Goldsmith and Migration Agents Registration Authority

Case •

[2001] AATA 167

•

6 March 2001

DECISION AND REASONS FOR DECISION [2001] AATA 167

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/1803

GENERAL ADMINISTRATIVE DIVISION        )          
           Re      BARRY GOLDSMITH       
  Applicant
           And    MIGRATION AGENTS REGISTRATION AUTHORITY          
  Respondent

DECISION

Tribunal       Mr R P Handley, Senior Member

Date6 March 2001

PlaceSydney

Decision      The Tribunal affirms the decision under review.           

…………………………
  Senior Member
CATCHWORDS
IMMIGRATION – registration as a migration agent – failure to re-apply for registration – failure to complete course in continuing professional development – expiration of registration – application of relevant legislative provisions – validity of regulations
Migration Act 1958, section 290A
Migration Agents Regulations 1988
Acts Interpretation Act 1901

Shanahan v Scott (1956) 96 CLR 245
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297
Re Bolton, Ex Parte Beane (1987) 162 CLR 514
Scurr v Brisbane City Council (1973) 133 CLR 242
Chun Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386
MHP and Director General, Department of Community Services (2000) FAM CA 673
Hatton v Beaumont (1977) 2 NSW LR 211
Secretary, Department of Social Security v Sword (1991) 23 ALD 52
Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416
Gardner Smith Pty Ltd v The Collector of Customs, (Vic) (1986) 66 ALR 377

REASONS FOR DECISION

R P Handley, Senior Member

  1. This is an application by Barrie Goldsmith ("the Applicant") for a review of a decision of the Migration Agents Registration Authority ("the Respondent") made on 28 November 2000 to refuse the Applicant's application for registration as a migration agent.

  2. At the hearing, the Applicant was represented by Robert Beech-Jones of Counsel.  The Respondent was represented by Leonard Leerdam, solicitor, of Sparke Helmore Solicitors.  The evidence before the Tribunal comprised the documents produced pursuant to section 37 of the Administrative Appeals Act 1975 ("the T Documents") together with the Applicant's statement of 24 January 2001 (Exhibit A).
    background

  3. The Applicant has been registered as a migration agent for some years.  On 14 July 2000, the Respondent sent the Applicant a reminder (T5) that his registration would expire on 21 September 2000 and that, in order to re-register, he was required to complete the enclosed repeat registration form, pay the application fee of $870, and provide evidence that he had completed the annual course in Continuing Professional Development ("CPD").  The Applicant inadvertently forgot both to apply for re-registration and to undertake an annual course of CPD before the expiry of his registration.

  4. By letter dated 26 September 2000 (T7), the Respondent notified the Applicant that his registration had expired.  By letter dated 9 October 2000 (T8), the Applicant re-applied for registration.  That application was returned to the Applicant because he had not signed an acknowledgment that he was aware of the requirement for CPD.  The Applicant signed the acknowledgment under protest and returned this to the Respondent with his letter of 12 October 2000 (T9).  The Applicant had completed requisite CPD activities on 5 and 6 October 2000.

  5. By letter dated 18 October 2000 (T11), the Respondent invited the Applicant to make a submission on whether the Applicant had completed the requisite CPD activities within a 12 month period prior to the expiry of his registration which, the Respondent indicated, was required by the Migration Act 1958. The Applicant responded on 19 October 2000 (T12), noting his disagreement with the Respondent's interpretation of the legislation.

  6. On 28 November 2000, the Respondent decided to refuse the Applicant's application for re-registration on the ground that:

    "The Authority is not satisfied that you have met the requirements prescribed by the regulations for continuing professional development of registered agents pursuant to section 290A of the Act." (T1)

On 1 December 2000, the Applicant lodged an application for a review by the Tribunal (T1).
applicable law and submissions

  1. The facts of this case are not in dispute. At issue is the interpretation of section 290A of the Migration Act 1958 ("the Act") and the relevant provisions of the Migration Agents Regulations 1988 ("the Regulations"). Section 290A states:

    "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 the requirements prescribed by the regulations for continuing professional development of registered agents."

