FEDERAL COURT OF AUSTRALIA Chen v Migration Agents Registration Authority (No 2) [2016] FCA 865 Appeal from: Chen v Migration Agents Registration Authority (Migration) [2016] AATA 188 File number: NSD 590 of 2016 Judge: GRIFFITHS J Date of judgment: 2 August 2016 Catchwords: ADMINISTRATIVE LAW – appeal on a question of law from a decision of the Administrative Appeals Tribunal which dismissed summarily under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) the applicant's review application – no appealable error shown – appeal dismissed. MIGRATION – proper construction of requirements under ss 289A and 290(1)(a) if the Migration Act 1958 (Cth) to be registered as a migration agent – whether substantial compliance sufficient regarding English language proficiency. PRACTICE AND PROCEDURE – objection to competency that no question of law properly identified dismissed. Legislation: Acts Interpretation Act 1901 (Cth), s 15AA Administrative Appeals Tribunal Act 1975 (Cth), ss 42B, 42B(1), 42B(1)(b), 44 Interpretation of Legislation Act 1984 (Vic), s 35(a) Legislation Act 2003 (Cth), s 13 Migration Act 1958 (Cth), ss 289A, 290(1)(a) Migration Agents Regulations 1998, regs 5, 5(2), 5(3), 5(3)(b), 5(4) Mining Act 1978 (WA), s 105(1) Cases cited: Chugg v Pacific Dunlop Ltd [1990] HCA 41; 170 CLR 249 Haritos v Federal Commission of Taxation [2015] FCAFC 92; 233 FCR 315 Hunter Resources Limited v Melville [1988] HCA 5; 164 CLR 234 Paraponiaris and Secretary, Department of Employment [2015] AATA 895 State of Victoria v The Commonwealth and Connor [1975] HCA 39; 134 CLR 81 Date of hearing: 5 July 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 39 Counsel for the Applicant: Dr R Harper SC Solicitor for the Applicant: SHS Law Counsel for the First Respondent: Ms R Francois Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent submitted to any order the Court might make, save as to costs. ORDERS NSD 590 of 2016 BETWEEN: ZHI CHEN Applicant AND: MIGRATION AGENTS REGISTRATION AUTHORITY First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 2 august 2016 THE COURT ORDERS THAT: 1. Leave be granted to the first respondent to rely upon the notice of objection to competency dated 21 June 2016. 2. The notice of objection to competency be dismissed. 3. The appeal be dismissed. 4. The applicant pay the first respondent's costs of the appeal, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GRIFFITHS J: 1 The central issue in this appeal, which is brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), is whether the Administrative Appeals Tribunal (the AAT) erred in concluding that the applicant had no reasonable prospect of success within the meaning of s 42B(1)(b) of the AAT Act when it summarily dismissed the applicant's application for review. 2 The applicant contends that the AAT erred because: (a) it misconstrued and/or misapplied s 42B(1) of the AAT Act; and (b) it erred in rejecting as untenable his contentions that, properly construed, s 289A of the Migration Act 1958 (Cth) (the Migration Act) and Ministerial Instrument IMMI 12/097 (IMMI 12/097): (i) merely required that an applicant for registration as a migration agent demonstrate English language proficiency to a standard rather than by passing a specific test; or (ii) the requirement was capable of satisfaction by substantial compliance. 3 There is also a need to address an objection to competency which was belatedly filed by the first respondent. Summary of background matters 4 The background facts were not in dispute. The following summary draws heavily on the facts as described by the AAT in its decision dated 30 March 2016 (Chen v Migration Agents Registration Authority (Migration) [2016] AATA 188). 5 On 8 September 2015, the Migration Agents Registration Authority (the Authority) refused to register the applicant as a migration agent on the basis that he failed to meet the requirements for registration in ss 289A and 290(1)(a) of the Migration Act. There were two grounds for that conclusion. The first was that the Authority determined that the applicant had not satisfied the English language proficiency requirement under s 289A of the Migration Act. The second was that, because of a criminal conviction, the applicant was not a fit and proper person to give immigration assistance. 6 The applicant sought a review of the Authority's decision in the AAT. The Authority applied to have the application summarily dismissed under s 42B(1)(b) of the AAT Act on the ground that the application had no reasonable prospect of success. 7 It is convenient at this point to set out the relevant provisions in the legislation and executive Instrument which bear upon the appeal. 