Finlayson and Migration Agents Registration Authority
[2005] AATA 1127
•16 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1127
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/575
GENERAL ADMINISTRATIVE DIVISION ) Re ROSS FRANK FINLAYSON Applicant
And
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date16 November 2005
PlaceBrisbane
Decision
The decision under review is set aside and the matter is remitted to the respondent with a direction that Mr Finlayson’s application for repeat registration as a migration agent under the Migration Act 1958 be processed on the basis that he completed the requisite CPD points at the time of his application.
........[Sgd]...........
RG Kenny
Member
CATCHWORDS
MIGRATION AGENT – registration as migration agent to expire on 15 May 2005 – date extended to 16 May 2005 by Acts Interpretation Act 1901 - application for repeat registration – need for continuing professional development requirements to be completed by time of application – incomplete application form received by Migration Agents Registration Authority by post on 12 May 2005 – continuing professional development requirements completed on 13 to 15 May 2005 – completion of continuing professional development application advised to Migration Agents Registration Authority on 16 May 2005 – completed application for repeat registration made on 16 May 2005 - decision set aside.
Migration Act 1958 ss 288, 290A, 300, 311
Acts Interpretation Act 1901 ss 25C, 36(2)
Electronic Transactions Act 1999 s 8, 9Migration Agents Regulations 1998 Reg 3Y, 6, Schedule 1
REASONS FOR DECISION
16 November 2005 Mr RG Kenny, Member Background
1. On 1 June 2004, Ross Finlayson was advised by the Migration Agents Registration Authority (MARA) that he had been registered as a migration agent under the Migration Act 1958 (the Act) for a continuous period of 12 months from 16 May 2004. On 12 May 2005, MARA received by post a further application for repeat registration for another twelve months. Ms V Moser, Acting Executive Officer of MARA, wrote to Mr Finlayson on 10 August 2005 advising him that his application had been refused. In accordance with section 306 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), Mr Finlayson has sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. Mr Finlayson did not attend the hearing but was represented by Mr L Boccabella of counsel. MARA was represented by Mr J Lo, solicitor. The following documents were tendered and taken into evidence:
§exhibit 1 the T documents (T1-T19) prepared in accordance with section 37 of the AAT Act;
§exhibit 2 an e-mail message (with attachments), dated 7 November 2005, by Michael Palfrey from the respondent’s solicitors in Canberra;
§exhibit 3 a statutory declaration, dated 7 November 2005, by Mr Finlayson;
§exhibit 4 an affidavit, dated 3 November 2005, by Rosana Farfaglia;
§exhibit 5 an extract from MARA’s Administrative Guide relating to electronic lodgement; and
§exhibit 6 a facsimile message, dated 8 November 2005 (with attachments), by Venie Moser, Acting Executive Officer of MARA.
Authority to make decision
3. At the commencement of the hearing, Mr Boccabella expressed concern that Ms V Moser, the maker of the decision under review, did not have the appropriate delegations to enable her to do so. However, after Ms Moser gave evidence and provided facsimile copies of relevant minutes of the MARA Board meetings (exhibit 6), Mr Boccabella withdrew his objection. On the evidence, I am reasonably satisfied that Ms Moser had the appropriate authority under the Act to make the decision and to give notice of the decision in relation to Mr Finlayson’s application for registration as a migration agent.
Scheme for registration
4. The procedure relating to the registration of migration agents is dealt with in Part 3 Division 3 of the Act. It makes provision for the making of the application for registration in section 288 which, insofar as relevant, reads:
“Sect 288 Application for registration
(1) An individual may apply to the Migration Agents Registration Authority to be registered as a registered migration agent.
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.”
5. In section 5 of the Act, the term approved form is defined to mean a form approved by the Minister in writing for the purposes of a provision in the Act and it is not disputed that, in this case, the appropriate form was forwarded by MARA to Mr Finlayson and used by him in making his application. Subsection 288(4) of the Act, which relates to the timing of the application, must be read with the Migration Agents Regulations 1998 (the Regulations). Reg. 3Y reads:
“REG 3Y Time of registration application
For subsection 288 (4) of the Act, the day on which a registration application is taken to have been made is either:
(a)if the registration application is sent by pre-paid post — the day on which the registration application is delivered to the Authority's post office box; or
(b)the day on which a person gives the registration application by hand to a person employed by the Authority at an Authority office.”
6. Part 3 Division 3 of the Act also sets out the requirements for registration and various matters which preclude registration. This includes section 290A of the Act which refers to the need for continuing professional development (CPD). it reads:
“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.”
7. Reg 6 and Schedule 1 of the Regulations read:
“Reg 6 Continuing professional development
(1) For section 290A of the Act, the requirements for continuing professional development of registered migration agents are set out in Schedule 1.
