Otoom and Migration Agents' Registration Authority

[2004] AATA 1072

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1072

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1976

GENERAL ADMINISTRATIVE DIVISION		)
Re		ZAID OTOOM

Applicant

And MIGRATION AGENTS’ REGISTRATION AUTHORITY

Respondent

WRITTEN REASONS FOR ORAL DECISION

Tribunal Senior Member Mrs Josephine Kelly

Date27 September 2004

PlaceSydney

Decision The decision of the Migration Agents’ Registration Authority dated 3 November 2003 to refuse Mr Otoom’s application for registration as a migration agent is affirmed.

[sgd] Mrs Josephine Kelly, Senior Member

REASONS FOR DECISION

27 September 2004 Senior Member Mrs Josephine Kelly      

1.        The reviewable decision is that of the Migration Agents Registration Authority (MARA) made on 3 November 2003, to refuse Mr Otoom's application for registration as a migration agent. 

2. Although the letter dated 4 November 2003 from MARA to Mr Otoom said the reason for refusal was that he is not a fit and proper person to give immigration advice pursuant to section 290 of the Migration Act 1958, that is not the basis upon which MARA supported the decision in this Tribunal. The issue before me, and also referred to in MARA’s letter of refusal, is whether Mr Otoom is an Australian permanent resident within the meaning of the regulations as required by section 294(1)(b) of the Migration Act 1958. Regulation 1.03(b) of the Migration Regulations 1994 provides relevantly:

“Australian permanent resident means…in any other case a non-citizen who, being         usually resident in Australia, is the holder of a permanent visa.”

Mr Otoom is a non-citizen and holds a permanent visa.   However, does he satisfy the balance of the requirement, “being usually resident in Australia”?  Section 294 makes it mandatory that Mr Otoom satisfy that requirement.  There is no discretion to be exercised.

3.        The facts are not in dispute.  Mr Otoom was born on 16 January 1976 in Amman and is a citizen of Jordan.  He first visited Australia in 1997 for six weeks when he held a short stay tourist visa.  On 16 February 1999, Mr Otoom returned to Australia on a student temporary visa and remained almost a year, leaving on 30 January 2000.  He was admitted to the degree of Master of Laws in Corporate and Commercial Law from the University of New South Wales on 20 October 2000, (document T4). 

4.        Mr Otoom currently holds a sub-class BN-136 - Skilled Independent (Skilled Migration) visa which was granted to him on 4 December 2002.  He visited Australia for a period of 11 days in December 2002 and has not returned since.

5.        His application for registration as a Migration Agent was lodged while he was in Jordan and it was received by MARA on 14 February 2003.  Mr Otoom has a brother in Melbourne.   Mr Otoom had a driver’s licence which expired on 2 March 2000 (T documents page 24).  He says it is his intention to live in Australia, however, as part of his preparation he wishes to be registered as a migration agent.

6.        Mr Otoom's position was as set out in his letter of application to MARA dated 27 December 2002 (Exhibit T, pages 20 and 21) and his statutory declaration dated 20 December 2002, (Exhibit T, pages 22 and 23).  He acknowledges that a physical presence in Australia is an aspect of being usually resident, however says other factors are also relevant.  His intention is to live here and that has been so since he returned after his studies in 2000; he has a business name, and he has undertaken a correspondence course from Deakin University in Immigration Law for Migration Agents.

7.        Ms Warner appearing for MARA referred the Tribunal to dictionary definitions and case law which she said supported the conclusion that Mr Otoom did not satisfy the requirement of “being usually resident in Australia” pursuant to regulation 1.03(b).  The term is not defined in the legislation.

8.        The Tribunal adjourned the hearing on 21 September 2004 to allow Mr Otoom to provide a list of authorities which he said supported his argument that he satisfied the definition.  He did so in the specified time, and Ms Warner for MARA responded within the time directed.  The material so supplied has been considered in coming to this decision.

9.        In my view, the decision of Koitaki Para Rubber Estates Limited v Federal Commissioner of Taxation (1941) 64 CLR 241, is the touchstone for determining this case. Williams J, with whom Rich J and Starke J agreed said at page 249:

“The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode.  If he maintains a home or homes he resides in a locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or a yacht or some other place of abode”.

10.      In Scargill v The Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 116 (3 June 2003), the Full Court of the Federal Court referred to Koitaki and said at paragraph 16 that in that case:

“the Court indicated that there are two elements that must be present to find that a person is ‘usually resident’.  The first is a physical presence in a particular place and the second is an intention to treat that place as home for at least the time being but not necessarily forever.”

11.      Mr Otoom relied upon several cases.  They included in Re Mukhi [1994] IRTA 3230 (28 January 1994); Re Scarfe [1994] IRTA 3420 (9 March 1994) and Re Cragg [1992] IRTA 919 (20 May 1992).  In each of those cases the applicant was successful because of the particular facts, including the particular visa involved.

12.      It is accepted that a person may be simultaneously resident in more than one country.  However, in my view, Mr Otoom does not fall within that category.  He is usually resident in Jordan.  He lives there, eats, sleeps and works there.  His connections are with Jordan, except for his brother, who lives in Melbourne.  He has a business name registered in Australia but conducts no business here. 

13.      The regulation requires a physical presence and an intention to treat the place as home.  Mr Otoom has resided in Jordan, except for a one year period when studying in Australia and two other short visits to Australia referred to above.  His connections are almost all with Jordan.

14.      In the circumstances, I conclude that Mr Otoom does not satisfy the requirement of the regulation, not being usually resident in Australia.  For the above reasons, the decision under review is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Mrs Josephine Kelly

Signed: Guy Moloney           .....................................................................................

Associate

Date/s of Hearing  21 September 2004
Date of Decision  27 September 2004      
Advocate for the Respondent   E Warner