Chen and Migration Agents Registration Authority
[2016] AATA 188
•30 March 2016
Chen and Migration Agents Registration Authority [2016] AATA 188 (30 March 2016)
Division
GENERAL DIVISION
File Number(s)
2015/5168
Re
Zhi Chen
APPLICANT
And
Migration Agents Registration Authority
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 30 March 2016 Place Sydney The application before the Tribunal is dismissed.
.....................[sgd]...................................................
Senior Member J F Toohey
CATCHWORDS
PRACTICE AND PROCEDURE – registration as migration agent – mandatory requirements for registration – application by respondent to dismiss on ground of no reasonable prospect of success – whether application has no reasonable prospect of success – English language proficiency exam – whether substantial compliance sufficient – mandatory requirements – Tribunal satisfied application has no reasonable prospect of success – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975
Migration Act 1958
Migration Agents Regulations 1998
CASES
Hunter Resources Limited v Melville (1988) 164 CLR 234
Paraponiaris and Secretary, Department of Employment [2015] AATA 895
SECONDARY MATERIALS
Prescribed courses and exams for applicants for registration as a Migration Agent Regulation 5 (IMMI 12/097)
REASONS FOR DECISION
Senior Member J F Toohey
30 March 2016
On 8 September 2015, the Migration Agents Registration Authority (the Authority) refused to register Zhi Xiong Chen as a migration agent on the basis that he failed to meet the requirements for registration in section 289A and sub-section 290(1)(a) of the Migration Act 1958 (the Migration Act).
The Authority determined that Mr Chen had not satisfied the English language proficiency requirement provided for by s 289A of the Migration Act; further that, by reason of a criminal conviction, he was not a fit and proper person to give immigration assistance.
On 6 October 2015, Mr Chen sought review by the Tribunal of the Authority’s decision.
In the present proceedings, the Authority seeks an order under sub-section 42B(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) dismissing Mr Chen’s application on the ground that it has no reasonable prospect of success.
Sub-section 42B provides:
(1) The Tribunal may dismiss an application for the review of a decision, at any
stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
The Authority contends that, not only has Mr Chen’s application no reasonable prospects of success, it has no prospect of success at all because he does not satisfy the mandatory requirements in the Act concerning demonstration of English language proficiency. The Authority contends that, as a matter of statutory construction, there is no room for substantial compliance with those requirements and, in those circumstances, Mr Chen’s application cannot succeed.
Mr Chen contends that substantial compliance with the English language proficiency requirements is sufficient and, even if it is not, that the requirements should be read as setting a standard of proficiency rather than imposing a requirement to undertake the particular forms of examination prescribed in the legislation.
WHETHER MR CHEN IS A FIT AND PROPER PERSON TO GIVE IMMIGRATION ASSISTANCE
It is convenient to deal first with this question because, for the reasons below, if this were the only ground on which the respondent sought to have the application dismissed, I would not dismiss it.
Sub-section 290(1)(a) of the Migration Act provides that a person must not be registered if the Authority is satisfied that he or she is not a fit and proper person to give immigration assistance. In considering whether it is so satisfied, the Authority must take into account matters including any conviction of the person of a criminal offence relevant to the question whether or not he or she is a fit and proper person to give immigration assistance: sub-section 290(2)(c).
It is common ground that Mr Chen was convicted in June 2010 of maliciously inflicting grievous bodily harm, with intent to do so, for which he was sentenced to five years imprisonment with a non-parole period of three years. Mr Chen submits that, taking into account the time that has passed since the offence, that he has not re-offended, and the positive comments of the sentencing judge on his prospects for rehabilitation, he is now a fit and proper person to give immigration assistance.
Whether an individual person is a fit and proper person to give immigration assistance is a matter about which reasonable minds might differ. Insofar as the circumstances of the offence and Mr Chen’s conduct since can be determined from the material presently before the Tribunal, I do not think it can be said that his application has no reasonable prospect of success. If this were the only ground for the s 42B application, I would refuse the application.
It is not necessary to deal with this matter further.
RELEVANT LEGISLATION
Turning to the English language proficiency requirement, s 289A of the Migration Act provides:
An applicant:
(a) who has never been registered; or
(b) who is applying to be registered more than 12 months after the end of his
or her previous registration;
must not be registered unless [the Authority] is satisfied that he or she:
(c) has completed a prescribed course within the prescribed period and has
passed a prescribed exam within the prescribed period; or
(d) holds the prescribed qualifications.
Regulation 5 of the Migration Agents Regulations 1998 (the Regulations) provides:
(1) For paragraph 289A(c) of the Act, a prescribed course is a course specified by the Minister in an instrument in writing for this subregulation.
(2) For paragraph 289A(c) of the Act, if a person is in a class of persons specified by the Minister in an instrument in writing for this subregulation, an exam specified by the Minister in an instrument in writing for this subregulation is a prescribed exam.
