Khalsa and Migration Agents Registration Authority - [2002] AATA 1240

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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…

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: [2002] AATA 1240
Decision Date: 29 November 2002

GENERAL ADMINISTRATIVE DIVISION

BEAU HARTNETT

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

Beau Hartnett challenged the Migration Agents Registration Authority's decisions to suspend and refuse his registration as a migration agent. The Authority had relied on its power under the Migration Act 1958 to refuse registration if it was satisfied that Hartnett was not a fit and proper person to give immigration assistance or was not a person of integrity. The Tribunal considered whether it could make positive findings on these matters, in addition to setting aside the Authority's decisions and remitting the matter for reconsideration. The Tribunal noted that while the Authority was not satisfied that Hartnett was not fit and proper or not a person of integrity, this did not equate to a positive finding that he was fit and proper or a person of integrity. The Tribunal held that its power was limited by the Migration Act to deciding whether the Authority was satisfied that Hartnett was not fit and proper or not a person of integrity. The Tribunal could not make a positive finding that Hartnett was fit and proper or a person of integrity as this was beyond its power under the Act. The Tribunal set aside the Authority's decisions and remitted the matter for reconsideration on the agreed basis that the Authority was not satisfied that Hartnett was not fit and proper or not a person of integrity, as required by the Act.

The final orders were that the Tribunal set aside the Authority's decisions to suspend and refuse Hartnett's registration, certified that the proceedings had terminated in a manner favourable to Hartnett, and remitted the matter to the Authority for reconsideration on the agreed basis. The Authority was directed to proceed with Hartnett's application for registration on the basis that it was not satisfied that he was not fit and proper or not a person of integrity. The Authority was also directed to remove from its website any reference to its earlier decisions relating to Hartnett's registration applications.

Orders