  2. The Regulations state:

    "6. For section 290A of the Act, the requirements of continuing professional development of registered agents are set out in Schedule 1.

Schedule 1 states:

"1. A migration agent must, in the year ending on the anniversary of the migration agent's previous registration, complete approved activities that have a value of at least 10 points."

  1. The Applicant contends that the proper construction of these provisions is that an applicant for repeat registration who is not registered at the time of making the application but who has been a registered agent within 12 months of applying, must have completed the CPD requirements within 12 months of applying. By contrast, the Respondent contends that for section 290A to apply, a repeat applicant must have completed the CPD requirements in the 12 months before the expiry of his or her registration. Thus, in the Applicant's case, he must have completed the CPD requirements by 21 September 2000, after which his registration expired. Having not done so, section 290A no longer applied to the Applicant and he should be treated as a new applicant for registration who must comply with the different requirements in respect of the registration of new applicants (see section 288).

  2. The history of section 290A is that it was inserted by the Migration Legislation Amendment (Migration Acts) Act 1997 and commenced immediately before 21 March 1998. Part 1 of Schedule 3 of the Amending Act, which set out the new provisions for the continuing professional development of registered agents, including section 290A, stated the object of this Schedule:

    "1 Object
    This Schedule makes amendments to provide for continuing professional development of registered agents by:
    (a) requiring migration agents to apply for registration each year; and
    (b) requiring applicants for repeat registration to meet prescribed standards of continuing professional development (as well as standards of good character)."

  1. How should section 290A and the relevant provisions of the Regulations be interpreted? The Applicant reminded the Tribunal that section 15 AA(1) of the Acts Interpretation Act 1901 requires that a:

    "…construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object."

The relevant part of the object of the amendments in the Amending Act pertaining to CPD, quoted above, is that applicants for repeat registration as migration agents should be required to meet prescribed standards of CPD.

  1. Section 290A appears to apply to an applicant who "has been registered at some time in the 12 months before the making of the application". The Applicant drew attention to the words "has been registered" and submitted this meant that the person must have been a registered agent (ie. the person's name must have appeared on the register) within the past 12 months rather than, as submitted by the Respondent, that the person has actually been registered within the past 12 months.

  2. The Applicant also submitted that the words "has not met the requirements", in the second half of section 290A, when read in the context of an applicant who "has been registered at some time in the 12 months before making the application", meant that it is the time at which repeat registration is sought which is critical and not the time when the person's previous registration expired. The Respondent contended that in the light of the provisions of the Regulations, there was no basis for such a construction.

  3. Paragraph 1 of Schedule 1 of the Regulations is more explicit than section 290A. It states "a migration agent must, in the year ending on the anniversary of the migration agent's previous registration, complete approved activities that have a value of least 10 points."

  4. The Applicant contended that there was a mistake in the drafting of paragraph 1 in that it is inconsistent with section 290A. The Applicant submitted that delegated legislation cannot validly operate to undermine or vary the intended scope of the enabling legislation, and must, to the greatest extent possible, be read in a manner consistent with the Act and its purpose. The Applicant cited Shanahanv Scott (1956) 96 CLR 245 at 250, where the High Court emphasised that the power to make Regulations does not enable the authority:

    "…to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the exclusion of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to affirm its ends."

Section 46 of the Acts Interpretation Act 1901 provides for regulations to be construed so as not to exceed the power granted by the enabling Act.

  1. The Applicant also referred to extrinsic materials in order to clarify the meaning of the provisions and in support of his submission.  The Respondent contended that there was no ambiguity about the legislative provisions.  Schedule 1 of the Regulations prescribed a clear procedure for applicants for repeat registration and failure to follow this procedure must lead to a prohibition on registration.  However, the Respondent also referred to extensive material in support of its submission as to how the legislation should be interpreted.

  2. Section 15 AB(1) of the Acts interpretation Act 1901 provides for reference to extrinsic material in the interpretation of an Act in certain situations:

    "Section 15 AB
    (1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
    (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
    (b) to determine the meaning of the provision when:

    (i) the provision is ambiguous or obscure; or
    (ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.

