Khan v Migration Institute of Australia Limited

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.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate: Dated: 15 March 2004 The appellant appeared in person Solicitor for the respondent: Mr A J Crockett of the Australian Government Solicitor