Stolar and Migration Agents Registration Authority - [2007] AATA 1397

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.…

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.

Continue reading Stolar and Migration Agents Registration Authority

Details

AGLC: Stolar and Migration Agents Registration Authority [2007] AATA 1397
Case: [2007] AATA 1397
Decision Date: 4 June 2007

CaseChat Overview and Summary

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.

Orders

Orders of the court

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.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		ANTHONY STOLAR