Tran and Migration Agents Registration Authority (Migration) - [2022] AATA 1776

Tran and Migration Agents Registration Authority (Migration) [2022] AATA 1776 (20 June 2022)
Division:GENERAL DIVISION
File Number(s): 2020/0296
Re:My-Yen Thi TRAN
APPLICANT

AndMigration Agents Registration Authority
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:20 June 2022
Place:Sydney

I find that:
(a)the Tribunal does have jurisdiction under s 25 of AAT Act with regard to the application filed on 15 January 2020; and
(b)the application is not futile; and
(c)the power to dismiss set out in s 42B(1) of the AAT Act should not be exercised.

............................[sgd]............................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE - jurisdiction – dismissal under s 42B of the AAT Act – whether the application should be dismissed on the grounds of futility – amendment to the Migration Act prohibiting legal practitioners from registration as a migration agent – where the Applicant’s registration as a migration agent was cancelled prior to the amendment – matter referred to the Office of the Legal Services Commissioner – outcome of the application is not futile as election has not been made – Tribunal has jurisdiction – dismissal under s 42B refused.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 25, 42B
Migration Act 1958 (Cth) s 289B, 302A, 306
Migration Amendment (Regulation of Migration Agents) Act 2020 (Cth)
CASES
Lee and Minister of Immigration and Citizenship [2007] FCAFC 62
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
20 June 2022
BACKGROUND

The Applicant was a registered migration agent under Part 3 of the Migration Act 1958 (Cth) (the Migration Act). On 9 January 2020, the Migration Agents Registration Authority (the Authority) decided to cancel her registration on the bases that the Applicant:
(d)was not a person of integrity, or was otherwise not a fit and proper person to give immigration assistance (section 303(1)(f) of the Act) ; and
(e)had not complied with clauses 2.1, 2.8, 2.9, 2.9A, 2.17, 2.23, 5.2, 5.5, 6.1, 6.4, 7.2, 7.4 and 9.3 of the Code of Conduct in Schedule 2 to the Migration Agents Regulations 1998 (the Code) (see section 303(1)(h) of the Act).
On 15 January 2020, the Applicant applied to the Tribunal under section 306 of the Migration Act, read with section 25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), for review of the Authority’s decision.
The Applicant is also a legal practitioner.
The matter was listed for hearing on 15 & 16 June 2022.
On 22 March 2021, an amendment to the Migration Act made by the Migration Amendment (Regulation of Migration Agents) Act 2020 (Cth) was effected. The consequence of this amendment was to prohibit legal practitioners, whose practising certificates were unrestricted, from registration as migration agents under s 289B of the Migration Act. s 302A of the Migration Act further provides that the Authority must cancel the registration of such legal practitioners.
Prior to the hearing, the Respondent emailed the…

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 Tran and Migration Agents Registration Authority (Migration)

Details

AGLC: Tran and Migration Agents Registration Authority (Migration) [2022] AATA 1776
Case: [2022] AATA 1776
Decision Date: 20 June 2022

CaseChat Overview and Summary

This matter concerned an application by the Applicant to the Administrative Appeals Tribunal (AAT) for review of a decision made by the Migration Agents Registration Authority (the Authority). The dispute arose in the context of amendments to the *Migration Act 1958* (Cth) that prohibited legal practitioners from also being registered migration agents. The Applicant's registration as a migration agent had been cancelled prior to these amendments, and the Authority had referred adverse material concerning the Applicant to the Office of the Legal Services Commissioner. The Authority raised the possibility of dismissing the application under section 42B of the *Administrative Appeals Tribunal Act 1975* (Cth) on the grounds of futility.

The primary legal issues before the AAT were whether it had jurisdiction to hear the application and whether the application should be dismissed as futile. Specifically, the AAT was required to determine if the amendments to the *Migration Act*, which necessitated a choice between being a legal practitioner or a registered migration agent, rendered the review of the Authority's decision futile, thereby preventing the Tribunal from exercising its review powers. The AAT also considered its power to dismiss an application under section 42B of the *AAT Act* if it is frivolous, vexatious, misconceived, lacking in substance, has no reasonable prospect of success, or is otherwise an abuse of process.

The AAT found that it possessed jurisdiction to hear the matter, citing section 25 of the *AAT Act* and section 306 of the *Migration Act* as conferring the power to review the Authority's decision. The Tribunal reasoned that a failure to exercise jurisdiction would result in serious prejudice, a lack of procedural fairness, and significant injustice to the Applicant, denying them the prospect of a successful outcome. Regarding the issue of futility, the AAT considered the timing of the amendments to the *Migration Act*, noting they were introduced after the Authority's decision. The Tribunal determined that the outcome of the proceedings was not futile as an election had not yet been made by the Applicant. The AAT therefore refused to dismiss the application under section 42B of the *AAT Act*.

