Gu and Migration Agents Registration Authority - [2021] AATA 459

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 2021
INTRODUCTION

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…

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.

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Details

Case: [2021] AATA 459
Decision Date: 10 March 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Mr. Gu for a stay of a decision by the Migration Agents Registration Authority to cancel his registration as a migration agent. Mr. Gu sought the stay under section 41(2) of the *Administrative Appeals Tribunal Act 1975* (Cth) pending the Tribunal's review of the cancellation decision. He argued that a stay was warranted due to his efforts to modify his business practices, the prospects of success of his application, and the substantial adverse effects cancellation would have on his clients and business.

The central legal issue before the Tribunal was whether granting a stay would have any practical effect, given the operation of section 300 of the *Migration Act 1953* (Cth). The Migration Agents Registration Authority contended that section 300 rendered any stay ineffective because it provides for the automatic continuation of a migration agent's registration under certain circumstances, even if a decision to cancel that registration is later stayed. The Authority argued that section 300(7) specifically states that the Authority is taken to have made a decision even if it is subsequently stayed.

The Tribunal reasoned that section 300 of the *Migration Act* dictates that a migration agent's registration continues automatically until the Authority makes a decision to suspend or cancel it, or until the application for renewal is decided, or for a maximum of 10 months. Crucially, section 300(7) provides that the Authority is taken to have made a decision even if that decision is later stayed. Therefore, the Tribunal concluded that the operation of section 300 would render any stay order ineffective, as the cancellation decision would still be considered made for the purposes of the Act. Consequently, the Tribunal found that a failure to grant a stay would not prejudice the effectiveness of the hearing and determination of the review application.

The Tribunal refused Mr. Gu's application for an order staying the operation or implementation of the reviewable decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.……..

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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 registrationWhen 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.