Mohammad and Migration Agents' Registration Authority - [2004] AATA 1401

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 1401
ADMINISTRATIVE APPEALS TRIBUNAL )
)No N2004/455 & 1068

GENERAL ADMINISTRATIVE DIVISION )

Re Arif MOHAMMAD

Applicant

And

MIGRATION AGENTS' REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Ms R Hunt, Senior Member
Date24 December 2004
PlaceSydney

Decision
The Tribunal affirms the decision under review

….[sgd]Ms R Hunt…
Senior Member

CATCHWORDS
MIGRATION AGENTS’ REGISTRATION – suspension of applicant’s registration as migration agent – no repeat registration possible - breaches of the Code of Conduct for migration agents prescribed under Migration Agents’ Regulations 1998 - finding that Code of Conduct breached – finding that applicant not a fit and proper person to give immigration assistance – purpose of scheme to protect the public – part period of suspension already served.
LEGISLATION
Migration Act 1958 (Cth) ss. 290, 300, 303 and 314.
Migration Agents Regulations 1998 (Cth) sch 2. Code of Conduct.

REASONS FOR DECISION

24 December 2004 Ms R Hunt, Senior Member

summary

1. The Applicant, Mr Arif Mohammad, was registered as a migration agent until 8 April 2004, when the Respondent (the Authority) decided to suspend his registration for 2 years for breaches of the Migration Agents’ Code of Conduct (the Code). The Tribunal stayed the Authority’s suspension decision conditionally on 19 May 2004 and 7 June 2004 so that the suspension did not take effect until 30 June 2004.
2. The suspension decision arose from complaints concerning Mr Mohammad’s conduct of 13 applications for protection visas. The Federal Court noted that in respect to one of Mr Mohammad’s clients, Mr Kumar, he had failed to lodge an application for review with the Refugee Review Tribunal (the RRT) within the required deadline. The Department of Immigration & Multicultural Affairs (the Department) notified the Authority about the conduct of this matter and 12 similar matters. The Authority found, after making enquiries and meeting with Mr Mohammad, that Mr Mohammad had failed to comply with aspects of the Code prescribed by section 314 of the Migration Act 1958 (the Act). Consequently, the Authority determined he was not a fit and proper person to give immigration assistance and made the suspension decision. In addition, on 19 July 2004, the Authority decided not to implement Mr Mohammad’s application of 20 January 2004 for repeat registration as a migration agent. At the hearing, the Tribunal heard the parties as to the suspension decision and the decision to refuse repeat registration on the same day. The Tribunal has decided that both decisions of the Authority should be affirmed for the reasons set out below.
law and issues
3. At issue is whether Mr Mohammad has breached certain clauses of the Code prescribed under section 314 of the Act . Section 314(2) of the Act requires a registered migration agent to conduct himself in accordance with the prescribed Code. The power to cancel or suspend an agent’s licence is enlivened by section 303 of the Act where breaches of the Code have occurred. The authority may suspend or…

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.

Continue reading Mohammad and Migration Agents' Registration Authority

Details

AGLC: Mohammad and Migration Agents' Registration Authority [2004] AATA 1401
Case: [2004] AATA 1401
Decision Date: 24 December 2004

CaseChat Overview and Summary

The applicant, Mohammad, appealed the decision of the Migration Agents’ Registration Authority to suspend his registration as a migration agent. The dispute was heard in the Administrative Appeals Tribunal. The primary issue before the Tribunal was whether the decision to suspend Mohammad's registration was lawful and reasonable. This involved assessing whether the authority correctly found that Mohammad had breached the Code of Conduct and whether he was a fit and proper person to provide immigration assistance. The Tribunal also needed to consider the proportionality and necessity of the suspension period.

The Tribunal examined the evidence and submissions from both parties, focusing on the breaches of the Code of Conduct and their implications. It determined that the authority had correctly identified and found the breaches, and that Mohammad was not a fit and proper person to give immigration assistance. The Tribunal found that the purpose of the scheme was to protect the public, and the suspension was a reasonable and proportionate measure. Given that part of the suspension period had already been served, the Tribunal concluded that the decision to suspend was lawful and reasonable. Consequently, the Tribunal affirmed the decision under review.

Orders

Orders of the court

The Tribunal affirms the decision under review

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

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