McGowan v Migration Agents Registration Authority

Case [2003] FCA 482

FEDERAL COURT OF AUSTRALIA

McGowan v Migration Agents Registration Authority [2003] FCA 482

IMMIGRATION – migration agent - application for review of decision of Migration Agents Registration Authority – decision to suspend applicant’s registration as migration agent

ADMINISTRATIVE LAW - migration agent - application for review of decision of Migration Agents Registration Authority to suspend applicant’s registration as migration agent – application pursuant to Judiciary Act 1903 (Cth) s 39B(1A)(c) – prerogative relief - interaction between s 39B(1) and s 39B(1A)(c) – whether review discretionary – whether to exercise discretion – availability of review by Administrative Appeals Tribunal

ADMINISTRATIVE LAW - migration agent - application for review of decision of Migration Agents Registration Authority pursuant to Administrative Decision (Judicial Review) Act 1977 (Cth) – s 10(2)(b)(ii) - discretion to refuse application – whether to exercise discretion – availability of review by Administrative Appeals Tribunal

Migration Act 1958 (Cth) ss 286-306, 309-311, 316, 474
Administrative Appeals Tribunal Act 1975 (Cth) ss 40, 41, 43, 44
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1), 10, 16(1)
Judiciary Act 1903 (Cth) ss 39B
Federal Court of Australia Act 1976 (Cth) s 5, 19-24

Federal Court Rules O 54 r 7
Constitution ss 75, 76, 77

J Crawford, Australian Courts of Law, 3rd Ed, 1992
Allsop J ‘Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002’ (2002) 23 Australian Bar Review 29

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 referred to
Broken Hill Proprietary Co Ltd v National Companies and Securities Commission (1986) 61 ALJR 124 cited
Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 cited
Vietnam Veterans’ Affairs Association of Australia New South Wales Branch Inc v Cohen (1996) 70 FCR 419 cited
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 cited
Harris v Caladine (1991) 172 CLR 84 referred to
Australian Securities and Investments Commission v Edensor Nominees Pty Limited [2001] HCA 1; 204 CLR 559 cited
Hooper v Kirella Pty Ltd [1999] FCA 1584; 96 FCR 1 cited
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 cited
Felton v Mulligan (1971) 124 CLR 367 cited
Australian Solar Mesh Sales Pty Ltd v Anderson [2000] FCA 864; 101 FCR 1 cited
Saitta Pty Ltd v Commonwealth of Australia [2000] FCA 1546, 106 FCR 554 discussed
Jackson v Sterling Industries Limited (1987) 162 CLR 61 cited
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 referred to
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 referred to
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 cited
Edelsten v Minister of Health (1994) 58 FCR 419 discussed
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 cited
The Queen v Ross-Jones; Ex parte Green (1984) 156 CLR 185 distinguished
The Queen v Australian Stevedoring Industry Board;…

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AGLC
McGowan v Migration Agents Registration Authority [2003] FCA 482
Case
[2003] FCA 482
Decision Date

CaseChat Overview and Summary

In the case of McGowan v Migration Agents Registration Authority, the applicant, a registered migration agent, sought judicial review of a decision by the respondent to suspend her registration. The applicant claimed that the decision was made without natural justice and that the respondent failed to observe required procedures. The case was initially brought before the Administrative Appeals Tribunal but was later transferred to the Federal Court. The court was required to determine whether the applicant's claim for judicial review was valid under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and whether it could proceed concurrently with her application to the Tribunal.

The court found that the applicant's claim for judicial review under the ADJR Act was not valid as she had not followed the mandatory procedures outlined in the Act. Moreover, the court noted that the Federal Court has a judicial review jurisdiction independent of the ADJR Act, but in this case, the applicant had not sought relief under that jurisdiction. The court also considered the effect of section 10 of the ADJR Act, which allows the court to refuse to grant an application if the applicant has sought review by another court or tribunal. In this case, the applicant had already applied to the Tribunal for review, and the court exercised its discretion to dismiss the application.

The Federal Court dismissed the amended application and ordered the applicant to pay the respondent's costs. The court concluded that the applicant's claim for judicial review was not valid, and her application should be dismissed as she had not followed the mandatory procedures of the ADJR Act. Additionally, the court found that the application could not proceed concurrently with her application to the Tribunal.

