Seymour and Migration Agents' Registration Authority

[2005] AATA 323

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 323

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/216

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL THOMAS SEYMOUR

Applicant

And MIGRATION AGENTS’ REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date11 April 2005

PlaceSydney

Order Pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 the Tribunal orders that the implementation and operation of the Respondent’s decision dated 14 February 2005 refusing the Applicant’s application for renewal of his registration as a migration agent be stayed until 23 March 2005.

..............[sgd]............

N Bell
  Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL )                    No N2005/216

GENERAL ADMINISTRATIVE DIVISION )

Re:Michael Thomas Seymour

Applicant

And:Migration Agents’ Registration Authority

Respondent

ORDER TO AMEND WRITTEN DECISION

TribunalMs N Bell, Senior Member

Date14 April 2005

PlaceSydney

WHEREAS:

1.The Tribunal released a written decision in this matter, which was dated 11 April 2005.

2.It has come to the Tribunal’s attention that there was an error in the decision.

3.The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.

NOW THE TRIBUNAL THEREFORE ORDERS that the decision should be read as follows:

Order Pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 the Tribunal orders that the implementation and operation of the Respondent’s decision dated 14 February 2005 refusing the Applicant’s application for renewal of his registration as a migration agent be stayed until 23 May 2005.

Insert new paragraph 13 that reads as follows:

Section 300 of the Act, as it applies to the expiry day in this case (see item 179A of Schedule 1 of Part 2 of the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004) provides, in the event of no decision by MARA, for the automatic renewal of a migration agents’ registration.

Paragraph 14:

Delete the words “23 March 2005” in the second sentence thereof and insert the words “23 May 2005”.

..........................................
  Ms N Bell
   Senior Member

Stay Application – Applicant’s Repeat Registration as a Migration Agent Refused - Applicant Subject of Law Society Proceedings – Respondent Not Notified

Administrative Appeals Tribunal Act 1975 section 41 (2)

Migration Act 1958 sections 290, 300

Law Society of New South Wales v Michael Thomas Seymour [2004] NSWSC 493  

REASONS

11 April 2005   Ms N Bell, Senior Member

1.      Mr Seymour seeks to have stayed the decision of the Migration Agents’ Registration Authority (“MARA”) refusing his application for repeat registration as a migration agent.  MARA concluded that Mr Seymour was not a person of integrity and was not a fit and proper person to give migration assistance.

2. The Tribunal’s power to stay the operation of a decision is provided by section 41 (2) of the Administrative Appeals Tribunal Act 1975.  Within the terms of that section, I may order that a decision be stayed if I think it is desirable to do so, upon taking into account the interests of any persons affected by the review, that is appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

3.      MARA based its decision on two matters: the judgement of His Honour Justice Buddin in Law Society of New South Wales v Michael Thomas Seymour [2004] NSWSC 493 and that Mr Seymour may have made a false and misleading statement in a statutory declaration and as well as the fact that Mr Seymour had not notified MARA of a driving offence in 1990.

4.      In brief summary, Mr Seymour pleaded guilty to a charge of contempt of court for failing to comply with an order of the Court restraining him from acting as a solicitor.  He received a suspended sentence of nine months imprisonment.

5.      The background to the contempt conviction was that Mr Seymour’s name had been removed from the roll of solicitors in 1984.  In 1994 Blanch J made an order restraining him from acting as a solicitor.  In 2003 the Law Society instituted proceedings against Mr Seymour for breaching this order when he acted in a conveyance.  Mr Seymour pleaded guilty and was convicted.

6. Section 290 (1) of the Migration Act 1958 (“the Act”) provides that a person must not be registered as a migration agent if MARA is satisfied that the person is, among other things, not a fit and proper person to give immigration assistance or is not a person of integrity. Among the matters listed in section 290 (2) of the Act to be taken into account in considering whether a person is fit and proper or a person of integrity are:

·the extent of the applicant's knowledge of migration procedure; and

·any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:

(i)  a fit and proper person to give immigration assistance; or

(ii)  a person of integrity;

·any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and

·any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and

·any disciplinary action that is being taken, or has been taken, against the applicant that the Authority considers relevant to the application; and

·any bankruptcy (present or past) of the applicant; and

·any other matter relevant to the applicant's fitness to give immigration assistance.

7.      Mr Seymour, through his Counsel Mr Hurley, submitted that the proceedings before Buddin J were not criminal proceedings, that MARA had the relevant information since 1993 and that he had, on registration as a migration agent, signed a consent to police checks.

8.      In relation to the stay sought, Mr Seymour submitted that the matters of concern to MARA do not go to his competence as an agent.  He gave evidence of the damage that will be done to his practice, now at a standstill, his income and his financial standing if the decision is not stayed.  He also suggested the possibility of bankruptcy as the ultimate result. 

9.      In particular, Mr Seymour can do no work on his existing matters and is unable to accept any new clients.  However, his financial obligations, including rent, payment of an employee, and other business costs continue as do his personal financial obligations including a mortgage and personal loans.

10.     In response, MARA submitted the offence of which Mr Seymour was convicted is very serious.  Mr Cox, for MARA, noted Mr Seymour’s failure to reply to MARA’s invitation to “show cause” as to why he should be registered as a migration agent again. I note, however, that Mr Seymour requested further particulars of MARA’s decision.  Mr Cox also pointed to the need to balance the interests of the public against those of Mr Seymour.

11.     I accept Mr Seymour’s evidence of the professional and financial damage that will accrue to him if the decision is not stayed.  I am mindful, also, that the matters prompting the decision under review do not go to Mr Seymour’s competence as a migration agent.  I consider that the risk to the public, should the decision be stayed, is of a small degree when weighed against the potential irreparable damage to Mr Seymour should it not be stayed.  On balance, I consider it desirable that the operation of the decision be stayed.  I consider that if the stay is not granted, the continued operation of the decision under review will affect Mr Seymour in such a way as to render the hearing of the application ineffective.

12.     The parties agreed, and I concur, that any stay order should operate no longer than the period for which the Applicant would have been registered had the decision not been made.

13. Section 300 of the Act provides, in the event of no decision by MARA, for the automatic continuation of a migration agents’ registration until the end of the period of 10 months beginning on the day after the expiry day of an agent’s period of registration.

14. Mr Seymour’s registration was due to expire on 23 May 2004 (T26). The operation of section 300 of the Act means that Mr Seymour’s registration may continue automatically until 23 March 2005. I may not stay the operation of the decision beyond that time.

15.     It may be necessary for a further stay application to be made by Mr Seymour if, on a further application for re-registration, MARA declines to grant the application.

order

16. Pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 the Tribunal orders that the implementation and operation of the Respondent’s decision dated 14 February 2005 refusing the Applicant’s application for renewal of his registration as a migration agent be stayed until 23 March 2005.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ...............[Linda Blue].....................................
  Associate

Date of Hearing  21 March 2005
Date of Decision  11 April 2005
Counsel for the Applicant         Mr T V Hurley                  
Solicitor for the Respondent     Mr A Cox