[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 408WZANU 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…
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- Case
- [2014] AATA 185
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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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