Legal Training Australia Pty Ltd v Office of the Migration Agents Registration Authority
[2015] FCCA 126
•27 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEGAL TRAINING AUSTRALIA PTY LTD v OFFICE OF THE MIGRATION AGENTS REGISTRATION AUTHORITY | [2015] FCCA 126 |
| Catchwords: ADMINISTRATIVE LAW – Administrative Decisions (Judicial Review) Act1977 – allegations that decision-maker erred in law by considering the wrong question, by basing its decision on an unlawful policy and by misdirecting itself in law. |
| Legislation: Migration Agents Regulations 1998, regs.9E, 9G |
| Mentink v Minister for Home Affairs [2013] FCAFC 113 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Giniotis v Human Rights & Equal Opportunity Commission [2000] FCA 334 Seiler v Minister for Immigration, Local Government & Ethnic Affairs (1994) 48 FCR 83 Save Our Suburbs (SOS) NSW Inc v Electoral Commissioner (NSW) (2002) 55 NSWLR 642 NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 |
| Applicant: | LEGAL TRAINING AUSTRALIA PTY LTD |
| Respondent: | OFFICE OF THE MIGRATION AGENTS REGISTRATION AUTHORITY |
| File Number: | SYG 1149 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 6 November 2014 |
| Date of Last Submission: | 6 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 27 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Hume |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the First Respondent: | Ms R. Graycar |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The applicant’s application filed on 11 April 2014 be dismissed.
To the extent that it is necessary to make an order in relation to it, the application referred to in order 5 made on 26 May 2014 also be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1149 of 2014
| LEGAL TRAINING AUSTRALIA PTY LTD |
Applicant
And
| OFFICE OF THE MIGRATION AGENTS REGISTRATION AUTHORITY |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant (“Legal Training”) provides training services to migration agents and as part of its business runs continuing professional development (“CPD”) events for those agents. On 3 September 2013 it lodged an application with the respondent, the Office of the Migration Agents Registration Authority (“MARA”), seeking approval for a proposed two-day migration conference. MARA acts as a delegate of the Minister for Immigration and Border Protection (“Minister”) and exercises the Minister’s powers under Part 3 of the Migration Act 1958 (“Act”). On 18 December 2013 MARA refused Legal Training’s application on the basis that the proposed conference did not meet the requirements of reg.9G(1)(a) of the Migration Agents Regulations 1998 (“Regulations”).
On 14 March 2014 Legal Training filed with the Federal Court of Australia an application for an extension of time to seek review of MARA’s decision under the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”). On 11 April 2014 the matter was transferred to this Court pursuant to s.32AB(1) of the Federal Court of Australia Act 1976. By orders made with the consent of the parties on 26 May 2014, the application filed in the Federal Court is now taken to be an application for an extension of time filed under r.42.03(1) of the Federal Circuit Court Rules 2001 (“Court’s Rules”) and s.11(1)(c) of the ADJR Act and the draft application which was attached to the application for an extension of time is taken to be an application under rr.4.01 and 42.02 of the Court’s Rules. Those orders also removed the Minister and the MARA officer who made the refusal decision as parties to the proceeding and replaced them with MARA.
For the reasons which follow, the application for an extension of the time within which to bring an application for review of the MARA decision will be dismissed.
Relevant legislation
Part 3A of the Regulations relevantly provides:
9E General
(1) The Minister:
(a)may approve an activity as an approved activity in relation to the continuing professional development of registered migration agents; …
…
(4) An activity may include one or more of the following:
…
(c)attendance at a seminar, workshop, conference or lecture that is conducted by a person who is, or persons who are, qualified by practical experience or academic qualifications in the subject matter of the activity;
…
9G Decision
(1)In deciding whether or not to approve an activity, the Minister may take the following into account:
(a) whether he or she is satisfied that:
(i) the activity will help improve the professionalism of each participant in the approved activity as a registered migration agent, including the participant’s knowledge of migration procedures, professional ethics and relevant skills; and
(ii) the provider of the activity has a way of ensuring that the activity will achieve the outcome mentioned in subparagraph (i); and
(iii) the delivery of the activity is focussed on the achievement of the outcome mentioned in subparagraph (i);
…
MARA has a Policy and Procedures Manual (“Manual”) which provides guidance to its staff when making decisions. The version of the Manual which applied at the time MARA made its decision on Legal Training’s application relevantly provided:
5 Continuing Professional Development
…
5.2.2.4 Assessment of the proposed activity …
…
The allocation of CPD points for CPD activity types is contained in the table below:
Activity Type *CPD points Definition Key Requirements Seminars
1 point for 1.5 hours
Face to face activity where participants are physically present with the facilitator.
Must include a presentation blended with discussion and the exchange of ideas between participants.
Maximum of 45 participants per activity session.
Session plan to allocate 30%-40% of time to question and answers or small group discussion.
Conferences
3 points per day. Minimum 6 hours per day.
Face to face activity where participants are physically present in the same location.
They are designed for networking opportunities, sharing information on topics relating to Australian migration law and practice and offer a range of speakers.No limit on number of participants.
Session plan to include details of conference program, speakers and system to monitor attendance.
Conferences are approved for a period of up to 3 months only.
5.2.5 Refusal of an activity
If the activity does not meet the requirements outlined above, then the Authority will not approve the activity.
Background
Application
Schedule 1 to the Regulations requires registered migration agents to accrue ten CPD points in each year in order to be registered for the following year. Part of Legal Training’s business includes running CPD events which allow attending migration agents to accrue points towards their CPD points requirement.
On 3 September 2013 Legal Training applied to MARA for approval of a two-day (fifteen hour) conference described as a “Migration Conference” which, it was proposed, would attract ten CPD points (five points a day). In its application Legal Training indicated that the conference would include five sessions on each day which would each run for an hour and a half. It also indicated that it would monitor attendance by handing out attendance sheets and taking note of attendees who left the conference room. On 4 September 2013 Liana Allan, a director of Legal Training, wrote by email to MARA advising that the conference topics identified in Legal Training’s application would be delivered in the same method and style and for the same length of time as corresponding seminar subjects which had already been approved by MARA but that the conference was designed to be a larger industry event with more high-level guest speakers and sponsors.
On 12 September 2013 a meeting was held between representatives of Legal Training and MARA to discuss, amongst other things, MARA’s conference CPD framework. At that meeting Legal Training expressed dissatisfaction with MARA’s conference CPD points cap. In response the representatives from MARA advised Legal Training that approved conference activities attracted a maximum three points per day, one day consisting of a minimum of six hours, and that it would have to go through a specified process if it required a significant change to the CPD framework.
Following that meeting, on 18 September 2013 an officer of MARA wrote to Legal Training advising it that under the CPD framework its proposed conference could only attract six CPD points and that the material it had provided appeared to belong to seminar-type activities. The officer advised that it was unlikely that MARA would approve the proposed conference because it did not appear to align with the CPD framework and asked how Legal Training wished to proceed. In two emails sent on 18 September 2013 Legal Training stated that it did not want its application to be reduced to six CPD points. It also provided further information on the proposed conference, stating that it would involve high-level strategic speakers, questions, discussions and feedback on the learning outcomes.
Notice of intention to refuse application
On 18 October 2013 MARA issued Legal Training with a “Notice of intention to refuse an application for a CPD activity” and sought submissions on why the application should not be refused. In that notice, MARA stated that it could not be satisfied on the material before it that Legal Training’s proposed activity could meet the outcomes set out in reg.9G because:
a)Legal Training’s request for the awarding of five CPD points for each conference day contravened para.5.2.2.4 of the Manual which capped conference CPD points at three a day. MARA noted that it had held discussions with Legal Training in person and in writing to clarify the CPD framework and it was reasonable to conclude that Legal Training was fully aware of the requirements of that framework;
b)Ms Allan’s statement in her email of 4 September 2013 that the proposed conference topics would be delivered in the same method and style and for the same length of time as corresponding seminar subjects which had already been approved supported the premise that the proposed activity was more closely aligned to a seminar-type activity than to a conference-type activity. MARA noted that the material submitted in support of Legal Training’s application was identical to material submitted for the corresponding seminar topics. It found that the presentation of the same material by different speakers did not differentiate a conference-type activity from that of a seminar; and
c)Legal Training had failed to demonstrate how the seminar-style delivery and content of the activity would improve the professionalism and professional knowledge of each participant in a conference environment or how it would ensure that the activity would achieve that outcome.
