Migration Agents Registration Authority v Griffiths
[2001] FCA 1177
•24 AUGUST 2001
FEDERAL COURT OF AUSTRALIA
Migration Agents Registration Authority v Griffiths [2001] FCA 1177
ADMINISTRATIVE LAW – judicial review – mandatory interlocutory order – leave to appeal – migration agent – cancellation of registration – stay of cancellation by Administrative Appeals Tribunal – expiry of registration – application for renewal – refusal of application – interlocutory order directing re-registration by Migration Registration Authority – subsequent fresh cancellation and stay order – utility of relief on appeal – leave to appeal rescinded.
Migration Act 1958 (Cth) s 289, s 290. S 303
Administrative Decisions (Judicial Review) Act 1977
Federal Court of Australia Act 1976 (Cth) s 23, s 28(1)(b)
Administrative Appeals Tribunal Act 1975 (Cth)Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 cited
Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) [1997] 1 WLR 1627 citedMIGRATION AGENTS REGISTRATION AUTHORITY v DAMIAN GERRARD GRIFFITHS
Q97 of 2001FRENCH, DOWSETT and GYLES JJ
24 AUGUST 2001
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 97 OF 2001
On Appeal from a Single Judge of the Federal Court
BETWEEN:
MIGRATION AGENTS REGISTRATION AUTHORITY
APPELLANTAND:
DAMIAN GERRARD GRIFFITHS
RESPONDENTJUDGE:
FRENCH, DOWSETT and GYLES JJ
DATE OF ORDER:
24 AUGUST 2001
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. Leave to appeal granted by Drummond J on 23 April 2001 is rescinded.
2. There is no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q97 OF 2001
On Appeal from a Single Judge of the Federal Court
BETWEEN:
MIGRATION AGENTS REGISTRATION AUTHORITY
APPELLANTAND:
DAMIAN GERRARD GRIFFITHS
RESPONDENT
JUDGE:
FRENCH, DOWSETT and GYLES JJ
DATE:
24 AUGUST 2001
PLACE:
BRISBANE
REASONS FOR JUDGMENT
THE COURT:
Introduction
This appeal is by leave, granted by Drummond J, from an interlocutory order of his Honour requiring the Migration Agents Registration Authority (“the Authority”) to register Damian Gerrard Griffiths as a migration agent under the provisions of the Migration Act 1958 (Cth). Mr Griffiths’ registration was cancelled by order of the Authority made on 21 December. A stay of the cancellation was directed by the Administrative Appeals Tribunal (“the Tribunal”) on 16 January 2001. However, the registration expired on 15 April and the Authority declined to renew it. An application for judicial review of the Authority’s decision was filed in this Court and on 18 April, Drummond J made an interlocutory order requiring the Authority to renew the registration. On 23 April 2001, his Honour granted leave to appeal against his interlocutory order. The appeal now comes before this Court for determination.
Factual Background
Damian Gerrard Griffiths was registered as a migration agent on 3 April 1996 under the provisions of the Migration Act. Between August 1996 and March 1998 he worked for or in conjunction with other people as a registered migration agent. In March 1998, he commenced business on his own account, trading through a company, DG Griffiths & Company Pty Ltd, under the business name, Griffiths & Company. The Authority received complaints in the first half of 2000 from a number of Mr Griffiths’ clients to which his solicitors responded in May 2000. On 4 September 2000, the Authority gave notice, in letters relating to two of the complaints against him, that it was considering cautioning him or suspending or cancelling his registration. He was invited to make a submission in each case pursuant to s 309(2) of the Act by 28 September 2000. A response was sent to the Authority on 20 September 2000 asserting that its notices of 4 September 2000 were invalid. Notices in respect of further complaints were sent on 15 and 16 November stating that the Authority was considering cautioning or suspending him or cancelling his registration. Mr Griffiths’ solicitors responded to them on 19 December. The responses, in substance, challenged the Authority’s processes.
On 21 December, the Authority made a decision to cancel Mr Griffiths’ registration as a migration agent by removing his name from the Register. The ground of the cancellation was that the Authority was satisfied, pursuant to s 303(h) of the Act, that he had not complied with the Code of Conduct applicable from time to time and further that it was satisfied under s 303(f) of the Act that he was not a person of integrity or that otherwise he was not a fit and proper person to give immigration assistance.
On 29 December, Mr Griffiths instituted proceedings in the Tribunal for review of the Authority’s decision. He applied for a stay of the cancellation and on 16 January 2001 the Tribunal made an order staying implementation of the decision until the determination of the application for review or further order.
On 14 March 2001, Mr Griffiths’ solicitors sent to the Authority an application for re-registration noting that his current registration, continued by virtue of the Tribunal order, was due to expire on 15 April 2001 and inquiring whether the Authority was considering not re-registering him. The application was received by the Authority on 15 March and considered at a meeting on 21 March. On that date it also decided to give Mr Griffiths a caution. It reviewed the material upon which it had based its decision to caution him and to cancel his registration. The Authority concluded that it was open to it to be satisfied that Mr Griffiths was not a fit and proper person to give immigration assistance and that he was not a person of integrity. This, however, was not immediately communicated to him.
The solicitors again wrote to the Authority on 22 March requesting advice on whether it was considering not re-registering their client. They wrote again on 30 March referring to their earlier letters and pointing out that Mr Griffiths’ registration was due to expire on 15 April. They again requested advice as to whether the Authority was considering not re-registering him. A further letter was sent on 5 April making the same inquiry.
On 5 April, the Authority sent a facsimile to Mr Griffiths, although not to his solicitors. In that letter it acknowledged receipt of the application for re-registration. It advised that it had considered the application at its meeting on 21 March. It referred to and set out the provisions of s 290 of the Act and then went on:
“The Authority is considering refusing your application for repeat registration pursuant to section 309(1) of the Act. On 21 December 2000 the Authority made a decision to cancel your registration. On 21 March 2001 the Authority also decided to give you a caution. The materials from which the Authority based its decisions to caution you and cancel your registration were reviewed. Based on that evidence it is open to the Authority to be satisfied that you are not a fit and proper purpose to give immigration assistance and that you are not a person of integrity.
Before considering your application further, the Authority invites you to make a submission on this matter pursuant to section 309(1) of the Act. You are reminded that under section 310 of the Act if the Authority does not receive a submission, it may decide the matter on the information before it.
Your submission is to be received by the Authority no later than 8.30am on 27 April 2001.”
On 10 April, Mr Griffiths’ solicitors wrote back to the Authority asking it to identify those matters, contained in its cancellation decision of 21 December 2000 and its caution decision on 21 March 2001, that it intended considering in its deliberations regarding his application for re-registration. The information was requested by no later than 12 April so that the submission to the Authority could be provided by the specified deadline. There was no response and the solicitors wrote back on 12 April requesting an undertaking, until the determination of Mr Griffiths’ application for re-registration, that the Authority would in all respects treat him as though he continued to be registered as a migration agent despite the expiration of the twelve month statutory period. No such undertaking was forthcoming.
The Federal Court Proceedings
An application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 was filed in the Federal Court on 12 April and under directions from Drummond J, notice of the application was given to the Authority on the same day. The application sought an order that the Authority decide, within such period as the Court deemed appropriate, that Mr Griffiths’ registration as a migration agent ought to be renewed. It also sought an interlocutory order that the Authority forthwith renew the registration until the hearing of the application or until further order. The grounds of the application were that the Authority had a duty to decide whether the registration ought to be renewed, it had a duty to make that decision as soon as possible and it had unreasonably delayed in making that decision. A motion was also filed on behalf of Mr Griffiths on 17 April seeking an order that the Authority forthwith renew his registration as a migration agent until the hearing of his application for an order of review. Strictly, no motion was necessary as the interlocutory relief was claimed in the application itself.
The Interlocutory Order
On 18 April 2001, the learned primary judge made an order in the following terms:
1.On the applicant by his senior counsel giving the usual undertaking as to damages, the respondent forthwith renew the applicant’s registration as a migration agent sought by application delivered to the respondent on 15 March 2001.
2.There be liberty to apply.
Ancillary orders adjourning the matter for further directions and reserving the question of costs were also made.
On 20 April, the Authority filed a motion, returnable before his Honour, seeking to vary or set aside order number 1 pursuant to O 35 r 7(2)(c). Alternatively, it sought leave to appeal from his interlocutory orders and an order that they be stayed pending the hearing and delivery of judgment in the appeal. On 23 April 2001, his Honour granted leave to appeal the interlocutory orders which he had made on 18 April 2001 and otherwise dismissed its motion.
The Notice of Appeal
Pursuant to the leave granted by his Honour, the Authority filed a notice of appeal on 9 May on grounds that he had erred in law in various respects and that his discretion miscarried.
