Gu and Migration Agents Registration Authority
[2021] AATA 459
•10 March 2021
Gu and Migration Agents Registration Authority [2021] AATA 459 (10 March 2021)
Division:GENERAL DIVISION
File Number:2020/8496
Re:Bo Gu
APPLICANT
AndMigration Agents Registration Authority
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:10 March 2021
Place:Brisbane
The Tribunal refuses the Applicant’s request under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) for an order staying or otherwise affecting the operation or implementation of the reviewable decision.
.............[SGD]...........................................
Member D Mitchell
CATCHWORDS
PRACTICE AND PROCEDURE – application for stay of decision – cancellation of migration agent registration – whether the granting of a stay would have any effect given the operation section 300 of the Migration Act 1953 (Cth) – stay application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Agents Regulations 1998 (Cth)Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003
CASES
Re Scott v Australian Securities and Investment Commission [2009] AATA 798
Seymour v Migration Agents Registration Authority [2007] FCAFC 5
Seymour v Migration Agents Registration Authority [2006] FCA 649
Seymour and Migration Agents Registration Authority [2006] AATA 369
Son and Migration Agents Registration Authority [2009] AATA 383
Vo and Migration Agents Registration Authority [2007] AATA 1495
REASONS FOR DECISION
Member D Mitchell
Provided orally: 9 February 2021
Written reasons: 10 March 2021INTRODUCTION
Mr Bo Gu (the Applicant) had been a registered migration agent since 28 November 2006, with his registration having been renewed annually.
On 21 December 2020, the Respondent pursuant to section 303(1)(a) of the Migration Act 1958 (Cth) (the Act) decided to cancel the Applicant’s registration as a migration agent.[1]
The Respondent found that the Applicant had breached his obligations under clauses 2.1, 2.2, 2.9, 5.2, 6.1 and 6.1A of the Code of Conduct for registered migration agents found in Schedule 2 of the Migration Agents Regulations 1998 (Cth). In summary these clauses of the Code require a migration agent to provide clients with a written agreement for service and fees, to confirm client instructions in writing, to maintain file notes and to not provide misleading or inaccurate information to the Department of Home Affairs. The Respondent was also satisfied that the Applicant was not a person of integrity or otherwise a fit and proper person to give immigration assistance within the meaning of section 303(1)(f) of the Act.[2]
By way of application made on 22 December 2020, the Applicant has asked the Tribunal to review that decision.
That process will take some time and in the meantime the Applicant had asked the Tribunal for orders under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) staying the operation or implementation of the reviewable decision.[3]
BACKGROUND TO STAY PROCEEDINGS
In relation to the stay application the Applicant submitted in line with his written submission accompanying the Request for a Stay Order[4] and further submissions[5] that a stay should be granted on the basis that:
·He has acknowledged his obligations and had provided evidence that he modified or changed the manner in which he conducts business as a migration agent upon being informed of the Respondent’s concerns.
·His application has good prospects of success.
·The adverse effect of the cancellation of his migration agent registration upon his clients, business and personal interests are substantial.
The Respondent in written submissions dated 29 January 2021, submitted that a stay should not be granted as there is no utility in granting a stay due to the operation of section 300 of the Act. The Respondent submitted that a stay of the reviewable decision would have no practical effect because sections 300(3) and (4)(c) of the Act have the effect of ceasing the Applicant’s registration and section 300(7) of the Act provides that the Respondent is taken to have made a decision even if the decision is later stayed.
The Applicant provided written submissions dated 5 February 2021 in response to the arguments made by the Respondent in relation to the operation of section 300 of the Act, providing that an alternative interpretation should be taken. The Applicant submitted that section 300 would have effect to allow the Applicant to act as a migration agent up until either a decision was handed down by the Tribunal or 27 November 2021 (being the Applicant’s annual renewal date).
On the day of the Stay Hearing the Applicant provided affidavits, supporting references and a list of authorities.
The Respondent requested an adjournment of the Stay Hearing to allow time to consider the submissions made by the Applicant. It was agreed that the Stay Hearing would proceed to specifically deal with the issue as to whether or not the operation of section 300 of the Act would render a stay granted by the Tribunal ineffective.
The Tribunal formed the view that if it found that the issuing of a stay would be ineffective due to the operation of section 300 of the Act then there is no need to consider all aspects of the other factors usually taken into consideration when determining whether a stay order should be granted.[6] The Tribunal considers that if that was the case it would be clear that it would not be appropriate for the Tribunal to grant a stay and moreover that doing so would have no bearing on securing the effectiveness of the hearing and determination of the application for review.
THE LAW
Section 41 of the AAT Act relevantly provides that:
(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.
……..
