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…
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- AGLC
- Wagner and Migration Agents Registration Authority [2016] AATA 957
- Case
- [1986] AATA 287
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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