Khan and Migration Agents Registration Authority - [2005] AATA 13

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 13
ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION N2003/2006
Re: Sher Afzal KHAN
Applicant

And: MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent

DECISION
Tribunal:       P.J. Lindsay, Senior Member
Date:             7 January 2005
Place:            Sydney
Decision:      The decision under review is affirmed.
. . . . . . . . . . . . . . . . . . . . . . . .
P. J. Lindsay, Senior Member

© Commonwealth of Australia (2005)

CATCHWORDS
MIGRATION AGENT – cancellation of registration of registered migration agent – agent’s criminal convictions and bankruptcy not disclosed to registration Authority – false or misleading statement – false statutory declaration – applicant not a person of integrity or a fit and proper person to provide immigration assistance – cancellation decision affirmed
Migration Act 1958 ss.280,283, 290, 303, 306, 314
Migration Agents Regulations 1998, Schedule 2, Code of Conduct
Cunliffe v Commonwealth of Australia (1994) 182 CLR 272
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12
Re Griffiths and Migration Agents’ Registration Authority [2002] AATA 247
Briginshaw v Briginshaw (1938) 60 CLR 336
REASONS FOR DECISION

P.J. Lindsay, Senior Member

1. Sher Afzal Khan has applied to the Administrative Appeals Tribunal for review of a decision made by the Migration Agents Registration Authority on 2 December 2003. That decision was to cancel Mr Khan’s registration as a migration agent.
2. The tribunal’s jurisdiction in this matter is found in s.306 of the Migration Act 1958 (the Act) :
Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division.

At the hearing, Mr Khan was self-represented. The tribunal heard evidence from him, as well as from his wife and a business associate, Mr Singh. The Authority was represented by Mr G Peek of the Australian Government Solicitor. The tribunal had before it the documents (T documents) lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and the exhibits tendered at the hearing.
background
3. Mr Khan, who is 57, left his native Pakistan in 1972 and immigrated to Australia in 1974. He is a citizen of both Australia and New Zealand. He applied for registration as a migration agent on 3 September 2001. The application was successful and he was registered as a migration agent on 9 October 2001.
4. Following a complaint by the Department of Immigration and Multicultural and Indigenous Affairs, the Authority contacted Mr Khan by letter dated 25 October 2002 (T10). The complaint related to a number of matters. Those relevant to the instant application were noted by the Authority as follows:
Information from the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) indicates that you were convicted of fraud in New Zealand in 1997 and you were sentenced to between 12 and 18…

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.

Continue reading Khan and Migration Agents Registration Authority

Details

AGLC: Khan and Migration Agents Registration Authority [2005] AATA 13
Case: [2005] AATA 13
Decision Date: 7 January 2005

CaseChat Overview and Summary

The case before the court involved a dispute between Khan, a registered migration agent, and the Migration Agents Registration Authority. The Authority had cancelled Khan’s registration as a migration agent due to his failure to disclose criminal convictions and bankruptcy to the Authority. Khan sought to overturn the decision, arguing that he was a fit and proper person to hold a registration as a migration agent. The matter was heard and determined by the Administrative Appeals Tribunal of Australia.

The central legal issues in this case were whether Khan’s failure to disclose his criminal convictions and bankruptcy constituted a false or misleading statement and whether these omissions rendered him unfit to hold a registration as a migration agent. The court had to consider the statutory provisions under the Migration Act 1958 and the Migration Agents Regulations 1998, particularly those relating to the integrity and fitness of migration agents. The court also examined relevant case law to determine the appropriate standard of proof.

The court found that Khan had indeed failed to disclose his criminal convictions and bankruptcy, which amounted to a false or misleading statement. The Tribunal held that such omissions were serious breaches of the Code of Conduct and constituted a failure of Khan to be a person of integrity. The court further determined that Khan’s lack of candour and the nature of his criminal history indicated that he was not a fit and proper person to provide immigration assistance. Consequently, the Tribunal affirmed the decision to cancel Khan’s registration.

The final orders of the Tribunal affirmed the decision of the Migration Agents Registration Authority to cancel Khan’s registration as a migration agent. Khan was also ordered to pay the Authority’s costs of the proceedings.

Orders