Massei and Migration Agents Registration Authority
[2011] AATA 401
•18 May 2011
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 applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:
(a) the extent of the applicant's knowledge of migration procedure; and
(c) any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:
(i) a fit and proper person to give immigration assistance; or
(ii) a person of integrity;
(except a conviction that is spent under Part VIIC of the Crimes Act 1914 ); and
(d) any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and
(e) any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and
(f) any disciplinary action that is being taken, or has been taken, against the applicant that the Authority considers relevant to the application; and
(g) any bankruptcy (present or past) of the applicant; and
(h) any other matter relevant to the applicant's fitness to give immigration assistance.
POLICY
10.In August 2009 the Authority issued a Policy and Procedures Manual.
11.The Introduction to the Manual (September 2010 edition) provides in part:
The Office of the Migration Agents Registration Authority’s (the MARA) Policy and Procedures Manual (PPM) provides guidance to Office staff in administering legislation pertaining to migration agents, and in particular, Part 3 of the Migration Act 1958 (the Act) and Migration Agents Regulations 1998 (the Regulations).
…
A guiding principle of the PPM is that it reflects best practice in administrative decision making.
…
Office staff making decisions under the Act and Regulations must be delegated to do so and must comply with the legislative requirements specified in the Instrument of Delegation (OMARA 09/002). They must also give due regard to policy guidance such as in the PPM, but should not apply such policy inflexibly. “Decision makers” or “delegates” cannot be directed by another officer to make a particular decision.
12.The Manual also provides in part:
Any other matter relevant to the applicant’s fitness to give immigration assistance:
Section 290(2)(h)
Other matters the Authority may consider relevant to the applicant’s fitness to give immigration assistance are detailed below. These matters should only be taken into account under s 290(2)(h) if they have not already been taken into account under one of the other factors in s 290(2). Other matters of relevance to the applicant’s fitness to give immigration assistance include:
·the applicant’s English language ability. For example: can the applicant read, understand, and explain legislation; can they communicate appropriately with government departments? Note that the approved initial registration application form provides detail on how initial registration applicants may demonstrate they have adequate English language ability to give immigration assistance. Please note these standards will change for initial applications received after 31 December 2009.
Footnote:
All applications for initial registration as a migration agent received on or after 1 January 2010 will need to meet a new increased English language standard. The following standard applies:
·An IELTS test score of 7.0 with a minimum score of 6.5 in each sub-test (speaking, listening, reading and writing) in the academic module undertaken not more than 2 years prior to lodgement of an Application for Registration as a Migration Agent.
…
13.The IELTS website contains a description of the English language competency of people according to the test score they receive. The relevant descriptions are as follows:
Band 7: Good user: has operational command of the language, though with occasional inaccuracies, inappropriacies and misunderstandings in some situations. Generally handles complex language well and understands detailed reasoning.
Band 6: Competent user: has generally effective command of the language despite some inaccuracies, inappropriacies and misunderstandings. Can use and understand fairly complex language, particularly in familiar situations.
Band 5: Modest user: has partial command of the language, coping with overall meaning in most situations, though is likely to make many mistakes. Should be able to handle basic communication in own field.[4]
[4] Respondent’s Statement of Facts and Contentions p. 6 at [7].
ISSUE FOR DETERMINATION
14.The issue before the Tribunal is whether the Tribunal is satisfied that Mr Massei is not a fit and proper person to give immigration assistance within the meaning of section 290 of the Migration Act 1958.
THE ARGUMENT OF THE AUTHORITY
15.The Authority argued that the Tribunal should apply the policy set out in the Manual and be satisfied that Mr Massei is not a fit and proper person to give assistance by reason of his failure to gain an IELTS score of 7.0 with a minimum score of 6.5 in each sub-test. This was the only reason advanced by the Authority in support of its argument.
THE ARGUMENT OF MR MASSEI
16.It was put on behalf of Mr Massei that linking the requirement that an applicant have a particular IELTS score is ultra vires.
17.It was argued also that subsection 290(2)(a)-(h) provides an exhaustive list of the matters required to be considered in deciding whether the Tribunal is satisfied that Mr Massei is not a fit and proper person to give immigration assistance. It was argued further that “any other matter” should not be interpreted to include the Authority’s requirements relating to the IELTS.
18.At the hearing it was argued further that:
· it was unfair to Mr Massei that he was required to meet the more onerous requirements as to English standards that were introduced after he completed his Graduate Diploma in Migration Law;
· it was unfair that he was not told by the University of the impending changes to the Authority’s requirements before they were introduced;
· insufficient consideration was given to Mr Massei's qualifications and experience in assessing his fitness under the Act;
· Mr Massei's completion of the course leading to the award of the Diploma in Migration Law is sufficient to establish that he is a “fit and proper person" in accordance with the Act.
REASONING
19.Nothing in the Act or in the Regulations appears to provide a legislative basis for the Policy and Procedures Manual. It was this type of policy guideline considered by the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs [5] in which the Court said:
There was not, in the present matter, any express statutory provision either requiring or authorizing the Tribunal to determine the matter in accordance with relevant government or ministerial policy.
In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.