Section 300 of the Act provides for automatic continuation of migration agent registration in circumstances were an application for renewal is made prior to expiry of the agent’s registration however is not determined by the expiry date. Section 300 of the Act provides:
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.
Exception--suspension
(2) However, subsection (4) does not apply to continue the agent's registration if, before the end of the expiry day, the Authority made a decision to suspend the agent's registration, unless:
(a)the suspension had been completed before the end of the expiry day; or
(b)there was a decision (other than a stay order) of the Administrative Appeals Tribunal or a court in force, immediately before the end of the expiry day, to the effect that the agent's registration is not suspended or cancelled.
Exception--cancellation
(3) Subsection (4) also does not apply to continue the agent's registration if, before the end of the expiry day, the Authority made a decision to cancel the agent's registration, unless:
(a)there was a decision (other than a stay order) of the Administrative Appeals Tribunal or a court in force, immediately before the end of the expiry day, to the effect that the agent's registration is not suspended or cancelled; or
(b) there was a decision of the Administrative Appeals Tribunal or a court in force to the effect that the agent's registration is suspended, and the suspension had been completed before the end of the expiry day.
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.
Application granted if no decision within a certain period
(5) If, before the end of the period of 10 months beginning on the day after the expiry day, the Authority has not:
(a) decided the registration application; and
(b) decided to suspend the agent's registration; and
(c) decided to cancel the agent's registration;
then the application is taken to have been granted at the end of that period.
When registration takes effect
(6) If the Authority grants the registration application, or the registration application is taken to have been granted under subsection (5), the registration is treated as having taken effect at the end of the expiry day.
Example: An agent's registration is due to end on 31 October (the expiry day). On 20 October the agent applies to be registered again. The Authority has not decided the application by the end of 31 October.
The agent's registration continues automatically past 31 October until the Authority decides the application.
On 15 November the Authority grants the application. The new 12 month registration is treated as having taken effect at the end of 31 October.
When Authority makes decision
(7) For the purposes of this section, the Authority is taken to have made a decision even if the decision is later stayed.
It is noted that the relevant explanatory material has been outlined in the submissions of both the Applicant and Respondent. Relevant parts of the Supplementary Explanatory Memorandum to the Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003 (the Bill) are set out in paragraph 48 of the Applicant’s Submissions in Support of Request for a Stay dated 5 February 2021, as follows:
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.
31.… new subsection 300(1) provides that an agent’s registration is taken to continue until one of the events set out in new subsection 300(4) occurs.
32.New subsections 300(2) and (3) provide exceptions to the general rule under subsection 300(1).
…
34.New subsection 300(3) provides that an agent’s registration will not be continued under subsection 300(4) if the MARA has made a decision to cancel the agent’s registration before the expiry day, unless there is a decision of the AAT or a court (other than a stay order) in force to the effect that the agent’s registration is not suspended or cancelled…
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.
…
37.If the MARA suspends or cancels an agent’s registration after it has been taken to continue under new subsection 300(1), new subsection 288(6A) provides that the MARA must not consider the outstanding re-registration application until all review proceedings relating to the suspension or cancellation decision 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).
(emphasis added)
Reference to discussion of the Bill by then Minister for Citizenship and Multicultural Affairs, Mr Hardgrave MP were also provided by both the Applicant and Respondent. The Tribunal notes that at paragraphs 49-50 of the Applicant’s Submissions in Support of Request for a Stay dated 5 February 2021 provided as follows:
For example, an agent sanctioned on 1 February whose registration year expires on 1 June will no longer be able to practice after 1 June by making an application for review of the sanction decision and then obtaining a stay order from the AAT of that decision…Agents who wish to continue to practice following a sanctions decision will now have an incentive to expedite the hearing process before the AAT.
……
For example, an agent sanctioned on 1 February whose registration year expires on 31 December (the “expiry day”) will be able to practice after 1 February by making an application for review of the sanction decision and then obtaining a stay order from the AAT of that decision. In that circumstance, and assuming the agent was to lodge an application for repeat registration, s300(1) will not apply to automatically continue the agent’s registration after 31 December of the current year by virtue of the operation of ss300(1) - (3).
CONTENTIONS
The Respondent in relying on its Submissions Opposing Stay dated 29 January 2021 contended that there is no utility in granting a stay and as such this weighs heavily against the granting of a stay pursuant to considering the principles outlined in Re Scott v Australian Securities and Investment Commission [2009] AATA 798 (Scott).
The Respondent contended that the Applicant’s registration continued by virtue of section 300(1) of the Act until such time that the decision was made to cancel the registration. As such the Applicant’s registration was in place from 28 November 2020 until 21 December 2020. By virtue of section 300(7) of the Act the Respondent contends that the decision remains in place even if later it is stayed.
