Shi v Migration Agents Registration Authority [2008] HCA 31

HIGH COURT OF AUSTRALIA

KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

NELSON GUANG LAI SHI APPELLANT

AND

MIGRATION AGENTS REGISTRATION AUTHORITY RESPONDENT

Shi v Migration Agents Registration Authority [2008] HCA 31

30 July 2008

S522/2007

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.

On appeal from the Federal Court of Australia

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)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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.