Uprety and Migration Agents Registration Authority

[2020] AATA 3854

Uprety and Migration Agents Registration Authority [2020] AATA 3854 (2 October 2020)

Division:General Division 

File Number(s):      2020/3599

Re:Sunil Uprety

APPLICANT

AndMigration Agents Registration Authority

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:2 October 2020

Place:Sydney

The Tribunal orders that the Summons request is to be complied with.

............................[SGD]............................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – Summons – objection to Summons – whether documents sought are relevant to the issues to be decided – whether a summons can be issued to a party to the proceedings – Summons to be complied with

LEGISLATION

Migration Act 1958 (Cth)

CASES

Shi v Migration Agents Registration Authority [2008] HCA 31

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

2 October 2020

BACKGROUND AND DISCUSSION

1. On 12 June 2020, the Applicant lodged an application for a review of the reviewable decision of the Migration Agents Registration Authority dated 26 May 2020 to cancel the Applicant’s registration as a Migration Agent. In cancelling the Applicant’s registration, the Respondent was satisified that the Applicant engaged in conduct in breach of the obligations under the Code of Conduct and was not a person of integrity, or otherwise not a fit and proper person to give immigration assistance under the Migration Act 1958 (Cth).

2. On 14 September 2020, the Respondent filed a request to issue Summons, requesting “all payslip records for employees of Last Minute Grab Pty Ltd issued during the period 1 March 2018 to 1 August 2018.” The Respondent outlined the reasons in support of the request, namely:

   The payslip records of Last Minute Grab Pty Ltd for the period 1 March 2018 to 1 August 2018 are relevant to determine if there are any further discrepancies or inconsistencies which have not already been identified in the materials filed in the Respondent's T-Documents and Supplementary T-Documents. Inconsistencies in the payment of employees of Last Minute Grab Pty Ltd go towards the allegations that the Applicant has offered non-genuine positions in his own businesses to visa applicants.

3. On 17 September 2020, the Applicant filed a notice of objection to the Summons, seeking an interim order to stay the Summons until the determination of the matter. The Applicant’s representative said as follows:

   The objection, primarily, is one of relevance given that the decision has already been taken to cancel the Applicant’s registration and that any attempt to gather additional evidence to shore up the Respondents case is in effect an abuse of process by reason of it being a “fishing expedition”.

4. The Applicant’s objection to the Respondent’s Summons request was therefore primarily on the basis of relevance. It was argued on behalf of the Applicant that the information sought was of no relevance because the Applicant’s license as a Registered Migration Agent had already been cancelled and therefore the Respondent must have had all of the evidence needed in order to make that decision. It was also argued on behalf of the Applicant that the Respondent was seeking to gather additional material which would not shed any light on the original decision and that the Respondent was rather seeking to conduct a “fishing expedition”, namely seeking to use the Summons just to see what might be there.

5. The Respondent argued that the Summons request was for a very confined set of documents for the purpose of testing inconsistencies in the Applicant’s material identified by the delegate of the Respondent in the decision of the delegate dated 26 May 2020, which is the decision under review.

6. The Respondent referred the Tribunal to the decision of the High Court in Shi v Migration Agents Registration Authority [2008] HCA 31 to support that the process of merits review does not solely have to take into account material that was before the original decision-maker if there is no limitation under the statute. There is no such limitation in this case. Furthermore, the Tribunal is to stand in the shoes of the original decision-maker and can have regard to any material it considers relevant.

   DECISION

7. Having considered the relevant material before the Tribunal, I am of the opinion that the Summons material does relate to an issue that is properly before the Tribunal as part of the review of the reviewable decision of the delegate dated 26 May 2020.

8. The documents sought by the Summons do have apparent relevance to the principal issue on review before the Tribunal and therefore the Tribunal orders that the Summons request is to be complied with.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate

Dated: 2 October 2020

Dates of hearing:	1 October 2020
Applicant’s representative:	Mr C Levingston, Christopher Levingston & Associates
Respondent’s representative:	Ms L Crick, Clayton Utz