Falcon and Migration Agents Registration Authority

[2002] AATA 300

DECISION AND REASONS FOR DECISION [2002] AATA 300

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V02/151

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      ADA FALCON        
  Applicant
           And    MIGRATION AGENTS REGISTRATION AUTHORITY          
  Respondent

O R D E R

Tribunal       Mrs Joan Dwyer, Senior Member 

Date13 March 2002

PlaceMelbourne

The application under s 41(2) of the Administrative Appeals Tribunal Act 1975 for a stay of the decision of the Migration Agents Registration Authority made on 22 January 2002 is refused.
  (Sgd)  Joan Dwyer
  Senior Member
MIGRATION AGENTS REGISTRATION – cancellation of registration – stay application – application refused
Migration Act 1978 s 303(h)

Re Dekanic and Tax Agents' Board of New South Wales (1982) 6 ALD 240

REASONS FOR DECISION

12 March 2002        Mrs Joan Dwyer, Senior Member,   

1. This is an application for a stay of the decision of the Migration Agents Registration Authority ("MARA"), made on 22 January 2002, which cancelled the registration of Ms Falcon as a Migration Agent by removing her name from the register as MARA was satisfied, pursuant to s 303(h) of the Migration Act 1958 ("the Act"), that Ms Falcon had not complied with the Code of Conduct.

2. Mr Gerkens, a solicitor, appeared for Ms Falcon. Ms Falcon gave evidence. Mr Brereton, a solicitor, appeared for the respondent. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), and also the exhibits tendered during the hearing.

3. The AAT may make a stay order under s 41(2) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") where the Tribunal is of the opinion, after taking into account the interests of any persons who might be affected by the review, that it is desirable to do so for the purpose of securing the effectiveness of the hearing and determination of the application for review.  This application requires the Tribunal to take into account the interests of the applicant in maintaining her business as a migration agent and those of the public who may engage Ms Falcon as a migration agent.

4. On the one hand, Mr Gerkens submits that Ms Falcon should have the opportunity to challenge the cancellation decision before the cancellation takes effect.  On the other hand, Mr Brereton submits that this is a matter where it is in the public interest that the decision under review should be effective until the Tribunal has considered the matter fully as referred to in Re Dekanic and Tax Agents' Board of New South Wales (1982) 6 ALD 240. Davies J while explaining the reasons for granting a stay added at p242:

   That, as I see it then, is the basic approach to take in these matters but, of course, in every particular case the circumstances of the case must be considered and in not every case will it be appropriate that a stay should be granted.  Particularly a stay should not be granted if it is clear that, in the public interest, the decision under review should be effective until the Tribunal has considered the matter fully.

5. The legislative scheme for the registration of migration agents is set up under Part III of the Act. Only registered agents can give immigration assistance to members of the public. Section 303 of the Act provides that MARA may cancel the registration of a registered agent if it becomes satisfied that:

   (h)the agent has not complied with the Code of Conduct prescribed under section 314.

6. The facts in this matter arise out of one file only, as Mr Gerkens pointed out.  Ms Falcon agreed to act for Dr Dhillon and his family in applications for them to obtain permanent residency in Australia.  Dr Dhillon paid $5000 and received a receipt dated 23 October 1997 and a letter confirming that the total cost was to be $5000 on a no-win, no-fee basis.  Before any application had been lodged, Dr Dhillon obtained a position at a hospital in Forbes, New South Wales and permission to enter Australia through a regional sponsored migration scheme arranged by the hospital (T6 p45).  Ms Falcon claims that she found that position for Dr Dhillon.

7. On 10 November 2000 Dr Dhillon telephoned Ms Falcon and told her not to go on with his Business Skills or Investment application which had by then been lodged.  Dr Dhillon was of the view that he might be entitled to some refund of part of the $5000.  His wife visited Ms Falcon in her office on 2 March 2001.  Ms Falcon refused any refund and in fact demanded a further $6000 which she claimed in evidence had been previously agreed, but only on an informal oral basis.  Some months later, on 21 July 2001, Ms Falcon wrote a letter of demand to Dr Dhillon threatening legal action to recover the additional $6000.  That letter contained a sentence which MARA construed as intimidation, or applying undue pressure (T5 p42).

8. Ms Falcon during evidence tendered a letter (A1) saying that migration advice is approximately 20 per cent of the work of Falcon Travel Pty Ltd, of which she is the manager.  She also gave evidence as to her dealings with the Dhillon family.  That evidence indicated that Ms Falcon has not complied, and still does not see any reason to comply, with clauses 5.1 and 5.2 of the Code of Conduct as to costs, either as to the requirement that there be written acceptance of the terms of the work to be done, or as to costs being reasonable in the circumstances of the case.  Her explanation as to the meaning of the sentence complained of in her letter to Dr Dhillon was confused and not persuasive.

9. Ms Falcon said she only had about eight migration files when her licence was cancelled.  The matter is therefore quite different from Dekanic  where Mr Dekanic had a large practice and a number of employees.  Ms Falcon does not rely on her migration agent licence for the major part of her income.  I do not consider it desirable to grant a stay to secure the effectiveness of the hearing in this matter.  I consider it is a situation where the interests of the public suggest that the decision under review should remain effective until the substantive hearing.

10. The application for a stay will be refused.

    I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member

    Signed:         Grace Carney
      Associate

    Date/s of Hearing  12 March 2002
    Date of Decision  12 March 2002
    Counsel for the Applicant        Nil
    Solicitor for the Applicant         Mr Gerkens
    Counsel for the Respondent    Nil
    Solicitor for the Respondent    Mr Brereton