Tran and Migration Agents Registration Authority (Migration)
[2022] AATA 1776
•20 June 2022
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 Applicant on 14 June 2022, raising this and an issue of futility, and sent a copy of that email to the Tribunal. At the commencement of the substantive hearing on 15 June 2022, the issue of futility was again raised, along with the question of the Tribunal’s jurisdiction to hear the matter if any decision made by the Tribunal was, in effect, irrelevant.
The Applicant’s representative responded to the email, noting that the Applicant did not consider the application futile, given that any dismissal or withdrawal from the matter would mean that the original decision of the Authority would stand. In their written submissions, filed on 16 June 2022, the Applicant noted that the Authority had referred the Applicant to the Office of the Legal Services Commissioner on the basis that the Applicant’s conduct may raise issues with regard to her ability to practice as a legal practitioner.
The Applicant also noted that if the Tribunal did dismiss the matter, she would lose any option to elect to become a registered migration agent in the future as the Authority’s decision would stand.
THE ISSUES
The issues before the Tribunal are:
(a)whether the Tribunal has jurisdiction to hear the application filed on 15 January 2020 with the matter number 2020/0296; and if so,
(b)whether the Tribunal should dismiss the matter under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on the basis that any decision of the Tribunal would be futile.
THE LAW
s 289B of the Migration Act provides that:
Applications by Australian legal practitioners
(1) An applicant who is an unrestricted legal practitioner must not be registered.
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 Tribunal
Subject 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 decisions
Enactment 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.
DISCUSSION
Jurisdiction
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.
In this case a forward-looking approach is, in my opinion, the most appropriate. The legislation requiring the Applicant to make an election came into force after the original decision was made, and the Legal Services Commissioner has advised that it will not make a decision in relation to the Applicant’s suitability to practice as a solicitor until after the decision of the Tribunal had been made. Further, there has been an agreement between the Legal Services Commissioner and the Applicant that the Legal Services Commissioner will not take any action, pending the outcome of the Tribunal’s decision.
The outcome of the Tribunal’s decision is therefore of great importance to the Applicant, both in terms of her ability to make an election under s 289B of the Migration Act, and any effect it may have on any future decision of the Legal Services Commissioner. In other words, the Applicant has important rights that are impacted.
My opinion is reinforced by the fact that at the moment, the Applicant is precluded from acting as a migration agent, and the Tribunal’s decision has the potential to change that situation.
It is important to note that, in my opinion, even if a backwards-looking approach were to be taken, the outcome would not be different, because the consideration of the Applicant’s registration as a migration agent would be made according to the circumstances which existed at the time of the original Authority decision on 9 January 2020. In this regard, the remarks of Buchanan J in Lee are relevant. His Honour said as follows at paragraph [69]:
Because assessment of the first appellant’s visa application must be made in the light of the circumstances as they exist at the time of the (valid) decision of the MRT, it cannot be said that the grant of relief could not possibly make a difference to the MRT’s eventual deliberations.
Turning to the question of the Tribunal’s power under s 42B, having determined that the proceedings in this matter are not futile, and that a failure of the Tribunal to exercise its discretion would result in significant unfairness to the Applicant, I am of the opinion that the provisions of this section are not engaged.
DECISION
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 ins 42B(1) of the AAT Act should not be exercised.
I certify that the preceding 25 (twenty- five) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President.
.............................[sgd]........................................
Associate
Dated: 20 June 2022
Date(s) of hearing: 15 & 16 June 2022 Date final submissions received: 16 June 2022 Solicitors for the Applicant: Mr A. Duri, Yang and Duri Migration Solicitors for the Respondent: Mr T. Aviram, Clayton Utz
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