Migration Agents Registration Authority v Gruszka

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FEDERAL COURT OF AUSTRALIA

Migration Agents Registration Authority v Gruszka [2023] FCA 473  

Appeal from: Gruszka and Migration Agents Registration Authority [2022] AATA 2128
File number: NSD 553 of 2022
Judgment of: RAPER J
Date of judgment: 16 May 2023
Catchwords: ADMINISTRATIVE LAW – application for review of a decision of the Administrative Appeals Tribunal – where the Tribunal granted a stay of a decision of the applicant to suspend the first respondent’s registration as a migration agent – whether the operation of s 299(2) of the Migration Act 1958 (Cth) extended the first respondent’s registration beyond the term in s 299(1) of the Migration Act – whether the Tribunal erred in the exercise of its discretion under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) by proceeding on an erroneous construction of the legislation – application allowed
Legislation:

Acts Interpretation Act 1901 (Cth) s 13

Administrative Appeals Tribunal Act1975 (Cth) s 41(2)

Migration Act 1958 (Cth) ss 276, 288, 288(6A), 289, 290, 290A, 290B, 291, 291A, 291A(b), 292B, 299, 299(1), 299(2), 300, 300(1), 300(2), 300(2)(b), 300(4), 300(5), 300(6), 300(7), 303, 303(1)(b), 304, 306, 306AA

Migration Amendment (Regulation of Migration Agents) Act 2020 (Cth)

Migration Agents Regulations 1998 (Cth) reg 7B

Explanatory Memorandum, Migration Amendment (Regulation of Migration Agents) Bill 2019 (Cth)

Supplementary Explanatory Memorandum, Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003 (Cth)
Cases cited:

Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18; 161 ALR 79

Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; 181 FCR 130

BMI Ltd v Federated Clerks’ Union of Australia [1983] FCA 403; 76 FLR 141

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297

Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd [1979] HCA 67; 143 CLR 499

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355

ReScott and Australian Securities and Investments Commission [2009] AATA 798; 51 AAR 114

Seymour v Migration Agents Registration Authority [2007] FCAFC 5; 156 FCR 544

Tickle Industries Pty Ltd v Hann [1974] HCA 5; 130 CLR 321
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 77
Date of hearing: 6 April 2023
Counsel for the Applicant: Mr G Johnson
Solicitor for the Applicant: Sparke Helmore Lawyers
Counsel for the First Respondent: Ms B.K. Nolan
Solicitor for the First Respondent: Ttran Law Australia
Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs.

ORDERS

NSD 553 of 2022
BETWEEN:

MIGRATION AGENTS…

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Details
Case
[2023] FCA 473
Decision Date

CaseChat Overview and Summary

In the case of Migration Agents Registration Authority v Gruszka, the Federal Court reviewed a decision by the Administrative Appeals Tribunal (AAT) to stay the suspension of Ms Gruszka’s registration as a migration agent. The Migration Agents Registration Authority (MARA) had suspended Ms Gruszka’s registration for three years due to complaints about her conduct and a finding that she was not a fit and proper person to provide immigration assistance. Ms Gruszka applied to the AAT for a review of the suspension and sought a stay of the suspension decision pending the outcome of the review. The AAT granted the stay on certain conditions, but the Federal Court was asked to review the AAT's decision to grant the stay.

The primary legal issue before the court was whether the AAT erred in its interpretation of the Migration Act 1958 (Cth) when it granted the stay. Specifically, the court needed to determine if the stay of the suspension decision extended Ms Gruszka's registration beyond the term permitted by the Act. The court also had to consider whether the AAT exercised its discretion under the Administrative Appeals Tribunal Act 1975 (Cth) correctly by proceeding on an erroneous construction of the legislation. The court concluded that the AAT had indeed erred in its interpretation of the Act, as the stay did not have the effect of extending Ms Gruszka's registration term beyond what was legally permissible.

In its reasoning, the court highlighted that the provisions of the Migration Act, particularly sections 289 and 291A, did not allow for the extension of registration periods through the grant of a stay. The court found that the AAT's decision to stay the suspension was based on a misinterpretation of these provisions. Consequently, the court allowed the appeal, quashed the AAT's decision to grant the stay, and declared that Ms Gruszka's registration as a migration agent ceased at midnight on 17 July 2022. The court further ruled that the AAT's stay order ceased to have effect from the same date, and that Ms Gruszka was not entitled to practise as a registered migration agent or provide immigration assistance from that point onwards. The court ordered that Ms Gruszka pay the Authority's costs.

Orders

Orders of the court

1. The decision of the second respondent made on 23 June 2022 that the reviewable decision be stayed on the existing conditions until the hearing and determination of the review, be quashed.

2. The first respondent pay the applicant’s costs as agreed or taxed pursuant to r 40.12 of the Federal Court Rules 2011 (Cth).

THE COURT DECLARES THAT:

1. The first respondent’s registration as a migration agent under Part 3 of the Migration Act 1958 (Cth) ceased at midnight on 17 July 2022, and that from this time the first respondent was and is not entitled to practise as a registered migration agent or to provide immigration assistance as defined in s 276 of the Migration Act.

