- Shi was a registered migration agent. In 2003, the Migration Agent Registration Authority (MARA) became aware of a number of failings in giving advice, record-keeping and dealing with staff.
- MARA decided first to suspend Shi’s registration, and then to refuse to renew it, although the proceedings were stayed so Shi could continue to give migration assistance.
- Shi appealed and that appeal was heard by the Tribunal in 2005. In determining that Shi was a fit and proper person, the Tribunal took into account matters that had happened between 2003 and 2005.
- They lifted the suspension on the condition that he was cautioned and worked under the supervision of another migration agent until at least 2008, and that he did not work on protection visas.
- MARA appealed this decision and was successful at first instance. Shi then appealed that decision.
- Should the Tribunal have based its decision on only the information available at the time when MARA made its decision (2003) or when it heard the case (2005)? I.e. was Shi’s conduct between 2003 and 2005 a relevant factor?
- Did the Tribunal have the power to order that Shi’s suspension was lifted on the condition that his practice was supervised and he did not work on protection visas?
- In regards to the first question – Hayne and Heydon JJ held that unless expressed otherwise, a decision of a tribunal in a merits review should be made with regard to all of the information available, including any new information.
- There was nothing in the Migration Act which change this position, and therefore the Tribunal was correct in considering matters that arose between 2003 and 2004.
- To do otherwise would narrow the scope of a merits review to the point where it was more like a judicial review, which is not the point.
- In regards to the second question – Hayne and Heydon JJ held that the key was to look closely at the statute and determine its proper construction.
- They held that the proper construction of the statute did not mean that a migration agent could only have an unfettered ability to give migration assistance. The Tribunal had the right to qualify this and impose conditions.
- In every instance, you need to look closely at the statute to determine what it allows.
- Crennan J and Kirby J also allowed the appeal, in separate judgements. Therefore, Shi succeeded in his appeal.
- Kiefel J dissented.
- “unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review” 
- “The limits to the power are … to be identified by reference to the subject-matter, scope and purpose of the legislation.” 
- The entire judgement is available at http://eresources.hcourt.gov.au/showCase/2008/HCA/31
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