Federal Court of Australia

Migration Agents Registration Authority v Gruszka [2023] FCA 473

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the second respondent made on 23 June 2022 that the reviewable decision be stayed on the existing conditions until the hearing and determination of the review, be quashed.

2.    The first respondent pay the applicant’s costs as agreed or taxed pursuant to r 40.12 of the Federal Court Rules 2011 (Cth).

THE COURT DECLARES THAT:

1.    The first respondent’s registration as a migration agent under Part 3 of the Migration Act 1958 (Cth) ceased at midnight on 17 July 2022, and that from this time the first respondent was and is not entitled to practise as a registered migration agent or to provide immigration assistance as defined in s 276 of the Migration Act.

2.    The order of the second respondent made on 23 June 2022 to stay the operation of the applicant’s decision to suspend the first respondent’s registration as a migration agent ceased to have effect as at midnight on 17 July 2022.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RAPER J:

1    The applicant (Authority) brought an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal: Gruszka and Migration Agents Registration Authority [2022] AATA 2128 (T). In that decision, the Tribunal granted a stay of a decision of the Authority to suspend the first respondent’s (Ms Gruszka) registration as a migration agent.

2    The Authority seeks that the Tribunal’s decision be quashed on the basis that the Tribunal erred in the exercise of its power under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), and/or acted without power in purporting to stay the Authority’s decision until the determination of the review. Further, the Authority seeks a declaration that Ms Gruszka’s registration as a migration agent ceased at midnight on 17 July 2022.

3    In essence, the application concerns whether the Tribunal failed to take into account that any stay order under s 41(2) of the AAT Act would be circumscribed by the operation of the Migration Act 1958 (Cth), particularly s 299(1), namely that regardless of a stay, Ms Gruszka’s registration would end 12 months after the day of registration.

4    For the following reasons, the application should be allowed.

Background

5    Ms Gruszka was first registered as a migration agent on 13 July 2017 and her registration was renewed annually pursuant to s 289 of the Migration Act. She had not had any prior disciplinary action against her. On 9 June 2022, the Authority decided, pursuant to s 303(1)(b) of the Migration Act, to suspend Ms Gruszka’s registration as a migration agent for a period of three years following complaints made against her by three former clients. Given the confined nature of this application there is no need to consider in any detail the nature of the complaints nor the bases for the suspension decision. The Authority concluded that Ms Gruszka had engaged in conduct in breach of several provisions of the applicable Code of Conduct for registered migration agents (as at 18 April 2017), and found that she was not a person of integrity, or otherwise not a fit and proper person to give immigration assistance within the meaning of s 303(1)(f) of the Migration Act.

6    On the same day as the Authority made its suspension decision, Ms Gruszka lodged an application for review of the Authority’s decision in the Tribunal. Ms Gruszka’s claim in the application was that the Authority’s decision was founded on an outdated version of the Code of Conduct for registered migration agents and that she was not afforded procedural fairness. Ms Gruszka lodged concurrently a “Request for Stay Order” with the Tribunal seeking the request for a stay be heard “instanter” and for the Tribunal to stay the Authority’s decision, pursuant to s 41(2) of the AAT Act, until the Tribunal had determined the review.

7    On 15 June 2022, following a preliminary hearing in relation to Ms Gruszka’s stay request, Senior Member Poljak granted an interim stay of the Authority’s decision “until the date of the Tribunal’s decision on the Applicant’s interlocutory application for stay of decision or until further order of the Tribunal”, and imposed a number of conditions, including that supervision arrangements complying with s 306AA of the Migration Act and reg 7B of the Migration Agents Regulations 1998 (Cth) be put in place.

8    On 21 June 2022, the Tribunal heard Ms Gruszka’s interlocutory application for a stay, and on 23 June 2022 decided that the Authority’s decision “be stayed on the existing conditions until the hearing and determination of the review”. It is this decision which is the subject of this judicial review application.

Legislative context

9    The power of the Tribunal to grant a stay of a decision under review is found in s 41(2) of the AAT Act:

41 Operation and implementation of a decision that is subject to review

…

(2)      The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal 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 considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

10    Part 3, Division 3 of the Migration Act provides the statutory scheme for the registration and discipline of migration agents and course for review with the Tribunal. The relevant provisions are those in force at the time of the Authority’s decision (9 June 2022). Part 3 of the Migration Act is directed to the protection of those whom might deal with migration agents. In Seymour v Migration Agents Registration Authority [2007] FCAFC 5; 156 FCR 544 at [16], the Full Court recognised that “[t]he scheme therefore discloses a concern to closely regulate and monitor the activity of migration agents by establishing a detailed regime in the interests of protecting the public and persons seeking immigration assistance”.

11    Section 303 concerns the power of the Authority to implement a number of disciplinary measures including suspension of registration. Section 304 provides for a limit of five years for any suspension decision.

303 Disciplining registered migration agents

(1)      The Migration Agents Registration Authority may:

(a)      cancel the registration of a registered migration agent by removing his or her name from the register; or

(b)      suspend his or her registration; or

(c)      caution him or her;

if it becomes satisfied that:

(d)      the agent’s application for registration was known by the agent to be false or misleading in a material particular; or

(e)      the agent becomes bankrupt; or

(f)     the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or

(g)      an individual related by employment to the agent is not a person of integrity; or

(h)      the agent has not complied with the Code of Conduct prescribed under section 314.