In an email response on 4 November 2013 Legal Training submitted that:
a)the proposed conference’s subject matter had already been approved for delivery in a seminar format and so there was a presumption that it complied with sub-reg.9G(1)(a);
b)its intention was to use the seminar material to develop a blended activity which would be presented by an accredited specialist solicitor, supplemented by guest speakers. Each topic would be delivered by written material, power point and oral presentations facilitated by questions. Legal Training submitted that at the end of each activity attendees would be required to complete a learning outcome form which would be assessed by the accredited specialist and CPD points would not be awarded to any attendees who did not meet the learning outcomes. It also submitted that attendees would have unlimited email access to the accredited specialist after the conference; and
c)although the proposed conference generally met the “definition” and “key requirements” of a conference under the framework, it did not meet the CPD framework points for attendance because it sought the award of five CPD points a day on the basis that the educational value it would provide would be the same as that of a seminar and warranted a departure from the CPD framework. Legal Training submitted that given the unique nature of the activity and its mechanisms of review, assessment and ongoing assistance, it met the requirements of reg.9G and MARA’s CPD framework should not be used to unreasonably constrain the decision-maker’s discretionary power.
In a further email on 4 November 2013 Legal Training referred to a previous activity which MARA had approved contrary to its normal policy which, it submitted, indicated that MARA could change its rules and be flexible.
Notice of refusal
On 18 December 2013 MARA refused to approve Legal Training’s proposed conference activity because it was not satisfied that it would meet the outcomes set out in reg.9G(1)(a) of the Regulations. In para.19 of its refusal notice it stated that it had considered the following matters, amongst others:
·Whether the officer is satisfied that the activity will help improve the professionalism of each participant in the approved activity as a registered migration agent, including the participant’s knowledge of migration procedures, professional ethics and relevant skills.
·Whether the provider of the activity has a way of ensuring that the activity will achieve the activity outcome and whether the delivery of the activity is focussed on the achievement of this outcome.
·Whether the proposed activity aligns with the current CPD framework in relation to the activity type.
·Any new information provided in support of the application.
In relation to Legal Training’s request that the proposed conference attract 1 point for every 1.5 hours of attendance, similar to the value awarded to seminar activities, MARA found that:
a)awarding a conference the same number of points as would be awarded to a seminar did not align with the underlying principle of the CPD framework which was to provide for diverse modes of delivery with a focus on different activity types; and
b)Legal Training’s proposal for five CPD point a day was inconsistent with para.5.2.2.4 of the Manual which capped conference points at three a day.
MARA found that Legal Training’s proposed activity was more aligned with a seminar activity where a limit on the number of participants was imposed. In that regard, it:
a)found that Ms Allan’s statement in her email of 4 September 2013 that the proposed conference topics would be delivered in the same method and style and for the same length of time as corresponding seminar subjects which had already been approved supported the premise that the proposed activity was more closely aligned to a seminar-type activity than to a conference-type activity. It noted that the only difference was the number of participants and not the delivery, topics, outcomes or interaction opportunities. It went on to find that having unlimited numbers of participants at seminar-style events was inconsistent with the CPD framework;
b)noted that Legal Training presumed that the supporting material it had provided was compliant with reg.9G(1)(a) because it had been approved previously for a seminar activity but it found that seminar and conference activities were different and that whilst the proposed content and delivery format were suitable for seminars, they were not suited to a conference. It found that the proposed conference program appeared consistent with and indistinguishable from seminar programs undertaken by Legal Training; and
c)found that Legal Training’s proposed review of attendees’ learning appeared highly micromanaged and was inconsistent with the core characteristics of conferences, which were primarily designed for strategic overview and networking opportunities, and would result in a further burden on attendees. It also found that the process appeared to be unsustainable.