2. The order of the second respondent made on 23 June 2022 to stay the operation of the applicant’s decision to suspend the first respondent’s registration as a migration agent ceased to have effect as at midnight on 17 July 2022.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the following reasons, the application should be allowed. Background Ms Gruszka was first registered as a migration agent on 13 July 2017 and her registration was renewed annually pursuant to s 289 of the Migration Act. She had not had any prior disciplinary action against her. On 9 June 2022, the Authority decided, pursuant to s 303(1)(b) of the Migration Act, to suspend Ms Gruszka’s registration as a migration agent for a period of three years following complaints made against her by three former clients. Given the confined nature of this application there is no need to consider in any detail the nature of the complaints nor the bases for the suspension decision. The Authority concluded that Ms Gruszka had engaged in conduct in breach of several provisions of the applicable Code of Conduct for registered migration agents (as at 18 April 2017), and found that she was not a person of integrity, or otherwise not a fit and proper person to give immigration assistance within the meaning of s 303(1)(f) of the Migration Act. On the same day as the Authority made its suspension decision, Ms Gruszka lodged an application for review of the Authority’s decision in the Tribunal. Ms Gruszka’s claim in the application was that the Authority’s decision was founded on an outdated version of the Code of Conduct for registered migration agents and that she was not afforded procedural fairness. Ms Gruszka lodged concurrently a “Request for Stay Order” with the Tribunal seeking the request for a stay be heard “instanter” and for the Tribunal to stay the Authority’s decision, pursuant to s 41(2) of the AAT Act, until the Tribunal had determined the review. On 15 June 2022, following a preliminary hearing in relation to Ms Gruszka’s stay request, Senior Member Poljak granted an interim stay of the Authority’s decision “until the date of the Tribunal’s decision on the Applicant’s interlocutory application for stay of decision or until further order of the Tribunal”, and imposed a number of conditions, including that supervision arrangements complying with s 306AA of the Migration Act and reg 7B of the Migration Agents Regulations 1998 (Cth) be put in place. On 21 June 2022, the Tribunal heard Ms Gruszka’s interlocutory application for a stay, and on 23 June 2022 decided that the Authority’s decision “be stayed on the existing conditions until the hearing and determination of the review”. It is this decision which is the subject of this judicial review application.Legislative context The power of the Tribunal to grant a stay of a decision under review is found in s 41(2) of the AAT Act: 41 Operation and implementation of a decision that is subject to review…(2) The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Finally with respect to the declarations sought, Ms Gruszka did not dispute the underlying facts giving rise to them and made no submission as to the (in)appropriateness of them being made: BMI Ltd v Federated Clerks’ Union of Australia [1983] FCA 403; 76 FLR 141 at 152–153 per Keely and Beaumont JJ; Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18; 161 ALR 79 at [38]–[39]. I accept the submission of the Authority that they confirm and clarify Ms Gruszka’s registration status at relevant points in time and accordingly will make them. Conclusion For these reasons, I allow the appeal and will make orders that the decision of the Tribunal made on 23 June 2022 that the reviewable decision be stayed on the existing conditions until the hearing and determination of the review, be quashed. I will also make declarations to the effect that Ms Gruszka’s registration as a migration agent ceased at midnight on 17 July 2022, and that from this time she is and was not entitled to practise as a registered migration agent or to provide immigration assistance as defined in s 276 of the Migration Act and the Tribunal’s order made on 23 June 2022 to stay the operation of the Authority’s decision to suspend her registration as a migration agent ceased to have effect as at midnight on 17 July 2022. Both parties sought their costs on a “follow the event” basis. Accordingly, an order will be made that Ms Gruszka pay the Authority’s costs.

Ratio Decidendi

Legal Principle Established

Section 289 provides, by mandatory command, that the Authority must register an applicant unless Part 3 of the Migration Act otherwise prohibits registration of the application: 289 Registration(1) The Migration Agents Registration Authority must register an applicant by entering his or her name in the Register, unless this Part prohibits registration of the applicant.Note: If the Migration Agents Registration Authority is considering refusing a registration application, it must give the applicant a chance to make a further submission supporting the application. See sections 309 and 310.(2) The Migration Agents Registration Authority must do so as soon as possible.(3) However, if the applicant was required under section 288 to satisfy 1 of 2 publishing options:(a) the Authority must not register the applicant before the end of the time for objections that was specified in the notice concerned; and(b) the Authority must consider any objection received within that time when deciding whether to register the applicant. Relevant to this application, s 291A(b) provides that if a previously registered agent has had their registration suspended, noting in parentheses “whether or not that decision was stayed” then the applicant must not be registered. Example 2 in this provision also sets out what occurs where a stay is ordered: “[where] a stay order is made in relation to the decision. The agent continues to practise, while the stay order is in force, until the agent’s registration ends”. Accordingly, the example notes, consistent with the confined effect of ss 291A(b) and (c) that a stay has no ability to elongate a person’s registration. Section 291A provides: 291A Applicant must not be registered if suspension would be in effectIf:(a) an applicant has been registered (the previous registration) at some time before making the application; and(b) the Migration Agents Registration Authority decided to suspend the previous registration (whether or not that decision was stayed); and(c) the previous registration ended on or after the suspension decision;then the applicant must not be registered during a period in which the previous registration would have been suspended had the previous registration not already ended.Example 1: A registered migration agent’s registration is suspended for a period. The agent is deregistered under section 302 so the suspension of the registration ends. The agent cannot be re‑registered until the suspension period ends.Example 2: The Migration Agents Registration Authority suspends a registered migration agent’s registration. The agent applies for review of the decision and a stay order is made in relation to the decision. The agent continues to practise, while the stay order is in force, until the agent’s registration ends. Subsection 288(6A) prevents the agent from being re‑registered until the review proceedings are finalised. The agent cannot be re‑registered if the suspension decision is affirmed on review and the suspension would not have ended (had the registration continued).Example 3: Under section 300, a registered migration agent’s registration is continued after the expiry day of the agent’s registration. The Migration Agents Registration Authority makes a decision to suspend the agent’s registration until the agent complies with a condition, and so the registration ends because of subsection 300(4). The agent cannot be re‑registered until the agent complies with the condition.