Issam Issa and Migration Agents Registration Authority - [2015] AATA 451

[2015] AATA 451

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2014/5298

Re

Issam Issa

APPLICANT

And

Migration Agents Registration Authority

RESPONDENT

DECISION

Tribunal
The Hon. Brian Tamberlin QC, Deputy President

Date 26 June 2015

Place Sydney
I am satisfied that the Tribunal has jurisdiction to proceed with the hearing of the substantive application in this matter.

..................................[sgd]......................................
The Hon. Brian Tamberlin QC, Deputy President
CATCHWORDS
INTERLOCUTORY DECISON - whether the Tribunal has jurisdiction to hear the matter - whether Tribunal can review an invalid decision – preliminary questions of law - clarifying issues before the Tribunal - whether a referral was made under section 319 of the Migration Act – referral of the conduct of a migration agent to an authority responsible for disciplining lawyers – the Tribunal has jurisdiction to hear the substantive matter
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 25, 43

Migration Act 1958 ss 303, 306, 306AC, 306AE, 309, 319, 321, 336A, 336C, 336D

Migration Legislation Amendment (Identification and Authentication) Act 2004
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336

Browne v Dunn (1893) 6 R 67
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Lansen v Minister for Environment and Heritage [2008] FCAFC 189
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390
Yango Pastoral Co Pty Ltd v First Chicago Australia Pty Ltd (1978) 21 ALR 585

Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248

REASONS FOR DECISION
The Hon. Brian Tamberlin QC, Deputy President
26 June 2015

On 14 October 2014 the Applicant lodged an application with this Tribunal for review of the Respondent’s decision dated 10 October 2014 to cancel his registration as a migration agent under s 303 of the Migration Act 1958 (the Act).
On 11 December 2014 the Council of the Law Society of New South Wales suspended the practising certificate of the Applicant after being directed to do so by the Legal Services Commissioner of New South Wales pursuant to s 548(2) of the Legal Profession Act 2004 (the Legal Profession Act).
The matter has a long and complex history and there is a very large amount of documentary material. In the course of preparing the matter for hearing, the Applicant sought a preliminary hearing to determine certain questions of law concerning the jurisdiction of this Tribunal to review the substantive application in this matter, on the ground that they would either finally determine the matter or would significantly reduce the time and expense involved in the substantive hearing. These reasons address the preliminary issues raised by the Applicant.
The contention of the Applicant is that there were legal defects in the decision of the Respondent that is under review, which have the effect of rendering that decision void for all purposes, and that those defects cannot be cured by a hearing before this Tribunal by way of review on the merits.
The application is based on arguments as to the effect of…

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: [2015] AATA 451
Decision Date: 26 June 2015

CaseChat Overview and Summary

Issam Issa has brought proceedings against the Migration Agents Registration Authority (MARA) in the Migration Review Tribunal (MRT), challenging the validity of a decision to cancel his registration as a migration agent. The Tribunal was required to determine whether it had jurisdiction to review the decision, given that it had been referred to a legal disciplinary authority under section 319 of the Migration Act 1958 (Cth). The court further needed to address whether a preliminary question of law could be resolved, concerning the Tribunal's ability to review an invalid decision, and to clarify the issues that would be considered in the substantive hearing. The court also had to determine whether the referral made by MARA under section 319 had been valid and if the Tribunal could review the decision despite the referral.

The court found that the Tribunal did have jurisdiction to hear the matter and to review the decision, despite the referral under section 319. The court reasoned that the referral did not preclude the Tribunal from exercising its jurisdiction to review the decision under section 306 of the Act. The court held that the Tribunal's jurisdiction was not limited by section 319(2) and that the Tribunal could review the decision even if it had been referred to a disciplinary authority. The court also noted that the Tribunal was not bound by the limitations of section 319(2) and could consider the merits of the decision independently. Therefore, the Tribunal had the jurisdiction to proceed with the substantive hearing.

The court concluded that the Tribunal had jurisdiction to hear the substantive matter and directed the parties to prepare a timetable for the filing of any further material. The court emphasized that the question of admissibility and weight of evidence would be determined during the course of the hearing, in accordance with the principles of procedural fairness and the Briginshaw v Briginshaw guideline. The court found that the Tribunal was not required to strictly adhere to the rules of evidence as laid out in Browne v Dunn but would act in accordance with procedural fairness. The court thus affirmed that the Tribunal could proceed with the substantive application and set a deadline for the parties to prepare for the hearing.

