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 found in s.41(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) which states:

…

(2) The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

The decision of Davies J, as President of the Tribunal in Re Dart and Director-General Social Services (1982) 4 ALD 553, provides guidance regarding exercise of the discretion to grant a stay:

…a stay order is made only if it appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.  A stay order may be appropriate so the hearing can take place at a suitable time after there has been adequate preparation for the hearing by both parties.

4.      It is not disputed that Mr Amin’s registration as a migration agent would have expired at midnight on 5 March 2003.  Mr Amin had applied to the Authority on 19 February 2003 for renewal of his registration as a migration agent. 

5.      Mr Amin gave oral evidence and stated that the content of his statement dated 29 October 2003 was true and correct.  Mr Amin arrived in Australia in April 1992 and a little while later began working as an interpreter and translator in Bengali and Hindi.  He was registered as a migration agent on 6 March 1998 and has continued to work as a migration agent until recently notified by the Authority that his application for repeat registration had been refused.

6.      He told the tribunal that, prior to receiving notice from the Authority on 8 October 2003 that his renewal had been refused, his work as a migration agent used to make up roughly 50 per cent of his business as an interpreter, translator and migration agent.  He said he became occupied with responding to the Authority’s enquiries early in 2003.  Prior to then, he usually had about 100 migration agent matters.  However, by October 2003 he had only about 15 such matters.  He said that because of his focus on the Authority’s enquiries, he could not concentrate on the migration agent work, he became slower at it and it gradually declined.   Mr Amin said that some of the 15 matters involved applications to the Migration Review Tribunal and the Refugee Review Tribunal, but none had yet been set down for hearing.  He has not needed to work on any of the 15 matters since 8 October 2003. 

7.      It is necessary to set out the provisions in the Act that deal with automatic continuation of a migration agent’s registration.

Section 300  Automatic continuation of registration

(1) If:

(a) before the end of the last day (the expiry day) of the period of registration of a registered agent, the agent has made a registration application; and

(b) the agent has paid the registration application fee (if any) in respect of the application; and

(c) the Migration Agents Registration Authority has not decided the application before the end of the expiry day;

the agent's registration is taken to continue until the Authority decides the application.

Application granted if no decision within a certain period

(2) However, if the Authority has not decided the registration application before the end of the period of 10 months beginning on the day after the expiry day, the application is taken to have been granted at the end of that period.

…

8.      Mr G Peek, solicitor, appeared for the Authority.  In his submission, the tribunal does not have power to grant a stay in this matter.  He relied on the decision of Deputy President McMahon in Re Alexander and Migration Agents Registration Board (1995) 40 ALD 99 which in his submission dealt with provisions that are equivalent to s.300 of the Act. Mr Peek referred to the following passage of the decision:

It is important, in my view, to understand that s 5 does not confer approval upon an existing agent. It simply grants immunity from the restrictive provisions of Division 2, provided application for registration is made within 3 months. It is sometimes loosely referred to as a "grandfather clause". Unlike other provisions going under that name, it does not preserve indefinitely the right to practise of those who were practising when the legislation was introduced. (at 101)

As the effect of a stay is to preserve the status quo, Deputy President McMahon would not grant temporary registration of a person, who hitherto had been unregistered, pending the tribunal’s review because that would amount to granting registration without investigation of the merits.  Mr Peek also cited the ex tempore decision of Senior Member Allen in Re Shi and Migration Agents Registration Authority (date of decision: 17 October 2003), written reasons for which are not presently available to me.

9.      Mr C Colborne, counsel for Mr Amin, submitted that since the introduction of s.300(1) into the Act, the tribunal has had the power to grant a stay of a decision refusing re-registration.  He noted that Re Alexander concerned an agent who had not previously been registered, which distinguishes it from the present matter. Mr Colborne referred to the decision of Senior Member Beddoe in Re Nelson and Tax Agents Board Queensland (1993) 30 ALD 317 who compared the effect of a decision to refuse re-registration with a decision to cancel registration. Senior Member Beddoe decided that the relevant legislation revealed a basis for preserving the status quo pending the hearing of the substantive application for review. In addition, Mr Colborne cited the decision of Deputy President Handley in Re Maarbani and Migration Agents Registration Authority (date of decision: 10 June 2003), where a stay was granted of a decision by the Authority refusing to re-register an agent.

10.     Mr Amin has been registered as a migration agent since 1998.  As Deputy President McMahon acknowledged in Re Alexander, the power in s.41(2) of the AAT Act has been exercised for the purpose of reinstating an applicant to their former position prior to the operative decision being made, such as a decision not to renew registration. This is what happened in Re Nelson.. Consequently, I accept Mr Colborne’s submission that Re Alexander can and should be distinguished, and I find that the tribunal has power to grant a stay.

11.     Mr Amin has stated that if the stay is not granted, his business and reputation will suffer harm that may prove irreparable.  I accept that evidence.  Success on review of the Authority’s decision would not undo any disruption to his practice in the interim as the tribunal would be unable to compensate him.  I am mindful also of the public interest and the need to protect clients from migration agents who the Authority has found are not fit and proper persons to give immigration assistance and / or persons of integrity.  In this regard, I note Mr Colborne’s submission that the Authority’s enquiries and deliberations continued for almost two years before its decision of 3 October 2003, implying that the Authority did not view Mr Amin as a significant danger to the public.  In my opinion, a stay order subject to certain conditions can afford adequate protection of the public interest.

12. Subject to the conditions below, I will exercise the power in s.41(2) of the AAT Act. The effect of s.300(2) is that an application for renewal is deemed to have been granted if the Authority has not made its decision within ten months of the registration otherwise expiring. I note that Mr Amin is agreeable to the term of the stay not extending beyond ten months from the expiry of his registration. Consequently, I order 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, on the following conditions:

·     Mr Amin is not to advise or assist any person involved in applications before the Federal Court.

·     In compliance with clause 2.8(c) and (d) of the Code of Conduct, Mr Amin is to write to his clients about progress in their case and inform them in writing of the outcome of their case.

·     In compliance with clause 7.4 of the Code of Conduct, Mr Amin 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.

13.The parties will have liberty to apply.