Bhattarai and Migration Agents Registration Authority (Migration) - [2018] AATA 3151

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.
...............................[sgd].....................................
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Bhattarai and Migration Agents Registration Authority (Migration) [2018] AATA 3151
Case: [2018] AATA 3151
Decision Date: 31 August 2018

CaseChat Overview and Summary

This matter concerned an application for review before the Administrative Appeals Tribunal (AAT) concerning the registration of a migration agent. The applicant, Mr. Bhattarai, sought a stay of a purported decision by the Migration Agents Registration Authority (OMARA) that his registration for 2018/2019 was invalid. The respondent, OMARA, contended that no reviewable decision had been made, thereby challenging the Tribunal's jurisdiction.

The central legal issues before the Tribunal were whether OMARA had made a reviewable "decision" under the Migration Act 1958 (Cth) and, consequently, whether the Tribunal possessed jurisdiction to hear Mr. Bhattarai's application. This required an examination of the definition of "decision" in the context of administrative law and the specific provisions of the Migration Act governing the registration and renewal of migration agents.

The Tribunal reasoned that all decisions made under Division 3 of Part 3 of the Migration Act are subject to AAT review pursuant to section 306 of the Act. It considered various judicial interpretations of the term "decision," noting its indeterminate meaning and the need for a broad approach in determining reviewability. The Tribunal concluded that, in the absence of a clear, final determination or ruling by OMARA that could be characterised as a "decision" within the meaning of the Act, it lacked the jurisdiction to proceed with the review.

Consequently, the Tribunal found that it had no jurisdiction to consider the matters related to Mr. Bhattarai's application, as there was no reviewable decision made by OMARA.

Orders

Orders of the court

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Background

Background to the litigation

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 agents286 Individuals may be registered as migration agentsIndividuals 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.……………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.…………..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.…………..290A Applicant for repeat registration must not be registered if he or she has not done continuing professional developmentIf 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.……………………….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 registrationWhen 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.………………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 expiryAt 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.…………..306 Review by the Administrative Appeals TribunalSubject 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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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 agents286 Individuals may be registered as migration agentsIndividuals 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.……………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.…………..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.…………..290A Applicant for repeat registration must not be registered if he or she has not done continuing professional developmentIf 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.……………………….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 registrationWhen 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.………………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 expiryAt 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.…………..306 Review by the Administrative Appeals TribunalSubject 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