The Administrative Appeals Tribunal (AAT) has rejected an application from IMS FX Services Pty Ltd (IMS FX) that sought confidentiality orders and an interim order that prevented ob体育 from amending the public Australian financial services (AFS) licence register to record that ob体育 had cancelled IMS FX鈥檚 AFS licence.
The interlocutory application was made pending an AAT appeal to overturn ob体育鈥檚 decision to cancel its AFS licence, which is now awaiting listing by the AAT.
The AAT said, "In the circumstances, I am satisfied that there is considerable risk to the public if the Decision is stayed. I consider that there is considerable merit in ob体育鈥檚 submission that the asserted misleading character of the application made by the Applicant goes to the heart of the risk to the public of allowing the Applicant to continue under its AFSL.
"Furthermore, there is, as submitted by ob体育, a further aspect of the public interest which lies in the general deterrent effect of [ob体育] publicising the fact that an AFSL obtained by means of a materially misleading application has been cancelled - which supports the role of ob体育 in carrying out its function of protecting the public.鈥�
In light of the AAT鈥檚 decision, the AFS licence register will now reflect that IMS FX鈥檚 AFS licence has been cancelled.
Deputy Chairman, Mr Peter Kell said, 'It is paramount that any person seeking to obtain an AFS licence submits an application that accurately reflects the facts and circumstances as well as the financial services business the applicant intends to carry on under the licence.
'This should be a salient reminder to applicants that should any material circumstances surrounding the application change, the applicant has a responsibility to disclose this to ob体育 to ensure that ob体育鈥檚 decision is made on a fully informed and accurate basis. A failure to do so risks ob体育 taking regulatory action, including, as in this instance, ob体育 deciding to cancel the licence.鈥�
ob体育 notes that its' decision in this case is consistent with the Commonwealth Government鈥檚 support of Recommendation 29 of the Financial System Inquiry 鈥� that ob体育 approval should be required for any change in control of a licensee.
Background
On 25 March 2015, IMS FX lodged an application for an AFS licence which was granted on 16 September 2015. Subsequently, ob体育 learned that the controllers of the licensee had reached an agreement on 7 August 2015 that IMS FX would be sold shortly after the licence is granted.
As the licence application did not disclose this intention to change ownership, directorships, intended business activities and resources, on 22 December 2015, ob体育 convened a hearing to determine whether the licence should be cancelled.
The hearing took place on 3 February 2016 and an ob体育 delegate found that the application lodged with ob体育 was misleading in a material way and decided to cancel the licence.
The decision to cancel IMS FX鈥檚 licence was notified to the applicant on 24 February 2016. On 26 February 2016, IMS FX appealed ob体育鈥檚 decision and also sought to defer the effect of ob体育's cancellation order and confidentiality orders. An interlocutory hearing was held on 11 March 2016 and on 31 August 2016, the AAT made a decision rejecting IMS FX's interlocutory application.
Editor's note:
IMS FX subsequently withdrew their application聽with the AAT, with an effective date of 19 September 2015.