 288 ; [1997] FCA 140, 291 (ALD). Where the provision is engaged, the exercise of that power to dismiss summarily aids the Tribunal in fulfilling the objective in s 2 A. The consequence of a failure by an applicant either to proceed with the application or to comply with a direction by the Tribunal in relation to the application within a “reasonable time“ is that the applicant is liable to have his or her application dismissed without a hearing on the merits. Such an outcome may seem harsh but because the outcome is specifically provided for by the legislation, that outcome, in itself, is not one that is unreasonable in the legal sense.
From the outset the Tribunal has accepted that, as Burchett J stated, the power should be used “very sparingly and only … as a decision of last resort”[3] and that “the discretion, in common with any discretion to summarily terminate proceedings, ought be exercised sparingly and only in the clearest of cases”.[4]
[3] Guse v Comcare (1997) 49 ALD 288 at 291.
[4] McGrath and Anor and Inspector-General in Bankruptcy [2011] AATA 27 at [20] (per Deputy President Hack).
Section 42A(5)
The section contains two elements, both of which may form the basis for a dismissal: either an applicant fails to proceed with their application, or they fail to comply with a direction of the Tribunal.
As to the former, in Beard, Spender J held that the power to dismiss for failure to proceed requires that, at the time of the Tribunal’s decision, there has been a failure by the applicant to prosecute their application. His Honour stated:
[32] …The test under s42A(5) of the Act is not whether there had been a failure within a reasonable time to comply with the matters which had been the subject of a successful application for an adjournment before the Tribunal at an earlier time; the test is whether, at the time of the decision made pursuant to that section, it had been demonstrated that the applicant had failed within a reasonable time to proceed with the application. In circumstances where the matter had been listed for hearing and the applicant had indicated through his solicitor that he was ready to proceed on the hearing dates (be that with or without the foreshadowed medical reports), the failure to provide the foreshadowed medical reports does not provide a basis on which the Tribunal could conclude that the applicant had failed within a reasonable time to proceed with the application. In my view, there was a misunderstanding by the Tribunal of the statutory test.[5]
[5] Beard v Telstra Corporation Ltd [1999] FCA 999.
The Tribunal is not however prepared to dismiss the proceedings on the basis of this subsection of section 42A(5).
As to the latter, in reference to non-compliance with Tribunal directions (section 42A(5)(b)), it is important to stress that the Applicant was given ample time to state her case to the Tribunal which also accepted some further written submissions from her which were filed shortly before the interlocutory hearing. This is in accordance with the determination by Burchett J in Guse that:
Furthermore, s 42A(5)(b) cannot, consistently with the observance of the principle of natural justice, be implemented upon an ex parte statement that an applicant has not complied with a direction, without giving the applicant any opportunity to explain, or advance reasons why the matter should nevertheless proceed. It stands to reason that, whatever the merits of Mr Guse's objections to the direction in the first place, some supervening circumstance might have occurred to justify, or at least palliate, the eventual non-compliance.[6]
[6]Guse v Comcare (1997) 49 ALD 288 at 291.
The importance of an applicant being given a proper opportunity to state their case before any dismissal application is considered, thereby ensuring procedural fairness in the conduct of proceedings, has been highlighted in several Federal Court decisions.[7]
[7] Charara v Commissioner of Taxation [2016] FCA 451; O’Sullivan v P & O Maritime Services Pty Ltd [2016] FCA 969.
Another important element of the whole section is that a party must be given “a reasonable time” to proceed with their application or comply with the Tribunal’s directions.
Relevant directions
This matter commenced with a decision by MARA to cancel the Applicant’s registration as a migration agent on 18 December 2018. The Applicant lodged an appeal to this Tribunal for a review of that decision on 14 January 2019.
Under section 33 of the Act, directions are given as to the filing of documents and the exchange of information. Section 33(2A) specifies the types of directions which may be given.
Failure of any party to adhere to Tribunal directions both inhibits the Tribunal in its decision-making processes and denies to other parties the procedural fairness to which they are entitled.
MARA’s application
In its application for dismissal, MARA sets out the following narrative[8]:
[8] MARA’s Submission to Tribunal dated 15 July 2020.
On 11 July 2019, the Tribunal made directions (attached) requiring the parties to file an Agreed Statement of Facts (ASOF) by 16 August 2019, and the applicant to file a SOFIC and any further evidence by 27 September 2019.
Since that time, the following has occurred:
1.    On 9 August 2019, the Authority provided a draft ASOF to the applicant’s previous representative for consideration.
2.    On 16 August 2019, Mr Ron Kessels[9] withdrew from the matter. In light of Mr Kessels’ withdrawal, the Authority requested that the Tribunal vacate the direction requiring an ASOF to be filed and list the matter for further conference to address how it should proceed. On 19 August 2019, the Tribunal vacated the 11 July 2019 direction.
