Shi v Migration Agents Registration Authority

• Jurisdiction: Australia Federal only
• Judge: Kirby J,Hayne,Heydon JJ,Crennan J,Kiefel J
• Judgment Date: 30 July 2008
• Neutral Citation: [2008] HCA 31,2008-0730 HCA C
• Docket Number: S522/2007
• Court: High Court
• Date: 30 July 2008

[2008] HCA 31

HIGH COURT OF AUSTRALIA

Kirby, Hayne, Heydon, Crennan and Kiefel JJ

S522/2007

Nelson Guang Lai Shi

Appellant

and

Migration Agents Registration Authority

Respondent

Representation

T A Game SC with N C Poynder for the appellant (instructed by KGA Lawyers)

S J Gageler SC with S B Lloyd for the respondent (instructed by Australian Government Solicitor)

Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 43.

Migration Act 1958 (Cth), ss 303, 304A, 306.

Shi v Migration Agents Registration Authority

Administrative law — Application for review by Administrative Appeals Tribunal (‘Tribunal’) — Decision by Migration Agents Registration Authority (‘the Authority’) to cancel registration of migration agent — Tribunal's task to determine what was the correct or preferable decision — Whether Tribunal should determine what was the correct or preferable decision when the Authority made its decision, or whether Tribunal should determine the correct or preferable decision as at the time of its own decision — Necessity for close attention to the applicable legislative provisions.

Immigration — Migration agents — Registration and cautioning of migration agents — Power of the Authority to set out one or more conditions for the lifting of a caution given to registered migration agents — Tribunal (exercising for itself the powers and discretions conferred on the Authority) cautioned a migration agent and imposed conditions for the lifting of that caution — Conditions imposed restricted migration agent from providing assistance with protection visas and from working without supervision of another registered migration agent — Whether conditions could be imposed that seek to qualify a registered migration agent's right to use that registration — Whether conditions imposed were inconsistent with the legislative scheme for registration of migration agents.

Statutes — Construction — Powers of Tribunal to substitute its decision for a decision of an administrator — Proper approach to ambit and application of power — Necessity for close attention to the applicable legislative provisions — Necessity for attention to purpose and history of legislation — Whether any general presumption as to determination of the rights of parties — Relevance of the constitution, functions and general powers of Tribunal.

Words and phrases — ‘correct or preferable decision’, ‘decision made in substitution for the decision so set aside’.

ORDER

• 1. Appeal allowed with costs.

• 2. Set aside the orders of the Full Court of the Federal Court of Australia made on 27 April 2007 and, in their place, order that:

  • (a) the appeal to that Court be allowed with costs; and

  • (b) the orders of the Federal Court of Australia made on 15 September 2006 and 27 November 2006 be set aside and, in their place, it be ordered that the appeal to that Court be dismissed with costs.

1 Kirby J. This appeal arises from a divided decision of the Full Court of the Federal Court of Australia 1. In that Court, a majority (Nicholson and Tracey JJ; Downes J dissenting) affirmed orders made by the primary judge (Edmonds J) 2. The primary judge had heard an ‘appeal’ from a decision of the Administrative Appeals Tribunal (‘the Tribunal’), constituted by Senior Member Kelly 3.

2 The Senior Member had set aside a decision of the Migration Agents Registration Authority (‘the Authority’). In place of the Authority's decision to cancel the registration of Mr Nelson Guang Lai Shi (‘the appellant’) as a migration agent (‘agent’) under the Migration Act 1958 (Cth) (‘the Migration Act’), the Tribunal substituted its own decision that the appellant be cautioned. The Tribunal then made orders providing for the ‘lifting’ of that caution at a specified time, upon certain conditions. It took this course in purported pursuance of ss 303 and 304A of the Migration Act.

3 The Authority contests the entitlement of the Tribunal to make the decision that it did. Its arguments are two-fold. First, it contends that the Tribunal erred in its approach by failing to limit its review to the facts and circumstances prevailing at the time of the Authority's decision, instead taking account of those subsisting at the time of review. Secondly, the Authority disputes the power of the Tribunal to give, and then lift, a caution pursuant to s 304A of the Migration Act and on the conditions specified. In the Federal Court, the Authority successfully argued that the Tribunal exceeded its jurisdiction and powers.

4 These reasons will seek to demonstrate that the Tribunal was correct both in the approach that it adopted and in its conclusion that s 304A of the Migration Act authorised it to substitute its decision for that of the Authority. The dissenting opinion of Downes J in the Full Court on each of these points was correct. The appellant is entitled to succeed. The decision of the Tribunal should be restored.

The facts and legislation

5 Registration of migration agents: The appellant was first registered as an agent under the Migration Act in December 1995. Registration is governed by

Div 3 of Pt 3 of that Act 4. The ultimate purpose of registration is to uphold standards of integrity and competence on the part of agents.

6 Responsibility for administering the Register of Migration Agents is reposed in the Authority 5. It may cancel or suspend an agent's registration, or caution an agent, if it becomes satisfied, for example, that the agent is not a person of integrity, or is otherwise not a fit and proper person to give immigration assistance, or if the agent has breached the Code of Conduct prescribed under the Act 6. Registration as an agent is important because only a registered agent may lawfully charge a fee to provide immigration assistance to visa applicants and sponsors 7.

7 The relevant legislation: Section 303(1) of the Migration Act provides:

‘The Migration Agents Registration Authority may:

• (a) cancel the registration of a registered migration agent by removing his or her name from the register; or

• (b) suspend his or her registration; or

• (c) caution him or her;

  if it becomes satisfied that:

• (d) the agent's application for registration was known by the agent to be false or misleading in a material particular; or

• (e) the agent becomes bankrupt; or

• (f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or

• (g) an individual related by employment to the agent is not a person of integrity; or

• (h) the agent has not complied with the Code of Conduct prescribed under section 314.’

8 By s 304A of the Act, it is provided:

‘The Migration Agents Registration Authority may set one or more conditions for the lifting of a caution it gives to a registered migration agent.’

9 And s 306 of the Act provides:

‘Subject to the Administrative Appeals Tribunal Act1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division.’

10 The relevant provisions of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) include s 25(4):

‘The Tribunal has power to review any decision in respect of which application is made to it under any enactment.’

11 The powers of the Tribunal on a review under the AAT Act are relevantly provided by s 43, which includes the following:

‘(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

• (a) affirming the decision under review;

• (b) varying the decision under review; or

• (c) setting aside the decision under review and:

  • (i) making a decision in substitution for the decision so set aside; or

  • (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

…

(6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.’

The decisional history

12 Cancellation of the appellant's registration: The Authority cancelled the appellant's registration as an agent on 14 July 2003. The Authority's decision set out its factual findings and the evidence on which such findings were based, as well as its reasons for taking the course that it did. The Authority found several defects affecting the appellant's dealings with clients; his knowledge of the Migration Act and relevant Regulations; his control of his office, financial and other records; and his supervision of his staff. Many of the breaches of the Code of Conduct found by the Authority related to cases in which the appellant had provided assistance to non-citizens applying for protection visas, sought on the basis of claims to refugee status 8. Having regard to these breaches, the Authority recorded that it was satisfied that the appellant was not a person of integrity or a fit and proper person to give immigration assistance 9.

13 On 31 July 2003, the cancellation decision was stayed by the Tribunal, subject to a condition that the appellant be supervised by another migration agent and comply with an undertaking not to engage in any business relating to protection visas 10.

14 In October 2003 and August 2004, the Authority refused applications by the appellant for repeat registration. In...