Khalsa and Migration Agents Registration Authority

[2002] AATA 1240

29 November 2002

Administrative

Appeals

Tribunal

DECISIONS AND REASONS FOR DECISIONS [2006] AATA 653

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2003/758

DECISION

Tribunal	Deputy President P E Hack SC
Date	26 July 2006

PlaceBrisbane

WHEREAS in relation to part of the proceedings the parties have reached agreement as to the terms of a decision of the Tribunal which would be acceptable to them;

AND WHEREAS the terms of such agreement have been reduced to writing;

AND FURTHER the Tribunal is satisfied that such decision would be within the powers of the Tribunal;

AND the Tribunal notes the undertaking of the respondent, by its solicitors, to forthwith remove from its website any reference to the respondent’s decisions in relation to the applicants made on 11 August 2003;

AND the Tribunal notes that the applicant and respondent agree that the applicant was validly registered as a migration agent pursuant to the Migration Act 1958 at all times during the period 13 October 2002 to 12 October 2003;

THEREFORE the Tribunal, pursuant to section 42C of the Administrative Appeals Tribunal Act 1975:

Sets aside the decision of the respondent dated 11 August 2003 to refuse the applicant’s application for registration as a migration agent.
Certifies that the proceedings have terminated in a manner favourable to the applicant.

AND FURTHER the Tribunal pursuant to s 34J of the Administrative Appeals Tribunal Act 1975

Remits the matter to the respondent for reconsideration on the agreed basis that the respondent is not satisfied, for the purposes of s 290 of the Migration Act 1958, that;

(a)the applicant is not a fit and proper person to give immigration assistance; and

(b) the applicant is not a person of integrity.

signed
DEPUTY PRESIDENT

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2004/180

DECISION

Tribunal	Deputy President P E Hack SC
Date	26 July 2006

PlaceBrisbane

WHEREAS in relation to part of the proceedings the parties have reached agreement as to the terms of a decision of the Tribunal which would be acceptable to them;

AND WHEREAS the terms of such agreement have been reduced to writing;

AND FURTHER the Tribunal is satisfied that such decision would be within the powers of the Tribunal;

THEREFORE the Tribunal, pursuant to section 42C of the Administrative Appeals Tribunal Act 1975:

Sets aside the decision of the respondent dated 9 February 2004 to refuse the applicant’s application for registration as a migration agent.
Certifies that the proceedings have terminated in a manner favourable to the applicant.

AND FURTHER the Tribunal pursuant to s 34J of the Administrative Appeals Tribunal Act 1975

Remits the matter to the respondent for reconsideration on the agreed basis that the respondent is not satisfied, for the purposes of s 290 of the Migration Act 1958, that;

(a)the applicant is not a fit and proper person to give immigration assistance; and

(b) the applicant is not a person of integrity.

signed
DEPUTY PRESIDENT

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2004/833

DECISION

Tribunal	Deputy President P E Hack SC
Date	26 July 2006

PlaceBrisbane

WHEREAS the parties have reached agreement as to the terms of a decision of the Tribunal which would be acceptable to them;

AND WHEREAS the terms of such agreement have been reduced to writing;

AND FURTHER the Tribunal is satisfied that such decision would be within the powers of the Tribunal;

THEREFORE the Tribunal, pursuant to section 42C of the Administrative Appeals Tribunal Act 1975:

Sets aside the decision of the respondent dated 15 October 2002 to suspend the applicant’s registration as a migration agent for a period of one year.
In substitution therefore decides that in relation to the matters the subject of the respondent’s decision made on 15 October 2002 it is not appropriate for the respondent to take disciplinary action against the applicant pursuant to the Migration Act 1958.
Certifies that the proceedings have terminated in a manner favourable to the applicant.
signed
DEPUTY PRESIDENT

CATCHWORDS

MIGRATION AGENTS – registration – applicant must not be registered if not a person of integrity or not fit and proper – Tribunal does not have power to make a finding in the positive – the decision under review is set aside and remitted for reconsideration

Migration Act 1958 Part 3, s 289, s 290, s 303(b)

Administrative Appeals Tribunal Act 1975 s 25(4A), s 34J, s 42C, s 43

Hartnett v Migration Agents Registration Authority (2004) 140 FCR 388

Australian Securities and Investments Commission v Donald [2003] FCAFC 318, (2003) 136 FCR 7

Commonwealth Bank Officers Superannuation Corporation Pty Ltd v FCT [2005] FCAFC 244, (2005) 148 FCR 427

