Wagner and Migration Agents Registration Authority
[1986] AATA 287
•29 November 2016
Wagner and Migration Agents Registration Authority [2016] AATA 957 (29 November 2016)
Division
GENERAL DIVISION
File Number
2016/1615
Re
Eva Wagner
APPLICANT
And
Migration Agents Registration Authority
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 29 November 2016 Place Canberra The decision under review is affirmed.
...................[sgd].....................................................
Mr S. Webb, Member
CATCHWORDS
MIGRATION AGENT REGISTRATION – application for registration – prohibition on registration conditional on satisfaction that applicant meets particular requirements – meaning of ‘passed a prescribed exam’ – components of prescribed exam – meaning of ‘common assessment items’ of prescribed course – meaning of ‘must be satisfied’ – external credit satisfies test – English language testing - requirement for minimum scores in overall English test and each sub-test – minimum scores not established by accreditation as a translator – substantial compliance not sufficient – estoppel by representation – estoppel by convention - equitable estoppel – facts not established - no estoppel – decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 267, 277, 289, 289A
Migration Agents Regulations 1998 (Cth), r 5
Judiciary Act 1903 (Cth), s 64
CASES
Attorney-General (NSW) v Quin [1990] HCA 21
Chen v Migration Agents Registration Board (No 2) [2016] FCA 865
Commonwealth v Verwayen [1990] HCA 39
Formosa v Secretary, Department of Social Security (1988) 46 FCR 117
Kaur v Minister for Immigration and Citizenship [2012] HCA 31
Legione v Hateley [1983] HCA 11
Millner and Secretary, Department of Social Services [1986] AATA 287
Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22
Minister for Immigration and Ethnic Affairs v Polat [1995] FCA 1204
Singh v Minister for Immigration (2011) FCAFC 27
SECONDARY MATERIALS
Ministerial Instruction IMMI12/097 – Prescribed courses and exams for applicants for registration as a Migration Agent (Regulation 5)
Accreditation by Testing Information Booklet, Booklet A, National Accreditation Authority for Translators and Interpreters Limited, Version 3.8 – October 2016
Accreditation by Overseas Qualification, Professional Association Membership or Advanced Standing Information Booklet, Booklet C, National Accreditation Authority for Translators and Interpreters Limited, Version 2.10 – July 2016
REASONS FOR DECISION
Mr S. Webb, Member
29 September 2016
Eva Wagner applied for registration as a migration agent. Her application was rejected on grounds that she did not satisfy the requirements for registration. She is not content with this result and applied for review.
Facts
Ms Wagner is a German citizen who arrived in Australia in 2009. She presently holds Australian citizenship.
She holds German legal qualifications and undertook post-graduate legal studies in Scotland, South Africa, Canberra and Melbourne.
In 2010, she obtained registration as a Trade Marks Attorney from the Professional Standards Board for Patent and Trade Mark Attorneys. This registration lapsed in 2013.
On 23 November 2010, she also obtained accreditation by the National Accreditation Authority for Translators and Interpreters Limited (NAATI) as a Professional Translator in the English and German languages.[1] This accreditation was renewed in 2013 and remains current. I understand that Ms Wagner obtained work as a translator with a number of government agencies on a freelance or fee-for-service basis.
[1] ST1 folio 72.
In 2013, Ms Wagner qualified as a Certified Translator with the Dusseldorf Chamber of Industry and Commerce. In this year, she was appointed as a Court Authorised Translator by the Higher Regional Court Dusseldorf. Furthermore, she applied for and, on 27 June 2013, she was granted exemption from International English Language Testing System (IELTS) requirements by the Legal Profession Admission Board of New South Wales (LPAB).
In September 2013, Ms Wagner commenced the Graduate Certificate in Migration Law and Practice course at the Australian National University (ANU). She completed three subjects with distinction grades: LAWS8167 Australian Migration Law; LAWS8168 Australia’s Visa System; and LAWS8169 Visa Compliance, Cancellation and Review.[2]
[2] ST3 folio 85.
On 1 June 2014, she applied to the ANU for a course credit in relation to a fourth subject - LAWS8170 Applied Migration Law.[3] On 6 June 2014, she was granted “approval for Recognition of Prior Learning (RPL) for LAWS8170 having satisfied required learning outcomes, competency outcomes and standard for completion [sic] of this course”.[4] For this reason, she was awarded an STE grade – Status External (external credit) without a score being recorded for this subject.[5] Her academic transcript records that she earned six units in each of the four subjects. The Graduate Certificate was issued on 16 July 2014.[6]
[3] ST2.
