Vilips and Migration Agents Registration Authority - [2007] AATA 1613

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1613
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200400310

GENERAL ADMINISTRATIVE DIVISION )

Re PAULS VILIPS

Applicant

And

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Mr S Penglis, Senior Member
Date30 July 2007
PlacePerth

Decision
The respondent’s application to dismiss this matter pursuant to s 42A(5) and s 42B of the Administrative Appeals Act, 1975 is dismissed.

...........(Sgd. S Penglis)................
Senior Member

CATCHWORDS
Practice and procedure – applicant unable to prosecute matter for medical reasons for almost three years – period of applicant’s suspension will have been served by the time that the applicant is able to proceed to a hearing – applicant wishes to continue with matter to hearing because the reviewable decision is maintained on respondent’s website for 10 years – how discretion ought to be exercised in the circumstances
LEGISLATION
Administrative Appeals Tribunal Act 1975, ss 42A(5), 42B
CASES
Fleet Management Limited and Australian Maritime Safety Authority [2006] AATA 309
Guse v Comcare (1997) 49 ALD 288
Irving and Repatriation Commission (1997) 46 ALD 20
Logounov v Commissioner of Taxation [2000] FCA 1745
Theo and Secretary, Department of Family and Community Services [2005] AATA 699
Williams and Australian Electoral Commission and The Greens (1995) 38 ALD 366
REASONS FOR DECISION

30 July 2007 Mr S Penglis, Senior Member

1.      On 9 August 2004 the respondent suspended the applicant’s migration agent registration for a period of 3 years (or until certain conditions were satisfied) following the respondent’s finding under s 303(h) of the Migration Act, 1958 that the applicant had not complied with the Migration Agents’ Code of Conduct.
2.      On 3 September 2004, the applicant applied to the Tribunal to review the respondent’s decision.
3.      The matter was originally listed for hearing on 25 and 26 October 2005 but the applicant was not able to proceed on those dates and they were vacated.
4.      The matter was then listed for hearing on 22 and 23 June 2006. On 22 June 2006 the hearing of the matter was again vacated, again upon the applicant’s motion, as, for medical reasons, he was still not ready to proceed.
5.      As a result of the applicant continuing to maintain that he was not medically fit to proceed to a hearing of the matter, the applicant appearing in person, the matter has not been relisted for hearing.
6.      The respondent has now applied to the Tribunal to dismiss the matter pursuant to s 42A(5) and/or s 42B of the Administrative Appeals Tribunal Act, 1975 (“Act”).
Section 42A(5)
7.      Section 42A(5) of the Act provides as follows:
“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,

a presidential member, or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the decision”.

8. At the hearing of the respondent’s 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.

Continue reading Vilips and Migration Agents Registration Authority

Details

AGLC: Vilips and Migration Agents Registration Authority [2007] AATA 1613
Case: [2007] AATA 1613
Decision Date: 30 July 2007

CaseChat Overview and Summary

The parties involved in this case were Vilips, the applicant, and the Migration Agents Registration Authority, the respondent. The dispute centred on the applicant's inability to prosecute the matter due to medical reasons for almost three years. By the time the applicant was able to proceed with the hearing, the period of suspension would have been served. Nevertheless, the applicant wished to continue with the matter as the reviewable decision was maintained on the respondent’s website for ten years. The case was heard in the Administrative Appeals Tribunal.

The primary legal issue the court had to decide was how to exercise the Tribunal's discretion when the applicant, who had been unable to prosecute the matter for medical reasons, wanted to continue with the case despite the period of suspension being served. The court had to consider the impact of the reviewable decision being maintained on the respondent’s website for ten years on the exercise of its discretion.

The court determined that the Tribunal's discretion should be exercised in a manner that balances the interests of both parties. Given the impact of the reviewable decision remaining on the respondent's website for an extended period, the court found that the applicant's wish to continue with the matter was reasonable. Consequently, the court dismissed the respondent’s application to dismiss the matter under section 42A(5) and section 42B of the Administrative Appeals Act, 1975.

As a result of the court's decision, the respondent's application to dismiss the matter was dismissed. The applicant was thus permitted to continue with the case, allowing for the review of the decision that was maintained on the respondent's website for ten years.

Orders

Orders of the court

The respondent’s application to dismiss this matter pursuant to s 42A(5) and s 42B of the Administrative Appeals Act, 1975 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.