Mathews and Migration Agents Registration Authority - [2024] AATA 1554

Mathews and Migration Agents Registration Authority [2024] AATA 1554 (12 June 2024)
Division:GENERAL DIVISION
File Number(s): 2024/0538
Re:Shiju Mathews
APPLICANT

Migration Agents Registration AuthorityAnd
RESPONDENT

INTERLOCUTORY DECISION
Tribunal:Senior Member Dr N A Manetta
Date:12 June 2024
Place:Adelaide

The Tribunal refuses the Applicant’s application for an order under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth).
.....................[sgnd]..................................................
Senior Member Dr N A Manetta
CATCHWORDS
MIGRATION AGENTS – registration – interlocutory application for stay of decision to suspend registration – applicant’s registration automatically continued – respondent made a decision to suspend applicant’s registration during extended period – scheme of Act indicates Tribunal not intended to stay the operation of suspension during a period of extended registration – Federal Court authority of Gruszka referred to – application for stay refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Migration Agents Registration Authority v Gruszka [2023] FCA 473
REASONS FOR DECISION
Senior Member Dr N A Manetta
12 June 2024

This interlocutory decision concerns an application by Mr Shiju Mathews, who has sought an order under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). Mr Mathews has sought an order under this section to stay the operation of the respondent’s decision to suspend his registration as a migration agent under the Migration Act 1958 (Cth) (‘the Migration Act’). Mr Mathews has sought a review of this suspension decision, and he has also sought an order under section 41(2) of the AAT Act to preserve his right to practise as a migration agent pending the determination of his review application by the Tribunal.
It is not necessary to canvass the facts other than to note the following. Mr Mathews has been registered as a migration agent under the Migration Act for some considerable time, since 2006 in fact. His annual registration was due to expire with effect from the beginning of 6 August 2023. Mr Mathews submitted his annual re-registration application in the course of 5 August 2023, and therefore before the end of ‘the expiry day’. Mr Mathews’ registration was then extended automatically with effect from the commencement of 6 August 2023 by force of section 300(1) and (4) of the Migration Act. Section 300(4) is in the following terms:
(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.
It is clear that subsection (4) specifies end points to an automatic continuing registration, one of them being a decision taken by the respondent to suspend the agent’s registration: see paragraph (b). A decision to suspend Mr Mathews’ registration was, in fact, taken on 23 January 2024, and it was the earliest of the four events referred to in paragraphs (a) to (d). On that day, therefore, Mr Mathews’ continuing registration came to an end in accordance with section 300(4)(b) of the Migration Act.
As I have said, Mr Mathews has sought an order under section 41(2) of the AAT Act staying the effect of the decision to suspend his registration. The respondent submits that the Tribunal does not have power to stay the operation of the suspension decision in the particular circumstances of this case; namely, where there has been an automatic continuation of registration under section 300(4) of the Migration Act that has been brought to an end by suspension. The Respondent submits that section 300(4)(b) specifies a particular consequence (namely, that the automatic continuation of registration lasts until suspension only and no longer) and that the Migration Act, on a proper construction, does not permit the Tribunal to mitigate this consequence by issuing a stay order under section 41(2) of the AAT Act.
Mr Burgess supported his submission by reference to Migration Agents Registration Authority v. Gruszka [2023] FCA 473 (‘Gruszka’), a decision of the Federal Court of Australia, which I am bound to follow of course. In his submissions, Mr Mathews sought to distinguish Gruszka by reference to the facts.
In my opinion, the decision in Gruszka should not be confined to its facts. The Court based its decision on a close construction of the legislative scheme. The Court held in effect as follows. If the respondent suspends an agent’s registration before the expiry day of his or her registration, the AAT does have power to grant a stay of the suspension that lasts up to the expiry day. The Tribunal may not, however, purport to grant a stay of a suspension decision so as to continue the agent’s registration beyond the expiry day. The Migration Act does not envisage a stay order allowing an agent to have the benefit of an automatic extension of his registration after the expiry day. The Court found, amongst other things, that that was the proper inference to be drawn from section 300(2)(b) of the Migration Act. This section specifically refers to stay orders of the AAT and makes it clear that they are not to intended to have the effect of extending an agent’s registration beyond the expiry date where the agent’s registration was suspended before the expiry day.
I accept that Mr Mathews’ situation differs somewhat from Ms Gruszka’s. He had the benefit of an automatic extension after the expiry day of 5 August 2023 by force of subsection 300(4).
This extension did not have the effect of deeming there to be a new expiry day of 6 August 2024, however. Only after 10 months, and in the absence of the Authority having taken action as referred to in paragraphs (a), (b) or (c) of section 300(4), is an agent’s application deemed[1] to have been granted with retroactive effect from the expiry day for a total of 12 months: see sections 300(5) and (6). Had there been no suspension, Mr Mathews’ registration would have been deemed, on 6 June 2024 (i.e., after 10 months), but no earlier, to be a twelve-month registration with effect from 6 August 2023. His extension would have ended on this day by force of section 300(4)(d), and he would have benefited thereafter from a deemed grant of his application for 12 months with effect from 6 August 2023 with a new expiry date of 5 August 2024: see sections 300(5) and (6).
[1] He expression ‘is taken’ has the same force and effect as ‘is deemed’: see section 5(20).
In this case, however, Mr Mathews’ registration was suspended well before 6 June 2024. Subsection 300(4)(b) applied. His application for re-registration had not been determined, but a period of 10 months after the expiry day had not yet elapsed. He enjoyed the benefit of an extension in these circumstances, but it was provisional only and had an inherent limitation; namely, that it would be brought inevitably be brought to an end by whichever of the events referred to in section 300(4) occurred first.
In these circumstances, I think the reasoning in Gruszka is relevant because the Court rejected an argument that a stay order could be granted so as to extend registration contrary to the scheme envisaged by the Act. In Mr Mathews’ case, as at the date of suspension in January 2024, his term of registration cannot be said to have been definite, but was, rather, indefinite and always liable to be brought to an end by force of section 300(4)(b). As I have said, Mr Mathews did not enjoy, at the date of suspension, the benefit of a 12-month registration, whether actually granted by the respondent or deemed to have been granted under the Act through the effluxion of 10 months. By parity of reasoning with Gruszka, I have concluded that a stay order was not intended to extend Mr Mathews’ continuing registration contrary to the termination point prescribed by section 300(4)(b).
There is a harshness here, I acknowledge, because suspension required Mr Mathews to give up his practice at that point with no right to seek a stay from the AAT or a court. But the Court in Gruszka weighed the possibility of harsh outcomes in its reasons.[2] Despite the harshness of potential consequences, the Court in Gruszka decided that the Tribunal was not intended to grant a stay so as to contradict the scheme of the Act. In my view, and given the decision in Gruszka, I should not purport to stay the respondent’s decision in the circumstances of this case and thereby contradict what I take to be the scheme of the Act and, in particular, the intended operation of section 300(4)(b).
[2] Cf [2023] FCA 473 at [64].
Accordingly, I decline to make an order under section 41(2) of the AAT Act.
I note that a timetable has been set for the substantive matter to proceed to hearing.
I certify that the preceding thirteen (13)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
……[sgnd]………………………..
Associate
Dated: 12 June 2024
Date of hearing:  10 and 29 May 2024
Advocate for the Applicant:      Self-Represented
Advocate for the Respondent:  Ashley Burgess
AUSTRALIAN GOVERNMENT SOLICITOR