FEDERAL COURT OF AUSTRALIA

Hartnett v Migration Agents Registration Authority

[2003] FCA 998

BEAU TIMOTHY JOHN HARTNETT v MIGRATION AGENTS REGISTRATION AUTHORITY

Q130 OF 2003

COOPER J

BRISBANE

12 SEPTEMBER 2003

THE COURT DIRECTS THAT:

1.         Pursuant to O 53, r 15, I delegate to the Registrar or Deputy Registrar of the Queensland Registry determination of the matters referred to in pars (a), (b), (c), (d) and (g) of O 53, r 15 (2);

2.         The parties be granted liberty to apply to have the matter listed before me for further directions;

3.         The costs of the appearance today on the return of the application for directions be each party’s costs in the proceedings.

THE COURT ORDERS THAT:

1.         The order of the Administrative Appeals Tribunal made on 7 August 2003 to affirm the decision of the Migration Agents Registration Authority to suspend the registration of the applicant as a migration agent for a period of twelve months be stayed until 15 October 2003;

2.         The applicant be granted liberty to apply on or after 15 October 2003 for a further stay of the said decision of the AAT given on 7 August 2003;

3.         The costs of today to be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for a stay under s 44A of the Administrative Appeals Tribunal Act (1975) (Cth) (‘the Act’) pending determination of the applicant’s appeal from a decision of the Administrative Appeals Tribunal (‘the AAT’) given on 7 August 2003. 

2                     The AAT affirmed the decision of the Migration Agents Registration Authority (‘the MARA’) to suspend the applicant’s registration as a migration agent for a period of one year.  The AAT ordered that the period of suspension commence from a date to be determined by the MARA.  To date, the MARA has not determined a commencement date, and the applicant’s registration is not presently suspended.  Nevertheless, he remains at risk that prior to the hearing of his appeal, the MARA may cause the suspension to come into effect.

3                     It is common ground that the applicant’s registration as a migration agent expires by the effluxion of time on 14 October 2003, and that to practise as a migration agent thereafter he will require the grant to him of a new registration by the MARA.  In those circumstances, the practical operation of the stay is limited to a period of approximately four weeks. 

4                     The power to grant a stay under s 44A of the AAT Act is for the purpose of securing the effectiveness of the hearing and the determination of the appeal.  See Broadbent v The Civil Aviation Authority (1999) FCA 1871.  The applicant submits that any period of suspension will cause him irreparable damage in the conduct of his business in terms of damage to goodwill and loss of income which cannot be compensated if he succeeds on the appeal.  He also contends that staff presently employed by him and current clients of his immigration practice are at risk of prejudice if he is unable to practise during the balance of the period of his registration. 

5                     There is nothing to indicate that the MARA intends to take steps prior to the expiration of his present registration as an agent in October this year to bring into effect the suspension.  On the contrary, there are reasons to suggest that to avoid the operation of s 299(3) of the Migration Act 1958 (Cth) extending the term of the present registration beyond the October date, no steps will be taken to invoke the suspension at an earlier time.  Be that as it may, the applicant remains at risk of suspension in the absence of a stay of the order of the AAT made on 7 August 2003.

6                     Having regard to my present Court commitments, I am not in a position to hear and determine the appeal on its merits prior to 14 October 2003.  As the practical impact of the stay sought is only for the intervening period, there is a risk that the appeal will be rendered nugatory in the absence of stay.  Additionally, there will be direct damage sustained by the applicant which will remain uncompensated if he succeeds in this appeal. 

7                     The MARA submits that the appeal is without merit, that the findings of the AAT indicate that the applicant is not a fit and proper person to be registered as a migration agent, and that the conduct in issue amounted to breaches of the relevant Code of Conduct provisions.

8                     Against this, it is said by the applicant that there was no evidence to support the adverse findings made against him, and those findings which were made did not, on a proper construction of the Code, amount to a contravention of the specific sections of the Code relied upon by the AAT to support its decision. 

9                     I do not propose to make any comment in relation to the strength or otherwise of the applicant’s prospects on the appeal other than to say that the case is not sufficiently hopeless to refuse a stay on the ground that the appeal must fail.

10                  The respondent, the MARA, quite properly refers to the public interest and the need to protect the public from persons who are not fit or competent to practise as migration agents.  The matters the subject of the proceedings which led to the suspension relate to one client alone.  There is no suggestion on the material that there is, or has been, any difficulty in relation to his dealings with other clients.  If the suspension were to be imposed immediately, it has the potential to operate to the serious prejudice of the applicant’s existing clients.  The fact that the registration will expire on 14 October 2003 requires, in any event, that steps be now taken to secure the interests of those clients in the event that the applicant does not obtain, as may well be the case, a new registration on or before 14 October 2003.

Associate:

Dated:              25 September 2003