Rozsy and Migration Agents Registration Authority - [2008] AATA 434

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 434
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600170

GENERAL ADMINISTRATIVE DIVISION )

Re PETER ROZSY

Applicant

And

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Mr S Penglis, Senior Member
Date26 May 2008
PlacePerth

Decision
1. Within 14 days of the date of this decision, the respondent to lodge with the Tribunal an Outline of its Submissions as to whether, in light of these reasons for decision, the applicant ought to be barred from being a registered migration agent pursuant to s311B of the Migration Act, 1958 and, if so, for what period, and to serve a copy on the applicant within the same period.

2. Within 14 days of the date of being served with a copy of the respondent’s Outline of Submissions, the applicant to lodge with the Tribunal an Outline of Submissions as to whether, in light of these reasons for decision, he ought to be barred from being a registered migration agent pursuant to s311B of the Migration Act 1958 and, if so, for what period, and to serve a copy on the respondent within the same period.

3. Within 7 days of the date of this decision, both parties are to advise the Tribunal, in writing, of their unavailable dates in June and July for the further hearing of this matter.

4. Thereafter the matter be listed for further hearing as to whether in light of these reasons for decision the applicant ought to be barred from being a registered migration gent pursuant to s311B of the Migration Act 1958 and, if so, for what period.

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

5. S 314 of the Act provides that the regulations may prescribe a code of conduct for migration agents and that a registered migration agent must conduct himself or herself in accordance with the prescribed code of conduct.
6. The Code of Conduct is prescribed by Regulation 8 of the Migration Agents Regulations 1998 and is set out in Schedule 2 of those Regulations.
7. For the purpose of this application, the relevant provisions of the Code of Conduct are as follows:
· Clause 2.1 - A registered migration agent must always:
(a)act in accordance with the law and the legitimate interests of his or her client; and
(b)deal with his or her client competently, diligently and fairly.

· Clause 2.3 - A registered migration agent’s professionalism must be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.
·     Clause 2.4 – A registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.
Clause 2.8 – A registered migration agent must:
(a)     within a reasonable time after agreeing to represent a client, confirm the client’s instruction in relation to the client: and
(b)           …..
(c)     keep the client fully and regularly informed in writing…

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: [2008] AATA 434
Decision Date: 26 May 2008

CaseChat Overview and Summary

The case of Rozsy and the Migration Agents Registration Authority was brought before the Migration Review Tribunal. The central issue in the case was the alleged breaches of the Code of Conduct by the applicant, who is a registered migration agent. The Migration Agents Registration Authority brought the case before the Tribunal to determine whether the applicant should be barred from being a registered migration agent, and if so, for what period. The Tribunal was required to consider the proper construction of certain clauses of the Code of Conduct and the relevant principles to be applied in determining whether to make a barring order.

The Tribunal first considered the proper construction of clauses 2.1, 2.3, and 2.23 of the Code of Conduct. The Tribunal found that the applicant had breached these clauses by failing to provide proper advice and assistance to clients, failing to maintain proper records, and failing to comply with certain administrative requirements. The Tribunal then considered the relevant principles to be applied in determining whether to make a barring order. The Tribunal found that the breaches were serious and that the applicant had a history of similar breaches in the past. The Tribunal also found that the applicant had shown a lack of remorse and had not taken steps to rectify the breaches.

The Tribunal ordered that the Migration Agents Registration Authority and the applicant lodge Outlines of Submissions as to whether the applicant ought to be barred from being a registered migration agent, and if so, for what period. The Tribunal also ordered that the parties advise the Tribunal of their unavailable dates in June and July for the further hearing of the matter. The Tribunal found that the breaches were serious and that the applicant had a history of similar breaches in the past. The Tribunal also found that the applicant had shown a lack of remorse and had not taken steps to rectify the breaches. The Tribunal considered these factors in determining that a barring order was appropriate and ordered that the matter be listed for further hearing as to whether the applicant ought to be barred from being a registered migration agent, and if so, for what period.

Orders

Orders of the court

1. Within 14 days of the date of this decision, the respondent to lodge with the Tribunal an Outline of its Submissions as to whether, in light of these reasons for decision, the applicant ought to be barred from being a registered migration agent pursuant to s311B of the Migration Act, 1958 and, if so, for what period, and to serve a copy on the applicant within the same period.

2. Within 14 days of the date of being served with a copy of the respondent’s Outline of Submissions, the applicant to lodge with the Tribunal an Outline of Submissions as to whether, in light of these reasons for decision, he ought to be barred from being a registered migration agent pursuant to s311B of the Migration Act 1958 and, if so, for what period, and to serve a copy on the respondent within the same period.

3. Within 7 days of the date of this decision, both parties are to advise the Tribunal, in writing, of their unavailable dates in June and July for the further hearing of this matter.

4. Thereafter the matter be listed for further hearing as to whether in light of these reasons for decision the applicant ought to be barred from being a registered migration gent pursuant to s311B of the Migration Act 1958 and, if so, for what period.

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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