It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interest of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case. It may be that the Tribunal concludes, on the material before it, that a particular government policy which had been applied by an administrative officer in making a decision which the Tribunal was reviewing was, in itself, unobjectionable and that the need for consistency in the particular area of administrative decision-making was such that, in the circumstances of the case, the correct or preferable decision was that which resulted from the application of that policy to the facts of the matter before it.
…
It is, however, desirable that, in any case where the Tribunal reaches the conclusion that the particular circumstances are such as to make the correct or preferable decision that which results from an application of some government or ministerial policy to the particular facts, the Tribunal makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion.
[5] (1979) 24 ALR 577.
20.It is clear that the Manual does not purport to bind the decision-maker and it was not suggested otherwise by the Authority. The Introduction to the Manual itself sets out that decision-makers “must … give due regard to policy guidance such as in the PPM [the Manual], but should not apply such policy inflexibly.”[7]
[7] Exhibit T1 p.26.
21.The Manual refers to the application of the IELTS test score as a matter which may be considered under paragraph (h) of sub-section 290(2). This paragraph provides that the authority must take into account “any other matter relevant to the applicant’s fitness to give immigration assistance.”
22.In deciding whether I should apply the policy relating to the IELTS test I have taken into account the evidence of Mr Suss, who was called on behalf of Mr Massei. Mr Suss is a Teacher and a Migration Agent.
23.Mr Suss said that in his opinion many students whose first language is English could not pass the IELTS test at the level required for migration agents. He said also that only 2.4% of the population could achieve a score of 7 in all bands. Mr Suss disagreed with a number of statements of the maker of the decision under review and in particular disputed that the test was one of precision.
24.The evidence of Mr Suss does not lead me to the conclusion that the IELTS test is not appropriate in Mr Massei’s case. I am not satisfied that Mr Suss is qualified to assess the value of the test or that he has carried out appropriate research to qualify him to express the opinions which he did.
25.On the other hand I have taken into account that the final Report of the 2007-2008 Review of Statutory Self-Regulation of the Migration Advice Profession[8] made the following recommendation:
That new and re-registering migration agents be required to prove that they have English language proficiency of at least International English Language Testing System (IELTS) 7. [9]
[8] Exhibit R1.
[9] Exhibit R1 p.10.
This review was conducted in accordance with the Commonwealth’s best practice processes for regulatory review and reform. It was presented to the Minister for Immigration and Citizenship in May 2008.
26.I am satisfied that those who conducted the review were in a better position than Mr Suss to asses IELTS and I am satisfied that the IELTS test is a proper assessment tool.
27.A migration agent is required to take instructions from a client, to accurately determine the needs of the client, to understand and interpret legislation and case law, to understand and draft documents, and to make representations on behalf of, and to advise, the client. These tasks require well-developed skills in speaking, listening, reading and writing in English. In these circumstances the requirement that an applicant achieve a Band 7 result (Good User) in an IELTS is appropriate.
28.This is not to apply the policy inflexibly. I consider it to be an appropriate test in Mr Massei’s circumstances. In reaching this conclusion I have taken into account Mr Massei’s other qualifications and experience, but I do not consider that they are sufficient to prevent my being satisfied that Mr Massei is not a fit and proper person to give immigration assistance.
29.When he was tested Mr Massei achieved a result of 5.5, which placed him in the Band of Modest User. This does seem surprising in view of the results he has achieved in tertiary education. However even if Mr Massei had scored in Band 6 I would still have had concerns as to his command of English so far as it was relevant to this application. In this regard I note that a competent user displays “some inaccuracies, inappropriaces and misunderstandings.” These features could have serious consequences for an applicant under the immigration system.
30.As stated previously the policy set out in the Manual does not purport to have been made under any legislative provision. There is nothing in the Act to suggest that it is ultra vires the Act and I am satisfied that it is not.
31.I agree with the submission made on behalf of Mr Massei that the meaning of general words at the end of the specific list of items (as in section 290(2)) may be limited by the specific items that precede the general words. However I do not agree that the words “any other matter” as used in sub-paragraph (h) of subsection 290(2) should be so limited. I have come to this conclusion as there is no discernable type of activity referred to in the preceding list. In any event the provisions of subsection 290(2) are not exclusive. This means that an applicant’s competency in English could be considered irrespective of the provisions of section 290(2)(h).
32.Whilst it may be argued that Mr Massei was unlucky that the policy changed after he completed his Graduate Diploma and that the University did not inform him of the proposed changes, these are not considerations relevant to the deciding whether I am satisfied that he is not a fit and proper person to give immigration assistance.
33.For these reasons I am satisfied that Mr Massei is not a fit and proper person to give immigration assistance under the Migration Act 1958 (Cth). I wish to make it very clear that this finding is based solely on Mr Massei’s failure to obtain an IELTS score of 7. It does not imply in any way that Mr Massei is not a fit and proper person based on any of the other factors set out in section 290(2) of the Act.
DECISION
34.The decision of the Respondent made 17 November 2010 refusing the Applicant’s application for registration as a migration agent is affirmed.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of
J W Constance, Deputy President
Signed:…......(sgd K Peterson).........................
K. Peterson, AssociateDates of Hearing 19 April 2011 and 18 May 2011
Date of Decision 18 May 2011
Date of Written Reasons 10 June 2011
For the Applicant Ms E Wisser
Solicitor for the Respondent Mr S Moloney, Clayton Utz
[6] (1979) 24 ALR 577 at 590-591.
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