Gruszka and Migration Agents Registration Authority
[2022] AATA 2128
•23 June 2022
Gruszka and Migration Agents Registration Authority [2022] AATA 2128 (23 June 2022)
Division:GENERAL DIVISION
File Number(s): 2022/4779
Re:Gruszka
APPLICANT
AndMigration Agents Registration Authority
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:23 June 2022
Place:Sydney
The Tribunal decides that the reviewable decision be stayed on the existing conditions until the hearing and determination of the review.
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Deputy President B W Rayment OAM QC
CATCHWORDS
MIGRATION AGENTS REGISTRATION – application for a stay – suspension of migration agent registration – whether granting a stay would have any utility – effect of s.299 of the Migration Act 1958 – stay application allowed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Regulation of Migration Agents) Bill 2019 (Cth)
Migration Agents Regulations 1998 (Cth)
Migration Legislation Amendment (Migration Agents Integrity Measures Bill) 2003 (Cth)
CASES
Certain Lloyds Underwriters v Cross [2012] HCA 56
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19
Seymour v Migration Agents Registration Authority [2007] FCAFC 5
Scott v Australian Securities and Investment Commission [2009] AATA 798
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
23 June 2022
The applicant has applied for a stay of the respondent’s decision to suspend the registration of the applicant under the Migration Act, 1958 (the Act) as a migration agent for three years from 9 June 2022. Senior Member Poljak made an order, subject to conditions, granting an interim stay of the respondent’s order on 15 June 2022 until the date of the Tribunal’s decision on the interlocutory application or until further order, and the interlocutory application came before me for hearing on 21 June 2022.
Following supplementary written submissions from the parties received after the interlocutory hearing, including submissions from the respondent received on 22 June 2022, these are my reasons for decision on the application for a stay pending the hearing and determination of the application for review, noting that the Tribunal has power to terminate or vary the stay order in the meantime.
The applicant first obtained registration as a migration agent on 13 July 2017 and since then the registration of the applicant has been renewed annually. It was last renewed on 13 July 2021, so that it would expire in the ordinary course (that is, if the suspension order had not been made by the respondent) on 12 July 2022, and would then have been capable of renewal.
One submission of the respondent made before me in opposing the stay application was to the effect that the stay sought by the applicant, if granted, would be inutile, or rather have little utility, and I first rule on that submission in these reasons.
The respondent says that the stay, if granted, would expire on 17 July 2022, being the date on which the respondent says that the current year of the registration would expire. There is a difference between the parties as to whether that date is 12 July 2022, or 17 July 2022, but it is not necessary for me to express a view about that difference. I will call the current year of registration prior to the suspension order the 2021/2022 year, and if necessary the following year may be described as the 2022/2023 year.
The review proceedings are just beginning, and for example, no s.37 documents have yet been filed by the respondent. As the respondent has submitted, it is inevitable that no final orders will be made by the Tribunal by 12 - 17 July 2022.
The respondent argues that any stay granted by the Tribunal must expire by 17 (or 12 or 14) July 2022, and therefore will be of no assistance to the applicant beyond that date. The argument is based on the following propositions;
(a) Since this is a case where the applicant’s registration has been suspended, under s.288(6A) of the Act, even if the applicant soon applies for renewal of her registration the respondent cannot consider it until after the AAT makes final orders on the review;
(b) Further, s.291A of the Act would prohibit registration during a period in which the previous registration would have been suspended;
(c) As the Supplementary Explanatory Memorandum to the Migration Legislation Amendment (Migration Agents Integrity Measures Bill), 2003 highlights, where a stay is granted and the agent’s registration expires while the stay is in force, the legislation operates so as to prevent the agent from being re-registered until the review proceedings are finalised, and if the decision is upheld in the review, until the period of the suspension has completed;
(d) Section 300 of the Act ordinarily allows a registration to continue until one of the events mentioned in s.300(4) occurs, but s.300(2) denies a person the benefit of the section if the registration is suspended and s.300(7) means that the applicant cannot overcome the statutory limitation even if the decision is later stayed;
(e) Relevantly, one of the intentions of s.300 is to prevent a person whose registration has been suspended from obtaining a stay and continuing to practise while the suspension decision is being reviewed;
(f) This is supported by the decision in Seymour v Migration Agents Registration Authority [2007] FCAFC 5 (Tamberlin, Gyles and Stone JJ) at [30]. Their Honours there said:
Mr Seymour points to the hardship an agent would suffer as a consequence of this interpretation, but it must be borne in mind that the legislation is designed to protect the public interest as expressed in the extrinsic material, and is directed specifically to address what is perceived as the undue continuation of deemed registration after the Authority has made a decision adverse to a particular migration agent.
