Shi v Migration Agents Registration Authority
[2007] FCAFC 59 (27 April 2007)(2007) FCR 525
(2007) 240 ALR 23
(Judgment by: Tracey J:)
Nelson Guang Lai Shi
v Migration Agents Registration Authority
Judges:
NICHOLSON
dOWNES
TRACEY JJ
Subject References:
MIGRATION
appeal
cancellation of migration agent's licence
evidence on review of cancellation decision must relate to the date of cancellation rather than the date of review
conditions for lifting of caution are limited to conditions consistent with the migration agent's registration
Legislative References:
Migration Act 1958 (Cth) - ss 276; 280; 280(1); 280(1A); 283; 287; 288; 289A; 290; 292; 303(1); 303(1)(a); 303(1)(c); 304A; 303-305B
Case References:
Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd - [2004] FCA 843; (2004) 138 FCR 428
Australian Tea Tree Oil Research Institute v Industry Research and Development Board - [2002] FCA 1127; (2002) 124 FCR 316
CIC Insurance Ltd v Bankstown Football Club Ltd - [1997] HCA 2; (1995) 187 CLR 384
Commissioner of Taxation (Cth) v McMahon - (1997) 79 FCR 127
Commonwealth v Ford - (1986) 9 ALD 433
Comptroller-General of Customs v Akai Pty Ltd - (1994) 50 FCR 511
Drake v Minister for Immigration and Ethnic Affairs - (1979) 46 FLR 409
Egulian and the Tax Agents' Board of New South Wales, Re - (1991) 22 ATR 3542
Freeman v Secretary, Department of Social Security - (1988) 19 FCR 342
Hospital Benefit Fund of WA Inc v Minister for Health, Housing and Community Services - (1992) 39 FCR 225
Jebb v Repatriation Commission - (1988) 80 ALR 329
Migration Agents Registration Authority v Shi - (2006) 43 AAR 424
Minister for Immigration and Multicultural Affairs v Sharma - [1999] FCA 31; (1999) 90 FCR 513
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed - [2005] FCAFC 58; (2005) 143 FCR 314
Nevistic v Minister for Immigration and Ethnic Affairs - [1981] FCA 41; (1981) 51 FLR 325
Nong v Minister for Immigration and Multicultural Affairs - [2000] FCA 1575; (2000) 106 FCR 257
Judgment date: 27 APRIL 2007
Judgment by:
Tracey J:
58 I agree with Nicholson J that this appeal should be dismissed. I do so for the reasons given by his Honour and for the following additional reasons.
59 The first issue on the appeal ('the temporal issue') falls to be determined having regard to the provisions of Part 3 of the Migration Act 1958 (Cth) ('the Migration Act') and s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). The registration scheme provided for in Part 3 of the Migration Act is primarily concerned with protecting the public (and, in particular, that section of the public which may, from time to time, require advice about matters dealt with in the Migration Act) from unscrupulous or incompetent persons who hold themselves out as being capable of providing immigration assistance or immigration representations for a fee. The regulatory scheme involves an initial assessment of fitness (including competence) when registration is first sought. Once registration is obtained there is an ongoing obligation, imposed on registrants, to maintain required standards. In this sense a discipline is imposed on migration agents.
60 The statutory regulator, the Migration Agents Registration Authority ("MARA") has power, under the Migration Act, to intervene in circumstances where "it becomes satisfied", inter alia, that the agent is "not a fit and proper person to give immigration assistance" or has not complied with the prescribed code of conduct: see s 303(1)(f) and (h). Upon becoming so satisfied MARA may cancel an agent's registration, suspend the agent's registration or caution the agent: see s 303(1)(a), (b) and (c). If MARA takes one of these steps the agent may make an application for review to the Administrative Appeals Tribunal: see s 306. When reviewing a decision the Tribunal is empowered, by s 43 of the AAT Act, to exercise all of the powers and discretions which are conferred in MARA by the Migration Act and may affirm MARA's decision or take one or more of the remedial steps provided for in s 43(1).
