Kadeh v Administrative Appeals Tribunal

1. The proceeding brought by the applicant be dismissed.
2. The applicant pay the third respondent's costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BESANKO J: 1 This is an application by the Migration Agents Registration Authority (the Authority) for an order that a purported appeal by the applicant is incompetent by reason of the fact that it is out of time (Administrative Appeals Tribunal Act 1975 (Cth) s 44(2A) (the AAT Act)) and no application for an extension of time has been made by the applicant. In the alternative, if the appeal is competent, the Authority contends that the purported appeal, on being listed for hearing and nothing being said by the applicant to establish error on the part of the Administrative Appeals Tribunal (the Tribunal), should be dismissed on the basis that it has no merit. Both of these contentions are correct. 2 The convoluted nature of the applicant's applications are described in two previous decisions I have delivered: CZP20 v Administrative Appeals Tribunal [2021] FCA 61; Kadeh v Administrative Appeals Tribunal (No 2) [2021] FCA 132. On 4 February 2021, I made the following orders, relevantly that: 2. The applicant has leave to file and serve within seven days such documents as are necessary under the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules 2011 (Cth) (see Division 33.2 in particular) to apply for an extension of time within which to start an appeal under s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) against decisions made by the Tribunal on 9 July 2020 and 28 October 2020 respectively. 3. The third respondent file and serve, within 21 days, a court book in relation to the two decisions referred to in the previous order. 4. The applicant file and serve, within 28 days, any further affidavit evidence with respect to the two decisions referred to in the Order 2. 5. The third respondent file and serve, within 35 days, any affidavit evidence upon which it proposes to rely in relation to the two decisions in the Order 2. 3 On 19 March 2021, I made an order that the matter be adjourned to 14 April 2021 at 9:30 am for hearing and an order for the filing of written submissions. As at that date, the applicant had filed an Amended Originating application for judicial review purportedly under s 39B of the Judiciary Act 1903 (Cth) and seeking orders in the nature of certiorari quashing the decisions of the Tribunal made on 9 July 2020 and 28 October 2020 respectively. In an accompanying affidavit, apparently affirmed by the applicant on 11 February 2021, he asserts a failure to comply with s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and that the Minister had acted under dictation. He also challenges the Tribunal's refusal to grant a confidentiality order and the Authority's decision to cancel his registration as a migration agent. None of these matters was the subject of the grant of leave which I gave on 4 February 2021 and, in fact, I refused to grant leave to challenge the Authority's decision because this Court lacked jurisdiction with respect to such a challenge. Also as at 19 March 2021, the Authority had filed and served a court book and a supplementary court book in accordance with paragraph 3 of the orders I made on 4 February 2021, but neither the applicant nor the Authority had filed any affidavit evidence in accordance with the orders in paragraphs 4 and 5 of the orders made on 4 February 2021. 4 In the second of the two decisions referred to above, I made the following observations (at [5]-[6]): In purported compliance with the order set out in paragraph 2 of the orders I made on 4 February 2021, the applicant filed an Amended Originating application for judicial review in which he challenges decisions of the Tribunal, but seeks prerogative relief by way of remedy. The applicant's application does not comply with the order I made. The order I made gave the applicant leave to apply for an extension of time to start an appeal under s 44(2A) of the AAT Act against decisions made by the Tribunal on 9 July 2020 and 28 October 2020 respectively. The order I made refers to Div 33.2 of the Federal Court Rules 2011 (Cth) (the Rules). Rule 33.13 of the Rules addresses the requirements in relation to a person who wants to apply for an extension of time within which to start an appeal mentioned in s 44(2A) of the AAT Act. The applicant will need leave to remedy this non-compliance, but, in my opinion, that should not delay consideration of his two interlocutory applications. 5 On 9 March 2021, the Authority's solicitor wrote to the applicant and identified his non-compliance with the orders made on 4 February 2021 and stated that a Notice of objection to competency would be filed if the applicant did not remedy his non-compliance. 6 On 18 March 2021, the Authority filed a Notice of objection to competency. The Notice refers to the leave granted on 4 February 2021 and then continues as follows: 5. The amended application purports to be brought under s 39 [sic s 39B] of the Judiciary Act 1903 (Cth) instead of s 44 of the Tribunal Act as per the leave granted on 4 February 2021. 6. The applicant has not applied for an extension of time within which to start an appeal under s 44(2A) of the AAT Act against the Tribunal's decisions. 