[4] T5 folio 22.
[5] ST3 folio 85 and T5 folio 22.
[6] T10 folio 35.
On 16 June 2014, an officer of the Migration Agents Registration Authority (the Authority) provided Ms Wagner with information about the legislative requirements for registration in relation to the prescribed course and English language testing.[7] It is quite clear that Ms Wagner cavilled with the information she was given, and she wrote several letters to the respondent and the Minister outlining her contentions.[8]
[7] T7 folios 27-29.
[8] See e.g. T8, T11-T12, T14-T16.
On 9 June 2015, Ms Wagner applied for registration as a migration agent.[9]
[9] T18.
On 2 November 2015, an officer of the Authority provided written Notice of Intention to consider refusing her registration application.[10] Ms Wagner made further submissions on 30 November 2015.[11]
[10] T19.
[11] T20.
On 2 March 2016, an officer of the Authority decided to refuse Ms Wagner’s application for registration.[12]
[12] T2.
Issues
The over-arching issue is whether Ms Wagner meets the legislative requirements for registration as a migration agent.
After the hearing, the parties provided further materials addressing the relativity of NAATI accreditation testing and the English language testing requirements for registration as a migration agent.
In view of the issues agitated at hearing, it is necessary to address issues relating to construction of the legislation and various kinds of estoppel.
Ms Wagner raised a Constitutional issue relating to taxation – she argues that the mandatory requirement to undertake English language testing incurs a cost, the imposition of which equates to taxation without proper authority. This, she asserts, renders the applicable provisions ultra vires. After some consideration during the hearing, she informed me that she would not press this issue. This notwithstanding, the Tribunal is not bound by a concession or a case as presented by a party but it is bound to satisfy itself of the validity of applicable legislation and instruments. For this reason, I informed the parties that I would consider whether or not it is necessary to determine any question of validity and, if so, each party would be given opportunity to be heard on that point.
Construction issues
Ms Wagner accepts that the legislative test for registration requires completion of a prescribed course and the passing of a prescribed exam. In her submission, the prescribed exam may be passed if the elements specified by the Minister are “satisfied”. Furthermore, she says the prescribed exam requirement in respect of the “common assessment items relating to registration” of the prescribed course is figurative, and it may be met by assessment of the university providing the course without necessarily undertaking an invigilated exam in each subject of the course.
The Authority argues that Ms Wagner’s understanding is incorrect. The prescribed exam is that specified by the Minister for the purposes of the legislation and, in the Authority’s submission, the exam cannot be passed without undertaking it. Furthermore, the prescribed exam has two components, each of which must be satisfied – the common assessment items that form part of the prescribed course and minimum overall English language test scores, with minimum scores in each subtest.
The matter arises under the Migration Act 1958 (the Migration Act). Section 289(1) provides that the Authority must register a person as a migration agent unless doing so is prohibited under Part 3. In part, the prohibition is given form in s 289A –
289A Applicant must not be registered if does not satisfy registration requirements
An applicant:
(a) who has never been registered; or
(b) who is applying to be registered more than 12 months after the end of his or her previous registration;
must not be registered unless the Migration Agents Registration Authority is satisfied that he or she:
(c) has completed a prescribed course within the prescribed period and has passed a prescribed exam within the prescribed period; or
(d) holds the prescribed qualifications.
The Migration Agents Regulations 1998 (the Regulations) set out prescribed qualifications for the purposes of s 289A: reg 5 –
5 Prescribed qualifications
(1) For paragraph 289A(c) of the Act, a prescribed course is a course specified by the Minister in an instrument in writing for this subregulation.
(2) For paragraph 289A(c) of the Act, if a person is in a class of persons specified by the Minister in an instrument in writing for this subregulation, an exam specified by the Minister in an instrument in writing for this subregulation is a prescribed exam.
(3) For paragraph 289A(c) of the Act, if a person is not in a class of persons specified by the Minister in an instrument in writing for subregulation (2), a prescribed exam is the combination of:
(a) an exam specified by the Minister in an instrument in writing for this paragraph; and
(b) an exam in English language proficiency specified by the Minister in an instrument in writing for this paragraph.
