Seymour v Migration Agents Registration Authority [2006] FCA 965

FEDERAL COURT OF AUSTRALIA

Seymour v Migration Agents Registration Authority [2006] FCA 965 MIGRATION AGENT – application to re-register as migration agent – whether applicant not a person of integrity or otherwise a fit and proper person to give immigration assistance – where decision of Migration Agents Registration Authority held to be invalid by Administrative Appeals Tribunal – where Administrative Appeals Tribunal found applicant not to be a person of integrity or otherwise a fit and proper person to give immigration assistance - failure to disclose prior charges and convictions – failure to disclose contempt of court – failure to disclose prior criminal offence – whether conviction spent for purposes of s 290 of the Migration Act 1958 (Cth) ADMINISTRATIVE LAW – Tribunals – Administrative Appeals Tribunal – Jurisdiction – appeal by applicant to Administrative Appeals Tribunal - application to re-register as migration agent – whether applicant not a person or integrity or a otherwise fit and proper person to give immigration assistance – where decision by Migration Agents Registration Authority held to be invalid by Administrative Appeals Tribunal – effect of invalidity of decision by original decision maker - where Administrative Appeals Tribunal found applicant not to be a person of integrity or otherwise a fit and proper person to give immigration assistance CONTEMPT – whether conviction for contempt by the Supreme Court of NSW a conviction of 'a criminal offence' pursuant to s 290(2)(c) of the Migration Act 1958 (Cth) – whether conviction of contempt by the Supreme Court of NSW a conviction 'of an offence under a law of a State' pursuant to s 312 (1) (e) of the Migration Act 1958 (Cth) – whether contempt charged was criminal or civil – whether distinction between criminal and civil contempt otiose WORDS AND PHRASES - 'an offence under a law of the Commonwealth or of a State or Territory' Held – the tribunal made no error of law in finding that applicant had been convicted of a criminal offence and had failed to declare that he was the subject of a criminal proceeding in his application to Migration Agents Registration Authority; tribunal committed no error of law in finding that applicant had failed to notify the Migration Agents Registration Authority of those matters in accordance with the Migration Act 1958 (Cth); appeal dismissed with costs. A Solicitor v Law Society (NSW) (2004) 216 CLR 253 referred to ACCC v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 referred to Al-Kateb v Godwin (2004) 219 CLR 562 referred to Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314 referred to Attorney-General (NSW) v X (2000) 49 NSWLR 653 referred to Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 referred to Attorney-General v Newspaper Publishing plc [1988] Ch 333 at 377 referred to Australasian Meat Industry Employees' Union v Mudginberri Pty Limited (1986) 161 CLR 98 discussed and followed Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to Australian Building and Construction and Builders Labourers' Federation v David Syme & Co Ltd (1982) 59 FLR 48 referred to Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 referred to Azzopardi v The Queen (2001) 205 CLR 50 referred to Baker v The Queen (2004) 210 ALR 1 referred to Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 referred to Blatch v Archer (1774) 1 Cowp 63 referred tp Blunden v The Commonwealth (2003) 218 CLR 330 referred to Chew v The Queen (1992) 173 CLR 626 referred to Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 referred to Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 applied Commercial Union Assurance Co-op Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 referred to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 referred to D'Orta-Ekenaike v Victorian Legal Aid (2005) 79 ALJR 755 referred to Davern v Messel (1984) 155 CLR 21 referred to Davies v Australian Securities Commission (1995) 59 FCR 221 referred to Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 referred to Doyle v The Commonwealth (1985) 156 CLR 510 followed Fardon v Attorney-General (Qld) (2004) 210 ALR 50 referred to Hinch v Attorney General (Vict) (No 2) (1987) 164 CLR 15 discussed and followed Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) 182 CLR 26 referred to In re Lonrho Plc [1990] 2 AC 154 referred to James v Robinson (1963) 109 CLR 593 referred to Jennison v Baker [1972] 2 QB 52 referred to John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 referred to John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 referred to John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 referred to Kable v DPP (NSW) (1996) 189 CLR 51 referred to Lane v Registrar of Supreme Court of NSW (1981) 148 CLR 245 referred to Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 referred to Mabo v Queensland (No 2) (1992) 175 CLR 1 referred to Meyers v Casey (1913) 17 CLR 90 referred to Minister for Immigration & Multicultural Affairs v SRT (1999) 91 FCR 234 referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed Minister for Immigration v Bhardwaj (2002) 209 CLR 597 referred to Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 followed NSW Bar Association v Somosi (2001) 48 ATR 562 referred to O'Shea v O'Shea & Parnell (1890) 15 PD 59 referred to Onslow's and Whalley's Case (1873) LR 9 QB 219 referred to Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 referred to Plantiff S157/2002 v The Commonwealth (2003) 211 CLR 476 followed Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 followed R v Almon (1765) Wilm 243 referred to R v Burdett (1820) 4 B & Ald 95 referred to R v Hull (1989) 16 NSWLR 385 referred to Re Colina; Ex parte Torney (1999) 200 CLR 386 referred Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 referred to Reg v Gray [1900] 2 QB 36 referred to Rex v Tibbits [1902] 1 KB 77 referred to Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 applied SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 applied Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 referred to Shamadasani v King-Emperor [1945] AC 264 referred to Skipworth's Case (1873) LR 9 QB 230 referred to Stancomb v Trowbridge Urban Council [1910] 2 Ch 190 at 194 referred to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 applied Temora Shire Council v Stein (2004) 134 LGERA 407 referred to The Queen v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 referred to The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation (1981) 147 CLR 471 referred to Thompson v Mastertouch TV Service Pty Ltd [No 3] (1978) 38 FLR 397 referred to Twist v Randwick Municipal Council (1976) 136 CLR 106 applied United Australia Ltd v Barclays Bank Ltd [1941] AC 1 referred to Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 referred to Waterford v The Commonwealth ((1987) 163 CLR 54 referred to Waugh v Kippen (1986) 160 CLR 156 referred to Weaver v Law Society of New South Wales (1979) 142 CLR 201 referred to Weissensteiner v The Queen (1993) 178 CLR 217 referred to Western Australia v The Commonwealth (the Native Title Act case) (1995) 183 CLR 373 considered Williams v The Queen (1986) 161 CLR 278 referred to Witham v Holloway (1995) 183 CLR 525 discussed and followed Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262 referred to and discussed Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 referred to Administrative Appeals Tribunal Act 1975 (Cth) Crimes Act 1914 (Cth) Pt VIIC ss 85ZL, 85ZM Criminal Records Act 1991 (NSW) Judiciary Act 1903 (Cth) s 24 Migration Act 1958 (Cth) ss 290, 303, 312 Supreme Court Rules Pt 55 Aldridge, Eady & Smith on Contempt (3rd ed) Borrie & Lowe: The Law of Contempt (3rd ed) MICHAEL THOMAS SEYMOUR v MIGRATION AGENTS REGISTRATION AUTHORITY NSD 135 OF 2006 RARES J 31 JULY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA