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…

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.

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Details

Case: [2005] AATA 419
Decision Date: 11 May 2005

CaseChat Overview and Summary

The case involves Venkata Tanari, who applied to the Administrative Appeals Tribunal (AAT) for a review of the Migration Agents Registration Authority's (MARA) decision to cancel his registration as a migration agent. The applicant also sought a stay of the decision pending the outcome of the review. The AAT was tasked with deciding whether to grant a stay of the operation or implementation of MARA's decision.

The key legal issues were whether the cancellation of the applicant's registration should be stayed pending the review and, if so, under what conditions. The AAT considered the public interest in maintaining confidence in the regulation of migration agents against the potential hardship to the applicant if the cancellation remained in effect during the review. The applicant argued that he now complied with the Code of Conduct and had not engaged in the practices that led to the cancellation for over a year. The respondent argued that the public interest in protecting vulnerable consumers and maintaining confidence in the regulation system should outweigh any hardship to the applicant.

The AAT found that while it was in the public interest to protect vulnerable consumers and maintain confidence in the regulation system, the applicant's current compliance with the Code of Conduct, the changes in his practice over the past two and a half years, and MARA's decision to renew his registration three times since the complaint was lodged, were relevant factors. The AAT also noted that if a stay was granted, the applicant's day-to-day work would be closely monitored. Balancing these factors, the AAT decided that a stay was appropriate.

The Tribunal ordered a stay of the decision to cancel the applicant's registration, subject to the applicant refraining from any involvement with protection visa applicants and complying with the supervisory requirements set out in the Migration Act and the Migration Agents Regulations 1998. The Tribunal did not consider it necessary to order the applicant to seek MARA's prior approval before retaining a supervising agent, but advised that it would be prudent for the applicant to contact MARA to ensure the supervising agent met the prescribed requirements.

Orders