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…

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 323
Decision Date: 11 April 2005

CaseChat Overview and Summary

The case of Michael Thomas Seymour versus the Migration Agents’ Registration Authority (MARA) was heard before the Administrative Appeals Tribunal (AAT). Mr Seymour, a migration agent, sought to have the decision of MARA stayed, which had refused his application for repeat registration as a migration agent. MARA had concluded that Mr Seymour was not a person of integrity and not fit to give migration assistance. The AAT's power to stay a decision is provided by section 41(2) of the Administrative Appeals Tribunal Act 1975, which allows a stay if it is desirable and appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

The legal issues the court needed to address were whether the matters prompting MARA's decision went to Mr Seymour's competence as a migration agent and whether the risk to the public if the decision was stayed outweighed the potential irreparable damage to Mr Seymour if it was not. Mr Seymour argued that the matters of concern to MARA did not affect his competence and that the professional and financial damage to him if the decision was not stayed would be significant. MARA, on the other hand, highlighted the seriousness of Mr Seymour's conviction and the need to balance the interests of the public against those of Mr Seymour.

The AAT considered Mr Seymour's evidence of the potential professional and financial damage if the decision was not stayed and accepted that the matters prompting the decision under review did not go to his competence as a migration agent. The Tribunal also considered the risk to the public if the decision was stayed to be of a small degree when weighed against the potential irreparable damage to Mr Seymour if it was not. On balance, the Tribunal decided it was desirable that the operation of the decision be stayed to ensure the effectiveness of the hearing and determination of the application for review. The stay was ordered to operate no longer than the period for which Mr Seymour would have been registered had the decision not been made, and it was stayed until 23 March 2005.

Orders