Hu v Migration Agents Registration Authority - [2010] FCA 674

FEDERAL COURT OF AUSTRALIA
Hu v Migration Agents Registration Authority [2010] FCA 674

Citation: Hu v Migration Agents Registration Authority

Appeal from: Application for leave to appeal: Hu v Minister for Immigration and Citizenship & Anor [2010] FMCA 30

Parties: YUAN YUAN HU v MIGRATION AGENTS REGISTRATION AUTHORITY

File number: QUD 16 of 2010

Judge: DOWSETT J

Date of judgment: 31 May 2010

Date of hearing: 31 May 2010

Place: Brisbane

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 21

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Ms N Kidson

Solicitor for the Respondent: Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 16 of 2010

BETWEEN:
YUAN YUAN HU
Applicant

AND:
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent

JUDGE:

DOWSETT J

DATE:

31 MAY 2010

PLACE:

BRISBANE

REASONS FOR JUDGMENT

This is an appeal from a decision of a Federal Magistrate refusing review of two decisions purportedly made by the Migration Agents Registration Authority (“MARA”). The Federal Magistrate disposed of the proceedings summarily on the ground that neither of the two challenged decisions was a “decision” for the purposes of ss 3 and 5 of the Administrative Decisions (Judicial Review) Act 1997 (Cth) (the “AD(JR) Act”). Because the matter was decided on a summary basis, the decision was interlocutory: see Scott v Human Rights and Equal Opportunity Commission [2007] FCA 2055. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an “appeal shall not be brought from… an interlocutory judgment unless the Court or a Judge gives leave to appeal”. As a consequence, an appeal would, generally, lie only by leave: see O 52, rr 2A-9 of the Federal Court Rules. However MARA has indicated that it is willing to proceed upon the basis that the notice of appeal constitutes an application for leave to appeal. I proceed accordingly.
I consider that the Federal Magistrate correctly disposed of the matter in accordance with law. For that reason my reasons will be short and based largely upon the approach which he took to the case.
The facts appear from the earlier paragraphs of his Honour’s reasons. At some time prior to April 2008, the applicant retained the services of a migration agent for the purpose of seeking a skilled independent overseas student (subclass 880) visa. He has subsequently been granted such a visa. However he is dissatisfied with some aspects of the conduct of the migration agent. It is not clear whether the matter causing concern in some way impeded or caused difficulty in the grant of the visa. It is not necessary for present purposes that I consider that matter. On 21 April 2008, the applicant lodged a complaint with MARA regarding aspects of the agent’s conduct. On 9 September 2008, Mr Campbell, a senior professional conduct officer of MARA, wrote to the applicant outlining his investigation of the complaint and indicating that:
Having considered all of the information before it, the MARA…

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.

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Details

Case: [2010] FCA 674
Decision Date: 31 May 2010

CaseChat Overview and Summary

The applicant, Yuan Yuan Hu, sought review of decisions made by the Migration Agents Registration Authority (MARA) regarding a complaint he made about a migration agent's conduct. The Federal Magistrate dismissed Hu's application for judicial review on the basis that the decisions were not reviewable under the Administrative Decisions (Judicial Review) Act 1976 (Cth). Hu appealed this decision to the Federal Court of Australia. The central legal issue before the court was whether the decisions made by MARA in response to Hu's complaint were reviewable under the AD(JR) Act. Specifically, the court had to determine if the decisions not to reopen the investigation into the migration agent's conduct were substantive decisions that affected legal rights or obligations.

The Federal Court held that the decisions in question were not substantive but rather procedural, and thus not reviewable under the AD(JR) Act. The court reasoned that the decisions not to reopen the investigation did not confer, alter, or affect any legal rights or obligations of Hu. The court found that any potential action arising from the investigation, such as referral to mediation or disciplinary proceedings, would not have provided Hu with any benefit. Consequently, the court upheld the Federal Magistrate's decision, concluding that the decisions were not made under an enactment within the meaning of the AD(JR) Act. The court also found that Hu did not demonstrate that he was a person aggrieved by the decisions, further supporting the dismissal of his application for judicial review.

The court ordered that the applicant, Hu, pay the respondent's costs of the proceedings, noting that the error in identifying the decision-maker was an inadvertent oversight and did not warrant costs being awarded against MARA. The court also rejected Hu's claims that he was treated differently by the Federal Magistrate, clarifying that the decision did not depend on the conduct of the parties but on the nature of the decisions themselves.

Orders