Howard and Migration Agents Registration Authority - [2002] AATA 1245

DECISION AND REASONS FOR DECISION [2002] AATA 1245

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1637
N2002/266

GENERAL ADMINISTRATIVE DIVISION       )
           Re       MARGARET HOWARD
  Applicant
           And    MIGRATION AGENTS REGISTRATION AUTHORITY
  Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member

Date4 December 2002
PlaceSydney

Decision The Tribunal refuses the application of Miss Margaret Howard to have her name suppressed pursuant to section 35(2) of the Administrative Appeals Tribunal Act 1975 in publication of the decisions in matters N2001/1637 and N2002/266, and of this decision, which gives reasons for so deciding.

[SGD] Ms G Ettinger
Senior Member
CATCHWORDS
Practice and procedure – proceedings – Administrative Appeals Tribunal - confidentiality order – principles applicable - whether section 35 order appropriate - application refused

LEGISLATION
Administrative Appeals Tribunal Act 1975 s 35(2)
Migration Act 1958

CASE LAW
Howard and Migration Agents Registration Authority [2001] AATA 978
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Minister for Immigration and Ethnic Affairs and Pochi (1980) 4 ALD 139
Re Maher and Attorney-General's Department (1985) 7 ALN N411
Nolan and Minister for Immigration and Ethnic Affairs (1986) 9 ALD 407
Re Kanina Banner Pty Ltd and Minister for Health and Ageing (2002) 66 ALD 663
R v Chief Registrar of Friendly Societies, Ex parte New Cross Building Society [1984] 1 QB 227
Scott v Scott [1913] AC 417
Flood v Secretary Department of Social Security (1994) 33 ALD 182
Bailey v Comcare Australia(AAT 10215, 1 June 1995)

REASONS FOR DECISION

4 December 2002 Ms G Ettinger - Senior Member

The decision before the Administrative Appeals Tribunal ("the Tribunal") was the application of Miss Margaret Howard at the close of the hearing in Matters N2001/1637 and N2002/266, to have her identity suppressed pursuant to section 35(2) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). Miss Howard's substantive appeal had been against the decision of the Migration Agents Registration Authority, ("MARA"), dated 14 February 2002, (Exhibit R3), not to grant her re-registration as a migration agent pursuant to section 290(1) of the Migration Act 1958 ("the Act"). MARA refused registration on the basis that Miss Howard had breached various clauses of the Migration Agents Code of Conduct and it was satisfied that Miss Howard was not a person of integrity and otherwise not a fit and proper person to give immigration assistance.
The Applicant was represented by Ms Tzannes of counsel instructed by Nyman Gibson & Co, and the Respondent, MARA, by Ms S Hamer, solicitor of the Australian Government Solicitor, who had also represented the Respondent at the substantive hearing. The application to have Ms Howard's name treated as confidential pursuant to section 35(2) of the AAT Act was heard by telephone on 30 July 2002, some two weeks after the substantive hearing.
ISSUES BEFORE THE TRIBUNAL
The application made by Ms Tzannes after the close of proceedings in Matter N2001/1637 and N2002/266 which had been a hearing in public, was that the name of Miss Howard be…

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.

Continue reading Howard and Migration Agents Registration Authority

Details

AGLC: Howard and Migration Agents Registration Authority [2002] AATA 1245
Case: [2002] AATA 1245
Decision Date: 4 December 2002

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal (AAT) involved an application by Miss Margaret Howard to have her name suppressed in the publication of decisions related to her application for registration as a migration agent. The AAT had to decide whether a confidentiality order under section 35(2) of the Administrative Appeals Tribunal Act 1975 was appropriate. The central legal issue was whether the usual practice of openness in the publication of decisions should be departed from in this case, and if so, under what circumstances.

The AAT considered the submissions from both parties, with Ms Tzannes advocating for the suppression of Miss Howard's name based on various case precedents, including Re Pochi and Minister for Immigration and Ethnic Affairs, where confidentiality was deemed necessary to protect sources of information. Ms Hamer, on the other hand, emphasised that the primary objective of the legislation was to ensure justice was done, and that the suppression of Miss Howard's name would be inconsistent with this goal. Ms Hamer also highlighted that the clients of migration agents, both current and future, constituted a vulnerable class and had a right to be aware of the decision. The AAT noted that while the powers under section 35(2) were meant to be exercised, they should be done so sparingly and only when necessary to prevent injustice or protect the public interest.

After considering the case law and the arguments presented, the AAT concluded that the reasons provided by Miss Howard were insufficient to justify a departure from the usual practice of openness in the publication of decisions. The Tribunal found that the suppression of Miss Howard's name would not prevent injustice nor was it in the public interest. The AAT refused Miss Howard's application for a confidentiality order under section 35(2) of the AAT Act. Consequently, the Tribunal denied her request to have her name suppressed in the publication of the decisions in matter N2001/1637 and N2002/266, as well as in the reasons for the decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have come to the conclusion after considering the case law and the submissions of the parties that the reasons advanced on behalf of the Applicant were insufficient to satisfy me that I should depart in this case, from the normal practice of openness in publication of the full details of the decision I have made with regard to Miss Howard's application for registration as a migration agent. Accordingly, the request for a confidentiality order under section 35(2) of the AAT Act is refused.DECISION The Tribunal refuses the application of Miss Margaret Howard to have her name suppressed pursuant to section 35(2) of the Administrative Appeals Tribunal Act 1975 in publication of the decisions in matter N2001/1637 and N2002/266, and of this decision which gives reasons for so doing.

Ratio Decidendi

Legal Principle Established

The representatives then cited various cases in which confidentiality issues had been considered and which I have taken into account in coming to my decision. A brief comment follows:Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33Minister for Immigration and Ethnic Affairs and Pochi (1980) 4 ALD 139 Ms Tzannes submitted citing Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33, that the powers pursuant to section 35 of the AAT Act were present in the legislation to be used as appropriate, and publication of Miss Howard's name on the internet in particular, should be suppressed. Ms Hamer submitted the starting point of section 35 of the AAT Act was that it was desirable in the first instance that disclosure of names and decisions be made public, emphasising however that unless there was a real possibility of injustice, or disclosure was contrary to the public interest, then that was the appropriate course of action. Ms Hamer submitted that the chief objective of the legislation was to see justice done, and the suppression of Miss Howard's name from the MARA register would be inconsistent with that aim. Ms Hamer also submitted that it was recognised that the clients of migration agents, both present and future, were a vulnerable class of persons and as Miss Howard was still practising, they had a right to be aware of the decision. Miss Howard's embarrassment as stated by Ms Tzannes, was a private interest and insignificant as far as the public interest was concerned, Ms Hamer submitted. I noted Brennan J's comment in Pochi (supra), an appeal against a deportation order by a person convicted of a drug offence, in which his Honour discussed the public interest in protecting the sources of information used to combat crime being paramount, and on keeping certain matters confidential or excluding certain people from hearings. His Honour also said: "Yet the powers conferred upon this Tribunal by s.35(2) are not intended to lie dormant - they are there to be exercised, albeit sparingly." It is worth noting the Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs and Pochi (1980) 4 ALD 139, upheld Brennan J's decision, although it did not deal specifically with matters relating to section 35 of the Act. Ms Tzannes submitted that in that case, the question of public interest had been paramount. I noted that Re Maher (supra) was an application under the Freedom of Information Act 1982 where the Tribunal made an order pursuant to section 35(2) of the AAT Act prohibiting the publication of some evidence. On appeal, holding that a third party had standing to apply in regard to an order made, the Tribunal stated that:"It cannot be said that any one party to a proceeding necessarily represents the public interest. In many instances the parties may have in fact quite contrary interests to those which are described as the 'public interest' . It is therefore our opinion that a person other than a party may apply in relation to an order made pursuant to section 35(2) and be heard …"