Stolar and Migration Agents Registration Authority

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1397
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600929

GENERAL ADMINISTRATIVE DIVISION )

Re ANTHONY STOLAR

Applicant

And

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date4 June 2007
PlaceBrisbane

Decision
The Tribunal :

(a)       sets aside the respondent’s decision of 18 December 2006;

(b)       substitutes, in lieu thereof, a decision that the applicant’s registration as a migration agent is suspended but that the suspension be lifted on 18 June 2007 provided that the applicant provides the respondent with satisfactory evidence of the following:

(i)     successful completion of private tuition in Professional Ethics for a minimum of 4 hours conducted by an individual or individuals approved by the respondent who is either an immigration law specialist or a migration agent with a minimum of 7 years’ experience;

(ii)     successful completion of one CPD point on Business Management;

(iii)    successful completion of 5 CPD Points for each 6 months that the applicant’s registration is suspended; and,

(iv)    that the applicant has refunded $1,500 to the first complainants.

.................Signed............
Deputy President

CATCHWORDS
MIGRATION AGENTS – suspension – no power to impose conditions - terms of decision
Migration Act 1958 ss 291A, 300
REASONS FOR DECISION

4 June 2007 Deputy President P E Hack SC

1.On 20 April 2007 I published my reasons[1] for a proposed decision in this matter and adjourned the matter to enable the parties to consider the precise terms of a decision to give effect to the general terms set out in the decision.
[1] See [2007] AATA 1245.
2.I had proposed a decision that reduced the period of suspension from one of 12 months (as imposed by the respondent) to one of 6 months followed by a further period of 6 months during which the applicant would be supervised by an experienced migration agent of his choosing. My reasons for proposing that course are set out in my earlier reasons and need not be repeated.
3.The solicitors for the respondent have now informed the Tribunal of a contention that there is no power to subject the applicant’s practice to a condition of the type I had in mind. The submissions were outlined in correspondence to the Tribunal and in the course of a further short telephone hearing on 24 May 2007. It is unfortunate that the submissions now advanced were not advanced in the course of the original hearing when I raised the idea in the course of argument. It is however now necessary to deal with the argument.
4.The starting point of the argument is to notice that the applicant’s
registration would have expired through the effluxion of time in July 2006. The applicant applied for renewal of that registration before its expiry and, by operation of s 300(4) of the Migration Act 1958, his registration was taken to continue after its ordinary expiry date and until 18 December 2006 when the respondent decided to suspend the registration. There is an apparent tension between the notion of expiry, on that date, of the registration and the suspension of the registration however that seems to be dealt with in a practical way by s 291A of the Migration Act which precludes registration during what would have been a period of suspension.
5.But the effect of this seems to me to be that there is no current registration capable of being made subject to a continuing condition and thus I am satisfied that the condition that I had proposed cannot be lawfully imposed. Nonetheless, in the course of the further hearing the applicant acknowledged the failings in his conduct that I had identified in my earlier reasons and acknowledged as well that he would be assisted by a period of mentoring by an experienced practitioner. He undertook to be supervised in the manner that I had suggested and proposed to use Mr Bruce Henry for this purpose.
6.Whilst an arrangement of this nature is voluntary and cannot be enforced the fact of the applicant agreeing to it reflects well upon him and persuades me to make a decision in the terms proposed but without the supervision condition. I imagine that if the applicant comes to the notice of the respondent within the period of 6 months after the lifting of the suspension then compliance (or otherwise) with his voluntary undertaking might well be a material consideration at that time.
7.The parties are otherwise agreed about the terms of a decision which will give effect to my conclusion. The terms have been essentially settled between the parties but I have made some very minor variations. I would make a decision as follows:
(a)the respondent’s decision of 18 December 2006 is set aside;
(b)in lieu thereof, a decision is substituted that the applicant’s registration as a migration agent is suspended but that the suspension be lifted on 18 June 2007 provided that the applicant provides the respondent with satisfactory evidence of the following:
(i)successful completion of private tuition in Professional Ethics for a minimum of 4 hours conducted by an individual or individuals approved by the respondent who is either an immigration law specialist or a migration agent with a minimum of 7 years’ experience;
(ii)successful completion of one CPD point on Business Management;
(iii)successful completion of 5 CPD Points for each 6 months that the applicant’s registration is suspended; and,
(iv)that the applicant has refunded $1,500 to the first complainants.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed:         .....................Signed…..........................................
  Eleanor O’Gorman, Associate
Dates of Hearing   6 & 7 March 2007
Date of Reasons   20 April 2007
Date of Decision  4 June 2007
The Applicant appeared for himself
Solicitor for the Respondent                  Clayton Utz Lawyers

Stolar, an Australian migration agent, was involved in a dispute with the Migration Agents Registration Authority over the suspension of his registration. The conflict arose from several complaints regarding his professional conduct and ethical breaches. The Migration Agents Registration Authority decided to suspend Stolar's registration. Stolar appealed this decision to the Administrative Appeals Tribunal, which was tasked with determining the legality of the Authority's decision and the appropriateness of the imposed conditions.

The primary legal issues for the Tribunal to address were whether the Authority had the statutory power to suspend Stolar's registration and to impose specific conditions for its reinstatement. The Tribunal had to consider whether the Authority's decision was in accordance with the Migration Act 1958 and whether the conditions imposed were reasonable and necessary. Additionally, the Tribunal needed to assess if the Authority's decision was fair and lawful, particularly in terms of the evidence and documentation provided by Stolar.

In its decision, the Tribunal determined that the Authority did not have the power to impose certain conditions for the reinstatement of Stolar's registration. The Tribunal found that while the Authority had the power to suspend Stolar's registration, it could not impose conditions that were not expressly authorised by the Migration Act 1958. The Tribunal set aside the Authority's decision and substituted it with a decision that Stolar's registration would be suspended but could be lifted under specific conditions. These conditions included completing professional ethics training, obtaining CPD points, and refunding a specified amount to the complainants.

The Tribunal's final orders included setting aside the original decision of the Authority and substituting a new decision that allowed for the suspension of Stolar's registration under specified conditions, including evidence of completed training, CPD points, and refunds to complainants. This new decision was to take effect with the suspension of registration lifted on a specific date provided Stolar met the outlined requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANTHONY STOLAR