MARA noted that all applications lodged with it were assessed against the policy framework current at the time of lodgment and concluded that there was nothing before it which warranted a departure from the framework.
Application for an extension of time
Section 11 of the ADJR Act relevantly provides:
11 Manner of making applications
(1)An application to the Federal Court or the Federal Circuit Court for an order of review:
..
(c)shall be lodged with a Registry of the court concerned … within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows.
…
(3)The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:
(a)if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision—the day on which a document setting out the terms of the decision is furnished to the applicant; or
…
Rule 42.03 of the Court’s Rules provides:
42.03 Application for extension of time
(1)A person who wants to apply for an extension of time within which to lodge an application for an order of review under paragraph 11(1)(c) of the AD(JR) Act must file an application for an extension of time, in accordance with the approved form.
(2)An application for an extension of time must be accompanied by:
(a) an affidavit stating:
(i) briefly, but specifically, the facts on which the application relies; and
(ii) why the application was not filed within time; and
(b) a draft application that complies with rule 42.02.
In Mentink v Minister for Home Affairs [2013] FCAFC 113 Griffiths J summarised in the following terms the matters which Wilcox J had identified in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 as being relevant to the discretion to extend time under the ADJR Act:
(a)Section 11 does not place any onus of proof upon an appellant for extension and special circumstances need not be shown, but the Court generally will not grant an extension unless positively satisfied that it is proper to do so. Prima facie, proceedings commenced outside the 28 day time period will not be entertained. The appellant must show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time.
(b)Action taken by the appellant other than by making an application for review under the ADJR Act is relevant to the consideration of whether an adequate and acceptable explanation for delay has been provided.
(c)Prejudice to the respondent is a material factor weighing against extending time.
(d)The mere absence of prejudice to the respondent is not enough to justify the grant of an extension. Public interest considerations may also arise. A delay which may result if the application is successful in producing adverse effects for third parties weighs against the grant of an extension.
(e)The merits of the substantive application are properly to be taken into account in considering whether to extend time. Considerations of fairness between the appellants and other persons in a similar position are also relevant to the exercise of the Court’s discretion. (at [33])
That is not an exhaustive list of potentially relevant matters and each case should be determined with regard to its particular circumstances. In this case I consider that the application for leave to commence proceedings out of time should be determined by reference to the matters mentioned by Griffiths J in Mentink at [33(a)] and [33(e)].
Satisfactory explanation for delay
In an affidavit filed with the application for an extension of time Ms Allan deposed that MARA had sent her its decision by email on 18 December 2013 but she had not seen it at that time. She deposed that that was probably because the email was not sent to Legal Training’s official email account and because she had already left for the Christmas break and was not checking the email account to which the decision was sent.
Ms Allan deposed that until 10 February 2014 she had believed that MARA had not made a decision on the application and on that date she sent MARA an email asking for a decision to be made. She deposed that later that day a representative of MARA telephoned her and told her that the notice of refusal had been sent in December 2013. Shortly after that conversation MARA emailed Ms Allan a copy of the decision.
Legal Training submitted that the time within which it could file its application should be extended as it had explained what it characterised as a moderate delay. It conceded that it had provided no explanation for the further delay after the re-notification in February 2014 but submitted that MARA had not identified any prejudice arising out of the delay or evidence that the delay had led to disruption in the migration agents’ industry.
MARA conceded that it had suffered little, if any, prejudice as a result of the late filing of the application but submitted that an absence of prejudice was no reason to grant an extension of time and the present application should be dismissed.