8 Sections 289A and 290(1)(a) of the Migration Act, as in force at the relevant time, were in the following terms: 289A Applicant must not be registered if does not satisfy registration requirements An applicant: (a) who has never been registered; or (b) who is applying to be registered more than 12 months after the end of his or her previous registration; must not be registered unless the Migration Agents Registration Authority is satisfied that he or she: (c) has completed a prescribed course within the prescribed period and has passed a prescribed exam within the prescribed period; or (d) holds the prescribed qualifications. 290 Applicant must not be registered if not a person of integrity or not fit and proper (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 … 9 Section 42B(1) of the AAT Act, as in force at the relevant time, provided: 42B Power of Tribunal if a proceeding is frivolous, vexatious etc. (1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application: (a) is frivolous, vexatious, misconceived or lacking in substance; or (b) has no reasonable prospect of success; or (c) is otherwise an abuse of the process of the Tribunal. … 10 Section 44 of the AAT Act relevantly provided: 44 Appeals to Federal Court of Australia from decisions of the Tribunal Appeal on question of law (1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. Note 1: This Part does not apply to certain migration proceedings (see section 43C). Note 2: A party to a child support first review may in some instances appeal instead to the Federal Circuit Court (see section 44AAA). … 11 It is also desirable to set out reg 5 of the Migration Agents Regulations 1998 (the Regulations), which provided (noting in particular the terms of reg 5(3)): 5. Prescribed qualifications (1) For paragraph 289A(c) of the Act, a prescribed course is a course specified by the Minister in an instrument in writing for this subregulation. (2) For paragraph 289A(c) of the Act, if a person is in a class of persons specified by the Minister in an instrument in writing for this subregulation, an exam specified by the Minister in an instrument in writing for this subregulation is a prescribed exam. (3) For paragraph 289A(c) of the Act, if a person is not in a class of persons specified by the Minister in an instrument in writing for subregulation (2), a prescribed exam is the combination of: (a) an exam specified by the Minister in an instrument in writing for this paragraph; and (b) an exam in English language proficiency specified by the Minister in an instrument in writing for this paragraph. (4) For paragraph (3)(b), an applicant is taken to have passed an exam in English language proficiency if the applicant achieves at least the minimum score specified by the Minister in an instrument in writing for this subregulation. (5) For paragraph 289A(c) of the Act, the prescribed period for the completion of a particular course or exam is the period specified by the Minister in an instrument in writing for this subregulation. (6) For paragraph 289A(d) of the Act, a current legal practising certificate issued by an Australian body authorised by law to issue it is a prescribed qualification. 12 Finally, reference should be made to the relevant terms of IMMI 12/097, which is the relevant executive Instrument and was signed by the Minister for Immigration and Citizenship (the Minister) on 11 September 2012 and which, for the purposes of reg 5, prescribed courses and exams for applicants for registration as a migration agent (noting in particular Items 5(a)(ii) and (iii): … 2. SPECIFY the Graduate Certificate in Australian Migration Law and Practice, as offered at the Australian National University; Griffith University; Murdoch University or Victoria University, as a prescribed course for the purposes of subregulation 5(1) of the Regulations. 3. SPECIFY that the class of person for the purposes of subregulation 5(2) of the Regulations are those persons who have satisfied the Migration Agents Registration Authority that he or she has achieved one of the two education options set out below: Education Option 1: Education Option 2: Successful completion of: Successful completion of: • secondary school studies to the equivalent • the equivalent of secondary school studies to Australian Year 10 or of Australian Year 12 level, with a Australian Year 12 level; minimum of 4 years' study as secondary and school or equivalent; • at least 10 years of primary and/or and secondary schooling at an institution in an approved country listed below) (sic); • a Bachelor degree, or a higher degree, where with a minimum of 3 years' equivalent o English was the primary language of instruction at the school/s; and full-time study; o the applicant was resident in an approved country (listed below) throughout the schooling period. where o the secondary school and degree studies were completed at one or more educational institutions in an approved country (listed below); and o English was the primary language of instruction during the studies; and o the applicant was resident in the