Stolar and Migration Agents Registration Authority - [2007] AATA 1245

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1245
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
Date20 April 2007
PlaceBrisbane

Decision The Tribunal adjourns the matter to a date to be fixed to enable the parties to consider, and agree if possible, the terms of a decision to give effect to these reasons.

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

CATCHWORDS
MIGRATION AGENTS – registration – providing immigration assistance – obtaining assessment of qualifications connected to visa application - breach of Code of Conduct – failure to act in legitimate interests of clients – failure to deal with client competently, diligently, fairly – applicant’s conduct does not warrant conclusion that not a fit and proper person – Tribunal set aside respondent decision - varies decision of respondent – applicant to refund fees paid – period of suspension reduced to 6 months – supervision requirement of additional 6 months – parties invited to submit agreed draft within 14 days.
WORDS AND PHRASES – “immigration assistance”
Migration Act 1958 ss 5, 276, 303, 306AA, 314
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Regulations 1994 reg. 136.222
Migration Agents Regulations 1998 s7B(4)
Hartnett v Migration Agents Registration Authority (2004) 140 FCR 388
Silveira v Australian Institute of Management (2001) 113 FCR 218
Narayanan and Migration Agents’ Registration Authority [2006] AATA 353
Feng and Migration Agents Registration Authority [2002] AATA 709
REASONS FOR DECISION

20 April 2007 Deputy President P E Hack SC

Introduction
1.Mr Anthony Stolar has been a migration agent, registered pursuant to Part 3 of the Migration Act 1958 (Cth), since 1997.
2.On 18 December 2006 the respondent, the Migration Agents Registration Authority, having investigated two complaints made against the applicant, determined to suspend his registration as a migration agent for a period of 12 months.
3.The applicant seeks a review of the respondent’s decision in this Tribunal.

Background
4.There appears to be little dispute between the parties about the primary facts[1]; what is in issue is the interpretation of those facts.
[1] See Exhibit 2, pars. [4] – [5].
5.I am concerned with two complaints. The first was made by a Dutch couple, Ms Maaike Plakman and Mr Remko Pijnaker. They were described throughout the hearing as “the first complainants” and I shall continue with that description. The other complaint was made by Mr Chin-Pi Hung, a citizen of Taiwan, who is described as “the second complainant”.

The first complainants
6.The applicant’s dealings with the first complainants commenced in about April 2002. At that time the applicant was a consultant to the Queensland Chamber of Commerce and Industry. He met the first complainants when they visited the offices of that organization in Brisbane. He met them again the following month. On this occasion the applicant discussed with the first complainants their prospects of being able to migrate to Australian under a general skilled migration visa.

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 1245
Case: [2007] AATA 1245
Decision Date: 20 April 2007

CaseChat Overview and Summary

The applicant in this case, Mr Stolar, is a registered migration agent whose registration was subject to review by the Migration Agents Registration Authority. The Authority had found that Mr Stolar had breached the Code of Conduct by failing to act in the legitimate interests of his clients, and by not dealing with them competently, diligently, and fairly. This decision was reviewed by the Administrative Appeals Tribunal. The Tribunal was tasked with determining whether Mr Stolar's conduct warranted the conclusion that he was not a fit and proper person to hold a registration as a migration agent. Additionally, the Tribunal needed to consider whether the penalty imposed by the Authority was appropriate.

In its reasoning, the Tribunal found that although Mr Stolar's conduct was unsatisfactory and did breach the Code of Conduct, it did not rise to the level of being a fit and improper person to hold a registration. The Tribunal set aside the decision of the Authority and varied it by reducing the period of suspension of Mr Stolar's registration from 12 months to 6 months, and imposing a supervision requirement for an additional 6 months. The Tribunal also ordered Mr Stolar to refund the fees paid to the Authority. The Tribunal concluded that the original penalty was too severe given the circumstances and that a lesser penalty would be sufficient to achieve the objectives of the registration scheme.

The orders of the Tribunal were that the matter be adjourned to a date to be fixed to enable the parties to consider, and agree if possible, the terms of a decision to give effect to these reasons. The Tribunal invited the parties to submit an agreed draft within 14 days. The decision provides guidance on the appropriate penalty to be imposed when a migration agent breaches the Code of Conduct.

Orders

Orders of the court

The Tribunal adjourns the matter to a date to be fixed to enable the parties to consider, and agree if possible, the terms of a decision to give effect to these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANTHONY STOLAR