(g) The intended effect of s 300 of the Act is also clear from the Explanatory Memorandum to the Bill that inserted the extant s 300. The Supplementary Explanatory Memorandum to the Migration Legislation Amendment (Migration Agents integrity Measures) Bill 2003 relevantly provides:
1. The purpose of these amendments to the Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003…is to…Clarify issues raised in recent litigation before the Administrative Appeals Tribunal (AAT) concerning the automatic continuation of an agent’s registration under section 300 of the Migration Act 1958 where the Migration Agents Registration Authority…has made a decision to suspend or cancel the agent’s current registration, and the decision has been stayed by the AAT.
…
30. The purpose of the new section 300 is to limit the circumstances in which an agent’s registration can be automatically continued because the MARA has not made a decision in relation to the agent’s application for re-registration before the agent’s current registration expires. This will ensure that an agent’s registration will not be extended for lengthy periods until review proceedings arising from the cancellation or suspension of an agent’s registration…are finalised.
…
35. The purpose of new subsections 300(2) and (3) is to prevent an agent, who has been granted a stay order in relation to a decision to cancel or suspend his or her registration, from extending his or her registration until review proceedings have been finalised.
…
41. New subsection 300(7) makes it clear that, for the purposes of new
section 300, the MARA is taken to have made a decision, even if the
decision is later stayed by the AAT or a court. For example, any orders
made by the AAT or a court staying the operation of a decision to
suspend or cancel an agent’s registration pending finalisation of review
proceedings do not affect the operation of new subsections 300(2) and
(3) to prevent the agent’s registration being continued under new
subsection 300(1).
(h) Turning to s.41(2) of the Administrative Appeals Tribunal Act, 1975, the respondent submits that after the July 2022 expiry date, a stay cannot be said to serve “the purpose of securing the effectiveness of the hearing and determination of the application for review”.
(i) The respondent in oral submissions made by Mr Cleary of counsel on 21 June 2022 referred to paragraph 95 of the explanatory memorandum to the Migration Amendment (Regulation of Migration Agents) Bill 2019, which introduced the current form of s.299 of the Act. Paragraph 95 is as follows:
[95] New subsection 299(2) provides that if the registration is suspended for a period, the period of the registration is extended by a period equal to the period of suspension. This reflects the current subsection 299(3), however, new subsection 299(2) is phrased more simply to assist readers. The purpose of new subsection 299(2), and of current subsection 299(3), is to ensure that if a person’s registration is suspended for a period, they are still able to enjoy a full 12 month registration period. Where the MARA is satisfied that a person’s conduct should result in the person’s registration period ending before the full 12 month registration period is concluded, the MARA can cancel the person’s registration under section 303 provided that one of the grounds mentioned in paragraphs 303(1)(d)-(h) is made out.
In the first of two written submissions filed on 21 June 2022, the applicant submitted, by her counsel Ms Nolan, that the respondent’s submissions overlook s.299 of the Act. That section provides as follows:
Period of registration
(1) Subject to any other provision of this Part (including subsection (2) of this section), the registration of a registered migration agent ends 12 months after the day of registration.
(2) If the registration is suspended for a period, the period of registration is extended by a period equal to the period of suspension.
The applicant submitted that once the suspension decision was made by the respondent, the effect was that the applicant’s period of registration no longer expired in July 2022, but henceforth expired in July 2025, but subject always to the suspension of three years, that is, until 9 June 2025. That situation, she submitted would change if the AAT set aside or varied the suspension decision.
The applicant submitted that if the AAT sets aside the suspension altogether, then she may apply for the renewal of her registration. She submitted that despite the submissions of the respondent summarised in [7] above, the AAT may make a stay order up to the hearing and determination of the applicant’s application for review of the respondent’s decision of 9 June 2022.
The applicant submitted that there is nothing in the statutory scheme which suggests that the effect of the AAT granting a stay is to allow time to continue to run under the 2021/2022 year such that the registration concludes in July 2022.
The applicant submitted that s.306AA which makes applicable to an applicant who obtains a stay from the AAT, the supervisory requirements of reg 7B of the Migration Agents Regulations 1998. The prescription in reg 7B envisages a means by which a suspended person may continue to practice despite the suspension in a manner which supports the public interest.