The orders sought on the appeal are as follows:
“7.That the Appeal be allowed.
8.That the decision of the Honourable Justice Drummond pronounced on 18 April 2001 be quashed and/or set aside with effect from the date when the decision was made.
9.That the orders made by the Honourable Justice Drummond on 18 April 2001 be quashed and/or set aside with effect from the date when the decision was made and that the proceedings be remitted to the Honourable Justice Drummond for further hearing and determination, subject to such directions as the Court thinks fit.
10.That the re-registration of the Respondent as a migration agent pursuant to the Act be quashed and/or set aside from the date of the re-registration on 26 April 2001.
11.That the Respondent be ordered to pay the Appellants costs of and incidental to the Appeal and the Motion before his Honour Justice Drummond to be taxed.”
Subsequent Cancellation
Since the appeal was instituted, the Authority has decided to cancel Mr Griffiths’ registration, a possibility which was expressly contemplated by his Honour when he made his interlocutory order and which he took into account in assessing the balance of convenience. The second cancellation decision was made on 13 July. Notice of the decision was not given to Mr Griffiths until 30 July. Mr Griffiths lodged an application with the Tribunal on 1 August to review the decision of the Authority. He obtained an order from the Tribunal on 2 August staying the second cancellation decision. The hearing of the application in the Tribunal has been set down for the week commencing 26 November 2001.
Statutory Framework
Part 3 of the Migration Act deals with the topic of Migration Agents and Immigration Assistance. There is a general prohibition against the provision of immigration assistance (a defined term) by persons who are not registered agents (s 280(1)). This prohibition is subject to exceptions which are not relevant for present purposes. Division 3 of Part 3 provides for the registration of individuals as migration agents (s 286). The Authority is required to keep a register to be known as the Register of Migration Agents listing individuals who are so registered (s 287). There is provision for individuals to apply to the Authority to be registered as registered agents (s 288(1)). Registration is for a period of twelve months (s 299). This is subject to automatic deregistration upon written request or death (s 302). It is also subject to discretionary cancellation or suspension of registration by the Authority (s 303). The obligations of the Authority in relation to applications, whether they are fresh applications or applications for renewal, are dealt with in ss 289 and 290 of the Act. They provide in the relevant parts:
“289(1) The Migration Agents Registration Authority must register an applicant by entering his or her name in the Register, unless section 290, 290A, 291, 292, 293 or 294 prohibits registration of the applicant.
(2) The Migration Agents Registration Authority do so as soon as possible.
…(4) If the Migration Agents Registration Authority enters in the Register the name of an applicant who is already registered, the later registration takes effect at the end of the existing registration (unless the existing registration is cancelled before it would end under section 299).
290(1) An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:
(a)the applicant is not a fit and proper person to give immigration assistance; or
(b)the applicant is not a person of integrity;
…”
Subsection 290(2) sets out a number of matters that the Authority must take into account in considering whether it is satisfied that an applicant is not fit and proper or not a person of integrity. Cancellation of registration is dealt with in s 303, which relevantly provides:
“303. The Migration Agents Registration Authority may:
(a)cancel the registration of a registered agent by removing his or her name from the register; or
(b)suspend his or her registration; or
(c)caution him or her;
if it becomes satisfied that:
…
(f)the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
…
(h)the agent has not complied with the Code of Conduct prescribed under section 314.”
Section 309 provides that if the Authority is considering refusing a re-registration application or cancelling or suspending a registration or cautioning an agent, it must inform the applicant for registration or the agent as the case may be of that fact and the reasons for it and invite submissions on the matter. If the Authority does not receive a submission it must decide the matter on the information before it (s 310). If it does receive a submission, it may decide the matter or give the person making the submission the opportunity to appear before it and then decide the matter (s 310(3)).
The Judgments at First Instance
In his reasons for judgment on 18 April 2001, the learned primary judge referred to the powers of the Court under s 23 of the Federal Court of Australia Act 1976 (Cth) which, he said, were not excluded by anything in the Administrative Decisions (Judicial Review) Act or the Migration Act. The Court was empowered, he said, to grant an interlocutory injunction for the purpose of protecting a registered agent’s entitlement to a continuous series of registrations. That a mandatory interlocutory injunction was sought was no reason for the Court to require any specially clear proof of the strength of the applicant’s case for final relief.
