Chen v Migration Agents Registration Authority (No 2)

Case [2016] FCA 865

FEDERAL COURT OF AUSTRALIA

Chen v Migration Agents Registration Authority (No 2) [2016] FCA 865

Appeal from: Chen v Migration Agents Registration Authority (Migration) [2016] AATA 188
File number: NSD 590 of 2016
Judge: GRIFFITHS J
Date of judgment: 2 August 2016
Catchwords:

ADMINISTRATIVE LAW – appeal on a question of law from a decision of the Administrative Appeals Tribunal which dismissed summarily under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) the applicant’s review application – no appealable error shown – appeal dismissed.

MIGRATION – proper construction of requirements under ss 289A and 290(1)(a) if the Migration Act 1958 (Cth) to be registered as a migration agent – whether substantial compliance sufficient regarding English language proficiency.

PRACTICE AND PROCEDURE – objection to competency that no question of law properly identified dismissed.
Legislation:

Acts Interpretation Act 1901 (Cth), s 15AA

Administrative Appeals Tribunal Act 1975 (Cth), ss 42B, 42B(1), 42B(1)(b), 44

Interpretation of Legislation Act 1984 (Vic), s 35(a)

Legislation Act 2003 (Cth), s 13

Migration Act 1958 (Cth), ss 289A, 290(1)(a)

Migration Agents Regulations 1998, regs 5, 5(2), 5(3), 5(3)(b), 5(4)

Mining Act 1978 (WA), s 105(1)
Cases cited:

Chugg v Pacific Dunlop Ltd [1990] HCA 41; 170 CLR 249

Haritos v Federal Commission of Taxation [2015] FCAFC 92; 233 FCR 315

Hunter Resources Limited v Melville [1988] HCA 5; 164 CLR 234

Paraponiaris and Secretary, Department of Employment [2015] AATA 895

State of Victoria v The Commonwealth and Connor [1975] HCA 39; 134 CLR 81
Date of hearing: 5 July 2016
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 39
Counsel for the Applicant: Dr R Harper SC
Solicitor for the Applicant: SHS Law
Counsel for the First Respondent: Ms R Francois
Solicitor for the First Respondent: DLA Piper Australia
Counsel for the Second Respondent: The Second Respondent submitted to any order the Court might make, save as to costs.

ORDERS

NSD 590 of 2016
BETWEEN:

ZHI CHEN

Applicant
AND:

MIGRATION AGENTS REGISTRATION AUTHORITY

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

2 AUGUST 2016

THE COURT ORDERS THAT:

1.Leave be granted to the first respondent to rely upon the notice of objection to competency dated 21 June 2016. 

2.The notice of objection to competency be dismissed. 

3.The appeal be dismissed. 

4.The applicant pay the first respondent’s costs of the appeal, as agreed or assessed. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

GRIFFITHS J:

  1. The central issue in this appeal, which is brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), is whether the Administrative Appeals Tribunal (the AAT) erred in concluding that the applicant had no reasonable prospect of success within the meaning of s 42B(1)(b) of the AAT Act when it summarily dismissed the applicant’s application for review. 

  2. The applicant…

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Details
AGLC
Chen v Migration Agents Registration Authority (No 2) [2016] FCA 865
Case
[2016] FCA 865
Decision Date

CaseChat Overview and Summary

The case of Chen v Migration Agents Registration Authority (No 2) involved an appeal by the applicant against a decision of the Administrative Appeals Tribunal (AAT) which dismissed his review application. The primary issue was whether the applicant met the requirements to be registered as a migration agent under sections 289A and 290(1)(a) of the Migration Act 1958 (Cth). Specifically, the question was whether substantial compliance with the English language proficiency requirement was sufficient.

The Federal Court found that the applicant did not satisfy the statutory requirements for registration. The Court held that the statutory language was clear, and that compliance with the English language proficiency requirement needed to be exact, not merely substantial. The Court further noted that the applicant's criminal conviction rendered him unfit to be a migration agent under section 290(1)(a) of the Act. Additionally, the Court dismissed the belated objection to the applicant's competency on the basis that no question of law was properly identified.

As a result of the Court's findings, the appeal was dismissed, and the applicant was ordered to pay the costs of the appeal. The Court concluded that there was no appealable error in the AAT's decision and that the application had no reasonable prospect of success.