Note:     If the Authority is considering making a decision under this section, it must invite the registered migration agent to make a submission: see sections 309 and 310.

Unpaid registration status charge

(2)      The Authority may also suspend the registration of a registered migration agent if any registration status charge payable by him or her remains unpaid after the time when it becomes due for payment.

304 Period of suspension

(1)      If the Migration Agents Registration Authority suspends the registration of a registered migration agent under section 303, the Migration Agents Registration Authority may:

(a)    set a period of suspension of not more than 5 years; or

(b)      set a condition or conditions for the lifting of the suspension.

(2)      If 2 or more conditions are set under paragraph (1)(b), one of them may be that at least a set period of suspension has ended.

12    Sections 306 and 306AA prescribes the power of the Tribunal to review and to stay respectively a decision made under s 303 and are extracted as follows:

306 Review by the Administrative Appeals Tribunal

Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division.

306AA Stay orders

If the Administrative Appeals Tribunal or a court orders a stay of a decision under section 303 to cancel or suspend a registered migration agent’s registration, it is taken to be a condition of the order that the prescribed supervisory requirements apply in relation to the agent during the period of the order.

13    Relevant to this application are those provisions which detail when an agent applies for registration and renews that registration, the period of registration, and the consequences on registration where the Authority has suspended an agent’s registration and where the Tribunal grants a stay of the Authority’s suspension decision.

14    Section 288 provides when an individual may apply for registration as a registered migration agent:

288 Application for registration

(1)      An individual may apply to the Migration Agents Registration Authority to be registered as a registered migration agent.

Publishing requirement

(2)      The individual must satisfy 1 of 2 publishing options set out in section 288A, unless the individual has been registered at some time within the period, immediately before making the application, that is prescribed for the purposes of this subsection.

Form of application

(3)      A registration application is to be in a form approved in writing by the Authority and contain such information relevant to the application as is required by the form.

Note:     The applicant may be required to make a statutory declaration, or to answer questions, in relation to the application: see section 288B.

Time of application

(4)      The day on which a registration application is taken to have been made is the day worked out in accordance with the regulations.

Registration application fee

(5)      The Authority must not consider a registration application unless the applicant has paid the registration application fee (if any) on the application.

Evidence of publication

(6)      If the applicant is required under this section to satisfy 1 of 2 publishing options, the Authority must not consider the application unless the applicant has:

(a)      satisfied one of those options; and

(b)     given the Authority evidence of the publication concerned.

Proceedings finalised about previous registration

(6A)      If:

(a)      the applicant has been registered at some time before making the application; and

(b)      the Authority made a decision to suspend or cancel the applicant’s registration; and

(c)      the applicant made an application (the review application) for review of the decision under the Administrative Appeals Tribunal Act 1975 or for judicial review of the decision;

then the Authority must not consider the registration application unless it is satisfied that all proceedings (including any appeals) resulting from the review application have been finalised.

Withdrawal of application

(7)      The applicant may withdraw an application by giving notice in writing to the Authority. However, the applicant is not entitled to a refund of the registration application fee paid in relation to the application.

15    Section 289 provides, by mandatory command, that the Authority must register an applicant unless Part 3 of the Migration Act otherwise prohibits registration of the application:

289 Registration

(1)     The Migration Agents Registration Authority must register an applicant by entering his or her name in the Register, unless this Part prohibits registration of the applicant.

Note:     If the Migration Agents Registration Authority is considering refusing a registration application, it must give the applicant a chance to make a further submission supporting the application. See sections 309 and 310.

  (2)     The Migration Agents Registration Authority must do so as soon as possible.

(3)     However, if the applicant was required under section 288 to satisfy 1 of 2 publishing options:

(a)     the Authority must not register the applicant before the end of the time for objections that was specified in the notice concerned; and

(b)     the Authority must consider any objection received within that time when deciding whether to register the applicant.

16    Relevant to this application, s 291A(b) provides that if a previously registered agent has had their registration suspended, noting in parentheses “whether or not that decision was stayed” then the applicant must not be registered. Example 2 in this provision also sets out what occurs where a stay is ordered: “[where] a stay order is made in relation to the decision. The agent continues to practise, while the stay order is in force, until the agent’s registration ends”. Accordingly, the example notes, consistent with the confined effect of ss 291A(b) and (c) that a stay has no ability to elongate a person’s registration.

17    Section 291A provides:

291A Applicant must not be registered if suspension would be in effect

If:

(a)      an applicant has been registered (the previous registration) at some time before making the application; and

(b)      the Migration Agents Registration Authority decided to suspend the previous registration (whether or not that decision was stayed); and

(c)      the previous registration ended on or after the suspension decision;

then the applicant must not be registered during a period in which the previous registration would have been suspended had the previous registration not already ended.

Example 1:     A registered migration agent’s registration is suspended for a period. The agent is deregistered under section 302 so the suspension of the registration ends. The agent cannot be re-registered until the suspension period ends.

