Vo and Migration Agents Registration Authority

[2007] AATA 1495

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1495

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1695

GENERAL ADMINISTRATIVE DIVISION		)
Re		THANH (DAN) VO

Applicant

And MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Mr  D Connolly AM, Member

Date2 July 2007

PlaceSydney

Decision The application for a stay is disallowed.

...................[sgd].........................

Mr D Connolly AM
  Member

CATCHWORDS

MIGRATION AGENT- MARA findings made in relation to a number of breaches of code of conduct - application for a stay pending appeal - MARA taken to have made decision even if decision later stayed- application for stay disallowed.

Migration Act 1958 – ss 300(1), 300(4) and 300(7)

Administrative Appeals Tribunal Act 1975 – ss 41(2)

The Migration Agent’s Code of Conduct - Schedule 2 of the Migration Agents Regulations 1998

Re Seymour and the Migration Agents Registration Authority (2006) 91 ALD 93

Seymour v Migration Agents Registration Authority (2006) 91 ALD 610

Seymour v Migration Agents Registration Authority (2007) 93 ALD 253

Re Seymour and Migration Agents Registration Authority [2005] AATA  323

REASONS FOR DECISION

2 July 2007 Mr D Connolly AM, Member          

1.      By application made on 3 May 2007, the Applicant, Mr Vo, sought a stay until 21 days after the determination by the Administrative Appeals Tribunal (AAT) or higher court of competent jurisdiction of the decision made by the Respondent, the Migration Agents Registration Authority (MARA), made on 23 April 2007, which suspended his registration as a Migration Agent for a minimum period of six months and imposed conditions to be fulfilled before the lifting of the suspension. The applicant has claimed that MARA’s decision was a denial of natural justice and procedural fairness.

2.      The decision of the respondent to suspend Mr Vo’s registration was made following MARA’s findings that the Applicant had breached clauses of the Migration Agents Code of Conduct, namely clauses 2.11, 2.15, 5.1, 5.2, 5.5, 7.2, 7.4, 11.3.

3.      Consequently, MARA suspended Mr Vo’s registration for a period of six months “and until” the Agent provides documentation of the following and sufficient time has been allowed for the Authority to consider the documentation provided:

·           Successful completion of 2 CPD points accounts management and or        financial management;

·           Successful completion of private tuition in professional ethics for a minimum         of four hours conducted by an individual or individuals approved by the      authority who is either an immigration law specialist or a migration agent with      a minimum seven years experience; and

·           That the agent’s template service agreement complies with clause 11.3 of the      Code of Conduct.

The respondent’s Submissions

4. The respondent submitted that the applicant’s migration agent registration expired on 14 February 2007. At the time MARA made its suspension decision on 23 April 2007, his registration continued by virtue of sub-section 300(1) of the Migration Act 1958 (the Act). Therefore, due to sub-sections 300(4) and 300(7) of the Migration Act any stay granted will not have any effect.

5.      The respondent submitted that the effect of sub-sections 300(4) and (7) is that Mr Vo’s registration as a migration agent ceased when MARA made its suspension decision on 23 April 2007. The grant of a stay by the AAT in relation to the suspension decision could not “re-enliven” Mr Vo’s registration. It was noted that the AAT has previously considered the application of section 300(4) and (7) in ReSeymour and the Migration Agents Registration Authority (2006) 91 ALD 93 (“Seymour”) and reached a similar view. The AAT’s decision in Seymour was later affirmed by the Federal Court in Seymour v Migration Agents Registration Authority (2006) 91 ALD 610 and the Full Federal Court in Seymour v Migration Agents Registration Authority (2007) 93 ALD 253.

6.      As a consequence of the effect of sections 300(4) and (7), the respondent was unable to consent to the application. The respondent further noted that in Seymour, the AAT had refused to grant a stay order because it “would be entirely without purpose”. Even if the stay was granted, Mr Vo cannot practice as a migration agent until he secures registration. Mr Vo’s re-registration application, lodged on 14 February 2007, has not been decided and thus MARA is unable to make a decision to register Mr Vo while he is suspended (section 291A).

The Applicant’s Submissions

7. In his submission dated 22 June 2007 Mr Vo claimed that sub-section 41(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) gave the Tribunal the power to hear an appeal for a stay decision. The applicant stated that the Tribunal has the right in respect to a merits review, which must be a de novo hearing and consider issues of natural justice, which were included in the grounds for the applicant’s appeal for a stay. The applicant cited as precedents Senior Member Bell in Seymour v. MARA [2005] AATA 323 and Deputy President Block in Seymour v. MARA [2006] AAT 369:

8…If the Tribunal does have the power to issue an effective order it is then necessary for the Tribunal to determine whether this is a case in which it would be proper to grant such an order.

8. The applicant claimed that as the power of the AAT to grant a stay is derived from sub-section 41(2) of the AAT Act that power is so fundamental that it cannot be removed or impaired by narrow interpretation of any case law or statutes, although he agreed that such power should not be exercised in “hopeless cases, or those without merit, or where ‘to grant a stay order in these circumstances would be entirely without purpose’.”

9.      The applicant claimed that he had been denied natural justice and procedural fairness as he was denied the opportunity to present evidence to MARA in regard to the illness of his wife who is suffering from symptoms of advanced cancer. The Tribunal took written evidence (Exhibit No 4) comprising letters from general medical practitioners and oncologists which stated that as of August 2006 Mrs Amanda Van had “approximately two years to live.”

10.     The applicant claimed that he had been unable to meet MARA’s deadline for information in regard to the claims made against him because of his wife’s illness. He also claimed that the circumstances in the Seymour cases are distinguishable from his as:

·     He had substantially complied with the Code of Conduct;

·     He was the victim of circumstances beyond his power to control;

·     His character was untainted prior to MARA’s decision;

·     The claims made against him were untested;

·     MARA had in bad faith intended to pre-empt the effect of subsection 300(4)(d) of the Act of which he was unaware.

Should the Tribunal grant a stay?

11. The Tribunal’s authority to grant a stay order is found in sub-section 41(2) of the AAT Act.

12.     The Tribunal is mindful that the applicant has made an application to the AAT for a review of MARA’s substantive decision and that the first conference between the parties to the dispute will take place on 6 July 2007.

13.     The Tribunal has noted the Full Federal Court’s judgement in Seymour v Migration Agents Registration Authority (2007) 93 ALD 253 and has declined to make an order staying the decision under review. Any decision to grant a stay would have no effect because the deemed continuance of Mr Vo’s registration under section 300 ceased upon MARA making the decision to suspend registration.

Decision

The application for a stay is disallowed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D Connolly AO, Member.

Signed:         .............[Emily Gadsby]..............................
  Associate

Date/s of Hearing  25 June 2007
Date of Decision  2 July 2007
Solicitor for the Applicant          Self-represented
Solicitor for the Respondent     Ms A Linacre of Clayton Utz Lawyers