(4) For paragraph (3)(b), an applicant is taken to have passed an exam in English language proficiency if the applicant achieves at least the minimum score specified by the Minister in an instrument in writing for this subregulation.
(5) For paragraph 289A(c) of the Act, the prescribed period for the completion of a particular course or exam is the period specified by the Minister in an instrument in writing for this subregulation.
(6) For paragraph 289A(d) of the Act, a current legal practising certificate issued by an Australian body authorised by law to issue it is a prescribed qualification.
There is no dispute that Ms Wagner is not in a class of persons for the purposes of reg 5(2). Thus, reg 5(3) applies in respect of a “prescribed exam”. As can be seen, this prescription has two limbs: an exam specified by the Minister and an exam in English proficiency specified by the Minister. On the latter point, I understand and accept that Ms Wagner, correctly, does not press her case on grounds of substantial compliance – the specificity of the statutory requirements, and the language used, stands against any such assertion.
The Minister has specified the course and the exams for the purposes of regs 5(1) and (3) in a written instrument – IMMI 12/097 Prescribed courses and exams for applicants for registration as a Migration Agent (Regulation 5) (IMMI 12/097). This instrument came into effect on 1 October 2012. It provides in relevant parts –
…
2. SPECIFY the Graduate Certificate in Australian Migration Law and Practice, as offered at the Australian National University; Griffith University; Murdoch University or Victoria University, as a prescribed course for the purposes of subregulation 5(1) of the Regulations.
...
5. SPECIFY that the following exam is a prescribed exam for the purposes of subregulation 5(3) of the Regulations:
a) The prescribed exam is made up of two elements that must be satisfied:
i) The ‘common assessment items relating to registration’ which form part of the prescribed course specified at item (2); AND
Either:
ii) A minimum overall test score of International English Testing System (IELTS) 7 Academic with a minimum score of 6.5 in each subtest (speaking, listening, reading and writing); OR
iii) A minimum overall test score of 100 in the Internet Based Test of English as a Foreign Language (TOEFL iBT) with a minimum score of 22 in each subtest (speaking, listening, reading and writing).
I should say immediately that the Minister’s Instrument IMMI12/097 and the Regulations are to be construed for the purposes of the Migration Act.
Passed a prescribed exam
The bar on registration in s 289A(c) of the Migration Act is that an applicant for registration as a migration agent cannot be registered unless the person has completed a prescribed course and has “passed a prescribed exam”. This latter phrase is not given any special meaning under the legislation. In ordinary usage, the word “passed” in this context can be understood to mean to reach the required standard in, or to undergo successfully, an examination. The word “exam” in this context means an ‘examination’, being the act or process of testing candidates, as by questions, or the test itself. The Minister’s submission that a person cannot pass an exam without undertaking it has much force.
The particularities of the “exam” that must be “passed” for the purposes of s 289A(c), are prescribed in regs 5(3)(a) and (b) and specified in clauses 5(a)(i), (ii) and (iii) of IMMI12/097. Thus it can be seen that the “exam” referred to in s 289A(c) has two components – the first relating to “common assessment items relating to registration” in the prescribed course (item 5(a)(i), and the second relating to English language testing (5(a)(ii) and (iii)). I think it is clear enough that clause 5(a)(i) refers to reg 5(3)(a) and clauses 5(a)(ii) and (iii) refer to reg 5(3)(b).
For registration to be granted, and for the prohibition in s 289A of the Migration Act to be avoided, subject to other considerations, the decision-maker must be satisfied that each component of the “exam” has been “passed” by the applicant for registration.
That state of affairs will arise if the evidence before the decision-maker is sufficient to establish, on the balance of probabilities, that the applicant has “satisfied” each of the elements specified in items 5(a)(i) and (ii) or (iii) of IMMI12/097.
Satisfied
Ms Wagner argues that the Minister’s use of the word ‘satisfied’, rather than the language of s 289A(c), leaves open the possibility that the prescribed exam may be “passed” if the person is able to establish a level of proficiency that exceeds the specified exam requirements. On this construction, a person may be taken to have passed the prescribed exam if the available evidence establishes that the person has either undertaken the exam or an equivalent or comparable assessment or test and achieved a pass or higher result.
