Heyeob Son and Migration Agents Registration Authority

[2009] AATA 383

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 383

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1621

GENERAL ADMINISTRATIVE DIVISION		)
Re		Heyeob Son

Applicant

And Migration Agents Registration Authority

Respondent

DECISION

Tribunal Mr G. L. McDonald, Deputy President

Date27 May 2009

PlaceMelbourne

Decision The Tribunal refuses the applicant’s application that it make an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 staying the operation or implementation of a decision made by the respondent on 8 April 2009.

..............................................

Deputy President

CATCHWORDS – ADMINISTRATIVE LAW – interpretation of s 300(7) of the Migration Act – whether deemed continuation of the applicant’s registration had ceased – whether a stay would be futile in the circumstances – application for stay refused.

Administrative Appeals Tribunal Act 1975 s 41

Migration Act 1958 ss 300, 303, 306AA, 314

Migration Agents Regulations 1998 reg 7B

Seymour v Migration Agents Registration Authority [2006] FCA 649

Seymour v Migration Agents Registration Authority [2007] FCAFC 5

REASONS FOR DECISION

27 May 2009 Mr G. L. McDonald, Deputy President    

1.      On 22 April 2009 the applicant filed an application for review of the decision of the respondent and an application to stay the respondent’s decision.  These reasons for decision address the application for a stay of decision.

2.      The applicant was first registered as a migration agent on 25 August 2004.  Since that time, he has conducted his own practice as a migration agent and applied annually for his registration to be renewed.  On 22 August 2008 the applicant applied for registration for the period 25 August 2008 to 24 August 2009.

3. On 9 April 2009, the respondent notified the applicant that on 8 April, the respondent had decided to cancel the applicant’s registration as a migration agent in accordance with its power under s 303(1)(a) of the Migration Act 1958 (the Act).  The respondent relevantly found that the applicant:

(a)  had failed to deal with certain clients competently, diligently and fairly;

(b)  misled the authority by giving false evidence;

(c)  made statements to the Department of Immigration and Citizenship in support of applications that he knew to be misleading or inaccurate; and

(d)  failed to maintain a clients’ account.

4. The respondent consequently found the applicant breached the relevant Code of Conduct, prescribed under s 314 of the Act, and decided to cancel the applicant’s registration as a migration agent in accordance with s 303(1)(a).

5.      The applicant, in his application for a stay, stated that as at 9 April 2009, he had 163 clients for whom the applicant had submitted or was about to submit application for visas to the Department of Immigration and Citizenship.  About 99% of his clients are of Korean decent.  The applicant is also of Korean decent and speaks with the majority of his clients in the Korean language.  The applicant submitted that his clients may be prejudiced if a stay order was not made by this Tribunal.

6.      The applicant did not file an affidavit in support of his application for a stay despite it being usual to do so in support of a stay application in this Tribunal.  At the interlocutory hearing, the applicant’s representative submitted that the applicant had worked hard since becoming a migration agent, developed his practice, and his clients relied on him.  He employed one full time staff member and one part time staff member.  Furthermore, he was experiencing financial difficulties as a result of being unable to practice as a migration agent and not receiving any income.

7. The Tribunal has power to stay a decision under s 41(2) of the Administrative Appeals Tribunal Act 1975. Section 41(2) relevantly provides:

(2)  The Tribunal may, on request being made, as prescribed, 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.

8.      In deciding whether a stay should be granted, the Tribunal considers the following principles:

(a)  the applicant’s prospects of success in the substantive application before the Tribunal; and

(b)  the consequences – both for the applicant and for those whose interests may be affected – if the stay is/ is not granted.

9.      However, the applicant has another hurdle that should be considered before the Tribunal’s usual deliberation.  On 12 May 2009 the respondent filed written reasons opposing the application for a stay.  The respondent submitted the application for a stay could not be granted because of the decision of the Full Federal Court in Seymour v Migration Agents Registration Authority.[1]

[1] [2007] FCAFC 5.

10.     It is convenient to first set out the relevant section of the Act.  Section 300 relevantly provides:

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.

…

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 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.

11.     The respondent submitted that by virtue of Seymour’s case, the effect of s 300(7) was that once the respondent had made a decision to suspend or cancel the registration of an agent, the deemed continuation of that registration under s 300 ceases, and that such a decision was not amenable to an effective stay order.  The respondent further explained that in this case a valid application for renewal of registration was made on 22 August 2008, and the applicant’s registration continued after the expiry dated of 24 August 2008 until the respondent made the decision to cancel his registration on 8 April 2009.  At that point (that is, 8 April 2009), the registration ceased because the deemed continuation of his registration ended when the respondent cancelled his registration.  Therefore, s 300(7) would render a stay futile as it would have no effect.

12.     The applicant disagreed with the respondent’s interpretation of Seymour’s case and in turn submitted that s 306AA of the Act provides that if the Tribunal grants a stay of a decision made under s 303, it is taken to be a condition of the order that the prescribed supervisory requirements (contained in reg 7B of the Migration Agents Regulations 1998) apply in relation to the agent during the period of that order.

13.     The Tribunal’s initial consideration then turns to the construction of s 300(7).

14.     In the primary decision[2] of Seymour’s case, the Federal Court (Jacobson J) explained the operation of the relevant sub-sections in s 303 and came to the conclusion that the proper construction of both sub-ss 300(4)(a) and (7) is that the extension of an agent’s registration ceases when the respondent decides to refuse the application for registration, even if that decision is later stayed.[3]  The Federal Court, in its decision, also addressed the same argument the applicant has made in this matter; that is, that the Tribunal has power to grant a stay pursuant to s 306AA.  Jacobson J explained s 306AA is not concerned with a stay of a decision refusing an application for registration which was deemed continuing by force of sub-ss 300(1) and (4).  Section 306AA only deals with orders staying a decision under s 303 to cancel or suspend the registration of an agent who has already been registered for the current year, not a deemed registration.[4] 

[2] Seymour v Migration Agents Registration Authority [2006] FCA 649.

[3] At [42].

[4] At [57].

15.     Jacobson J went on to explain the “different regime” laid down by s 300 for deemed registration:

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).

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.

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.

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).[5]

[5] At [59]-[62].

16.     The Full Federal Court, after referring to the legislative history, the scheme of the legislation and extrinsic material, dismissed the appeal and concluded 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.”[6]

[6] At [27].

17.     In light of the Full Federal Court’s decision, it is unnecessary to consider the principles in paragraph eight above.  The Tribunal agrees with the respondent’s interpretation of Seymour’s case.

18. The Tribunal therefore refuses the applicant’s application that it make an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 staying the operation or implementation of a decision made by the respondent on 8 April 2009.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G. L. McDonald, Deputy President

Signed:         .....................................................................................
  Associate                  Grace Horzitski

Date/s of Hearing  26 May 2009
Date of Decision  27 May 2009
Counsel for the Applicant         Mr A. Bonnici
Solicitor for the Applicant          Mr T. Grundy
Solicitor for the Respondent     Mr D. Brown, Australian Government Solicitor