Background
The plaintiff, S M Senarath Bandara Chanaka Senanayake, was admitted as a solicitor in New South Wales in 2004 and registered as a migration agent in 2010. In 2016, a complaint was made to the Migration Agents Registration Authority (MARA) alleging that 10 protection visa applications he prepared were similar in wording and appeared to be template-based. Following investigation, MARA cancelled his migration agent registration on 9 October 2017, finding breaches of the Code of Conduct for Migration Agents including clauses 2.4, 2.8, 2.9, 2.9A, 3.1, and 3.2.
The plaintiff sought administrative review in the Administrative Appeals Tribunal (AAT), which upheld MARA’s cancellation decision on 4 February 2020. Starting in 2020, the plaintiff applied nine times to renew his practising certificate as a solicitor, which the Law Society of NSW refused on each occasion, citing concerns about his fitness as a legal practitioner based on the disciplinary findings. The most recent refusal occurred on 23 July 2025. On 17 August 2025, he filed this summons seeking review of the Law Society’s decision and a declaration that he is a fit and proper person to hold a practising certificate.
The Court’s Holding
Justice Elkaim dismissed the summons and ordered the plaintiff to pay the defendant’s costs. The court conducted a de novo hearing on the merits under section 100 of the Legal Profession Uniform Law 2014 (NSW), focusing solely on whether the plaintiff had discharged the onus upon him to establish fitness to hold a practising certificate. The court found that the AAT decision was final and binding on the plaintiff and could not be re-examined in these proceedings; the plaintiff’s repeated attempts to characterize the AAT findings as unreliable or “bogus” were rejected as contrary to section 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth), which brings finality to administrative decision-making.
The critical issue was the plaintiff’s complete lack of insight into his prior conduct. During cross-examination, the plaintiff denied each and every breach found by the AAT, maintaining throughout that he had not breached the Code of Conduct for Migration Agents. Despite receiving expert advice from a regulatory specialist that the Law Society expected to see evidence of remorse, self-awareness, and commitment to ensuring misconduct would not recur, the plaintiff refused to acknowledge any wrongdoing. The court found that his persistent denial of the AAT’s findings—combined with serious unfounded accusations against another solicitor who represented the complainants—demonstrated arrogance and an absence of the integrity and judgment essential to fitness as a legal practitioner.
Key Takeaways
- The onus to establish fitness to hold a practising certificate rests entirely on the applicant, and failure to discharge this burden results in refusal (section 100(7)(a) LPUL).
- Final administrative tribunal decisions are binding on fitness assessments and cannot be re-litigated simply by alleging unreliability; only grounds of jurisdictional error permit reconsideration.
- Lack of insight into past disciplinary findings—particularly absolute denial of wrongdoing—is fatal to demonstrating fitness, even when no misconduct has occurred in the applicant’s subsequent legal practice and substantial time has passed.
- Regulatory bodies assessing fitness rely on the applicant’s capacity for honesty, judgment, and understanding of the consequences of professional conduct; denial of all disciplinary findings negates this demonstration.
Why It Matters
This decision reinforces that licensing and fitness frameworks in professional regulation are fundamentally protective rather than punitive. The “I have done my time” argument—that the plaintiff had served a five-year effective period following MARA’s cancellation and should be reinstated—fails when the applicant cannot demonstrate insight or acknowledgment of error. The court emphasized that restoration of practice requires more than passage of time; it demands that the applicant understand and accept the reasons for prior discipline and commit to avoiding similar conduct. The decision is significant for practitioners seeking to restore their licenses after disciplinary proceedings, establishing that regulatory bodies are entitled to condition reinstatement on evidence of genuine remorse and reformed conduct.
Additionally, the judgment clarifies that courts reviewing regulatory decisions to refuse practising certificates will not entertain collateral attacks on final AAT decisions that underpin the regulator’s refusal. This protects the finality of the administrative process and ensures that applicants cannot circumvent appellate remedies by raising the same grievances in a practising certificate review. The decision also warns practitioners against making serious unfounded allegations against fellow practitioners without reasonable grounds, recognizing such conduct as capable of supporting an independent finding of unfitness.