  3. The extrinsic material that may be considered, whilst not limited to that set out in section 15AB(2), is stated to include any explanatory memorandum relating to a Bill (paragraph (e)) and the Second Reading Speech made to a House of Parliament by the Minister moving the reading of the Bill (paragraph (f)).

  4. In relation to section 15AB(1), the Tribunal must consider whether it is necessary to refer to such extrinsic material either (section 15 AB(1)(a)) "to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision", or (section 15 AB (1)(b)) "to determine the meaning of the provision when: (i) the provision is ambiguous or obscure; or (ii) the ordinary meaning…is manifestly absurd or is unreasonable".

  5. The Applicant referred to the High Court decision in Cooper Brookes(Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 where Mason and Wilson JJ at 320, referring to the "so-called 'golden rule' of construction" state:

    "Departure from the ordinary grammatical meaning cannot be restricted to cases of absurdity and inconsistency.
    In some cases in the past these rules of construction have been applied too rigidly. The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument received as a whole."

That absurdity and inconvenience in statutory interpretation are to be avoided was, however, emphasised by the High Court in Re Bolton, Ex Parte Beane (1987) 162 CLR 514 (see, for example, Gaudron J at 546).

  1. The Respondent also referred the Tribunal to a number of authorities on statutory interpretation. With regard to Cooper Brookes (supra), the Respondent referred to the judgement of Gibbs CJ at 304, where he said:

    "However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of an unambiguous provision is that "it may degrade into mere judicial criticism of the propriety of the acts of the Legislature", as Lord Moulton said in Vacher and Son Ltd v London Society of Compositors (1913) AC 107, at p130; it may lead judges to put their own ideal of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice."

  1. With regard to section 15 AB 1(a) and (b) of the Acts Interpretation Act 1901, the Respondent referred to the High Court decision in Re Australian Federation ofConstruction Contractors; Ex parte Billing (1986) 68 ALR 416 at 420 where the Federal Court states:

    "…
    Section 15 AB of the Acts Interpretation Act 1901 (Cth), as amended, does not permit recourse to that speech [a Second Reading Speech] for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be confirmed is ambiguous or obscure or its ordinary meaning leads to a result that is manifestly absurd or is unreasonable…"

  2. However, in Gardner Smith Pty Ltd v The Collector of Customs (Vic) (1986) 66 ALR 377 at 383, the Full Federal Court emphasised that section 15 AB(1)(a) permits reference to extrinsic material to confirm that the meaning of the provision is the ordinary meaning. Although in Secretary, Department of SocialSecurity v Sword (1991) 23 ALD 52 at paragraph 10, page 55, Gray J criticised the reasoning of a tribunal decision on the grounds that it failed to make clear whether the reference to extrinsic material was for the purpose of section 15AB(1)(a) or (b).

  3. The question which the Tribunal must resolve is how section 290A and paragraph 1 of Schedule 1 of the Regulations should be interpreted. A consideration of extrinsic material can be justified in order to confirm that the ordinary meaning conveyed by the text should be accorded to section 290A (section 15AB(1)(a)). First, the Applicant referred the Tribunal to the Explanatory Memorandum issued with the 1997 Amending Bill, by which section 290A was inserted into the Act, which contained the following statement:

    "139. New section 290A prohibits registration of a person who has failed to satisfy prescribed requirements for continuing professional development. These requirements will be set out in the regulations and are expected to cover education, research and pro bono work performed by the agent."