Cunliffe v Commonwealth (1994) 182 CLR 272

Khalsa and Migration Agents Registration Authority [2002] AATA 1240

REASONS FOR DECISIONS

26 July 2006

Deputy President P E Hack SC

In arithmetic, two negatives make a positive. The issue in this case is whether that proposition is sound in law. The matter arises in this way.
Mr Beau Hartnett was admitted as a solicitor of the Supreme Court of Queensland in February 1992. In October 1994 he was registered as a migration agent pursuant to the provisions of the Migration Act 1958. His registration was reviewed annually for a number of years thereafter.
The Migration Agents Registration Authority has statutory functions that include dealing with registration applications in accordance with Part 3 of the Migration Act.
On 15 October 2002 the Authority determined to suspend Mr Hartnett’s registration as a migration agent for a period of one year. In so doing it relied upon the power in s 303(b) of the Migration Act.
Mr Hartnett applied to the Tribunal (in proceedings Q2002/926) for a review of that decision. He was not successful. An appeal from that decision to the Federal Court (Marshall J.) also failed however Mr Hartnett succeeded before the Full Court of the Federal Court of Australia: see (2004) 140 FCR 388. On 7 October 2004[1] that Court ordered that,
(1) the appeal be allowed;
(2) the order made by Marshall J be set aside;
(3) the order of suspension against Mr Hartnett be set aside;
(4) the finding that Mr Hartnett’s conduct was contrary to clauses 2.9 and 2.1(b) of the Code of Conduct be set aside;
(5) the matter be remitted to the Tribunal for further consideration in accordance with law; and
(6) the respondent pay the applicant’s costs of this appeal and of the proceedings before Marshall J.
[1]For reasons that are not clear to me there is on the Tribunal’s file what is expressed to be an order of the Full Court in these terms, made by consent on 15 October 2004 and perfected on 21 October 2004. The reasons for decision give 7 October 2004 as the date of the order.
The remitted proceedings were given the reference number Q2004/833 in the Tribunal and they are before me now.
In the meantime on 11 August 2003 the Authority determined to refuse Mr Hartnett’s application for registration. Mr Hartnett sought a review of that decision in an application filed in the Tribunal on 8 September 2003 (Q2003/758).
Additionally, and I assume as a consequence of an application for registration in a succeeding year, the Authority again refused Mr Hartnett’s application for registration by letter dated 10 February 2004. Mr Hartnett sought a review of that decision by application filed in the Tribunal on 9 March 2004 (Q2004/180).
Each of the matters Q2003/758 and Q2004/180 are before me now.
It is material to note that in each of the letters of 11 August 2003 and 10 February 2004 it was said,
The reason for this refusal is that pursuant to section 290 of the Migration Act 1958…the Authority is not satisfied that you are a fit and proper person to give immigration assistance.
From the time of the decision of the Full Court of the Federal Court until earlier this year there were negotiations between Mr Hartnett and the Authority aimed at resolving all matters of controversy between them.
Under cover of a letter dated 1 February 2006 Mr Hartnett forwarded to the Tribunal what were expressed to be agreed decisions in each of the three matters. They were signed by the representatives of both parties. That relating to Q2003/758 was in these terms,
AGREEMENT AS TO THE TERMS OF A DECISION
In accordance with section 42C of the Administrative Appeals Tribunal Act 1975, the parties agree to the decision of the Tribunal in these proceedings in the following terms:-
1.The Tribunal orders that the decision of the Respondent dated 11 August 2003 to refuse the application for registration as a migration agent be set aside.
