Vo and Migration Agents Registration Authority

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

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…