3.    On 29 August 2019, the applicant advised the Tribunal (inter alia) that “I will be obtaining legal representation and hope to confirm this as soon as possible” and requested that the proposed teleconference be listed at a later date.
4.    On 1 October 2019, the Tribunal listed the matter for a teleconference on 10 October 2019. On 2 October 2019, the applicant requested that the teleconference on 10 October 2019 be adjourned to a date in November as she would be travelling overseas to assist her parents prepare for her brother’s funeral. The Authority consented to this request.
5.    On 2 April 2020, following a conference on 24 March 2020, the Tribunal issued the attached direction, that the applicant was to file any evidence on which she intended to rely and the information requested by the Authority by 29 May 2020.
6.    On 20 May 2020, the applicant requested an extension to file her further evidence by 27 June 2020 on the basis that she had lacked funds to obtain legal advice but could now do so. On 27 May 2020, the Authority opposed the applicant’s request for the direction to be varied on the basis that there did not appear to be any reason for the delay in providing the information requested. On 29 May 2020, the applicant advised that she had contacted Mr Kessel’s office to enquire whether he could represent her again, and would inform the Tribunal of the outcome of her enquiries on 1 June 2020.
7.    On 10 June 2020, the Tribunal listed the matter for a directions hearing by telephone on 19 June 2020. The applicant failed to attend the directions hearing and did not provide any explanation for her non-attendance or advise whether she had obtained legal representation.
8.    On 23 June 2020, the Authority advised the applicant (by email) that in the event of any further non-attendance at listings or non-compliance with the Tribunal’s directions, the Authority may seek for the matter to be dismissed under ss 42A(2) or (5) of the AAT Act.
9.    On 14 July 2020, the applicant failed to attend the conference scheduled, and did not provide any notice that she would not be able to attend or any explanation for her continued noncompliance with the Tribunal’s direction.
[9] Mr Kessels was Ms Shahi’s legal representative.
The Tribunal’s records
The Tribunal’s own records show the following:
·11 April 2019: Applicant’s legal representative filed a Statement of Issues.
·12 April 2019: Conference by telephone held.
·10 May 2019: Applicant’s legal representative requested a 3-week extension to provide the Applicant’s witness statement which was due on 10 May 2019 and gave reasons.
·30 May 2019: Applicant’s legal representative requested a further 3-week extension to provide the Applicant’s witness statement (which had been due on the revised date of 31 May 2019) and gave reasons.
·3 June 2019: Direction made – on or before 21 June 2019, the Applicant must give to the Tribunal and Respondent a witness statement from the Applicant.
·24 June 2019: Applicant’s legal representative filed a Statement of Proposed Evidence and Issues.
·11 July 2019: Conference by telephone held. Directions were also made which, inter alia, provided that on or before 16 August 2019, the Applicant and Respondent must give to the Tribunal and the other party a Hearing Certificate for a hearing in the second half of January or February 2020 [the Respondent filed a hearing certificate as directed].
·16 August 2019: Ron Kessels advised that he was no longer acting for the Applicant.
·19 August 2019: Applicant requested an extension of time to comply with the 11 July 2019 direction because she did not have a legal representative.
·19 August 2019: Direction made vacating direction of 11 July 2019.
·29 August 2019: Applicant advised that she would be obtaining legal representation.
·3 September 2019: Conference by telephone held.
·2 October 2019: Applicant requested that the Conference originally listed for 10 October 2019 be adjourned because she was assisting her parents to prepare for and attend her brother’s funeral overseas.
·10 October 2019: Conference by telephone was adjourned.
·15 January 2020: Applicant emailed the Tribunal to inform that her mother had passed away on 11 January 2020 and that she travelled to Iran on 12 January 2020 for the funeral and was currently (at that point) in Tehran.
·16 January 2020: Conference vacated because the Applicant was unreachable. The Applicant indicated that she did not receive a call from the Tribunal. She tried to call back after the scheduled Conference time. However, in light of the Applicant’s personal circumstances, the Conference Registrar decided that the Conference would be rescheduled.
·24 March 2020: Conference by telephone held. Certain directions were made but subsequently varied.
·2 April 2020: Direction made that, inter alia:
1.On or before 6 April 2020, the Respondent must give to the Tribunal and the Applicant a request for further information relating to the application for review [the Respondent complied with this particular direction].
2.On or before 29 May 2020, the Applicant must give to the Tribunal and the Respondent any evidence on which the Applicant intends to rely providing the information requested by the Respondent.
·20 May 2020: Applicant requested an extension of time (EOT) to comply with the directions made on 2 April 2020 and gave reasons.
·27 May 2020: Respondent opposed the Applicant’s EOT request.
·28 May 2020: Applicant provided a response to the Respondent’s opposition.
