Kadeh and Migration Agents Registration Authority (Migration) - [2018] AATA 4461

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 124
Re 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…

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.

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Details

Case: [2018] AATA 4461
Decision Date: 30 November 2018

CaseChat Overview and Summary

This matter concerned an application by the Applicant, Kadeh, for a stay order and a confidentiality order in proceedings before the Migration Agents Registration Authority (the Respondent). The Applicant sought to stay the cancellation of his registration as a migration agent, which was due to cease at midnight on 3 December 2018, pending the determination of his substantive application for review of the Reviewable Decision.

The Tribunal was required to determine whether to grant a stay order and a confidentiality order. In relation to the stay order, the Tribunal considered the utility of granting such an order, given its limited duration, and the prospects of success of the Applicant's substantive application. The Tribunal also had regard to the interests of any persons who may be affected by the review, particularly in the context of the statutory scheme for the registration of migration agents, which is designed to protect vulnerable individuals seeking immigration assistance.

The Tribunal reasoned that the limited utility of a stay order, which would only be effective for one business day, weighed heavily against its grant. While the Applicant contended that the grounds for cancellation were unfounded, the Tribunal noted that it was not its role in an interlocutory application to conduct a review of the merits of the substantive arguments. The Tribunal also considered the public interest in the open conduct of proceedings, referencing the principle that reputational damage alone is generally insufficient reason to depart from this norm. The application for a stay order was refused.

The Tribunal also refused the application for a confidentiality order, finding that reputational damage would generally not be a sufficiently cogent reason to depart from the principle of open tribunal proceedings. The Applicant failed to satisfy the Tribunal that there were sufficient reasons for a departure from the norm.

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

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Ratio Decidendi

Legal Principle Established

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 REASONSApplication 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.