Tran and Migration Agents Registration Authority (Migration)

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*.