Marino and Migration Agents Registration Authority - [2002] AATA 366

DECISION AND REASONS FOR DECISION [2002] AATA 366

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1477

GENERAL ADMINISTRATIVE DIVISION       )
           Re      PAUL DONATO MARINO
  Applicant
           And    MIGRATION AGENTS REGISTRATION AUTHORITY
  Respondent

DECISION

Tribunal Ms G Ettinger Senior Member

Date17 May 2002
PlaceSydney

Decision      The Administrative Appeals Tribunal finds that it has jurisdiction and power to review the decision of the Migration Agents Registration Authority ("MARA") of 14 June 2001, with regard to the refusal to register Mr Paul Donato Marino as a non-fee-charging migration agent.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
Migration agent – registration – whether decision of MARA made ultra vires – comments regarding whether applicant is to be registered as a commercial migration agent are not a decision – Tribunal has jurisdiction to review the decision of MARA

LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 25, 43(1)
The Migration Act 1958 – ss 288(4), 295, 306
Migration Agents Registration Application Charge Act 1997 s 6
Migration Agents Registration Application Charge Regulations 1998 regulations 4(2)(b) and 5(2)(b) (as amended by the Migration Agents Registration Application Charge Amendment Regulations 2000 (No. 1))

CASE LAW
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1
Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442

REASONS FOR DECISION

17 May 2002 Ms G Ettinger Senior Member

The matter before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Migration Agents Registration Authority ("MARA") (T4), dated 14 June 2001, whose decision was as follows (T4/007):
"Pursuant to Section 295 of the Act, the Applicant is advised that, following consideration of the facts before it, the Authority has determined not to register the Applicant following his application to be registered as a non-fee-charging migration agent."
A hearing to determine jurisdiction and powers of the Tribunal to deal with Mr Marino's application for review of the decision (T2) was held. Mr Marino was self represented and the Respondent, MARA, was represented by Ms C Bateup of Blake Dawson Waldron, Solicitors.
The Tribunal also had before it documents lodged pursuant to section 37 of the AAT Act, ("the T-documents").
LEGISLATION
The relevant legislation is the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), in particular sections 25 and 43(1). As relevant the sections follow:
"25 Tribunal may review certain decisions
(1)An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
(3) Where an enactment makes provision in accordance with subsection (1), that enactment:
(a) shall specify the person or persons to whose decisions the provision applies;
(b) may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c) may specify conditions subject to which applications may be made.
(3A) Where an enactment makes provision in accordance with this section for the making of applications to the Tribunal for the review of decisions of a person made in the exercise of a power conferred on that person, that provision of that enactment applies also in relation to decisions made in the exercise of that power:
(a) by any person to whom that power has been delegated;
(b) in the case where the provision specifies the person by reference to his or her being the holder of a particular office or appointment—by any person for the time being acting in, or performing any of the duties of, that office or appointment; or
(c) by any other person lawfully authorised to exercise that power.
(4) The Tribunal has power to review any decision in respect of which application is made to it under any enactment.
(5) For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.
…"
"43 Review by Tribunal
…
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal."
Also relevant is the Migration Act 1958 ("the Migration Act"), in particular sections 295 and 306, as follows:
"295 Notice of refusal of application
If the Migration Agents Registration Authority decides not to register an applicant, the Authority must give the applicant written notice of the decision and of the reasons for it.
Note: The applicant may apply to the Administrative Appeals Tribunal for review of the decision. See section 306 of this Act. (Section 27A of the Administrative Appeals Tribunal Act 1975 requires that people whose interests are affected by the Authority's decision be given notice of their rights to seek review of the decision.)"
"306 Review by the Administrative Appeals Tribunal
Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division."
The following legislation and regulations were relevant in considering the fee payable by Mr Marino in connection with his registration as a migration agent. Section 6 of the Migration Agents Registration Application Charge Act 1997 provides:
"6 Amount of charge
(1) The amount of charge payable on an individual's making of a registration application is the amount prescribed by the regulations for an individual of that kind.
(2) The regulations may prescribe different amounts (including nil amounts) for different kinds of individuals making registration applications.
(3) The regulations must not prescribe an amount more than the charge limit for the registration application."
Regulations 4(2)(b) and 5(2)(b) of the Migration Agents Registration Application Charge Regulations 1998 (as amended by the Migration Agents Registration Application Charge Amendment Regulations 2000 (No. 1)) provide:
"4 Amount of charge: commercial or for-profit assistance (Act s 6)
…
(2) For the purposes of section 6 of the Act, the amount of charge payable on the making of the registration application is:
…
(b) for an application for registration made on or after 21 March 1999 but before 1 July 2000, $1 010; or
…"
"5 Amount of charge: non-commercial or non-profit assistance (Act s 6)
…
(2) For the purposes of section 6 of the Act, the amount of charge payable on the making of the registration application is:
…
(b) for an application for registration made on or after 21 March 1999 but before 1 July 2000, $150; or
…"