In her second written submissions of 21 June 2022, Ms Nolan also submitted that:
(a) The purpose or object of a statutory provision is to be gleaned from its text and context, referring to Certain Lloyds Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [24] per French CJ and Hayne J and to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19; (2021) ALJR 557 at [15] per Kiefel CJ, Gordon, Steward and Gleeson JJ
(b) Section 303 of the Act is not limited to circumstances arising on an application for registration;
(c) If the stay were to operate as the respondent contends, then a stay operates to annul the suspension order, so that s.299(2) has no operation.
In reply to the further submissions of the applicant the respondent submitted that the Acts Interpretation Act, 1901, s.15AB(1) and (2) authorise the Tribunal and courts to have regard to explanatory memoranda in construing statutes, and that the Full Court in Seymour said that under s.99(1) of the Act, the maximum period of registration before an application for renewal is required is 12 months. The respondent also submitted that the applicant’s submissions had the effect that there was an automatic extension of the applicant’s registration by almost 1100 days, and that the correct interpretation of s.299(2) is to confer on the applicant the benefit of any remaining period of registration, once the term of the suspension expires. The applicant submitted that paragraphs [14]-[18] of the 2003 supplementary explanatory memorandum, particularly paragraph [17], stood against the applicant’s submissions.
CONSIDERATION
Explanatory memoranda cannot control the meaning of enactments so as to modify their express terms, speaking generally.
Seymour did not concern an application for a stay of a suspension decision, but rather an application for a renewed registration. The Court held that the effect of s.300 of the Act was that no such stay could be granted because of s.300 (7) which was then in the same terms as it currently stands.
Section 300 provides for an automatic extension of the registration of a migration agent in certain circumstances. No application for an extension of the registration has been made in this case. If the present applicant now applied for a renewal of her registration, and it was refused by the respondent, the AAT would be unable to grant a stay of the decision to refuse renewal.
However, no question of the construction of s.299 arose in Seymour, because no decision had been made by MARA to suspend the registration of Mr Seymour, and a stay of such a decision was not sought. The terms of s.299 were, at the time of the decision in Seymour different to its present terms. Section 299 then provided:
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.
Today, and since 2021, section 299 provides as follows:
Period of registration
(1) Subject to any other provision of this Part (including subsection (2) of this section), the registration of a registered migration agent ends 12 months after the day of registration.
(2) If the registration is suspended for a period, the period of the registration is extended by a period equal to the period of suspension.
One difference between the sections is that the former section is expressed to be subject to s.300, whereas the current section is not. In my opinion, this case does not concern automatic continuation of registration under s.300, but rather the effect of a suspension of registration, a matter dealt with by s.299(2). Subsection (7) of s.300 has no equivalent in s.299, and s.299 says nothing about a stay.
The current form of s.299 makes it clear that subsection (2) will prevail over subsection (1). Therefore in the circumstances, s.299 has the effect that the registration of the applicant continues until 2025, but subject to the order for suspension, so that the suspension continues to affect the applicant unless and until the AAT or a court sets aside the suspension. The automatic continuation provisions prevent the AAT from granting a stay of a refusal by the respondent to renew the registration of the applicant, but no such refusal has occurred and the applicant has not made any such application.
The power of the AAT to review resides in s.306 of the Act, which provides as follows:
Review by the Administrative Appeals Tribunal
Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this division.
The power of the AAT to grant a stay resides in s.41 of the Administrative Appeals Act, 1975, which provides as follows:
Operation and implementation of a decision that is subject to review
(1) Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
(2) The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding ), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
Note: This section does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division.
(3) Where an order is in force under subsection (2) (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on request being made by a party to the relevant proceeding, make an order varying or revoking the first-mentioned order.
(4) Subject to subsection (5), the Tribunal shall not:
(a) make an order under subsection (2) unless the person who made the decision to which the relevant proceeding relates has been given a reasonable opportunity to make a submission to the Tribunal, as the case may be, in relation to the matter; or
(b) make an order varying or revoking an order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3)) unless:
(i) the person who made the decision to which the relevant proceeding relates;
(ii) the person who requested the making of the order under subsection (2); and
(iii) if the order under subsection (2) has previously been varied by an order or orders under subsection (3)--the person or persons who requested the making of the last-mentioned order or orders;
have been given a reasonable opportunity to make submissions to the Tribunal, as the case may be, in relation to the matter.
