Khan v Migration Institute of Australia Limited

[2004] FCA 301

FEDERAL COURT OF AUSTRALIA

Khan v Migration Institute of Australia Limited [2004] FCA 301

SHERAFZAL KHAN v MIGRATION INSTITUTE OF AUSTRALIA LIMITED

N 233 of 2004

WHITLAM J
15 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 233 of 2004

ON APPEAL FROM A FEDERAL MAGISTRATE

BETWEEN:	SHERAFZAL KHAN APPELLANT
AND:	MIGRATION INSTITUTE OF AUSTRALIA LIMITED RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	15 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed with 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	N 233 of 2004

ON APPEAL FROM A FEDERAL MAGISTRATE

BETWEEN:	SHERAFZAL KHAN APPELLANT
AND:	MIGRATION INSTITUTE OF AUSTRALIA LIMITED RESPONDENT

JUDGE:	WHITLAM J
DATE:	15 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) given on 6 February 2004 refusing to make an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (‘the Act’). The proceeding before the Tribunal related to the decision of the respondent made on 2 December 2003 under s 303A of the Migration Act 1958 to cancel the applicant’s registration as a migration agent. The applicant applied for a review of that decision pursuant to s 306 of the Migration Act 1958.  That application for review has been fixed for hearing before the Tribunal on 26 May 2004.

2. The respondent has objected to the competency of the purported appeal from the decision of the Tribunal refusing to grant a stay of the respondent’s decision. An appeal lies under s 44(1) of the Act from any decision of the Tribunal on a question of law. The notice of appeal filed by the applicant does not state a question of law. That in itself provides a basis for a jurisdictional objection to the proceeding but that is not the ground presently relied on by the respondent.

3. The respondent relies on the well-established principle that the appeal provided for under s 44(1) of the Act lies only from a decision of the Tribunal that constitutes the effective decision or determination of a proceeding before it. Authority for that proposition is Director-General Social Services v Chaney (1980) 47 FLR 80 (‘Chaney’), a majority decision of the Full Court of the Federal Court which has been uniformly applied.  Indeed, in Chaney Deane J remarked that in his view an interim order made by the Tribunal suspending the operation of a decision under review was not a decision from which an appeal lay to the Court pursuant to s 44 of the Act. That position also obtains, in my view, where the Tribunal refuses to make such an order.

4. Accordingly, I uphold the objection to competency of the appeal. The appeal is dismissed with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:            15 March 2004

The appellant appeared in person

Solicitor for the respondent:	Mr A J Crockett of the Australian Government Solicitor
Date of hearing:	15 March 2004
Date of judgment:	15 March 2004