approved country (listed below) throughout the study periods. Approved countries: Australia, New Zealand, United Kingdom, Republic of Ireland, United States of America, Republic of South Africa, Canada … 5. SPECIFY that the following exam is a prescribed exam for the purposes of subregulation 5(3) of the Regulations: a) The prescribed exam is made up of two elements that must be satisfied: i) The 'common assessment items relating to registration' which form part of the prescribed course specified at item (2); AND Either: ii) A minimum overall test score of International English Testing System (IELTS) 7 Academic with a minimum score of 6.5 in each subtest (speaking, listening, reading and writing); OR iii) A minimum overall test score of 100 in the Internet Based Test of English as a Foreign Language (TOEFL iBT) with a minimum score of 22 in each subtest (speaking, listening, reading and writing). 6. SPECIFY that the following periods are prescribed periods in which an applicant must apply for registration as a Migration Agent, after completion of a particular course or exam for the purposes of subregulation 5(5): a) … b) … c) 12 months for a prescribed exam, first element, as specified in item 5(a)(ii) and (iii) of this Instrument. … The AAT's decision 13 It was common ground in the AAT that the applicant satisfied the first element of reg 5(3), namely the common assessment items which formed part of the prescribed course. The difficulty confronting the applicant was that he had not achieved the requisite results in respect of either of the two English proficiency exams which were specified in Items 5(a)(ii) and (iii) of IMMI 12/097. 14 The Authority argued in the AAT that the applicant's application for review had no reasonable prospect of success because the applicant did not satisfy the mandatory requirements concerning demonstration of English language proficiency and that, as a matter of statutory construction, substantial compliance with those requirements was insufficient. 15 The applicant argued that substantial compliance was sufficient and, even if it were not, the relevant requirements merely set a standard of proficiency rather than impose a requirement to undertake the particular forms of examination specified in IMMI 12/097. 16 The AAT made clear that, if the only basis for the Authority's decision to refuse registration was because of the adverse finding concerning the applicant's fitness and propriety, the AAT would not have concluded that the application for review had no reasonable prospect of success. 17 The applicant acknowledged that he had not achieved a "minimum overall test score" in either of the tests identified in Items 5(a)(ii) and (iii) of IMM1 12/097. Indeed, he acknowledged that he had received an IELTS test report in 2011 in which he reached an overall score of 5.5, comprising Listening (5.5), Reading (5), Writing (5.5) and Speaking (6), but these grades fell short of those specified in Item 5(a)(ii) of IMMI 12/097. The applicant submitted, however, that his failure to satisfy the particular tests identified in Items 5(a)(ii) and (iii) of IMMI 12/097 was not determinative if reg 5(3) and those requirements were given an "extended meaning". He also submitted that, properly construed, the requirement of English proficiency related to an explicit standard and not that an applicant pass a particular test. In the further alternative, he argued that the prescribed requirement was merely directory and substantial compliance was sufficient. In that context, he submitted that his English proficiency was demonstrated by his successful secondary and tertiary studies, which included a Diploma of Legal Service at TAFE NSW, a Graduate Certificate in Australian Migration Law and Practice from the Australian National University, a Bachelor of Commerce degree from Curtin University, a Graduate Diploma of Legal Practice and a Graduate Certificate in Australian Migration Law and Practice. He submitted, in effect, that his successful completion of these tertiary courses demonstrated that his English language proficiency was of a sufficient standard. 18 The AAT noted that there was no dispute concerning the applicant's secondary and tertiary studies or, indeed, that he had proficiency in the English language. The central issue related to the Authority's position that there had to be strict compliance with reg 5(3). 