The Respondent referred the Tribunal to the decision of the Full Federal Court in Seymour v Migration Agents Registration Authority [2007] FCAFC 5 (Seymour) where the Full Court said at [27]:
The legislative history, the scheme of the legislation, the language of the provision, and the extrinsic material all point to the conclusion that section 300(7) has the consequence that to grant a stay would be futile in the present case because it would have no effect.
The Applicant contended that the exception to the section 300(1) of the Act continuation of registration found in section 300(3) does not apply in this case as the Applicant made his application to renew his application in accordance with the requirements of section 300(1) of the Act and that therefore his continued registration commenced on 28 November 2020, being prior to the cancellation decision.
The Applicant contended that his registration therefore continues until 27 November 2021 should a stay be granted, however due to the operation of section 300(3) and (4) of the Act could not be further continued pursuant to section 300(1) of the Act.
The Applicant contended that the observations in Seymour are distinguishable as the facts of that case are different to the present case. The Applicant contended that both the decision in Seymour and the submissions of the Respondent concede that the purpose of the new section 300 of the Act is that provision is made to stop automatic extensions.
The Applicant contended that the operation of section 300(7) of the Act should be taken to be adding continued effect to sections 300(2), (3) and (5) of the Act.
CONSIDERATION
The Tribunal considered the construction of section 300 of the Act while having regard to the submissions filed by the Applicant and Respondent and those provided at the Stay Hearing.
The Tribunal agrees with the submissions of the Applicant to the extent that section 300(3) of the Act does not apply to the present matter as the cancelation decision was not made prior to the expiry date. Being that the expiry date was 27 November 2020 and the cancellation decision was made on 21 December 2020.
The Tribunal notes that the explanatory material relating to the Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003 have been considered and analysed both by the Federal Court and Tribunal.
The Tribunal acknowledges that the facts in Seymour related to a situation where the Applicant’s continued registration ceased by virtue of the Respondent making a decision to refuse their application – as such section 300(4)(a) together with section 300(7) of the Act were the main provisions in question.
In the first instance in Seymour and Migration Agents Registration Authority [2006] AATA 369 the Tribunal found that the granting of a stay would be futile. Deputy President Block concluded:
To grant a stay order in these circumstances would be entirely without purpose, and simply because it would not be effective. The registration of the Applicant ceased on 20 February 2006 and without registration he cannot act as a migration agent. To grant a stay order might have the effect that the public is misled and moreover would expose the Applicant to prosecution under a number of sections of the Act. I appreciate that the effect of this decision might appear to be harsh; however the legislation is cast in terms which in my view, prevents me from granting a stay order which is effective.
The decision of the Tribunal in that case was upheld by the Federal Court both at single judge and full judge levels.
Justice Jacobson in his decision in Seymour v Migration Agents Registration Authority [2006] FCA 649 provided analysis of what he considered the proper construction of section 300 of the Act to be. Jacobson J provided at [32]-[44]:
The Proper Construction of s 300
32 Section s 300 is to be construed in its context in light of the statutory scheme to which I have referred. It is to be borne in mind that a registered agent does not have a right to be re-registered. Applications must be made each year and the criteria for registration must be satisfied on each application.
33 It is true that s 300(1) operates so as to extend the period of registration of a registered migration agent beyond the expiry date of the agent’s registration. The combined effect of ss 300(1) and (4) is that a registered agent’s registration is taken to continue after the expiry date, provided that the requirements of s 300(1) (a) to (c) are satisfied.
34 However, s 300(4) makes it plain that the registration is taken to continue only until the earliest of the decisions of the MARA specified in s 300(4) (a) to (c), or the date specified in s 300(4)(d).
35 The effect of s 300(4) is that although the usual period of registration is for 12 months, it may be extended for a period of up to 10 months.
36 But it is plain from s 300(4)(a) that the statutory extension of an agent’s registration ceases when the MARA decides the application in respect of the current year. If the decision is favourable to the agent, he or she is registered for the full 12 month period.
37 However, if the MARA’s decision is to refuse registration, then the applicant ceases to be a registered migration agent, so long as that decision is made before the end of the 10 month extension provided for in s 300(4)(d).
38 The same consequence applies if the MARA’s decision is to suspend or cancel the agent’s registration; see s 300(4)(b) and (c).
39 If the MARA’s decision is to refuse registration, an applicant may seek review of the decision of the AAT; see s 306. An appeal on a question of law lies to the Court from the decision of the AAT; see s 44(1) of the AAT Act. Alternatively, the decision of the AAT is amenable to judicial review.
40 It is in those circumstances that the effect of s 300(7) falls for consideration.
41 The ordinary meaning of s 300(7) follows from the opening words. It is plain that the words "(f)or the purposes of this section" apply to each type of decision referred to in s 300(1) to (6).