  4. Secondly, the parties referred the Tribunal to the Second Reading Speeches on the 1997 Amending Bill, both in the House of Representatives and the Senate.  In his Second Reading Speech in the House of Representatives on 1 October 1997, the Minister for Immigration and Multicultural Affairs, Phillip Ruddock, made the following statement:

    "At present once an agent is registered, there are no incentives for them to maintain or improve their knowledge and professional competency. Clients, therefore, have no way of knowing whether an agent has made the effort to keep abreast of changes to the Migration Act and regulations. The bill contains provisions designed to improve the competency and ethical practice of all migration agents. From 21 March 1999, all agents seeking to re-register must demonstrate that they have met criteria in relation to undertaking continuing professional development. The details of this requirement will be set out in regulations.
    Agents who fail to meet this requirement will be refused re-registration and will not be permitted to continue to practise in the industry until they reapply and meet the requirements. I am aware that this is a serious measure. It potentially affects the livelihood of some people in small business. But it is necessary both in the public interest and in the interests of consumers."

    (Hansard, House of Representatives, No. 15, 1997, 1 October 1997, 8933)

  5. In the Senate, the Second Reading Speech on the 1997 Amending Bill was made by the Minister for Aboriginal and Torres Strait Islander Affairs, Senator John Herron, on 11 November 1997:

    "Consumer protection will be enhanced with the introduction of universal competency standards for initial registration.
    In addition, there will be new professional development standards at the re-registration stage. Agents who fail to meet these new standards will be refused re-registration and will not be eligible to re-apply for a further 12 months.
    …
    At present, once an agent is registered, there are no incentives for them to maintain or improve their knowledge and professional competency. Clients therefore have no way of knowing whether an agent has made the effort to keep abreast of changes to the Migration Act and Regulations.
    The Bill contains provisions designed to improve the competency and ethical practice of all migration agents. From 21 March 1999, all agents seeking to re-register must demonstrate that they have met criteria in relation to undertaking continuing professional development. The detail of these criteria will be set out in the Regulations.
    The requirement to meet professional development criteria will have to be met by agents every twelve months when they seek re-registration. Agents who fail to meet this requirement will be refused re-registration and will not be permitted to continue to practice in the industry until they re-apply and meet the requirements.
    The Government is aware that this is a serious measure. It potentially affects the livelihood of some people in small business. But it is necessary, both in the public interest and in the interests of consumers.
    Senators will appreciate that the integrity of the Government's migration program can be compromised by unscrupulous and exploitative practice by migration agents. And consumers currently have no guarantee that the agent they are paying to give them professional advise is, in fact, fully competent.
    If this requirement for continuing professional development has the effect of dissuading some agents from remaining in the industry because they do not wish to improve their practice, then the industry – and the community – would be better off without them."
    (Hansard, Senate, No 18, 1997, 11 November 1997, 8788 and 8791, respectively)

  6. Another document, to which the Applicant referred the Tribunal in relation to the interpretation of paragraph 1 of Schedule 1 of the Regulations, is the Explanatory Statement issued by the Minister in respect of the Regulations.  This states:

    "Schedule 1 – Continuing Professional Development
    Schedule 1 sets out the requirements for migration agents with respect to continuing professional development for section 290A of the Act.
    Clause 1 provides that a migration agent must complete approved activities with the cumulative total of at least 10 points in the year preceding the year for which the applicant is applying for registration as a migration agent."

  1. The other matter of statutory construction to which the Respondent referred is in relation to the use of the word "must" in section 290A. Section 290A states an applicant "must not be registered" if the Respondent is satisfied that the applicant has not met the prescribed CPD requirements. The Respondent submitted that use of the word "must" in this context indicated a mandatory requirement. In the NSW Court of Appeal decision in Hatton v Beaumont [1977] 2 NSW LR 211, Mahoney J said the effect of determining that a provision is mandatory

    "…in general, will be that non-compliance with the provision will result in the 'total failure'…of anything sought to be done under the legislation, and of any rights which otherwise would flow from it."

However, he went on to say:

"Before a provision is held mandatory, a court should be clearly satisfied that the part played by the particular provision in the attainment of the general object intended to be secured by the legislation, is such that it is necessary or appropriate to visit non-compliance with consequences of that kind."

  1. The Respondent also referred to the cases of MHP and Director-General Department of Community Services [2000] Fam CA 673, Chun Wang v Minister forImmigration and Multicultural Affairs [1997] 71 FCR 386, and Scurr v Brisbane CityCouncil [1973] 133 CLR 242, in support of its contention that "must" is generally an indication that strict compliance is required.