(2) In order to determine whether an applicant has met the requirements set out in Schedule 1, the Authority may require the provider of an approved activity to give the Authority information that is sufficient for the Authority to determine whether the applicant has successfully completed the approved activity.”
“Schedule 1 Continuing professional development (regulation 6)
1. A registered migration agent must, in the 12 months immediately before the date on which the agent applies for repeat registration, complete approved activities that have a value of at least 10 points.
1A. Any points attributed to any approved activity previously relied on by a registered migration agent for an application for repeat registration are not to be counted as part of any subsequent application”.
8. Clearly, the legislative scheme requires Mr Finlayson to have completed his 10 CPD points by the day on which his application was made.
Evidence and submissions
9. The facts in this matter are not disputed. Mr Finlayson’s previous registration was to expire on 15 May 2005. It was common ground that this was a Sunday and that, by operation of subsection 36(2) of the Acts Interpretation Act 1901 (the AIA), this was extended to Monday 16 May 2005. That provision reads:
“(2) Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place.”
10. Mr Finlayson’s application was received by MARA by post on 12 May 2005. In relation to CPD points, he stated that information concerning this would be provided by 16 May 2005. From Friday 13 May 2005 until Sunday 15 May 2005, Mr Finlayson completed the relevant ten CPD points for registration. On Monday 16 May 2005, a certificate was provided by the authorised CPD provider that Mr Finlayson had completed the requisite ten CPD units. On the same day, MARA advised Mr Finlayson by email that it had received notification that he had completed the requisite CPD points (attachment to exhibit 3).
11. Mr Lo submitted that the date on which Mr Finlayson applied for repeat registration was 12 May 2005 being the day on which the application was received by MARA. On that date, the relevant CPD points had not been accumulated by Mr Finlayson. Therefore, he submitted, the legislative requirements were not met. He submitted that Mr Finlayson was sent a letter on 8 March 2005 which reminded him of the need to apply for repeat registration by the date of expiration of his then registration ie 15 May 2005. As noted above, he conceded that this was extended to 16 May 2005 because of subsection 36(2) of the AIA. He submitted that the letter also gave Mr Finlayson notice of the requirements in the legislation including the need for the qualifications to be obtained within the 12 months immediately before the application was made. Mr Lo conceded that the requisite qualifications had been completed by Mr Finlayson on 16 May 2005 but submitted that that this was too late to comply with the terms of the Act and the Regulations which set the date on which the application was made, ie 12 May 2005, as the relevant date. Mr Lo noted that Mr Finlayson, in his application, had foreshadowed the completion of the CPD activities. He submitted that this did not change the fact that the date of receipt of the application was 12 May 2005 and that, on that date, there had not been compliance with the legislative requirements.
12. Mr Lo referred to section 311 of the Act which required MARA to act according to substantial justice but submitted that this did not change the strict time-frame requirements noted above.
13. Mr Lo submitted that the Act and Regulations had been amended from 1 July 2004 to provide clarity in the manner in which registration procedures were carried out. He referred to the Explanatory Memoranda to the amending Act and Regulations as indicating an intention to both clarify the procedure and provide certainty in its operation. He further submitted that a treatment of Mr Finlayson’s application as being within time would erode the certainty of the Act and Regulations and would enable an existing agent to set the agenda for extension of a previous registration period. In that regard, he referred to section 300 of the Act which enables registration to be automatically continued in some situations. On that basis, he submitted, a person could make an application, complete the qualifications later and have a continuation of registration through the operation of that provision. He submitted that it was this kind of situation which the amendments purported to overcome.
14. Mr Boccabella submitted that the relevant date of the application in this matter was 16 May 2005. While conceding that the application form had been received by post by MARA on 12 May 2005, he referred to the notation by Mr Finlayson in the form that he would be completing the requirements over the next few days and that the certification would be provided to MARA on Monday 16 May 2005. He submitted that legislation relating to electronic transactions enabled the claim to be made in part by writing and in part electronically. He submitted that regulation 3Y had no application because it was not a situation where the registration application had been sent by pre-paid post alone. Rather, the application was sent, in part, by pre-paid post and, in part, electronically. He also noted that that the electronic component had been acknowledged by MARA prior to the expiration of the previous registration period on close of business on 16 May 2005.
15. Mr Boccabella referred to section 311 of the Act which provided that MARA, when dealing with a registration application, was not bound by technicalities, legal forms or rules of evidence and must act according to the substantial merits of the case. He submitted that strict compliance with form was not required and that substantial compliance with the registration procedures was sufficient.