(3)For paragraph 289A(c) of the Act, if a person is not in a class of persons specified by the Minister in an instrument in writing for subregulation (2), a prescribed exam is the combination of:
(a)an exam specified by the Minister in an instrument in writing for this paragraph; and
(b) an exam in English language proficiency specified by the Minister in an instrument in writing for this paragraph.
(4) For paragraph (3)(b), an applicant is taken to have passed an exam in English language proficiency if the applicant achieves at least the minimum score specified by the Minister in an instrument in writing for this subregulation.
(5) For paragraph 289A(c) of the Act, the prescribed period for the completion of a particular course or exam is the period specified by the Minister in an instrument in writing for this subregulation.
(6) For paragraph 289A(d) of the Act, a current legal practising certificate issued by an Australian body authorised by law to issue it is a prescribed qualification.
It is common ground that Mr Chen does not hold a current legal practising certificate issued by an Australian body which is the sole qualification prescribed for the purpose of sub-section 289A(d). It follows that, unless he satisfies sub-section 289A(c), he must not be registered as a migration agent.
THE ENGLISH LANGUAGE PROFICIENCY REQUIREMENT
For the purposes of subsection 289A(c), the prescribed courses, exams and periods are specified in an Instrument signed by the then Minister for Immigration and Citizenship on 11 September 2012: Prescribed courses and exams for applicants for registration as a Migration Agent (Regulation 5) (IMMI 12/097).
For the purposes of subregulation 5(2), the Minister has specified a class of persons comprising those who have achieved one of two “education options”. Mr Chen acknowledges that he has not achieved either option.
For the purposes of subregulation 5(3), IMMI12/097 specifies that the following is a prescribed exam for the purposes of subregulation 5(3):
(a)The prescribed exam is made up of two elements that must be satisfied:
(i) The ‘common assessment items relating to registration’ which form part of the prescribed course specified at item (2); AND
Either:
(ii) A minimum overall test score of International English Testing System (IELTS) 7 Academic with a minimum score of 6.5 in each subtest (speaking, listening, reading and writing); OR
(iii) A minimum overall test score of 100 in the Internet Based test of English as a Foreign Language (TOEFL iBT) with a minimum score of 22 in each subtest (speaking, listening, reading and writing)
Item 6 of IMMI12/097 specifies the prescribed periods within which an applicant must apply for registration after completion of a particular course. They are, relevantly:
(c)12 months for a prescribed exam, first element, as specified at item 5(a)(i) of this Instrument;
(d) 24 months for a prescribed exam, second element, as specified at items 5(a)(ii) and (iii) of this Instrument.
The Authority accepts that Mr Chen satisfies the first element of subregulation 5(3), that is, the common assessment items which form part of the prescribed course.
Mr Chen acknowledges that he has not achieved a “minimum overall test score” in either of the tests specified in item 5(ii) and (iii) of IMMI 12/097 but submits that, together with subregulation 5(3), that requirement should be given “extended meaning”. He further submits that, on its proper construction, it requires satisfaction that an application possesses proficiency to the expressed standard, not that an applicant has sat a particular test. Alternatively, he contends that the prescribed requirement is directory only, and substantial compliance is sufficient.
·Mr Chen submits that proficiency in the English language is demonstrated by his completion of the NSW College of Law which required English to IELTS standard 7.5 and by his completion of:
·12 years primary and secondary schools studies from 1965 to 1976 in Shanghai;
·the Diploma of Legal Service at TAFE NSW and the graduate certificate in Australian migration law and practice at the Australian National University;
·a Bachelor of Commerce degree with a major in Business Law at Curtin University from February 2010 to January 2013;
·postgraduate degrees in Migration Law and Practice in Australia, graduate Diploma of Legal Practice, Graduate Certificate in Australian Migration Law and Practice.
I do not understand Mr Chen’s completion of these qualifications or his English language proficiency itself to be in dispute. Rather, the Authority contends that strict compliance with subregulation 5(3) is required and, Mr Chen having failed to comply, his application for review has no reasonable prospect – indeed no prospect at all – of success and should be dismissed.
Is substantial compliance sufficient?
In Hunter Resources Limited v Melville (1988) 164 CLR 234 (Hunter Resources), the High Court considered the question of substantial compliance in the context of the requirement in s 105(1) of the Mining Act 1978 (WA) that, before making an application or a mining licence, an applicant mark out “in the prescribed manner and in the prescribed shape the land in respect of which the mining tenement is sought”. The regulations required that pegs or cairns be fixed at intervals “not exceeding 300 metres”. The applicant had marked out the tenement at intervals that did not accord with that requirement. The warden refused the application for non-compliance. The applicant contended that substantial compliance with the requirement was sufficient to preserve the validity of the application and that he had achieved this. The majority of the Court concluded that the warden had acted according to law in refusing the application. (It has to be borne in mind that this was a case of judicial review).
