Kadeh and Migration Agents Registration Authority (Migration)
[2018] AATA 4461
•30 November 2018
Kadeh and Migration Agents Registration Authority (Migration) [2018] AATA 4461 (30 November 2018)
Division:GENERAL DIVISION
File Number(s): 2018/6381
Re:Imad Kadeh
APPLICANT
Migration Agents Registration AuthorityAnd
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:30 November 2018
Place:Sydney
1. The Applicant’s application, dated 2 November 2018, for a stay order in these proceedings pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 is refused.
2. The Applicant’s application, dated 12 November 2018, for a confidentiality order in these proceedings pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 is refused.
..................[sgd]......................................................
Senior Member Linda Kirk
Catchwords
PRACTICE AND PROCEDURE – application for stay order – prospects of success – consequences of refusal of a stay – public interest – consequences for the respondent in carrying out its functions depending upon whether a stay is granted – whether application for review would be rendered nugatory if a stay were not granted – utility in granting stay order – application for stay order refused – application for confidentiality order – financial harm – reputational harm – public interest – application for confidentiality order refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 41, 35
Migration Act 1958 (Cth)
CASES
Australian Securities & Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130
Global Financial Markets Pty Ltd and Australian Securities and Investments Commission [2017] AATA 1397
JWTT and Commissioner of Taxation [2017] AATA 1612
Panganiban v Australian Securities & Investments Commission [2016] AATA 703
Poidevin and Australian Securities and Investments Commission [2018] AATA 124Re Scott v Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114
REASONS FOR DECISION
Senior Member Linda Kirk
30 November 2018
BACKGROUND AND REVIEW APPLICATION
Mr Imad Kadeh (‘the Applicant’) has been registered as a migration agent since 2008.
Section 300 of the Migration Act 1958 (Cth) (‘Migration Act’) provides for the ‘Automatic continuation of registration’ of registered migration agents. The Applicant applied for repeat registration as a migration agent on 23 November 2017. This application was not determined within 10 months and, as provided for by s 300(5) of the Migration Act, the application was taken to have been granted at the end of the relevant period. The Applicant’s registration as a migration agent was backdated to 4 December 2017 such that his registration will expire at midnight on 3 December 2018.
Sub-section 300(4) of the Migration Act provides:
Period of continuation of registration
(4) The agent's registration is taken to continue after the expiry day until the earliest of the following:
(a) the Authority decides the application;
(b) the Authority decides to suspend the agent's registration;
(c) the Authority decides to cancel the agent's registration;
(d) the end of the period of 10 months beginning on the day after the expiry day.
On 25 October 2018, an officer of the Office of the Migration Agents Registration Authority (‘the Respondent’) cancelled the Applicant’s registration as a migration agent (‘the Reviewable Decision’). Pursuant to s 305(3) of the Migration Act, the decision takes effect on the date on which the Applicant was given written notice:
Exception - cancellation
(3) Subsection (4) also does not apply to continue the agent's registration if, before the end of the expiry day, the Authority made a decision to cancel the agent's registration, unless:
(a) there was a decision (other than a stay order) of the Administrative Appeals Tribunal or a court in force, immediately before the end of the expiry day, to the effect that the agent's registration is not suspended or cancelled; or
(b) there was a decision of the Administrative Appeals Tribunal or a court in force to the effect that the agent's registration is suspended, and the suspension had been completed before the end of the expiry day.
Accordingly, unless and until such time as the Tribunal or a court makes a decision (other than a stay order) that the agent’s registration is not cancelled, the agent’s registration will not continue automatically. The effect of this for the Applicant is that his registration will cease at midnight on 3 December 2018.
On 2 November 2018, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.
On 2 November 2018, the Applicant also applied for a stay order on the grounds that:
the cancellation is based on the ground of a vexatious claim, very confusing and not supported with a clear and strong evidence. As a disable person I will not have the ability to find another agent to manage the files. It will create significant hardship for me. My registration was granted on 4 Oct 2018 and cancelled on 25 October 2018 unfairly [sic].
On 12 November 2018, the Applicant requested a confidentiality order be made on the grounds that:
I would like to keep my name and family private in this proceedings. Please do not list this matter as Kadeh and the Minister for Home Affairs [sic].
The Respondent opposes both the application for a stay order and a confidentiality order.
