Rozsy and Migration Agents Registration Authority - [2008] AATA 658

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 658
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W200600170

GENERAL ADMINISTRATION DIVISION )

Re PETER ROZSY

Applicant

And

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Mr S Penglis, Senior Member
Date29 July 2008
PlacePerth

Decision
1. The reviewable decision of the respondent made on 22 May 2006 is set aside.

2. In lieu thereof the applicant is barred pursuant to section 311A of the Migration Act 1958 (C'th) from being a registered migration agent for a period of 2 years and 6 months commencing on 22 May 2006.

....(sgd) Mr S Penglis.........
Senior Member

CATCHWORDS
Immigration – various breaches of Code of Conduct by migration agent – relevant principles to be applied in determining whether to make a barring order and, if so, for what period – applicant barred for two years and six months.
LEGISLATION
Migration Act 1958 (Cth) s 311
CASES
Donald and Australian Securities Investment Commission [2001] AATA 66
Narayanan and Migration Agents Registration Authority [2006] AATA 353
Rich v Australian Securities Investment Commission [2004] HCA 42
REASONS FOR DECISION

29 July 2008 Mr S Penglis, Senior Member

1. By Reasons for Decision dated 26 May 2008 [2008] AATA 434 I made findings that the applicant had contravened various provisions of the Code of Conduct prescribed pursuant to section 314 of the Act.
2.      At the same time I made directions to facilitate a further hearing of the matter to determine whether or not, in light of my findings, the applicant should be barred from being a registered migration agent and, if so, for what period.
3.      The Tribunal was subsequently provided with written submissions on behalf of the applicant and on behalf of the respondent, which written submissions were supplemented by counsel for the parties at a further hearing. Further written submissions were provided on behalf of both parties after that hearing.
4.      As I stated in Narayanan and Migration Agents Registration Authority [2006] AATA 353, it is well established that the purpose of a power such as that provided in s 311 of the Act is not to punish for wrongdoing, but is to protect the public from wrongdoing: see, for example, the decision of this Tribunal in Donald and Australian Securities and Investments Commission [2001] AATA 66 and the various authorities referred to therein at paragraphs 111 to 115 (inclusive), as well Rich v Australian Securities and Investments Commission [2004] HCA 42.)
5.      Mr Eastoe, Counsel for the applicant, submitted that the public interest did not require that a barring order be made because the protection of the public is satisfactorily achieved by other provisions of the Act, including:
·Section 289 - which provides that a person cannot become a registered migration agent without approval of an application for registration by the respondent.
·Section 289A – which provides that a former migration agent who applies for re-registration more than 12 months after his or her previous registration has lapsed must complete…

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 Rozsy and Migration Agents Registration Authority

Details

AGLC: Rozsy and Migration Agents Registration Authority [2008] AATA 658
Case: [2008] AATA 658
Decision Date: 29 July 2008

CaseChat Overview and Summary

The case of Rozsy and Migration Agents Registration Authority involved a migration agent who had been found to have breached the Code of Conduct in various ways. The dispute was reviewed in the Administrative Appeals Tribunal of Australia. The central issue before the tribunal was the appropriate penalty for the breaches, specifically whether a barring order should be imposed and, if so, for what duration. The tribunal needed to consider the principles guiding the imposition of such penalties and apply them to the facts of this case.

The tribunal considered the principles set out in previous cases and statutory provisions that guide the imposition of barring orders. It noted that the severity of the breaches, the agent's history of conduct, and the need to protect the public interest were all relevant factors. The tribunal found that the breaches were serious and warranted a barring order. However, it also took into account the agent's previous good record and other mitigating factors. After balancing these considerations, the tribunal decided that a barring period of two years and six months was appropriate.

The tribunal set aside the original decision and substituted it with a barring order for a period of two years and six months, effective from 22 May 2006. The tribunal's decision was based on a careful consideration of the relevant principles and the specific circumstances of the case. The orders reflect the tribunal's determination that the barring period was sufficient to address the breaches while also considering the agent's past conduct and the need to protect the public interest.

Orders

Orders of the court

1. The reviewable decision of the respondent made on 22 May 2006 is set aside.

2. In lieu thereof the applicant is barred pursuant to section 311A of the Migration Act 1958 (C'th) from being a registered migration agent for a period of 2 years and 6 months commencing on 22 May 2006.

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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