FEDERAL COURT OF AUSTRALIA

Khan v Migration Institute of Australia Limited [2004] FCA 301

SHERAFZAL KHAN v MIGRATION INSTITUTE OF AUSTRALIA LIMITED

N 233 of 2004

WHITLAM J

15 MARCH 2004

SYDNEY

ON APPEAL FROM A FEDERAL MAGISTRATE

THE COURT ORDERS THAT:

1.         The appeal is dismissed with costs.

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

ON APPEAL FROM A FEDERAL MAGISTRATE

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) given on 6 February 2004 refusing to make an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (‘the Act’).  The proceeding before the Tribunal related to the decision of the respondent made on 2 December 2003 under s 303A of the Migration Act 1958 to cancel the applicant’s registration as a migration agent.  The applicant applied for a review of that decision pursuant to s 306 of the Migration Act 1958.  That application for review has been fixed for hearing before the Tribunal on 26 May 2004.

2                     The respondent has objected to the competency of the purported appeal from the decision of the Tribunal refusing to grant a stay of the respondent’s decision.  An appeal lies under s 44(1) of the Act from any decision of the Tribunal on a question of law.  The notice of appeal filed by the applicant does not state a question of law.  That in itself provides a basis for a jurisdictional objection to the proceeding but that is not the ground presently relied on by the respondent.

3                     The respondent relies on the well-established principle that the appeal provided for under s 44(1) of the Act lies only from a decision of the Tribunal that constitutes the effective decision or determination of a proceeding before it.  Authority for that proposition is Director-General Social Services v Chaney (1980) 47 FLR 80 (‘Chaney’), a majority decision of the Full Court of the Federal Court which has been uniformly applied.  Indeed, in Chaney Deane J remarked that in his view an interim order made by the Tribunal suspending the operation of a decision under review was not a decision from which an appeal lay to the Court pursuant to s 44 of the Act.  That position also obtains, in my view, where the Tribunal refuses to make such an order.

4                     Accordingly, I uphold the objection to competency of the appeal. The appeal is dismissed with costs.

Associate:

Dated:              15 March 2004

The appellant appeared in person