Tanari and Migration Agents Registration Authority

[2005] AATA 419

Administrative

Appeals

Tribunal

 

ORDER AND REASONS FOR ORDER [2005] AATA 419

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/264

GENERAL ADMINISTRATIVE  DIVISION

Re:         VENKATA TANARI

Applicant

And:       MIGRATION AGENTS

REGISTRATION AUTHORITY

Respondent

ORDER

Tribunal:       Regina Perton, Member

Date:             11 May 2005

Place:            Melbourne

The Tribunal orders, under s 41(2) of the Administrative Appeals Tribunal Act 1975, the stay of the decision of the Migration Agents Registration Authority dated 14 March 2005 to cancel the applicant’s registration as a migration agent, until such time as the application for review is heard and decided or until further order. 

(sgd) Regina Perton

Member

PRACTICE AND PROCEDURE ‑ stay application – applicant’s registration as migration agent cancelled – stay granted subject to prescribed conditions

Administrative Appeals Tribunal Act 1975 s 41(2)

Migration Act 1958 ss 303, 306AA

Migration Agents Regulations 1998 reg 7B

Re Wang and Migration Agents Registration Board (AAT 10821, 1 March 1996)
Shi v Migration Institute of Australia Ltd and Another (2003) 134 FCR 326

Re Woods and Migration Agents Registration Authority (2003) 37 AAR 482

REASONS FOR DECISION

11 May 2005  Regina Perton, Member

1.      On 1 April 2005, Venkata Tanari (the applicant) applied to the Tribunal for review of a decision by the Migration Agents Registration Authority (MARA), dated 14 March 2005, to cancel his registration as a migration agent.  MARA cancelled the applicant’s licence because he failed to comply with the prescribed Code of Conduct for migration agents and that he is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance. 

2.      On 1 April 2005, the applicant also applied for a stay of the operation or implementation of MARA’s decision. 

3.      At the hearing of the stay application on 5 May 2005, Mr Tony O’Donoghue of Counsel represented the applicant.  Ms Sonia Law of the Australian Government Solicitor’s Office represented the respondent. 

4. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (the Act) (T1-T28). 

BACKGROUND

5.      The applicant was first registered as a migration agent on 8 January 2002.  On 8 November 2002, MARA received a complaint from an officer of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) that the applicant had, within a short time period, lodged 8 applications for protection visas for apparently unrelated Malaysian nationals of different ages and backgrounds, with identical  claims of persecution.  All the applications comprised identical type-written sheets of paper attached to an application form and showed the same residential address.  The DIMIA officer also cited 3 further cases lodged by the applicant on behalf of Malaysian nationals where the claims were similar to the  8 and had been presented in the same style.  All 11 applications were lodged in the 5 weeks  between 11 September 2002 and 14 October 2002. 

6.      On 14 November 2002, MARA wrote to the applicant providing details of the complaint and advising him that he was entitled to  comment on or before 6 December 2002.  The applicant was also asked to supply his original files concerning the 11 protection visa applicants as well as financial and other information about his practice.  On 2 December 2002, the applicant sought an extension of time to provide a response but this request was denied by MARA.  On 5 December 2002, the applicant provided the material sought.

7.      On 19 March 2003, MARA re-registered the applicant as a migration agent for 12 months from 8 January 2003.

8.      On 5 December 2003, the applicant applied for re-registration.  On 19December 2003, MARA renewed the applicant’s registration for a further 12 months from 8 January 2004.   

9.      On 14 April 2004, the respondent considered DIMIA’s complaint, which had been made on 8 November 2002, and the further information provided by the applicant on 5 December 2002.  On 16 April 2004, MARA wrote to the applicant providing comprehensive details of its deliberations and the alleged breaches of the Code of Conduct and advised that it was considering cautioning the applicant or suspending or cancelling his registration.  The applicant was invited to provide a written submission by no later than 18 May 2004.  MARA received the applicant’s response on 14 May 2004.

10.     On 22 December 2004, the applicant applied to renew his registration.  On 15 February 2005, MARA  again renewed his registration  for 12 months from 8 January 2005.

11.     On 14 March 2005, MARA decided to cancel the applicant’s registration on the basis that he had not complied with the prescribed Code of Conduct for migration agents and that he was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance.

12.     On 1 April 2005, the applicant applied to the Tribunal for review of MARA’s decision and also for a stay of its implementation and operation.

13.     The preliminary issue before the Tribunal is whether the operation or implementation of the Minister's decision should be stayed pending the hearing of the application for review.