The Tribunal held an interlocutory hearing on 21 November 2018 to hear arguments in relation to both applications. The hearing was adjourned to allow the Applicant to serve the Respondent with material on which he intended to rely. The interlocutory hearing was resumed on 28 November 2018.
RELEVANT PRINCIPLES
Stay order
Section 41(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) provides that the making of an application to the Tribunal for review of a decision does not affect the operation of the decision or prevent a decision-maker from taking action to implement it. In order to prevent the implementation of a decision, an affected party must make an application to the Tribunal seeking specific orders to this effect. The Tribunal has the power to stay the operation or implementation of a reviewable decision under s 41(2), to the extent that it considers it is ‘desirable’ to do so, ‘for the purpose of securing the effectiveness of the hearing and determination of the application for review’. The Tribunal may impose conditions and determine the period of any stay (see s 41(6)). In exercising this discretionary power the Tribunal must take into account ‘the interests of any persons who may be affected by the review’: Poidevin and Australian Securities and Investments Commission [2018] AATA 124 (‘Poidevin’) at [11].
The section does not provide express statutory criteria for the exercise of the discretion. In Re Scott v Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114, at [4], former President Downes J set out a non-exhaustive list of factors to be taken into account when determining an application for a stay as follows:
(1)The prospects of success;
(2)The consequence for the applicant of the refusal of a stay;
(3)The public interest;
(4)The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not;
(5)Whether the application for review would be rendered nugatory if a stay were not granted; and
(6)Other relevant matters, such as the length of time that the ban has already been in place and the gap between stay application and the hearing of the review.
The stay of banning orders made by ASIC was considered by the Full Court of the Federal Court in Australian Securities & Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; (2009) 181 FCR 130 (‘ASIC v AAT’). The Full Court (per Downes and Jagot JJ) observed that it is for the Tribunal to identify and consider the ‘relevant interests’ for the purposes of s 41(2). They noted that the nature of the reviewable decision will affect the identification of those interests, and it is relevant to consider the statutory scheme under which the reviewable decision was made (at [51]). In the case of a banning order made by ASIC, it was apparent from the relevant provisions that the person who is the subject of a banning order is ‘only one of many people whose interests may be affected by the review’ and would also include ‘the person’s existing and potential clients, as well as the public at large’ (also at [51]). Their Honours noted at [52] and [53] as follows:
52. Determining whether the making of an order under s 41(2) of the AAT Act is desirable requires resolving these potentially competing interests. In this process of resolution the scheme embodied by the legislation under which the banning order is made is central. The context set by that scheme is a "fundamental element" in the formation of the opinion according to law (The Queen v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329). The scheme discloses that a banning order protects the public. It is intended to protect the public from obtaining financial services from a person who (amongst other things) has not, or ASIC reasonably believes has not, complied with a financial services law or has had their Australian financial services licence suspended or cancelled (s 920A(1)).
53. The structure of the scheme also indicates Parliament’s assessment of the appropriate resolution of the competing interests of persons who may be affected by a banning order. Other than in limited circumstances a banning order cannot be made without giving the proposed recipient a right to be heard and to make submissions in private to ASIC (s 920A(2)). A banning order must be accompanied by a statement of reasons (s 920F(1)). If, and only if, ASIC makes a banning order is it required to make public that fact (ss 920E(2) and 922A). For the AAT to form an opinion under s 41(2) of the AAT Act (that it would be desirable and in the "interests of any persons who may be affected by the review" to make an order staying or otherwise affecting the operation or implementation of ASIC’s decision) these elements of the statutory regime, and the balance between the competing interests that they represent, must be treated as a fundamental element in the weighing of the competing considerations.
As Deputy President Redfern observed in Poidevin at [14]: ‘[i]t is therefore apparent that factors such as the interests that the exercise of the statutory power are intended to serve, the nature of the procedures leading to the reviewable decision and the specificity and strength of the findings made will be relevant considerations in determining whether it is “desirable” to grant a stay.’