·29 May 2020: Applicant advised that she was in the process of contacting her former legal representative Ron Kessels to seek that he resume legal representation and that she would advise the Tribunal of the outcome by 1 June 2020.
·2 June 2020: Respondent maintained its position opposing the Applicant’s EOT request.
·10 June 2020: Listing Notices were issued to both parties for a Telephone Directions Hearing (TDH) before Deputy President Constance.
·19 June 2020: TDH held but the Applicant was unreachable and did not appear.
oAt the TDH, the Tribunal decided to proceed to Conference on 14 July 2020 and let the Applicant file material as and when she could prior to the Conference.
oThe Respondent made an oral application for the matter to be dismissed. The Deputy President said he could not deal with the dismissal matter without giving the Applicant time to respond.
·14 July 2020: Conference by telephone was scheduled but the Applicant failed to appear.
·15 July 2020: Respondent filed a request for this matter to be dismissed pursuant to section 42A(5) of the Act.
The Applicant’s actions
It appears that while the Applicant was being advised by Mr Kessels matters were progressing in accordance with both normal practice and the directions of the Tribunal, although on several occasions those directions were modified to suit the convenience of the Applicant or extensions of time were granted to allow her to comply.
Since the withdrawal of Mr Kessels, the application has not proceeded with any despatch or in conformity with the Tribunal’s directions and the Applicant’s repeated claims that she was securing further, or alternate legal representation have not been fulfilled.
Critically, the Applicant has failed to comply with the direction of 11 July 2019 which required the lodgment of materially important information by 16 August 2019. This material was in the possession of the Applicant and could have been provided as directed. Similarly, the direction of 2 April 2020 was quite specific in what it required the Applicant to produce prior to 29 May 2020.There has been non-compliance with that direction as well and no reason provided to justify that non-compliance.
In Charara, the Court made clear several specific considerations which must be addressed by the Tribunal (citations omitted):
[78] The discretionary power in s 42A(5)(b) of the AAT Act is only in enlivened if the applicant fails “within a reasonable time” to comply with the direction. Thus, before the Tribunal exercises the discretion, it must consider and determine not only whether there has been a failure to comply with the direction; it must also consider and determine whether a reasonable time has elapsed since the relevant failure. An omission to do so would constitute a misapplication of s 42A(5).
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[80] In exercising the discretion, the Tribunal must also afford the applicant procedural fairness...Procedural fairness would ordinarily require the Tribunal to give the applicant the opportunity to make submissions as to why the discretion should not be exercised. That would include giving the applicant an opportunity to put forward submissions concerning whether there had been a failure to comply with a direction and, if so, whether a reasonable time had elapsed since that failure. It would also ordinarily extend to giving the applicant an opportunity to explain or justify any failure, or to advance any reasons why, despite the failure, the application should not be dismissed. Depending on the particular circumstances, it might also extend to giving the applicant a further opportunity to comply or to remedy the default.
[81] There may be some circumstances where this is difficult…The particular facts and circumstances of each case must be separately considered to determine what procedural fairness required in the circumstances.
[82] If the applicant does provide an explanation for why a direction has not been complied with, or an argument as to why the discretion to dismiss the application should not be exercised, those explanations or arguments are mandatory relevant considerations…Failure to take any such explanations or arguments into account would constitute an error of law in the exercise of the power…And, in order to take an explanation into account, the Tribunal must “engage in an active intellectual process, in which each relevant matter receive[s] [its] genuine consideration”.

At the interlocutory hearing on 31 July 2020 the Tribunal invited the Applicant to provide any explanation(s) she considered appropriate to explain her non-compliance with those two directions.
Specifically, she maintained that:
(a)She was unable to afford continuing legal representation although she “consulted” Mr Kessels after he had formally withdrawn as her representative;
(b)She was inhibited in her ability to respond to the Tribunal as a result of the “media frenzy” which attended the public revelation that her registration had been cancelled;
(c)She did not know how to respond to the Tribunal’s directions;
(d)She was not sure how she should organise and present the material which she had been requested to submit; and
(e)She has suffered from health problems and from emotional distress resulting from the illness and death of members of her family, especially when required to travel overseas to be with them.
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).

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate
Dated: 11 September 2020

Date of hearing: 31 July 2020

Applicant: In person

Solicitors for the Respondent: Mr C Burke, Sparke Helmore Lawyers

Date of hearing:	31 July 2020
Applicant:	In person
Solicitors for the Respondent:	Mr C Burke, Sparke Helmore Lawyers