SUBMISSIONS OF THE APPLICANT - MR PAUL DONATO MARINO

Mr Marino told me that he had paid the fee required for registration as a non-fee-charging migration agent, and appealed the refusal of MARA to register him, to this Tribunal. He said: "It seems to me it should not go this far."
I noted that his application for review to this Tribunal dated 25 September 2001 (T2) indicated that he was seeking review of the decision of the Respondent of 14 June 2001, which he had received on 31 August 2001. The reasons Mr Marino gave were:
"The decision is incorrect/wrong.
The decision is a denial of natural justice."

FACTUAL SITUATION AND SUBMISSIONS OF THE RESPONDENT MARA BEFORE THE TRIBUNAL

Ms Bateup's firm provided a comprehensive Statement of Facts and Contentions, setting out the facts in the matter, stating the Respondent's contentions, making submissions on the power of MARA to determine Mr Marino's application to be a commercial migration agent in the absence of full payment of the application fee, and addressing the jurisdiction and powers of the Tribunal to review the decision of MARA. The Respondent's submissions were based on the assumption that the relevant application refused by MARA was in regard to an application by Mr Marino for registration as a commercial migration agent rather than an application for registration as a non-fee-charging agent.
Ms Bateup traversed all the sections of the document entitled Respondent's Statement of Facts and Contentions at the Tribunal hearing.
The facts do not appear to be in dispute, and I have summarised the conduct of Mr Marino towards MARA, and the relevant correspondence between the parties in the paragraphs which follow.
I accepted that Mr Marino, whose date of birth is 9 January 1974, made an application in Victoria to MARA (T6), dated 3 March 2000. He indicated on the form that he did not intend to give immigration assistance for which a fee would be charged, and indicated that he intended to give immigration assistance as a voluntary worker.
Mr Marino also provided a cheque for $150 (Migration Agents Registration Application Charge Regulations 1998, regulation 5(2)(b)). Unfortunately the cheque was dishonoured (T7).
MARA informed Mr Marino of the above dishonour, and requested further documents and a further cheque for $150 from him in a letter of 30 March 2000 (T8). Receipt of the $150 payment from him was acknowledged by MARA on 4 May 2000 (T11).
Other correspondence ensued from MARA to Mr Marino and on 26 June 2000, Mr Marino telephoned the office of MARA (file note at T17), to indicate he now wished to apply to be a migration agent acting on a commercial, for-profit basis. On 11 July 2000, he sent a facsimile to MARA stating that he would be trading under the name Paul Marino, provided an address, and stated that he would forward the balance of the fee ($900) required for the change of status requested (T20).
As the payment for the change of status in Mr Marino's application had not been received, MARA wrote to Mr Marino about it on 27 November 2000 (T25), and on 14 June 2001, MARA refused Mr Marino's application for registration as a non-fee-charging migration agent (T4/007), and explained its reasons in the rest of the document at T4. The summary appeared at T4/14 and is reproduced below:
"The Authority has refused the Applicant's registration because the Authority is satisfied under Section 290 of the Act that the Applicant is not a fit and proper person to give immigration assistance and not a person of integrity in that:
(a) the Applicant has a previous criminal conviction;
(b) the Applicant had failed to provide evidence to the Authority concerning his intended activities as a non-commercial migration agent;
(c) the Applicant, having indicated his subsequent intention to practise as a commercial or for-profit agent, had not paid the appropriate application fee."
Mr Marino appealed the decision of MARA to the Tribunal on 29 September 2001(T2).
The Respondent's Statement of Facts and Contentions which were substantially the submissions made at the hearing, were based on MARA having refused registration to Mr Marino as a commercial for-profit migration agent. The Respondent identified the relevant decision as being MARA's refusal to register Mr Marino as a commercial agent, rather than MARA's refusal to register Mr Marino as a non-fee-charging migration agent with his failure to pay the fee to change his status to commercial agent being one of the reasons for this refusal.
FINDINGS
I have noted that when Mr Marino applied for registration to be a non-commercial non-fee-charging migration agent, he eventually paid the correct fee, $150 (acknowledged by MARA at T11). Later, when he applied at first by telephone to be a commercial, for-profit agent, the appropriate fee which he acknowledged (T20), but did not pay, was $1010 (Migration Agents Registration Application Charge Act 1997, section 6; and Migration Agents Registration Application Charge Regulations 1998, regulations 4(2)(b) and 5(2)(b).
