Chen and Migration Agents Registration Authority - [2016] AATA 188

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…

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 Chen and Migration Agents Registration Authority

Details

AGLC: Chen and Migration Agents Registration Authority [2016] AATA 188
Case: [2016] AATA 188
Decision Date: 30 March 2016

CaseChat Overview and Summary

In the case of Chen and Migration Agents Registration Authority, Mr Chen applied for review of a decision by the Migration Agents Registration Authority (the Authority) to refuse his application for registration as a migration agent. The primary legal issue before the Administrative Appeals Tribunal was whether Mr Chen’s application for review had no reasonable prospect of success, which would warrant dismissal under section 42B of the Administrative Appeals Tribunal Act 1975. The Tribunal also had to consider whether Mr Chen was a fit and proper person to give immigration assistance and whether he had complied with the English language proficiency requirements.

The Tribunal examined whether Mr Chen was a fit and proper person to provide immigration assistance, considering his past criminal conviction and conduct since that conviction. While the Tribunal acknowledged that Mr Chen had not reoffended and had shown some potential for rehabilitation, it found that the Authority had not acted irrationally in considering him unfit. Regarding the English language proficiency requirement, the Tribunal held that substantial compliance was not sufficient and that the prescribed exam was mandatory. Despite Mr Chen’s apparent proficiency in English, he had not passed the required exam, leading the Tribunal to conclude that his application had no reasonable prospect of success.

The Tribunal dismissed Mr Chen’s application for review, finding that he had not satisfied the mandatory requirements for registration, particularly the English language proficiency exam. The Tribunal emphasised that Mr Chen could still apply for registration once he had passed the required exam, given his demonstrated English proficiency. The Tribunal concluded that the Authority’s decision was not irrational, and there was no basis to interfere with the decision.

The final orders of the Tribunal were that Mr Chen’s application for review was dismissed, and the Authority’s decision to refuse registration was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.

Division	GENERAL DIVISION
File Number(s)	2015/5168
Re	Zhi Chen
APPLICANT
And	Migration Agents Registration Authority
RESPONDENT

Tribunal	Senior Member J F Toohey
Date	30 March 2016
Place	Sydney