Maarbani and Migration Agents Registration Authority

[2003] AATA 1109

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1109

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2003/835

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Mohammed Maarbani

Applicant

And Migration Agents Registration Authority

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date10 June 2003

PlaceSydney  

Decision

Having heard the parties at a Stay Hearing on 10 June 2003, and having considered the Applicant’s grounds for a request for a “Stay” order pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal stays the decision of the Respondent of 20 May 2003 until 17 July 2003 subject to the following conditions:

a)    the Applicant is to maintain separate clients’ and operating accounts as required to achieve compliance with clause 7.1 of the Migration Agents’ Code of Conduct;

b)    the Applicant is to include a statement in his contracts with his clients to achieve compliance with clause 11.3 of the Migration Agents’ Code of Conduct.

The Tribunal will arrange an expedited hearing in this matter, and a Telephone Directions Hearing to discuss progress, the latter being in about two weeks time according to the availability of the parties and the Tribunal.

...............................................

RP Handley
  Deputy President 

REASONS FOR DECISION

28 August 2003 Mr RP Handley, Deputy President          

1.      The Stay Order was made on 10 June 2003.  The Respondent subsequently requested a Statement of Reasons for this decision which were prepared on 28 August 2003.

2. This matter involves an application by Mohammed Maarbani (“the Applicant”) lodged on 21 May 2003 for a Stay Order pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 in respect of a decision made by the Migration Agents Registration Authority (“the Respondent”) on 20 May 2003 to refuse the Applicant’s application for renewal of his registration as a migration agent. The Respondent refused his application pursuant to s 290 of the Migration Act 1958 on the ground that the Applicant was not a fit and proper person to give immigration assistance or a person of integrity, having breached clauses 7.1(b) and 11.3 of the Code of Conduct set out in Schedule 2 of the Migration Agents Registration Regulations 1998.

3.      At the hearing, the Applicant was represented by Craig Colborne, of Counsel, and the Respondent was represented by Andras Markus, Solicitor, of the Australian Government Solicitor’s office.

4. Mr Colborne noted that the Applicant’s registration as a migration agent expired on 18 September 2002, the day on which the Applicant lodged his application for renewal of that registration. Section 300(1) of the Migration Act 1958 provides for automatic continuation of a person’s registration pending the Respondent’s decision on the person’s application for renewal of that registration.  Subsection 300(2) should also be noted:

(2)       However, if the Authority has not decided to registration application before the end of the period of 10 months beginning on the day after the expiry date, the application is taken to have been granted at the end of that period.

5.      Mr Colborne said the Applicant has admitted use of his business bank account for personal transactions contrary to clause 7.1(b) of the Code of Conduct and states that reference to the Code of Conduct was omitted from the contract for service made with his clients by mistake.  Although this was contrary to clause 11.3 of the Code, the Applicant’s practice was to tell clients of the Code and that they could obtain a copy from the Applicant.  The Applicant states that both these breaches have now been rectified.  Mr Colborne submitted that given the nature of the breaches, the penalty imposed by the Respondent was excessive and not appropriate.

6.      Mr Colborne submitted that if a Stay is not granted, the Applicant’s business and reputation will suffer irreparable damage and the Applicant will have to terminate the employment of one or both of his staff.  Moreover, the Applicant is currently prohibited from providing his clients with immigration advice. 

7.      Mr Markus, for the Respondent, said the Respondent’s decision in this matter was delayed by the investigation of complaints made against the Applicant.  Those investigations are still not complete.

8. Mr Markus submitted that a Stay Order made pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 should not result in the re-invigoration of a migration agent’s registration such that s 300(2) of the Migration Act 1958 comes into operation.   Thus, while a Stay Order may be granted for a particular period, it should be limited to ending before the end of the 10 month period beginning on the day after the expiry of the migration agent’s previous registration.  Thus, in the Applicant’s case, any Stay Order granted should not extend beyond 17 July 2003, 10 months after the expiry of his registration at midnight on 18 September 2002.

9. Mr Markus noted that s 41(6) of the Administrative Appeals Tribunal Act 1975 permits the Tribunal to stipulate a specific period for the operation of a Stay Order and for the Order to be made subject to such conditions as are specified in the Order.  In the present case, if the Tribunal decides to make a Stay Order, then it should be subject to conditions as to the two matters identified by the Respondent:  first, requiring that the Applicant maintain a separate client account without mixing his own funds with those of his business;  and second, requiring that the Applicant comply with Clause 11.3 of the Code of Conduct.

10. After discussion of the operation of s 300(2) of the Migration Act 1958 and s 41(2) of the Administrative Appeals Tribunal Act 1975 between the parties’ representatives and the Tribunal, with Mr Colborne conceding to Mr Markus’ submission that any Stay Order should be for a limited period to avoid bringing s 300(2) of the Migration Act 1958 into operation, the Tribunal made the following determination.

11.     The Tribunal is satisfied that if a Stay Order is not granted, there is likely to be damage to the Applicant’s business and reputation.  While a relevant concern in this case is the protection of the public interest, that interest will be adequately protected by the imposition of appropriate conditions on the Stay Order in respect of the matters identified by the Respondent.  The Tribunal therefore orders that the decision of the Respondent dated 20 May 2003 to refuse the Applicant’s application for renewal of his registration as a migration agent be stayed until 17 July 2003 subject to the following conditions:

(a)the Applicant is to maintain separate clients’ and operating accounts as required to achieve compliance with clause 7.1 of the Migration Agents’ Code of Conduct;

(b)the Applicant is to include a statement in his contracts with his clients to achieve compliance with clause 11.3 of the Migration Agents’ Code of Conduct.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed:         .......................................................................................
  Associate

Date/s of Hearing  10 June 2003
Date of Decision  10 June 2003
Representative for the Applicant              Mr C Colborne, Counsel
Representative for the Respondent          Mr A Markus, Solicitor