Rozsy and Migration Agents Registration Authority - [2005] AATA 420

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 420
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/188

GENERAL ADMINISTRATIVE DIVISION )

Re PETER ROZSY

Applicant

And

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal MJ Allen, Member
Date11 May 2005
PlacePerth

Decision The decision made by the respondent on 7 April 2003 to issue the applicant with a caution pursuant to s 303(h) of the Migration Act 1958 is varied by adding a condition that the caution is to be lifted and to cease to have effect on the date of this decision.
............(sgd MJ Allen)........
Member

7.      Having stated that it had found the above contraventions to have occurred, in the section of the decision headed “Reasons for the Decision of the Authority” the respondent set out the reasons why the caution decision had been made and specified all of the above provisions except for clause 5.1 of the Code. Nevertheless, when setting out in detail the reasons the respondent did refer to clause 5.1 and stated why it considered the clause had not been complied with.
8.       On 13 May 2003 the applicant applied to the Tribunal for a review of the decision of 7 April 2003 and was granted an extension of time for the making of that application.
9.      In the Statement of Facts and Contentions filed by the respondent in the Tribunal on 2 December 2003 the respondent contended (at para 40) that the applicant had contravened all of the provisions referred to in [6] above except for clauses 5.1 and 6.2 and also contended that the applicant had contravened clause 2.18 of the Code – “failing to act in a timely manner when the client has provided all the necessary information and documentation in time for statutory deadlines …”.
10. In a Supplementary Statement of Facts and Contentions filed by the respondent on 18 March 2004 the respondent abandoned the alleged breach of s 308(1)(c) of the Act but contended that the applicant had failed to comply with clause 5.1 of the Code, clause 8.1 of the Code (failing to exercise effective control of his office for the purpose of giving immigration advice and assistance), and clause 8.2 of the code (failing to properly supervise the work carried out by staff). At the commencement of the hearing I gave oral reasons why I was prepared to allow the respondent to rely on, and adduce evidence concerning, these additional alleged contraventions and the matter proceeded on the basis of alleged breaches by the applicant of clauses 2.1, 2.3, 2.4, 2.8(c), 2.15, 2.18, 2.23, 5.1, 6.1, 8.1 and 8.2 of the Code.
11.     The hearing of the matter proceeded over a number of days. The respondent abandoned several of the alleged contraventions and its final position was that the applicant had breached clauses 2.1 (a) and (b), 2.4, 2.8(c), 2.15, 2.23, 6.1, 8.1 and 8.2 of the Code (see para 2 of the respondent’s written submissions dated 6 December 2004).
12.     The first issue…

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: [2005] AATA 420
Decision Date: 11 May 2005

CaseChat Overview and Summary

The case of Rozsy and Migration Agents Registration Authority involved the applicant, Rozsy, who was cautioned for multiple contraventions of provisions of the Migration Act 1958 and the Code of Conduct. The Migration Agents Registration Authority issued the caution under section 303(h) of the Act. Rozsy sought review of the decision by the Administrative Appeals Tribunal (AAT). The AAT was required to determine whether Rozsy contravened certain clauses of the Code and, if so, whether the penalty of a caution was appropriate. The legal issues thus included whether Rozsy breached the Code and, if breaches were found, the suitability of the penalty imposed.

The AAT considered the evidence and submissions from both parties, applying the Briginshaw standard of proof on the balance of probabilities. It found that Rozsy contravened clauses 2.1, 2.4, 2.8(c), 6.1, 8.1 and 8.2 of the Code. However, it did not find breaches of clauses 2.15 and 2.23. In assessing the penalty, the AAT concluded that a caution was appropriate but found that the penalty should include a condition that the caution be lifted upon the date of the Tribunal’s decision. The Tribunal varied the original decision accordingly, ordering the caution to be lifted and to cease to have effect on the date of the Tribunal’s decision.

This outcome was reached by carefully weighing the evidence and considering the appropriate penalty for the breaches found. The AAT determined that while a caution was suitable, it needed to be conditioned to ensure it did not unduly affect Rozsy’s professional standing once the Tribunal had made its findings. The final orders of the Tribunal were that the decision to issue the caution was varied to include the condition that the caution be lifted on the date of the Tribunal’s decision.

Orders

Orders of the court

The decision made by the respondent on 7 April 2003 to issue the applicant with a caution pursuant to s 303(h) of the Migration Act 1958 is varied by adding a condition that the caution is to be lifted and to cease to have effect on the date of this decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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