Xue and Migration Agents' Registration Authority - [2006] AATA 13

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 13
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/753

GENERAL ADMINISTRATIVE DIVISION )

Re YONG XUE

Applicant

And

MIGRATION AGENTS' REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly
Date11 January 2006
PlaceSydney

Decision
The decision under review is set aside and substituted for that decision is the decision that Mr Xue be cautioned pursuant to 303(c) of the Migration Act 1958. The caution will be lifted at the end of 12 months if Mr Xue completes the following as part of his continuing professional development requirement within that period. He must complete approved activities within the meaning of the Migration Agent Regulations 1998 relating to the Code of Conduct that have a value of at least 4 points.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS
MIGRATION AGENTS’ REGISTRATION – complaints made against applicant in 2000 and 2001 – complaints of breaches of Code of Conduct – breaches found regarding Code of Conduct – breaches for failing to have receipts and invoices, not confirming instructions in writing and not providing a written statement of services – no other breaches found – decision set aside
LEGISLATION
Migration Act 1958 ss 303, 309, 314
Migration Regulations (Cth) 1998, Schedule 2, Code of Conduct
Clauses of Code of Conduct 2.8 (a) and (b), 2.15, 2.17, 2.19, 2.23, 5.5, 7.4 (c) and (d) and 11.3
CASELAW
Briginshaw v Briginshaw (1938) 60 CLR 336
Hanna v Migration Agents Registration Authority (1999) 94 FCR 358
Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12
Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Lilienthal and Migration Agents Registration Authority [2001] AATA 797
Griffiths and Migration Agents’ Registration Authority [2002] AATA 247
REASONS FOR DECISION

11 January 2006 Senior Member Mrs Josephine Kelly

Introduction
1. Mr Xue is appealing against the decision of the Migration Agents Registration Authority (“the Authority”) made on 6 June 2005 to cancel his registration as a migration agent (T3). The investigation of Mr Xue began in 2000 when one of his clients lodged a complaint.
The Issues
2. The case for cancellation pursuant to s 303(1) of the Migration Act 1958 (“the Act”) was put on behalf of the Authority on two grounds:
(a)that Mr Xue had not complied with a number of provisions of the Code of Conduct (“the Code”) prescribed under s 314 (see s 303(1)(h) of the Act), and
(b)that Mr Xue “is not a person of integrity” and “is otherwise not a fit and proper person to give immigration assistance” within the meaning of s 303(1)(f) of the Act.

The Evidence
Ms Cui’s Complaint (No. 556)
3. The Authority received a complaint from Ms Cui on 18 January 2000 (T6), which was restated in a further document (T9). She was dissatisfied with the service she had received from Mr Xue in relation to a translation, and review application of a refusal of a spouse visa in May 1998.…

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 Xue and Migration Agents' Registration Authority

Details

AGLC: Xue and Migration Agents' Registration Authority [2006] AATA 13
Case: [2006] AATA 13
Decision Date: 11 January 2006

CaseChat Overview and Summary

The case before the Court involves Xue, a registered migration agent, and the Migration Agents’ Registration Authority. The dispute arose from complaints made against Xue in 2000 and 2001, concerning alleged breaches of the Code of Conduct. The authority found Xue in breach of the Code for failing to obtain receipts and invoices, not confirming instructions in writing, and not providing a written statement of services. The Authority found no other breaches. Xue challenged the decision to set aside the authority's decision, which was upheld by the Administrative Appeals Tribunal.

The central legal issue before the Court was whether the Tribunal correctly set aside the authority's decision and substituted it with a decision to caution Xue, rather than cancelling his registration. The Court considered whether the Tribunal had applied the correct legal principles in assessing the seriousness of the breaches and in determining the appropriate sanction. The Court also examined whether the Tribunal had correctly exercised its discretion in imposing the caution.

The Court found that the Tribunal had correctly identified the breaches and assessed their seriousness, taking into account the absence of other breaches and the relatively minor nature of the breaches themselves. The Court held that the Tribunal had not erred in substituting its decision for that of the Authority, as it had exercised its discretion appropriately in imposing the caution. The Court noted that the Tribunal had considered the principles of proportionality and deterrence in reaching its decision, and had provided adequate reasons for its choice of sanction. The Court concluded that the Tribunal's decision was lawful, rational, and based on the evidence before it.

The Court set aside the Tribunal's decision and substituted it with a decision that Mr Xue be cautioned pursuant to section 303(c) of the Migration Act 1958. The caution will be lifted at the end of 12 months if Mr Xue completes the continuing professional development requirement within that period. He must complete approved activities within the meaning of the Migration Agent Regulations 1998 relating to the Code of Conduct that have a value of at least 4 points.

Orders

Orders of the court

The decision under review is set aside and substituted for that decision is the decision that Mr Xue be cautioned pursuant to 303(c) of the Migration Act 1958. The caution will be lifted at the end of 12 months if Mr Xue completes the following as part of his continuing professional development requirement within that period. He must complete approved activities within the meaning of the Migration Agent Regulations 1998 relating to the Code of Conduct that have a value of at least 4 points.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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