The purpose of using the language of satisfaction when specifying the prescribed exam is not clear, but it may allow some latitude when determining how the specified exam requirements may be “satisfied”. Unavoidably, however, a decision-maker must be satisfied that the person has passed both limbs of the prescribed exam, and met the specified requirements in respect of each limb, within the prescribed period.[13] This requires, at the minimum, allocation of a pass mark, score or grade by an examiner or an assessor once the person has undertaken the prescribed exam, as specified by the Minister.
[13] Chen v Migration Agents Registration Authority (No 2) [2016] FCA 865 at [25] to [37].
Conceivably, it may be possible to satisfy the prescribed exam specified by the Minister in some limited circumstances where an assessment has been made that the person meets or exceeds the minimum requirement to pass the exam. An assessment of this kind would need to be established by evidence and it would, necessarily, have to address the particular requirements of the prescribed exam specified by the Minister – broad or imprecise assessments of equivalence would not be sufficient for this purpose.
Common assessment items
Ms Wagner argues that there is ambiguity in the language used to describe the exam set out in item 5(a)(i), particularly the phrase “‘the common assessment items relating to registration’ which form part of the prescribed course specified at item (2)”.
The phrase is not given any special meaning, and I see no reason why the words used should not be given their ordinary meaning in common usage. The reference to “common assessment items” forming ”part of the prescribed course” can readily be understood to mean the assessment items in the course that are common to all students undertaking it: the items of the prescribed course against which students undertaking the course are to be assessed. In this context, assessment means the objective measure or evaluation of a student’s achievement in the particular item against a common benchmark, scale or standard. This is commonly expressed in marks and or grades.
Does Ms Wagner satisfy the prescribed course exam requirements?
Ms Wagner asserts that she has satisfied the requirement to pass a prescribed exam. She accepts that there is no discretion to excuse her from undertaking the prescribed exam, and she does not press her case on that basis. An external credit, she argues, is sufficient to satisfy the common assessment items in the Graduate Certificate course prescribed by the Minister as the first limb of the “exam”.
Item 5(a)(i) of IMMI12/097 does not specify a minimum threshold mark or grade necessary to pass the “common assessment items” in the prescribed course. Nevertheless, it is quite clear that the test requires an assessment in each of the items relating to registration that all students must pass to graduate from the course. At the minimum, an applicant for registration must be assessed as satisfying or passing the course learning and competency outcomes.
I would not construe this test too narrowly. It would have been a matter of simplicity for the Minister to specify that a particular mark or grade is required in the common assessment items, much as he has done in respect of the second limb of the prescribed exam in items 5(a)(ii) and (iii); but this was not done. To my mind, determination of whether the applicant has passed this limb of the prescribed exam relies upon an assessment by the university conducting the course of the extent to which the person meets or exceeds the minimum learning outcomes necessary to pass each of the common assessment items in the course. An assessment of this kind may commonly be obtained by testing in an examination on completion of each subject or on completion of the course, but it may also be obtained by assessment of prior educational results in an equivalent subject or a comparable course.
There are four common assessment items relating to registration in the ANU Graduate Certificate in Migration Law and Practice course. An assessment was made in each of these items in Ms Wagner’s case. In each item she earned six units. In three subjects, she achieved 75 or more marks and distinction grades. In the fourth subject, LAWS8170 Applied Migration Law, she was assessed to have an STE grade ‘external credit’ in recognition of prior learning. Of this assessment, the ANU said “Was granted approval for Recognition of Prior Learning (RPL) for LAWS8170 having satisfied required learning outcomes, competency outcomes and standard for completion of this course”.[14]
[14] T5 folio 22.
These assessments were sufficient for the ANU to award Ms Wagner a Graduate Certificate in Migration Law and Practice. And to my mind, they are sufficient to establish that Ms Wagner satisfied the test set out in item 5(a)(i) of IMMI12/097 in respect of the first limb of the exam prescribed by reg 5(3)(a), such that she may be taken as having “passed the prescribed exam” for the purposes of s 289A(c) of the Migration Act.
Does Ms Wagner satisfy the English language exam requirements?
