Shi v Migration Agents Registration Authority [2008] HCA 31 30 July 2008 S522/2007
ORDER
1. Appeal allowed with costs.
2.Set aside the orders of the Full Court of the Federal Court of Australia made on 27 April 2007 and, in their place, order that:
(a) the appeal to that Court be allowed with costs; and
(b)the orders of the Federal Court of Australia made on 15 September 2006 and 27 November 2006 be set aside and, in their place, it be ordered that the appeal to that Court be dismissed with costs.
On appeal from the Federal Court of Australia
Representation
T A Game SC with N C Poynder for the appellant (instructed by KGA Lawyers)
S J Gageler SC with S B Lloyd for the respondent (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Shi v Migration Agents Registration Authority
Administrative law – Application for review by Administrative Appeals Tribunal ("Tribunal") – Decision by Migration Agents Registration Authority ("the Authority") to cancel registration of migration agent – Tribunal's task to determine what was the correct or preferable decision – Whether Tribunal should determine what was the correct or preferable decision when the Authority made its decision, or whether Tribunal should determine the correct or preferable decision as at the time of its own decision – Necessity for close attention to the applicable legislative provisions.
Immigration – Migration agents – Registration and cautioning of migration agents – Power of the Authority to set out one or more conditions for the lifting of a caution given to registered migration agents – Tribunal (exercising for itself the powers and discretions conferred on the Authority) cautioned a migration agent and imposed conditions for the lifting of that caution – Conditions imposed restricted migration agent from providing assistance with protection visas and from working without supervision of another registered migration agent – Whether conditions could be imposed that seek to qualify a registered migration agent's right to use that registration – Whether conditions imposed were inconsistent with the legislative scheme for registration of migration agents.
Statutes – Construction – Powers of Tribunal to substitute its decision for a decision of an administrator – Proper approach to ambit and application of power – Necessity for close attention to the applicable legislative provisions – Necessity for attention to purpose and history of legislation – Whether any general presumption as to determination of the rights of parties – Relevance of the constitution, functions and general powers of Tribunal.
Words and phrases – "correct or preferable decision", "decision made in substitution for the decision so set aside".
KIRBY J. This appeal arises from a divided decision of the Full…
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
AGLC
Shi v Migration Agents Registration Authority [2008] HCA 31
Case
[2008] HCA 31
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal concerning the decision of the Migration Agents Registration Authority (the Authority) to cancel the registration of a migration agent, Mr Shi. The dispute centred on the powers of the Administrative Appeals Tribunal (the Tribunal) when reviewing such a decision, specifically whether it could substitute its own decision for that of the Authority and, if so, at what point in time its decision should be assessed.
The legal issues before the High Court were whether the Tribunal, when exercising the powers and discretions conferred on the Authority, could impose conditions that effectively qualified a registered migration agent's right to use their registration, and whether such conditions were consistent with the legislative scheme for migration agent registration. A further issue was the correct approach to the ambit and application of the Tribunal's power to substitute its decision for that of an administrator, requiring close attention to the applicable legislative provisions, their purpose, and history.
The High Court reasoned that the Tribunal, under section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), possessed the power to substitute its own decision for that of the Authority. It held that the Tribunal's task was to determine the correct or preferable decision at the time of its own review, not at the time the Authority made its original decision. The Court found that the conditions imposed by the Tribunal, which restricted Mr Shi from providing assistance with protection visas and required him to work under supervision, were inconsistent with the legislative scheme. The Court concluded that the Tribunal had erred in its approach and its decision should be set aside.
The High Court allowed the appeal with costs, setting aside the orders of the Full Court of the Federal Court of Australia and restoring the decision of the Tribunal.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside the orders of the Full Court of the Federal Court of Australia made on 27 April 2007 and, in their place, order that:
(a) the appeal to that Court be allowed with costs; and
(b) the orders of the Federal Court of Australia made on 15 September 2006 and 27 November 2006 be set aside and, in their place, it be ordered that the appeal to that Court be dismissed with costs.
