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 to dismiss, evidence was given, by telephone, by Dr Kay, a medical practitioner specialising in psychiatry who has been treating the applicant since 1992.

9.      It is unnecessary to set out in detail the evidence given by Dr Kay with respect to the applicant’s medical condition.  Suffice to say, I am satisfied that the evidence establishes that the applicant has over many years been suffering from a medical condition and that that condition is what has caused the applicant to be unable to proceed to a hearing in this matter.

10.     Dr Kay stated that in his opinion the applicant’s medical condition will continue for the foreseeable future, but fluctuate in intensity.  He said that he believed the applicant will have the condition all his life.  Dr Kay stated that, so far as he was concerned, he would not be particularly optimistic as to the applicant’s ability to conduct the matter before the Tribunal on his own.  He did believe, however, that once a matter involving the applicant’s mother’s estate is resolved, he should be able to instruct legal representatives to conduct the matter before the Tribunal on his behalf.

11.     In that regard it is to be noted that, during the course of the hearing of the respondent’s application, the applicant informed the Tribunal that he expected the matter concerning his mother’s estate to be resolved in the next few months and that, thereafter, he would have both the financial ability and the physical and mental capability of engaging and instructing legal representation to conduct on his behalf the substantive matter before the Tribunal.  He informed the Tribunal that if the Tribunal were to list the hearing for a date in December, he would be ready to proceed.

12.     It is well established that the power to dismiss application pursuant to s 42A(5) of the Act should be used “very sparingly” and “as a decision of last resort”:  Guse v Comcare (1997) 49 ALD 288.

13.     The appropriate question to be asked and answered is “whether in all the circumstances of the case it is correct and just for the Tribunal to terminate forthwith an applicant’s reference”:  Logounov v Commissioner of Taxation [2000] FAC 1745 at para [25].

14.     No particular prejudice was identified by Mr Gerrard, Counsel for the respondent, in support of the respondent’s application.  The absence of any particular detriment to the respondent is not, however, determinative of the matter.

15.     There is an inherent public interest in matters before this Tribunal being heard and determined within a reasonable time.

16.     There is no doubt in my mind that a reasonable time has well and truly expired in this case, and that it expired long ago.  But for the applicant’s medical condition which I accept has been the cause of the delay, I would have had no hesitation in acceding to the respondent’s application and dismissing this matter summarily.

17.     The mere fact that delay has been caused due to a medical condition from which the applicant suffers does not, however, give to an applicant a right to maintain a matter before the Tribunal indefinitely.  This is particularly so where, as here, the medical evidence does not suggest any real prospect of the medical condition resolving itself in the foreseeable future.

18.     What I consider to be determinative to the application before me is the applicant’s statement to the Tribunal that, notwithstanding his ongoing medical condition, he expects to be in a position very shortly where he will be able to retain legal representation and provide the necessary instructions to his legal representatives in order for them to prepare for and deal with a hearing of this matter should it be listed in December.

19.     I therefore consider that, on balance, the application for dismissal pursuant to s 42A(5) of the Act ought be dismissed on the basis that, unless it is to be dismissed pursuant s 42B, the hearing of this matter will be listed for 2 days in December and that a directions hearing be listed in September so that the necessary directions may be made to program the matter to that end.

Section 42B

20.     Section 42B of the Act empowers the Tribunal to, at any stage of a proceeding, dismiss an application “if it is satisfied that the application is frivolous or vexatious”.

21.     Again, such a pre-emptory power to dismiss proceedings is to be exercised cautiously and sparingly: Williams and Australian Electoral Commission (1995) 38 ALD 366.

22.     It is well established that an application may be “frivolous and vexatious” if proceedings are or have become “futile” or are otherwise pursued for a collateral purpose: see Williams.

23.     In this regard it has been said that the Tribunal is not obliged to hear a matter where an applicant is only seeking restoration of honour and has little prospect of success:  Irving and Repatriation Commission (1997) 46 ALD 20.

24.     The respondent submits that these proceedings are “futile” as the period of the applicant’s suspension will have expired before the matter is heard by the Tribunal.  The applicant responds by stating that the respondent’s decision is publicised on the respondent’s website for ten years (which the respondent confirmed through its counsel) and that such publication will make it difficult, if not impossible, for the applicant to re-establish himself as a migration agent.

25.     To that, the respondent submits that such is an impermissible collateral purpose itself rendering the proceedings frivolous or vexatious.

26.     The mere fact that the terms of the decision under review have already operated, whilst very relevant to whether or not the continuation of the proceedings are “frivolous or vexatious”, does not necessarily cause them to be so.  In Fleet Management Limited and Australian Maritime Safety Authority [2006] AATA 309, the applicant sought a review of decisions of the respondent to detain two of its vessels. The respondent sought dismissal of the applications pursuant to s 42B of the Act on the basis that the Tribunal’s determination of the applications were of no useful effect, the vessels having already been released. The applicant gave evidence that public websites record detentions which can affect the operator’s trading reputation and profitability, and that potential clients would take advantage of this negative effect on the trading reputation to negotiate a more favourable deal.

27.     The Tribunal refused to dismiss the proceedings.  Senior Member Constance cited re Theo and Secretary, Department of Family and Community Services [2005] AATA 699 as setting out numerous principles to be taken into account in determining whether proceedings were frivolous and vexatious, including that the power may be exercised if the application is “devoid of utility”. In Fleet Management, Senior Member Constance was not satisfied that the application were “devoid of utility” given the concerns the applicant had raised in relation to the possible economic effects of the continued listing of the detentions on the trading capability of each vessel.  At para [12] Senior Member Constance said:

“While the evidence called on behalf of the Authority suggests that these concerns may never materialise, it is not established that they are groundless.  It is not necessary that the company prove that there will in fact be some detriment to its business; it is for the Authority to show that the continuation of these proceedings can have no useful purpose”.

28.     The applicant before me adduced no evidence to substantiate his assertion that the continued publication of the reviewable decision on the respondent’s website would impact adversely on the applicant’s ability, in practicable terms, to re-establish himself as a Migration Agent.  However, that is a proposition that I do not consider requires evidence; it is a reasonable inference to draw from the very reason why the respondent maintains such decisions on its website, namely to inform those who may wish to retain a migration agent of those who have previously been dealt with by the respondent, for, amongst other things, breaching the relevant code of practice.  I find that there is a real and not fanciful prospect that it will operate as a public blemish on the applicant’s name and reputation and therefore has a real and not fanciful prospect of impacting adversely upon the applicant when he seeks to re-establish himself as a migration agent.

29.     It therefore follows that the maintenance of this matter before the Tribunal cannot properly be described as “futile” as, if it is successful, it will no doubt result in the reviewable decision, if set aside, being removed for the respondent’s website.

30.     I therefore do not consider the power given to the Tribunal by s 42B(1) of the Act to be enlivened on the facts before me.

CONCLUSION

31.     For the reasons given, this matter will not be dismissed, but the substantive hearing of the matter will be listed for 2 days in December, with a directions hearing to be convened on a date to be fixed in September with the intention that, at that directions hearing, all necessary directions be made so that the substantive hearing in December may proceed without any further delay.

I certify that the thirty one [31] preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member

Signed:         ...................(Sgd. R Riberi)................................
  Associate

Date of Hearing  5 July 2007
Date of Decision  30 July 2007
Representative for the Applicant         Self Represented
Counsel for the Respondent                Mr A Gerrard
Solicitor for the Respondent                Australian Government Solicitor