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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 1554
Decision Date: 12 June 2024

CaseChat Overview and Summary

This matter concerned an application for an interlocutory stay of a decision by the Migration Agents Registration Authority to suspend the registration of Mr Mathews. The applicant sought to prevent the suspension from taking effect pending a final determination of his appeal against the Authority's decision.

The primary legal issue before the Tribunal was whether it had the power to grant a stay of the Authority's suspension decision during a period where the applicant's registration was automatically continued under the *Migration Act 1958* (Cth). The Tribunal was required to consider the legislative scheme governing migration agent registration and the implications of an automatic continuation of registration on the operation of a suspension decision.

The Tribunal referred to the Federal Court's decision in *Gruszka*, which established that the scheme of the Act does not contemplate the Tribunal staying the operation of a suspension during a period of extended registration. Applying this precedent, the Tribunal reasoned that the legislative framework prioritised the Authority's power to suspend registration, and that such a suspension would operate notwithstanding any automatic continuation of registration. Consequently, the Tribunal concluded it lacked the power to grant the requested stay.

The application for an interlocutory stay was therefore refused.

Orders