  2. The Applicant submitted that the object stated in the 1997 Amending Act, when read in conjunction with the extrinsic material, indicated that the CPD requirements were intended to serve a consumer protection role – to ensure standards are met by those applying for re-registration. There was nothing in either the stated object or section 290A to suggest there was any punitive intent to these provisions. The Applicant argued that the extrinsic material suggesting a punitive intent – the first part of the Minister's Second Reading Speech in the Senate – was referable to section 291 of the Act rather than section 290A. Section 291 states:

    "An applicant must not be registered if he or she has been refused registration as a migration agent within 12 months before his or her application."

The Applicant submitted that for non-compliance with CPD requirements to attract punitive consequences required an explicit statement to this effect in the Act. Thus, the Tribunal should accord section 290A its ordinary, literal meaning. It is paragraph 1 of Schedule 1 of the Regulations which is inconsistent with the remainder of the legislative scheme and should be considered invalid to the extent of the inconsistency.

  1. The Respondent submitted that there is no inconsistency between section 290A and paragraph 1 of Schedule 1 of the Regulations. The purpose of the CPD requirements is to ensure the competency of migration agents by requiring that they remain up-to-date in the 12 months during which the person is practising as an agent. That there are harsh consequences for non-compliance is not a sufficient reason not to adopt the plain meaning of the provisions.
    the tribunal's reasoning

  2. The Tribunal's task is to determine the meaning of the relevant legislative provisions and how they should be applied in the Applicant's case. As stated above, there is no dispute as to the facts. There are two legislative provisions to be considered: section 290A of the Act and paragraph 1 of Schedule 1 of the Regulations.

  3. In the Tribunal's view, section 290A comprises two parts. The first part determines whether or not the section applies. Was the applicant registered as a migration agent at some time in the 12 months before making the application for repeat registration? If the applicant was so registered, then the second part applies. The applicant must not be registered if the Respondent is satisfied that the applicant has not met the CPD requirements prescribed by the Regulations for registered agents.

  4. Such an interpretation of section 290A relies on what the Tribunal considers to be the ordinary, literal meaning of the words. The Tribunal then had regard to section 15 AA (1) of the Acts Interpretation Act 1901 which states that a construction that promotes the purpose or object of the Act shall be preferred to one that does not. In the Tribunal's view, the ordinary, literal meaning accords with the Object Clause stated in the 1997 Amending Act, which refers to applicants for repeat registration being required to meet prescribed standards of CPD. Thus, it is unnecessary to consult extrinsic materials, as permitted by section 15AB(1) of the Acts Interpretation Act 1901.

  5. However, if, as permitted by section 15AB(1)(a), reference is made to extrinsic materials "to confirm that the ordinary meaning of the provision is the ordinary meaning conveyed by the text of the provision", then, in the Tribunal's view, the ordinary meaning is confirmed. Neither paragraph 139 of the Explanatory Memorandum for the 1997 Amending Bill, quoted above, nor the Second Reading Speeches in either the House of Representatives or the Senate suggest otherwise. These refer to applicants for repeat registration being required to meet CPD requirements set out in the Regulations. This is stated to be necessary both in the public interest and in the interest of protecting consumers.

  6. Does section 290A apply to the Applicant? It seems clear that it does. First, the Applicant was registered as a migration agent in the 12 months before making his application for repeat registration in October 2000. Thus, the Applicant must not be registered if the Respondent is satisfied that the Applicant has not met the CPD requirements prescribed by the Regulations.

  7. Paragraph 1 of Schedule 1 of the Regulations requires that a migration agent must, in the year ending on the anniversary of the agent's previous registration, complete approved CPD activities that have a value of at least 10 points. Section 46(1)(a) of the Acts Interpretation Act 1901 provides that the Interpretation Act also applies to delegated legislation. Thus, the same principles of construction apply. A consideration of the ordinary meaning of paragraph 1 of Schedule 1 is uncomplicated: it is clear that the paragraph requires that a migration agent applying for repeat registration must, in the year ending on the anniversary of the agent's previous registration, have completed the prescribed CPD activities.

