Tangsilsat and Migration Agents Registration Authority

[2017] AATA 894

Tangsilsat and Migration Agents Registration Authority [2017] AATA 894 (14 June 2017)

Division:GENERAL DIVISION

File Number(s):      2017/2694

Re:Jaruwan Tangsilsat

APPLICANT

AndMigration Agents Registration Authority

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:14 June 2017

Place:Sydney

The application for a stay of the Respondent’s decision dated 8 May 2017 is refused.

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Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – stay application –– Migration Agents Regulation Authority – suspension of registration as migration agent – Code of Conduct - merits of substantive matter – public interest – consequences if stay refused - stay application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 41(2)

Migration Act 1958 (Cth)

CASES

Re Scott and Australian Securities and Investments Commission (2009) 51 AAR 114

Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

SECONDARY MATERIALS

Migration Agents Regulations 1998 (Cth) reg 8, sch 2

REASONS FOR DECISION

Senior Member A Poljak

14 June 2017

1. The applicant was first registered as a migration agent in about May 2009, and her registration has been renewed annually. The applicant is also a current holder of a legal practising certificate in New South Wales.

2. These proceedings concern a request by the applicant for a stay of the operation and implementation of a decision of the Migration Agents Registration Authority (“MARA”) made on 8 May 2017, under Part 3 of the Migration Act 1958 (Cth) (“the Act”) to suspend the applicant’s registration as a migration agent for a minimum period of 12 months (“suspension decision”), and until the applicant has met the conditions of the suspension decision.

3. The applicant’s registration was suspended following findings that she had engaged in conduct in breach of the following clauses of the migration agent’s Code of Conduct, prescribed under sch 2 of reg 8 of the Migration Agents Regulations 1998 (Cth) (“the Code of Conduct”):

   ·Clause 2.1 - competence, diligence and fairness;

   ·Clause 2.3 - knowledge of legislation and procedure;

   ·Clause 2.15 - placing undue pressure on complainant to withdraw complaint;

   ·Clause 5.2 - failure to provide an agreement for services and fees;

   ·Clauses 6.1, 6.1A, 6.3 - record keeping; and

   ·Clause 9.3 - obligation to respond properly to the authority.

   THE TRIBUNAL’S POWER TO MAKE A STAY ORDER

4. A decision that is subject to review has full effect and operation unless and until the Tribunal makes an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to stay the operation and effect of the decision. Such an order may be made if the Tribunal is “of the opinion that it is desirable to do so after taking into account the interests of any person who may be affected by the review…as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.” It is not intended to simply protect an applicant from the consequences of a decision.

5. In Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007]AATA 1065 at [6], the Tribunal said:

   “The decision whether to grant a Stay is entirely discretionary.  It follows that an applicant does not have an automatic right to a Stay.  Given the effect of s 41(1) of the AAT Act, it must necessarily be inferred that the reviewable decision, the decision of the SSAT in this case, is correct until proven otherwise.  Further, the general principle applied by the courts that, prima facie, the successful party has the right to the fruits of a judgement should also apply in the case of Tribunal decisions.  In the courts, an applicant for a Stay is required to show that there are special circumstances which would justify the stay of execution of the judgement.” (Emphasis added)

6. There are numerous authorities setting out a non-exhaustive set of factors which may be taken into account when determining an application for a stay order. In Re Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114 at [4], the Tribunal summarised the well-established relevant factors and principles. They are:

   1The prospects of success.

   2The consequence for the applicant of the refusal of a stay.

   3The public interest.

   4The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.

   5Whether the application for review would be rendered nugatory if a stay were not granted.

   6Other matters that are relevant, amongst which I would include the length of time that the ban has already been in place and the gap between today and the hearing of the application.

7. These factors are generally the touchstone against which consideration of stay applications are to be approached. In these proceedings the relevant factors are prospects of success; the public interest and consequence for the applicant of the refusal for a stay.

   Prospects of Success

8. While it is neither appropriate nor necessary to determine the substantive matter in these interlocutory proceedings, it is necessary to form a view about the prospects.

9. At hearing, the applicant explained the circumstances surrounding the complaint received by MARA and provided some explanation as to factors which may have given rise to the breaches of the Code of Conduct. In particular she said that the matter was pro-bono and felt pressured by the client to take the matter on even though it was outside of her area of expertise. She also alluded to the fact that she was busy and didn’t have the capacity to take on the client at that time. In regards to the applicant’s obligation to respond properly to the authority, the applicant advised that she didn’t want to do anything without the advice of her insurer. I also note that there may have been some impact on the applicants’ ability to respond to MARA as a result of her mother’s illness and overseas travel.

10. The parties will most likely provide further evidence in preparation for the hearing in the substantive proceedings. However, the bulk of the applicant’s submissions in these interlocutory proceedings did not address the main factors contained in the suspension decision. She was predominantly concerned with the circumstances surrounding the provision of the complaint to MARA instead of the serious issues raised and identified in the complaint.

11. Unless the applicant provides evidence and addresses her breaches of the Code of Conduct, she has poor prospects of success in the substantive proceedings.

    Public Interest

12. My primary concern in these interlocutory proceedings is the interests of the public if a stay were to be granted.

13. The ultimate purpose of registration of migration agents, as governed by Div 3 of Pt 3 of the Act, is to uphold standards of integrity and competence on the part of the agents; see Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 291 (Kirby J).

14. In making the suspension decision, it was found that the applicant demonstrated disregard for her professional responsibilities; she was not a person of integrity, nor a fit and proper person to provide immigration assistance; and engaged in repeated breaches of the Code of Conduct causing significant disadvantage to one of her clients. It was also noted in the suspension decision that the applicant posed a risk to consumers and that she provided no explanatory information or insight into her behaviour. She had neither accepted responsibility for her conduct nor offered a remedy to the client affected by her conduct.

15. The number and extent of the conditions imposed on the applicant in the suspension decision is also of concern. It is my understanding that the applicant has not yet undertaken any steps to meet these conditions.

16. The applicant has advised that she currently has four ongoing migration matters. Although not a large number of clients, there is no doubt that they will be affected by the suspension decision and they will need to engage another registered migration agent. While I acknowledge that this may cause some inconvenience to the applicant’s clients, this is outweighed by my concern for their interests. The suspension decision identifies serious findings about the applicant’s competency as a migration agent and until this decision is either affirmed or set aside on review, the interest of protecting consumers of migration assistance is my primary concern.

17. I find that the interests of the public, particularly given the vulnerability of some such consumers, weigh strongly against a stay of the suspension decision.

    Consequences

18. In regards to potential consequences to the applicant, she said at hearing that there may be some financial impact. She advised that most of her clients were unable to pay her fees upfront and had agreed to pay in instalments. She said that her current clients have only paid her $500 and the application fees. If a stay was not granted, the applicant contends that she will not get paid for the work that she had done.

19. Despite the applicant’s submissions that she would suffer some financial detriment, there is no evidence before me to substantiate the alleged financial impact. I also note that the applicant is still a current holder of a legal practising certificate in NSW. The suspension decision has no (present) impact on her ability to practice as a lawyer.

    DECISION

20. Having taken into account the factors advanced by both the applicant and respondent, I have reached the view that on balance, it is not desirable to order a stay under s 41(2) of the AAT Act.

21. The application for a stay is refused.

I certify that the preceding 21 (twenty - one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Dated: 14 June 2017

Date(s) of hearing:	31 May 2017
Applicant:	In person
Solicitors for the Respondent:	Brooke Griffin, Australian Government Solicitor