Seymour and Migration Agents Registration Authority - [2006] AATA 369

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 369
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/209

GENERAL ADMINISTRATIVE DIVISION )

Re

Michael Seymour

Applicant

And

Migration Agents Registration Authority

Respondent

DECISION

Tribunal Mr. Julian Block, Deputy President
Date 27 April 2006
Place Sydney

Decision The application by the Applicant for a stay, in accordance with section 41(2) of the Administrative Appeals Tribunal Act 1975, of a decision by the Respondent made on 20 February 2006, is denied.

[Sgd] Mr Julian Block, Deputy President

21 In that case, AAT Deputy President McMahon held that the power contained in 41(2) of the AAT Act is not positive in its effect, but only negative. The content of the power is limited by its legislative intention, which is to preserve the situation prior to making the reviewable decision, and it is not intended to put the Applicant in a different position to that in which he or she would have been placed, prior to the reviewable decision.

22 The relevant facts in Alexander were that the Applicant applied for registration as a migration agent after Part 3 of the Migration Act, requiring registration, came into effect in 1992. Complaints against the Applicant had been lodged with the MARA, and proceedings had been commenced seeking damages from the Applicant. The MARA considered the application and refused it. The Applicant then sought review by the AAT. The letter advising of the refusal stated that the Board had directed that the Applicant should not seek to hold himself out as available to give immigration assistance. At the same time, the Applicant made an application seeking a stay of the refusal to register, and sought a direction suspending the implementation of the decision to give the direction to cease to hold himself out as being available to give immigration assistance. The issue before the AAT was whether it had the power to stay the operation of the decision to refuse registration.
In the course of his reasons for decision, Deputy President McMahon said:
"(20)     The question, therefore, is whether this Tribunal has power to stay or otherwise affect the operation of the decision to refuse registration. In my opinion it does not.
(21)      The power is given to enable the Tribunal to preserve the status quo, so as to ensure that a continuum which is broken by a reviewable decision may be reinstated in order to secure the ultimate effectiveness of the hearing. Here there is no such continuum.
(22)      Prior to the operative decision, the Applicant was not registered under Pt 3. After the operative decision, he continued to be unregistered under Pt 3. What the Applicant really seeks is to have this Tribunal substitute, as a temporary decision, an order granting him registration under Pt 3 without investigation of the merits. In my view this Tribunal has no such power.
(23)      In those cases, where the 41(2) power has been exercised (either by the Tribunal or by a court on appeal) it has…

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: [2006] AATA 369
Decision Date: 27 April 2006

CaseChat Overview and Summary

The case involves the Applicant, seeking to stay a decision made by the Migration Agents Registration Authority to refuse their application for repeat registration as a migration agent. The matter was heard in the Federal Court of Australia. The Applicant, who had previously been deregistered as a migration agent, sought to be re-registered under the Migration Act 1958. The Migration Agents Registration Authority's decision was based on the Applicant's prior deregistration and the provisions of the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004. The Applicant appealed to the Administrative Appeals Tribunal (AAT) under section 41(2) of the Administrative Appeals Tribunal Act 1975, requesting a stay of the Authority's decision pending the outcome of the appeal.

The primary legal issue before the court was whether the Applicant's appeal to the AAT should be granted a stay of the Authority's decision. The court had to consider the criteria for granting a stay, including the likelihood of success on the merits of the appeal and the potential for irreparable harm if the stay were not granted. The court also needed to assess whether the Authority's decision was final and whether the Applicant's appeal was likely to succeed. In determining these issues, the court considered relevant case law, including Shi v Migration Institute of Australia Ltd, Re Alexander and Migration Agents Review Board, CIC Insurance Ltd v Bankstown Football Club Ltd, Asset Insure Pty Limited v New Cap Reinsurance Corporation Limited, Re Levy, and VOAW v Minister of Immigration and Multicultural Affairs.

The court denied the Applicant's request for a stay of the Authority's decision. The court found that the Applicant did not meet the criteria for a stay, as there was no substantial question to be tried on the merits of the appeal, and the Applicant had not demonstrated that they would suffer irreparable harm if the stay were not granted. The court also considered the finality of the Authority's decision and the legislative scheme governing migration agent registration, concluding that the Applicant's appeal was unlikely to succeed. The court's reasoning was consistent with the principles established in previous cases, such as Shi v Migration Institute of Australia Ltd, where the court held that a stay should not be granted where there was no substantial question to be tried.

The court's final order was that the application by the Applicant for a stay, in accordance with section 41(2) of the Administrative Appeals Tribunal Act 1975, of a decision by the Respondent made on 20 February 2006, is denied.

Orders

Orders of the court

The application by the Applicant for a stay, in accordance with section 41(2) of the Administrative Appeals Tribunal Act 1975, of a decision by the Respondent made on 20 February 2006, is denied.

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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