Wagner and Migration Agents Registration Authority - [1986] AATA 287

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…

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 Wagner and Migration Agents Registration Authority

Details

AGLC: Wagner and Migration Agents Registration Authority [2016] AATA 957
Case: [1986] AATA 287
Decision Date: 29 November 2016

CaseChat Overview and Summary

This matter concerned an application for review of the Migration Agents Registration Authority's decision to refuse registration to Ms Eva Wagner. Ms Wagner, an Australian citizen with German legal qualifications and extensive experience as a translator, had applied for registration as a migration agent. Her application was rejected on the basis that she did not meet the prescribed requirements for registration, specifically concerning a prescribed course and English language testing.

The Tribunal was required to determine the meaning of "passed a prescribed exam" and "common assessment items" in the context of the prescribed course, and whether Ms Wagner's qualifications and academic achievements satisfied these requirements. Additionally, the Tribunal had to consider whether Ms Wagner's accreditation as a translator and her exemption from English language testing by the Legal Profession Admission Board of New South Wales met the minimum score requirements for English language proficiency. The Tribunal also considered arguments relating to substantial compliance, estoppel by representation, estoppel by convention, and equitable estoppel.

The Tribunal found that Ms Wagner's completion of three subjects with distinction and the granting of external credit for a fourth subject did not equate to passing a prescribed exam as required by the legislation. The external credit, or "STE grade," did not involve a score and therefore did not establish that she had met the required standard for that subject. Furthermore, the Tribunal held that her accreditation as a translator and the exemption from IELTS did not satisfy the specific minimum score requirements for both the overall English test and its sub-tests. The Tribunal concluded that substantial compliance was not sufficient and that the facts required to establish any form of estoppel were not proven.

The Tribunal affirmed the decision of the Migration Agents Registration Authority to refuse Ms Wagner's application for registration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL DIVISION
File Number	2016/1615
Re	Eva Wagner
APPLICANT
And	Migration Agents Registration Authority
RESPONDENT

Tribunal	Mr S. Webb, Member
Date	29 November 2016
Place	Canberra