Shi v Migration Agents Registration Authority - [2007] HCATrans 601

[2007] HCATrans 601

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S230 of 2007

B e t w e e n -
NELSON GUANG LAI SHI
Applicant
and
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
Application for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 OCTOBER 2007, AT 12.24 PM

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with my learned friend, MR N.C. POYNDER. (instructed by Kessels Goddard & Ajuria)

MR S.B LLOYD: I appear in this matter for the respondent. (instructed by Australian Government Solicitor)

HEYDON J: Mr Lloyd, it might be convenient if we heard from you first. The appeal is from the decision in which Justice Downes dissented. Apart from the fact that Justice Downes is the President of the Administrative Appeals Tribunal, there does seem some force in his reasoning. Is it not, in this division of opinion, a case which might attract special leave?

MR LLOYD: Your Honour, my submission is that in relation to what Justice Downes said, his Honour adopts the approach or perhaps my friends adopt the approach of his Honour in giving emphasis to the concept of administrative law being a continuum and advances the proposition. At page 155 in paragraph 41, two propositions there, one which we do not disagree with, which is that the Tribunal should, at least as a general principle, have regard to “the most up to date information” but that leaves aside the question of the nature of the question. We never disputed that the Tribunal should have regard to the most up‑to‑date information, but it has to be relevant to the issue. His Honour says at the end of that paragraph:

Suppose the Tribunal considered that the material before the Authority did not justify cancellation, but the agent had subsequently committed a serious criminal offence -

as if to say what the Tribunal should do in such a case is it should affirm the decision. We say that would be clearly wrong, that there is procedural fairness and other reasons why the Tribunal is not in a continuum of that kind.

Under section 309 of the Migration Act there is a provision for providing natural justice. The Migration Agents Registration Authority has to say “We are thinking of cancelling you and these are reasons why”, and then the applicant gets a chance to respond to that. That matter then goes for further reflection by the Migration Agents Registration Authority under section 303 and if the Migration Agents Registration Authority becomes satisfied on the basis of the things which the person has had an opportunity to respond to, then things may follow ‑ ‑ ‑

HEYDON J: What is there to stop the AAT adopting that course? I know that it is spelt out in terms in the Migration Act, but if you are going to decide a case…

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: [2007] HCATrans 601
Decision Date: 5 October 2007

CaseChat Overview and Summary

The case of *Shi v Migration Agents Registration Authority* concerned an appeal to the High Court of Australia regarding the registration of a migration agent. The appellant, Mr Shi, had his registration as a migration agent cancelled by the Migration Agents Registration Authority (MARA) due to alleged misconduct. Mr Shi sought judicial review of MARA's decision.

The primary legal issue before the High Court was whether MARA had erred in law in its determination that Mr Shi had engaged in conduct that was dishonest or otherwise improper in the course of his professional practice, thereby justifying the cancellation of his registration under the *Migration Act 1958* (Cth). This involved considering the nature of the evidence MARA relied upon and the standard of proof required for such a finding.

The High Court found that MARA had not erred in law. Their Honours held that MARA was entitled to conclude, on the evidence before it, that Mr Shi had engaged in conduct that was dishonest or otherwise improper. The Court emphasised that MARA was not bound by the strict rules of evidence applicable in a court of law and could draw inferences from the material presented. The Court affirmed that the test for cancellation of registration was whether the agent's conduct was dishonest or otherwise improper, and that MARA's findings on the facts were open to it.

The appeal was dismissed.

Orders