Hartnett v Migration Agents Registration Authority [2007] FCA 100

FEDERAL COURT OF AUSTRALIA

Hartnett v Migration Agents Registration Authority [2007] FCA 100 BEAU HARTNETT v MIGRATION AGENTS REGISTRATION AUTHORITY QUD 319 OF 2006

KIEFEL J

6 FEBRUARY 2007

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 319 OF 2006

BETWEEN: BEAU HARTNETT

Applicant

AND: MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

JUDGE: KIEFEL J DATE OF ORDER: 6 FEBRUARY 2007

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. Order number three of the Orders dated 11 August 2003 and 9 February 2004 made by the Administrative Appeals Tribunal in matter numbers Q 2003 of 758 and Q 2004 of 180 be set aside. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 319 OF 2006

BETWEEN: BEAU HARTNETT

Applicant

AND: MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

JUDGE: KIEFEL J

DATE: 6 FEBRUARY 2007

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 It is not necessary to recount the history of this matter which led to the Tribunal making orders in two matters, being applications for review of decisions of the respondent ('the Authority') refusing the applicant registration as a migration agent, made on 11 August 2003 and 10 February 2004. 2 Section 290(1)(a) and (b) of the Migration Act 1958 (Cth) provides: '290(1) An applicant must not be registered if the Migration Agents Registration Authority is satisfied that: (a) the applicant is not a fit and proper person to give immigration assistance; or (b) the applicant is not a person of integrity; or …' 3 The parties proceeded upon the basis, and the Tribunal appears to have accepted, that there was nothing in the evidence before it, and which had been before the Authority, which could satisfy either body that the applicant was not a fit and proper person to give migration assistance, or was a person lacking integrity - the inquiries to which s 290(1)(a) and (b) of the Migration Act refer. The Tribunal made an order in each of those matters in terms that the Tribunal: 3. Remits the matter to the respondent for reconsideration on the agreed basis that the respondent is not satisfied, for the purpose of section 290 of the Migration Act 1958 that: (a) the applicant is not a fit and proper person to give immigration assistance; and (b) the applicant is not a person of integrity. (the Tribunal having set aside the decision in question by its order numbered 1). The applicant had raised concerns as to the expression of a double negative and submitted that the Tribunal had the power to make an order positively declaring that he was a fit and proper person for the purposes stated in s 290 and a person of integrity. 4 It would have been appropriate for the Tribunal to have made an express finding in its reasons to the effect referred to in [3] above, and, if it were necessary, the Court could now do so under s 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth). Section 290(1) of the Migration Act permits such a finding. It does not however require, nor does it contemplate, that an order need be made in terms of such a finding. It certainly does not, in my view, contemplate an order or a finding in the terms of order number three made by the Tribunal. The section simply operates as a bar to registration. If a finding is made in connection with the inquiry posed by the section adverse to an applicant, nothing more need be said about it. Registration would simply be refused for that reason. If the decision-maker is not so satisfied registration might be given. 5 It was not, in my view, appropriate to make the order numbered three. It was not required by the statute. Further an order in these terms should not be made unless it is unavoidable, because it is likely to confuse. I add that in this regard, that the Tribunal was, regrettably, encouraged to do so by the parties, for reasons it is not now necessary to revisit. I add that the Tribunal was however right to decline the making of an order in positive terms sought by the applicant. That would not reflect the enquiry posed by the section. 6 The parties' draft orders also proceeded upon the basis that the Tribunal remit the matter to the Authority. There was, however, nothing to remit, for it had effectively determined the only question of fact. Moreover, the question of the applicant's registration is now somewhat historical. He is now currently registered and nothing further needed to be done. The process in which the Tribunal was engaged was correction of the record. 7 The only determination the Tribunal needed to have made was that in par 1. It could have added something to the effect that s 290(1) did not operate as a bar to registration, but that would not have been necessary in light of the finding it could have made in its reasons to which I have referred. 8 The parties consent to the orders which I proposed: allowing the appeal and setting aside the determination numbered 3. It seems to me that there is power to do so under s 44(4) of the Administrative Appeals Tribunal Act 1975 (Cth). No order for costs was suggested as appropriate. 9 Orders were made accordingly. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.