Appealing a Disciplinary Decision to Cancel a Registered Migration Agent’s License

Mr S (name redacted) was a registered migration agent. In July 2003, his registration was cancelled by the Office of Migration Agent Registration Authority (OMARA) citing various breaches and professional conduct issues, and that he was not a person of integrity or a fit and proper person to give immigration assistance. On a separate decision by the OMARA, Mr S has had two refusals for repeat registration and then was issued a suspension for a period of three years.

Mr S appealed the OMARA’s decision to cancel his registration at the Administrative Appeals Tribunal (AAT). In September 2005, the Tribunal considered information before it at the time of decision and have decided that neither cancellation nor suspension was appropriate.

Appealing the Decision Made by the Tribunal

OMARA appealed the AAT’s decision at the Federal Court, which they successfully argued that the AAT should have only considered evidence at the time of OMARA’s decision, not at the time of the Tribunal’s decision.

Mr. S’s then unsuccessfully tried to appeal to the Full Court of the Federal Court. He then filed his case at the High Court of Australia (the High Court).

Appealing at the High Court

At the High Court, it revisited the landmark case of Drake to outline the proper approach and function of the Tribunal, which is to make a ‘correct or preferable’ decision ‘on the material before the Tribunal’, which is to include any evidence of relevant supervening events.

The High Court confirmed that the AAT’s function required it to review the actual decision, not the reasons for it.

The Tribunal’s task is to make the correct or preferable decision at the time that it makes its decision, exercising all of the powers and discretions conferred upon the original decision-maker. If the Tribunal finds that there is more than one possible decision, the decision must be the preferable one having regard to the limits imposed by the legislation under which the decision is made and the facts of the case.

For the preferable decision, although the Tribunal is not required by law to apply policy, it may still have an important role to play when legislation provides a decision-maker with discretionary power. When the Tribunal reviews the exercise of discretionary power as exercised by the Minister, it should usually apply the Minister’s policy in reviewing the decision unless there are cogent reasons to the contrary including that the policy is unlawful or unless the application tends to produce an unjust result or consistency is not preferable to justice.

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