MARA submitted that Legal Training had not provided an acceptable or adequate explanation for its three month delay in lodging the application. It submitted in relation to the delay until 10 February 2014 that the decision had been sent to the email address which had been regularly used by Legal Training in correspondence with it and that there was no evidence that Legal Training had ever used or provided the second email account referred to in Ms Allan’s affidavit. It submitted that it had complied with the Act when it sent the decision to the email address which Legal Training had used in correspondence.MARA submitted that no attempt had been made to explain why the application had been filed more than twenty-eight days after the re-notification on 10 February 2014.
MARA also submitted that because the challenge to its policy and CPD framework was a public administration issue for the migration agents’ industry, Legal Training had been under a heavier duty to act expeditiously.
Consideration
The requirement in r.42.03 of the Court’s Rules that an applicant file an affidavit stating why the application was not filed within time was, in a formal sense, satisfied by Ms Allan deposing to why she had not acted on the refusal when it was sent in December 2013. However, she did not explain why, having received a copy of the refusal the following February, the application commencing this proceeding was still not filed promptly.
Although I accept Ms Allan’s factual account, which MARA did not suggest was untruthful, and find her explanation of the failure to file the application within the limitation period to be satisfactory on the basis that it was no more than human error, there is no basis to conclude that the further delay could be similarly explained. The fact that no attempt was made to advance an explanation for that further delay suggests that no satisfactory explanation was available. Given that the prima facie rule is that ADJR Act proceedings lodged out of time should not be entertained: Giniotis v Human Rights & Equal Opportunity Commission [2000] FCA 334 at [3], I consider the absence of such an explanation to be an important matter in determining whether the extension of time sought by Legal Training should be granted.
Reasonable prospects of success
There is no point extending time if the application for judicial review does not have reasonable prospects of success: r.13.10(a) of the Court’s Rules. Caution is appropriate when deciding that issue at an early stage of the proceeding. In Seiler v Minister for Immigration, Local Government & Ethnic Affairs (1994) 48 FCR 83 French J said:
… The question of the merits of a substantive application has to be approached with some caution in any consideration of a claimed extension of time. If an application has no reasonable prospect of success, then the decision to refuse an extension on that basis reduces to a decision to strike it out. To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it … (at 98)
However, in this case the parties argued the matter on a final basis, as reflected by the orders made on 26 May 2014, and without any suggestion that the Court did not have all the material necessary to decide whether the application would have reasonable prospects of success. Indeed, it appears that all material necessary for such a decision was placed before the Court.
In its application for judicial review Legal Training alleged:
1. The decision involved one or more errors of law.
Particulars
1.1.[MARA] based [its] decision on sections 5.2.2.4 and 5.2.5 of the Policy and Procedures Manual dated May 2013 (Manual), but those sections are inconsistent with the scheme established by the Migration Act 1958 (Cth) (the Act) and the Regulations. They are inconsistent because the Manual inflexibly directs a decision-maker not to approve an activity if it is not an activity type and does not involve the number of CPD points prescribed by section 5.2.2.4, in circumstances where the Regulations do not authorise inflexibility of that kind or degree.
1.2.[MARA], in making the Decision, asked a wrong question, namely whether the proposed activity was a “conference” or “seminar” within the meaning of the Manual in circumstances where [MARA] considered that the answer to that question determined whether the r 9E(1) power should be exercised.
1.3.[MARA], in making the Decision, failed to ask the correct question, namely whether, in light of the scheme established by the Act and the Regulations, the activity ought to be approved and, if it were to be approved, how many CPD points it ought to be allocated.
1.4.[MARA] failed lawfully to form a satisfaction that the proposed activity did not meet r 9G(1)(a) of the Regulations. That is because [MARA] formed that satisfaction on the basis that the proposed activity and CPD point allocation did not conform to the Manual, but the Manual did not conform to the scheme established by the Act and the Regulations.
1.5.[MARA] impermissibly considered that, to approve an activity, it was necessary that [it] be satisfied that the activity fell within r 9G(1)(a) of the Regulations.
