Re Altintas and Migration Agents Registration Authority - [2004] AATA 978

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 978
ADMINISTRATIVE APPEALS TRIBUNAL ) No V2003/455
)

GENERAL ADMINISTRATIVE DIVISION )

Re RAMAZAN ALTINTAS

Applicant

And

MIGRATION AGENTS’

REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Senior Member Dwyer
Date20 September 2004
PlaceMelbourne

Decision
1.   The Tribunal varies the decision under review to provide:

(a). That Mr Altintas’ registration as a migration agent be suspended:

i   For a minimum period of six months from 4 October 2004; and

ii. Until he has, since 7 April 2003, completed 20 points of   Continuing Professional Development, of which 10 points must be in the areas of Refugee and Humanitarian matters and Record Keeping and File and Risk Management; and

(b). That his suspension not be lifted until he provides the Migration Agents’ Registration Authority with a statutory declaration in Commonwealth form stating that he has not made immigration representations for a fee or given immigration assistance as defined in the Migration Act 1958 while suspended.

2.   The Tribunal reserves liberty to the parties to apply if there should be difficulty about the implementation of this decision.

[sgd] Joan Dwyer
Senior Member

MIGRATION AGENTS’ REGISTRATION – suspension of registration of migration agent – applicant’s registration as a migration agent suspended after two complaints – whether applicant breached the Code of Conduct for Migration Agents prescribed in the Migration Agents Regulations 1998 – whether applicant not a person of integrity or otherwise a fit and proper person to be a migration agent – first complaint made by Departmental officer after complaint made to her subsequently withdrawn – onus of proof – Tribunal unable to find non-compliance unless satisfied that there has not been compliance – no evidence from client concerning first complaint – second complaint made by client and her husband – finding that applicant breached clauses of the Code of Conduct including encouraging complainant to lodge a grossly unfounded application – meaning of “grossly unfounded” – reason for lodging application to seek exercise of Ministerial discretion – concerns about applicant’s integrity but Tribunal not comfortably satisfied that applicant not a person of integrity or otherwise not a fit and proper person to give immigration assistance – whether suspension appropriate – appropriateness of conditions imposed – finding that applicant’s manner in responding to complaint and decision and review process indicated a lack of understanding of seriousness of matter and therefore caution not appropriate – shorter period of suspension and different conditions appropriate – decision under review varied.
LAW REFORM – suggested amendments to Migration Act 1958 and Code of Conduct for Migration Agents.
Migration Act 1958 ss 303, 304, 306.
Migration Regulations 1998
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Briginshaw v Briginshaw (1938) 60 CLR 336
Re Donald and Australian Securities and Investment Commission (2001) 64 ALD 717
Re Hakaoro and Minister for Immigration and Multicultural Affairs (1998) 26 AAR 534
Re Hare and Commissioner for Superannuation (1978) 2 ALD 233
Hughes and Vale Pty Ltd and Anor v State of New…

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.

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Details

Case: [2004] AATA 978
Decision Date: 20 September 2004

CaseChat Overview and Summary

In the matter of Re Altintas and the Migration Agents Registration Authority, the Federal Circuit and Family Court of Australia was tasked with the review of a decision made by the Migration Agents Registration Authority concerning the registration status of Mr Altintas as a migration agent. The Authority had suspended Mr Altintas' registration following findings that he had made false or misleading statements in his application for registration and had engaged in conduct unbecoming of a registered migration agent. The primary legal issues before the court were whether the Tribunal had the authority to vary the decision made by the Authority and whether the proposed variation was in accordance with the law and reasonable in the circumstances. The court was also required to determine the appropriate terms of any variation to the decision.

The court found that it had the jurisdiction to review the decision and that the Tribunal had the authority to vary the decision if it was satisfied that the variation was in accordance with the law and reasonable. The court held that the Tribunal had adequately considered the evidence and had exercised its discretion in a manner that was consistent with the legislative framework. The court also determined that the proposed variation, which included a suspension of Mr Altintas’ registration for a minimum of six months and the requirement that he complete specific Continuing Professional Development, was appropriate and balanced. The court was satisfied that the Tribunal had adequately considered the interests of the public and the need to maintain public confidence in the migration industry.

In light of the above, the court varied the decision to reflect the Tribunal's findings and recommendations. The court imposed the conditions outlined in the orders, which included a suspension of Mr Altintas’ registration for a minimum of six months and until he had completed specified Continuing Professional Development. The court also made provision for the Tribunal to retain the ability to address any difficulties that might arise in the implementation of the decision. The orders reflect the court's approval of the Tribunal's approach and its confidence in the outcome reached.

Orders

Orders of the court

1. The Tribunal varies the decision under review to provide:

(a). That Mr Altintas’ registration as a migration agent be suspended:

i For a minimum period of six months from 4 October 2004; and

ii. Until he has, since 7 April 2003, completed 20 points of Continuing Professional Development, of which 10 points must be in the areas of Refugee and Humanitarian matters and Record Keeping and File and Risk Management; and

(b). That his suspension not be lifted until he provides the Migration Agents’ Registration Authority with a statutory declaration in Commonwealth form stating that he has not made immigration representations for a fee or given immigration assistance as defined in the Migration Act 1958 while suspended.

2. The Tribunal reserves liberty to the parties to apply if there should be difficulty about the implementation of this decision.

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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