Orders

Orders of the court

1. Leave be granted to the first respondent to rely upon the notice of objection to competency dated 21 June 2016.

2. The notice of objection to competency be dismissed.

3. The appeal be dismissed.

4. The applicant pay the first respondent’s costs of the appeal, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

There is also a need to address an objection to competency which was belatedly filed by the first respondent. Summary of background matters The background facts were not in dispute. The following summary draws heavily on the facts as described by the AAT in its decision dated 30 March 2016 (Chen v Migration Agents Registration Authority (Migration) [2016] AATA 188). On 8 September 2015, the Migration Agents Registration Authority (the Authority) refused to register the applicant as a migration agent on the basis that he failed to meet the requirements for registration in ss 289A and 290(1)(a) of the Migration Act. There were two grounds for that conclusion. The first was that the Authority determined that the applicant had not satisfied the English language proficiency requirement under s 289A of the Migration Act. The second was that, because of a criminal conviction, the applicant was not a fit and proper person to give immigration assistance. The applicant sought a review of the Authority’s decision in the AAT. The Authority applied to have the application summarily dismissed under s 42B(1)(b) of the AAT Act on the ground that the application had no reasonable prospect of success. It is convenient at this point to set out the relevant provisions in the legislation and executive Instrument which bear upon the appeal. Sections 289A and 290(1)(a) of the Migration Act, as in force at the relevant time, were in the following terms:289AApplicant must not be registered if does not satisfy registration requirementsAn 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 Migration Agents Registration 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.290Applicant 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; or… Section 42B(1) of the AAT Act, as in force at the relevant time, provided:42B Power of Tribunal if a proceeding is frivolous, vexatious etc.(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.… Section 44 of the AAT Act relevantly provided:44 Appeals to Federal Court of Australia from decisions of the TribunalAppeal on question of law(1)A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.Note 1:This Part does not apply to certain migration proceedings (see section 43C).Note 2:A party to a child support first review may in some instances appeal instead to the Federal Circuit Court (see section 44AAA).…

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 44 of the AAT Act relevantly provided:44 Appeals to Federal Court of Australia from decisions of the TribunalAppeal on question of law(1)A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.Note 1:This Part does not apply to certain migration proceedings (see section 43C).Note 2:A party to a child support first review may in some instances appeal instead to the Federal Circuit Court (see section 44AAA).… It is also desirable to set out reg 5 of the Migration Agents Regulations 1998 (the Regulations), which provided (noting in particular the terms of reg 5(3)):5. Prescribed qualifications (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. Finally, reference should be made to the relevant terms of IMMI 12/097, which is the relevant executive Instrument and was signed by the Minister for Immigration and Citizenship (the Minister) on 11 September 2012 and which, for the purposes of reg 5, prescribed courses and exams for applicants for registration as a migration agent (noting in particular Items 5(a)(ii) and (iii):…2.SPECIFY the Graduate Certificate in Australian Migration Law and Practice, as offered at the Australian National University; Griffith University; Murdoch University or Victoria University, as a prescribed course for the purposes of subregulation 5(1) of the Regulations.3.SPECIFY that the class of person for the purposes of subregulation 5(2) of the Regulations are those persons who have satisfied the Migration Agents Registration Authority that he or she has achieved one of the two education options set out below:

Ratio Decidendi

Legal Principle Established

Sections 289A and 290(1)(a) of the Migration Act, as in force at the relevant time, were in the following terms:289AApplicant must not be registered if does not satisfy registration requirementsAn 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 Migration Agents Registration 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.290Applicant 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; or… Section 42B(1) of the AAT Act, as in force at the relevant time, provided:42B Power of Tribunal if a proceeding is frivolous, vexatious etc.(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.… Section 44 of the AAT Act relevantly provided:44 Appeals to Federal Court of Australia from decisions of the TribunalAppeal on question of law(1)A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.Note 1:This Part does not apply to certain migration proceedings (see section 43C).Note 2:A party to a child support first review may in some instances appeal instead to the Federal Circuit Court (see section 44AAA).… It is also desirable to set out reg 5 of the Migration Agents Regulations 1998 (the Regulations), which provided (noting in particular the terms of reg 5(3)):5. Prescribed qualifications (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.