Shi v Migration Agents Registration Authority - [2005] AATA 851

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 851
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1157

GENERAL ADMINISTRATIVE DIVISION
)               N2003/1596
                N2004/475
                N2004/1079

Re NELSON SHI

Applicant

And

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly
Date2 September 2005
PlaceSydney

Decision
Proceedings N2003/1157
The reviewable decision is set aside and substituted for that decision is the decision that Mr Shi is cautioned. The caution will be lifted on 1 September 2008 if:

I. Mr Shi is supervised by a registered migration agent until 1 September 2008. That supervising registered migration agent must satisfy the requirements set out in clause 7B(3) of the Migration Agents Regulations 1998; and

    II.    Mr Shi does not provide immigration assistance with respect to protection visas before 1 September 2008.

Proceedings N2003/1596
The reviewable decision is set aside and substituted for that decision is the decision that Mr Shi’s repeat registration is approved.

Proceedings N2004/475
The reviewable decision is set aside and the decision is made not to suspend Mr Shi’s registration.

Proceedings N2004/1079
The reviewable decision is set aside and the decision is made to renew Mr Shi’s repeat registration.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS
MIGRATION – migration agent registration authority – respondent seeking cancellation of Applicant’s registration – Applicant had not complied with the Code of Conduct – Tribunal not satisfied that the Applicant is not a person of integrity or otherwise not a fit and proper person to give immigration assistance – Applicant disciplined through caution – conditions on caution that Applicant must be supervised by a registered migration agent for a further period of three years and Applicant not to provide immigration assistance with respect to protection visas for a period of three years – decisions set aside
LEGISLATION
Migration Act 1958 ss 290, 300, 303, 304A and 417
Migration Agents Regulations 1998 Clause 7B(3)
CASELAW
Lilienthal and Migration Agents Registration Authority [2001] AATA 797
Griffiths and Migration Agents’ Registration Authority [2002] AATA 247
REASONS FOR DECISION

2 September 2005   Senior Member, Mrs Josephine Kelly

Background
1.      Mr Shi is a registered migration agent under the Migration Act 1958 (“the Act”). There were four different proceedings before me concerning decisions made by the Migration Agents Registration Authority (“MARA”) under s 303 of the Act, which relates to disciplining migration agents. On 6 April 2005 I published my findings on alleged non-compliances with of the Code of Conduct prescribed by s 314 of the Act by Mr Shi. The parties have had an opportunity to make submissions about appropriate orders based on those findings and on the question whether I should be satisfied that Mr Shi is not a person of integrity, or otherwise not a fit and proper person to give immigration assistance pursuant to s 303(f) of the Act.
The Proceedings
2.      The proceedings before me were:
Proceedings N2003/1157
3. On 14 July 2003 MARA decided to cancel Mr Shi’s registration as a migration agent pursuant to 303(a) of the Act…

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.

Continue reading Shi v Migration Agents Registration Authority

Details

AGLC: Shi v Migration Agents Registration Authority [2005] AATA 851
Case: [2005] AATA 851
Decision Date: 2 September 2005

CaseChat Overview and Summary

The Migration Agents Registration Authority sought to cancel Mr Shi's registration as a migration agent due to his non-compliance with the Code of Conduct. Mr Shi contested the cancellation in the Administrative Appeals Tribunal. The tribunal considered whether Mr Shi was a fit and proper person to hold a migration agent's registration, given that he had been disciplined with a caution. The tribunal found that Mr Shi was not a person of integrity but decided that his caution and conditions attached to it were sufficient to ensure his compliance with the Code of Conduct in the future.

The tribunal was required to decide if Mr Shi was a fit and proper person to hold a migration agent's registration, considering the disciplinary action taken against him. The tribunal also had to determine the appropriate sanction for Mr Shi's non-compliance with the Code of Conduct. The tribunal concluded that the authority's decision to cancel Mr Shi's registration was incorrect because the tribunal was satisfied that Mr Shi was a fit and proper person to hold a registration, provided that he complied with certain conditions.

The tribunal found that Mr Shi was disciplined appropriately with a caution, and the conditions attached to the caution were sufficient to ensure his compliance with the Code of Conduct. The tribunal set aside the authority's decision to cancel Mr Shi's registration and substituted it with a decision to caution Mr Shi. The tribunal also set aside the authority's decisions to not approve Mr Shi's repeat registration, to suspend his registration, and to not renew his registration. The tribunal ordered that Mr Shi's caution would be lifted if he complied with the conditions attached to the caution.

The tribunal set aside the authority's decisions to cancel Mr Shi's registration, to not approve his repeat registration, to suspend his registration, and to not renew his registration. The tribunal substituted the decision to cancel Mr Shi's registration with a decision to caution him, with conditions attached. The tribunal also approved Mr Shi's repeat registration, did not suspend his registration, and renewed his registration.

Orders

Orders of the court

Proceedings N2003/1157

The reviewable decision is set aside and substituted for that decision is the decision that Mr Shi is cautioned. The caution will be lifted on 1 September 2008 if:

I. Mr Shi is supervised by a registered migration agent until 1 September 2008. That supervising registered migration agent must satisfy the requirements set out in clause 7B(3) of the Migration Agents Regulations 1998; and

II. Mr Shi does not provide immigration assistance with respect to protection visas before 1 September 2008.

Proceedings N2003/1596

The reviewable decision is set aside and substituted for that decision is the decision that Mr Shi’s repeat registration is approved.

Proceedings N2004/475

The reviewable decision is set aside and the decision is made not to suspend Mr Shi’s registration.

Proceedings N2004/1079

The reviewable decision is set aside and the decision is made to renew Mr Shi’s repeat registration.

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

Full text does not contain this section.

GENERAL ADMINISTRATIVE DIVISION		) N2003/1596 N2004/475 N2004/1079
Re		NELSON SHI