Griffiths v Migration Agents Registration Authority

[2001] FCA 441

FEDERAL COURT OF AUSTRALIA

Griffiths v Migration Agents Registration Authority [2001] FCA 441

DAMIAN GERARD GRIFFITHS v MIGRATION AGENTS REGISTRATION AUTHORITY
Q 76 OF 2001

DRUMMOND J
BRISBANE
18 APRIL 2001

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 76 OF 2001

BETWEEN:	DAMIAN GERARD GRIFFITHS APPLICANT
AND:	MIGRATION AGENTS REGISTRATION AUTHORITY RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	18 APRIL 2001
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.On the applicant by his senior counsel giving the usual undertaking as to damages, the respondent forthwith renew the applicant’s registration as a migration agent sought by application delivered to the respondent on 15 March 2001.

2.There be liberty to apply.

3.The matter be adjourned for further directions to 24 May 2001.

4.The question of the costs of today’s proceedings be reserved to 24 May 2001.

5.Each party notify the other by 21 May 2001 of any orders, including orders as to costs, that they will be seeking.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 76 OF 2001

BETWEEN:	DAMIAN GERARD GRIFFITHS APPLICANT
AND:	MIGRATION AGENTS REGISTRATION AUTHORITY RESPONDENT

JUDGE:	DRUMMOND J
DATE:	18 APRIL 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. I have before me a notice of motion seeking by way of interlocutory relief an order that the respondent Authority forthwith renew the applicant’s registration as a migration agent until the hearing of the applicant’s application for an order of review filed on 12 April 2001.  By this application for an order of review the applicant sought by way of final relief an order that the respondent decide within such period as this honourable Court deems appropriate, whether the applicant’s registration as a migration agent ought to be renewed.  Interlocutory relief in terms of the notice of motion was also there claimed.

2. On 15 March 2001, the applicant filed an application for renewal of his registration as a migration agent. His current registration expired yesterday, 17 April 2001. Under s 299(1) the Migration Act 1958 (Cth), registration as a migration agent is only for a twelve month period, though the Authority can cancel a registration within that twelve month period under s 303. But registration can be renewed, or, more accurately, a new twelve month registration can be obtained on application made. To aid continuous registration, notwithstanding the twelve month period of each registration that is all that is available under the legislation, the Authority is obliged by s 301 to warn each agent of the expiry of its current registration by notice to be given one month before expiry of the then current registration period.

3. The current registration of the applicant has on one view now expired by effluxion of time, though it was earlier cancelled by the Authority.  In any event, there is nothing in the Migration Act that permits the Authority, or this Court, to renew that dead registration.

4. The applicant seeks review under s 7 the Administrative Decisions (Judicial Review) Act 1977 (Cth) of the Authority’s failure to make a decision on his pending application lodged on 15 March 2001 for renewal of his now expired registration. The solicitor who appears for the Authority did not dispute the availability of such review under the ADJR Act. He submitted, however, that the Court’s powers were limited to making orders of the kind provided for by s 16 the ADJR Act. 

5. Though registration lasts only for a maximum of twelve months, the Migration Act envisages that a person is entitled to an unbroken series of twelve monthly registrations, unless the Authority promptly concludes that one of the statutory grounds for refusing registration under ss 290 to 294, or for cancelling an existing registration under s 303 is made out.  See ss 289(1) and 299(1) respectively.  The registration provisions of the Migration Act are designed to regulate, by registration of suitable persons, the conduct of what is now the well-established practice of persons carrying on business as intermediaries between the Australian migration authorities and foreigners desirous of obtaining the right to reside in Australia. See, by way of example, ss 287(2)(b) and (c); 288(3); 290A; Div 3A of Pt 3; ss 312(f) to (h) and 313 the Migration Act.  Section 289(2) requires the Authority to register an applicant “as soon as possible”, and s 301 obliges the Authority to give each registered agent one month’s prior notice of expiry of his or her current registration.

6. In my opinion, the Court’s interlocutory jurisdiction under s 23 the Federal Court of Australia Act 1976 (Cth) is not excluded by anything in the ADJR Act or the Migration Act.  This jurisdiction empowers the Court to grant an interlocutory injunction for the purpose of protecting a registered agent’s entitlement to a continuous series of registrations.  See Fletcher v Foodlink Ltd (1995) 60 FCR 262 at 264 -265. That a mandatory interlocutory injunction is sought is, in these circumstances, no reason for the Court to require any specially clear proof of the strength of the applicant’s case for final relief. See McDermott v BP Australia Ltd (1997) ATPR 41-547 at 43,602.

7. There is a long history of disputation between the applicant and the Authority as to his fitness to be a registered migration agent. It is set out in some detail in the applicant’s affidavit. The applicant was first registered in 1996. He has been continuously registered since then, save that on 21 December 2000 the Authority cancelled his then current registration. The applicant was, however, able to persuade the Administrative Appeals Tribunal (“the AAT”) to whom he made application under s 306 the Migration Act for review of that cancellation decision, to order on 16 January 2001 that:

   “... implementation of the decision of the [Authority] be stayed until the determination of the application for review or until further order.”

8. It is therefore arguable that, although the AAT has not yet heard the review application and although the applicant’s registration the subject of those review proceedings may in any event have expired yesterday, that registration was in full force and effect in view of the stay order from 17 April 2000 to yesterday, save only for the period from 21 December 2000 to 16 January 2001.

9. The applicant has, in my opinion, an arguable case that the Authority has failed in its statutory duty under s 289(2) to deal as soon as possible with his application for re-registration that was filed on 15 March 2001.  The sequence of relevant events in this regard is set out in certain of the correspondence that is exhibited.  The first relevant event occurred on 14 February 2001, when the Authority gave the notice required by s 301 if the pending expiry of the applicant’s then current registration, ie, the registration the cancellation of which was the subject of the AAT’s stay order.  On 14 March the applicant’s solicitors wrote to the Authority in the following terms:

   “Our client has handed us your letter to him dated 14 February 2001 regarding the first and final reminder for repeat registration as a commercial/full profit migration agent.  e note our client’s registration is due to expire on 15 April 2001.

   …

   In respect of the detailed answers for questions 12, 13, 14, 15(c) and (d), we refer you to your own Show Cause Notices, the subject of which are now before the Administrative Appeals Tribunal

   …

   In light of the recent history of this matter and the fact that the authority decided to cancel our client’s registration on 21 December 2000, we seek confirmation in writing of whether you are considering not reregistering our client post 15 April 2001.

   We require you to respond by Wednesday, 21 March 2001 failing which we will assume the worst.”

10. No reply was received, and on 22 March 2001 the applicant’s solicitor wrote to the Authority requesting a response.  On 30 March 2001, still not having received any response from the Authority, the solicitor again wrote calling for an answer.  On 5 April 2001 the solicitor again wrote, recording the failure of the Authority to respond to any of the correspondence he had sent, and again asked for a response.  That produced a reply dated the same day, 5 April, from the Authority.  It reads in part:

    “Your application for repeat registration was received by the Secretariat of the Migration Agents Registration Authority on 15 March 2001. 

    The Authority considered your application at its meeting on 21 March 2001.

    The Authority must consider section 290 of the Migration Act 1958 (the “Act”). Section 290 of the Act states:

    …

    The Authority is considering refusing your application for repeat registration pursuant to section 309(1) of the Act. On 21 December 2000 the Authority made a decision to cancel your registration. On 21 March 2001 the Authority also decided to give you a caution. The materials from which the Authority based its decisions to caution you and cancel your registration were reviewed. Based on that evidence it is open for the Authority to be satisfied that you are not a fit and proper person to give immigration assistance and that you are not a person of integrity.

    Before considering your application further, the Authority invites you to make a submission on this matter pursuant to section 309(1) of the Act.

    …

    Your submission is to be received by the Authority no later than 8.30 am on 27 April 2001.”

11. The applicant’s solicitor replied on 10 April 2001 in these terms:

    “In order for our client to make the appropriate submissions to you in respect of his application for repeat registration as a migration agent, we ask that you specifically identify those matters contained in your decisions to both cancel our client’s registration on 21 December 2000 and to caution him on 21 March 2001, that you intend considering in your deliberations regarding his application.

    Please provide the information requested no later than 12 April 2001 so that our client’s submission can be provided to you by the specified deadline.”

12. On 12 April 2001, ie, the Thursday before Easter, not having had a response the solicitor for the applicant wrote in these terms:

    “As you are aware, our client’s current registration expires on 15 April 2001 and, as that day and the following day are public holidays, he will no longer be registered after 17 April 2001.

    On 14 March 2001, on behalf of our client we forwarded to you his application for repeat registration …  At the time when our client’s application was submitted for your consideration, we asked you to notify us by 21 March 2001 whether the Authority was considering not renewing our client’s registration.

    That date came and went without response from you and follow-up letters of 22 March 2001 and 30 March 2001 were not responded to until, after we again wrote to you on 5 April 2001, you forwarded a facsimile directly to our client …

    …

    In the meantime, our client is in an invidious position regarding his registered status.  Simply, as you are well aware from material placed before the Administrative Appeals Tribunal in support of our client’s application for a stay of the Authority’s cancellation decision of 21 December 2000, there will be severe consequences for our client if he is deprived of his registered status, even if that is only for a short period of time.  As well, if that was to occur there are third party interests that will be affected, and in a most serious way.

    Accordingly on behalf of our client we seek your undertaking in writing that, until the determination by the Authority of our client’s application for repeat registration, the Authority in all respects will treat our client as though he continues to be registered as a migration agent despite the expiration of the 12-month statutory period.”