2.The making of the Decision was an improper exercise of the power conferred by r 9E(1) of the power conferred by r 9E(1) of the Regulations in pursuance of which it was purportedly made.
Particulars
2.1.[MARA] exercised the power, without regard to the merits of the case, in accordance with a policy that an activity could only be approved and allocated CPD points if it conformed to section 5.2.2.4 of the Manual.
2.2.[MARA] took an irrelevant consideration into account, namely whether the proposed activity conformed to section 5.2.2.4 of the Manual.
3. The Decision involved a jurisdictional error.
Particulars
3.1.The Applicant repeats the particulars to grounds 1 and 2 above.
Those allegations overlapped each other and the issues they raised were addressed in a more focussed way in the written submissions. I therefore address the allegations by adopting the characterisation of the issues employed by Legal Training in its written submissions.
MARA asked itself the wrong question
Legal Training submitted that MARA had erred by asking itself a question inconsistent with the statutory scheme, namely whether the proposed activity was a seminar or a conference, that is, whether the proposed activity fitted within the categories pre-determined by MARA in its Manual. It argued that if, as it alleged, MARA concluded that the proposed activity would not have advanced the professionalism of migration agents, it had reached that conclusion unlawfully by finding that the activity was not a conference or a seminar and did not comply with the Manual.Legal Training submitted that MARA had superimposed upon the statutory criteria a test of its own devising which did not appear in the legislation: Save Our Suburbs (SOS) NSW Inc v Electoral Commissioner (NSW) (2002) 55 NSWLR 642.
Legal Training submitted that if any statutory question was to be determinative of the application, that question should have been whether, in light of the objects of the migration agents’ scheme and the individual circumstances of the case, the application ought to have been approved and, if so, how many CPD points it ought to have received.
Legal Training submitted that the question MARA had asked itself was far narrower than the broader discretion imposed on it. It submitted that the question was defective because:
a)the discretion conferred by reg.9E(1) was one which had to be exercised “having regard to the nature, scope and purpose of the power and the context in which it is found”: NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at 298 [56] per McHugh, Hayne and Callinan JJ. Legal Training submitted that MARA had applied its Manual without regard to the circumstances of the case or the purpose of the statutory scheme;
b)the ultimate object of the reg.9E(1) discretion was a CPD program which advanced the competency and ethical practice of migration agents; its object was not to ensure that CPD activities conformed to some extra-statutory manual;
c)the statutory scheme intended that decision-makers approach the format of CPD activities flexibly, unconfined by the formats referred to in reg.9E(4).In particular, the use of “may” instead of “must” in reg.9E(4) suggested flexibility and indicated that the list in that provision was non-exhaustive. Legal Training submitted that MARA had, however, treated the list of activities in the Manual as if it were a checklist. It submitted that MARA had failed to have regard to the object of the statutory scheme, which was to open up new kinds of CPD activity formats; and
d)the regulatory scheme had to be understood in a broader context which included rapid technological development and as such it would be surprising if the legislature’s intention was to confine the discretion in reg.9E(1) to asking whether a proposed activity had a particular form.
Consideration
At the heart of Legal Training’s argument that MARA had erred by asking itself the wrong question were the propositions that:
a)MARA should not have taken the Manual into consideration when deciding whether to approve the proposed activity because it was inconsistent with the Act or the Regulations or both of them; or
b)the Manual’s requirements were narrower that the requirements of the Act and the Regulations and could not be the sole determinant of whether an activity deserved approval.
The fact that the Manual set out considerations which were narrower than the full breadth of the considerations potentially relevant under the Act and the Regulations is unremarkable and unobjectionable. That is the point of a document which provides guidance to decision-makers who may be faced with a wide range of potential considerations to take into account. For that reason, MARA did not err by, as a first step, considering Legal Training’s application by reference to the Manual.