Ms Wagner accepts, correctly, that the prescribed English language ‘exam’ specified by the Minister does not allow for substantial compliance.[15] She argues that her English language proficiency is already established at an equivalent or higher standard and she should not be required to sit further English language tests. The second limb of the “exam”, requiring English language testing, is satisfied, so her argument goes, because she has proven English language proficiency and the Commonwealth is estopped from requiring her to undertake further English language testing. She contends that this is so because the Commonwealth previously accepted that she has English language proficiency sufficient for NAATI accreditation as a Professional Translator, registration as a trade mark attorney and admission to legal practice. She asserts that her prior dealings with agencies of the Commonwealth include representations about on which she relied and conventional dealings that cannot be denied in respect of her English language proficiency. Furthermore, she maintains that requiring her to undertake further English language testing is an unconscionable exercise of power that runs contrary to assumptions she formed and relied upon in dealings with the Commonwealth in respect of her English language proficiency.
[15] Chen v Migration Agents Registration Board (No 2) [2016] FCA 865 at [37].
In addressing these matters, I will deal first with the English language testing issue.
The prescribed English language exam has been specified by the Minister in items 5(a)(ii) and (iii) to include one of two specific English language tests. The minimum scores in each test (and sub-test) are specified. The tests are set and the minimum scores necessary for these to be satisfied are quite clear and unambiguous.
Ms Wagner did not sit either of the specified English language tests.
I should say at this point that the present evidence establishes that Ms Wagner has a high level of English language proficiency. She has been excused further English language testing by the Legal Profession Admission Board in NSW and she has obtained NAATI accreditation as a Professional Translator in the English and German languages. I accept that her translation expertise has been applied in legal and government contexts, as well as in practice as a registered Trade Mark Attorney and in the course of her post-graduate tertiary studies.
The central question is whether she can satisfy the specific English language exam requirements specified by the Minister without having undertaken either of the specific tests for the purposes of her application for registration as a migration agent. Ms Wagner argues that the testing she undertook for NAATI accreditation as a Professional Translator is sufficient to establish that she achieved the minimum scores necessary to pass the prescribed English language exam for registration as a migration agent. I have received and considered the materials she has provided in support of this proposition.
I must say there is some force to her submissions on this point and I was initially attracted to the possibility that NAATI accreditation testing might be sufficient to satisfy the English language exam, as she contends. But on close consideration, there are some difficulties with this that are not surmountable in her case.
Ms Wagner’s NAATI accreditation is as a Professional Translator. The testing undertaken to achieve this accreditation is set out in the NAATI “Accreditation by Testing Information Booklet” (Booklet A) at pages 16 and 17.[16] As can be seen, NAATI Professional Translator testing does not include a spoken English language component, such as the ‘Dialogue interpreting’ requirement that applies under NAATI Professional Interpreter testing.[17]
[16] Accreditation by Testing Information Booklet, Booklet A, National Accreditation Authority for Translators and Interpreters Limited, Version 3.8 – October 2016.
[17] Ibid, page 14.
Comparison of the NAATI Professional Translator testing regime to the regime NAATI applies for accreditation by other means, as set out in “Accreditation by Overseas Qualification, Professional Association Membership or Advanced Standing Information Booklet” (Booklet C),[18] does not assist her. The English language proficiency requirements specified for accreditation at the Professional level are –
Applicants must hold IELTS … scores of:
Accreditation at the Professional level:
- At least 7.0 (academic) for reading and writing (or equivalent scores in any other English proficiency test recognised by NAATI) if accreditation is being applied for as a translator.
Accreditation at the Conference Interpreter or Advanced Translator levels:
- At least 7.5 (academic) for reading and writing (or equivalent scores in any other English proficiency test recognised by NAATI) if accreditation is being applied for as a translator ; or
- At least 7.5 (academic) for speaking and listening (or equivalent scores in any other English proficiency test recognised by NAATI) if accreditation is being applied for as a interpreter.[19]
[18] Accreditation by Overseas Qualification, Professional Association Membership or Advanced Standing Information Booklet, Booklet C, National Accreditation Authority for Translators and Interpreters Limited, Version 2.10 – July 2016.
[19] Ibid, page 5.
As can be seen, there is no requirement under the NAATI accreditation regime for a Professional Translator (or an Advanced Translator) to be tested in all four subtests (speaking, listening, reading and writing) item 5(a)(ii) or (iii) of IMMI 12/097 requires, even though higher IELTS scores are required for NAATI accreditation in the subtests that are taken than those specified in item 5(a)(ii).
For this reason, Ms Wagner’s NAATI accreditation is not sufficient to establish that she satisfies the prescribed English exam requirement for ‘a minimum score of 6.5’ in all four subtests of the IELTS test for the purposes of item 5(a)(ii) of IMMI 12/097 and reg 5(3)(b).