Confidentiality order
The Tribunal’s review function generally involves a public hearing, the public availability of evidence, and the publication of Tribunal decisions and reasons: section 35(5). As the Tribunal observed in Global Financial Markets Pty Ltd and Australian Securities and Investments Commission [2017] AATA 1397 at [51], section 35 ‘gives effect to the basic principle that proceedings before [the] Tribunal are to be open and documents and other material lodged with the Tribunal in the course of a proceeding should also be available to the public.’ This principle is ‘the starting point in any analysis as to whether confidentiality or suppression orders should be made.’ at [51]. Despite this overriding principle, the Tribunal is empowered to make an order prohibiting or restricting the publication of the identity of a party or witness in a proceeding before the Tribunal: s 35(3). Whereas the Tribunal may make a confidentiality order under s 35(3), ‘the desirability of the publicity of Tribunal proceedings must be taken as the basis of the Tribunal’s consideration in determining any application to depart from the general statutory obligation requiring a public hearing (refer ss 35(1) & (5) of the AAT Act)’: Poidevin at [15].
In ASIC v AAT, Downes and Jagot JJ emphasised (at [74]) that s 35(1) of the AAT Act establishes a ‘norm’ that proceedings before the Tribunal will be in public and when the Tribunal is considering the exercise of its powers to make a confidentiality order it is ‘required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect’. As they observed at [75] and [76]:
75. Suppression orders are rarely made in courts, even though publicity undoubtedly disadvantages the parties. Criminal proceedings are a good example. In the AAT itself facts which parties would not wish to be published and which may disadvantage them are frequently published. Social security applications are a good example. The reason these matters are not kept secret is the overriding importance of justice being administered openly and in public. It is not readily apparent why persons in businesses should be treated differently even when, for example, employees may be disadvantaged.
76. When measured against the existence of the norm of a public hearing and the scheme established by the Corporations Act with respect to banning orders, it is apparent that the AAT would need some cogent reason by reference to the particular case to depart from the ordinary requirement of a public hearing. It is difficult to accept that harm (even serious harm) to the recipient’s reputation resulting from public awareness of the banning order will be a sufficiently cogent reason to justify the grant of a stay in most cases. This is because the risk of harm of this type is inherent in the nature of a banning order.
As Deputy President McCabe emphasised in JWTT and Commissioner of Taxation [2017] AATA 1612 (‘JWTT’) at [16], section 35(5) makes clear ‘the importance which the Tribunal must attach to transparency in its processes.’ Such transparency ‘can come as an uncomfortable surprise to applicants and witnesses who assume they could deal with the Tribunal in the same way they dealt with the original decision-maker where privacy is the order of the day.’ Confidentiality orders not only ‘force justice behind closed doors, which can undermine public confidence,’ they also undermine the normative role of the Tribunal. Tribunal decisions in individual cases are designed ‘to model behaviour that promotes the integrity and quality of government decision-making more generally.’ If the reasons for decision are not accessible, ‘[i]t is difficult to communicate lessons for future decision-makers.’
Sub-section 35(5) requires the Tribunal to ‘pay due regard to any reasons in favour of giving such a direction, including...the confidential nature (if applicable) of the information’. The sub-section does not specify what other considerations may be relevant to making a section 35 order. It is left to the Tribunal ‘to identify what is relevant in each case with the assistance of the parties. [The Tribunal] must then perform the balancing exercise required by the sub-section’: JWTT at [19].
As Senior Member Taylor observed by the Tribunal in Panganiban v Australian Securities & Investments Commission [2016] AATA 703 at [12], reputational damage will rarely provide a persuasive ground for a confidentiality order:
…mere apprehension about the potential for reputational harm directly resulting from the reviewable decision will usually not provide a persuasive basis for restricting the publicity of review proceedings.
As Deputy President Redfern observed in Poidevin at [17]:
…Tribunal proceedings should be conducted openly and in public unless there are ‘sufficiently cogent reasons’ why this should not be the case. Reputational damage will generally not be enough and it is for the applicant to satisfy the Tribunal that there should be a departure from the ‘norm.’
CONSIDERATION AND REASONS
Application for a stay order
The Applicant’s application for a stay order, if granted by the Tribunal, will have effect for one day until midnight on 3 December 2018. As outlined above, the effect of s 300(4) of the Migration Act is that the Applicant’s registration as a migration agent will cease after the expiry of his registration for reason that his registration was cancelled on 25 October 2018. The only circumstance in which this would not occur is if the Tribunal had made a final decision that the agent’s registration is not cancelled: s 300(3). As the substantive merits of the Applicant’s application to the Tribunal for review of the Reviewable Decision have not been determined, his registration will cease at midnight on Monday 3 December 2018.
Accordingly, before having regard to the principles relevant to the grant of a stay order pursuant to s 41(2) as outlined above, the Tribunal must have regard to the utility of making such an order. In the circumstances of this case, the effect of the stay if granted would be for no more than one business day. This factor weighs heavily against the grant of a stay order.
