Kazacos v Migration Agents Registration Authority

FEDERAL COURT OF AUSTRALIA

Kazacos v Migration Agents Registration Authority [2007] FCA 1573

PARRIS KAZACOS v MIGRATION AGENTS REGISTRATION AUTHORITY AND ADMINISTRATIVE APPEALS TRIBUNAL
NSD 271 OF 2007

ALLSOP J
15 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 271 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY

BETWEEN:

PARRIS KAZACOS
Appellant

AND:

MIGRATION AGENTS REGISTRATION AUTHORITY
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	15 OCTOBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed

2.The applicant pay the respondents’ costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 271 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY

BETWEEN:

PARRIS KAZACOS
Appellant

AND:

MIGRATION AGENTS REGISTRATION AUTHORITY
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE:	15 OCTOBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”) raising questions of the proper construction of clauses of the Code of Conduct (the “Code”) made under reg 8 of the Migration Agents Regulations 1998 made under the Migration Act 1958 (Cth).

2. The Administrative Appeals Tribunal (the “Tribunal”) was exercising a review of a decision of the Migration Agents Registration Authority (“MARA”), under which the applicant had been suspended as a migration agent for a minimum of six months, and under which conditions had been imposed on the applicant that were required to be fulfilled before the lifting of the suspension.

3. The Tribunal dealt with complaints in respect of the affairs of three people:  a Mr Williamson, a Mr MacDonald and a Ms Adams.  The errors of law in the construction of the Code are said by the applicant to attend the Tribunal’s approach to the complaints concerning Mr MacDonald and Ms Adams.

4. The Code has been amended from time to time since its initial promulgation.  The general scheme of the Code, set against the background of the regulation of migration agents, is to regulate their conduct for the benefit and protection of the public.  By the Migration Act, s 303, MARA is given the authority to discipline migration agents for, amongst other things, non-compliance with the Code.  Of course, the approach to the construction of the delegated legislation should recognise the serious consequences for the migration agent of a finding of misconduct.  In that sense the provisions can be described as penal:  Hanna v Migration Agents Registration Authority (1999) 94 FCR 358 at 363. However, as I said in Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2006] ATPR 42-123 at [45]-[48], the meaning of a penal provision is to be ascertained using the ordinary rules of statutory construction and interpretation, but recognising that if, as a matter of last resort after those rules are applied, the language of…