Importantly, MARA did not treat the Manual as setting the only terms on which approval might be given. Although MARA did assess the proposed activity against the model activities set out in the Manual it did not restrict itself to those matters and expressly considered the possibility that the proposed activity might attract approval as a different, “blended”, activity. In doing so it implicitly acknowledged that the objects of the CPD training scheme established by the Act and the Regulations might be achieved by models other than those to which it had referred when taking guidance from the Manual. However, MARA concluded that Legal Training’s “blended activity” proposal was not one which it was willing to approve. Although its reasons could have been clearer, it appears that MARA was unconvinced that a seminar-style program presented in a conference-style format, with unlimited numbers of participants assessed by a process which it considered burdensome to participants and “unsustainable” “warrant[ed] a departure from the current CPD framework”.
Legal Training might dispute that conclusion but it was one open to MARA to reach.
Consequently, contrary to Legal Training’s submissions, MARA did not confine itself in the manner alleged or use the structure set out in its Manual as a form of checklist.
Legal Training also argued that MARA had been obliged to consider how many points might be allocated to a particular activity but that was not an issue which reg.9G required be considered unless the activity was approved, which it was not.
MARA based its decision on an unlawful policy
Legal Training agreed that it would not be unlawful for a decision-maker to have regard to a policy if the policy was lawful and consistent with the objects of the statutory scheme but said that MARA’s policy was unlawful because it was inflexible. It submitted that MARA’s statement in its reasons that there was nothing to warrant a departure from its policy was the payment of mere lip service to its arguments and not a genuine consideration of its request to be exempted from the requirements of the policy.
Legal Training submitted that even though the Manual stated that decision-makers “should not apply the policy inflexibly”, in this case that is what MARA had done. It submitted that reg.9G had no obligatory or mandatory requirements but the references in the Manual that an activity “may only be approved” if it satisfied regs.9E and 9G had turned those discretionary requirements into mandatory ones. In this regard it also pointed to para.5.2.5 of the Manual which stated that if an activity did not meet the requirements set out in the table in para.5.2.2.4, then it would not be approved.
Legal Training submitted that MARA had erred by relying on the purportedly inflexible Manual as a limitation on its discretionary power. It submitted that in doing so, MARA had:
a)impermissibly fettered its discretion. In that regard, Legal Training submitted that the text and purpose of the Regulations could not have been intended to permit decision-makers to base their decisions on an inflexible policy;
b)taken into account an irrelevant consideration by referring to the parts of the Manual which were insufficiently flexible to be consistent with the legislative scheme. Legal Training submitted that while the statutory scheme was flexible, particularly as to the form an activity could take, the Manual was inflexible in that if an activity did not meet its requirements, MARA would not approve it;
c)failed to have regard to relevant considerations, namely, whether the proposed activity would advance the overriding objective of the statutory scheme to advance the competency and ethical practice of migration agents;
d)misapprehended the power it was exercising by asking itself whether the activity was of a kind described in the table in para.5.2.2.4 of the Manual, a table which sought to prescribe exhaustively the formats an activity could take and was inconsistent with the Regulations’ intention to permit flexibility in relation to the format; and
e)failed to give proper, genuine and realistic consideration to the application and thereby denied it procedural fairness, specifically by failing to consider the application on its merits or its submissions that the policy in the Manual should be departed from.
Consideration
Although Legal Training alleged that the Manual imposed an inflexible framework on the approval process for CPD activities, that document did not require MARA to act inconsistently with the Act or the Regulations. Rather, the statement in para.1.6 of the Manual, that decision-makers were not to apply its policy guidance inflexibly, demonstrates that MARA’s discretion whether to grant or refuse approval to a proposed activity was not fettered by the policy set out in the Manual even though that policy was expressed in quite strict terms.
Legal Training’s related allegation that the Manual was irrelevant to MARA’s consideration depended on its argument that the Manual was unlawful because of its alleged inflexibility. Because that latter argument has not been made out, I find that any reference by MARA to the Manual did not amount to the consideration of a legally irrelevant matter.
