Federal Court.The OMARA cancelled the Respondent's registration as a migration agent under s 303(1)(a) of the Migration Act 1958 (Cth). The Respondent then sought review by the Tribunal, pursuant to s 306. Did the Tribunal have power under s 311A to bar the Respondent from being a registered migration agent, in circumstances where the decision under review had been made under s 303(1)(a)?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: The OMARA cancelled the Respondent's registration as a migration agent under s 303(1)(a) of the Migration Act 1958 (Cth). The Respondent then sought the review by the Tribunal, pursuant to s 306. Did the Tribunal have power under s 311A to bar the Respondent from being a registered migration agent, in circumstances where the decision under review had been made under s 303(1)(a)?
Question 2: Does the following passage in Body Corporate Strata Plan No 4166 v Stirling Properties Ltd (No 2)  VR 903 (Body Corporate Strata Plan No 4166), at 912 support the argument that a decision by the Tribunal vitiated with jurisdictional error that is remitted by the FCA to the Tribunal should be determined by a differently constituted Tribunal: "[W]here the reasons are partly defective, in the sense that not all issues have been dealt with, then an order compelling delivery of further or better reasons would have an air of unreality about it. Such an order would merely give a tribunal an opportunity to patch up what has been shown to be defective in circumstances where it is more than likely that the tribunal overlooked the issue altogether"?
Question 3: Would it be "procedurally fair, given that the case must be remitted, for the same member to hear the case again in light of creditability positions reached" about the Tribunal applicant (the Respondent before the FCA)?
Question 4: Is the FCA ordinarily "prescriptive in relation to remission as to who ought to constitute the Tribunal on that occasion"?
Question 5: In dealing with the powers of the FCA on "appeal" from the Tribunal, s 44(4) of the Administrative Appeals Tribunal Act 1975 (Cth) read: "The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision". Are the FCA's powers under s 44 of the AAT Act, by s 44(4), broad in relation to any remission?
Question 6: Would it be a rare case "where it would be appropriate for the Court to endeavour to micromanage a remitted proceeding", such as by either encouraging or discouraging whoever comes to rehear a case on remittal "as to courses to adopt in relation to the reception of evidence, be that either by a consensual tender of the record to date or by supplementation in such manner as commends itself to the Tribunal as a matter of procedural fairness"?
Question 7: Is the discretion in relation to the awarding of costs conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) materially at large?
Question 8: Is it "appropriate to approach the question of costs other than on a case-specific basis"?
Question 9: If the appeal is allowed, does that fact that "none of the errors of law revealed in the appeal were, in any way, the subject of a submission to the Tribunal on behalf of the agent" and that the "errors were entirely those made by the Tribunal on the Tribunal's own motion" support the view that each party should bear their own costs and that the Respondent is entitled to an order granting him a certificate under s 6(3)(a) of the Federal Proceedings (Costs) Act 1981 (Cth)?
Question 10: Was it necessary for the MARA to include the Tribunal as the second respondent in these proceedings?
The FCA answered those questions as follows:
The remainder of this article is only available to Case Law and Platinum subscribers.
Read our Terms & Conditions and upgrade below:
Where GST applies, the above amounts are inclusive of GST.
Basic Content includes basic news, some media articles and selected announcements.
Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.
Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.
Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.
If you already have a Case Law or Platinum subscription, click on 'Login' below.