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DECISION AND REASONS FOR DECISION [2001] AATA 293
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1470
GENERAL ADMINISTRATIVE DIVISION )
Re AGUS SOSROHADIPOESPITO
Applicant
And MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Senior Member M D Allen
Date11 April 2001
PlaceSydney
Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision THAT: the registration of agus sosrohadipoespito as a Migration Agent is cancelled as and from the 11th day of April 2001.
(Sgd) M D ALLEN
..............................................
Senior Member
CATCHWORDS
MIGRATION - Migration Agent. Registration suspended for lengthy period for failure to comply with Code of Conduct. Lengthy suspension without more counterproductive. Primary consideration protection of the public. Tribunal standing in the shoes of the decision-maker. Set aside suspension and imposed cancellation of registration.
Migration Act 1958 - ss290A, 303, 304, 308 and 314
Migration Agents Regulations 1998 - Second Schedule
Re Quinn and Australian Securities Commission 19 AAR 321
Story v National Companies & Securities Commission (1988) 13 NSWLR 661
Re Hakaoro and Minister for Immigration & Multicultural Affairs 26 AAR 534
REASONS FOR DECISION
11 April 2001 Senior Member M D Allen
By a document lodged with the Tribunal on 15 September 2000 the Applicant sought review of the decision by the Respondent made 22 August 2000 and notified to the Applicant by letter dated 4 September 2000, which decision was that the Applicant's registration as a Migration Agent was suspended for 18 months from the 4 September 2000.
In the reasons for decision that accompanied the letter of 4 September 2000 to the Applicant, the decision of the Respondent is expressed in the following terms, namely (T2):
"Pursuant to section 303(b) of the Act, the Agent is advised that, following consideration of the facts before it, the Authority has determined to suspend the Agent's registration for eighteen months. The suspension shall remain in force for a period of eighteen months from the date of this decision." (Tribunal's emphasis)
Without more, therefore, a very real question arises as to the date at which the Applicant's suspension expires.
On 5 December 2000, Senior Member Ettinger refused a request by the Applicant to stay the decision under review.
The substantive application came on for hearing before me at Sydney on 27 March 2000. At that hearing the following documents were taken in as exhibits and marked as follows, namely:
T1 – T21: Documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit A1: Applicant's submissions entitled "MARA versus Agus Arifin Sosrohadipoespito"
Exhibit A2: Applicant's further submissions dated 1 October 2000
Exhibit R1: Respondent's Statement of Facts and Contentions
Exhibit R2: Copy of Movements Details of Ani Indrawati
Exhibit R3: Copy of Department of Immigration and Multicultural Affairs file re Ani Indrawati
Exhibit R4: Copy of Refugee Review Tribunal file re Ani Indrawati
Exhibit R5: Copy Migration Agents Registration Authority Code of Conduct
Exhibit R6: Copy statement of Merryl Dawson dated 23 March 2001.
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- Case
- [2001] AATA 293
- Decision Date
CaseChat Overview and Summary
The AAT determined that while the primary consideration in disciplinary actions against migration agents is the protection of the public, the tribunal must also consider proportionality in the sanctions imposed. The tribunal held that the lengthy suspension without additional evidence of harm to the public was excessive and counterproductive. The tribunal found that the applicant had not adequately responded to the complaint, but also noted that the suspension did not align with the objectives of the Act and the Code of Conduct. The tribunal concluded that a cancellation of registration was a more appropriate remedy given the circumstances. The tribunal was guided by the principle that it should not lightly substitute its own decision for that of the original decision-maker unless there was a clear error of law or the decision was manifestly unjust.
The AAT set aside the eighteen-month suspension imposed by MARA and instead ordered the cancellation of the applicant's registration. The tribunal's decision emphasized the need for appropriate and proportionate disciplinary measures that align with the statutory objectives and the protection of the public interest.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
On 18 April 2000 the Respondent wrote to the Applicant stating inter alia (T10):"This letter refers to a complaint brought to the attention of the Migration Agents Registration Authority (the "Authority") from the Refugee Review Tribunal.The Authority considered the matter at its meeting on 4 April 2000 and it is open to the Authority to be satisfied that you may have breached Clause 6.3 of the Code of Conduct as at 1 April 1998. The Authority is considering cautioning you or suspending or cancelling your registration for the following reasons:Clause 6.3A migration agent must respond to a request for information from the Authority within a reasonable time specified by the AuthorityOn 22 February 2000 the Authority published the complaint to you. The Authority gave you 21 days from the date of that letter in which to respond. You did not respond in the specified time.It is open to the Authority to be satisfied that you may have breached Clause 6.3 of the Code for failing to respond to the complaint from the Refugee Review Tribunal.Pursuant to section 309(2) of the Migration Act 1958, the Authority invites you to make a submission on the matter.Please provide your response by 8.30a.m. on 12 May 2000. …" As stated above, on 10 May 2000 a reply dated 2 March 2000 was received by the Respondent. That letter by the Applicant did not address the concerns of the Respondent. It reads (T11):"Dear Sir,Herewith I would like to respond your letter. My client Ani, I give my letter in Indonesian language so she did not respond or write me any letter to me or at least telephone me. So, I think its ok. The cost too much $ 1000,- because I give a commission to Robby. And thereafter when she was caught by Immigration because of working under section 116 her visa will be cancelled. So I am helping her until today. As I read the letter I knew that she is big lie then I hope she can be returned to Indonesia by Compliance Section as soon as possible. Enclosed is my letter in Indonesian language. I have been contact to Indonesian government that she is not under the government watch, not at all. So, she is not refugee at all. If anything happened to her in Indonesia is became my responsibility. Thank you for your attention." In response to the letter received 10 May 2000, the Respondent again wrote to the Applicant on 17 May 2000 requesting further information. That letter (T12) reads inter alia:"Reference is made to your letter dated 2 March 2000 which was received by the Authority on 10 May 2000,The Authority, pursuant to section 308(1)(a) of the Migration Act 1958 (the "Act"), requires you to provide a Statutory Declaration detailing the following:i) who the person named as Robby, in your letter dated 2 March 2000, is; andii) how much the payment given to Robby was; andiii) provide proof that the client knew of the commission to Robby that was being paid; andiv) identify which complaint your letter dated 2 March 2000 relates to.The Authority is to receive the Statutory Declaration by 8.30am 8 June 2000. Please forward all correspondence to the address below:…"