Issa and Migration Agents Registration Authority

[2015] AATA 681

Issa and Migration Agents Registration Authority [2015] AATA  681 (12 August 2015)

Division	GENERAL DIVISION
File Number	2014/5298
Re	Issam Issa
APPLICANT
And	Migration Agents Registration Authority
RESPONDENT

DECISION

Tribunal	Mr P W Taylor SC, Senior Member
Date	12 August 2015
Date of written reasons	8 September 2015
Place	Sydney

The Tribunal refuses Mr Issa’s request for an order staying or otherwise affecting the operation of the decision under review pursuant to section 41(2) of the AdministrativeAppeals Tribunal Act 1975 (Cth).

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Mr P W Taylor SC, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – application for stay of decision to cancel registration as migration agent – previous application for stay refused – applicant contends previous stay decision flawed as new evidence now available – new material does not address reasoning underlying cancellation of registration – registration as migration agent now expired – granting of stay would not produce practical result –  application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 41(2)

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

8 September 2015

BACKGROUND

1. Mr Issa has made an application under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) for the second time to stay the operation of a decision made by the Migration Agents Registration Authority (MARA) in October 2014 to cancel his registration as a migration agent.  Mr Issa insists that the previous decision of the Tribunal to refuse a stay application, a decision that was made on 24 November 2014, was flawed by the absence from the material then provided to the Tribunal of information which he has provided as an attachment to submissions he made in writing to support the present application and which Mr Issa contends completely exonerate him in relation to the factual findings that were made against him in the original cancellation decision.

2. Mr Issa nevertheless concedes that his registration expired on 6 February 2015 and that even if his present stay application was acceded to by the Tribunal he would not be able to resume practice as a migration agent.  Mr Issa’s contention is that the absence of relevant material before the Tribunal on the previous occasion is a matter that warrants, and indeed requires, the Tribunal to re-exercise its stay jurisdiction.  Mr Issa emphasises his concern that the proceedings of the Tribunal should be conducted in a way that, to use his expression, “is consistent with the due administration of justice”.  Mr Issa is entirely correct in the latter of those propositions but it does not have the practical consequence for which he contends in the present case.

3. The Tribunal’s obligations certainly are to participate appropriately and fairly in the administration of justice but more specifically the Tribunal has an obligation under section 2A of its Act to carry out its functions and to pursue the objective of providing a mechanism of review that is accessible, fair, just, economical and proportionate to the importance and complexity of the matter and also one that promotes public trust and confidence in the decision making of the Tribunal.

   CONSIDERATION

4. The reason why I disagree with the conclusion for which Mr Issa contends is essentially this: whatever criticism he might validly have made of the conduct of the proceedings before the Tribunal on the previous occasion, the granting of a stay at the present time would simply not produce a practical result and would not produce a result in any sense, in my opinion, proportionate to the importance and complexity of the matter. 

5. It is abundantly clear that there are two substantive categories of complaint that have been made and relied upon to support MARA’s decision.  The first involves what appears to me to be a direct conflict of evidence between Mr Issa and a number of his clients.  It would be impossible on my present understanding of the matter to evaluate those matters with the degree of detail required to reach any kind of informed conclusion without spending days and days in so doing.  The second category of complaints is essentially a series of conclusions drawn by MARA as a result of a review of a number of – and a number means 34 - client files in which an analysis has been undertaken to categorise aspects of the progress of those matters and aspects of the interaction between the various clients and Mr Issa.

6. Nothing that Mr Issa has put either in his oral submissions today, or as I read the material he previously provided, challenges in any meaningful way the conclusions that have been drawn by MARA in the analysis of that material.  This is not to say that the analysis is correct, or even well founded, but it is to say that even accepting Mr Issa’s complaints about the inadequacy of the material that was previously provided, those complaints do not in my assessment of the material – such as I have been unable to undertake –in any sense relevantly provide a basis for disputing the analysis, or even expressing any view about the inadequacy of the analysis, that was undertaken by MARA.

7. Thus the situation is one in which first of all, the additional material that Mr Issa had sought to rely upon today, even if accepted at face value as supporting the entirety of the conclusions which he insists should be made – an acceptance which I do not make in any considered sense – it still would not address the other substantive and to my mind, likely more important, aspect of the reasoning underlying MARA’s decision.

8. Secondly, granting Mr Issa’s stay application at the present time would have no practical effect in restoring his ability to operate as a registered migration agent.  In those circumstances there is nothing to be gained, and everything against, entertaining an application of the present kind. 

   DECISION

9. For those reasons I refuse Mr Issa’s stay application.

I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of P W Taylor SC, Senior Member

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Associate

Dated 8 September 2015

Date of hearing	12 August 2015
Applicant	In person
Solicitors for the Respondent	Mr L Leerdam, of DLA Piper