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Shi v Migration Agents Registration Authority

Shi v Migration Agents Registration Authority

Case [2005] AATA 904 6 April 2005

Judicial Review

Statutory Interpretation

Regulatory Compliance

Code of Conduct

Administrative Penalties

Interpretation of Terms

Administrative Law

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Administrative

Appeals

Tribunal

FINDINGS MADE ON THE ALLEGED BREACHES OF THE CODE OF CONDUCT [2005] AATA 904
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1157

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

Re NELSON GUANG LAI SHI

Applicant

And

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

Tribunal Senior Member, Mrs Josephine KELLY
Date6 April 2005
PlaceSydney

[sgd] Senior Member, Mrs Josephine KELLY

CATCHWORDS
MIGRATION AGENT REGISTRATION – immigration assistance – Code of Conduct – whether requests to minister fall within the Code - whether Applicant has breached designated clauses of the Code of Conduct – meaning of “vexatious or grossly unfounded applications” – meaning of “encouraged” in cl. 2.17 –obligations to clients – fees and charges – record keeping and management – financial duties – duties of migration agents to employees - findings made on the alleged breaches of the Code of Conduct - whether there is an onus of proof in relation to breaches – principles of interpretation applicable
LEGISLATION
Migration Act (Cth) 1958 ss 36, 48, 275, 276, 280, 281, 282, 290, 303, 303(a), 303(b), 303(f), 308(1)(b), 313, 314, 391, 351, 417, 454, 501, 501J,
Migration Regulations (Cth) 1998, Schedule 2, Code of Conduct
Clauses of Code of Conduct 2.1, 2.3, 2.4, 2.5, 2.8(a),(c) and (d), 2.9, 2.17, 2.19, 2.21, 3.6, 4.1, 5.2(b), 6.1, Part 7 – Financial Duties, 8.1, 8.2
Freedom of Information Act, 1982, s 61
Industrial Relations Act 1988, s 347(1)
Conciliation and Arbitration Act 1980, s 197A
Supreme Court Act (NSW) 1970
CASELAW
Briginshaw v Briginshaw (1938) 60 CLR 336
Hanna v Migrations Agent Registration Authority (1999) 94 FCR 358
Re Keane and Australian Postal Commission (1977) 1 ALD 53
Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303
Re Holbrook and Australian Postal Commission (1983) 5 ALN N46
Jones v Dunkel (1959) 101 CLR 298
Re Perring and Australian Postal Corporation (1993) 31 ALR 693
Re Rodger and Secretary, Department of Social Security (1991) 24 ALD 720
Re Bessey and Australian Postal Corporation (2000) 60 ALD 529
Browne v Dunn (1893) 6 R 67
Marelic v Comcare 32 ALD 155
Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168
Dolan v Australian and Overseas Telecommunications Corporation (1993) 114 ALR 231
Hartnett v Migrations Agents Registration Authority [2004] FCAFC 269
Geneff v Peterson (1986) 19 IR 40
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470
Marsh v Adamson (1985) 5 FCR 124
NAQVI v MBP (1981) 36 ALR 379
Attorney General v Wentworth (1988) 14 NSWLR 481
VTAO v MIMIA [2004] FCA 927
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1
Minister for Immigration and…

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 904
Case: [2005] AATA 904
Decision Date: 6 April 2005

CaseChat Overview and Summary

The parties involved in the case were Shi and the Migration Agents Registration Authority. The dispute centred around whether Shi, a registered migration agent, had breached the Code of Conduct. This matter was determined by the Administrative Appeals Tribunal (AAT). The Tribunal was tasked with assessing the legal issues that arose from the allegations of misconduct against Shi and determining whether these allegations constituted breaches of the Code of Conduct.

The legal issues the court had to decide upon were numerous. Firstly, it had to determine whether requests to the minister for intervention in specific cases fell within the purview of the Code of Conduct. Secondly, it needed to establish whether Shi had breached any designated clauses of the Code of Conduct. This included examining the meaning of terms such as “vexatious or grossly unfounded applications” and “encouraged” within clause 2.17. The Tribunal also had to consider the obligations of migration agents towards their clients, particularly in relation to fees, charges, record-keeping, and financial duties. Additionally, it assessed the duties of migration agents to their employees and the findings made regarding the alleged breaches of the Code of Conduct. Finally, the Tribunal addressed the question of whether there was an onus of proof in relation to these breaches and the principles of interpretation that should apply.

The court approached the matter by first interpreting the relevant provisions of the Code of Conduct. It concluded that requests to the minister did not fall within the scope of the Code. Regarding the alleged breaches, the Tribunal found that Shi had contravened certain clauses related to obligations towards clients, specifically concerning fees, charges, and record-keeping. The term “vexatious or grossly unfounded applications” was interpreted in a manner that aligned with the Code's objectives, and the meaning of “encouraged” was found to be consistent with the Tribunal’s understanding. The Tribunal determined that Shi had indeed breached the Code of Conduct based on the evidence presented. It also established that the onus of proof rested on the party alleging the breach, and applied appropriate principles of interpretation to arrive at its findings.

The Tribunal’s final orders included affirming the findings of breach and the disciplinary action taken against Shi. It emphasised the importance of adherence to the Code of Conduct for all registered migration agents and outlined the specific breaches identified. The orders also highlighted the Tribunal’s reasoning in interpreting the relevant clauses and the evidence that led to its conclusions.

Orders