Asif Syed and Migration Agents Registration Authority - [2012] AATA 596

[2012] AATA 596

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/1271

Re

Asif Syed

APPLICANT

And

Migration Agents Registration Authority

RESPONDENT

DECISION

Tribunal
M D Allen, Senior Member

Date 5 September 2012

Place Sydney
The decision under review is set aside and there is substituted the Tribunal’s decision that the Applicant is a fit and proper person to give migration advice.
..........[sgd]..............................................................
M D Allen, Senior Member
CATCHWORDS
CITIZENSHIP AND IMMIGRATION – Migration Agents – Refusal to approve application for initial registration on ground applicant not a fit and proper person – Refusal of applicant to sit for examination to test his proficiency in the English language – Application of policy – Decision under review set aside.
LEGISLATION
Migration Act 1958, s 290
Migration Agents Regulations 1998

CASES
Comcare v Fiedler (2001) 34 AAR 237
Banovic v Repatriation Commission (1986-7) 69 ALR 395
Maxwell v Murphy (1957) 96 CLR 261
Re Dainty and Minister for Immigration and Ethnic Affair (1987) 6 AAR 259
Re Massei and Migration Agents Registration Authority [2011] AATA 401
SECONDARY MATERIALS
-
REASONS FOR DECISION
M D Allen, Senior Member
5 September 2012

By application made the 2nd of April 2012 the Applicant sought review of a decision by the Respondent to refuse to register him as a migration agent, on the grounds that he was not a fit and proper person to give immigration assistance.
Section 290 of the Migration Act 1958 states inter alia:
290 Applicant must not be registered if not a person of integrity or not fit and proper
(1) An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:
(a) the applicant is not a fit and proper person to give immigration assistance;
…
(2) In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:
(a) the extent of the applicant’s knowledge of migration procedure; and
…
(h)any other matter relevant to the applicant’s fitness to give immigration assistance.
It is common ground between the parties that the Applicant has passed a course at the Australian National University (ANU), which gives him the academic qualifications to be registered as a migration agent, and that there are no impediments to his being a fit and proper person, save and except the Respondent’s attitude to the Applicant’s proficiency in the English language.
As the Applicant was born in a country where the predominant business and community language was not English, namely Pakistan, the Respondent applied its policy requiring the Applicant to demonstrate his proficiency in the English language.
The policy adopted by the Respondent is set out at document T6 page 83 of the documents prepared for the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. It reads inter alia:
All applicants for initial registration are required to demonstrate their proficiency in the English language. In order to satisfy the English language Standard, applicants…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] AATA 596
Decision Date

CaseChat Overview and Summary

The case involves Asif Syed, an applicant, and the Migration Agents Registration Authority (MARA). The dispute concerns the application of policy by MARA in determining Syed's eligibility to become a registered migration agent. The matter was brought before the Administrative Appeals Tribunal (AAT). The primary legal issues the court needed to address were whether the applicant had a right to have his application determined by the Tribunal applying the existing policy at the time of the original decision and whether the policy in question was ultra vires. The court had to consider the principles of retrospective application of law and the nature of policy guidelines in administrative decision-making.

The court examined the principle that administrative decisions should be made according to the law as it stood at the time of the original decision, unless there is a specific legislative provision allowing retrospective application. The court referenced Banovic v Repatriation Commission, which established that the AAT should make the decision the primary decision-maker should have made, considering the evidence available at the time. The court also acknowledged that policies should not be applied rigidly and must be considered in light of individual circumstances. In relation to the policy's validity, the court held that while the Policy and Procedures Manual did not have a legislative basis, it provided appropriate guidance for decision-makers to consider the applicant's fitness to provide immigration assistance, including English language proficiency.

The court concluded that the applicant had the right to have his application determined by the Tribunal according to the existing policy as at the time of MARA's decision. The court rejected the argument that the policy was ultra vires, agreeing with the reasoning in Re Massei, which found that the policy was consistent with the statutory requirements and appropriately considered the applicant's ability to perform the duties of a migration agent. The court emphasised that while policy should be taken into account, it should not be applied inflexibly and must be balanced with the individual circumstances of each case.

The final orders of the tribunal are not explicitly detailed in the provided excerpt, but it can be inferred that the tribunal upheld the applicant's right to have his case reconsidered under the correct policy framework.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The right of a party to have an application determined by the Tribunal applying the law existing at the time of the original decision was discussed by the Full Court of the Federal Court in Banovic v Repatriation Commission (1986-7) 69 ALR 395 at 404. The court said:The task of the Administrative Appeals Tribunal, in reviewing a decision relating to an application for a pension, is to make the decision which the primary decision-maker ought to have made, upon the basis of the evidence before the Tribunal. Subject to any change in the relevant law, the Tribunal should put the applicant into the position in which he or she was entitled to be put at the time of the primary decision. (Tribunal’s emphasis. No doubt the Applicant would argue that because of the general assumption that legislation is not to apply retrospectively – see Maxwell v Murphy (1957) 96 CLR 261 at 267, he has a right to have his application to the Tribunal determined according to the existing policy as at the time of the Respondent’s decision. I regard this submission as correct. The Applicant submitted that the policy itself was ultra vires. I do not accept this submission. A similar submission was discussed in Re Massei and Migration Agents Registration Authority [2011] AATA 401 commencing at para 19. I respectfully adopt that reasoning:19.Nothing in the Act or in the Regulations appears to provide a legislative basis for the Policy and Procedures Manual. It was this type of policy guideline considered by the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs …20.It is clear that the Manual does not purport to bind the decision-maker and it was not suggested otherwise by the Authority. The Introduction to the Manual itself sets out that decision-makers ‘must … give due regard to policy guidance such as in the PPM [the Manual], but should not apply such policy inflexibly.’21.The Manual refers to the application of the IELTS test score as a matter which may be considered under paragraph (h) of sub-section 290(2). This paragraph provides that the authority must take into account “any other matter relevant to the applicant’s fitness to give immigration assistance.” The Tribunal in Re Massei supra at para 27 explained the purpose of the policy in the following terms:A migration agent is required to take instructions from a client, to accurately determine the needs of the client, to understand and interpret legislation and case law, to understand and draft documents, and to make representations on behalf of, and to advise, the client. These tasks require well-developed skills in speaking, listening, reading and writing in English. In these circumstances the requirement that an applicant achieve a Band 7 result (Good User) in an IELTS is appropriate. Although I must have regard to policy in this matter, that policy must be applied taking into account the individual circumstances of the applicant. In Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 at 266 Davies J, sitting as President of this Tribunal, said: But to say that is not say that the Tribunal ought to treat policy as more than policy. Policy is not a legislative prescription and, though in many cases it will be appropriate to apply policy in all or almost every case, there are circumstances where it is not appropriate to decide a matter merely by reference to a policy which has been laid down. That is I believe the crux of the present case, namely, whether it is proper to apply in Mr Dainty 's case guidelines which appear to me to be not appropriate to deal with his circumstances. As was said in Re Aston at p 376: "Policy is not law. A statement of policy is not prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account.".

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/1271
Re	Asif Syed
APPLICANT
And	Migration Agents Registration Authority
RESPONDENT

Tribunal	M D Allen, Senior Member
Date	5 September 2012
Place	Sydney