Chen v Migration Agents Registration Authority (No 2) [2016] FCA 865

Chen v Migration Agents Registration Authority (No 2) [2016] FCA 865

The applicant's construction of IMMI 12/097 was untenable because the text of s 289A of the Migration Act 1958 (Cth), reg 5(3) and reg 5(4) of the Migration Agents Regulations 1998, and Item 5 of IMMI 12/097 expressly required passing a prescribed exam with specified minimum scores, not merely demonstrating an equivalent English proficiency standard by other evidence. The level of prescription and the prohibitive terms of s 289A also meant that the requirement was not capable of satisfaction by substantial compliance. Accordingly, the AAT did not err in concluding that the review application had no reasonable prospect of success under s 42B(1)(b).

Jurisdiction
Australia
Judgment Date
02 August 2016
Procedural Posture
Appeal on a Question of Law Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) From a Decision of the Administrative Appeals Tribunal / Federal Court Judgment on Appeal From the Aat's Summary Dismissal of the Applicant's Review Application Under S 42 B(1)(b)
Outcome
Leave granted to the first respondent to rely on the notice of objection to competency; objection to competency dismissed; appeal dismissed; applicant ordered to pay the first respondent's costs of the appeal.
Legal Topics
['appeal From Administrative Appeals Tribunal' 'summary Dismissal for No Reasonable Prospect of Success' 'registration as a Migration Agent' 'english Language Proficiency Requirements' 'statutory Construction' 'substantial Compliance' 'objection to Competency']
['administrative Law' 'migration Law' 'practice and Procedure'] ['appeal From Administrative Appeals Tribunal' 'summary Dismissal for No Reasonable Prospect of Success' 'registration as a Migration Agent' 'english Language Proficiency Requirements' 'statutory Construction' 'substantial Compliance' 'objection to Competency']

Case Brief

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Procedural Posture

Appeal on a Question of Law Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth) From a Decision of the Administrative Appeals Tribunal / Federal Court Judgment on Appeal From the Aat's Summary Dismissal of the Applicant's Review Application Under S 42 B(1)(b)

Legal Issues

  1. 1 ["Whether the AAT erred in concluding that the applicant's review application had no reasonable prospect of success within the meaning of s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth)." 'Whether ss 289A and 290(1)(a) of the Migration Act 1958 (Cth), reg 5 of the Migration Agents Regulations 1998 and Ministerial Instrument IMMI 12/097 required the applicant to pass a specified English language proficiency test, or merely to demonstrate an equivalent standard of English proficiency.' 'Whether the English language proficiency requirement in IMMI 12/097 was capable of satisfaction by substantial compliance.' 'Whether the amended notice of appeal identified a question of law sufficient to make the appeal competent under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).']

Ratio Decidendi

The applicant's construction of IMMI 12/097 was untenable because the text of s 289A of the Migration Act 1958 (Cth), reg 5(3) and reg 5(4) of the Migration Agents Regulations 1998, and Item 5 of IMMI 12/097 expressly required passing a prescribed exam with specified minimum scores, not merely demonstrating an equivalent English proficiency standard by other evidence. The level of prescription and the prohibitive terms of s 289A also meant that the requirement was not capable of satisfaction by substantial compliance. Accordingly, the AAT did not err in concluding that the review application had no reasonable prospect of success under s 42B(1)(b).

Court Disposition

Leave granted to the first respondent to rely on the notice of objection to competency; objection to competency dismissed; appeal dismissed; applicant ordered to pay the first respondent's costs of the appeal.

Orders

  • ['Leave be granted to the first respondent to rely upon the notice of objection to competency dated 21 June 2016.' 'The notice of objection to competency be dismissed.' 'The appeal be dismissed.' "The applicant pay the first respondent's costs of the appeal, as agreed or assessed."]