In fact Mr Marino has never paid the full and correct amount to be a commercial for-profit migration agent, and MARA could not therefore register him as such.
In considering whether this Tribunal has jurisdiction to consider Mr Marino's application for review of the MARA decision, I have to consider whether the decision of MARA (T4), is a valid decision, or whether MARA acted beyond its power in making its decision not to register Mr Marino as a non-fee-charging migration agent on 14 June 2001 (T4). I am mindful that the Tribunal's jurisdiction to review decisions of the Respondent is derived from section 25 of the AAT Act and section 306 of the Migration Act. Section 25 of the AAT Act relevantly provides:
"25 Tribunal may review certain decisions
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
(3) Where an enactment makes provision in accordance with subsection (1), that enactment:
(a) shall specify the person or persons to whose decisions the provision applies;
(b) may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c) may specify conditions subject to which applications may be made.
(3A) Where an enactment makes provision in accordance with this section for the making of applications to the Tribunal for the review of decisions of a person made in the exercise of a power conferred on that person, that provision of that enactment applies also in relation to decisions made in the exercise of that power:
(a) by any person to whom that power has been delegated;
(b) in the case where the provision specifies the person by reference to his or her being the holder of a particular office or appointment—by any person for the time being acting in, or performing any of the duties of, that office or appointment; or
(c) by any other person lawfully authorised to exercise that power.
(4) The Tribunal has power to review any decision in respect of which application is made to it under any enactment.
…"

Section 306 of the Migration Act provides:

"306 Review by the Administrative Appeals Tribunal
Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division."

I am mindful that power to register migration agents is also derived through section 288(4) of the Migration Act, which provides that: "the Migration Agents Registration Authority must not consider a registration application unless the applicant has paid the application fee (if any) on the application." The words "must not" in section 288(4) of the Migration Act are mandatory and I accepted the Respondent's submission in that regard:
"Having regard to the scope and objects of the provisions of the Migration Act dealing with the registration of migration agents, in the Respondent's submission the wording evinces a clear legislative intention that the Migration Agents Registration Authority is not to consider an application for registration as a migration agent unless the appropriate fee has been paid. Payment of the fee is an essential prerequisite to the exercise of the Respondent's power to consider a registration application."
What this Tribunal had before it then, was a decision of MARA (T4) made in purported exercise of powers conferred by an enactment (the Migration Act), that is the refusal of registration of the Applicant as a non-fee-charging migration agent.
Ms Bateup in the Respondent's Statement of Facts and Contentions, and in her oral argument at the Tribunal, submitted that the Tribunal had jurisdiction to review the refusal by MARA to register Mr Marino as a commercial for-profit migration agent, a decision which Ms Bateup argued had been made ultra vires. If indeed that was so, then I would find that the Tribunal has jurisdiction to deal with this decision, notwithstanding that it was made ultra vires, pursuant to the authority of Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1. In Brian Lawlor (supra), the Full Court of the Federal Court was considering an appeal from the decision of the then President of the Administrative Appeals Tribunal, Justice Brennan, and by majority (Deane J dissenting), decided at 2 ALD 5 that:
"The adoption of this view would mean that the Administrative Appeals Tribunal would have jurisdiction to entertain an appeal from a decision in fact made, which purported to be made in the exercise of powers under an enactment. It could then proceed to determine whether the decision was properly made in fact and in law. There is nothing unusual in holding that an administrative decision which is legally ineffective or void is susceptible of appeal: see Calvin v Carr (1979) 22 ALR 417)" (per Bowen CJ)