19 The AAT rejected the applicant's preferred construction of the relevant provisions and also rejected his contention that substantial compliance was sufficient. The AAT concluded that the relevant scheme was one which required an applicant in the circumstances of the applicant here to satisfy the tests in either Item 5(a)(ii) or (iii). Moreover, the AAT concluded at [26] that substantial compliance was inadequate because the English language proficiency requirement had "a level of prescription that tells against the possibility of substantial compliance" and s 289A is prohibitive in its terms. In reaching this conclusion, the AAT applied principles concerning substantial compliance in Hunter Resources Limited v Melville [1988] HCA 5; 164 CLR 234 (Hunter Resources). The AAT acknowledged the need to exercise a high degree of caution in summarily dismissing an application for review under s 42B. The AAT adopted the statement of principles concerning that provision enunciated by Deputy President Alpins in Paraponiaris and Secretary, Department of Employment [2015] AATA 895 at [19] to [34]. 20 Applying those principles, the AAT concluded that the applicant's submission that substantial compliance was sufficient was not tenable, with the consequence that his application for review had no reasonable prospect of success and should be dismissed summarily under s 42B(1)(b). The objection to competency 21 The first respondent sought leave to file and rely upon an objection to competency. Leave was required because the notice of objection to competency was not filed in accordance with the Court's directions dated 10 May 2016. Ms Francois, who appeared for the Authority, explained that the notice was filed late because of a misunderstanding on the part of the Authority's lawyers. 22 The applicant did not suggest that there was any prejudice to him if time was extended to permit the first respondent to file the notice of objection to competency. I believe that this is an appropriate case to extend time. 23 Dr Harper SC, who appeared for the applicant, acknowledged that the question of law which the applicant sought to agitate in the appeal could be identified more precisely than that which was set out in the original notice of appeal. The question of law set out there was whether the AAT erred in concluding that the applicant had no reasonable prospects of success within the meaning of sub-section 42B(1)(b) of the AAT Act. Dr Harper acknowledged that, consistently with the approach taken by the Full Court in Haritos v Federal Commission of Taxation [2015] FCAFC 92; 233 FCR 315 at [97] and [107], his client should have an opportunity to file an amended notice of appeal which more precisely identified the relevant question of law. The applicant subsequently filed an amended notice of appeal which identified the relevant question of law in the following terms: Questions of law 1. Whether the Tribunal erred in concluding that, for the purposes of sub-section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975, it was not tenable to construe sub-paragraphs 5(a)(ii) or (iii) of the Ministerial Instrument IMMI 12/097: a. to specify a standard in English language proficiency, rather than to require the taking of the specific tests referred to in the said sub-paragraphs; or b. to be capable of satisfaction by substantial compliance, so as to permit an applicant for registration as a migration agent to satisfy the requirement in s 289A(c) of the Migration Act 1958 of passing a prescribed exam. 24 In my view, the notice of objection to competency should be dismissed. I am satisfied that the amended notice of appeal adequately identifies a question of law and that the appeal is competent. I do not accept Ms Francois's submission that, notwithstanding the revised formulation of the question of law, the appeal is incompetent because the applicant's position on the issues of construction and substantial compliance are untenable. In my view, where a question of law is adequately identified for the purposes of an appeal under s 44 of the AAT Act, the appeal is prima facie competent at least insofar as this particular aspect of the matter is concerned. The assessment of the strength or otherwise of the applicant's arguments relating to the question of law is an aspect of the determination of the substantive appeal and is not an aspect of the competency of the appeal. That is not to deny that, in an appropriate case, a respondent might seek to take advantage of other available avenues to have an appeal dismissed summarily. That possibility does not arise here because the first respondent was content to rely upon its notice of objection to competency. Disposition of the appeal 25 I do not accept the applicant's contention that he had a tenable argument that he satisfied the English language proficiency requirements under the relevant scheme because Item 5 of IMMI 12/097 should be construed as simply requiring that the Authority be satisfied that an applicant possess English proficiency to a standard which is reflected in Items 5(a)(ii) and (iii), but is not confined by the tests specified in those provisions. The applicant contended that the standard of English language proficiency could also be established in other ways, including by the fact that he had successfully completed secondary studies as well as various tertiary courses. 