Weiming Qian and Migration Agents Registration Authority - [2014] AATA 185

[2014] AATA 185

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/1073

Re

Weiming Qian

APPLICANT

And

Migration Agents Registration Authority

RESPONDENT

DECISION

Tribunal
Ms N Bell, Senior Member

Date 4 April 2014

Place Sydney
The Tribunal affirms the decision under review.

...[Sgd].....................................................................
Ms N Bell, Senior Member
CATCHWORDS
MIGRATION – Migration agents registration – immigration assistance – fit and proper

person – person of integrity – failure to act in best interests of clients – competence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 290(1), 290(2), 303(1), 314

Migration Agents Regulations 1998 (Cth), Schedule 2

Migration Agents Code of Conduct

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336

Feng v Migration Agents Registration Authority [2002] AATA 709
Jones v Dunkel (1959) 101 CLR 298
Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178
Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558
McDonald v Director-General of Social Security (1984) 1 FCR 354
Re Holbrook and Australian Postal Commission (1983) 5 ALN 35
Re Optimise Group Pty Ltd and Commissioner of Taxation (2010) 119 ALD 585
Re Perring and Australian Postal Corporation (1993) 31 ALD 693
Roszy and MARA [2008] AATA 434
SZMHB v Minister for Immigration & Anor [2008] FMCA 1062
SZNKB & Ors v Minister for Immigration & Anor (No.2) [2009] FMCA 615
SZOOI v Minister for Immigration & Anor [2010] FMCA 816
SZOUS v Minister for Immigration & Anor [2011] FMCA 166
SZOVJ v Minister for Immigration & Anor [2011] FMCA 173
SZOVP v Minister for Immigration & Anor (No 2) [2011] FMCA 442
SZOZL & Anor v Minister for Immigration & Anor [2011] FMCA 273
SZQIG v Minister for Immigration & Anor [2011] FMCA 619
SZQVX v Minister for Immigration & Anor [2012] FMCA 408

WZANU v Minister for Immigration & Anor [2009] FMCA 764
REASONS FOR DECISION
Ms N Bell, Senior Member
4 April 2014

This application by Weiming Qian for review of the decision by the Migration Agents Registration Authority to cancel her registration as a migration agent has some unusual features.
First, the Authority’s decision was consequent upon the receipt of 17 separate complaints over a period of four years.
Second, 14 of those complaints were made by judicial officers, two were from proceedings in the Refugee Review Tribunal and one was made by a client of Ms Qian’s through the client’s solicitor from Victoria Legal Aid.
Third, the individual clients involved in the proceedings from which the 17 complaints arose were all applicants for protection visas. All were unsuccessful. That has meant that they have likely either returned to the countries from which they attempted to migrate to Australia or they cannot be or wish not to be located. I have heard no evidence from any of these individuals.
Fourth, the Applicant for review, Ms Qian, gave no evidence in these proceedings before this Tribunal and no evidence was tendered on her behalf.
One of the consequences of these features has been a paucity of evidence in some…

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.

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Details

Case: [2014] AATA 185
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Weiming Qian, a registered migration agent, sought judicial review of decisions made by the Migration Agents Registration Authority (MARA). The case involved a series of complaints about Ms Qian's conduct as a migration agent, including allegations of providing legal assistance, encouraging groundless applications, failing to act competently and diligently, and making false statements. These complaints led to MARA's decision to cancel Ms Qian's registration. The primary legal issues before the court were whether MARA's decisions were lawful, and if the procedures followed by MARA in cancelling Ms Qian's registration were fair and in accordance with the applicable legislation and common law.

The court examined whether MARA had the authority to cancel Ms Qian's registration under the Migration Act 1958 and the Migration Agents Registration Act 2006. It also assessed if the decisions to cancel the registration were supported by substantial evidence and if the procedures followed by MARA were fair and lawful. The court considered the principles of natural justice and procedural fairness, including whether Ms Qian had been given a reasonable opportunity to respond to the complaints and evidence against her. The court also looked into the evidence's admissibility and whether MARA had acted within its jurisdiction.

After careful consideration, the court found that MARA's decisions were lawful and procedurally fair. The court determined that MARA had the statutory authority to cancel Ms Qian's registration and that the decisions were supported by substantial evidence. The court held that the procedures followed by MARA were in accordance with the principles of natural justice, as Ms Qian had been given a reasonable opportunity to respond to the allegations against her. The court also found that the evidence presented was admissible and that MARA had not exceeded its jurisdiction.

The final orders of the court dismissed Ms Qian's application for judicial review, upholding MARA's decisions to cancel her registration as a migration agent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Before I turn to examine these issues, it is appropriate to summarise the rather complex background to this application, to survey the range of complaints made against her and to note the law relevant to the evidentiary issues raised in this application. BACKGROUND Ms Qian was first registered as a migration agent in August 2003. Her registration was last renewed in August 2011. At the time she was first registered, she was one of two directors, with Mr Xiaohui Li, of a company called Eternity International (Aust) Pty Ltd. Mr Li is Ms Qian’s former husband. He is not a registered migration agent. In April 2004 Ms Qian informed the Authority that Eternity was her primary business. In February 2008, Good Fortune Co, Ms Qian’s own company, was registered and in March 2008 Ms Qian informed the Authority that it was her primary business. In August 2008, Ms Qian informed the Authority that she also worked for Beifang Zhi Jia, owned by Mr Li and registered as a business name of Eternity, as a secondary business. In November 2008, Ms Qian informed the Authority that she had divorced her husband, Mr Li, but still maintained a business relationship with him. In August 2010, Ms Qian removed Beifang as her secondary address. In her renewal of registration in 2011, Ms Qian advised that since 1 August 2010 she had provided migration services only under the business name of Good Fortune. Seven complaints against Ms Qian were received by the Authority from November 2008 to August 2009. The complaints were investigated and closed. Four of the complaints were closed after a warning was given to Ms Qian for breach of clause 4.1 of the Code which concerns accepting work and giving advice for which the agent is not qualified. The other three complaints were closed with a finding that there had been no breach. A further 10 complaints were received between June 2009 and October 2012. Following the receipt of these further complaints, the Authority re-opened the seven previously closed complaints. In addition, the Authority had become aware of concerns about Ms Qian’s business relationship with Beifang. She attended an interview with the Authority about that on 8 August 2008.NATURE OF THE COMPLAINTS The complaints against Ms Qian are from Federal Magistrates, Members of the Refugee Review Tribunal through the Department of Immigration, and from a solicitor from Victoria Legal Aid. Appendix 1 to these reasons is an outline of the complaints, including judicial comment in transcripts or in judgments or the text of complaints made by legal representatives or officers. This outline is taken from material prepared by Counsel for the Authority, Ms Graycar. In essence, the complaints allege that Ms Qian provided legal assistance, encouraged groundless applications, failed to act competently and diligently and made false statements. The complaints allege conduct that falls foul of a wide range of provisions of the Code. Appendix 2 sets out, for reference, the provisions of the Code that are relevant to the conduct alleged.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The agent was the applicant's representative at the time of his Tribunal hearing: see application for review filed 7 January 2009, T 577 page 231.APPENDIX 2 – MIGRATION AGENTS CODE OF CONDUCT Relevant Extracts

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/1073
Re	Weiming Qian
APPLICANT
And	Migration Agents Registration Authority
RESPONDENT

Tribunal	Ms N Bell, Senior Member
Date	4 April 2014
Place	Sydney