EVIDENCE

14.     At the hearing, the applicant told the Tribunal that he was first registered in January 2002 and that his registration had been renewed three times since the initial registration.  He said that he is not aware of any further complaints against him apart from the DIMIA complaint in November 2002.  The applicant said that for the last 2 years or so, he has been specialising in skilled migration: and he has lodged 30 to 40 DIMIA applications for clients seeking permanent migration on that basis, with a success rate of approximately 80 per cent.   He said he  has about 15 applications with DIMIA which are yet to be determined.  The applicant said that he  has no clients with applications before DIMIA and that he lodged the last protection visa application  some 18 months ago.  He said that he has lodged 14 protection visa applications  since commencing as a migration agent.

15.     The applicant said that he now complies fully with the requirements of the Code of Conduct in his dealings with his clients and in the administration of his practice.   He conceded that he had not fully complied with prescribed requirements during 2002, when he was first registered.  He said he had worked in the information technology (IT) field prior to taking the migration agent’s course at Victoria University and subsequently obtaining registration. 

16.     The applicant said that his practice as a migration agent was his sole source of income.  He is married with 10 year old twins.  He said that his wife started working in a supermarket to earn income for the family following the cancellation of his registration.   The applicant said that after more than 3 years out of the IT industry his knowledge and skills are no longer up to date and it would be difficult for him to get work in that field without further study.    The applicant said that he had been operating his practice from home and that he does not employ any staff.

CONSIDERATION OF THE ISSUES

17. Part 3 of the Migration Act 1958 (the Migration Act) allows for the regulation of migration agents, including a registration and disciplinary role for MARA. Section 303 of the Migration Act allows MARA to cancel or suspend the registration of a migration agent or to caution the agent if, amongst other things, it becomes satisfied that:

…

(f)the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or

(g)an individual related by employment to the agent is not a person of integrity; or

(h)the agent has not complied with the Code of Conduct prescribed under section 314.

18.     In this case, MARA decided to cancel the applicant’s registration on 14 March 2005.  The Tribunal is yet to consider the application for review of that decision.

19.     The lodging of an application for review with the Tribunal does not automatically stop the operation or implementation of the decision under review.  However, s 41 of the Act permits the Tribunal to make orders allowing the stay: 

41(1)       Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.

(2)        The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding ), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

20.     Ms Law submitted that the protection of vulnerable consumers and the maintenance of confidence in the regulation system were in the public interest; and that public interest outweighed any hardship the applicant may suffer, or have suffered, as a result of the cancellation decision remaining in effect until the determination of the application for review.  She cited Re Wang and Migration Agents Registration Board (AAT 10821, 1 March 1996), in which the Tribunal described the granting of a stay as a balancing exercise between the hardship that must attach to the applicant if a stay is not granted against the public interest in not granting such a stay.  The Tribunal stated at paragraph 4:

The strong community interest that governs migration to this country and the practices of migration agents is such that the business that they undertake is carried out according to an established code of conduct which is in fact part of the Migration Regulations.  A failure to comply with that code of conduct can have very serious consequences for persons seeking the services of an agent like Ms Wang.  Public interest is that persons who seek to migrate to this country should feel confident that their applications will be completely and thoroughly dealt with.

21.     Mr O’Donoghue submitted that while the applicant may not have fully complied with the Code of Conduct during 2002, this is no longer the case.  He pointed out that the applicant now specialises in skilled migration and has not lodged a protection visa for a considerable period; nor have there been any further complaints against him.  He cited Shi v Migration Institute of Australia Ltdand Another (2003) 134 FCR 326. There Tamberlin J stated, at paragraphs 28 and 29::

28          ….It is evident that if a decision favourable to an applicant is made by the AAT in relation to the application to renew, then the agent in this case will have been wrongfully deprived of the opportunity to earn his livelihood from that time up to the time of the favourable determination.  There may also be damage to his practice and reputation.  There is no provision for recovery of this loss or for any disruption to the practice, or loss of reputation or goodwill.  A favourable decision to the applicant by the AAT would also mean that the applicant had been wrongfully refused registration and these are important considerations: see the remarks of Davies J in Re Dekanic v Tax Agents' Board (NSW) (1982) 6 ALD 240 at 242-243. These observations were applied in Re Nelson and Tax Agents' Board (Qld) (1993) 30 ALD 317.

29          If the applicant in the present case is not granted a stay, the effectiveness of the hearing and determination of the application for review will be diminished.

22.     Mr O’Donoghue also said that in Re Woods and Migration Agents Registration Authority (2003) 37 AAR 482, the Tribunal granted a stay to a migration agent whose breaches of the Code of Conduct were far more serious than those of the applicant in the present matter.

