FEDERAL COURT OF AUSTRALIA

Shi v Migration Institute of Australia Ltd [2003] FCA 1304

Practice and Procedure - Migration - refusal by Migration Agents Review Authority to renew registration as migration agent - application to the Administrative Appeals Tribunal for a stay - whether possible to stay - operative decision held to be decision to refuse registration - effect of stay would not renew registration - section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) to be given broad interpretation

Administrative Appeals Tribunal Act 1975 (Cth) s 41(2)

Migration Act 1958 (Cth) s 300, 309

Re Alexander and Migrations Agents Registration Board (1995) 40 ALD 99 distinguished

Re Dekanic and Tax Agents Board of NSW (1982) 6 ALD 240 followed

Re Nelson and Tax Agents Board of Queensland (1993) 30 ALD 317 followed

Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246 followed

Ex parte Walton; In re Levy (1881) 17 Ch D 746 cited

Re Secretary, Department of Social Security and Guner (1990) 21 ALD 399 referred to 

Re Gowing and Civil Aviation Authority (1990) 22 ALD 207 referred to

NELSON GUANG LAI SHI v MIGRATION INSTITUTE OF AUSTRALIA LTD (ACN 003 409 390) constituting the Migration Agents Registration Authority, AND ADMINISTRATIVE APPEALS TRIBUNAL

N1597 of 2003

TAMBERLIN J

SYDNEY

14 NOVEMBER 2003

THE COURT ORDERS THAT:

1.         The parties are directed to bring in draft Short Minutes of Order.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for review of a decision of the Administrative Appeals Tribunal (“the AAT”), refusing a stay, under the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), of the operation of a decision of the Migration Agents Review Authority (“the MARA”), in relation to an appeal to the AAT against a refusal by the MARA to renew the registration of the applicant (“Mr Shi’) as a migration agent, under the Migration Act 1958 (Cth) (“the Migration Act”).

2                     The AAT member considered that a stay should be granted provided that there was power to do so.  However, he considered that he did not have such power under s 41(2) of the AAT Act to grant a stay in the circumstances of this case.  The ground of the appeal which falls for decision is whether, as a matter of interpretation, the AAT does have the power to grant a stay in the circumstances.

3                     The MARA decision is substantively challenged on the grounds that there has been a breach of natural justice; that there is lack of power; and that there was a failure to take into account relevant considerations.

4                     Section 41(2) of the AAT Act provides:

“The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”  (Emphasis added)

factual background

5                     Mr Shi was first registered as a migration agent on 11 December 1995.  Registration lasts for a fixed period.  He is the only migration agent in a migration agency known as Southern Hemisphere Consulting Pty Limited.  On 23 October 2001, he became aware of the investigation by the MARA of his files.  This followed a complaint from the Department of Immigration and Multicultural Affairs on 14 June 2001, concerning protection visa applications made in 1999 and 2000.

6                     On 6 November 2002, Mr Shi made an application for renewal of his registration as a migration agent for a twelve month period, commencing on 11 December 2002.

7                     Section 300 of the Migration Act provides for the automatic continuation of the registration of a migration agent, where registration is about to expire, in these terms:

“s 300  Automatic continuation of registration

(1)       If:

(a)       before the end of the last day (the expiry day) of the period of registration of a registered agent, the agent has made a registration application; and

(b)       the agent has paid the registration application fee (if any) in respect of the application; and

(c)        the Migration Agents Registration Authority has not decided the application before the end of the expiry day;

the agent’s registration is taken to continue until the Authority decides the application.

Application granted if no decision within a certain period

(2)       However, if the Authority has not decided the registration application before the end of the period of 10 months beginning on the day after the expiry day, the application is taken to have been granted at the end of that period.

When registration takes effect

(3)       If the Authority grants the registration application, or the registration application is taken to have been granted under subsection (2), the registration is treated as having taken effect at the end of the expiry day.

Example: An agent’s registration is due to end on 31 October (the expiry day).  On 20 October the agent applies to be registered again.  The Authority has not decided the application by the end of 31 October.

The agent’s registration continues automatically past 31 October until the Authority decides the application.

On 15 November the Authority grants the application.  The new 12 month registration is treated as having taken effect on 31 October.”

8                     On 2 April 2003, Mr Shi received a notice that the MARA was considering the cancellation of his registration, and on 2 June 2003 he provided a response.  By a letter dated 15 July 2003, the MARA informed Mr Shi that it had decided to cancel his registration on the ground that he was not a person of integrity or was not otherwise a fit and proper person to give immigration assistance.

9                     Mr Shi applied for review of the cancellation by the AAT, and the AAT ordered that the cancellation decision be stayed until the hearing of the cancellation, upon the applicant undertaking not to engage in any business in regard to protection visas and nominating a supervisor acceptable to the MARA. 