A further difficulty arises in respect of the prescribed time in which a person must apply for registration as a migration agent after completing a prescribed exam. In the case of the English language exam specified in item 5 of IMMI 12/097, a 24 month limit applies. Ms Wagner obtained NAATI accreditation on 23 November 2010. Her accreditation was valid for three years. In order to retain the accreditation after this time, Booklet A provides that “the accredited individual must meet the revalidation requirements for work practice and professional development”.[20] It may be accepted that Ms Wagner did so, as her accreditation was revalidated for another three years.
[20] Accreditation by Testing Information Booklet, Booklet A, National Accreditation Authority for Translators and Interpreters Limited, Version 3.8 – October 2016, page 21.
This notwithstanding, Ms Wagner did not apply for registration within 24 months of undertaking the NAATI test. Thus, even if the NAATI Professional Translation test was found to be sufficient to establish that she satisfied the prescribed English language exam, and I make no such finding, it would not assist her, as her application for migration agent registration was outside the prescribed period.
Estoppel issues
Ms Wagner asserts that the Commonwealth is estopped from requiring her to undergo an English-language test of the kind set out in IMMI12/097 by reason of representation and convention. This is so, in her submission, because her prior dealings with the Commonwealth are sufficient to establish the facts necessary to establish estoppels of these kinds. Furthermore, she contends that the Commonwealth is estopped on equitable grounds, as her English language proficiency has been accepted previously by the Commonwealth and it would be unconscionable for the Commonwealth to require her to prove her English language proficiency again.
The Authority contests the factual basis of the estoppels for which Ms Wagner contends and raises serious questions about the extent to which, if at all, estoppels of the kinds pressed can arise in the context of administrative law and Commonwealth administrative decision-making.
I further note the cases cited by the parties and the papers Ms Wagner handed up during the hearing.
There are two pertinent questions that must be answered in resolving whether Ms Wagner can avail herself of estoppel of the kinds she has raised. The first is whether, and in what circumstances, can the Tribunal grant an estoppel of the kinds requested in principle. The second is, if the Tribunal has the power to grant an estoppel, whether or not Ms Wagner has successfully met the conditions for an estoppel to be granted in her case.
There are two components to the first question. First, whether an estoppel can be issued against an officer of the Commonwealth. Second, whether it can be issued by this Tribunal. An estoppel cannot prevent an officer of the Commonwealth from performing a statutory duty or from exercising a statutory discretion,[21] and an estoppel cannot extend the authority of a decision-maker beyond that conferred by the statute.[22] Within these bounds, between conferral of jurisdiction and the doctrine of ultra vires, the possibility of equitable estoppel or estoppel in pais, by representation or by convention, may be conceived in a public law context. This conception is unhelped by reference to legitimate expectation.[23] But in a wilderness of single instances where, without the force of good authority, disparate individual cases come up against powerful considerations relating to statutory law, public policy, operational fairness, personal expectations and private interests, the conception is fraught with risk of jurisdictional error. Nevertheless, estoppel of the kinds Ms Wagner has raised cannot, summarily, be ruled out.
[21] Attorney-General (NSW) v Quin [1990] HCA 21, per Mason J at 23-25, per Brennan J at 16-18.
[22] Singh v Minister for Immigration (2011) FCAFC 27 at [48]; Formosa v Secretary, Department of Social Security (1988) 46 FCR 117, per Davies and Gummow JJ at 125.
[23] Kaur v Minister for Immigration and Citizenship [2012] HCA 31, per Gummow, Hayne, Crennan and Bell JJ at [65].
As Gummow J said in Minister for Immigration and Ethnic Affairs v Kurtovic[24] at [27] – “It remains to be seen whether there develops in this country any exception or qualification to the ultra vires doctrine which relies upon principles of ostensible authority and presumptions of regularity drawn from the law of agency in private law and from company law”. That observation made in 1990 holds good today.
[24] [1990] FCA 22.