61 In the present case the Tribunal proceeded on the basis that it was required to determine, as at the date of its decision, whether the agent was a fit and proper person to provide immigration assistance. As a result it took into account various remedial steps which had been taken by the agent following MARA's decision to cancel his registration. These steps had a material bearing on the Tribunal's favourable assessment of the agent's fitness and propriety (although it was expressed as a double negative: the Tribunal was "not satisfied" that the agent was "not a fit and proper person ...").
62 I agree with the learned primary Judge that, in approaching its task in this way, the Tribunal erred. Section 303(1) of the Migration Act does not provide that disciplinary action may be taken against a migration agent if the agent is not a fit and proper person to provide immigration assistance. The pre-condition for intervention is MARA becoming satisfied that the agent is (no longer) a fit and proper person. Upon becoming so satisfied MARA can take the action prescribed by s 303(1) of the Migration Act. If it decides to cancel registration one consequence is that the agent cannot be re-registered within five years of the date of the cancellation decision: see s 292. These provisions focus attention on the time at which MARA becomes satisfied as to an agent's shortcomings and acts. In my view they support the conclusion to which the primary Judge came, namely, that when the Tribunal came to review MARA's decision, it had to determine whether, on 14 July 2003, when MARA made the decision to cancel the agent's registration, he was or was not a fit and proper person to give immigration assistance.
63 I accept that, in some cases, it may be convenient if the Tribunal were able to have regard to events which occurred after MARA had made its decision even though those events could in no way assist in the formation of the necessary opinion as at the date on which the decision under review was made. An example cited in argument was that of an agent who is convicted of a serious criminal offence whilst his review application is pending. Notions of convenience must, however, yield to the dictates of the legislation. There is, in my view, force in the respondent's argument that the regulatory scheme would be undermined if migration agents understood that they could engage in conduct warranting disciplinary action safe in the knowledge that, if and when MARA became aware of it and took action, they could reform their conduct prior to a hearing before the Tribunal such as to render themselves fit and proper persons and have any disciplinary action taken by MARA set aside. It will, on occasions, be inconvenient for a second set of proceedings to be commenced to deal with an event, such as a criminal conviction, which occurs while an application for review is pending in the Tribunal. However, MARA has the capacity to act speedily to protect the public by cancelling or suspending registration if that is considered to be an appropriate response.
64 The second point raised on the appeal arises because the Tribunal, while declaring itself satisfied that the agent had failed to comply with the code of conduct, determined that the appropriate response was to caution the agent and to further determine that the caution would be lifted on 1 September 2008 if, in the interim, the agent was supervised in his work by a registered migration agent and that the agent did not provide immigration assistance with respect of protection visas. Because the Tribunal set aside MARA's decision to cancel the agent's registration, the result was that the agent remained free to hold himself out as agent but could do so only subject to the conditions imposed by the Tribunal if he wished the caution to be lifted in September 2008.
65 The notion of conditional registration is foreign to the Act. An agent is either registered or he or she is not. If registered the agent may undertake the full range of work comprehended by the terms "immigration assistance" and "immigration representations" as defined in the Migration Act. He or she may do so unsupervised. I agree with the primary Judge that s 304A does not empower MARA (or the Tribunal on review) to do more than provide for steps which must be taken by an agent in order to have a caution lifted, such caution attaching to an unrestricted right to act as a migration agent. Remedial steps may include the taking of courses of instruction as to, for example, the requirements of the code of conduct or some aspect of migration law which are judged necessary in order to improve the level of the agent's competence. However, while these conditions operate, the agent remains registered and able to function as such without restriction. If the agent does not satisfy the condition the only consequence is that the caution remains in place. The public is protected to the extent that particulars of any caution given are recorded in the Register of Migration Agents which is a publicly available document: see s 287(2)(h) and (4).
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.