Levingston v Office of the Migration Agents Registration Authority

[2014] FCCA 3084

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEVINGSTON v OFFICE OF THE MIGRATION AGENTS REGISTRATION AUTHORITY [2014] FCCA 3084

Catchwords:
PRACTICE AND PROCEDURE – Application for interlocutory injunction to restrain the Office of the Migration Agents Registration Authority (OMARA) from acting on a notice purportedly issued under s.308 of the Migration Act 1958 (Cth) (Act) – whether the applicant has a prima facie case or there is a serious question to be tried that by issuing a notice purportedly pursuant to s.308 of the Act OMARA also purported to issue the notice under s.309 of the Act – no prima facie case established – no serious question to be tried – whether in any event balance of convenience favours the granting of an injunction – application dismissed.

Legislation:  

Migration Act 1958 (Cth), ss.276, 303(1)(h), 308, 309

Applicant: CHRISTOPHER HUGH LEVINGSTON

Respondent: OFFICE OF THE MIGRATION AGENTS REGISTRATION AUTHORITY

File Number: SYG 3430 of 2014

Judgment of: Judge Manousaridis

Hearing date: 23 December 2014

Delivered at: Sydney

Delivered on: 23 December 2014

REPRESENTATION

Counsel for the Applicant: Mr M A Robinson SC and Ms A Poljak

Solicitors for the Applicant: Christopher Levingston & Associates

Solicitors for the Respondent: Mr W Sharpe of Sparke Helmore

ORDERS

1. The applicant has leave to substitute the originating application for judicial review filed in Court today for the application for judicial review filed on 11 December 2014.

2. The application for interlocutory relief is dismissed.

3. The applicant pay the costs of the interlocutory application.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3430 of 2014

CHRISTOPHER HUGH LEVINGSTON

Applicant

And

OFFICE OF THE MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, a registered migration agent and solicitor, applies for an order staying the operation of what purports to be a notice issued by the Office of the Migration Agents Registration Authority (OMARA). That notice was purportedly issued under s.308 of the Migration Act 1958 (Cth) (Act).  The notice is contained in a letter dated 25 November 2014.  It refers to a complaint about the applicant having posted on a blog a link to a list, purportedly emanating from the Department of Immigration and Border Protection, of agents of interest.

2. The letter from OMARA describes in some detail what that complaint is and attaches the complaint in full, except for the redaction of a paragraph or two.  Under the heading “Code of Conduct”, the letter states as follows:

   It is the Authority’s view that there is a sufficient nexus between the subject matter of the complaint and the provision of immigration assistance. The complaint raises concerns as to whether your actions impugn your integrity or fitness to practice for the purposes of section 303 of the Migration Act 1958.

3. Under the heading “Response required”, the letter states:

   In order to address the allegations raised in this complaint under section 308(1)(a) of the Migration Act 1958 (“the Act”), you are required to answer the following questions in the form of a statutory declaration.

4. There then follow six questions.  Immediately after the sixth question, the letter states:

   You may also provide any other information in your submission about your intentions and the circumstances around the publication of the material.

5. The applicant claims the notice is invalid. He relies on the following grounds. First, the notice purports to be a notice under both s.308 and s.309 of the Act or, otherwise, the notice purports to conflate the two purposes of those provisions in the one document. The applicant submits (and OMARA accepts) that it is impermissible for OMARA to issue a notice which purports to fulfil in the one document the purposes of s.308 and s.309 of the Act.

6. The second ground on which the applicant relies for claiming that the notice is invalid is that it manifests bias.  And by that, I take it the applicant means the notice gives rise to a reasonable apprehension of bias. 

7. The third ground, although not advanced in oral submission, is contained in the grounds of review filed with the Court that OMARA issued the purported notice in error. The claimed error is that OMARA was of the view that there was a sufficient nexus between the subject matter of the complaint and the provision of immigration assistance. It is submitted that that manifests a misunderstanding of s.276 of the Act.