Consideration
16. Documents relating to the acceptance of registration of Mr Finlayson’s application in May 2004 show that, in that year, Mr Finlayson adopted the same procedure as he did for 2005. His 2004 application was received by MARA on 14 May 2004 and he completed the requirements over the next two days. In that year, MARA accepted the application. The legislative structure has changed in the twelve months between Mr Finlayson’s 2004 application and the one in 2005 through the enactment of the Migration Legislation Amendment (Migration Agents’ Integrity Measures) Act 2004. Section 290A of that Act introduced the requirement that the CPD points must be completed in the twelve months immediately before the date on which the application for registration is made. The Explanatory Memorandum to the Bill for that provision reads:
“Section 290A
2. In broad terms, section 290A of the Act requires an applicant, who has been registered at some time in the twelve months before making the application for registration, to meet the requirements for continuing professional development described in the Regulations.”
3. This item amends section 290A of the Act to clarify that such an applicant must meet the requirements for continuing professional development within a prescribed period.
4. It is envisaged that regulations will be made to require such applicants to meet the continuing professional requirements within the twelve month period before making an application for registration (with a qualification that if an Agent is applying before his or her registration ends, only the current registration period is to qualify). This will ensure that applicants for re-registration have knowledge of Migration Law and procedure that is current and up-to-date.”
17. The Migration Agent Amendment Regulations 2004 also dealt with the registration process. The Explanatory Memorandum relating to clause 1 of Schedule 1 reads:
“A registered Migration Agent applying for registration, or an individual who had been registered at any time in the twelve months immediately before making an application for repeat registration, must:
(a) give the Authority a written statement made by the Agent that:
(i) states that the Agent has met the requirements of this schedule; and
(ii)includes a list of the activities that the Agent has completed for which the Agent claims points; and
(b) have kept written records about each activity for which the Agent claims points, including any documents given to the Agent by the provider of the activity (if any) confirming that the activity was completed.”
18. The purpose of the amendments to the Act and Regulations is to ensure that an agent seeking re-registration has completed the required PDC points when the application for registration is made. An application form from Mr Finlayson was received by MARA on 12 May 2005. It was sent by pre-paid post and, if it were complete, it would be taken, by subsection 288(4) of the Act and reg 3Y of the Regulations, to have been made on that day. However, it was not complete. At Question 12 of the form, which relates to CPD points, Mr Finlayson wrote:
“My CPD points will be confirmed on or before 15/05/05. A list of CPD activity will be forwarded on or before 16/05/05 (as 15/05/05 is a Sunday).”
19. The application form foreshadowed that the information concerning the CPD points would be provided by 16 May 2005. They were so provided by electronic means and this was acknowledged by MARA. Sections 8 and 9 of the Electronic Transactions Act 1999 make provision for notification by those means. The application was not made solely in the document received on 12 May 2005 by MARA by pre-paid post and I am satisfied that the completed application was not made by Mr Finlayson until 16 May 2005.
20. I have noted the concern expressed by Mr Lo that allowing the application to be treated as having been received after 12 May 2005 would enable an existing agent to set the agenda for extension of a previous registration period. Section 300 of the Act enables registration to be automatically continued in some situations. It reads:
“Sect 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.
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.”
21. It is material to my decision in this case that the date nominated by Mr Finlayson in his application form was the same date upon which his previous registration would expire. There was no attempt by him to take his registration period beyond that date. The position would, no doubt, be different if he had purported to do so or had been unsuccessful in completing the CPD points by 16 May 2005.
22. Of significance in this matter is section 311 of the Act which, in so far as relevant, reads:
“SECT 311 Migration Agents Registration Authority not bound by legal forms etc.
The Migration Agents Registration Authority, in considering a registration application or …………………..:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.”
23. To similar effect is section 25C of the AIA which reads:
“Sect 25C Compliance with forms
Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient.”
24. The registration procedure is a necessary one for Mr Finlayson to comply with in order for him to be able to carry out his work as a migration agent. It was not disputed by Mr Lo that there were difficulties faced by Mr Finlayson in obtaining the CPD points in the country region of Queensland in which he lives. The incomplete application form arrived by post to MARA on Friday 12 May 2005. If it had been delayed in the post, it may have arrived on the following Monday 16 May 2005 by which time he would have completed the CPD requirements and have electronically notified MARA of this. I am satisfied that, if acting in accordance with substantial justice and the merits of Mr Finlayson’s case, his application for re-registration should not be refused on the basis relied upon by MARA.
Decision
25. The decision under review is set aside and remitted to the respondent with a direction that Mr Finlayson’s application for repeat registration as a migration agent be processed on the basis that he completed the requisite CPD points at the time of his application.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Jeff Mills
Legal Research Officer
Date of Hearing 8 November 2005
Date of Decision 16 November 2005
Counsel for the Applicant Mr L Boccabella
Solicitor for the Respondent Mr J Lo, Clayton Utz
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