Pilkington and Migration Agents Registration Authority

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 886

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W 200500329

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BRIAN PILKINGTON

Applicant

And MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Mr S Penglis, Senior Member

Date19 September 2008

PlacePerth

Decision

1.     The reviewable decision of the respondent dated 12 September 2005 is set aside. 

2. In lieu thereof the applicant is barred pursuant to section 311A of the Migration Act 1958 (Cth) from being a registered migration agent for a period of 3 years commencing on 12 September 2005.

....(sgd) Mr S Penglis.................

Senior Member

6.      As to the period of 5 years, the respondent wrote

“The Authority is satisfied that a 5 year barring is the appropriate sanction in the circumstances given the seriousness of the (applicants) breaches of the Code of Conduct.  It is in the interest of consumer protection to ensure that the (applicant) is barred from being a registered migration agent for a period of 5 years”

Application to disqualify myself from hearing the application

7.      During the course of the hearing Mr Rothstein, Counsel for the applicant, made an application that I disqualify myself on the basis of apparent bias.  The short point was that by reason of questions I had asked of the applicant during the course of his evidence, and the tone of those questions, a reasonable apprehension was said to arise that I had prejudged the matter.

8.      I dismissed that application and gave short reasons therefor during the course of the hearing, indicating that I would provide more detailed reasons as part of these reasons for decision.

9.      The relevant principles were conveniently summarised by the Full Court of the Supreme Court of Western Australia in Quigley (A Practitioner) v The Legal Practitioners’ Complaints Committee [2003] WASCA 228 where, at para [94], Parker J, with whom Malcolm CJ and Anderson J agreed, said this:

“It is accepted that the test of perceived bias is whether “a fair minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that [the member of the Tribunal] might not bring an impartial and unprejudiced mind to the resolution of the question”: Webb v R (1994) 181 CLR 41 at 67 – 68.  Substantial grounds need to be established before a member of a court or tribunal ought to disqualify himself or herself, and if substantial grounds are not established the member’s duty is not to disqualify himself or herself: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 10 at 87; Re Finance Sector Union of Australia; Ex Part Illaton Pty Ltd (1992) 107 ALR 581; Clenae Pty Ltd v ANZ Banking Group [2000] HCA 63 at par 30, 137 and 174.”

10.     A court or tribunal must be careful to ensure that questions or comments put during the course of a hearing do not permit of a conclusion, even if it not be the fact, that the court or tribunal has prejudged…