10                  In the late afternoon of 29 September 2003, the MARA sent a notice informing the applicant that it was considering refusing his application made on 6 November 2002 for a renewal of his registration, and allowed him to make a submission no later than 7 October 2003.  This gave him, in effect, four working days to meet the detailed case advanced in the forty page Notice.  On 30 September 2002, Mr Shi applied for a period of two working weeks within which to make submissions.  This was refused by the AAT on 1 October 2003.  Mr Shi’s legal adviser, on 2 October, requested a four week period within which to respond to the allegations and this was also refused.  Mr Shi lodged a brief submission on 7 October.

11                  The following day, the MARA decided to refuse the renewal application.  Mr Shi was notified of this on 9 October 2003 and received the MARA’s reasons on 17 October 2003.  The reasons in substance are the same matters as those notified in the cancellation decision made in July. 

12                  On 10 October 2003, an application was made to the AAT for a stay of the MARA decision.  On 17 October, the AAT refused the stay on the basis that it did not have power to grant a stay in respect of an application for renewal.  In brief reasons, Mr Allen, the decision-maker, said:

“If I thought I had power to grant it, I would.  I already have, in effect, previously but so far as this application is concerned it seems to me that I should follow the decision of Deputy-President McMahon in re Alexander v Migration Agents’ Registration Board, 40 ALD 99, which basically says that you do not have jurisdiction to grant a stay where there has been a decision refusing to grant a registration.”  (Emphasis added)

13                  The decision- maker referred to several other cases which had been cited to him.  He considered that there was an important distinction between preserving the status quo where a positive decision is made to de-register a person as opposed to circumstances where there was a negative decision, or a refusal to act by deciding not to renew or re-register the applicant.

THE MIGRATION ACT

14                  Part 3 of the Migration Act deals with migration agents and immigration assistance.  It was introduced in 1992 by way of amendment to the Migration Act, and had the purpose of establishing a comprehensive scheme for the registration and control of migration agents.  Before the introduction of that Part, there had been no regulation of migration agents, and their actions were not subject to control by legislation.  The Migration Act established the MARA, and empowered it to issue warnings, to suspend, to de-register and to refuse applications for registration.  It set out the obligations of registered agents and made provision for a code of conduct to be formulated and prescribed.  Division 2 of that Part prohibited persons who were not registered from giving immigration assistance as defined.  Further restrictions followed, prohibiting unregistered persons form charging fees for immigration assistance or representations: see s 280.  A number of other restrictions were imposed on unregistered persons. 

15                  Prior to the enactment of Part 3, persons who gave immigration assistance for fees and were unregulated, except for the general law.  They were the subject of transitional provisions included in the 1992 legislation.  These provisions were intended to ensure a relatively quick transition for existing agents from an uncontrolled to a regulated framework.  Under s 288, an individual could apply to the MARA to be registered as a registered agent.  This provision applies both to individuals who were registered and seek renewal, and to new or original applicants who had not previously been registered.  Applications for renewal do not require publication, unlike applications for original registration. 

16                  Section 309 of the Migration Act requires that the MARA must inform the applicant, where proposals to refuse a registration application, and to invite the applicant to make a further submission in support of the application.  A renewal application which has been granted, or has been automatically continued under s 300, is in force for a twelve month period unless shortened by de-registration or cancellation, or extended as the result of a suspension.  Under s 306, an application may be made to the AAT for review of a decision by the MARA made under the Migration Act.

application for stay – s 41(2) of the AAT Act

17                  The MARA submits that because the AAT is only empowered to stay a decision, or to modify its operation or implementation, the power can only operate on a decision that has some “operation”, or requires some “implementation”, which is capable of being stayed or otherwise affected.   The purpose of such an order is to secure the effectiveness of the AAT hearing and review of the decision.  Therefore, it is not enough that an applicant is inconvenienced by the decision under review.  Some reason must be shown as to why it is that the fact that the decision has effect pending the outcome of review would compromise the AAT in the performance of its review function.  These considerations, it is said, indicate that the power conferred by s 41(2) of the AAT Act is essentially negative.  The dispute, it is submitted, in substance, turns on whether, by its decision, the MARA has cancelled the applicant’s existing registration, or has merely refused to register him for a further term.  In the former case, it is conceded that there is power to grant a stay.  In the latter case of refusal to re-register, it is contended that a stay cannot be granted because there is no operation or implementation to stay or affect.  This is simply expiry by lapse of time.

18                  The MARA submits that at the end of an agent’s period of registration, if there is an application for re-registration and a decision is made to refuse the application, then the MARA has done nothing to enliven s 41(2) of the AAT Act.