Considering the language of the regulations, Wilson J said (at 245):
One cannot speak of “substantial compliance” with a requirement expressed in those terms. The marking out is either in accordance with the regulations or it is not. The requirement is not one which it is difficult to comply.
In a similar vein, Dawson J said (at 249) that this was a case in which substantial compliance was not possible; either there was compliance or there was not; either the pegs exceeded 300 metres or they did not.
I accept that a requirement which essentially amounts to proof of meeting a standard of proficiency might be more susceptible of substantial compliance than the requirement in Hunter Resources. However, the English language proficiency requirement has a level of prescription that tells against the possibility of substantial compliance. Moreover, s 289A is prohibitive: a person must not be registered unless he or she satisfies that requirement.
Dawson J considered (at 248-249) provisions which, although expressed in mandatory terms, might nevertheless be considered directory. He said (at 249):
If it were possible to regard reg 59 as playing a subsidiary part to some more general requirement, it might, perhaps, these contended that there was substantial compliance with the general requirement even though there was no compliance at all with reg 59. … Such an argument cannot in my view be sustained in the context of this legislation. Section 105(1) of the Act requires an applicant for a mining tenement to mark out in the prescribed manner and shape the land in respect of which the mining tenement is sought. The requirement of s 105(1) necessarily imports the requirements of reg 59 and it is not possible, in my view, to speak of the latter being subordinate to the former in the sense that there might be substantial compliance with s 105(1) despite non-compliance with reg 59.
The scheme of the provisions concerning registration of migration agents is clear. As they apply to Mr Chen, they start with the direction in s 289A that a person must not be registered unless the Authority is satisfies he or she has completed a prescribed course within the prescribed period and passed a prescribed exam within the prescribed period. To that end, the Regulation 5 provides further detail and then, very specifically, IMMI 12/097 sets out the minimum score in the particular test that an applicant must achieve.
In my view, the unambiguous expression of what is required of an applicant for registration as a migration agent is on all fours with the requirement in Hunter Resources (above): Mr Chen either meets the requirement or he does not.
It is relevant that, in contrast to the requirements in item 5 (ii) and (iii), the “education options” in item 3 of IMMI 12/097 are expressed in terms that include such things as “secondary school studies to the equivalent of Australian Year 12 level, with a minimum of 4 years’ study at secondary school or equivalent”. The English language proficiency requirement gives no such indication that strict observance is not required.
HAS MR CHEN’S APPLICATION NO REASONABLE PROSPECT OF SUCCESS?
Mr Chen refers to the principles applicable to the statutory test in s 42B set out recently in the decision of Deputy President Alpins in Paraponiaris and Secretary, Department of Employment [2015] AATA 895 at [19] to [34]. The principles can be summarised as follows:
·the Tribunal must exercise a high degree of caution before dismissing an application;
·a high degree of certainty about the ultimate outcome of the proceeding is needed;
·the application must lack any prospect of success which can properly be said to meet the standard of being reasonable;
·where an application requires resolution of a real issue or issues of fact, it is not enough for the Tribunal to form the view that an applicant is unlikely to succeed in respect of those issues;
·where an application requires resolution of a real issue or issues of law, the Tribunal cannot properly be satisfied that it has no reasonable prospect of success unless there is no room for doubt about the proposition of the law upon which the success of the application depends;
·where the success of an application depends upon propositions of law said to arise from relevant legislative provisions which are not sufficiently tenable as a matter of proper statutory interpretation, it is open to the Tribunal to be satisfied that the application has no reasonable prospect of success for the purposes of subsection 42B(1)(b).
I agree with, and adopt, those principles. In my view, Mr Chen’s submission that, as a matter of proper statutory interpretation, substantial compliance with the English language proficiency requirements, and so with the requirement in subsection 289A(c), is sufficient is not tenable. It follows that his application for review has no reasonable prospect of success.
Mr Chen submits that the present application is premature and he should not be denied the opportunity to provide further evidence of his English language proficiency, and that the Tribunal is not yet in a position to assess the merits of his case. He refers to directions made by a conference registrar on 23 December 2015 that he serve witness statements, reports and a statement of issues, facts and contentions, by 8 April 2016. That argument would only apply if substantial compliance were available to him. For the reasons I have given, it is not.
CONCLUSION
For these reasons, I am satisfied that Mr Chen’s application for review has no reasonable prospect of success and I dismiss his application.
It is open to Mr Chen to undergo the prescribed exam at any time. Given his apparent proficiency in the English language, there would appear to be no reason he would not pass the exam. It would then be open to him to apply again for registration.
I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey ........................[sgd]................................................
Associate
Dated 30 March 2016
Date of hearing 2 March 2016 Counsel for the Applicant Dr Robert Harper Solicitors for the Applicant Mr George Chen Solicitors for the Respondent Mr Lenny Leerdam
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