Re Hartnett and Migration Agents Registration Authority - [2006] AATA 653

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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: [2006] AATA 653
Decision Date: 26 July 2006

GENERAL ADMINISTRATIVE DIVISION

BEAU HARTNETT

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

The case before the court involved a dispute between a migration agent applicant, Mr Hartnett, and the Migration Agents Registration Authority (MARA). The dispute centred on whether Mr Hartnett was fit and proper to be registered as a migration agent, as required by the Migration Agents Registration Act 2004 (Cth). The court of first instance was the Administrative Appeals Tribunal (AAT), and the decision was subject to judicial review by the Federal Court of Australia. The primary issue before the court was whether the Tribunal had the power to make a finding in the positive regarding the applicant's integrity and fitness, or whether it was limited to setting aside the decision if there was a failure to meet the required standards.

The court considered the statutory framework governing the registration of migration agents, and the powers and functions of the Tribunal. It was established that the Tribunal's role was to review the decision made by the MARA, and to determine whether the decision was legally sound and based on relevant considerations. The court found that the Tribunal did not have the power to make a finding in the positive, as this would effectively usurp the decision-making role of the MARA. Instead, the Tribunal's role was limited to reviewing the decision and setting it aside if it was found to be legally flawed. In this case, the Tribunal had made a finding in the positive that Mr Hartnett was of good character and integrity, which was beyond its powers.

Consequently, the court set aside the Tribunal's decision and remitted the matter back to the Tribunal for reconsideration. The court held that the Tribunal should not have made a finding in the positive regarding Mr Hartnett's integrity and fitness, but rather should have determined whether the MARA's decision was legally sound and based on relevant considerations. The court also noted that the Tribunal had failed to consider certain relevant evidence, and that this error compounded the legal flaw in the decision. The case was therefore remitted back to the Tribunal for reconsideration in light of the court's findings.

Orders