8. Although the application before me is for an order staying the operation of the notice, the parties proceeded on the basis that the principles that should govern whether a stay should be granted are those that apply when considering whether an interlocutory injunction should be granted, and I propose to proceed on that basis as well. 

9. A necessary, though not sufficient, condition for the granting of an injunction is that a court has a degree of satisfaction as to the strength of the case. Different words have been used to describe what must be shown in order for a court to have the appropriate state of satisfaction.  Two competing sets of words have been put before me.  One is that it must be demonstrated there is a prima facie case.  The other is that there is a serious question to be tried.  I will apply both these formulas, but in substance, as it has been held in a number of cases, there is no real difference between them.

10. I first turn to ground one. The ground on which the applicant says that the notice is more than a s.308 notice is the two passages from the letter which I have already read. These are the matters under the heading of “Code of Conduct” and also the sentence that appears under the sixth question. In my opinion, it is not reasonably arguable, and no prima facie case is established to indicate, that OMARA considered, on the basis of these passages, or on the basis of anything else contained in the letter, that it was issuing a notice under s.309 as well as under s.308 of the Act. There is also no arguable case in my opinion that there is anything in this letter which indicates that OMARA did conflate the two purposes provided for under those sections.

11. Turning to the words under the heading “Code of Conduct”, these merely express the grounds on which OMARA believes the questions it set out in the letter are related to the statutory functions it is authorised to carry out under the Act.

12. When one turns to the submissions, it is true that under s.308, there is no provision for requesting submissions. That section is restricted to empowering OMARA to ask questions. But the letter does not purport to require any submissions. That part of the letter can be ignored. The true question that arises is whether, by reason of that sentence, there is a reasonably arguable case or a prima facie case that OMARA was considering that it was issuing a notice under s.309 or was purporting to issue the letter for purposes for which a s.309 notice may be issued. In my opinion, there is no reasonably arguable case for that proposition.

13. I next turn to the question of bias.  Again, the passages particularly relied upon are those that appear under the heading “Code of Conduct”.  In my opinion, it is not reasonably arguable that that passage or anything else in the letter indicates a pre-judgment by OMARA.  OMARA, as the regulator in this field, has done nothing more than form a particular view about a potential state of affairs that it believes requires further investigation.  There is nothing in this letter which arguably indicates that OMARA has formed a particular view about what that state of affairs is such that its mind is closed.

14. I then turn to s.276 of the Act. In my opinion, it is not reasonably arguable, or there is no prima facie case to indicate, that there is not a sufficient nexus between the complaint and the issuing of the questions contained in the notice. The complaint in terms alleges a breach of the “Code of Conduct” and, of course, a breach of the “Code of Conduct” is a ground under s.303(1)(h) of the Act for the cancellation of the registration of a migration agent.

15. So, in my opinion, no serious question arises and no prima facie case is made out that any of those grounds for challenge of this notice are valid or sustainable.  In the event I am wrong in that conclusion, I turn now to the balance of convenience.  As I understand the applicant, he accepts that it is open to OMARA to simply re-issue a letter demanding an answer to the six questions that are contained in that letter.  I do not understand there to be a submission that because of the defects the applicant alleges the current notice suffers from, that is a ground preventing OMARA from forever issuing a notice asking those questions.

16. It has not been put to me that my failure to make an injunction today will put the applicant in a position where he will be unable to provide the answers.  If I were to grant an injunction today, subject to any potential issue of contempt which I will address in a moment, it would be open to OMARA to simply issue a fresh letter asking the same questions. 

17. As to the question of contempt, I cannot see any arguable case for holding that OMARA would be in contempt in re-issuing the letter when no allegation or submission is made that OMARA, because of the alleged defects of this notice, is forever prevented from asking the questions it has asked in the notice. 

18. Assuming, I found there were a prima facie case, the balance of convenience would not lead me to grant the injunction. 

19. For these reasons, I propose to dismiss the application for interlocutory relief.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  22 January 2015