Wang v Administrative Appeals Tribunal [2003] FCA 1394

FEDERAL COURT OF AUSTRALIA

Wang v Administrative Appeals Tribunal [2003] FCA 1394 YUHONG WANG v ADMINISTRATIVE APPEALS TRIBUNAL AND MIGRATION AGENTS REGISTRATION AUTHORITY N 1719 OF 2003 WHITLAM J 2 DECEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1719 OF 2003

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: YUHONG WANG

APPLICANT

AND: ADMINISTRATIVE APPEALS TRIBUNAL

FIRST RESPONDENT

MIGRATION AGENTS REGISTRATION AUTHORITY

SECOND RESPONDENT

JUDGE: WHITLAM J

DATE OF ORDER: 2 DECEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The operation or implementation of the decision of the Migration Agents Registration Authority made on 8 May 2003 not to register the applicant is stayed until the appeal is determined. 2. Each party's costs of the applicant's stay motion are to be that party's costs in the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1719 OF 2003

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: YUHONG WANG

APPLICANT

AND: ADMINISTRATIVE APPEALS TRIBUNAL

FIRST RESPONDENT

MIGRATION AGENTS REGISTRATION AUTHORITY

SECOND RESPONDENT

JUDGE: WHITLAM J

DATE: 2 DECEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for an order under s 44A(2) of the Administrative Appeals Tribunal Act 1975 ('the AAT Act'). In the decision under appeal the Administrative Appeals Tribunal ('the Tribunal') affirmed a decision by the Migration Agents Registration Authority ('the Authority') refusing a registration application under Pt 3 of the Migration Act 1958 ('the Act'). 2 The applicant was a migration agent whose registration was due to end on 7 January 2003. On 10 December 2002 he applied to be registered again. Since the Authority did not decide this application before the end of 7 January 2003, the applicant's registration continued automatically past that date by virtue of s 300 of the Act. 3 On 9 January 2003 the Authority gave the applicant notice that it was considering refusing his application because s 294 of the Act may prohibit his registration. The applicant claimed to meet the requirement of s 294(b) that he be 'an Australian permanent resident (within the meaning of the regulations)'. The Authority raised with him its concern that that specification meant that he must be 'usually resident in Australia' and pointed out that its investigations revealed that 'as at 11 December 2002… you had only been in Australia for a total of 171 days in the last 5 years, or approximately 5.7 months in the last 60 months'. The applicant made submissions on this matter to the Authority, but on 8 May 2003 it decided to not register the applicant. The Authority gave the applicant notice of its decision by letter dated 21 May 2003. 4 The application to the Tribunal for review of the Authority's decision was lodged on 6 June 2003. The applicant also sought an order under s 41(2) of the AAT Act. On 1 July 2003 a presidential member (Handley DP) made such an order in the following terms: