Wang and Migration Agents Registration Authority

[2004] AATA 1334

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1334

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No N2004/1176 & 1334           

GENERAL ADMINISTRATIVE DIVISION		)
Re		STANLEY WANG

Applicant

And MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Ms R Hunt

Date15 December 2004

PlaceSydney

Decision The Tribunal grants the Applicant an extension of time to apply for review of both decisions before the Tribunal. 

….[sgd]Ms R Hunt….

Senior Member

CATCHWORDS

MIGRATION AGENT – suspension of applicant’s registration as migration agent – refusal to make repeat registration - application for extension of time in which to lodge application for review of suspension decision – application for review of repeat registration decision- explanation for delay – absence overseas – non receipt of correspondence – merits of substantive case – extension of time granted.

LEGISLATION

Migration Act 1958 ss 306, 332H

Administrative Appeals Tribunal Act 1975 ss 29(2) and (8)

Migration Agents’ Regulations 1998 Schedule 2 Code of conduct

CASELAW

Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315

REASONS FOR DECISION

15 December 2004	Ms R Hunt, Senior Member
background

1.      Mr Stanley Wang, the Applicant, was a registered migration agent until 24 May 2004 when the Respondent suspended his registration for 3 years. Mr Wang subsequently applied to the Respondent for repeat registration as a migration agent. The Respondent refused his application for repeat registration on 18 August 2004 as he was no longer registered. Mr Wang applied to the Tribunal on 15 September 2004 for review of the decision to refuse his request for repeat registration. On 8 October 2004, Mr Wang applied for an extension of time to review the earlier decision to suspend his registration. On 18 October 2004, the Tribunal ordered that only one fee was payable for review of these applications and that they be heard at the same time.

submissions and evidence

2.      Mr Wang told the Tribunal at a Tribunal hearing that he had not been aware that he was no longer a registered agent until he saw a copy of the Respondent’s letter of 18 August 2004 which referred to the earlier suspension decision. This was the reason he did not apply for review of the decision dated 24 May 2004 until 8 October 2004. He had applied for review of the repeat registration decision within time but his request for review of the repeat registration refusal could not be considered without review of the earlier suspension decision.

3.      The Respondent’s reasons for the decision of 24 May 2004 show that it suspended Mr Wang’s registration on 24 May 2004 as he had failed to demonstrate that he maintained a professional library and that he kept separate accounts for his operating expenses and client monies. As set out in the Respondent’s reasons for decision, the Respondent had made several written requests for information to which Mr Wang did not respond or responded after considerable delay.

4.      Mr Wang claimed before the Tribunal not to have received the Respondent’s letter dated 25 May 2004 informing him of its decision to suspend his registration. He gave oral evidence that he was an Australian Citizen but spent a lot of time overseas and had been overseas in May 2004 when the decision was made and notified. He said he was overseas between April and June 2004. Mr Wang confirmed in writing on 24 November 2004 that he had entered China on 7 April 2004 and had not returned to Australia until 28 June 2004. He had re-entered China on 14 July 2004 and had remained there. He told the Tribunal it was difficult for him to return to Australia while he was unregistered as he could not earn a living.

5.      On the other hand, I note there is a file note in the Tribunal’s documents , T18 p79, referring to a telephone conversation and fax on 30 March 2004, which recorded that the writer had alerted Mr Wang to his suspension on 16 February 2004. Unfortunately, this evidence was not drawn to my attention at the Tribunal’s hearing and was not tested or put to Mr Wang. As set out in Browne v Dunn, in the circumstances the Tribunal cannot rely on this evidence. Further, the date of the copy of the suspension decision before the Tribunal is 24 May 2004.

6.      Mr Wang said that, although he had made arrangements for business correspondence to be handled or forwarded in his absence, he did not receive registered mail. This was because registered mail required collection in person and signature by the addressee. Therefore, as he was overseas, he had been unable to collect the Respondent’s registered letters addressed to him and was unaware of his deregistration. Mr Wang said he became aware of both decisions when he was faxed a copy of the second decision.

7. The Respondent’s representative advised the Tribunal that the letter of 25 May 2004 and other mail addressed to Mr Wang had indeed been registered mail. However, the Respondent submitted that a presumption operated under section 332H of the Migration Act 1958 as to receipt of mail. The Respondent argued that it was not necessary for the Respondent to show actual receipt occurred. The Respondent further argued that the principles enunciated by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315 indicated that Mr Wang’s late application should not be countenanced.

analysis

8. Section 306 of the Migration Act 1958 is expressed as being subject to the Administrative Appeals Tribunal Act 1975. Section 29(2) of the Administrative Appeals Tribunal Act 1975 provides that the prescribed time for making application to it for review of a decision is the period ending 28 days after the decision is furnished to an applicant.

9. Section 332H of the Migration Act 1958 does provide timing rules as to methods of dispatch of mail and according to these rules, Mr Wang has been given appropriate notice of his suspension and has failed to apply for review within time. However, Mr Wang’s evidence as to the notification in his case is that it did not reach him. Aside from the statutory presumption of receipt, the Tribunal accepts, on balance, the reality that Mr Wang did not receive notice of either decision of the Respondent until receipt of the Respondent’s letter dated 18 August 2004. The notice was duly sent to his address in Australia but Mr Wang was overseas. Mr Wang admits to having received a facsimile copy of the letter of 18 August 2004 and acted first in response to it. He did not, however, initially respond to the decision and notice of 24 May 2004. This was because he was already outside the time for seeking review by the time he became aware of it.

10.     The Tribunal has a discretion under section 29(7) to extend the time within an application may be lodged. The discretion available to the Tribunal to grant an extension of time has been exercised quite frequently if the Tribunal finds the circumstances appropriate. I have noted that Wilcox J in Hunter Valley found circumstances that affect the rule that proceedings should commence on time include, on one hand, the expectation that proceedings should commence on time but, on the other hand, that fairness and the merits of the case should also be taken into account.

11.     In the present case, I am conscious that it is inconvenient for the Respondent to have to wait on the delay of Mr Wang and that he has been tardy in the past in responding to requests. His failures are recorded in a chronology set out in the decision of 24 May 2004. However, Mr Wang has had no opportunity to present arguments to the Tribunal about why the suspension is an incorrect or inappropriate decision. He has a reasonable explanation for his failure to lodge his application for review within the prescribed period. The suspension decision is the basis for the decision to refuse repeat registration, review of which was made within time. In these circumstances, I consider that Mr Wang should be permitted to proceed with his application for review of the decision to suspend his registration in order to proceed with the second aspect of the Tribunal’s review.

12.     I have therefore decided to grant Mr Wang an extension of time to proceed with the application for review of the decision to suspend his registration in order to enable review of both decisions before the Tribunal.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt, Senior Member

Signed:         .....................................................................................
  Associate: Reuben Mansour

Date of hearing  23 November 2004
Date of decision     15 December 2004
Solicitor for the Respondent  Phillips Fox Lawyers