Gruszka and Migration Agents Registration Authority - [2022] AATA 2128

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

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Gruszka and Migration Agents Registration Authority and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] AATA 2128
Decision Date: 23 June 2022

CaseChat Overview and Summary

This matter concerned an application by Mr. Gruszka for a stay of a decision by the Migration Agents Registration Authority to suspend his registration as a migration agent. The Administrative Appeals Tribunal (AAT) was required to determine whether it had the power to grant such a stay and, if so, whether it was appropriate to do so in the circumstances.

The primary legal issue before the Tribunal was the scope of its power to stay the operation or implementation of a decision under review. Specifically, the Tribunal had to consider the effect of section 41 of the Administrative Appeals Tribunal Act 1975, which empowers the Tribunal to make orders affecting the operation or implementation of a decision to secure the effectiveness of a hearing and determination. The Tribunal also had to consider the implications of section 299 of the Migration Act 1958 and relevant case law, such as *Seymour*, in determining whether a stay would have any utility.

The Tribunal reasoned that section 41 of the Administrative Appeals Tribunal Act 1975 grants it broad power to make orders staying or otherwise affecting the operation or implementation of a decision under review, provided it is desirable and takes into account the interests of affected persons. While acknowledging that *Seymour* suggested limitations on this power in certain registration refusal cases, the Tribunal distinguished the present case as involving a suspension rather than a refusal. The Tribunal concluded that granting a stay would serve the purpose of preserving the status quo and ensuring the effectiveness of the review process, as the suspension of registration would prevent Mr. Gruszka from practising as a migration agent.

The Tribunal allowed the stay application, ordering that the operation and implementation of the Migration Agents Registration Authority's decision to suspend Mr. Gruszka's registration be stayed until the Tribunal's final decision on the review application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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.