23.     Mr O’Donoghue submitted that renewal of the applicant’s registration three times since MARA commenced its investigations should be taken into consideration by the Tribunal in deciding whether to grant the stay.   He pointed out that the most recent renewal followed notice of intention to cancel or suspend the applicant’s licence many months earlier.  He said  that MARA did not appear to believe that it was in the public interest to refuse to renew the registration at that time, despite being in possession of the information it subsequently used to cancel the registration.  He emphasised that the events complained of occurred over two and a half years ago and that there had been no further complaints against the applicant. 

24. The Migration Act contains specific provisions relating to stay applications by migration agents following decisions by MARA. Section 306AA states:

If the Administrative Appeals Tribunal or a court orders a stay of a decision under section 303 to cancel or suspend a registered migration agent's registration, it is taken to be a condition of the order that the prescribed supervisory requirements apply in relation to the agent during the period of the order.

25. Regulation 7B of the Migration Agents Regulations 1998 (the Regulations) prescribes supervisory requirements where a stay order is made:

(1) For sections 306AA and 306AK of the Act, the supervisory requirements mentioned in subregulations (2), (3) and (4) are prescribed.

(2)         The registered migration agent who benefits from the stay of a decision to either cancel or suspend his or her registration (the supervised agent ) must be supervised by another registered migration agent (the supervising agent).

(3)          The supervising agent must not:

(a)be the subject of a complaint in relation to which the Authority is considering the cancellation or suspension of the supervising agent's registration, or cautioning the supervising agent, or refusing an application for registration by the supervising agent; or

(b)be subject to any disciplinary action; or

(c)be employed by the business or corporation that employs the supervised agent.

(4)       The supervising agent must:

(a)meet with or telephone any new client of the supervised agent within 28 days of the supervised agent agreeing to represent the client, and explain the supervising agent's role; and

(b)make file notes of all meetings with any new client of the supervised agent; and

(c)check any new visa or review application, and the client's file, prior to lodging by the supervised agent; and

(d)check preparations for any Administrative Appeals Tribunal, Refugee Review Tribunal or Migration Review Tribunal hearing involving the supervised agent, and attend the hearing with the supervised agent; and

(e)work directly and regularly (at least once every 21 calendar days) with the supervised agent to ensure compliance with the Code of Conduct in Schedule 2; and

(f)notify the Authority in writing within 14 days after agreeing to supervise the supervised agent; and

(g)notify the Authority in writing within 14 days after ceasing to supervise the supervised agent.

26. In deciding whether to grant a stay, the Tribunal agrees with the respondent that it is in the public interest that vulnerable consumers be protected given the serious consequences that can flow from poor practice in this area. However, in balancing the public interest with those of the applicant and his current clients, the Tribunal is influenced by MARA’s actions since the complaints were lodged and investigated. The Tribunal takes into account that MARA renewed the applicant’s registration three times since the lodgement of the complaint, with the most recent renewal being many months after the apparent completion of its investigation and the giving of notice to the applicant. The Tribunal also notes the applicant’s evidence regarding the changes to his practice over the past two and a half years, his current compliance with the Code of Conduct and his lack of involvement in any protection visa applications for a considerable period. The applicant has given an undertaking to refrain from any involvement with protection visa applicants if a stay is granted. Furthermore, if a stay is granted, the provisions of s 306AA of the Migration Act and reg 7B of the Regulations will result in close monitoring of the applicant’s day‑to-day work. Taking into account these factors, the Tribunal finds that the grant of a stay in this matter is appropriate.

27. Ms Law submitted that if the Tribunal grants a stay, an order be made that the applicant seek the prior approval of MARA before retaining a particular agent as supervisor. Given the wording of paragraph 3 of reg 7B, the Tribunal is of the view that such an order is not necessary. Nonetheless, it would be prudent for the applicant to contact MARA before engaging a supervising agent to ensure that the agent meets the prescribed requirements.

DECISION

28. The Tribunal orders, under s 41(2) of the Administrative Appeals Tribunal Act 1975, the stay of the decision of the Migration Agents Registration Authority dated 14 March 2005 to cancel the applicant’s registration as a migration agent, until such time as the application for review is heard and decided or until further order. 

I certify that the twenty-eight [28] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

signed:     . . . . . . . . . . . . . . . . . . . . . . . .

Clerk

Date of hearing:   5 May 2005
Date of decision:     11 May 2005
Counsel for the applicant:            Mr T. O’Donoghue
Solicitor for the applicant:            Mantoo & Co

Solicitor for the respondent:         Ms S. Law

Australian Government Solicitor’s Office