Amin and Migration Agents Registration Authority - [2003] AATA 1095

Administrative

Appeals

Tribunal

REASONS FOR ORDER [2003] AATA 1095
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/1590

GENERAL ADMINISTRATIVE DIVISION )

Re BONI AMIN

Applicant

And

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

ORDER

Tribunal P.J Lindsay, Senior Member
Date29 October 2003
PlaceSydney

Order
For the reasons given orally at the hearing, pursuant to s.41(2) of the Administrative Appeals Tribunal Act 1975 the Tribunal orders that the implementation and operation of the respondent’s decision dated 3 October 2003 refusing the applicant’s application for renewal of his registration as a migration agent be stayed until 4 January 2004 subject to the following conditions:

1.      The applicant is not to advise or assist any person involved in     applications before the Federal Court.

2.      In compliance with clause 2.8(c) and (d) of the Code of Conduct,       (Migration Agents Regulations 1998, Schedule 2) the applicant is         to write to his clients about progress in their cases and inform them in writing of the outcome of their cases.

3.       In compliance with clause 7.4 of the Code of Conduct, the            applicant is to keep records of clients’ accounts, including records         of deposits and withdrawals made in relation to individual clients and provide receipts for any payments made by clients.

The parties have liberty to apply.

  (sgd) P.J. Lindsay

CATCHWORDS
Application for repeat registration as migration agent – application refused – whether decision refusing repeat registration should be stayed – stay ordered
Administrative Appeals Tribunal Act 1975 s.41
Migration Act 1958 s.300
Migration Regulations 1998, Schedule 2, Code of Conduct

Re Dart and Director-General of Social Services (1982) 4 ALD 553
Re Shi and Migration Agents Registration Authority [AATA] (17 October 2003)
Re Alexander and Migration Agents Registration Board (1995) 40 ALD 1999
Re Nelson and Tax Agents Board Queensland (1993) 30 ALD 317
Re Maarbani and Migration Agents Registration Authority (10 June 2003)
REASONS

29 October 2003 P.J Lindsay

1. Boni Amin has applied to the tribunal for review and a stay of a decision made by the Migration Agents Registration Authority (the Authority) on 3 October 2003. The Authority’s decision was to refuse Mr Amin’s application for renewal of his registration as a migration agent.
2. By letter dated 3 October 2003 the Authority noted that it reached its decision because it was satisfied of the matters referred to in s.290(1) of the Migration Act 1958 (the Act), namely that Mr Amin is not a person of integrity and/or is not a fit and proper person to give immigration assistance. The Authority was so satisfied because it found that Mr Amin’s conduct, the subject of complaints by four clients, breached numerous clauses of the Migration Agents’ Code of Conduct, namely certain provisions in: clause 2 dealing with standards of professional conduct; clause 4 dealing with relations between agents; clause 5 regarding fees and charges; and clause 6 which is about record keeping and management (see Migration Agents Regulations 1998, Schedule 2, Code of Conduct).
3. The Tribunal’s power to grant a stay is…

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.

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Details

Case: [2003] AATA 1095
Decision Date: 29 October 2003

CaseChat Overview and Summary

In the matter of Boni Amin, the applicant, and the Migration Agents Registration Authority, the respondent, the Administrative Appeals Tribunal considered an application by Mr Amin for a review and a stay of a decision by the Authority dated 3 October 2003. The Authority had refused Mr Amin's application for renewal of his registration as a migration agent on the basis that he was not a person of integrity and/or not a fit and proper person to provide immigration assistance. The Tribunal was required to decide whether it had the power to grant a stay of the Authority's decision and, if so, whether it should exercise that power in the circumstances of this case.

The primary legal issue before the Tribunal was whether it had the authority to grant a stay of the Authority's decision under section 41(2) of the Administrative Appeals Tribunal Act 1975. The Authority argued that the Tribunal lacked the power to grant such a stay, relying on the decision of Deputy President McMahon in Re Alexander and Migration Agents Registration Board (1995) 40 ALD 199. Counsel for Mr Amin contended that the Tribunal had the power to grant a stay, distinguishing Re Alexander on the basis that it concerned an agent who had not previously been registered, unlike the present case where Mr Amin had been registered since 1998. The Tribunal considered the relevant legislation and previous decisions, ultimately finding that it did have the power to grant a stay in this matter.

The Tribunal concluded that a stay was appropriate in this case to secure the effectiveness of the hearing and determination of the application for review. Mr Amin had been registered as a migration agent since 1998 and had his registration lapse on 5 March 2003. He had applied for renewal on 19 February 2003, and the Authority had not made a decision within the required period under section 300 of the Migration Act 1958. The Tribunal accepted that if the stay was not granted, Mr Amin's business and reputation would suffer irreparable harm, and that success on review would not undo any interim disruption. The Tribunal also noted the public interest in protecting clients from unfit and improper migration agents and that the Authority's decision implied that Mr Amin was not viewed as a significant danger to the public. Consequently, the Tribunal decided to exercise its power to grant a stay, subject to certain conditions.

The Tribunal ordered that the implementation and operation of the Authority's decision of 3 October 2003 refusing Mr Amin's application for renewal of his registration as a migration agent be stayed until 4 January 2004. The stay was subject to the following conditions: Mr Amin was not to advise or assist any person involved in applications before the Federal Court; he was to write to his clients about the progress and outcome of their cases; and he was to keep records of clients' accounts and provide receipts for payments made by clients. The parties were granted liberty to apply.

Orders