42 Thus, upon the proper construction of ss 300(4)(a) and (7), the statutory extension of an agent’s registration ceases when the MARA decides to refuse the application for registration, even if that decision is later stayed.
43 This is the ordinary meaning of s 300(4)(a) and s 300(7). It is consistent with the scheme of Division 3 of Part 3. It is consistent, in particular, with the central role of the MARA in regulating the scheme. It achieves the dual aim of the provisions of Division 3 of Part 3, being the protection of visa applicants and maintaining the integrity of the visa scheme.
44 It may also be thought that this meaning is consistent with the title of the Amending Act, that is to say the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 (Cth).
Jacobson J, further provided at [58] to [62]:
58 Section 300 lays down a different regime for deemed registration. Quite plainly, a migration agent whose application for registration in the current year is granted, is no longer deemed registered; s/he is actually registered. But the registration is treated as having taken effect at the end of the expiry date; ie from the commencement of the current year; see s 300(6).
59 Section 300(4)(b) and (c) therefore deal with the situation where the MARA decides, during the period of deemed continuation of registration (but before the grant of any application for registration), to suspend or cancel the agent’s registration. The relevant regime is explained by reference to s 300(2) and (3) when read with s 300(4).
60 Section 300(2) and (3) deal with the situation where an application for registration is made before the end of the expiry day and, between the date of the application and the end of the expiry day suspension or cancellation proceedings are brought against the agent. If, between those dates the MARA makes a decision to suspend or cancel the registration, then s 300(4) does not apply to continue the agent’s registration unless the conditions stated in s 300(2)(a) or (b) or s 300(a) or (b) are satisfied.
61 Section 300(4)(b) and (c) must therefore address the situation where suspension or cancellation proceedings are on foot between the date of application and the expiry day but the MARA has not made a decision on those proceedings until after the expiry day. The effect of ss 300(4)(b) and (c) is that, if the MARA then decides to suspend or cancel the registration, the deemed continuation ceases.
62 Such a decision, as with a decision taken during the deeming period to refuse an application for registration, is not amenable to an effective stay by virtue of the provisions in s 300(7).
The decision of Jacobson J was upheld by the Full Federal Court.
The Full Federal Court in Seymour said at [27] to [29]:
27 The legislative history, the scheme of the legislation, the language of the provision, and the extrinsic material all point to the conclusion that s 300(7) has the consequence that to grant a stay would be futile in the present case because it would have no effect.
28 Paragraph 41 of the Supplementary Explanatory Memorandum as extracted above reinforces the conclusion that the purpose of the amendment was to ensure that the registration of a migration agent would not be unduly extended pending review of a decision, and that the provisions are directed to limit the extent of the automatic continuance of registration beyond the last day of the relevant period.
29 The specific language used in s 300 points to the same conclusion. In its terms, s 300(7) applies to every subsection of s 300, and is not limited to particular subsections such as those referring to suspension or cancellation. It applies equally to other subsections as to ss 300(4) and (5).
While the facts in Seymour are different to those in the present case the Tribunal does not consider the decisions should be distinguished, instead the Tribunal agrees with the findings of the Tribunal, Federal Court and Full Federal Court in relation to the interpretation of section 300 of the Act and considers that the analysis provided dealt with the full application of section 300 of the Act and was not limited to section 300(4)(a) of the Act.
It is noted that the Tribunal has followed the decision in Seymour in Son and Migration Agents Registration Authority [2009] AATA 383 and also in Vo and Migration Agents Registration Authority [2007] AATA 1495 and refused to grant stay requests on the basis that such a stay would have no effect.
Consequently, the Tribunal considers that the operation of section 300 of the Act would render a stay ineffective and as such weighs heavily against the issuing of a stay order. Therefore, the Tribunal considers that the failure to grant a stay would not impact on the effectiveness of the hearing and determination of the application for review.
CONCLUSION
The Tribunal refuses the Applicant’s application that it make an order under section 41(2) of the AAT Act staying the operation or implementation of the reviewable decision made by the Respondent on 21 December 2020.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
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Associate
Dated: 10 March 2021
Date of Hearing: 9 February 2021 Solicitor for the Applicant: Mr B Hartnett
Hartnett Lawyers
Solicitor for the Respondent: Mr J Kyranis
Sparke Helmore
[1] T Documents, T38, Notification of Decision to Cancel Registration as a Migration Agent and Decision Record.
[2] T Documents, T38, Notification of Decision to Cancel Registration as a Migration Agent and Decision Record.
[3] Request for Stay Order made on 12 January 2021.
[4] Request for Stay Order made on 12 January 2021 and accompanying letter to the Respondent dated 30 December 2020.
[5] Submission dated 5 February 2021.
[6] The factors are set out in Re Scott v Australian Securities and Investment Commission [2009] AATA 798.
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