Fazal and Migration Agents Registration Authority

[2005] AATA 988

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 988

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/1389

GENERAL ADMINISTRATIVE  DIVISION

Re:         ROONA FAZAL

Applicant

And:       MIGRATION AGENTS

REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             6 October 2005

Place:            Melbourne

Decision:      The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

MIGRATION ‑ application for registration as migration agent ‑ approved course of study ‑ change of prescribed prerequisites ‑ lack of discretion ‑ decision affirmed. 

Migration Act 1958 ss 289A

Migration Agents Regulations 1998 reg 5

REASONS FOR DECISION

6 October 2005  Regina Perton, Member

1.      On 23 July 2004, Ms Roona Fazal (the applicant) applied to the Migration Agents Registration Authority (MARA), for registration as a migration agent.  On 23 November 2004, MARA refused her application on the basis that she did not qualify for registration.  On 22 December 2004, the applicant lodged an application for review with the Tribunal.   

2.      A hearing was scheduled for 4 October 2005 but on the day before the hearing, the applicant contacted the Tribunal and requested that the Tribunal make a decision on the papers.  The solicitor acting on behalf of MARA, Michael Brereton of the Australian Government Solicitor, consented to a hearing on the papers.  Pursuant to s 34J of the Administrative Appeals Act 1975 the Tribunal proceeded to review the decision by considering the documents provided to the Tribunal and without holding a hearing.

HISTORY AND SUBMISSIONS

3.      On 23 July 2004, MARA received a fully completed application form for registration from the applicant, then a full-time law student.  She indicated on the form that she anticipated working in a voluntary capacity for the Afghan Australian Association Victoria.  The applicant provided a certificate dated 19 July 2003 verifying that she had successfully completed the subject Australian Migration Law at Victoria University.  

4.      On 13 September 2004, MARA wrote to the applicant to advise her that it was considering refusing her application for registration on the basis that she had not provided evidence that she held the prescribed qualification.  The applicant was informed that a person who had not previously been registered as a migration agent is required to satisfy MARA that she has either passed a prescribed examination within a prescribed period or holds a prescribed qualification.  The legislative provisions had changed on 1 July 2004 and copies of the pertinent provisions were attached to the MARA letter.  The applicant was invited to make a written submission to MARA by 8.30 am on 11 October 2004.  MARA did not receive the submission by the due date.  MARA refused registration on 23 November 2004. 

5.      On 22 December 2004, the applicant sought review of MARA’s decision by the Tribunal.  In a submission accompanying the application for review, the applicant stated that she had completed Australian Migration Law at Victoria University at a cost of around $4,000.  She spent a further $700 on newspaper advertisements indicating her intention to apply for registration.  The applicant submitted that she had sent the application for registration on 2 July 2004 and that she met the prescribed qualifications for registration.

6.      The hearing of the case was deferred on a number of occasions at the applicant’s request. 

7.      In a submission dated 3 October 2005, the applicant put the view that MARA should have recognized the Australian Migration Law course she did in 2003 as it is the same as any other Migration Law courses.  She pointed out that she will only be providing non-commercial advice to her community.  She stressed that many of the people in the community are desperate for migration law advice but cannot afford it.  She urged the Tribunal to allow her to be registered.

8. The issue before the Tribunal is whether the applicant satisfied one of the alternative criteria for registration prescribed in s 289A of the Migration Act 1958 (“the Act) at the date that MARA received her completed application form.

CONSIDERATION OF THE ISSUES

9. Section 289A of the Act, which came into force on 1 July 2004, sets out the prescribed qualifications for a person seeking registration as a migration agent on or after that date.

289A  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 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.

10.     Regulation 5 of the Migration Agents Regulations 1998 sets out the prescribed courses and periods:

5.(1) For paragraph 289A (c) of the Act:

(a)a prescribed course is a course approved by the Authority and listed on the Authority’s web site; and

(b)the prescribed period is the 12 month period immediately before the day on which the applicant is taken to have made the application for registration; and

(c)a prescribed exam is an exam approved by the Authority and listed on the Authority’s web site.

(2) For paragraph 289A (d) of the Act, a current legal practising certificate issued by an Australian body authorised by law to issue it is prescribed.

11.     The MARA website < sets out the following advice in relation to the prescribed qualifications: 

In order to be registered as a migration agent, you will need to demonstrate either that you hold a prescribed qualification or that you have completed the prescribed exam as required by section 289A Migration Act 1958.  You will need to provide the following specific evidence: 

1. In relation to the prescribed qualification requirement:

‑ evidence of a current practising certificate

OR

2. In relation to the prescribed exam the Authority only accepts:

‑ evidence of a pass in the Migration Advice Professional Knowledge Entrance Examination (the 'MAPKEE') completed within the 12-month period prior to the application.

(note that additional requirements may be imposed by legislation)

The Migration Advice Professional Knowledge Entrance Examination was approved by the Authority on 22 June 2004 as the prescribed examination in accordance with Subregulation 5 (1)(c) of Schedule 1 of the Migration Agents Amendment Regulations 2004…. 

Currently there is not a prescribed course for the purposes of section 289A(c), however it is recommended that applicants complete a course to prepare themselves for the Migration Advice Professional Knowledge Entrance Examination.

12.     The applicant indicated that she will soon be admitted as a barrister and solicitor of the Supreme Court of Victoria.  She will then be able to obtain a legal practising certificate and pursue registration as a migration agent on that basis.  However, the applicant did not hold such a qualification at the time of her application to MARA, nor does she at present.  The applicant has not sat for the relevant examination.  Therefore, she does not qualify in any of the prescribed ways.

13.     The Tribunal appreciates that the applicant has altruistic motives in seeking registration, but it does not have any discretion to modify or overlook the legislative requirement that she pass the prescribed test, nor can it set an alternative test.

DECISION

14.     The Tribunal affirms the decision under review.

I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  4 October 2005
Date of decision:  6 October 2005
Advocate for Applicant:               Self‑represented
Solicitor for the respondent:         Mr M. Brereton, Australian Government Solicitor