13. On the same Thursday, 12 April, the solicitor wrote an urgent facsimile seeking a response to his letter sent earlier that day and this produced, in the course of the afternoon, a facsimile from the Authority which in part read:

    “In reference to your request that your client remains registered pending the outcome of a decision from the Authority, you are reminded that pursuant to Division 2 of the Migration Act 1958 (the “Act”) there are penalties on giving of immigration assistance whilst not registered including imprisonment for 10 years. 

    It is currently and has been the practice of the Authority that once an agent’s registration lapses, the agent is notified of this fact of the time, in writing and no extension of time is available.”

14. Given the information available to the Authority prior to receipt of the applicant’s re-registration application on 15 March 2001, with respect to his fitness to be registered and the Authority’s prima facie justifiable concerns about that issue, it is arguable that the Authority, by no later than 12 April 2001, had failed to comply with its duty to make a decision whether to register the applicant, even allowing for discharge by the Authority of its obligation under s 309(1) to give the applicant proper opportunity to comment on its intention to refuse registration.  There would appear to be no reason why the Authority could not have complied with s 309(1) upon receipt of the applicant’s application on 15 March 2001, given what the Authority had to say in its letter of 5 April 2001 about its intention to have regard to its 21 December 2000 cancellation of the applicant’s registration and to its 21 March 2001 caution decision, in considering whether to refuse the applicant’s application of 15 March 2001 for re-registration.

15. The evidence before me shows that there is a substantial issue as to the applicant’s fitness to be registered as a migration agent.  But that does not, in my opinion, detract from the fact that the legislation provides for a scheme of unbroken registrations necessary to enable a person to carry on business as a migration agent and that prompt decision making by the Authority on applications for registration including applications for re-registration like that lodged by the applicant is an integral element of that scheme. 

16. In my opinion, the evidence as to the applicant’s fitness to be a registered migration agent therefore does not weaken to any significant degree the case he has that the Authority is in breach of its duty to determine his re-registration application of 15 March 2001 as soon as possible.  It can be said to be a strong case in that respect.  In saying that I do not express any opinion at all about the strength or weakness of any case the applicant may have in the future should the Authority cancel, for want of fitness, the re-registration which I think it must now grant to the applicant.  It is neither necessary nor appropriate for me to deal with that issue which at the moment is moot.

17. I turn now to the balance of convenience.  In my opinion, it is all one way in favouring the grant of interlocutory relief.  The applicant has, on the evidence before me, built up a substantial business as a migration agent over the past five years.  It is his sole source of income.  He will suffer substantial financial hardship if his business is stopped, as it must be by the termination of his registration on 17 April 2001 and the failure of the Authority to make a decision on whether to re-register him from that date.  His source of income will dry up.  He is likely to go into default under various financial arrangements he has with his bank and credit card providers and under various equipment and office leases.  His business goodwill will be damaged.

18. Third parties will suffer if relief is not now granted.  His fourteen employees here and overseas will in all probability be dismissed.  His current clients are likely to suffer at the very least delay and disruption in having their visa applications determined by the Department.

19. Should the Authority ultimately decide to re-register him, his financial loss is likely therefore to be large.  Whether he could recover compensation from the Authority for such loss, in that event, is not at all clear.  Quantification of the loss will in any event be difficult.

20. If the injunction is granted, it was conceded that the Authority will not suffer any prejudice.  In this respect it is worthy of note that though it has had only brief notice of the present application for interlocutory relief the Authority has not sought any opportunity to put on evidence of newly emerged concerns with the fitness of the applicant to be re-registered.  Its prima facie justifiable concerns in that regard all relate to events of which it has long been aware. An interlocutory order directing the Authority to re-register the applicant now may, in view of s 299(1), have the prima facie effect of achieving the applicant’s registration until 17 April 2002:  I do not think I can order the Authority to register the applicant for a shorter period than that fixed by the Parliament.  But the Authority’s power of cancellation under s 303 is, in my opinion, ample in width to ensure that the Authority will not be hampered by any such interlocutory injunction from acting to protect the public interest immediately should it become satisfied at some future time that the applicant is not fit to remain registered.

21. The applicant is effectively obtaining final relief more expansive than that sought in its notice of motion and indeed in its originating application. But that is the result of the narrow, legislative framework which, on the one hand, requires all registrations to be for twelve months and denies the Authority and the Court power to extend an existing registration in order to complete an investigation or litigation current when an existing registration lapses by effluxion of time while, on the other hand, it provides a regulatory framework for the conduct of ongoing businesses as migration agents. And, as I have said, the Court’s power to issue an interlocutory injunction under s 23 the Federal Court of Australia Act is not excluded.

22. The order I will make is nevertheless intended to be only interlocutory in character and will be marked by the fact that the usual undertaking as to damages will be required.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated:            19 April 2001

Counsel for the Applicant:	J Bell QC and M Burns
Solicitor for the Applicant:	McCullough Robertson
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	18 April 2001
Date of Judgment:	18 April 2001