  8. There is nothing ambiguous or obscure about the language of paragraph 1.  However, section 15AB(1)(b)(ii) also permits reference to extrinsic material where:

    "…the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable".

The Tribunal considered the stated object in respect of the CPD requirements introduced by the 1997 Amending Act and the language of section 290A itself. There is nothing in those provisions to suggest that the ordinary meaning of paragraph 1 of Schedule 1 is manifestly absurd or unreasonable, although, as the Applicant argued, paragraph 1 does go beyond the terms of section 290A in stating that the CPD activities must be completed in the year ending on the anniversary of the agent's previous registration.

  1. Reference to the Explanatory Memorandum for 1997 Amending Bill provides no further enlightenment, nor does the Minister's Explanatory Statement issued in respect of the Regulations.  Extracts from the Second Reading Speeches in the House of Representatives and the Senate indicate the seriousness of the Government's intention in requiring that agents applying for repeat registration who do not comply with the CPD requirements, will be refused re-registration, despite its effect on the livelihood of those persons.  Nevertheless, this is stated to be necessary, both in the public interest and in the interest of consumers.

  2. The Tribunal concluded that there was nothing in the extrinsic material to suggest that the ordinary meaning of paragraph 1 of Schedule 1 is manifestly absurd or is unreasonable.

  3. The other issue raised by the Applicant was the validity of the Regulations. The Applicant argued that paragraph 1 of Schedule 1 was invalid to the extent of any inconsistency with section 290A of the Act. The severability of a part only of a Regulation, which is "in excess of power", is permitted by section 46(1)(b) of the Acts Interpretation Act 1901.

  4. Section 504 of the Act empowers the Governor-General to make Regulations:

    "…not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act..."

The relevant Regulations were made by the Governor-General on 1 April 1998. The Tribunal accepts the Applicant's argument that paragraph 1 of Schedule 1 of the Regulations goes beyond the terms of section 290A in requiring that the CPD requirements be completed in the year ending on the anniversary of the agent's previous registration rather than in the year prior to the application for re-registration stated by section 290A. The question is does this go beyond what is "necessary or convenient to be prescribed for carrying out or giving effect" to the Act?

  1. The Tribunal had regard to the judgment of the High Court in Shanahan v Scott (supra) at 250, outlawing attempts by delegated legislation to widen the purposes of the Act or to add new and different means of carrying them out. (See also Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (Sydney: Butterworths, 2nd ed. 1999), para 14.2 ff.).  The Tribunal also noted Gibbs CJ's warning in Cooper Brookes (supra) at 304, of the dangers of departing from the ordinary meaning of an unambiguous provision, and the possibility that it may lead to judges being influenced by "their own ides of justice or social policy in place of the words of the statute". (See also Gray J in Sword (supra) at para 12.)

  2. The Tribunal notes the seriousness of the Government's intention in refusing re-registration for those who do not complete the CPD activities, stated in the Second Reading Speeches, referred to above.

  3. The Tribunal concluded that paragraph 1 of Schedule 1, whilst going beyond the terms of section 290A, can nevertheless be said to complement the purpose of the Act and should not be regarded as ultra vires and invalid. The Tribunal is aware that the consequences for the Applicant are severe, and will affect the livelihood of his business. However, severe consequences seem to have been contemplated by the Government, and, in all the circumstances, the Tribunal does not consider it has any justification for interfering with the ordinary meaning of paragraph 1 of Schedule 1 of the Regulations.

  4. Therefore, because the Applicant failed to satisfy the CPD requirements prescribed by the Regulations by 21 September 2000, the anniversary of his registration as a migration agent, the Respondent was correct in refusing the Applicant re-registration, and the decision made on 28 November 2000 must be affirmed.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of

R P Handley, Senior Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  29 January 2001
Date of Decision  6 March 2001
Counsel for the Applicant        Robert Beech Jones
Counsel for the Respondent    Michael Snell
Solicitor for the Respondent    Leonard Leerdam

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