Woods and Migration Agents Registration Authority

[2003] AATA 396

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 396

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V03/165

GENERAL ADMINISTRATIVE DIVISION		)
Re		JAMES WOODS

Applicant

And MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal  Mr J. Handley, Senior Member

Date30 April 2003

PlaceMelbourne

Decision The decision made by the respondent on 3 February 2003 to suspend the registration of the applicant as a migration agent was valid and it is a decision capable of review by this Tribunal.

(Sgd)  J Handley

Senior Member

MIGRATION – registration of applicant as a migration agent cancelled – subsequent stay order made by Tribunal – applicant continued to be registered as an agent – another decision made to suspend registration – whether latter decision is valid and capable of review

REASONS FOR DECISION

30 April 2003   Mr J. Handley, Senior Member

1. The applicant is a migration agent registered pursuant to s.286 of the Migration Act 1958 (“the Act”).

2. The Minister appointed the Migration Institute of Australia Limited. pursuant to s.315 of the Act. The respondent is the administrator of the scheme of registration of Migration agents pursuant to the combined effects of s.275, s.316 and s.317 of the Act.

3. Section 286 of the Act provides that individuals may be registered as migration agents and s.287 provides that the respondent “must keep a register …... listing individuals who are registered as migration agents”. 

4.      The applicant was first registered as a migration agent on 23 March 1993 and was registered up to and including 28 June 2002.

5.      On 28 June 2002 the respondent decided (the cancellation decision)

ithat the applicant was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance within s.303(f) of the Act; and

ian individual related by employment to the applicant was not a person of integrity within s.303(g) of the Act; and

ithe applicant had not complied with the Code of Conduct prescribed under s.314(1) of the Act as, in force; and

ithe registration of the applicant as a migration agent be cancelled by removing his name from the register kept by the respondent under s.287(1) of the Act.

6.      The applicant lodged an application with this Tribunal to review the above decisions by application V2002/0724.

7. On 3 February 2003 the respondent decided pursuant to section 303(b) of the Act to suspend his registration (the suspension decision), as a migration agent until the following conditions were satisfied namely-

ia period of three years past from the date that the decision was notified to him; and

ihe provides a statutory declaration attesting that he has not made immigration representations for a fee and not given immigration assistance as defined in the Act during the period of suspension.

8.      The latter decision is the subject of an application for review, also lodged by the applicant with this Tribunal by application V2003/0165.

9.      Both applications are listed for hearing on 6 May.  A period of 10 sitting days have been reserved to hear each review. 

10.     A number of pre-hearing and other interlocutory applications have been heard by the Tribunal and a number of preliminary decisions have been made.  Significantly, a Deputy President of this Tribunal directed on 13 February 2003 that the respondent and the applicant file and serve submissions as to the validity of the decision under review in V2003/165 on or before 27 February and 13 March respectively.  Those directions were amended by consent on 19 February by extending the period of time to lodge submissions to 21 March and 18 April respectively.  Each party has lodged submissions on this issue. 

11.     At a Directions Hearing convened on 28 April - principally to consider whether summonses should be issued at the request of the applicant - the issue of the “validity” of the decision in V2003/165 was raised.  Having regard to other matters which were discussed during the Directions Hearing on 28 April and having regard also to the proximity of hearing, I decided that brief written reasons would be delivered on or before 30 April, concerning the validity of the suspension decision. 

12.     The applicant submits that the suspension decision is not valid because his registration was cancelled by reason of the cancellation decision.  He submitted (refer contentions at paragraph 5) that by reason of his registration having been cancelled, it is not possible to suspend the registration.  The applicant acknowledges also at paragraph 5 that unless a stay of the cancellation decision is made suspension is not subsequently possible.  

13.     The respondent submits that following the cancellation decision the registration of the applicant as a migration agent was cancelled.  However the Tribunal subsequently made a number of stay Orders and the applicant has thereafter remained on the register of migration agents.  That is to say, subsequent to the making of stay Orders, the applicant remained registered as a migration agent.  It followed, according to the respondent in its submissions, that the decision to suspend the applicant’s registration was a valid decision because at the time of the suspension decision, the applicant was registered as a migration agent.

Conclusion & Reasons For Decision

14. Section 41(1) of the Administrative Appeals Tribunal Act 1975 provides that the making of an application to the Tribunal for review of a decision does not affect the operation of the decision or prevent the implementation of the decision.

15.     Sub-section (2) however provides that when taking account of the interests of persons who may be affected by the review, the Tribunal, may “make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates …..”.

16. Section 41 therefore provides that a decision maker is not prevented from implementing a decision that may be under review unless the Tribunal exercises a discretion to stay the effect of the decision under review.

17. In the present case, three Orders have been made by a Deputy President of the Tribunal pursuant to s.41(2).

18.     On 11 July - being the day after the application for review in the cancellation decision was lodged, the Tribunal Ordered-

“before giving any advice to, or taking any action on behalf of a person as a migration agent he (the applicant) will advise that person that his registration as a migration agent has been cancelled by the respondent but that the operation of that decision has been stayed by order of the Tribunal until midnight on 21 August 2002 or until further order and

he will act as a migration agent on the basis of receiving a fee for services rendered and not otherwise”.

19.     That decision was stayed until 21 August 2002. 

20.     An amended Order was made on 21 August 2002 in similar terms but with a slight variation.  Again, a further amended Order was made on 17 January 2003 in similar terms but with variation. 

21.     The effect therefore of the three Orders made by the Tribunal to stay the implementation of the decision under review has been to permit the applicant to act as a migration agent on certain terms, thereby staying the operation or implementation of the decision under review. 

22.     Although being permitted by the Orders of the Tribunal to act as a migration agent, it would appear that the respondent at all relevant times continued to register Mr Woods as a migration agent. 

23.     On 24 September 2002 the respondent wrote to the complainant in the suspension application in the following terms (refer T97, p342 of the T documents in application V03/165) -

“your complaint was considered by the Authority at a meeting on 2 July 2002. As Mr Woods was not registered at the time the Authority decided that if Mr Woods became registered again a meeting be organised pursuant to s.310 of the Migration Act 1958 (the Act). Under s.310, the Authority would seek to allow Mr Woods to make further oral submissions in relation to the issues raised in the complaint. Mr Woods has since again become registered and we are in the process of organising a s.310 meeting in the near future”.

24. This letter indicates to me that at 2 July 2002 the respondent did not register Mr Woods as an agent by reason of the decision that it made on 28 June 2002 in the cancellation application. However at 24 September 2002 Mr Woods had again become registered. I assume that he was again registered because of the effect or operation of the Orders made by the Tribunal pursuant to s.41 of the Administrative Appeals Tribunal Act.  In any event, at 24 September 2002 he was registered as a migration agent.  I can find nothing from the submissions lodged or from the documents lodged by either party, indicating that at 3 February 2003 when the suspension decision was made that Mr Woods was not then registered. 

25. It follows therefore that at 3 February 2003 Mr Woods was registered as a migration agent. It follows that the respondent did have a power at 3 February 2003 to suspend his registration pursuant to s.303 of the Act.

26. It follows therefore that the decision made to suspend registration on 3 February 2003 was in these circumstances a valid decision, and I am therefore satisfied that that decision is capable of review by this Tribunal pursuant to s.306 of the Act.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J Handley, Senior Member

Signed:         Grace Carney
  Personal Assistant

Date/s of Hearing  13 February 2003
Date of Decision  30 April 2003
Solicitor for the Applicant          Self
Solicitor for the Respondent     Australian Government Solicitor