Bhattarai and Migration Agents Registration Authority (Migration)
[2018] AATA 3151
•31 August 2018
Bhattarai and Migration Agents Registration Authority (Migration) [2018] AATA 3151 (31 August 2018)
Division:GENERAL DIVISION
File Number(s): 2018/4498
Re:Bimal Kumar Bhattarai
APPLICANT
AndMigration Agents Registration Authority
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:31 August 2018
Place:Sydney
The Tribunal sets aside the reviewable decision of the Respondent made on 6 August 2018, and in substitution decides that the deeming provisions of section 300(5) of the Migration Act 1958 (Cth) applies to the applicant’s application for renewal lodged on 28 September 2017.
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Chris Puplick AM, Senior Member
CATCHWORDS
Migration - Migration agents registration - renewal of registration application - determination of period of registration - whether application lodged within time - jurisdiction of the Tribunal - application of deeming provisions - definition of reviewable decision - decision set aside and substituted
LEGISLATION
Acts Interpretation Act 1901 (Cth) s 36
Administrative Appeals Tribunal Act 1975 (Cth) s 3(3)
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(2)
Migration Act 1958 (Cth) ss 286, 287, 288, 289, 290A, 299, 300, 301, 306,
CASES
Australian Broadcasting Tribunal v Bond and Others [1990] 94 ALR 11
Cashman and Partners v Secretary Department of Human Services and Health [1995] FCA 1730
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 27 ALR 114
Director-General of Social Services v Chaney [1980] 31 ALR 571
Director-General of Social Services v Hales (1983) 47 ALR 281
Nelson and Repatriation Commission [2007] AATA 1069
Riordan v Parole Board of the Australian Capital Territory, Connor and Others [1981] 34 ALR 322
REASONS FOR DECISION
Chris Puplick AM, Senior Member
31 August 2018
This matter concerns the application by Mr Bimal Kumar Bhattarai (the Applicant) for a renewal of his registration as a Migration Agent by the Office of the Migration Agents Registration Authority (OMARA) (the Respondent).
The matter came before the Tribunal by way of an application by Mr Bhattarai for a “stay” of a purported decision by OMARA that his licence had not been renewed automatically under the provisions of section 300(5) of the Migration Act 1958 (the Act).
In response to this application, OMARA initially asserted that the “decision” in relation to which the Applicant sought a stay was “no decision” at all. Hence, in the absence of any reviewable decision, the Tribunal lacked jurisdiction to proceed further.
Proceedings
In attempting to resolve some of these claims and issues the Tribunal found, at its first sitting, by way of a Directions Hearing, on 22 August 2018, that there was a lack of relevant documentation before it in order to undertake its responsibilities under the Administrative Appeals Tribunal Act 1975 (AAT Act). It therefore adjourned its hearing to 24 August for parties to present further evidence. On that date there arose a major disagreement between the parties about relevant dates on which Mr Bhattarai’s renewal application had been received and whether it had been received within the time framework imposed by section 300(1) of the Act.
The Tribunal adjourned again requesting the parties to address the issues of relevant dates, having given a preliminary indication that it was of the opinion that the application had been received within time. The Tribunal determined that it would resume its hearing on 27 August 2018 as a full hearing on the merits of the stay application and in the meantime directed the parties to have further discussions. On that date the parties advised the Tribunal that they were unable to reach any agreement which could be entered into by consent and the Respondent again pressed the point of lack of jurisdiction. The Tribunal directed both parties to file further material for consideration and adjourned until 29 August 2018.
On 29 August 2018 the Tribunal sat and having both received further documentation from the Applicant and hearing further arguments from each party, proceeded to make a determination as set out below.
Issues
There were two matters before the Tribunal for determination:
(i)An original application by the Applicant for a “stay” of a purported decision of OMARA to the effect that its previous notification to Mr Bhattarai that his Migrant Agent registration for 2018/2019 had been granted, was no longer valid, and
(ii)A claim by the Respondent that the “decision” referred to above was in fact no decision at all and that, as a consequence, with no reviewable decision made by OMARA under the Act, the Tribunal had no jurisdiction to consider any matters related to the application in question.
Registration as a Migration Agent
Part 3 of the Act establishes a scheme for the registration of migration agents and the provision of various forms of immigration assistance.