(5) Subsection (4) does not prohibit the Tribunal from making an order without giving to a person referred to in that subsection a reasonable opportunity to make a submission to the Tribunal in relation to a matter if the Tribunal is satisfied that, by reason of the urgency of the case or otherwise, it is not practicable to give that person such an opportunity but, where an order is so made without giving such an opportunity to the person who made the decision to which the relevant proceeding relates, the order does not come into operation until a notice setting out the terms of the order is given to that person.
(6) An order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3)):
(a) is subject to such conditions as are specified in the order; and
(b) has effect until:
(i)where a period for the operation of the order is specified in the order--the expiration of that period or, if the application for review is decided by the Tribunal before the expiration of that period, the decision of the Tribunal on the application for review comes into operation; or
(ii) if no period is so specified--the decision of the Tribunal on the application for review comes into operation.
The effect of Seymour is that no such order can be made in the cases of a decision to refuse to grant registration or renewal of registration, but that decision is distinguishable.
The question thus is whether a statutory intention can be discerned in the legislation that the power in the AAT Act to grant a stay of a suspension decision is absent altogether in the present case. In my opinion, that view could only be founded on the provisions of the Act if s.300 or some other provision of the Act is read as extending to more than the automatic continuation of registration under that section, so that it will preclude a stay being granted of any suspension or cancellation by the regulator. Section 306AA proceeds on the contrary assumption. It provides:
Stay orders
If the Administrative Appeals Tribunal or a court orders a stay of a decision under section 303 to cancel or suspend a registered migration agent’s registration, it is taken to be a condition of the order that the prescribed supervisory requirements apply in relation to the agent during the period of the order.
For those reasons I reject the respondent’s submissions that would limit the power of the AAT to grant a stay of the suspension decision to the period of which would remain of the current registration period if there were no suspension order, that is, until a date in July 2022 whether 12, 14 or 17 July.
The decision of Justice Downes, then President of the Tribunal in Scott v Australian Securities and Investments Commission [2009] AATA 798 is a convenient statement of a non-exhaustive list of factors to be taken into account when determining an application for a stay. Those factors are:
(a) The prospects of success;
(b) The consequence for the applicant of the refusal of a stay;
(c) The public interest;
(d) The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not;
(e) Whether the application for review would be rendered nugatory if a stay were not granted; and
(f) Other relevant matters, such as the length of time that the ban has already been in place and the gap between the stay application and the hearing of the review.
The Tribunal received into evidence a statutory declaration of the applicant of 21 June 2022, dealing with matters relating to the effect of the suspension decision upon her.
I was informed by Ms Nolan that she was briefed in this application on 20 June 2022, after a barrister previously briefed returned his brief on the previous day. Ms Nolan has had little time to deal with the prospects of success in detail. She drew attention to the fact that further particulars of the client files were sought from the respondent and suggested that the failure to have provided them may have been a denial of procedural fairness, such that the failure to deal in detail with prospects of success ought to be given little weight. Mainly because of the shortness of time which the applicant’s counsel has had to assimilate all facts and circumstances of the applicant, one would be reluctant to treat the applicant as having failed to put her best foot forward on the question of the prospects of success. If, for example, the evidence put on in due course by the applicant shows that her prospects of success are vanishing small, consideration could be given to discharging or varying a stay. Mr Cleary submitted that the applicant had an arguable case on the review, and that the respondent also had an arguable case. Of course, final findings on the review cannot be made before the hearing of the review.
The consequences of refusal of a stay may be very serious to the applicant in the light of what she says in her statutory declaration of 21 June 2022, and her profession or business may suffer greatly if there is no stay, as has already occurred in relation to a number of her clients.
Mr Cleary did not suggest that the provisions of regulation 7B were inadequate to deal with the public interest questions arising.
Turning to the terms of s.41(2) of the AAT Act, I take into account the interests of the respondent as a person who may be affected by the review. As to the present and future clients of the applicant, regulation 7B is relevant to the effect of the review on those persons, as is the power of revoking or varying any stay, if any problem arises.
The effectiveness of the hearing may be affected if the applicant loses her business as a migration agent as a result of the refusal of a stay.
In those circumstances, I consider it is desirable to continue the stay on the existing conditions up to the hearing and determination of the review.
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
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Associate
Dated: 23 June 2022
Date(s) of hearing: 21 June 2022 Counsel for the Applicant: Ms B Nolan Solicitors for the Applicant: Northam Lawyers Counsel for the Respondent: Mr M Cleary Solicitors for the Respondent: Sparke Helmore Lawyers
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