Background
Background to the litigation
These reasons will seek to demonstrate that the Tribunal was correct both in the approach that it adopted and in its conclusion that s 304A of the Migration Act authorised it to substitute its decision for that of the Authority. The dissenting opinion of Downes J in the Full Court on each of these points was correct. The appellant is entitled to succeed. The decision of the Tribunal should be restored.The facts and legislation Registration of migration agents:The appellant was first registered as an agent under the Migration Act in December 1995. Registration is governed by Div 3 of Pt 3 of that Act[4]. The ultimate purpose of registration is to uphold standards of integrity and competence on the part of agents. [4]Part 3 of the Migration Act was inserted by the Migration Amendment Act (No 3) 1992 (Cth). The registration scheme was substantially amended by the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 (Cth), the relevant parts of which took effect on 1 July 2004. See (2007) 158 FCR 525 at 527 [4] citing (2006) 43 AAR 424 at 430 [8]. Responsibility for administering the Register of Migration Agents is reposed in the Authority[5]. It may cancel or suspend an agent's registration, or caution an agent, if it becomes satisfied, for example, that the agent is not a person of integrity, or is otherwise not a fit and proper person to give immigration assistance, or if the agent has breached the Code of Conduct prescribed under the Act[6]. Registration as an agent is important because only a registered agent may lawfully charge a fee to provide immigration assistance to visa applicants and sponsors[7].[5]Migration Act, s 287.[6]Migration Act, s 303(1). The Code of Conduct is prescribed pursuant to s 314.[7]Migration Act, s 281. The relevant legislation: Section 303(1) of the Migration Act provides:"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 prescribed under section 314." By s 304A of the Act, it is provided:"The Migration Agents Registration Authority may set one or more conditions for the lifting of a caution it gives to a registered migration agent." And s 306 of the Act provides:"Subject to the Administrative Appeals Tribunal Act1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division." The relevant provisions of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") include s 25(4):"The Tribunal has power to review any decision in respect of which application is made to it under any enactment."
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIRBY J
(dissent)
HAYNE AND HEYDON JJ
(dissent)
The powers of the Tribunal on a review under the AAT Act are relevantly provided by s 43, which includes the following:"(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:(a) affirming the decision under review;(b) varying the decision under review; or(c) setting aside the decision under review and: (i)making a decision in substitution for the decision so set aside; or(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.…(6)A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect."The decisional history Cancellation of the appellant's registration: The Authority cancelled the appellant's registration as an agent on 14 July 2003. The Authority's decision set out its factual findings and the evidence on which such findings were based, as well as its reasons for taking the course that it did. The Authority found several defects affecting the appellant's dealings with clients; his knowledge of the Migration Act and relevant Regulations; his control of his office, financial and other records; and his supervision of his staff. Many of the breaches of the Code of Conduct found by the Authority related to cases in which the appellant had provided assistance to non-citizens applying for protection visas, sought on the basis of claims to refugee status[8]. Having regard to these breaches, the Authority recorded that it was satisfied that the appellant was not a person of integrity or a fit and proper person to give immigration assistance[9]. [8]See Migration Act, s 36.[9]Migration Act, s 303(1)(f). On 31 July 2003, the cancellation decision was stayed by the Tribunal, subject to a condition that the appellant be supervised by another migration agent and comply with an undertaking not to engage in any business relating to protection visas[10].[10][2005] AATA 851 at [3]. In October 2003 and August 2004, the Authority refused applications by the appellant for repeat registration. In addition, in April 2004, in a separate decision, it suspended his registration for a period of three years, or until specified conditions had been satisfied. These further decisions of the Authority are not in issue in this appeal. Decision of the Tribunal: Pursuant to the Migration Act[11], the appellant relevantly sought review by the Tribunal of the cancellation decision. The powers of the Tribunal on review were derived from the AAT Act. The Tribunal conducted a review and, following a hearing, in April 2005 published written findings to the effect that it was satisfied that the appellant had breached the Code of Conduct on some, but not all, of the occasions found by the Authority[12]. Having recorded these findings, the Tribunal relisted the application for disposition of the proceedings.[11]Migration Act, s 306.[12]See [2005] AATA 904.