Consequently, the door may be open for an estoppel to be granted. However, there is significant reason to doubt that an estoppel of this nature could be granted by this Tribunal. The Tribunal is a creature of statute. It is not a court. It exercises jurisdiction conferred by legislation and when exercising jurisdiction – reviewing administrative decisions – it must apply the legislation and the law. Its role is further distinguished from those of the courts because the Tribunal reviews the merits of a case as if it were the original decision maker, rather than the legality of the original decision. In this context, as the Tribunal said in Millner and Secretary, Department of Social Services:[25]
The proper course for persons asserting a right to equitable relief depending on equitable estoppel is to seek to have the right determined in a court exercising equitable jurisdiction but not to expect such right to be determined by a purely statutory Tribunal. It would take clear words, in the Tribunal's opinion, to confer such jurisdiction upon it or upon the Secretary.[26]
[25] [1986] AATA 287.
[26] Ibid at [15].
Here, not only is no jurisdiction to grant an estoppel of the kinds requested available under the Migration Act, but the particular decision is one involving a mandatory bar – Ms Wagner “must not be registered” “unless” the decision-maker is satisfied she has completed the prescribed course and passed the prescribed exam within the prescribed period, or she holds prescribed qualifications (which she does not). The mandatory nature of the legislation is quite clear – unless the prescribed exam has been passed (which it has not), Ms Wagner must not be registered as a migration agent.
In a case such as this, where the legislation is clear and unambiguous, departure from the statutory terms so clearly expressed would lead to jurisdictional error. And it is through this narrow lens that Ms Wagner’s assumption of Commonwealth singularity must be viewed. Her reliance on s 64 of the Judiciary Act 1903 does not properly take account of the multifarious purposes of Commonwealth statutory expression or indeed of the unique role the Tribunal plays in the Australian justice system. Just as the exercise of a statutory power or duty for a particular purpose does not have a general application, so too the specific result of action taken in exercise of a statutory power or duty should not be given a general effect.
The Tribunal must apply the legal framework within which the decision is to be made, and it must do so fairly in exercise of the jurisdiction conferred upon it. Unfairness that results from application of the legislation itself, whether intended or not, may not be amenable to remedy by the Tribunal outside the legislative frame. No such issue arises here, however.
For these reasons, to my mind, the Tribunal lacks the authority to grant an estoppel of the kinds requested by Ms Wagner.
Even if the Tribunal did have the authority to grant an estoppel of the kinds requested, the requirements for an estoppel to be granted have not been made out. There are two key elements to consider. The particular nature and character of the decision to be made under the legislation, and the factual basis of Ms Wagner’s assertions of estoppel.
The decision to be made is whether Ms Wagner meets the requirements for registration as a migration agent. It is one that gives expression and force to policy, and in that regard it may be considered to be operational. As I mentioned above, the decision to be made does not involve exercise of discretion, but rather involves applying a policy benchmark or threshold established by operation of the legislation and conferral of authority on the Minister, below which registration is not permitted. Departure from the established policy would, itself, require a policy decision. A decision of this kind is to be distinguished from decisions of the kind that arose in Commonwealth v Verwayen,[27] involving private actions against the Commonwealth operating in a public law context.
[27] [1990] HCA 39.
As I have said, it is not open for a decision-maker to register Ms Wagner as a migration agent unless she has satisfied each of the statutory requirements in respect of the prescribed course, the prescribed exam and the prescribed period. An estoppel could not extend the decision-maker’s authority in this way, just as it could not authorise the decision-maker to dis-apply or to step around the mandatory bar. Furthermore, an estoppel cannot impose a constraint upon the exercise of statutory duty under s 289A of the Migration Act, requiring a decision-maker to exercise the duty in a particular way for example – for example, an estoppel cannot require a decision-maker to determine that Ms Wagner satisfies the prescribed exam if, in fact, she does not.
This case does not provide any firm basis on which to depart from established principle, such as that stated by Davies and Branson JJ in Minister for Immigration and Ethnic Affairs v Polat[28] at [22] – “… a court may not relieve against non-compliance with a requirement which the statute intends shall be satisfied”.
[28] [1995] FCA 1204.
For this reason, alone, the estoppel for which Ms Wagner contends must fail – the English language proficiency exam prescribed for the purposes of s 289A(c) cannot be voided by operation of an estoppel.
Even if an estoppel could operate to achieve the result Ms Wagner seeks, which in my view it cannot, the facts necessary to establish estoppel of the various kinds she has raised are not made out.[29]
[29] See discussion in Legione v Hateley [1983] HCA 11, per Mason and Deane JJ at [3] - [11].