19                  It is important to note that actual or deemed registration is necessary if an agent is to continue to be permitted to act as a migration agent, because each grant is only for a twelve month period.  Registration will automatically end unless an application is made in proper form, and accompanied by the necessary fee, before the end of the period.  Where there is a deemed grant, the Migration Act treats the registration as the equivalent of an actual grant of registration immediately after the expiry date.  It is submitted that there is no relevant difference under the Migration Act between an initial application for registration and an application for a further term, because in both cases a registration application must be filed and assessed in the same manner as an original application.  Accordingly, both the original application and an application for renewal are to be assessed in the same manner.  Where a re- registration application is refused by the MARA, the decision is not a cancellation.  There is nothing to cancel.  The expiry period simply runs out without any intervention.  It is not a decision to take away a statutory status but a decision not to grant that status and therefore cannot be stayed under s 41 of the AAT Act.  A decision not to grant an application needs  implementation and has no positive operation.

20                  In support of its application, the MARA submits that the decision in Re Alexander and Migrations Agents Registration Board (1995) 40 ALD 99 (“Alexander”) is applicable to the present case, and that it was correctly decided.

21                  In that case, AAT Deputy President McMahon held that the power contained in s 41(2) of the AAT Act is not positive in its effect, but only negative.  The content of the power is limited by its legislative intention, which is to preserve the situation prior to making the reviewable decision, and it is not intended to put the applicant in a different position to that in which he or she would have been placed, prior to the reviewable decision. 

22                  The relevant facts in Alexander were that the applicant applied for registration as a migration agent after Part 3 of the Migration Act, requiring registration, came into effect in 1992.  Complaints against the applicant had been lodged with the MARA, and proceedings had been commenced seeking damages from the applicant.  The MARA considered the application and refused it.  The applicant then sought review by the AAT.  The letter advising of the refusal stated that the Board had directed that the applicant should not seek to hold himself out as available to give immigration assistance.  At the same time, the applicant made an application seeking a stay of the refusal to register, and sought a direction suspending the implementation of the decision to give the direction to cease to hold himself out as being available to give immigration assistance.  The issue before the AAT was whether it had the power to stay the operation of the decision to refuse registration. 

23                  In the course of his reasons for decision, Deputy President McMahon said:

“(20)   The question, therefore, is whether this tribunal has power to stay or otherwise affect the operation of the decision to refuse registration.  In my opinion it does not. 

  (21)   The power is given to enable the tribunal to preserve the status quo, so as to ensure that a continuum which is broken by a reviewable decision may be reinstated in order to secure the ultimate effectiveness of the hearing.  Here there is no such continuum. 

  (22)   Prior to the operative decision, the applicant was not registered under Pt 3. After the operative decision, he continued to be unregistered under Pt 3.  What the applicant really seeks is to have this tribunal substitute, as a temporary decision, an order granting him registration under Pt 3 without investigation of the merits.  In my view this tribunal has no such power.

  (23)   In those cases, where the s 41(2) power has been exercised (either by the tribunal or by a court on appeal) it has been the purpose of reinstating the applicant to the position he or she was in prior to the making of the operative decision.  Thus, in Re Dekanic and Tax Agents Board of NSW (1982) 6 ALD 240 and Re Nelson and Tax Agents Board of Queensland (1993) 30 ALD 317, the operative decision was to refuse renewal of registration as a tax agent.  Similarly in Yolbir v Administrative Appeals Tribunal (1994) 33 ALD 8 (a decision of a full court of the Federal Court) and in Re Secretary, Department of Social Security and Guner (1990) 21 ALD 399 the reviewable decision had the effect of terminating an ongoing pattern of payment of pension.

  (24)   I am not aware of any exercise of the power under s 41(2) in relation to an original decision for registration in any professional context.  I referred to this in Re Gowing and Civil Aviation Authority (1990) 22 ALD 207 at 209 and I adhere to the views I there expressed.  Section 41(2) is not positive in its effects but merely negative.  The content of the power is limited by its legislative intendment.  It is intended to preserve the situation obtaining prior to the reviewable decision.   It is not intended to change the situation entirely and put the applicant in a different position from what he would have been in prior to the reviewable decision.  It is not intended, in the present circumstances, to enable this tribunal to grant registration, much less to declare that the applicant’s rights under the transitional provisions (which have long since expired) should somehow be revived. If the latter proposition was acceded to, it would mean that the applicant would for the indefinite future be entitled to ignore all the regulatory provisions of the new legislation and to claim an immunity for professional acts which is not available to other registered persons.”