Consequently, the relevant question was not whether the policy expressed in the Manual was inflexible but whether that policy was applied inflexibly. The allegation that MARA failed to consider whether the proposed activity would advance the competency and ethical practice of migration agents invited the Court to conclude from MARA’s references in its reasons for refusal to conferences and seminars that MARA had based its decision on those matters rather than on the merits of the proposal. I am not persuaded that it did. MARA engaged in considerable discussion with Legal Training over the latter’s proposal and ultimately concluded that the educational outcomes which were likely to be derived from it did not warrant the points allocation which Legal Training sought, a consideration which reflected a requirement of reg.9G. I find that MARA’s reasons demonstrate that its concern was with the substance of the proposal, not whether it attracted a particular label, a conclusion reinforced by MARA’s statement at para.19 of its reasons, quoted above at [13].
I also find that Legal Training has not made out its allegation that MARA failed to give proper, genuine and realistic consideration to the application. In expressing its reasons, MARA set out Legal Training’s case in considerable detail, from which I infer that it considered the application in equivalent detail. From this I further infer that MARA considered Legal Training’s case as an individual case and did not give mere lip service to the arguments Legal Training had advanced. Notwithstanding Legal Training’s submissions I find that this conclusion is borne out by MARA’s statement in para.28 of its refusal notice where it said:
There is nothing in the application … to warrant a departure from the current CPD framework,
which, in context, was a clear, if implied, indication that the application was given substantive consideration.
MARA misdirected itself in law
Legal Training submitted that MARA had been empowered but not required to consider the factors referred to in reg.9G(1) and that MARA had misdirected itself by considering that it had to be satisfied of those matters before it could approve the proposed activity. Legal Training submitted that its proposition that MARA was obliged to exercise flexibility in its choice of the matters which it would take into account was borne out by the text of the section and the purpose and context of the statutory scheme.
Consideration
This ground is an allegation that MARA should not have considered itself bound to take into account the matters referred to in reg.9G(1)(a) and that it erred in doing so. In para.16 of its refusal notice MARA did state:
In considering whether or not to approve an activity … the delegate must be satisfied that the activity will help improve the professionalism of each participant in the approved activity as a registered migration agent.
The imperative mood employed by MARA in that statement does indicate that it considered the educational value of activities to be a mandatory consideration when deciding whether to approve them. It should be noted that, contrary to Legal Training’s allegation, MARA did not treat the other matters referred to reg.9G(1)(a) in the same way.
Although reg.9G(1)(a) is drawn in permissive terms and does not mandate consideration of the educational value of activities when approval of an activity is sought, that does not mean that MARA could disregard that issue. The matters which a decision-maker must take into account when reaching a decision will be determined by construction of the statute conferring the discretion: Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39. Given that reg.9G falls within pt.3A of the Regulations, which is concerned with the approval of educational activities for migration agents, it would be anomalous if reg.9G were understood to permit MARA to choose to ignore the educational value of an activity when considering whether to approve it under reg.9E which, after all, relevantly provides for approval of an activity
… as an approved activity in relation to the continuing professional development of registered migration agents … .
As the professional development of migration agents is the central concern of the approval process in question, so the educational value of a proposed activity must also be a central concern of the process. Consequently, it is a consideration which MARA must take into account when exercising its delegated discretion, notwithstanding the permissive terms of reg.9G(1). Consequently, MARA did not err by treating it in that manner.
Conclusion – reasonable prospects of success
For the above reasons I conclude that Legal Training’s application does not have reasonable prospects of success.
Conclusion
As Legal Training did not explain why the application for an extension of time was not filed promptly after MARA’s decision was re-notified in February 2014 and its application does not have reasonable prospects of success, I have concluded that Legal Training’s application for an extension of time within which to file an application for review of MARA’s decision of 18 December 2013 should be dismissed.
In light of the terms of order 5 made on 26 May 2014, it may be necessary also to make an order in relation to the application referred to there. In the event that it is, there will be an order that that application be dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 27 January 2015
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