In his Honour’s opinion, Mr Griffiths had an arguable case that the Authority had failed in its statutory duty under s 289(2) to deal as soon as possible with his application for re-registration which had been filed on 15 March 2001. After referring to the history of communications with the Authority in relation to re-registration, he said:
“Given the information available to the Authority prior to receipt of the applicant’s re-registration application on 15 March 2001, with respect to his fitness to be registered and the Authority’s prima facie justifiable concerns about that issue, it is arguable that the Authority, by no later than 12 April 2001, had failed to comply with its duty to make a decision whether to register the applicant, even allowing for discharge by the Authority of its obligation under s 309(1) to give the applicant proper opportunity to comment on its intention to refuse registration.”
His Honour saw no reason why the Authority could not have complied with s 309(1) upon receipt of the application on 15 March 2001 given what it had to say in its letter of 5 April about its intention to have regard to its 21 December cancellation and to its 21 March caution decision when considering whether to refuse the application for re-registration. He accepted, however, that there was a substantial issue before him as to Mr Griffiths’ fitness to be registered. That did not detract from the fact that the legislation provided for a scheme of unbroken registrations necessary to enable a person to carry on business as a migration agent and that prompt decision-making by the Authority on applications for registration, including applications for re-registration like that lodged by the applicant, was an integral element of that scheme.
Notwithstanding the evidence as to Mr Griffiths’ fitness to be a registered migration agent, his Honour concluded that he had a strong case that the Authority was in breach of its duty. This did not involve any opinion about the strength or weakness of any case he might have in the future should the Authority cancel the court ordered re-registration.
His Honour considered the balance of convenience. He had regard to the financial damage to Mr Griffiths in the event that his business were stopped by the termination of his registration. He had regard to the probability that employees in Australia and overseas would be dismissed and that current clients were likely to suffer delay and disruption. He also considered possible prejudice to the Authority. Although his Honour did not express it in terms of public interest, this may be taken as a consideration of public interest issues. The Authority itself, as a statutory body, does not suffer prejudice, except in terms of its statutory purpose which is directly connected to the public interest. He noted that the Authority had not put on evidence of any newly emerged concerns about Mr Griffiths’ fitness to be re-registered. Its “prima facie justifiable concerns” all related to events of which it had long been aware. His Honour was also of the opinion that the Authority’s power of cancellation under s 303 was sufficiently wide to ensure that it would not be hampered by his interlocutory injunction from acting to protect the public interest immediately should it become satisfied at some future time that Mr Griffiths was not fit to remain registered.
In his reasons for judgment on 23 April 2001, his Honour referred to the Authority’s contention that it had not had the opportunity to put all arguments before him relevant to the question of his power to make the order that was sought. He entertained further submissions which went to his powers under s 23 of the Federal Court of Australia Act. Accepting that the Court could not grant interlocutory relief more extensive than the final relief it is empowered to grant, his Honour referred to authority that the Court could in an appropriate case order a decision-maker to decide a matter in a particular way – Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528. The submission put against the application of that proposition to the present case was that his interlocutory order had the effect of preventing the Authority from performing its statutory duty to consider whether Mr Griffiths was a fit and proper person and a person of integrity within the meaning of s 290 before making a decision on his pending registration application. In circumstances where the Authority was not satisfied of the matters referred to in ss 290 and 290A, a final order could not be made under s 16(3)(c) having that effect.
His Honour rejected that submission on constructional grounds. The prohibitions, the subject of ss 290 and 290A, were conditioned upon the existence of opinions necessary to be formed by the Authority. On its proper construction, in his Honour’s opinion, s 290(1) did not condition the Authority’s duty under s 289(1) and (2) to register an applicant as a migration agent as soon as possible upon the applicant in fact being a fit and proper person and a person of integrity within s 290(1). Nor did it condition performance by the Authority of its duty of registration under s 289 upon the applicant satisfying the Authority of such matters. Section 290(1) only operated to prohibit the Authority from registering an applicant if, by the end of the period fixed by s 289(2), it had become satisfied that the person was not a fit and proper person. It followed that the Authority must register a person even though there is an issue as to the person’s fitness if the Authority were unable promptly to reach a state of satisfaction as to the person’s fitness.
In his Honour’s opinion, the Authority was obliged to register a person as a migration agent by force of s 289(1) even when there was, in relation to ss 290 and 290A, an issue as to the person’s fitness or integrity unless the Authority had been able promptly to reach a state of being satisfied that the particular applicant was unfit or lacking in the necessary integrity. He said:
“It must make a decision on an application for registration promptly – “as soon as possible” in the context of the scheme of annual registrations. If it cannot reach a conclusion on the issue of an applicant’s fitness within that quite tight timeframe, it must, in my opinion, register the application.”