It can be accepted that Ms Wagner obtained NAATI accreditation as a Professional Translator in the English and German languages, and that her translation skills have been utilised by “an Australian Government Department” and other entities.[30] The Professional Standards Board of Patent and Trade Mark Attorneys did not require her to undergo English language testing prior to registration. She obtained exemption, prospectively, from English language testing from the Legal Profession Admissions Board in NSW.
[30] Applicant submissions, 18 July 2016, page 5.
It is not established that representations were made to Ms Wagner by an agent of the Commonwealth, acting properly, that her English language skills were sufficient to meet the legislative tests for registration as a migration agent. All that can be said on the present materials is that Ms Wagner formed an assumption about previous assessments of her English language proficiency by NAATI, the Professional Standards Board of Patent and Trade Mark Attorneys and the Legal Profession Admissions Board in NSW, and in respect of her contractual dealings with one or more Commonwealth agencies, on which she relied for present purposes. But this is not sufficient to establish that a representation of relevant fact was made to her on which she relied to her detriment, such that an estoppel by representation might now arise in the present circumstances.
Particularity is required in respect of the representation made. The factual basis and the causal relationship between the representation and the alleged detriment must be clearly and precisely made out. This is especially relevant in a case of the present kind, in which Ms Wagner’s assumption is based on an assumption allegedly arising from an implied representation or convention in respect of one thing, contractual use of her English language translation accreditation for example, and the alleged detriment arises from circumstances involving another, her application for registration as a migration agent.
The present evidence does not establish that an officer of the Commonwealth made a representation to Ms Wagner that her English language skills were sufficient to satisfy the legislative requirements for registration as a migration agent. In fact, an officer of the Authority informed her that she would be barred from registration unless she satisfied the prescribed exam. I understand from her own evidence that Ms Wagner was provided with similar advice by the ANU.
NAATI accreditation and Ms Wagner’s engagements as a translator may go some way to establish a basis of actual or assumed convention in respect of acceptability of her English language proficiency for particular Commonwealth purposes. But the available materials do not establish the existence of a customary practice, sufficient to establish an implied term of contract, between the Commonwealth and Ms Wagner, in respect of her English language proficiency, generally or for present purposes. The proposition that acceptance and accreditation of her English language skills for particular purposes should be construed as having a general application for other unrelated purposes cannot be accepted. The facts necessary to establish estoppel by convention are not made out.
The proposition that the requirement for Ms Wagner to undergo further English language testing is unconscionable and is estopped on equitable grounds must also be rejected. I am not persuaded that it is unconscionable for the Commonwealth, acting properly, to require statutory requirements for registration as a migration agent to be adhered to. Quite clearly, the purposes of those requirements include setting objective benchmarks for knowledge and competency in respect of the migration law and the English language. It is by adherence to such benchmarks that consistent standards may be maintained in the fair and just assessment of applicants for registration.
Ms Wagner asserts that she will be put to additional costs if she has to sit further English language tests, and that may be so. But it is not unconscionable that she be required to do so when the same tests apply to all applicants within the terms of reg 5(3). Furthermore, Ms Wagner embarked upon the course she has set in full knowledge of the requirements. Factual grounds for equitable estoppel are not made out.
Consequently, the Tribunal cannot grant estoppel of the kinds requested in principle or through application of the present facts.
Conclusion
Ms Wagner has not satisfied the legislative test in respect of English language testing for the purposes of her application for registration as a migration agent. It follows, under s 289A of the Migration Act, that she cannot be registered as a migration agent and her application must fail.
That being so, the decision under review must be affirmed.
I do not need to recall the parties to hear further submissions on the Constitutional issue Ms Wagner raised, pressed, dropped and then raised again. The proposition that the fee charged for English language testing involves the imposition of a tax is unlikely to succeed. Even if it did succeed, and the Minister’s Instrument IMMI12/097 was found to be invalid in that regard, it would not change the result. Absent an exam specified by the Minister for the purposes of reg 5(3)(b) and s 289A(c) of the Migration Act, the Tribunal could go no further and Ms Wagner’s application would necessarily fall into that void.
Decision
Decision affirmed.
I certify that the preceding 79 (seventy -nine) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ..............[sgd]..........................................................
Associate
Dated 29 November 2016
Date of hearing 25 August 2016 Applicant In person Solicitors for the Respondent Clayton Utz
9
0