Townshend and Migration Agents Registration Authority

[2019] AATA 340

Townshend and Migration Agents Registration Authority [2019] AATA 340 (14 February 2019)

Division:GENERAL DIVISION

File Number:2018/7634           

Re:David Townshend  

APPLICANT

Migration Agents Registration AuthorityAnd  

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date of decision:               14 February 2019

Date of written reasons:        7 March 2019

Place:Melbourne

For the reasons given orally at the conclusion of the interlocutory hearing of this matter, the Tribunal refuses the application under section 41(2) of the Administrative Appeals Tribunal Act 1975 for a stay of the decision of the Respondent on 29 November 2018

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Mr A. Maryniak QC, Member

Catchwords

PRACTICE AND PROCEDURE – Application for order staying the decision of the Respondent – Whether to grant order – Weighing of relevant considerations – Application refused

Legislation

Administrative Appeals Tribunal Act 1975, ss 29(7), 41(2), 43(2A)

REASONS FOR DECISION

Mr A. Maryniak QC, Member  

7 March 2019

1. At the conclusion of the interlocutory hearing of this matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the Applicant pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish him with a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for the decision have been transcribed by Epiq Australia Pty Ltd.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the said transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that the following nine paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member.

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Associate

Dated: 7 March 2019

Date of telephone hearing:	14 February 2019
Advocate for the Applicant:	Mr T. Ibrahim
Solicitors for the Applicant:	Mardinah Legal
Advocate for the Respondent:	Ms L. Crick
Solicitors for the Respondent:	Clayton Utz

ANNEXURE A

EXTRACT OF TRANSCRIPT PROCEEDINGS

1. MEMBER:  This is an application for a stay, of this application made, by the applicant.  The applicant relies on an affidavit served late yesterday of Sukhdwpkaur, S-u-k-h-d-w-p-k-a-u-r.  So, it's a - so I make it clear, well it purports to be a one page affidavit, sworn 12 February 2019.  This affidavit was received by the respondent late yesterday, and appropriately the respondent requested that the deponent of the affidavit be available for cross-examination this morning.  The deponent is not available for cross-examination, and then, in such circumstances, despite the fact that the rules of evidence don't strictly apply, the affidavit is given little weight.

2. That is the entirety of the evidence upon which the - the affidavit evidence upon which the applicant intends to rely for the purpose of the stay application.

3. MR IBRAHIM:  Member, sorry, if I may interject, I did also mention that I would be relying on the T37 documents, which have been compiled by the respondent.

4. MEMBER:  Yes, but you haven't taken me to any of them.

5. MR IBRAHIM:  Sorry, Member?

6. MEMBER:  You haven't taken me to any of them.

7. MR IBRAHIM:  Yes, I did refer to the decision record.  I referred to the pages of the T37 document which outlined all the companies, of which my client is a director.  Which other reference did I make?  I made reference to the 457 units investigation.  These are all documents that you would find in the T37 documents, Member.

8. MEMBER:  Right, well, the applicant relies upon the T - sorry, the section 37 T documents, and the applicant relies upon the decision of - record of decision.  There is, in cases of this nature, there is always argument as to prospects of success of the substantive application, and the Tribunal doesn't make a finding on what the prospects of success of this substantive application are.  In any event, considering the other matters the Tribunal has to consider in support or against a stay, namely the consequences for the applicant for the refusal of the stay, the public interest, the consequence for the respondent in carrying out its functions depending upon whether a stay is granted or not, whether the application for review would be render nugatory if a stay were not granted, and the various other relevant factors.

9. Having considered the submissions of the applicant, considered the submission of the respondent, and light of the evidence that is before the Tribunal today, the Tribunal declines to make the stay and dismisses the stay application.  But what the Tribunal will do is direct that the substantive application be listed for hearing, with priority, on a date convenient to the parties and the Tribunal.