His Honour therefore did not accept that a final mandatory order to register the applicant would be beyond power because it might prevent the Authority from performing, as a condition precedent to granting registration, a duty to decide whether or not the applicant was prohibited for want of fitness from being registered as a migration agent.
The Merits of the Appeal
The issues addressed by his Honour raise difficult and important questions concerning the construction of provisions of the Migration Act relating to registration of migration agents. The correctness of his Honour’s view that the obligation resting upon the Authority as at 15 April was to re-register the applicant, may be debatable. In this respect it will be recalled that, as at 21 December when it cancelled the applicant’s registration, the Authority was of the opinion that the applicant was not a fit and proper person to give immigration assistance. There is no suggestion that anything had occurred between 21 December and 15 April to alter that opinion. There was thus an argument that the prohibition imposed by s 290(1) against registration was activated, the condition under s 290(1)(a) being, on the face of it, satisfied. The pendency of the application for re-registration also arguably activated the obligation of the Authority under s 309 to invite Mr Griffiths to make a further submission in support of his application. Each of these considerations may inform the content of the obligation on the Authority to register “as soon as possible” imposed by s 289(2). This appeal, from an interlocutory order, is not in our opinion, an appropriate vehicle for the resolution of these constructional issues. It may well have been preferable for the learned primary judge to proceed directly to an expedited final hearing of the review application, rather than making the order that he did.
The intent of the order was, in effect, to protect the status quo until the claim for final relief could be determined. In that sense it was related to issues connected with the management of the litigation. Since that time, circumstances have changed. A fresh cancellation determination has been made and the question of Mr Griffiths’ registration is to be agitated before the Tribunal which, in the meantime, has decided to grant a fresh stay of the cancellation.
The regime triggered by the interlocutory order has existed for four months. The ultimate decision-maker as to Mr Griffiths’ fitness to practice is the Tribunal, not the Authority or this Court. If the present regime can be, and is, disturbed now, and the effect of the order reversed, the result will be that the most recent cancellation will be moot and the Tribunal will not be able to decide the merits of the case on the most recent material. Indeed, the ability of the respondent to continue to practice depends upon the judgment of the Tribunal as to the stay of the cancellation pursuant to the Administrative Appeals Tribunal Act 1975 (Cth) in the exercise of which the public interest must be taken into account.
There is considerable doubt as to whether any order of the Court can now reverse the consequences of the interlocutory order. There is no power in the Court to rectify the Register, or to order its rectification. The Court has no role in relation to it. An appellate court has implied power to enable it to carry out its function and to make consequential orders to give effect to a successful appeal by:
“…unravelling the practical consequences of orders made by the courts below and duly carried out by the unsuccessful party” (per Lord Nicholls in Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) [1997] 1 WLR 1627 at 1637)
However, it is far from clear that this would encompass alterations to a public statutory register. There is also a question as to the effect of reversing the order under appeal ab initio, as sought by the Authority, upon Mr Griffiths and those with whom he has dealt. It is not necessary to pursue these points, or the consequences of an undertaking, in terms of s 302(1)(a), which was proffered on the appeal by counsel for Mr Griffiths to conclusion as, we are satisfied that, even if error below be demonstrated, it would not be appropriate to disturb the status quo and we would refuse to make an order pursuant to s 28(1)(b) of the Federal Court of Australia Act.
In the circumstances, to interfere with his Honour’s order would be to cause unnecessary complication and uncertainty in an already convoluted process. The hearing by the Tribunal is set down for 26 November. If circumstances with respect to the conduct of the business change in any significant way, it is open to the Authority to seek an order from the Tribunal revoking its stay order.
It will be apparent from the foregoing that there is considerable doubt as to the utility of a final hearing of this proceeding, and it would be unfortunate if it occasioned any interference with the proceedings in the Tribunal.
In the opinion of the Court the appropriate course in this case is to rescind the leave to appeal granted by his Honour, with no order as to costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate:
Dated: 24 August 2001
Counsel for the Appellant: Mr PG Bickford Solicitor for the Appellant: Blake Dawson Waldron Counsel for the Respondent: Mr J Bell QC and Mr MJ Burns Solicitor for the Respondent: McCullough Robertson, Lawyers Date of Hearing: 23 August 2001 Date of Judgment: 24 August 2001
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