7. On 26 February 2021, the Court published a judgment in which it drew the applicant's attention to the fact that the amended application did not comply with the leave granted to him on 4 February 2021 (Kadeh v Administrative Appeals Tribunal (No 2) [2021] FCA 132 at [5]-[6] per Besanko J). 8. As the applicant requires an extension of time to appeal from the Tribunal's decisions, and such an extension has neither been sought nor granted, the further amended application is incompetent. 7 Shortly before the hearing on 14 April 2021, the Court received the following documents from the applicant: (1) Submission of the applicant dated 13 April 2021, an email from the solicitor for the Authority dated 13 April 2021, a copy of r 36.72 of the Federal Court Rules 2001 (Cth) (the Rules) (Notice of objection to competency of appeal) and copies of ss 43C and 44 of the AAT Act; (2) A copy of a decision made by a senior member of the Tribunal on 30 November 2018 concerning the applicant's application for a stay and a confidentiality order respectively; (3) A copy of the orders I made on 19 March 2021; (4) Copies of the decisions of the High Court in Shi v Migrant Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 and Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (5) A Notice of appeal apparently from the orders I made on 19 March 2021; and (6) Affidavit of the applicant apparently affirmed on 13 April 2021. At the hearing on 14 April 2021, it was difficult to elicit from the applicant what it was that he was challenging as the transcript of the hearing will clearly show. 8 It appears that prior to the hearing, the applicant had proffered a Notice of discontinuance, but did not want to pay the costs. I gave him a short time to consider his position. He then applied for an adjournment which I refused. Mr Swan, counsel for the Authority, then indicated that he would rely on written submissions which he had filed. The applicant said that he had not had sufficient time to consider those submissions. Even though the Authority was in no way at fault, I adjourned the matter to 16 April 2021 so that the applicant would have the opportunity to consider the written submissions filed by it. 9 Shortly prior to the hearing on 16 April 2021, the applicant purported to file a two page document consisting of five paragraphs and titled "Submission of the Applicant", an apparently incomplete letter from Firmstone & Associates dated 10 December 2018, a letter from the Tribunal dated 1 February 2019, and an email from the applicant at "Law Communicators". 10 There are two submissions that the Authority makes which must be dealt with at the outset. First, the Authority submits that the applicant is in default under the Rules in that he has not complied with orders of the Court (r 5.22) and, in the circumstances, the proceeding is liable to be dismissed (r 5.23). The principal non-compliance relied on by the Authority is the failure by the applicant to, in effect, exercise the leave granted by paragraph 2 of the orders made on 4 February 2021. Whether a failure to exercise leave or a permission granted by the Court is a default within r 5.22 may well be a debatable point. What is clear, however, is that any appeal from the relevant decisions of the Tribunal is out of time and no application for an extension of time is made. In those circumstances, the proceeding is incompetent (NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 at [11] per Tamberlin, Sackville and Hely JJ) or, even if it is competent, it is without merit because no basis for an extension of time has been established. 11 In any event, a challenge to the merits of the two decisions of the Tribunal has not been shown to have any substance. The Amended Originating application for judicial review identifies no grounds of review or errors of law. As the Authority pointed out, a number of the applicant's assertions in his accompanying affidavit are not particularised. He claims that the Tribunal acted under dictation, however, no particulars are provided. He claims that the Tribunal failed to take into account relevant considerations. However, no relevant considerations are identified and it is not explained why there are considerations that must be taken into account. He claims that the Tribunal erred in refusing his confidentiality application. However, that application is not the subject of the leave granted by me, and, even assuming that the Tribunal had erred in relation to that application, it is not apparent how that affected either the dismissal decision on 9 July 2020 or the reinstatement decision on 28 October 2020. He claims that the Tribunal's decision was illogical or irrational, but provides no particulars as to why that is so. I agree with the Authority that the Tribunal's reasons for each of the two decisions identify an evident and intelligible justification for the orders which it made. In my opinion, even if the appeal is competent it is entirely without merit and should be dismissed. 12 I make the following orders: (1) The proceeding brought by the applicant be dismissed. (2) The applicant pay the third respondent's costs of the proceeding. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.