In addition to the utility of the order, the Tribunal has had regard to the factors outlined in Re Scott as relevant to the grant of a stay order.
The Applicant argues that the grounds on which his registration as an agent were cancelled are not well-founded and that his actions do not constitute a breach of the Code of Conduct or relevant provisions of the Migration Act. The Respondent disagrees and argues that the actions by the Applicant that formed the basis of complaints by clients demonstrate clear breaches of the Code of Conduct and establish he is not a ‘fit and proper person to give immigration assistance’ nor ‘a person of integrity’ as required of an applicant for registration as a migration agent under s 290(1) of the Migration Act. These are matters for consideration by the Tribunal at a hearing of the substantive application for review. The Tribunal is therefore unable to make a firm finding in relation to the Applicant’s prospects of success on review. As Deputy President Redfern noted in Poidevin, ‘it is not the role of the Tribunal in an interlocutory application of this nature to conduct a review of the merits or strength of the arguments, even on a preliminary basis’ at [39].
The Tribunal has had regard to the ‘interests of any persons who may be affected by the review’ as required by s 41(2) of the AAT Act. As was noted in ASIC v AAT above, the nature of the reviewable decision affects the identification of these interests and it is relevant to consider the statutory scheme under which the reviewable decision was made. In this case the relevant statutory scheme is that for the registration of migration agents under Part 3 of the Migration Act. Only registered migration agents can lawfully provide immigration assistance as defined in the Act. The registration of migration agents ensures that persons giving immigration assistance to those requiring immigration advice, many of whom are vulnerable individuals, have the requisite knowledge and meet required professional standards, including complying with the Code of Conduct. The statutory scheme is therefore one which has an overriding protective purpose in that it is designed to ensure that those requiring immigration assistance can employ the services of an agent who is certified as meeting knowledge requirements and professional standards.
The Applicant is the person directly affected by the decision to cancel his registration as a migration agent. It will, as he has argued, detrimentally affect his livelihood as it is the licence he requires to continue providing immigration assistance to clients. However, he is ‘only one of many people whose interests may be affected by the review’. Also included are his ‘existing and potential clients, as well as the public at large’: ASIC v AAT at [51]. These considerations weigh heavily against the grant of a stay of a decision to cancel the Applicant’s registration, if even for a period of only one business day.
Having regard to the factors outlined above, particularly utility of the stay in these circumstances and the interests that the exercise of the statutory power are intended to serve, the Tribunal declines the application for a stay order under s 41(2) of the AAT Act.
Application for a confidentiality order
The Applicant argued that the publication of his name in the review proceedings will have an adverse effect on the not for profit organisation, of which he is Chair, which provides immigration assistance to clients. He also relied on the impact to him personally of publication of his name in relation to the review proceedings, including financial and reputational harm. The Respondent opposed the confidentiality order on the basis that, in addition to the general principle that Tribunal proceedings are to be public, the Applicant has not demonstrated a cogent reason for the order.
The Tribunal has had regard to the principles outlined above in relation to the making of confidentiality orders and finds that there is no cogent reason in this case to depart from the norm of the publicity of Tribunal proceedings, including the names of parties to review applications. The Tribunal finds that the existence of the norm and the values it is intended to protect are factors that outweigh the considerations identified by the Applicant, namely the impact on his organisation and the financial and reputational damage of publication of his name in the review proceedings. The harm, both reputational and financial, from public awareness of the cancellation of the Applicant’s registration as a migration agent, is inherent in the nature of the Reviewable Decision made by the Respondent to cancel the Applicant’s registration as a migration agent.
The Tribunal further finds that it is consistent with the protective purpose of the statutory scheme for the registration of migration agents outlined above that the transparency of Tribunal proceedings inherent in the norm of publicity be given primacy. The making of a confidentiality order in the context of a decision designed to protect the public from migration agents who do not meet required knowledge and professional standards would not only ‘force justice behind closed doors’ but has the potential to undermine public confidence in the Tribunal’s procedures and functions.
The Tribunal, therefore, declines to make a confidentiality order under s 35 of the AAT Act.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
......................[sgd]..................................................
Associate
Dated: 30 November 2018
Date(s) of hearing: 21 and 28 November 2018 Applicant: By telephone Solicitors for the Respondent: Sparke Helmore Lawyers
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