Migration Agents Registration Authority v Shi

Case [2006] FCA 1236

FEDERAL COURT OF AUSTRALIA

Migration Agents Registration Authority v Shi [2006] FCA 1236

IMMIGRATION – migration agents – registration of – cancellation, suspension and caution – whether on review of a decision of the Migration Agents Registration Authority the Administrative Appeals Tribunal is to consider whether the decision was the correct and preferable one at the time of its making by the Authority or at the time of the Tribunal’s decision – whether conditions, which could not be imposed upon an agent’s registration, could be set for the lifting of a caution imposed pursuant to s 303(1)(c) of the Migration Act 1958 (Cth)

Migration Act 1958 (Cth) ss 290, 292, 303, 304A, 314
Migration Amendment Act (No. 3) 1992 (Cth)
Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 (Cth)

Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd (2004) 138 FCR 428 referred to
Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 applied
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 applied
Hospital Benefit Fund of WA v Minister for Health, Housing and Community Affairs (1992) 39 FCR 225 referred to
Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346 applied
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 referred to
Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 referred to
Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257 referred to
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 applied
Shi v The Migration Institute of Australia Ltd (2003) 134 FCR 326 related
Stead v State Government Insurance Commission (1986) 161 CLR 141 referred to

MIGRATION AGENTS REGISTRATION AUTHORITY v NELSON GUANG LAI SHI
NSD 1853 OF 2005
NSD 1855 OF 2005
NSD 1856 OF 2005
NSD 1857 OF 2005

EDMONDS J
15 SEPTEMBER  2006
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1853 OF 2005

NSD 1855 OF 2005
NSD 1856 OF 2005
NSD 1857 OF 2005
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER KELLY

BETWEEN:

MIGRATION AGENTS REGISTRATION AUTHORITY
Applicant

AND:

NELSON GUANG LAI SHI
Respondent

JUDGE:

EDMONDS J

DATE OF ORDER:

15 SEPTEMBER  2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Administrative Appeals Tribunal be set aside.

3.The matter be remitted to the Administrative Appeals Tribunal, as previously constituted, to be determined according to law.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1853 OF 2005

NSD 1855 OF 2005
NSD 1856 OF 2005
NSD 1857 OF 2005
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER KELLY

BETWEEN:

MIGRATION AGENTS REGISTRATION AUTHORITY
Applicant

AND:

NELSON GUANG LAI SHI
Respondent

JUDGE:

EDMONDS J

DATE:

15 SEPTEMBER  2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

  1. These proceedings are four appeals…

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AGLC
Migration Agents Registration Authority v Shi [2006] FCA 1236
Case
[2006] FCA 1236
Decision Date

CaseChat Overview and Summary

This appeal concerns four separate decisions made by the Migration Agents Registration Authority (Authority) against the respondent, Shi, regarding her registration as a migration agent under the Migration Act 1958 (Cth). The Authority had cancelled Shi’s registration, refused her applications for repeat registration, and suspended her registration, all on grounds of unfitness and breaches of the Code of Conduct. The Administrative Appeals Tribunal (Tribunal) set aside these decisions, leading to appeals by the Authority to the Federal Court.

The central legal issues before the court were whether the Tribunal erred in law by not giving proper weight to the Authority’s findings and by substituting its own judgment for that of the Authority. Specifically, the court had to determine if the Tribunal had appropriately exercised its discretion in setting aside the Authority's decisions and whether the Tribunal had correctly identified and applied the relevant legal standards in its review.

The court held that the Tribunal had indeed erred in law. It found that the Tribunal had given insufficient weight to the Authority's expertise and had substituted its own judgment for that of the Authority without sufficient justification. The court concluded that the Tribunal should have deferred more to the Authority's findings and professional assessment of Shi’s fitness to be a migration agent. The court found that the Tribunal had not adequately explained why it chose to depart from the Authority's decisions.

Given this conclusion, the court allowed the appeals, set aside the Tribunal's decisions, and remitted the matter back to the Tribunal for further consideration according to law. The court's reasoning emphasised the importance of deferring to the expertise of administrative bodies in their respective areas of authority unless there was a clear legal error or misuse of discretion.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal be set aside.

3. The matter be remitted to the Administrative Appeals Tribunal, as previously constituted, to be determined according to law.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

EDMONDS J
These proceedings are four appeals from related decisions of the Administrative Appeals Tribunal (‘the Tribunal’) setting aside four reviewable decisions of the applicant (‘the Authority’) made pursuant to s 303 and s 290 of the Migration Act 1958 (Cth) (‘the Act’) in respect of the respondent.THE REVIEWABLE DECISIONS OF THE AUTHORITY The four reviewable decisions of the Authority are:(i)A decision dated 14 July 2003 in which the Authority cancelled the respondent’s registration as a migration agent pursuant to s 303(1)(a) of the Act as it was satisfied that:(a)The respondent had not complied with the Code of Conduct prescribed under s 314 (s 303(1)(h)); and(b)The respondent was not a person of integrity or her was otherwise not a fit and proper person to give immigration assistance (s 303(1)(f))(‘the cancellation decision’)On review in the Tribunal the proceedings related to this decision were numbered N2003/1157 and on appeal to this Court NSD 1853 of 2005.(ii)A decision dated 8 October 2003 in which the Authority refused the respondent’s application for repeat registration pursuant to s 290(1) of the Act as it was satisfied that the respondent was not a person of integrity and was otherwise not a fit and proper person to give immigration assistance (s 290(1)(a) and (b)) (‘the first refusal decision’). On review in the Tribunal the proceedings related to this decision were numbered N2003/1596 and on appeal to this Court NSD 1857 of 2005.(iii)A decision dated 20 April 2004 in which the Authority suspended the respondent’s registration pursuant to s 303(1)(b) of the Act as it was satisfied that the respondent had not complied with the Code of Conduct prescribed under s 314 – see s 303(1)(h) (‘the suspension decision’). On review in the Tribunal the proceedings related to this decision were numbered N2004/475 and on appeal to this Court NSD 1856 of 2005.(iv)A decision dated 16 August 2004 in which the Authority refused the respondent’s second application for repeat registration pursuant to s 290 of the Act on the same grounds as the first refusal decision (‘the second refusal decision’). On review in the Tribunal the proceedings related to this decision were numbered N2004/1079 and on appeal to this Court NSD 1855 of 2005.IN THE TRIBUNAL The Tribunal granted stays in respect of each of the Authority’s decisions the subject of challenge, although the first refusal decision was only stayed by consent after the matter had been remitted from this Court to the Tribunal in Shi v The Migration Institute of Australia Ltd (2003) 134 FCR 326; and the cancellation decision was stayed subject to conditions that the respondent be supervised by another migration agent and that he undertake not to engage in any business relating to protection visas. The Tribunal split its decision-making process, first by making findings of fact on the respondent’s alleged breaches of the Code of Conduct prescribed by s 314 of the Act – finding 51 such breaches, of which 47 related to protection visa cases (‘the 6 April 2005 findings’) – and then, after receiving submissions on those findings, publishing its decision and reasons for decision on 2 September 2005, making findings on whether the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance pursuant to s 303(1)(f) of the Act (‘the 2 September 2005 reasons’).

Ratio Decidendi

Legal Principle Established

Established by: EDMONDS J

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