26 First, and most tellingly, the applicant's position is inconsistent with the explicit text of the relevant provisions. In particular: (a) it is made clear in the terms of s 289A that the Authority is prohibited from registering an applicant unless it is satisfied that the applicant has inter alia passed a prescribed exam within the prescribed period. This prohibition operates by specific reference to the question whether or not an applicant has passed a prescribed exam and not merely by having attained a more general and less specific standard of English language proficiency; (b) reg 5(3) of the Regulations is equally clear in providing that, if reg 5(2) does not apply (as is the case here), the prescribed exam is the combination of an exam specified by the Minister and an exam in English language proficiency specified by the Minister. Accordingly, the two relevant exams are as specified by the Minister in an instrument in writing made for this particular purpose, an approach which leaves little room for doubt as to whether or not a particular exam is prescribed or not. It is also notable that reg 5(3)(b) explicitly refers to an exam in English language proficiency as specified by the Minister, which serves to underline the very specific nature of the relevant prescription as opposed to a more nebulous and evaluative standard of the sort advanced by the applicant. This detailed prescriptive approach is further reflected in the terms of reg 5(4) and the specification by the Minister of minimum scores; and (c) that detailed specificity is also carried through into the relevant text of IMMI 12/097, where the second element of the exam which is prescribed for the purposes of reg 5(3) involves clearly defined minimum scores to test scores in respect of two alternative and clearly defined tests. 27 These matters, both individually and in combination, are inconsistent with the applicant's position which seeks to introduce into the scheme the more nebulous concept of "a standard", the content of which is said to be partly informed by the two tests specified in Item 5(a)(ii) and (iii), but where the exact content of that standard is otherwise left obscure. I accept the Authority's submission that the applicant's preferred construction cannot be reconciled with the unambiguous language in the relevant provisions of the regulatory scheme, including the detailed prescription in Item 5. I also accept that the applicant's construction could give rise to serious impracticalities because the Authority would have no clear objective benchmark or guidance in determining whether what is put forward by an applicant as demonstrating English proficiency is to a standard that is said to be the equivalent of passing either of the two exams which are specified. 28 Secondly, I do not consider that the applicant's position is advanced by his contention that that position is to be preferred because it is consistent "with the broad purposes of the Act and the Regulations". By virtue of s 15AA of the Acts Interpretation Act 1901 (Cth) and s 13 of the Legislation Act 2003 (Cth), in interpreting a provision of an Act or Regulation, a construction that would promote the purpose or object underlying the particular legislation is to be preferred to a construction that would not promote that purpose or object. The applicant contended that the purpose of object was "to ensure those who are licenced (sic) as migration agents should possess adequate proficiency in the English language". Even if it be accepted that this is the central purpose or object, it does not mean that a construction should be adopted which is at odds with the evident intent which is manifest in the text that the determination of whether an applicant possesses adequate English language proficiency falls to be determined by reference to an applicant having passed at a specified level one of only two specified exams. The applicant's contention that those specified exams merely operate to provide general and non-exhaustive guidance as to the requisite standard of English language proficiency cannot be reconciled with the plain language of the relevant texts. 29 The AAT's construction of the relevant provisions, which gives effect to their plain terms, is also one which promotes the relevant purpose or object. The following observations of Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop Ltd [1990] HCA 41; 170 CLR 249 at [21], although directed to s 35(a) of the Interpretation of Legislation Act 1984 (Vic) (which was based on the original form of s 15AA of the Commonwealth legislation), are also apposite to the current form of s 15AA: The choice directed by s 35(a)… is not as to a construction that "will best achieve" the object of the Act. Rather, it is a limited choice between "a construction that would promote the purpose or object (of the Act)" and one "that would not promote that purpose or object". 