Shi v Migration Agents Registration Authority

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.