Orders

Orders of the court

Full text does not contain this section.

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

s 25 of the AAT Act provides that:Tribunal may review certain decisionsEnactment may provide for applications for review of decisions(1) An enactment may provide that applications may be made to the Tribunal:(a)for review of decisions made in the exercise of powers conferred by that enactment; or(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment. s 42B of the AAT Act provides that:Power of Tribunal if a proceeding is frivolous, vexatious etc.(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:(a)is frivolous, vexatious, misconceived or lacking in substance; or(b)has no reasonable prospect of success; or(c)is otherwise an abuse of the process of the Tribunal.DISCUSSIONJurisdiction Turning first to the question of jurisdiction, there is in my view no doubt that the Tribunal has jurisdiction to hear the matter. A decision has been made which has had and continues to have serious consequences for the Applicant. s 25 of the AAT Act, along with s 306 of the Migration Act, clearly confers power on the Tribunal to review the decision. I note that the Applicant argued strongly that the Tribunal had jurisdiction, while the Respondent took a more neutral stand. It should also be noted that the amendments to the Migration Act which required the Applicant to make her choice as to whether she wished to continue as a registered migration agent, or relinquish that registration and act as a legal practitioner, were introduced after the decision on 9 January 2020, and that as a result of its findings the Authority referred adverse material to the Office of the Legal Services Commissioner, which may adversely affect the Applicant’s ongoing right to practice as a solicitor. Further, a failure by the Tribunal to exercise its jurisdiction would result in serious prejudice to the Applicant, a lack of procedural fairness and significant injustice. The Applicant would be denied the prospect of a successful outcome. In relation to this issue, I have regard to the decision of the High Court in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. Futility and dismissal Before turning to the Tribunal’s powers to dismiss the application, it is first appropriate to consider the question of whether any outcome of the proceedings would be futile as was raised by the Respondent. In considering this question, I have regard to the case of Lee and Minister of Immigration and Citizenship [2007] FCAFC 62 (‘Lee’), in which the Full Court of the Federal Court consider the issue of futility. In that case, the Court said at [49]:A question arises as to the point in time at which the question of futility is to be assessed. As far as administrative decisions are concerned, there is little authority on the point. There is reference to a “backward-looking test” which requires futility to be assessed at the time the decision-maker made its decision. There is reference to a “forward-looking test” which requires futility to be assessed at a time in the future when the reconsideration or rehearing takes place. In many cases, it will not matter which test is applied because the same result will follow.

Ratio Decidendi

Legal Principle Established

s 302A of the Migration Act provides that:Cancellation of registration--Australian legal practitioners(1) The Migration Agents Registration Authority must cancel the registration of a registered migration agent, by removing the agent's name from the Register, if the Authority is satisfied:(a)that the agent is an unrestricted legal practitioner; or(b)that the agent is a restricted legal practitioner who is not eligible.… s 306 of the Migration Act provides that:Review by the Administrative Appeals TribunalSubject to the Administrative Appeals Tribunal Act 1975 , application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division. s 25 of the AAT Act provides that:Tribunal may review certain decisionsEnactment may provide for applications for review of decisions(1) An enactment may provide that applications may be made to the Tribunal:(a)for review of decisions made in the exercise of powers conferred by that enactment; or(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment. s 42B of the AAT Act provides that:Power of Tribunal if a proceeding is frivolous, vexatious etc.(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:(a)is frivolous, vexatious, misconceived or lacking in substance; or(b)has no reasonable prospect of success; or(c)is otherwise an abuse of the process of the Tribunal.DISCUSSIONJurisdiction Turning first to the question of jurisdiction, there is in my view no doubt that the Tribunal has jurisdiction to hear the matter. A decision has been made which has had and continues to have serious consequences for the Applicant. s 25 of the AAT Act, along with s 306 of the Migration Act, clearly confers power on the Tribunal to review the decision. I note that the Applicant argued strongly that the Tribunal had jurisdiction, while the Respondent took a more neutral stand. It should also be noted that the amendments to the Migration Act which required the Applicant to make her choice as to whether she wished to continue as a registered migration agent, or relinquish that registration and act as a legal practitioner, were introduced after the decision on 9 January 2020, and that as a result of its findings the Authority referred adverse material to the Office of the Legal Services Commissioner, which may adversely affect the Applicant’s ongoing right to practice as a solicitor. Further, a failure by the Tribunal to exercise its jurisdiction would result in serious prejudice to the Applicant, a lack of procedural fairness and significant injustice. The Applicant would be denied the prospect of a successful outcome. In relation to this issue, I have regard to the decision of the High Court in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. Futility and dismissal