24                  In terms, the power conferred by s 41(2) of the AAT Act is to:

“… make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates … for the purpose of securing the effectiveness of the hearing and determination of the application for review.” (Emphasis added)

25                  The subsection is framed in broad general terms, and by reference to a specific purpose.  It should be given a liberal interpretation: see Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246 at 249.  The power is to make an order which stays or otherwise affects the operation or implementation of a decision. 

26                  The question is whether an order for a stay in the present case is in respect of the operation or implementation of the decision not to renew the existing registration.  Prior to the refusal to renew, the position was that the agent’s registration was taken to continue pursuant to s 300(1) of the Migration Act.  This deeming provision is a statutory fiction (see, for example, Ex parte Walton; In re Levy (1881) 17 Ch D 746 at 756 per James LJ), but it requires that the agent must be treated as if he or she were registered.  In substance, this means that the agent must be taken to have the same rights as if he or she were registered up to the time of the making of the decision not to renew.  Accordingly, the prohibition in s 280 of the Migration Act, which prevents a registered agent from giving immigration assistance, would not apply to him or her.  After a decision not to renew is made, the direct legal effect of the decision is that the deemed registration is terminated.  That is because the deemed registration is taken to continue only until the MARA decides the application for renewal.  Accordingly, in substance, and as a direct consequence of the MARA decision, there has been a termination of the rights of the agent enlivened by the deemed registration.  This is quite different from ceasing to have effect a statutory expiry as a consequence of the lapse of time.  Accordingly, the decision not to renew has an operation which is capable of being stayed pursuant to s 41(2) of the AAT Act.  It is the cessation of the deemed right to be treated as if he were registered as a consequence of the decision not to renew that is the subject of the stay.  The “operation” of the decision is the legal impact on the right of Mr Shi to be taken to continue as a registered agent.  This is terminated by the decision.  Therefore, both as a matter of language, and construing s 41(2) in the light of its purpose, the decision not to renew is capable of being stayed.  A stay is therefore within the power of the AAT under s 41(2) of the AAT Act.

27                  The decision in Alexander is distinguishable from the present case because the circumstances in that case concerned a situation where the applicant had not previously been registered.  There was no deeming of the applicant to have been registered which was terminated or affected by the decision.  This is an important difference.  There was a transitional provision in that case, which provided that if an original applicant made an application within a three month period, then that part of the Act dealing with migration agents and immigration assistance would not apply.  In my opinion, such a transitional provision is significantly different from the deeming right conferred in the present case, which is a right to be treated as if registered under s 300 of the Migration Act.  The latter is an affirmative or positive entitlement as opposed to an immunity from the requirement to be registered.  In the latter case of an immunity from the requirement the Migration Act simply does not apply.

28                  Using the language of Deputy President McMahon, the effect of the decision not to renew in circumstances where a person is taken to have been registered, is to break the “continuum” by a reviewable decision.  It is evident that if a decision favourable to an applicant is made by the AAT in relation to the application to renew, then the agent in this case will have been wrongfully deprived of the opportunity to earn his livelihood from that time up to the time of the favourable determination.  There may also be damage to his practice and reputation.  There is no provision for recovery of this loss or for any disruption to the practice, or loss of reputation or goodwill.  A favourable decision to the applicant by the AAT would also mean that the applicant had been wrongfully refused registration and these are important considerations: see the remarks of Davies J in Re Dekanic & Tax Agents Board of New South Wales (1982) 6 ALD 240 at 242-243.  These observations were applied in Re Nelson & Tax Agents Board Queensland (1993) 30 ALD 317.  

29                  If the applicant in the present case is not granted a stay, the effectiveness of the hearing and determination of the application for review will be diminished.

30                  In summary, I consider that s 41(2) of the AAT Act must be given a broad interpretation.  I am of opinion that the circumstances giving rise to the decision in Alexander are distinguishable in important respects from the present case.  Alternatively, I am of the view that the decision of the AAT in relation to its power to grant a stay in the present case was wrongly decided.  I note that the decision-maker has formed the view that it is appropriate a stay be granted if the correct legal position is that he has power to grant a stay.

31                  Having regard to the way in which the MARA decision to refuse renewal operates, there is no need to make a mandatory order which requires the MARA to re-register Mr Shi as a migration agent, pending the determination of his appeal to the AAT.  This is because if the stay is granted he must be taken to continue to be registered, regardless of whether he is in fact on the register.  Therefore I do not make such a mandatory order.

32                  At this point in the proceedings, because the question of the power of the AAT to grant a stay was the only matter agitated before me, the appropriate course is to publish my reasons and invite the parties to bring in Short Minutes as to the form of appropriate draft orders and to seek orders as to the future conduct of the matter.  The draft Orders should deal with the question of costs.  If there is any dispute on these matters, I will hear argument.

Associate:

Dated:              14 November 2003