Brown and Migration Agents Registration Authority - [2015] AATA 693

Brown and Migration Agents Registration Authority [2015] AATA 693 (10 September 2015)

Division

GENERAL DIVISION

File Number

2014/6375

Re

Ellen Brown

APPLICANT

And

Migration Agents Registration Authority

RESPONDENT

DECISION

Tribunal
Dr Damien Cremean, Senior Member

Date 10 September 2015

Place Melbourne
The Tribunal affirms the decision under review.
.............................[sgd]...........................................
Senior Member
MIGRATION AGENT REGISTRATION − Fit and proper person − Relevant factors − Criminal history − Decision affirmed
Legislation
Migration Act 1958 (Cth), section 290
Cases
Bie and Migration Agents Registration Board [1997] AATA 508
Council of the New South Wales Bar Association v Franklin (No 2) [2014] NSWCA 428
Ex parte Tziniolis; Re the Medical Practitioner’s Act (1966) 67 SR (NSW) 448
Hughes & Vale Pty Ltd v State of New South Wales(No 2) (1955) 93 CLR 127
Inglese v Estate Agents Board [1988] Vic SC 389
Nguyen and Migration Agents Registration Authority [2012] AATA 925
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
10 September 2015

The Applicant applies to review the Respondent’s decision made on 10 December 2014 declining to register her as a migration agent under the MigrationAct1958 (Cth) (the Act) on the ground that she does not meet the requirements of s 290(1) of the Act.
According to s 290(1)(a) of the Act, the Respondent must not register an applicant if it is satisfied that the applicant is not a fit and proper person to give immigration assistance. In considering whether it is satisfied that an applicant is not a fit and proper person, the Respondent must take into account any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not a fit and proper person to give immigration assistance as stipulated in s 290(2)(c)(i) of the Act. The Respondent must also take into account any other matter relevant to the applicant’s fitness to give immigration assistance (see s 290(2)(h) of the Act).
As the Tribunal stated in Nguyen and Migration Agents Registration Authority [2012] AATA 925 at [25], referring to Hughes & Vale Pty Ltd v State of New South Wales (No2)(1955) 93 CLR 127 at [156], fitness for office as a migration agent calls for an assessment of honesty, knowledge and ability. In this case, the Applicant’s knowledge and ability are not in issue. In issue is her honesty.
The question for the Tribunal is whether the Applicant is or is not a fit and proper person. Although this question is expressed in the present tense, it is relevant to look at past conviction(s) for criminal offences because the past is an important touchstone by reference to which an assessment of whether a person is fit and proper is to be made. (Nguyen and Migration Agents Registration Authority at [27]).
The Applicant has a criminal record from 2007 and 2010. In 2007 the Applicant was convicted in the Magistrates’ Court of Victoria of 14 charges of defrauding the Commonwealth and three charges of endeavouring to impose on the Commonwealth.…

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.

Continue reading Brown and Migration Agents Registration Authority

Details

AGLC: Brown and Migration Agents Registration Authority [2015] AATA 693
Case: [2015] AATA 693
Decision Date: 10 September 2015

CaseChat Overview and Summary

The applicant in this case sought a review of a decision by the Migration Agents Registration Authority (MARA) not to register her as a migration agent under the Migration Act 1958 (Cth). The primary legal issue before the Administrative Appeals Tribunal was whether the applicant met the requirement of being a "fit and proper person" as stipulated in section 290(1) of the Act. This assessment involved considering the applicant's criminal history, her remorse, and other relevant factors.

The Tribunal examined the applicant's criminal record, which included convictions for defrauding the Commonwealth and obtaining financial advantage by deception. Despite the applicant's remorse and efforts to make restitution, the Tribunal concluded that her past conduct demonstrated a pattern of serious dishonesty and conscious wrongdoing. The Tribunal also noted her willingness to sign a document designed to deceive the Australian Taxation Office, which further undermined her claim to be a fit and proper person.

Ultimately, the Tribunal found that the risk to the public of the applicant engaging in dishonest conduct again was too significant to justify setting aside the MARA's decision. The Tribunal affirmed the decision, holding that the applicant was not a fit and proper person to be registered as a migration agent. The Tribunal emphasized that while reformation and character change are possible, they are exceptional and must be clearly demonstrated. In this case, the Tribunal was not satisfied that the applicant had sufficiently proven her suitability for registration.

The Tribunal's decision was based on the assessment of the applicant's past conduct, her demonstrated lack of honesty, and the significant risk to the public if she were to be registered as a migration agent. The Tribunal's affirmation of the MARA's decision underscores the importance of maintaining high standards of honesty and trustworthiness for those providing immigration assistance.

Orders