Massei and Migration Agents Registration Authority - [2011] AATA 401

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 401
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5208

GENERAL ADMINISTRATIVE DIVISION )

Re Enrico Massei

Applicant

And

Migration Agents Registration Authority

Respondent

DECISION

Tribunal J W Constance, Deputy President
Date18 May 2011
PlaceMelbourne

Decision
The Tribunal decides that the decision of the Respondent made 17 November 2010 refusing the Applicant’s application for registration as a migration agent is affirmed.

.......(sgd J W Constance)............
Deputy President

IMMIGRATION AND CITIZENSHIP – Section 290(2) Migration Act 1958 (Cth) - application for registration as a migration agent – whether applicant is not a fit and proper person to give immigration assistance - Migration Agents Registration Authority - Policy and Procedures Manual – English language ability – International English Language Testing System (IELTS) – decision under review affirmed.
Migration Act 1958 (Cth) ss 290, 290(2)(a) – (h)
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
REASONS FOR DECISION
10 June 2011 J W Constance, Deputy President
INTRODUCTION
1.On 17 November 2010 the Migration Agents Registration Authority decided to refuse an application by Mr Massei to be registered as migration agent under the provisions of the Migration Act 1958 (Cth). Mr Massei has applied to the Tribunal to review this decision.
2.For the reasons which follow the decision under review will be affirmed.

FACTS
3.Unless otherwise stated the following findings of fact are made on the basis of Mr Massei’s evidence and a written submission dated 14 April 2010 made by him to the Authority.[1] I am satisfied of the facts found on the balance of probabilities.
[1] Exhibit T1 p.29.
4.Mr Massei was born in Italy in 1962. His first language is Italian. He obtained what he described as a “basic knowledge” of English from his studies in secondary school.
5.Mr Massei migrated to Australia in 1987 and has lived here since that time. He married an Australian born citizen 23 years ago and since that time English has been the main language spoken in his home.
6.From 1995 until 2010 Mr Massei worked in the hospitality industry and managed a number of stores, including a major franchise. In 2010 he completed a Certificate IV in Training and Assessment relating to the hospitality industry.
7.In September 2009 Mr Massei completed a Master of Business Administration at Victoria University.[2] This was a full-time course conducted over two years. Mr Massei completed the course for a Graduate Certificate in Australian Migration Law and Practice at the University in April 2009.[3]
[2] Exhibit T1 p.53.
[3] Exhibit T1 p.52.
8.On 26 June 2010 Mr Massei sat an International English Language Testing System (IELTS) test and received a score of 5.5.

LEGISLATION
9.Section 290 of the Migration Act 1958 (Cth) provides, in part:
(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.

…
(2) In considering whether it is satisfied that the…

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: [2011] AATA 401
Decision Date: 18 May 2011

CaseChat Overview and Summary

The case involved Massei, who applied for registration as a migration agent, and the Migration Agents Registration Authority, which refused the application. The refusal was based on the grounds that Massei was not a fit and proper person to provide immigration assistance. Massei challenged the decision before the Administrative Appeals Tribunal, seeking a review of the refusal.

The central legal issue was whether the Migration Agents Registration Authority correctly determined that Massei was not a fit and proper person under section 290(2) of the Migration Act 1958 (Cth). This involved considering Massei's English language proficiency, specifically whether they met the minimum requirements for English language ability as outlined in the Migration Agents Registration Authority's Policy and Procedures Manual, which mandates a score of 6 in each band of the International English Language Testing System (IELTS).

The Tribunal examined the evidence and found that Massei did not meet the English language requirement, as their IELTS results did not achieve the necessary score of 6 in each band. The Tribunal concluded that this deficiency was sufficient to deem Massei unfit to be registered as a migration agent. The Tribunal also noted the relevance of the case of Drake v Minister for Immigration and Ethnic Affairs in affirming its decision.

The Tribunal affirmed the decision of the Migration Agents Registration Authority, upholding the refusal of Massei's application for registration. The Tribunal found that Massei's failure to meet the English language requirement was a valid ground for considering them unfit and improper to provide immigration assistance.

Orders

Orders of the court

The Tribunal decides that the decision of the Respondent made 17 November 2010 refusing the Applicant’s application for registration as a migration agent is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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