Russell and Migration Agents Registration Authority - [2008] AATA 22

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 22
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1628

GENERAL ADMINISTRATIVE DIVISION )

Re MICHAEL RUSSELL

Applicant

And

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly
Date10 January 2008
PlaceSydney

Decision
The reviewable decision is affirmed

.......................[sgd]...................

Senior Member
Mrs Josephine Kelly
CATCHWORDS
MIGRATION – migration agent – created false positive vetassess assessment – false assessment referred to Migration Agents Registration Authority by Department of Immigration and Citizenship – authority suspended registration for 3 years with conditions – whether person of integrity or otherwise not a fit and proper person to give immigration assistance – whether length of suspension should be reduced - held conduct intentional and ongoing – reviewable decision affirmed
Migration Act 1958 ss 303, 304, 304A, 309
Migration Agents Regulations 1998 Schedule 2
Allinson v General Council of Medical Registration and Education [1894] 1 QB 750
Davies v Australian Securities Commission (1995) 59 FCR 221
Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12
Shi v Migration Agents Registration Authority (2007) 158 FCR 525
Shi v Migration Agents Registration Authority [2007] HCATrans 601 (5 October 2007)
REASONS FOR DECISION

10 January 2008 Senior Member, Mrs Josephine Kelly

SUMMARY
1.      Mr Michael Russell has been a practising lawyer since 1999 and a migration agent since 1997.   He seeks the review of the decision made on 20 November 2006 by the Migration Agents Registration Authority (“MARA”) to suspend his registration for three years, subject to conditions, because he had not complied with the applicable Code of Conduct and was not a fit and proper person to provide immigration assistance or a person of integrity at the time of the decision.
2.      The issues in the proceedings were narrow. They were:
a) Whether Mr Russell is a person of integrity or is otherwise a fit and proper person to give immigration assistance; and
b) Whether the length of suspension should be reduced to allow Mr Russell to resume practice as a Migration Agent.

3.      I have decided to affirm the reviewable decision for the reasons that follow.
THE LEGISLATION
4.      The relevant provisions of the Migration Act 1958 (“the Act”) are ss 303, 304 and 304. They provide:
303 Disciplining registered migration agents
(1)      The Migration Agents Registration Authority may:
(a)cancel the registration of a registered migration agent by removing his or her name from the register; or

(b)      suspend his or her registration; or
(c)       caution him or her;
if it becomes satisfied that:
(d)      the agent’s application for registration was known by the agent to be false or misleading in a material particular; or
(e)      the agent becomes bankrupt; or
(f)        the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g)      an individual related by employment to the agent is not a person of integrity; or
(h)      the agent has not complied with the Code of Conduct…

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: [2008] AATA 22
Decision Date: 10 January 2008

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Russell and Migration Agents Registration Authority addressed the suspension of the migration agent's registration by the Migration Agents Registration Authority (MARA) following an investigation into his conduct. The Department of Immigration and Citizenship had reported that Russell had created a false positive vetassess assessment, leading to his registration being suspended for three years with specific conditions. The central issue before the court was whether Russell, as a person of integrity, was fit and proper to provide immigration assistance and if the length of the suspension should be reduced.

The court needed to determine whether Russell's actions were intentional and ongoing, impacting his fitness as a migration agent. It considered the statutory criteria under the Migration Act 1958 and relevant case law, such as Shi v Migration Agents Registration Authority, to assess the nature of the misconduct and the appropriate sanction. The court examined the balance between the protection of the public interest and the rights of the migration agent, ensuring that the decision to suspend was proportionate and justified.

Upon reviewing the evidence and the statutory framework, the court concluded that Russell's conduct was indeed intentional and ongoing, justifying the suspension. The court found that the decision by MARA was a reviewable decision that was both reasonable and lawful. Consequently, the court affirmed the decision of MARA, upholding the three-year suspension with conditions on Russell's registration. This decision underscored the importance of maintaining integrity and proper conduct in the provision of immigration assistance.

Orders

Orders of the court

The reviewable decision is affirmed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL RUSSELL