Hartnett v Migration Agents Registration Authority

[2003] FCA 1165

FEDERAL COURT OF AUSTRALIA

Hartnett v Migration Agents Registration Authority

[2003] FCA 1165

HARTNETT v MIGRATION AGENTS REGISTRATION AUTHORITY
Q130 OF 2003

COOPER J
BRISBANE
17 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q130 OF 2003

BETWEEN:	BEAU TIMOTHY JOHN HARTNETT APPLICANT
AND:	MIGRATION AGENTS REGISTRATION AUTHORITY RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	17 OCTOBER 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.Pending the determination of the application for appeal from the decision of the Administrative Appeals Tribunal, or further earlier order, the decision of the Administrative Appeals Tribunal given on 7 August 2003 be stayed as and from midnight on 14 October 2003. 

2Costs reserved.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q130 OF 2003

BETWEEN:	BEAU TIMOTHY JOHN HARTNETT APPLICANT
AND:	MIGRATION AGENTS REGISTRATION AUTHORITY RESPONDENT

JUDGE:	COOPER J
DATE:	17 OCTOBER 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application to further stay a decision of the Administrative Appeals Tribunal (‘the AAT’) given on 7 August 2003, whereby the AAT affirmed a decision of the Migration Agents Registration Authority (‘the Migration Authority’) to suspend the registration of the applicant as a migration agent for a period of twelve months.

2. On 12 September 2003, I granted a stay until midnight on 14 October 2003 and gave short reasons for so doing.  Since that time, the applicant has filed an application for registration for a further twelve months, which is yet to be considered by the Migration Authority.  The Migration Authority has also given notice that the suspension of twelve months is to take effect as and from 16 October 2003. 

3. Under the Migration Act 1958 (Cth) and Migration Agents Regulations 1998 (Cth), if the suspension takes effect, the current registration will, for the period of that suspension, be extended outwards such that it may not be necessary to consider the application for a further registration for a period in excess of twelve months from the present time. The position of the applicant’s present clients, in the event that a suspension takes effect, has been sufficiently dealt with to my satisfaction by arranging for another migration agent to take over those matters.

4. It seems to me that the only further matter for consideration today is where the balance of convenience now lies. 

5. The applicant has, on a prior occasion by his counsel, asserted that a substantial part of his practice as a solicitor is migration work which requires him being a registered migration agent, and that if the suspension takes effect it will have a significant financial effect on him and his practice. 

6. Although detailed figures are not given, it seems reasonable to assume that there will be some adverse financial consequence if he is suspended from practice for a period of twelve months.  The suspension, if it takes effect, has the potential to render nugatory any right of appeal to the extent that that appeal cannot be heard at an early point in time and, as I have indicated in argument with counsel, an early hearing is not something that is immediately available. 

7. The position remains that the allegations against the applicant concern one client and his conduct in relation to that client and the Migration Authority.  There is no allegation of misconduct in relation to any other client or generally, and it seems to me that if I make an order granting a stay pending the hearing of the appeal or earlier order, if anything does arise then it is within the power of the Migration Authority to come quickly to this Court to have the stay lifted.

8. It also seems to me that it is within the power of Migration Authority, if it believes that this man is not a fit and proper person to carry on business as a migration agent, to deal with his present pending application on its merits to bring the matter to a head.  Overall, I think that the balance of convenience involves granting a stay and seeking to bring the hearing on at the earliest possible date. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated:            22 October 2003

Counsel for the Applicant:	C Wilson
Solicitor for the Applicant:	Hartnett Lawyers
Counsel for the Respondent:	P Bickford
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	17 October 2003
Date of Judgment:	17 October 2003