Orders

Orders of the court

1. The amended application be dismissed.

2. The applicant pay the respondent’s costs.

Background

Background to the litigation

For the reasons set out below I have concluded that an order should be made dismissing the amended application.BACKGROUND FACTS By a letter dated 28 October 2002 the respondent advised the applicant that on 25 October 2002 the respondent had decided to suspend her registration until certain conditions, which were set out in the letter but which it is not necessary to set out here, were satisfied. A copy of the respondent’s ‘Notice of Decision’ setting out the reasons for the suspension of the applicant’s registration was provided to the applicant together with the letter dated 28 October 2002. The applicant, by her then solicitors, by a letter dated 22 November 2002 addressed to the Deputy Registrar of the Administrative Appeals Tribunal (‘the Tribunal’), sought review of the decision of the respondent. The letter indicated that the applicant complained of, amongst other things, a denial of natural justice by the respondent. A formal notice of the application to the Tribunal for review of the respondent’s decision was served on the respondent. The notice was dated 25 November 2002. On 25 November 2002 this proceeding was commenced. The original application, which curiously appears to bear the date 27 November 2002, has been completed in handwriting, it would seem by the applicant herself. The applicant is a solicitor. The application identifies the applicant as the person who filed the application and her address for serviced is given as ‘C/- Bellissimo & Associates’. Bellissimo & Associates is a firm of solicitors. On 10 March 2003 Francesco Bellissimo, solicitor of Bellissimo & Associates, filed a notice of ceasing to act for the applicant. An amended application dated 14 March 2003 bears an endorsement which indicates that it was filed by ‘McGowan Lawyers’. No notice of acting has been filed by McGowan Lawyers or by any solicitor associated with McGowan Lawyers. It seems likely that McGowan Lawyers is a business name owned by the applicant personally. This inference is strengthened by an endorsement which appears on the amended application which indicates that it was filed by the applicant personally. The applicant accepts that her application to the Tribunal relates to the same decision as is identified in her application to this Court. During the course of argument before the Court on the hearing of the respondent’s motion, the applicant, by her senior counsel, undertook to discontinue her application to the Tribunal within twenty‑four hours of any decision by the Court to dismiss the respondent’s motion.STATUTORY PROVISIONSMigration Act 1958 (Cth) Part 3 of the Migration Act 1958 (Cth) (‘the Migration Act’) is concerned with migration agents and immigration assistance. Subject to certain exceptions, Part 3 of the Act prohibits any person who is not a registered migration agent from giving ‘immigration assistance’. The giving of ‘immigration assistance’ is widely defined to include the use, or purported use, of knowledge and experience in migration procedure to assist a visa applicant to prepare a visa application or to prepare for proceedings before a court or review authority in relation to a visa application.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BRANSON J
The powers of the Tribunal when reviewing a decision are set out in s 43(1) which provides:‘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:(c)affirming the decision under review; (d)varying the decision under review; or (e)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.’Administrative Decisions (Judicial Review) Act 1977 (Cth) Section 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) relevantly provides:‘A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;(b)that procedures that were required by law to be observed in connection with the making of the decision were not observed;… .’ It is not in dispute that the decision of the respondent to which this proceeding relates is a decision to which the ADJR Act applies within the meaning of s 5(1) of that Act. Section 10 of the ADJR Act is of central importance on the present application. It relevantly provides:‘(1)The rights conferred by sections 5 … on a person to make an application to the Federal Court or the Federal Magistrates Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision: (a)are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure; and (b)…(2) Notwithstanding subsection (1): (a)the Federal Court or the Federal Magistrates Court, or any other court, may, in a proceeding instituted otherwise than under this Act, in its discretion, refuse to grant an application for a review of a decision, conduct engaged in for the purpose of making a decision, or a failure to make a decision, for the reason that an application has been made to the Federal Court or the Federal Magistrates Court under section 5 … in respect of that decision, conduct or failure; and(b)the Federal Court or the Federal Magistrates Court may, in its discretion, refuse to grant an application under section 5 … that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason: (i)that the applicant has sought a review by the court, or by another court, of that decision, conduct or failure otherwise than under this Act; or (ii)that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.(3)In this section, review includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order.’

Ratio Decidendi

Legal Principle Established

Established by: BRANSON J

Section 39B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) relevantly provides:‘(1)Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.(1A)The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:(a)…(b)…(c)arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.’CONSIDERATIONThe claim for ‘Judicial Review’ I turn first to the applicant’s claim for ‘judicial review’ under s 39B(1A)(c) of the Judiciary Act. It is not entirely clear what is intended to be encompassed by the claim for ‘judicial review’. In the context of an administrative decision, judicial review ordinarily implies consideration by a judge of whether it was within the power of the decision‑maker to make the particular decision, whether the decision‑maker correctly understood and applied the relevant law and whether the decision‑maker followed the correct procedures. Judicial review also ordinarily implies the availability of particular kinds of relief. Until the enactment by the Commonwealth Parliament of the ADJR Act, judicial review in Australia of administrative action was largely based on common law principles. The Supreme Courts of the States and self-governing Territories had vested in them the inherent judicial review jurisdiction of the superior courts at Westminster (see J Crawford, Australian Courts of Law, 3rd Ed, 1992 at pp 129-132). This jurisdiction was usually exercised in proceedings seeking the issue of one or more of the prerogative writs, most commonly certiorari, prohibition and mandamus. The Federal Court’s principal judicial review jurisdiction comes from the ADJR Act. Unlike the jurisdiction vested in the Court by s 39B(1) of the Judiciary Act, which is discussed below, and possibly judicial review at common law, the Court’s jurisdiction under the ADJR is not defined by reference to claims for particular forms of relief. The orders which the Federal Court may make on an application for an order of review under the ADJR Act are specified by s 16(1) of that Act (see [19] above). In the minds of many practitioners, a claim made in this Court for judicial review has come to mean a claim for relief under the ADJR Act. However, the Federal Court has a judicial review jurisdiction which is independent of the ADJR Act. The extent and nature of that jurisdiction, and the remedies available thereunder in the context of a particular proceeding, may involve issues of complexity. Section 75 of the Constitution vests original jurisdiction on the High Court in five classes of matters. One class is all matters ‘in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth’ (s 75(v)). The jurisdiction vested in the High Court by s 75(v) of the Constitution is a judicial review jurisdiction. Section 77 of the Constitution authorises the Parliament, with respect to a matter mentioned in s 75 or s 76 of the Constitution, to define the jurisdiction of any federal court other than the High Court. In 1983, in reliance on s 77, the Parliament amended the Judiciary Act by the insertion into it of s 39B. Section 39B(1) as originally enacted conferred on the Federal Court the same jurisdiction as s 75(v) of the Constitution vests in the High Court. Although the breadth of s 39B(1) has subsequently been limited (see [20] above), the limitations have no relevance in the context of the amended application.