Example 2:     The Migration Agents Registration Authority suspends a registered migration agent’s registration. The agent applies for review of the decision and a stay order is made in relation to the decision. The agent continues to practise, while the stay order is in force, until the agent’s registration ends. Subsection 288(6A) prevents the agent from being re-registered until the review proceedings are finalised. The agent cannot be re-registered if the suspension decision is affirmed on review and the suspension would not have ended (had the registration continued).

Example 3:     Under section 300, a registered migration agent’s registration is continued after the expiry day of the agent’s registration. The Migration Agents Registration Authority makes a decision to suspend the agent’s registration until the agent complies with a condition, and so the registration ends because of subsection 300(4). The agent cannot be re-registered until the agent complies with the condition.

18    Sections 299 and 300 relate to the duration of the period of registration. Section 299(1) provides that an agent’s registration is for 12 months from the day of registration. However, s 299(2) provides that if the registration is suspended, the registration period is extended by a period equal to the period of suspension (for example if the suspension is for one year, then the registration is extended for one year in addition to the remaining period of registration prior to the suspension). This section assumed some significance in the Tribunal’s reasons and in this application and will be considered in more detail below.

19    Section 300 concerns the situation where an agent has made a registration application, paid the registration application fee and the Authority has not yet decided the application: s 300(1). Where the criteria in s 300(1) are met, s 300(4) has the effect such that the agent’s registration is automatically continued beyond the last day of their registration (defined as the expiry day) in certain circumstances. The agent’s registration continues after the expiry day until the Authority either decides the application, suspends the agent’s registration, cancels the agent’s registration or 10 months has elapsed after the expiry day. Where no decision of the kind contained in s 300(4)(a)–(c) occurs after 10 months, the application is taken to have been granted (s 300(5)) and the registration is treated as having taken effect at the end of the expiry day: s 300(6).

20    Section 300(2) provides that subs (4) does not apply (i.e. the agent’s registration does not automatically continue) where the Authority has suspended the agent’s registration, unless either the suspension has been completed before the end of the expiry day, or there was a decision by the Tribunal or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended (or cancelled).

21    Importantly, s 300(2)(b) provides that such a decision does not include a stay order. Accordingly, where there is a stay order of a suspension decision, s 300(2) mandates that s 300(4) does not apply and the agent’s registration therefore expires at the end of the expiry day. Section 300(7) supports this construction of s 300(2) by providing that a decision of the Authority is taken to have been made even if the decision is later stayed, i.e. where a suspension decision is made, notwithstanding a stay order, for the purposes of the operation of s 300, it is as if the suspension decision is still in force.

22    Sections 299 and 300 provide as follows:

299 Period of registration

(1)      Subject to any other provision of this Part (including subsection (2) of this section), the registration of a registered migration agent ends 12 months after the day of registration.

(2)      If the registration is suspended for a period, the period of the registration is extended by a period equal to the period of suspension.

300 Automatic continuation of registration

When agent’s registration is automatically continued

(1)      Subsection (4) applies to continue a registered migration agent’s registration beyond the last day (the expiry day) of the agent’s registration if, before the end of the expiry day:

(a)     the agent made a registration application; and

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

(c)      the Migration Agents Registration Authority had not decided the application.

Exception—suspension

(2)      However, subsection (4) does not apply to continue the agent’s registration if, before the end of the expiry day, the Authority made a decision to suspend the agent’s registration, unless:

(a)     the suspension had been completed before the end of the expiry day; or

(b)     there was a decision (other than a stay order) of the Administrative Appeals Tribunal or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled.

Exception—cancellation

(3)      Subsection (4) also does not apply to continue the agent’s registration if, before the end of the expiry day, the Authority made a decision to cancel the agent’s registration, unless:

(a)      there was a decision (other than a stay order) of the Administrative Appeals Tribunal or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled; or

(b)      there was a decision of the Administrative Appeals Tribunal or a court in force to the effect that the agent’s registration is suspended, and the suspension had been completed before the end of the expiry day.

Period of continuation of registration

(4)      The agent’s registration is taken to continue after the expiry day until the earliest of the following:

(a)      the Authority decides the application;

(b)      the Authority decides to suspend the agent’s registration;

(c)      the Authority decides to cancel the agent’s registration;

(d)     the end of the period of 10 months beginning on the day after the expiry day.

Application granted if no decision within a certain period

(5)      If, before the end of the period of 10 months beginning on the day after the expiry day, the Authority has not:

(a)      decided the registration application; and

(b)      decided to suspend the agent’s registration; and

(c)      decided to cancel the agent’s registration;

then the application is taken to have been granted at the end of that period.

When registration takes effect

(6)      If the Authority grants the registration application, or the registration application is taken to have been granted under subsection (5), 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 at the end of 31 October.

When Authority makes decision

(7)      For the purposes of this section, the Authority is taken to have made a decision even if the decision is later stayed.

The Tribunal’s decision

23    Before the Tribunal, the parties made competing submissions as to the construction of ss 299 and 300. This arose because the Authority’s main challenge to the granting of a stay was that it would be futile where, on its construction, the stay would only extend to, at most, 17 July 2022 (being 25 days from the date of the hearing of the stay application) as after that date Ms Gruszka’s registration would expire and on account of the suspension, the Authority could not consider renewing her registration: ss 288(6A), s 291A of the Migration Act.

24    The Tribunal rejected the Authority’s submissions that s 299 could limit the Tribunal’s power to grant a stay of the Authority’s decision to only the period remaining of Ms Gruszka’s current registration period (if there were no suspension order) until a date in July 2022: at T[25].

25    The Tribunal accepted Ms Gruszka’s submission to the effect that a stay could be granted of the Authority’s decision, such that Ms Gruszka was permitted to continue to operate as a migration agent beyond the expiry of her 12 month registration by reason of the following. Explanatory memoranda cannot control the meaning of enactments so as to modify their express terms: at T[15]. The decision of Seymour is distinguishable as it did not concern an application for a stay of a suspension but rather an application for renewal of registration, and where the Court held that the effect of s 300 was that no such stay could be granted because of s 300(7) which was then on the same terms as it currently stands: at T[16]. Further, no question of construction of s 299 arose in Seymour given that Seymour was not about a suspension, but rather an application for a renewal.

26    The Tribunal considered the terms of s 299 as it currently provides, together with its historical legislative evolution, and concluded that the current form of s 299 “makes it clear that subsection (2) will prevail over subsection (1)”: at T[21].

27    As a consequence of the latter conclusion the Tribunal determined that ss 299 and 300 operated in the following way (at T[21]):

… Therefore in the circumstances, s. 299 has the effect that the registration of the applicant continues until 2025, but subject to the order for suspension, so that the suspension continues to affect the applicant unless and until the AAT or a court sets aside the suspension. The automatic continuation provisions [s 300] prevent the AAT from granting a stay of a refusal by the respondent to renew the registration of the applicant, but no such refusal has occurred and the applicant has not made any such application.

28    The Tribunal found that although Seymour stands for the proposition that a stay order cannot be made in the case of a decision to refuse to grant registration or renewal of registration, that was not the case here. Rather, the question is whether there is a statutory intention for the power in s 41(2) of the AAT Act to grant a stay of a suspension to be absent altogether based on s 300 or other provisions of the Migration Act. The Tribunal found that s 306AA proceeds on the contrary assumption: at T[23]–[24].

29    The Tribunal thereafter dealt briefly with the non-exhaustive list of factors to be taken into account when determining an application for a stay from Re Scott and Australian Securities and Investments Commission [2009] AATA 798; 51 AAR 114 at [4] (at T[26]):

1.     The prospects of success.

2.     The consequence for the applicant of the refusal of a stay.

3.     The public interest.

4.     The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.

5.     Whether the application for review would be rendered nugatory if a stay were not granted.

6.     Other matters that are relevant, amongst which I would include the length of time that the ban has already been in place and the gap between today and the hearing of the application.

30    The Tribunal accepted that little weight should be given to Ms Gruszka’s failure to deal in detail with the prospects of success where her representation changed a day before the hearing and the Authority accepted that Ms Gruszka had an arguable case on review: at T[28].

31    The Tribunal found that if the stay application was refused, there would be very serious consequences for Ms Gruszka and her business would suffer greatly, as had already occurred in relation to several of her clients: at T[29]. Further, the Tribunal concluded that the effectiveness of the hearing may be affected if Ms Gruszka loses her business as a result of the refusal of a stay: at T[32].

32    As to the public interest and consequences for the Authority, the Tribunal found that the conditions in reg 7B were sufficient in this regard, together with the Tribunal having the power to revoke or vary the stay if any problem arose: at T[30]–[31].

The present application

33    The Authority, broadly, contests the Tribunal’s rejection of its construction of ss 299 and 300 of the Migration Act and their effect on the power to grant a stay under s 41(2) of the AAT Act.

34    The Authority submits that the Tribunal, in exercising its discretionary power under s 41(2), failed to form the opinion that was required as a condition of the exercise of its power, by misconstruing the legislation, specifically in Part 3 of the Migration Act.

35    The Authority claims it is aggrieved by the Tribunal’s decision because it purported to stay the Authority’s decision and affect its ongoing regulatory function.

36    By originating application made on 20 July 2022, the Authority advanced three grounds of review. The first being:

1.     The Second Respondent erred in the exercise of its discretion under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) by proceeding on an erroneous construction of the legislation.

37    The Authority accepted in argument that the first ground is established if the following question is answered in the affirmative: is the power under s 41(2) circumscribed by the operation of the Migration Act such that it could not have the effect of elongating a person’s registration beyond 12 months? The Authority submitted that if this question is answered in the affirmative, there is no necessity for the Court to consider its other alternative grounds of review.

38    For the reasons which follow, this question is answered in the affirmative and the application should be allowed.

39    It was common ground as between the parties that one first considers the power under s 41(2) of the AAT Act. The Authority accepted that the Tribunal has the power to stay its decisions to suspend migration agents. The parties also agreed as to what the Tribunal was required to consider in the exercise of that power, namely that the power is only engaged where the Tribunal considers the order is “appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review”.

Brief précis of the competing positions

40    The dispute between the parties is as to whether s 299(2) of the Migration Act applies where there has been a stay of a suspension decision such that a person remains registered during the life of a stay by reason of s 299(2) prevailing over the 12 month registration period limitation prescribed under s 299(1), as the Tribunal had found.

41    The Authority contends that the Tribunal erred by misunderstanding the legislation when finding that the effect of s 299 of the Migration Act was that Ms Gruszka’s registration remained in force until 2025 rather than ceasing on the date of expiry (July 2022). The practical effect was that Ms Gruszka’s registration would remain in force until the Tribunal makes a decision whether to affirm the Authority’s suspension decision or to set it aside (thereafter the stay and its effect on the registration would cease). The Authority submits that by the Tribunal forming its opinion to grant the stay under s 41(2), based in part on its misunderstanding of the legislation, the requisite opinion was never formed resulting in jurisdictional error.

42    On the Authority’s construction, s 299(2) would not apply to Ms Gruszka’s registration where the suspension decision had been stayed because the effect of the stay is to pause the suspension, i.e., Ms Gruszka is free to practice as before the suspension, for which the registration period stipulated in s 299(1) continues to apply and would cease 12 months after the day of registration. In support of this construction, the Authority submits that s 299(2) only applies “[i]f the registration is suspended for a period” such that if the suspension is stayed, then (at least for the duration of the stay) the registration is not “suspended for a period”. Accordingly, Ms Gruszka is subject to the scheme in Part 3 relating to the registration of migration agents, and the manner in which and the period for which agents may be registered.

43    By contrast, Ms Gruszka submits, on a number of bases which are dealt with below, that s 41(2) of the AAT Act empowers the Tribunal to stay or otherwise affect the “operation or implementation of the decision” and that the Tribunal’s stay does not approbate the suspension decision as it is qualified by s 299(2) of the Migration Act such that the stay does not alter the character or effect of the suspension decision.

44    Ms Gruszka also contended in her written submissions that:

(a)    section 299(2) was introduced by the Migration Amendment (Regulation of Migration Agents) Act 2020 (Cth) and is subsequent to the temporal primacy of the enactment of the AAT Act such that the legislature is presumed to have s 41(2) in contemplation at the time the amendment was introduced, which goes against the Authority’s construction. Counsel for Ms Gruszka, at hearing, emphasised that temporal primacy is the most important and real imperative for statutory construction in this case;

(b)    nothing in the statutory scheme suggests the effect of the stay is to allow the registration time to continue to run such that the registration ceases under s 299(1) as this would nullify the effect of the stay of s 300(2)(b), which precludes the operation of s 300(4) unless the suspension has been completed by the expiry day or the Tribunal sets aside the Authority’s decision;

(c)    the effect of s 299 is to extend registration for the life of the stay, creating the relevant expiry day for the purposes of s 300, otherwise the registration would expire and the suspension be completed: cf s 300(2)(a);

(d)    where a stay is granted, s 306AA provides that the agent is subject to the prescribed supervisory requirements in reg 7B (including supervision by another registered migration agent) such that it is envisages that where a stay is granted the relevant agent can continue to practise, despite the suspension, in a manner that supports the public interest;

(e)    Ms Gruszka’s construction is not countered by anything in the extrinsic materials: Supplementary Explanatory Memorandum to the Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003 (Cth) (2003 Bill); Explanatory Memorandum to the Migration Amendment (Regulation of Migration Agents) Bill 2019 (Cth);

(f)    while s 300(2)(b) contemplates the effect of a stay, s 299 of the Act is silent on the effect of a stay because the clear legislative intent was that the effect of a suspension was to extend the life of a registration for the period of the suspension, which is explicable by the fact that a suspension of a registration can only subsist if the registration is still active (in contrast to a cancellation which terminates a registration); and

(g)    contrary to the Authority’s submission that Ms Gruszka’s construction enables a recalcitrant practitioner to practise for a further three years beyond the standard annual re-registration, the plain intent of registration is to permit the effect of ss 290, 290B and 291 of the Migration Act.

45    For the following reasons, the Authority’s construction is the preferable one.

Consideration

46    A significant part of the Tribunal’s reasoning concerned the construction of s 299, as gleaned from its terms, its historical legislative evolution and the operation of s 300.

47    The relevant portion of the Tribunal’s reasons in this respect is extracted as follows:

20.     One difference between the sections is that the former section is expressed to be subject to s.300, whereas the current section is not. In my opinion, this case does not concern automatic continuation of registration under s.300, but rather the effect of a suspension of registration, a matter dealt with by s.299(2). Subsection (7) of s.300 has no equivalent in s.299, and s.299 says nothing about a stay.

21.     The current form of s.299 makes it clear that subsection (2) will prevail over subsection (1). Therefore in the circumstances, s.299 has the effect that the registration of the applicant continues until 2025, but subject to the order for suspension, so that the suspension continues to affect the applicant unless and until the AAT or a court sets aside the suspension. The automatic continuation provisions prevent the AAT from granting a stay of a refusal by the respondent to renew the registration of the applicant, but no such refusal has occurred and the applicant has not made any such application.

48    Contrary to the reasoning of the Tribunal at T[20], there was no material difference between s 299(1) in its previous form and s 299(1) in its current form. Section 299(1), before its amendment in 2020, was in the following terms:

299     Period of registration

(1)     Subject to sections 300, 302, 303, 306AG and 306AGAC and subsection (3), the registration of a registered migration agent lasts for 12 months after the registration.

(3)     If the registration of a registered migration agent is suspended for a period, the current period of the agent’s registration is extended by a period equal to that period of suspension.

49    Section 299 in its current form is as follows:

299     Period of registration

(1)     Subject to any other provision of this Part (including subsection (2) of this section), the registration of a registered migration agent ends 12 months after the day of registration.

(2)     If the registration is suspended for a period, the period of the registration is extended by a period equal to the period of suspension.

50    Whilst I accept, as the Tribunal did, that the degree to which consideration can be given to explanatory memoranda is limited, I note that the explanatory memorandum with respect to the amendments to s 299 were as follows:

93.     This item repeals and substitutes section 299, which is about the period of registration as a migration agent.

94.     New subsection 299(1) provides that, subject to any other provision of Part 3 of the Migration Act (including new subsection 299(2)), a registered migration agent’s registration period ends 12 months after the day of registration. The wording has been updated to ensure that registration that starts at the start of a day of one of the calendar months should end immediately before the start of the corresponding day of the calendar month in 12 months’ time. The definition of month in section 2G of the Acts Interpretation Act 1901 is relied upon here. For example, if a person’s registration commences on 1 July 2020, their registration ends on 30 June 2021.

95.     New subsection 299(2) provides that if the registration is suspended for a period, the period of the registration is extended by a period equal to the period of suspension. This reflects the current subsection 299(3), however, new subsection 299(2) is phrased more simply to assist readers. The purpose of new subsection 299(2), and of current subsection 299(3), is to ensure that if a person’s registration is suspended for a period, they are still able to enjoy a full 12 month registration period. Where the MARA is satisfied that a person’s conduct should result in the person’s registration period ending before the full 12 month registration period is concluded, the MARA can cancel the person’s registration under section 303 provided that one of the grounds mentioned in paragraphs 303(1)(d)-(h) is made out.

(Emphasis in original.)

51    A review of s 299 reveals the following. First, in its current form s 299(1) is not materially different from s 299(1) in its previous form. Previously, it referred to being subject to a number of sections, now it refers to a wider number of provisions which it is subject to, but contrary to what the Tribunal found, the current section is expressed to being subject to s 300 because it forms part of that Part. Secondly, I am of the view that s 299(2) in its current form, or s 299(3) in its former form, does not apply to this case. Section 299(2) applies in circumstances where a registration is suspended for a period. Where there is a stay of a suspension, there is no “suspension for a period”. The choice of the phrase “suspension period” appears to be deliberate and different from Parliament’s reference elsewhere to “suspension decision” or where the Authority “decides” to suspend: See for example ss 291A and 300. Therefore, s 299(2) does not, in the circumstances of this case, have the effect of limiting the operation of s 299(1) (the 12 month limitation on registration). Thirdly, a careful reading of s 300 does not apply in the way that the Tribunal considered that it did at T[20]. Section 300 applies in the following way.

52    Section 300 is a provision that allows for the automatic continuation of registration in certain circumstances, which appear to relate to circumstances where an agent has made a registration application, paid the registration fee, and there has been a delay in the Authority deciding the application. As a consequence, where those preconditions have been satisfied, s 300(4) applies, namely the agent’s registration is deemed to continue after the expiry date until the earliest of certain dates occurring, which include of course where the Authority decides to suspend an agent’s registration.

53    Section 300(2) ensures, however, that there will be no automatic continuation of registration if before the expiry date the Authority made a decision to suspend the agent’s registration unless the suspension had been completed before the end of the expiry or there was a decision to the effect that the agent’s registration is not suspended or cancelled: s 300(2)(b) of the Act. Of some significance, s 300(2)(b) refers in parentheses to “other than a stay order”. Its effect is such that a stay order cannot have the effect of continuing the registration in the same way where there had been a decision that the agent’s registration is not suspended or cancelled. What is clear from a consideration of this provision, albeit with respect to the automatic continuation of registration, rather than a suspension, is that the intention of Parliament is exactly the opposite of how Ms Gruszka urges this Court to consider the effect of stay orders on registration. Ms Gruszka is effectively, by virtue of her erroneous interpretation of s 299(2), suggesting that the effect is the opposite of what is clear from the effect of s 300(2)(b), i.e. that there is, in essence, an automatic continuation of registration despite the fact of suspension, and where there is a stay order, which is completely contrary to what is clear from the operation of s 300(2)(b).

54    Whilst I accept that the Tribunal’s reading of the operation of s 299 might be open in isolation, upon a consideration of the context and purpose of the section, I do not accept ultimately it can be the preferable one. The Tribunal did not have the benefit of the assistance I have received as well as the absence of the urgency, given the Tribunal was required to consider the matter on an urgent interlocutory basis.

55    Part 3 of the Migration Act is a protective scheme, designed to ensure that only those persons registered as migration agents can provide immigration assistance for a fee. Part 3 achieves its protective purpose through registration or suspension or lack of registration. Time-limited registration achieves this purpose: Section 299(1) ensures that a migration agent’s registration is time limited (for a year).

56    A review of the following aspects of the scheme reinforce the significance of the time-limited registration. The mischief to be avoided, amongst other things, is the continued registration of a migration agent in circumstances where he or she is the subject of suspension.

57    This construction (as opposed to Ms Gruszka’s, as accepted by the Tribunal) avoids absurd or irrational circumstances (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297 at 321, per Mason and Wilson JJ) and better reflects the purpose of the statute: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]. I do not accept Ms Gruszka’s characterisation of the Authority’s submissions as to “absurdity” being in effect merits review.

58    On Ms Gruszka’s construction, an agent would (potentially) benefit from an extended registration beyond the limits of s 299(1). I accept that in this case, as Ms Gruszka submits, the stay is not to effect an extension of three years but for the extension to remain in place until the Tribunal review is complete, which is for a confined period. Nonetheless, I am of the view that it cannot be accepted that s 299(2) applies in these circumstances nor has this effect. The purpose of s 299(2) is to ensure, if a person is in fact suspended, they are entitled (if/when the suspension is lifted) to enjoy what remained of their 12 month period of registration.

59    Further, Ms Gruszka contends that to adopt the Authority’s construction would be to ignore the ambit of the disciplinary power in s 303 of the Migration Act, which is not limited to circumstances arising on an application for registration: see ss 303(1)(d)–(h) and 303(2) of the Act and where both ss 303(1)(a) and (b) are amenable to a stay under s 41(2) of AAT Act. I do not accept this submission. The ambit of the disciplinary power under s 303 does not support Ms Gruszka’s construction when read within the context and purpose of the legislation. Section 303 concerns the disciplinary power but says nothing about registration periods nor the effect of a suspension or a stay upon the period of registration because there are other specific provisions which deal with those matters.

60    Ms Gruszka relied upon an analogy between the effect of the stay here and a stay of execution where an order restraining the enforcement of a judgment debt does not alter the status of that debt as being one that is due and payable. Similarly here, on her submission, the stay does not have the effect of altering the status of (being the character or effect of) the suspension.

61    I accept the submission of the Authority that this characterisation of a stay not altering the character or effect of the suspension does not result in the conclusion that s 299(2) applies for the duration of the stay because the practical consequences of Ms Gruszka’s construction demonstrate that it cannot be the preferred construction. The Authority’s construction does not suggest that the stay interferes with the statutory duration of the suspension nor that a stay alters either the character or effect of the suspension.

62    In a related way, Ms Gruszka submits if the Authority’s construction is preferred then the effect of s 299(2) and the suspension itself is nullified and it cannot be Parliament’s intention that a review would be rendered futile where a stay is contemplated by Part 3, Division 3 of the Migration Act. I do not accept this construction. The effect of the stay only appears to be nullified in this case by reason of the point in time (close to the expiry of the 12 month registration period) when the stay was sought.

63    In answer to that part of Ms Gruszka’s submission that the effect of the stay is to maintain the efficacy of her right of review, I accept the Authority’s contention that Ms Gruszka overstates the Tribunal’s power under s 41(2) of the AAT Act. The Tribunal cannot, in exercising its power under s 41(2), bestow a benefit on Ms Gruszka which she is not entitled to under the Migration Act: As submitted by the Authority, which I accept, the Tribunal’s power to order a stay is for the purpose of securing the effectiveness of the hearing and determination of the application for review but only so far as the source under the Migration Act allows. Section 299(2) does not apply in these circumstances. In a consistent way, the legislative design of Part 3 stipulates that for agents whose registration has been suspended – even if the suspension decision is stayed – those individuals are prevented from re-registering during the period of the suspension.

64    As the Authority acknowledged, while this construction might produce harsh outcomes (especially where the suspension period was short) it is an outcome plainly envisaged by s 291A, for which there is no evident ambiguity (dealt with further below): see Tickle Industries Pty Ltd v Hann [1974] HCA 5; 130 CLR 321 at 331 (per Barwick CJ). If Ms Gruszka’s construction was preferred then I accept it would “manifestly frustrate the intention of Parliament”: see Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd [1979] HCA 67; 143 CLR 499 at 509 (per Stephen J).

65    For it to be otherwise, the agent would not only benefit from elongated registration but also not be required to satisfy the requirements that Parliament has set for any agent to be registered: see ss 290–292B of the Migration Act. This is because there would not be a re-registration event triggering those provisions given the elongation of the registration.

66    Ms Gruszka’s interpretation would mean that despite being suspended, the effect of the stay would be such that her registration would continue regardless of whether she complied with the continuing professional development requirements or not under s 290A (required of all other migration agents) or whether or not she had paid her registration status charge (required under s 290B), (again required of all other migrant agents). Such an outcome, rather than confronting, in fact compounds the mischief that the legislation seeks to overcome which is to ensure that migration agents are fit and proper and competent by reason of completing annual professional development.

67    Ms Gruszka’s submission that where a stay is granted, s 306AA provides that the agent remains subject to the prescribed supervisory requirements in reg 7B (including supervision by another registered migration agent), provides no answer. That provision addresses, consistent with the operation of the rest of the scheme, that a person subject of a suspension (and a subsequent stay), remains the subject of supervision (despite the stay). The section says nothing about, nor is inconsistent, with the operation of the time limitation under s 299(1).

68    Furthermore, Ms Gruszka’s interpretation would be entirely inconsistent in effect with other provisions under the Act which prevent re-registration of a person whose registration has been suspended. Sections 288(6A) and s 291A have this effect (extracted at [14] and [17] above). The Authority’s construction is consistent with how other aspects of the registration scheme operate including how an agent who is the subject of a suspension decision loses the benefit of “automatic continuation” under s 300(4) (dealt with earlier in these reasons). In addition, the Authority cannot re-register an agent subject to a suspension decision: s 291A. Lastly, where an agent applies to the Tribunal for review of a suspension decision, the Authority cannot consider the registration application until all proceedings and any appeals resulting from the review application are finalised: s 288(6A).

69    Section 291A recognises an agent’s registration ceases even where a suspension decision is stayed. Example 2 illustrates the same and is explanatory rather navigator and forms part of the Act: s 13 of the Acts Interpretation Act 1901 (Cth). This is confirmed by what is contained in the Supplementary Explanatory Memorandum to the 2003 Bill which suggests that the mischief that s 291A was introduced to address was the prospect that an agent could avoid the effect of suspension by re-registration. The relevant portions of the SE Memorandum, at [14]–[18], stated:

14.     The purpose of new section 291A is to address the problem of suspensions against agents losing their effect. This is because if the registration ends, for example the agent de-registers him or herself, the suspension may no longer be effective.

15.     New section 291A provides that an applicant must not be re-registered if any suspension of his or her previous registration would still be in effect if the registration had not already ended. This is to ensure that, even if a suspension of an agent’s registration is not effective because the registration has ended, the MARA must not re-register the agent until the period of the suspension would have passed or the agent has met any conditions set for the lifting of the suspension.

16.     For example, if an agent’s registration is suspended and the agent deregisters him or herself under section 302, the suspension will end because the registration it suspends has ended. New section 291A has the effect that the agent cannot be registered until the suspension period would have ended if the agent had not been deregistered.

17.     As a further example, if the MARA suspends an agent’s registration, and the Administrative Appeals Tribunal (the AAT) makes a stay order enabling the agent to continue to practice until the review is finalised, then the agent’s registration period may end while the stay order is in force. New subsection 288(6A) (contained in proposed amendment (3)) prevents the agent from being re-registered until the review proceedings are finalised, and new section 291A means that the agent cannot be re-registered if the decision to suspend is upheld on review, and the suspension has not been completed.

18.     As a final example, if the MARA suspends an agent’s registration after it has been taken to continue under section 300, new paragraph 300(4)(b) (contained in proposed amendment (8)) ends the agent’s registration. New section 291A operates to prevent the agent from being re-registered whilst the suspension would have been in effect if the registration had not ended.

70    I accept that legislative history and extrinsic materials cannot displace the meaning of the statutory text nor is their examination an end in itself: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]. However, they are relevant to ascertain the mischief: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408. It is my view that this material confirms the mischief and is supportive of the Authority’s construction. I do not accept Ms Gruszka’s contrary submission in this regard.

71    Lastly, I do not consider that the reasoning in Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; 181 FCR 130 at [49]–[50] is of assistance in this case. In that case the Australian Securities and Investments Commission (ASIC) had argued that the Tribunal had no power under s 41(2) to make any order affecting ASIC’s obligations under ss 920E(2) and 922A(1) of the Corporations Act 2001 (Cth) rather than the inability of the Tribunal’s power to rise above the source of its powers under the Migration Act.

72    As to materiality, the Authority submits, which I accept, that had the Tribunal understood that Ms Gruszka’s registration remained subject to s 299(1) and accordingly accepted the Authority’s submission that the grant of the stay lacked utility because of the pending cessation of Ms Gruszka’s registration, there is a realistic possibility that it could have decided not to have exercised its discretionary power to grant the stay: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [60].

73    For these reasons, I find that the Tribunal erred in the exercise of its discretion under s 41(2) of the AAT Act by proceeding on an erroneous construction of the legislation and will make orders that the order of the Tribunal on 23 June 2022 be quashed.

74    Finally with respect to the declarations sought, Ms Gruszka did not dispute the underlying facts giving rise to them and made no submission as to the (in)appropriateness of them being made: BMI Ltd v Federated Clerks’ Union of Australia [1983] FCA 403; 76 FLR 141 at 152–153 per Keely and Beaumont JJ; Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18; 161 ALR 79 at [38]–[39]. I accept the submission of the Authority that they confirm and clarify Ms Gruszka’s registration status at relevant points in time and accordingly will make them.

Conclusion

75    For these reasons, I allow the appeal and will make orders that the decision of the Tribunal made on 23 June 2022 that the reviewable decision be stayed on the existing conditions until the hearing and determination of the review, be quashed.

76    I will also make declarations to the effect that Ms Gruszka’s registration as a migration agent ceased at midnight on 17 July 2022, and that from this time she is and was not entitled to practise as a registered migration agent or to provide immigration assistance as defined in s 276 of the Migration Act and the Tribunal’s order made on 23 June 2022 to stay the operation of the Authority’s decision to suspend her registration as a migration agent ceased to have effect as at midnight on 17 July 2022.

77    Both parties sought their costs on a “follow the event” basis. Accordingly, an order will be made that Ms Gruszka pay the Authority’s costs.

Associate:

Dated:    16 May 2023