Further at 2 ALD 7, it was stated:

"As I have said, in my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong."

However, I have considered the decision of 14 June 2001, which in fact appears under the heading "DECISION OF THE AUTHORITY" at T4/007. It deals only with the refusal to register Mr Marino as a non-fee-charging migration agent, and that is a decision reviewable by this Tribunal, Mr Marino having paid the correct fee for his application to register as a non-fee-charging migration agent (T11).
What may perhaps be confusing is that at T4/14, at the end of its Reasons for Decision, the last paragraph is divided into three statements, numbered (a), (b) and (c).
I have noted that in (a), (T4/14), the finding was that the Applicant was not a fit and proper person to give immigration assistance, which was a finding the Respondent was entitled to make on the basis of the Applicant's previous criminal conviction. I am not here reviewing that decision, simply noting that it was a ground on which MARA decided not to register the Applicant as a non-fee-charging migration agent.
I have noted that in (b), (T4/14), MARA made a factual finding that the Applicant failed to provide evidence concerning his intended activities as a non-commercial migration agent to MARA.
I have noted that in (c), (T4/14), which is perhaps the only contentious issue, the finding was that the Applicant, having indicated his subsequent intention to practise as a commercial or for-profit agent, that is, to change his status, had not paid the appropriate application fee. It seems to me that MARA was quite aware of the fact Mr Marino had not paid a fee to become a commercial or for-profit agent, and that it therefore declined to deal with his registration as such an agent. I have noted above that section 288(4) of the Migration Act mandates that MARA must not consider an application for registration as a migration agent unless the appropriate fee is paid. At the relevant time, the appropriate fee of $1010 had not been paid by Mr Marino, and hence MARA did not act ultra vires in noting that, and proceeding to refuse him registration on the basis of his first application and payment of the $150 fee for the application to become a non-fee-charging migration agent. In my view the statement in (c) was not a decision of MARA not to register Mr Marino as a commercial migration agent, but rather a recognition that he had not paid the requisite fee for that category.

I am mindful that section 43(1) of the AAT Act governs the Tribunal's powers on review, conferring on it "all the powers and discretions that are conferred by any relevant enactment on the person who made the decision…". As relevant, section 43(1) of the AAT Act follows:
"43 Review by Tribunal
…
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
…"
It is well settled that in reviewing a decision, the Tribunal stands in the shoes of the original decisionmaker and that the powers of the Tribunal are limited to those of that original decisionmaker whose decision is under review. (Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442).
The Tribunal therefore has both jurisdiction and the power to consider the application of Mr Marino for a review on the merits of the decision of MARA not to register him as a non-fee-charging migration agent, provided Mr Marino wishes to proceed.
DECISION
The Administrative Appeals Tribunal finds that it has jurisdiction and power to review the decision of the Migration Agents Registration Authority ("MARA") of 14 June 2001, with regard to the refusal to register Mr Paul Donato Marino as a non-fee-charging migration agent.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         .....................................................................................
  Associate
Date of Hearing  6 February 2002
Date of Decision  17 May 2002
The Applicant  Self Represented
Solicitor for the Respondent    Ms C Bateup