2.The Tribunal remits the application to the Respondent with the direction that the application be assessed and determined on the basis that the Applicant is not not [sic] a fit and proper person and not not [sic] a person of integrity within the meaning of section 290 of the Migration Act 1958.
3.The Tribunal orders that the Respondent remove from its website any reference to the decision of the Respondent made on 11 August 2003.
4.The Tribunal orders for an avoidance of doubt that the Applicant was validly registered under the Act for the period 13 October 2002 to 12 October 2003.
5.The Tribunal certifies that these proceedings have terminated favourably to the applicant.
The Respondent notes that it is beyond the Respondent’s power to make a decision that an applicant for registration is a person of integrity or a fit and proper person to give immigration assistance and that its power is limited by the provisions of the Migration Act 1958 to considering and deciding whether it is satisfied that an applicant for registration is not a person of integrity or is not a fit and proper person to give immigration assistance.
Signed drafts in similar terms were provided in each of Q2004/180 and Q2004/833. In the covering letter, Mr Hartnett anticipated that the Tribunal might be concerned with the wording of paragraph two of the proposed order. The letter continued,
This paragraph has been couched in the double negative at the insistence of the Respondent, as indicated in the notation at the end of the respective terms of agreement.
Having regard to the Respondent’s powers and functions set out in the Migration Act 1958…we respectfully disagree with the Respondent’s stipulation that the order incorporate the double negative.
As Mr Hartnett anticipated I had reservations about the terms of what was proposed, not only on the basis of the clumsiness of some of the language but also that it required the Tribunal to make order that I regarded as being beyond power, for example, the making of declarations and orders for the removal of website references. The parties were provided with drafts of orders that I considered were able to be made pursuant to s 42C(1) of the Administrative Appeals Tribunal Act 1975 and consistent with the Tribunal’s power. That in relation to Q2003/758 was proposed in these terms,
WHEREAS the parties have reached agreement as to the terms of a decision of the Tribunal which would be acceptable to them;
AND WHEREAS the terms of such agreement have been reduced to writing;
AND FURTHER the Tribunal is satisfied that such decision would be within the powers of the Tribunal;
AND the Tribunal notes the undertaking of the respondent, by its solicitors, to forthwith remove from its website any reference to the respondent’s decisions in relation to the applicant made on 11 August 2003;
AND the Tribunal notes that the applicant and respondent agree that the applicant was validly registered as a migration agent pursuant to the Migration Act 1958 at all times during the period 13 October 2002 to 12 October 2003;
THEREFORE the Tribunal, pursuant to section 42C of the Administrative Appeals Tribunal Act 1975:
(1)           Sets aside the decision of the respondent dated 11 August 2003                 to refuse the applicant’s application for registration as a   migration agent.
(2)          Remits the matter to the respondent for reconsideration on the             agreed basis that the respondent is not satisfied, for the purposes of section 290 of the Migration Act 1958, that:
(a)      the applicant is not a fit and proper person to give    immigration assistance; and
                (b)      the applicant is not a person of integrity.
(3)            Certifies that the proceedings have terminated in a manner                    favourable to the applicant.