Division 3 of that Part provides the detailed procedures for the registration of migration agents. For the purpose of this matter, the relevant parts of that Division are as follows:
Division 3—Registration of migration agents
286 Individuals may be registered as migration agents
Individuals may be registered as migration agents in accordance with this Part.
287 Register of Migration Agents
(1) The Migration Agents Registration Authority must keep a register, to be known as the Register of Migration Agents, listing individuals who are registered as migration agents.
(2) The Register is to show in respect of each registered migration agent:
(a) the agent’s full name; and
(b) any business names of the agent or the agent’s employer; and
(c) a business address for the agent; and
(d) a telephone number for contacting the agent; and
(e) the date on which the agent was registered most recently; and
(g) particulars of any suspension of the agent’s registration; and
(h) particulars of any caution given to the agent; and
(i) particulars of any other prescribed matter.
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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 he or she has been registered at some time in the 12 months immediately before making the application).
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.
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.
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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.
(2) The Migration Agents Registration Authority must do so as soon as possible.
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290A Applicant for repeat registration must not be registered if he or she has not done continuing professional development
If the applicant has been registered at some time in the 12 months before making the application, he or she must not be registered if the Migration Agents Registration Authority is satisfied that the applicant has not met, within the prescribed period, the requirements prescribed by the regulations for continuing professional development of registered migration agents.
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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.
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.
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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.
301 Migration Agents Registration Authority must warn of expiry
At least 30 days before the period for which a registered migration agent is registered will end under section 299, the Migration Agents Registration Authority must give the agent a written notice stating when the period will end.
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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.
Establishing the facts and the relevant dates
Within that framework it becomes necessary to establish what events happened on what dates.
The evidence before the Tribunal suggests as follows:
(i)Mr Bhattarai was first granted a Migration Agents Licence on 20 September 1996 and he has held that licence since that date with renewals taking place under the automatic deeming provisions of section 300(5) of the Act;[1]
(ii)Mr Bhattarai applied for a renewal of his licence on 27 September 2016 for a further period of one year;[2]
(iii)Mr Bhattarai was notified by OMARA that his application for licence renewal was granted in an email which stated: “I am pleased to advise that your application for a repeat registration as a migration agent has been approved. Your registration lasts for twelve months from 28/09/16.”[3]
[1] Application for Review of Decision: Tribunal Document A1 dated 10 August 2018
[2] Applicant’s Submission A2 at [6]
[3] Respondent’s Written Submissions R3 at [C]. emphasis added. Also Respondent’s letter of 23 August 2018 at [A]
The Tribunal is satisfied that this means that Mr Bhattarai’s licence was valid from 28 September 2016 until at least 28 September 2017 (section 229(1) of the Act). It may be more accurate to state that the licence continued until 29 September 2017 on the basis that Item 5 of section 36(1) of the Acts Interpretation Act 1901 provides that where a period of time “is expressed to begin from a specified day”, then that period of time “does not include that day.”
(iv)Mr Bhattarai submitted his application for renewal on 28 September 2017 at 2:13.47 pm and paid the necessary fee. An invoice for this payment was generated by OMARA on 29 September 2017.[4]
[4] Respondent’s letter of 23 August 2018 at [F]
The Tribunal finds that Mr Bhattarai’s application was lodged (and received) prior to the end of the “expiry date” defined in section 300(1) of the Act.
The Tribunal notes that the “Example” given in the Act at section 300(6) makes it clear that when a commencement date is established, in this instance, 31 October, then the registration in question continues until at least the following 31 October.
(v)On 30 July 2018 OMARA notified Mr Bhattarai in the following terms:
“Thank you for your application for repeat registration which was received on 29/09/2017. Section 300(5) of the Migration Act provides that: “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; …. then the application is taken to have been granted at the end of that period.” Given that the Authority did not make a decision on your application by 28/07/2018, in accordance with section 300(5) of the Migration Act 1958, your application has been granted. Your registration as a migration agent will be due for renewal on or before 29/07/2019.”[5]
[5] Applicant’s Submission A1
The Tribunal notes that this email incorrectly specifies that date of receipt of the renewal application as 29 September 2017 when it was, in fact, received and recorded on 28 September 2017. In any event it was within the prescribed time limits.
(vi)On 6 August 2018 OMARA sent a further email to Mr Bhattarai stating: “Please be advised that your registration was not granted as the deeming provisions (section 300(5) of the Migration Act 1958) do not relate to late repeat applicants such as yourself. On that basis, please disregard the email sent to you on 30 July 2018, no decision has been made on your registration application.”[6]
[6] Applicant’s Submission A1
The Tribunal believes that this email has no valid effect because it asserts that:
(a)The application was late and therefore
(b)The applicant was denied the benefits of the automatic renewal provisions of section 300(5) of the Act.
The evidence before the Tribunal is clear and contrary to each of these assertions. The application was received in time and the provisions of section 300(5) operated to provide automatic renewal of licence as from 28 July 2018 (ten months after lodgement).
The Tribunal notes that the Respondent has asserted throughout the proceedings that the Applicant’s 2016/2017 licence expired on 27 September 2017 and it notified this date to Mr Bhattarai in a series of reminder notices issued in accordance with section 301 of the Act.[7] It is by using this date as the “expiry date” that OMARA came to the conclusion that Mr Bhattarai’s application was one day late and hence it refused to grant his renewal registration and sought to deny him the benefits of the deeming provisions of section 300(5).
[7] Respondent’s Submission dated 27 August 2018, Evidence R3 at [C], [D], [E]
The Tribunal finds that there is no basis for this determination on the part of OMARA.
Given these findings of fact it is necessary to address the question of the Tribunal’s jurisdiction in this matter.
The jurisdiction of the Administrative Appeals Tribunal (AAT) does not arise from its own establishing legislation. It can only deal with matters where other acts empower or authorise it to do so. In the words of Lockhart J, its authority “takes its colour and content from the enactment which is the source of the decision itself.”[8]
[8] Director-General of Social Services v Hales (1983) 47 ALR 281 at [305]
There is however no doubt that all decisions made under Division 3 of Part 3 of the Act are subject to AAT review per section 306 of the Act.
Was there a decision?
This leads to a question of whether or not a “decision” was made, as, in the absence of reviewable decision, the Tribunal has no power to act.
Minds far more powerful than the Tribunal’s have grappled with the definition of what constitutes a “decision” for these purposes.
High Court Chief Justice Mason referred to “a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute…”[9]
[9] Australian Broadcasting Tribunal v Bond and Others [1990] 94 ALR 11 at [23]
In the Federal Court Deane J stated:
“The word ‘decision’ is a word of indeterminate meaning….. In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word “decision” may be apt to include the determination of any question of substance or procedure, including, for example, ruling on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue.”[10]
[10] Director-General of Social Services v Chaney [1980] 31 ALR 571 at [590]
In Hales, Lockhart J said that: “Decision is a word of indefinite and wide meaning.” He went on to say, as noted above that the authority for the AAT to make decisions on particular matters arises from the provisions of the legislation in question but that “No narrow or pedantic approach is called for in determining whether a decision falls within the scope of review by the Administrative Appeals Tribunal.”[11]
[11] Director-General of Social Services v Hales (1983) 47 ALR 281 at [305]
His Honour, in another matter merely remarked: “”Decision” is a word of aoristic meaning.”[12]
[12] Riordan v Parole Board of the Australian Capital Territory, Connor and Others [1981] 34 ALR 322 at [326]. “Aoristic” = ”Undefined, indeterminate” (OED) ; “an inflectional form of a verb typically denoting simple occurrence of an action without reference to its completeness, duration, or repetition” (Mirriam-Webster)
The Acts Interpretation Act 1901 contains no definition of “decision” but the Administrative Decisions (Judicial Review) Act 1977 in section 3(2) provides:
(2) In this Act, a reference to the making of a decision includes a reference to:
(a) making, suspending, revoking or refusing to make an order or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing.
Similarly, the AAT Act repeats exactly these same words in its interpretive clause, section 3(3).
Section 300(5) of the Act can be described as a “self-executing” provision, in that, if an application is made in time and no decision made on it within the specified time, then it follows automatically that the application in question is granted.
In Nelson and Repatriation Commission Deputy President Forgie set out “the general principles that apply in determining whether there is jurisdiction to review a decision made, or appearing to have been made, in the context of a self-executing provision”.[13] She went on to note that one such principle was that: “It is essential that there be some assessment of whether the conditions have been met” in relation to self-executing or automatic decisions being made.[14] The Deputy President concluded that: “The central issue to be decided is whether there has been a decision in fact. If there is, the decision is reviewable.”[15]
[13] Nelson and Repatriation Commission [2007] AATA 1069 at [65]
[14] Ibid at [59]
[15] Ibid at [77]. Although referring to different legislation, the principle remains the same.
In Cashman the Federal Court held that:
“An applicant is in no different position in the case of a deemed refusal than in the case of a considered refusal. In each case the applicant is not granted access to documents. In each case the applicant has the right to apply to the (AA) Tribunal for review of the decision, although the relevant factors on review will, of course, be different.”[16]
[16] Cashman and Partners v Secretary Department of Human Services and Health [1995] FCA 1730 at [21]
Mr Bhattarai applied for a renewal of his licence – it is the precondition for him earning a living. OMARA failed to make a decision within 10 months of its receipt, it then told him his license was granted and then told him that it was not. It now tells him no decision has been made but gives him no advice as to when or how his application will be determined and whether or not he will continue to have a licence to operate.
This Australian citizen has been economically, and I have no doubt, personally disadvantaged by OMARA’s decision-making processes, or lack of them.
In one of the most significant decisions elucidating the role and responsibilities of this Tribunal, Smithers J stated:
“In construing these provisions what may be seen as the objective of the Administrative Appeals Tribunal Act is I think of paramount importance. It is clear that in enacting the Act, Parliament had in mind to provide for the review by an independent Tribunal of certain administrative decisions by reference to standards of good government. True it is that administrative errors may well occur in the performance of valid and legally effective administrative acts. And of course it might have been the intention of Parliament to empower the Tribunal to review only those decisions which are legally effective. In that case the function of the Tribunal would be restricted to considering whether or not in exercising its legal power validly the administrator making the decision had acted in accordance with the principles of fairness and good government. But to construe the Act as providing for the review of only such errors would leave untouched those administrative acts which are invalid and legally ineffective for one reason or another, but were performed in the course of action falling within the general purposes of a statute. To my mind such a situation would not be compatible with the objective of the Administrative Appeals Tribunal Act. If administrative decisions are to be subjected to review in the course of good government exclusion from review of decisions made without power would remove from review of decisions most in need of review. The very absence of guidelines as to the exercise by the Tribunal of its powers of review is a most significant feature supporting a conclusion that review is to proceed by reference to the standard of good government. It is a short step to infer that the overriding purpose of the Act is to promote good government by those carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task.
It is important to observe that the Tribunal is not constituted as a body to review decisions according to the principles applicable to judicial review. In essence the Tribunal is an instrument of government administration and designed to act where decisions have been made in the course of government administration but which are in the view of the Tribunal not acceptable when tested against the requirements of good government.” [17]
[17] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307 at [334]-[335] Citations omitted
In terms of good government, OMARA has an obligation to make decisions which are (a) based upon the facts and (b) timely. It has not done so in this instance.
The Tribunal is satisfied that the email of 6 August 2018 constitutes a reviewable decision for the purposes of section 306 of the Act in that it purported to determine Mr Bhattarai’s application for licence renewal by making a decision that the application was out of date, although, as the Tribunal has established, that decision was contrary to the facts.
In making that decision – that the application was out of date and hence not capable of attracting the beneficial provisions of section 300(5) of the Act, OMARA sought to bring matters to some finality or to make an adjudication. It thus meets the test for being a decision as outlined in relevant judicial authority. As a decision it is reviewable.
Decision
The Tribunal sets aside the reviewable decision of the Respondent made on 6 August 2018, and in substitution decides that the deeming provisions of section 300(5) of the Act applies to the applicant’s application for renewal lodged on 28 September 2017.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 31 August 2018
Date(s) of hearing: 27 and 29 August 2018 Solicitors for the Applicant: Melvin Newman, Newman and Associates Solicitors Solicitors for the Respondent: Rachael Law, Clayton Utz
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