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

In addition, I am not satisfied that a question whether any offence under s 336C has any relevance to the present proceedings before this Tribunal, or whether this Tribunal has any jurisdiction in relation to such matters, requiring as they do a finding that there have been offences under the Act, and the absence of any review provisions specifically relating to this issue. It is important to bear in mind in this proceeding that the review presently before the Tribunal is specifically under s 306 of the Act in relation to the question whether action should be taken under s 303 of the Act concerning the disciplining of registered migration agents. There is no jurisdiction in the Tribunal to make any binding decision as to whether there has been a breach of the Act by any specific person.ISSUE 5 – EVIDENCE The Applicant seeks a determination as to the way in which and what evidence is to be or can be led and considered in the course of the hearing. In my opinion it is neither desirable nor appropriate at this stage to express any view in the abstract as to whether evidence is required or is admissible in relation to any particular issue. The question of the admissibility and weight to be given to any evidence is a matter for determination during the course of the hearing of the substantive application by the member constituted to hear that application, having regard to any specific submissions made by the parties in relation to particular evidence. In general, it can be said that the Tribunal will take into account the guidance principles in Briginshaw v Briginshaw (1938) 60 CLR 336. On the other hand the Tribunal will not require strict adherence to the rules considered in the case of Browne v Dunn (1893) 6 R 67 but will of course be bound to act in accordance with procedural fairness.CONCLUSION In the light of the above determinations I am satisfied that the Tribunal has jurisdiction to proceed with the hearing of the substantive application in this matter. I direct the parties to confer and prepare a timetable for the filing of any further material, by 17 July 2015, to enable the substantive application to be heard.

Decision

Reasons for decision

In my opinion it is neither desirable nor appropriate at this stage to express any view in the abstract as to whether evidence is required or is admissible in relation to any particular issue. The question of the admissibility and weight to be given to any evidence is a matter for determination during the course of the hearing of the substantive application by the member constituted to hear that application, having regard to any specific submissions made by the parties in relation to particular evidence. In general, it can be said that the Tribunal will take into account the guidance principles in Briginshaw v Briginshaw (1938) 60 CLR 336. On the other hand the Tribunal will not require strict adherence to the rules considered in the case of Browne v Dunn (1893) 6 R 67 but will of course be bound to act in accordance with procedural fairness.CONCLUSION In the light of the above determinations I am satisfied that the Tribunal has jurisdiction to proceed with the hearing of the substantive application in this matter. I direct the parties to confer and prepare a timetable for the filing of any further material, by 17 July 2015, to enable the substantive application to be heard.

Ratio Decidendi

Legal Principle Established

Section 319 of the Act is concerned with the power of the Respondent to refer to a lawyer’s disciplinary authority the conduct of a registered migration agent. It reads as follows:(1)The Migration Agents Registration Authority may refer to an authority responsible for disciplining lawyers the conduct of a registered migration agent, or a former registered migration agent who holds a practicing certificate … entitling him or her to practice as a lawyer.(2)If the Migration Agents Registration Authority refers the conduct of a registered migration agent, it may not take action against the agent under section 303 on the basis of that conduct.” (Emphasis added) Under s 303 of the Act the Respondent may cancel the registration of a registered migration agent by removing his or her name from the register, or otherwise discipline the agent by way of suspension or caution if satisfied of certain matters as set out in that section. The purpose of s 319 is to avoid duplicate enquiries which may lead to incompetent findings. Under s 25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) an enactment may provide that an application may be made to the Tribunal for the review of decisions made in the exercise of powers conferred by that enactment. The Tribunal has power to review any decision in respect of which application is made to it under any enactment: see s 25(4) of the AAT Act. In this case the application for review is brought under s 306 of the Act which provides jurisdiction to the Tribunal to review decisions made under Division 3AAA of the Act. Section 43(1) of the AAT Act provides that, for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision. Under s 43(6) a decision of a person as made by this Tribunal shall for all purposes to be deemed to be a decision of the decision-maker whose decision is under review. On the basis that there was a referral of the Applicant’s conduct by the Respondent to an authority responsible for disciplining lawyers, the Applicant submits that any power to take action under s 303 of the Act was not available to the Respondent and is not available to this Tribunal, having regard to the express language of s 319(2) which the Applicant says amounts to an express statutory prohibition upon taking action on the basis of the conduct referred by the Respondent. As this Tribunal stands in the shoes of the Respondent, the Applicant says that upon referral of the conduct by the Respondent, this Tribunal is prohibited from taking any action under s 303. Therefore, it is contended that there has never been any valid cancellation of registration and it is not open to this Tribunal to proceed to review the matter because it has no power to do so. It is common ground between the parties that having regard to the Federal Court decision in relation to the decision in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, and cases following it, that it is open to this Tribunal to review a decision under the AAT Act, notwithstanding that the primary decision may have been legally void or voidable. The Applicant says however that in this case, because this Tribunal is bound by the requirement of s 319(2) which is binding both on the Tribunal and the Respondent, then the Tribunal is deprived of jurisdiction or power to review the cancellation decision of the Respondent in this case.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/5298
Re	Issam Issa
APPLICANT
And	Migration Agents Registration Authority
RESPONDENT

Tribunal	The Hon. Brian Tamberlin QC, Deputy President
Date	26 June 2015
Place	Sydney