30 In my view, the AAT was correct to proceed on the basis that the applicant's preferred construction is untenable. 31 Nor am I persuaded that the applicant has established any relevant error for the purposes of s 44 of the AAT Act in respect of the AAT's rejection as untenable of his contention that Item 5 is capable of a directory construction and attracts a test of substantial, as opposed to strict, compliance. 32 The applicant relied on relevant principles established in Hunter Resources and in State of Victoria v The Commonwealth and Connor [1975] HCA 39; 134 CLR 81 (State of Victoria). In Hunter Resources a requirement was imposed by s 105(1) of the Mining Act 1978 (WA) that, before making a mining licence application, an applicant had to mark out "in a prescribed manner and in the prescribed shape the land in respect of which the mining tenement is sought". The relevant regulations prescribed that pegs or cairns be fixed at intervals not exceeding 300 metres. An application was refused by the mining warden because the applicant had marked out a tenement at intervals which did not comply with the requirement that the intervals not exceed 300 metres. The applicant's argument that it was sufficient that there be substantial compliance with that requirement was rejected by a majority of the High Court. That rejection was based upon the majority's view that the nature of the particular requirement was inconsistent with the notion of substantial compliance being sufficient. As Wilson J observed at 245, it was not possible to speak of substantial compliance with a requirement which was expressed in the particular terms of the relevant legislation there. The marking out of the mining tenement was either in accordance with the requirement in the regulations or it was not, i.e. the pegs either exceeded 300 metres or they did not. 33 Dawson J said at 248 (footnotes omitted): When substantial compliance is held to be a sufficient observance of a statutory requirement it is because the statutory provision containing the requirement is regarded as directory rather than mandatory. Thus in Woodward v Sarsons, Lord Coleridge CJ said that "the general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially". One of the difficulties of putting the matter in that way is that there are some statutory requirement with which there cannot be substantial compliance – either they are complied with or are not – which have nevertheless been required as directory only. 34 In Hunter Resources at 249, Dawson J also observed that this was a case where substantial compliance with the relevant statutory requirement was not possible because there either was compliance with the requirement concerning the maximum length of intervals or there was not. 35 To similar effect, Toohey J (the third member of the majority) stated at 256 that the words of the relevant regulation meant what they said and there was no room for reading them in any other way than that pegs or cairns must be at intervals not exceeding 300 metres. In my view, the same may be said of Items 5(a)(ii) and (iii). 36 The applicant also relied upon Stephen J's judgment in State of Victoria and, in particular, his Honour's observations at 179: A directory construction will not assist in securing validity unless, despite the non-compliance which is the occasion for invoking that construction, there may nevertheless be seen to be substantial compliance with the general object at which the statutory provision aims. 37 I understand his Honour to be saying there that there is no scope for substantial compliance to suffice in respect of a directory provision unless the substantial compliance is consistent with the general object to which the relevant legislative provision is directed. I respectfully accept that proposition but it does not assist the applicant here having regard to the specificity and particularity of the language of the various relevant provisions of the regulatory scheme in the Migration Act, Regulations and IMMI 12/097. I respectfully agree with the AAT's conclusion that the English language proficiency requirement has a level of prescription or specificity that tells against the possibility of substantial compliance. This is reinforced by the prohibitive terms of s 289A of the Migration Act. Conclusion 38 For these reasons, although leave should be extended so that the first respondent can rely upon its notice of objection to competency, that notice should be dismissed. The appeal should also be dismissed. The notice of objection to competency occupied minimal time in the proceeding and no separate order as to costs is warranted in respect of it. The applicant should pay the first respondent's costs of the appeal. 39 Appropriate orders will be made accordingly. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate: Dated: 2 August 2016