The solicitors for the Authority have indicated that the Authority is content that orders be made in those terms and similar terms in relation to the other two matters. Mr Hartnett however has a concern regarding the recording of findings about good faith. Instead of the order reading, relevantly, that the matter be remitted to the Authority,
for the reconsideration on the agreed basis that the respondent is not satisfied, for the purposes of section 290 of the Migration Act 1958, that:
(a) the applicant is not a fit and proper person to give immigration assistance; and
(b) the applicant is not a person of integrity,

Mr Hartnett proposed that the order reflect the positive finding that he was a fit and proper person to give immigration assistance and was a person of integrity.

After further discussion between the parties and the Tribunal it has been agreed that there should be a hearing, limited to the question of the Tribunal’s power to make positive findings of the type sought by Mr Hartnett. It is agreed by both parties that otherwise the terms of the orders that I proposed in February 2006 are appropriate and should be made. It is also agreed that the matter should be determined on the papers pursuant to s 34J of the Administrative Appeals Tribunal Act. I am satisfied that it is proper to proceed on that basis.
The parties have agreed, at least implicitly, that the terms of the agreed decisions signed in January 2006 should be regarded as not precluding Mr Hartnett from contending that the Tribunal can make positive findings, not on the basis of evidence but on the basis of (i) the absence of the proscription against re-registration and (ii) the fact of the decision being wrong.[2]
[2]Applicant’s submissions, paragraph 5.
I have the benefit of helpful written submission from Mr Robertson of Counsel for Mr Hartnett and Mr Bickford of Counsel for the Authority.
Mr Robertson relies upon s 25(4A) of the Administrative Appeals Tribunal Act. But I do not think that sub-section assists in the present case. The sub-section allows the Tribunal to determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues considered. It says nothing about the scope of the Tribunal’s powers.
Those powers are set out in s 43 of the Administrative Appeals Tribunal Act. The argument for Mr Hartnett recognises that that section empowers the Tribunal to exercise all the powers and discretion conferred upon the original decision maker, provided it does so for the purpose of reviewing a decision.[3] But the cases make it plain that s 43 is not a source of jurisdiction, the jurisdiction is conferred by the legislation that determines the extent of the powers and discretions that the Tribunal may exercise in the stead of the original decision maker.
[3] See eg Australian Securities and Investments Commission v Donald [2003] FCAFC 318, (2003) 136 FCR 7; Commonwealth Bank Officers Superannuation Corporation Pty Ltd v FCT [2005] FCAFC 244, (2005) 148 FCR 427
In the present case the Migration Act, and in particular Part 3 of that Act, determines the relevant powers and discretions of the Authority.
Section 289 of that Act imposes upon the Authority a duty to register an applicant for registration as a migration agent unless one or more of a number of succeeding sections prohibit registration. Section 290 is one of those sections. It provides, so far as is presently material,
(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
(b) the applicant is not a person of integrity; or
…
At an earlier time the Authority was satisfied of at least one of these matters and accordingly refused Mr Hartnett’s registration. But it is no longer satisfied. Indeed I infer that the Authority accepts that it ought not to have been satisfied of these matters when it earlier refused Mr Hartnett registration. But, in my view, that is not the same as saying, positively, that Mr Hartnett is a fit and proper person to give immigration assistance and is a person of integrity. He may well be, but the Authority was not called upon to determine that he was, rather it was obliged to refuse registration if it was satisfied that he was not.
It is no doubt correct to say that the Act is designed to ensure that migration agents are persons of integrity and competence[4] but in my view it achieves that purpose, not by making a determination that an applicant is a fit and proper person and a person of integrity, but by prohibiting the registration of those who do not answer that description.
[4] See Cunliffe v Commonwealth (1994) 182 CLR 272 at p 294 (Mason CJ) and p394 (McHugh J)
In many cases the material before the Authority might affirmatively satisfy it that an applicant was a fit and proper person and a person of integrity but it is not required to decide that question. Nor is the Tribunal. It is sufficient for me to determine, on the basis of the parties agreement, that the disentitling conditions in s 290(1)(a) and (b) are agreed not to be satisfied.
Mr Hartnett’s concern is understandable. It is quite possible that those who seek his assistance who do not have a fluent grasp of English could be confused by the use of the double negative, however that concern cannot be overcome by the Authority or the Tribunal making a determination that is not permitted by the Migration Act.
There is a subtle distinction between deciding that a person is not entitled to be registered because the person was not a fit and proper person to give migration advice and deciding that the person was a fit and proper person to give migration advice. And in my view, that subtle distinction is a proper one to be drawn. It does not confuse the issue of the Authority’s power and the way the registration regime is structured. The former gives the Authority to register or not register. The regime is structured in a way that requires the Authority to not register if it is satisfied that certain disqualifying features are made out. It does not require the authority to register only if satisfied that the applicant is a fit and proper person and a person of integrity.

I note the reliance placed by Mr Hartnett on the decision of the Tribunal in Khalsa and Migration Agents Registration Authority [2002] AATA 1240. There, the Tribunal was called upon to review Mr Khalsa’s registration. The decision under review was set aside and the matter remitted to the Authority,
with a direction to reconsider the application for repeat registration on the basis that the applicant is a fit and proper person to give immigration assistance and a person of integrity in accordance with s 290 of the Migration Act 1958.
But in the reasons for decision at [41] Senior Member Lindsay identified the task of the Tribunal as being
to determine whether it is satisfied that Mr Khalsa is not a fit and proper person or a person of integrity.

At paragraph [50] the Tribunal concluded that it was satisfied that s 290(1)(a) and (b) of the Migration Act were not impediments to registration.

As it seems to me there is discordance in Khalsa between the Tribunal’s reasoning, and its expression of the ultimate outcome. In my respectful view the former is correct and the latter erroneous.
It is, then, my view on the issue that the parties have joined on, is that the direction that ought be made on the remittal is one that required the Authority to proceed with the application for registration on the agreed basis that the Authority is not satisfied for the purposes of s 290 that Mr Hartnett is not a fit and proper person to give immigration assistance and not a person of integrity.
As I understand the position the balance of the terms of what was proposed by the Tribunal in February 2006 is agreed between the parties. Accordingly those matters will be the subject of a decision made under s 42C of the Administrative Appeals Tribunal Act. There will then be orders made in each matter in accordance with these reasons and the extent of the agreement of the parties otherwise.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: ..........................signed.............................................
Leisa Pendle, Associate

Hearing heard on the papers.

GENERAL ADMINISTRATIVE DIVISION

BEAU HARTNETT

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent