Ogbonna and Migration Agents Registration Authority (Practice and procedure)
[2025] ARTA 595
•22 May 2025
Ogbonna and Migration Agents Registration Authority (Practice and procedure) [2025] ARTA 595 (22 May 2025)
Applicant/s: Celestine Ifeanyi Ceefyne Ogbonna
Respondent: Migration Agents Registration Authority
Tribunal Number: 2025/1588
Tribunal:Senior Member M Harrowell
Place:Sydney
Date:22 May 2025
Decision:The application for stay is dismissed.
.................[SGD].......................................................
Senior Member M Harrowell
Catchwords
Migration Agents – Migration Agents Registration Authority – registration as a migration agent – period of registration – application for renewal of registration – operation of s 300 of the Migration Act 1958 (Cth) concerning continuation of registration pending determination of application for renewal
Practice and procedure – Stay of decision pending determination of proceedings – applicable principles – no utility in stay – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) (repealed) – s 41(2)
Administrative Review Tribunal Act 2024 (Cth) – s 32
Bankruptcy Act 1966 (Cth)
Migration Act 1958 (Cth) – s 300Cases
Alexander v Migration Agents Registration Board (1995) 40 ALD 99
Elmi and Australian Skills Quality Authority (Guidance and Appeals Panel) [2025] ARTA 192
Civil Aviation Safety Authority v Hotop [2005] FCA 1023
Seymour v Migration Agents Registration Authority [2006] AATA 369
Seymour v Migration Agents Registration Authority [2006] FCA 649
Seymour v Migration Agents Registration Authority [2007] FCAFC 5Shi v Migration Institute of Australia Ltd [2003] FCA 1304
STATEMENT OF REASONS
INTRODUCTION
These reasons relate to an application under s 32(2) of the Administrative Review Tribunal Act 2024 (Cth) (the Act) for a stay pending determination of these proceedings.
As explained below, I have decided to dismiss the stay application.
BACKGROUND
The applicant seeks review of a decision of the Migration Agents Registration Authority (respondent) made under the Migration Act 1958 (Cth) (Migration Act). In that decision, made 13 February 2025 (Decision), the respondent refused an application for registration as a migration agent made by Mr Ogbonna (applicant) for the period 13 May 2024 to 13 May 2025 (2024 Application) and provided reasons.
The application (known as a “repeat application”) was made on 9 May 2024.
The applicant has previously been a registered migration agent since 13 May 2018, having first applied for registration on about 11 April 2018. In this regard, registration is generally for a period ending “12 months after the day of registration”: s 299(1) Migration Act. As such, successive applications were made to renew his registration for each 12-month period.
Requirements for registration include that an applicant must not be registered as a migration agent if the respondent 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; or
(c)the applicant is related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship.
These requirements are set out in s 290(1) of the Migration Act which provides:
290 Applicant must not be registered if not a person of integrity or not fit and proper
(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; or
(c) the applicant is related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship.
(2) In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:
(a) the extent of the applicant’s knowledge of migration procedure; and
(c) any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:
(i) a fit and proper person to give immigration assistance; or
(ii) a person of integrity;
(except a conviction that is spent under Part VIIC of the Crimes Act 1914); and
(d) any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and
(e) any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and
(f) any disciplinary action that is being taken, or has been taken, against the applicant that the Authority considers relevant to the application; and
(g) any bankruptcy (present or past) of the applicant; and
(h) any other matter relevant to the applicant’s fitness to give immigration assistance.
…
(4) To avoid doubt, this section applies to all applicants (not just first time applicants).
As is evident from the above, one of the matters to consider is bankruptcy of an applicant for registration. A migration agent must notify the respondent in writing within 14 days after he or she becomes bankrupt: s 312(1)(a) Migration Act.
A sequestration order was made against the estate of the applicant by Judge Street in the Federal Circuit and Family Court of Australia (Division 2) on 20 September 2022 (bankruptcy decision). As required by s 312 of the Migration Act, the applicant notified the respondent of this fact on about 5 October 2022.
In consequence of receiving the advice from the applicant, the respondent sent an email to the applicant dated 10 October 2022 requesting further information concerning the circumstances of the applicant’s bankruptcy in order to consider whether bankruptcy would impact his registration. Information was provided by the applicant, including that the applicant intended to challenge the bankruptcy decision in the Federal Court of Australia.
No action to cancel the applicant’s registration was taken by the respondent at this time.
In the meantime, the applicant applied to renew his registration in 2023 (2023 Application) for the period 13 May 2023 until 13 May 2024. As stated in the Decision, the 2023 Application was accompanied by various documents concerning the applicant’s proceedings in the Federal Court.
The 2023 Application was lodged on about 10 May 2023, before the applicant’s then current registration expired on 13 May 2023.
Thereafter, the parties exchanged correspondence regarding the bankruptcy, including in respect of the applicant’s continuing Federal Court proceedings and proceedings brought against the applicant in connection with the bankruptcy in which the applicant was sought to be prosecuted for non-compliance with his obligations under the Bankruptcy Act 1966 (Cth) to provide information about his financial affairs. In relation to the prosecution, this was apparently dismissed.
Although the applicant’s registration would otherwise expire on 13 March 2023, because he had made the 2023 Application and it had not been determined before 13 March 2023, his registration continued after that time by operation of s 300(1) and (4) of the Migration Act.
No decision was made by the respondent in respect of the 2023 Application by 13 March 2024, that is 10 months from the day after his registration for the previous period would otherwise have expired on 13 May 2023. Consequently, pursuant to s 300(5) of the Migration Act, the 2023 Application was taken to be granted after the expiry of that period. The respondent sent the applicant and email confirming this fact to the applicant on 20 March 2024. The email said:
Dear Mr Celestine Ogbonna,
Thank you for your application for repeat registration which was received on 10/05/2023.
Section 300(5) of the Migration Act 1958 provides that:
“If before the end of the period of 10 months beginning on the day after the expiry day, the Authority has not:
(a) decided the registration application;
....
then the application is taken to have been granted at the end of that period."
Given that the Authority did not make a decision on your application by within 10 months of your expiry date, your application has been granted.
Your registration as a migration agent will be due for renewal on or before 13/05/2024.
…
I will refer to this event as the “March Grant”.
The 2024 Application was lodged with the respondent on 9 May 2024. In his application, the applicant stated that he had previously been made bankrupt (in the circumstances outlined above). He said he was “Appealing of the sequestration orders, as I was never bankrupt”. He also stated he had been the subject of criminal proceedings, being those outlined above concerning his bankruptcy. His application described those criminal proceedings as “Failed to complete and file statement of affairs with the official reviewer (sic) within 14 days as requested”.
Again, communications continued between the parties concerning the applicant seeking to challenge the bankruptcy decision.
On 27 November 2024, as part of considering the 2024 Application, the respondent sent a notice as required by s 309(1) of the Migration Act, informing the applicant that it was considering making a decision to refuse his 2024 Application and inviting him to make submissions on the matter. In its notice the respondent said:
Current Bankruptcy
45. The Authority has considered your current status is Bankrupt based on the information provided. We must consider that your current status as Bankrupt may indicate an inability to handle client money properly, an important competency for a registered migration agent, which may render you unfit to provide immigration assistance.
46. The Authority has considered your claims that you have been declared bankrupt on the grounds that you have been defrauded. This is not a matter that can be decided by the Authority as it must be dealt with through the courts.
47. Whilst we understand you are appealing this ruling the Authority is obliged to consider the potential risk to consumers of dealing with a bankrupt migration agent.
Potential findings in relation to section 290 of the Act - integrity, fitness and propriety
48. Having regard to your bankruptcy, the delegate may find that your bankruptcy declared on 10 October 2022 indicates that you do not have the financial acumen and responsibility to manage a business and that there is a real risk that you will not be able to meet your financial obligations under the Act as a migration agent.
49. The statutory scheme for the registration of migration agents and the regulation of their conduct is intended to protect persons seeking assistance with immigration matters.
50. The discretion to sanction an agent or to refuse their registration application has an essentially protective purpose. The relevant objects of protection are not only the interests of an agent’s prospective clients, but also the repute of the migration advice profession and the informed and principled administration of the Act. In the exercise of such a protective discretion the matters that influence the characterisation of “fitness” and “integrity” are again important considerations (Issa at [454]-[455]).
51. Registered migration agents are trusted to provide guidance to visa applicants on their eligibility for visas, the criteria to be met, and the likelihood of being successful in their application. The role of a registered migration agent is a position of trust that requires a willingness and ability to comply with the law. A registered migration agent requires a level of competence and moral character such that a client can place trust and confidence in their agent to act with care, diligence and competence on their behalf. Similarly, the level of trust placed by the Authority in registered migration agents means that the Authority relies on those registered migration agents performing their role in giving immigration assistance with the requisite level of fitness, propriety and integrity.
52. On the evidence currently before the Authority, the delegate may find that your alleged conduct detailed within this Notice is inconsistent with integrity and moral character as expected of a registered migration agent. Consequently, the delegate may be satisfied that you are not a person of integrity or otherwise not a fit and proper person to provide immigration assistance. On that basis, the delegate may find that you are prohibited from being registered by section 290 of the Act.
53. The delegate may also be satisfied that you are not a fit and proper person to give immigration assistance on the basis of your current bankruptcy.
On 26 December 2024 the applicant provided his response. In the Decision, at paragraph 21, the respondent summarised the applicant’s response as follows:
In summary, the Applicant’s response was as follows:
-The Authority have no grounds for refusal whilst his bankruptcy appeal is ongoing.
-His appeal is being frustrated by officers of the Court who are engaging in Fraud.
-He intends to escalate the matter to the Prime Minister.
-He is planning to complain to the National Anti-Corruption Commission about the way his case is being handled.
-He contends he is not bankrupt hence his fight for justice.
Following a consideration of various case law and the material provided to it by the applicant, by reason of the bankruptcy decision and various conclusions drawn in connection therewith, the respondent found at paragraph 41 and following of the Decision that the applicant was not a fit and proper person to give immigration assistance nor was he a person of integrity. Consequently, the respondent determined that it was prevented from registering the applicant by reason of s 290 of the Migration Act.
The applicant lodged his application for review of the Decision with the Tribunal on 28 February 2025 (ART application). At that time, he also applied for a stay of the Decision.
HEARING OF THE STAY APPLICATION AND EVENTS AFTER THE HEARING
In his application for a stay, the applicant sought the following orders:
A stay order to stop the effective date or implementation of the Office of the Migration Agents Registration Authority decision pending the hearing of my review application.
A stay order to stop the effective date given the refusal decision is an abuse of process because there was no change in circumstances as the appeal has not been determined.
A stay order on the grounds of financial hardship and damages to my professional reputation, given the circumstances of the case and the violation of my human rights.
The grounds for requesting a stay were as follows:
1. Unlawfulness: the delegate knew the orders were stayed as the sequestration orders on 20 September 2022 was an invalid decision as the Bankruptcy Act 1966 (Cth) was not applied. The refusal decision was contrary to the law or exceeded the legal powers.
2. Procedural unfairness: the delegate knew that my circumstance had not changed. The appeal has been delayed due to the fraudulent conduct of the Respondents involving their lawyers and Registrar Camille Susan Goucke of the Federal Court of Australia to defeat justice by undermining Federal Court Records.
3. Unreasonableness: the decision to refuse my repeat registration was irrational, arbitrary and lacked a rational connection to the facts or purpose given that there was a stay order and the sequestration orders were invalid, and the appeal was still afoot and has not yet been determined.
4. Violation of human rights: the refusal decisions infringe upon my protected rights and contravened section 9(1) of the Racial Discrimination Act 1975 in nullifying...the recognition, enjoyment or exercise, on an equal footing, of any human right in the...economic, social...or any other field of public life.
5. Invalid decision: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597at [51] it was " ...a decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all".
The parties filed submissions and various documents in support of their respective positions. The applicant’s submissions were dated 22 April 2025. The respondent’s submissions were dated 2 April 2025 and 6 May 2025.
The application for stay was heard on 9 May 2025, the parties appearing by video. The parties made oral submissions at that time.
During the hearing, the applicant advised the Tribunal that his bankruptcy ends in November 2025. He also sought to explain the circumstances of his bankruptcy and how various persons involved in the bankruptcy litigation, including judges and court officers, had misconducted themselves or made incorrect decisions over the years since the bankruptcy decision was made.
During oral submissions the applicant confirmed that no evidence had been filed regarding the need for a stay or the detriment he might suffer if a stay was not granted. However, the applicant was subsequently sworn and gave oral evidence that he still had 5 or 6 clients (although had not done any work for them since the Decision was made) and that if a stay was not granted, he would need to transfer these clients to other migration agents.
After the hearing concluded, the respondent’s lawyer wrote to the Tribunal in an email dated 10 May 2025 (10 May email) for the purpose of bringing to the Tribunal’s attention “an urgent issue”. This email sought to address a matter which arose at the hearing, namely the date when the applicant’s registration would expire following the March Grant if registration was not otherwise renewed and a submission made by the respondent in its written submissions dated 2 April 2025.
At paragraph 25 of the 2 April 2025 submissions the respondent said:
Further, the applicant does not have the benefit of s 300(4) of the [Migration Act] because the applicant’s registration has been decided by the [respondent] and in any event had already expired.
In the 10 May email, the respondent said:
During the interlocutory rehearing, the Senior Member sought clarification from the respondent on the date the applicant’s registration expired, noting this contention was made at paragraph [25] in the respondent’s submissions filed 2 April 2025.
In reviewing this further, we advise that the date the applicant’s registration would have expired had it not been refused by the respondent was 20 March 2025. We say this noting that the delegate’s decision to refuse registration on 13 February 2025 states at paragraph [12] that:
On 20 March 2024, the application deemed by operation of law under subsection 300(5) of the Act” (T9/189)
As discussed during the hearing, s 299 of the Migration Act 1958 stipulates that the registration of a registered migration agent and is 12 months after the day of registration.
The applicant provided a response to the 10 May email by email to the Tribunal dated 12 May 2025. The applicant said that the respondent “got it wrong”. Having referred to the March Grant and the respondent’s letter dated 20 March 2024 (set out above), the applicant said he “needed to lodge a repeat registration application on or before 13 May 2025 to enable [his] automatic continuation of registration for the stay application to be practical, if granted”. That is, the March Grant resulted in his registration continuing and, as stated in the respondent’s letter dated 20 March 2024, being next due for renewal “on or before 13/05/2024”.
As necessary, I will deal with these contentions below.
DECISION ON STAY APPLICATION
The power of the Tribunal to grant a stay is found in s 32(2) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). Relevantly, that section provides:
32 Reviewable decision continues to operate unless Tribunal orders otherwise
General rule
(1) The making of an application to the Tribunal for review of a reviewable decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
Exception—Tribunal may stay operation or implementation
(2) However, on application by a party to a proceeding for review of a reviewable decision, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.
(3) The order is subject to any conditions specified in the order.
(4) The order has effect until the decision of the Tribunal on the application for review comes into operation.
…
Preconditions to making, varying or revoking an order
(7) The Tribunal must not make, vary or revoke an order staying or otherwise affecting the operation or implementation of a reviewable decision unless:
(a) the Tribunal has given the parties to the proceeding for review of the decision a reasonable opportunity to make submissions to the Tribunal in relation to the making, variation or revocation of the order; and
(b) the Tribunal has taken into account the interests of any person who may be affected by the review of the decision.
As stated in s 32(2) of the ART Act, the Tribunal has a discretion to “make an order staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review”.
In Elmi and Australian Skills Quality Authority (Guidance and Appeals Panel)[1], I considered the factors relevant in exercising that discretion and determined that they included the following:
(a) The prospects of success of the application for review.
(b) The consequence for the applicant of refusing a stay.
(c) The public interest.
(d) The consequences for the respondent in carrying out its functions depending on whether a stay is granted or not.
(e) Whether the application for review would be rendered nugatory if a stay were not granted.
(f) Other relevant matters.
[1] [2025] ARTA 192 at [27] and following.
In doing so, I noted the process does not involve finally determining the substantial merits of the case, rather that there are some prospects of success. The prospects of success is then weighed against other factors relevant to deciding whether the stay should be granted.
These principles are not in dispute.
However, as to the scope of any orders that might be made, the applicant submitted at paragraph 34 of his submissions dated 22 April 2025:
The Tribunal have (sic) powers to make stay orders under s 32(2) of the ART Act. In Civil Aviation Safety Authority v Hotop[2][Hotop], Siopsis J (sic) said at [45]:
…there is nothing in the language of the section that precludes the Tribunal from making an order in positive terms. In fact, the language used is of wide ambit permitting the Tribunal to make ‘such order or orders staying or otherwise affecting the operation or implementation of the decision...as [it] considers appropriate’ to achieve the specified purpose. In the context of a refusal to issue a statutory licence to an existing statutory licence holder, in a case where effective relief can be granted at the hearing, this language is wide enough to include an order permitting the review applicant to continue in business until the hearing of the application. This is because the Tribunal’s order in those terms would ‘affect the operation’ of the impugned decision, which would otherwise operate to preclude the review applicant from continuing to carry on its existing business In other words, the order of the Tribunal affects the operation of the impugned decision because it neutralises its adverse effect and anticipates that a favourable decision with retrospective effect may replace the impugned decision.
[2] [2005] FCA 1023.
The dispute in Hotop was described by Siopis J as follows[3]:
1 This is an application under s 39B of the Judiciary Act 1903 (Cth) to review the decision of the first respondent made on 11 February 2005 staying the applicant’s decision of 14 January 2005 cancelling the second respondent’s Air Operator’s Certificate (‘AOC’) and extending the operation of that AOC until such time as the Administrative Appeals Tribunal (‘the Tribunal’) makes its decision on the second respondent’s application for review of the applicant’s decision of 14 January 2005. The first respondent relied upon s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) to make the impugned decision.
2 The jurisdictional error alleged by the applicant is characterised in a number of different ways, but the gravamen is that, the Tribunal did not have the power under s 41(2) of the AAT Act to make an order extending the AOC until the hearing of the application for review because the Tribunal would not be in a position at the hearing of the review application to make an effective order reinstating the AOC.
[3] [2005] FCA 1023 at [1]-[2].
A substantial dispute between the parties in the present stay application concerned whether, if a stay was granted, it would have any utility. In my view a resolution of this issue in favour of the respondent would be dispositive of the present application for stay. Consequently, it is convenient to deal with this issue first.
In short, the respondent says that because it determined to refuse the 2024 Application, even if the stay was granted it would be of no utility. This is because s 300 of the Migration Act does not operate to provide continuity of registration in these circumstances. Reliance is placed on the decisions of the former Administrative Appeals Tribunal (AAT) in Seymour v Migration Agents Registration Authority[4], the Federal Court of Australia in Seymour v Migration Agents Registration Authority[5] and the Full Court of the Federal Court of Australia in Seymour v Migration Agents Registration Authority[6] (Seymour appeal) (collectively Seymour).
[4] [2006] AATA 369.
[5] [2006] FCA 649.
[6] [2007] FCAFC 5.
That series of cases dealt with s 300 of the Migration Act, particularly the operation and intent of s 300(7), and the utility of an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (repealed) (AAT Act). Section 41(2) was in similar terms to s 32 of the ART Act and provided the AAT could:
“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”
The effect of the applicant’s submissions is that, if the Decision is stayed, by operation of s 300(4) his registration continues after the date of refusal. Consequently, if, on or before 13 May 2025, he files an application to renew his registration for the 12-month period commencing 13 May 2025, he will be able to continue his work as a migration agent pending determination of the Review Application by the Tribunal.
Analysis
The applicant seeks a stay of the order refusing his 2024 Application. The particular orders sought and the grounds relied upon in the application are set out above.
Section 300 of the Migration Act provides:
300 Automatic continuation of registration
When agent’s registration is automatically continued
(1) Subsection (4) applies to continue a registered migration agent’s registration beyond the last day (the expiry day) of the agent’s registration if, before the end of the expiry day:
(a) the agent made a registration application; and
(b) the agent paid the registration application fee (if any) in respect of the application; and
(c) the Migration Agents Registration Authority had not decided the application.
Exception—suspension
(2) However, subsection (4) does not apply to continue the agent’s
registration if, before the end of the expiry day, the Authority made
a decision to suspend the agent’s registration, unless:
(a) the suspension had been completed before the end of the
expiry day; or
(b) there was a decision (other than a stay order) of the ART or a
court in force, immediately before the end of the expiry day,
to the effect that the agent’s registration is not suspended or
cancelled.
Exception—cancellation
(3) Subsection (4) also does not apply to continue the agent’s registration if, before the end of the expiry day, the Authority made a decision to cancel the agent’s registration, unless:
(a) there was a decision (other than a stay order) of the ART or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled; or
(b) there was a decision of the ART or a court in force to the effect that the agent’s registration is suspended, and the suspension had been completed before the end of the expiry day.
Period of continuation of registration
(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.
Application granted if no decision within a certain period
(5) If, before the end of the period of 10 months beginning on the day after the expiry day, the Authority has not:
(a) decided the registration application; and
(b) decided to suspend the agent’s registration; and
(c) decided to cancel the agent’s registration;
then the application is taken to have been granted at the end of that period.
When registration takes effect
(6) If the Authority grants the registration application, or the registration application is taken to have been granted under subsection (5), the registration is treated as having taken effect at the end of the expiry day.
Example: An agent’s registration is due to end on 31 October (the expiry day).
On 20 October the agent applies to be registered again. The Authority has not decided the application by the end of 31 October.
The agent’s registration continues automatically past 31 October until
the Authority decides the application.
On 15 November the Authority grants the application. The new 12
month registration is treated as having taken effect at the end of
31 October.
When Authority makes decision
(7) For the purposes of this section, the Authority is taken to have made a decision even if the decision is later stayed.
As noted above, the operation of s 300 of the Migration Act and s 41(2) AAT Act was considered by the AAT, by the Federal Court of Australia and, on appeal, by Full Court of the Federal Court of Australia in Seymour.
As with the present case, Mr Seymour had applied for “repeat registration” as a migration agent.
As the Full Court recorded in the Seymour appeal[7], the AAT had refused the stay application on the following basis:
10 On 27 April 2006, the Tribunal refused the application for a stay, accepting the submission of the Authority that if the Tribunal had the power to grant an effective stay, s 300(7) would have no work to do because it would not significantly alter the law as it previously stood. The Tribunal noted an alternative interpretation of the subsection would have the effect that actual registration would have been granted after the expiration of ten months. Accordingly, the Tribunal decided this interpretation could not be attributed to the legislation. In its reasons, the Tribunal discussed the principles of statutory interpretation and referred to the High Court decision in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. In this decision, the Court noted the importance of using extrinsic material and other relevant sources, including admissible parliamentary materials and background documents such as law reform reports, as aides in statutory interpretation.
[7] At [10].
In considering various material concerning the repeal and replacement on 1 July 2004 of s 300 (including s 300(7)), the history behind that enactment and the parties’ submissions concerning the intent of the legislation, the Full Court continued[8]:
[8] At [20] and following.
20 In considering s 300(7) as it now stands, the Supplementary Explanatory Memorandum states:
‘41 New subsection 300(7) makes it clear that, for the purposes of new section 300, the MARA is taken to have made a decision, even if the decision is later stayed by the AAT or a court. For example, any orders made by the AAT or a court staying the operation of a decision to suspend or cancel an agent’s registration pending finalisation of review proceedings do not affect the operation of new subsections 300(2) and (3) to prevent the agent’s registration being continued under new subsection 300(1).’ (Emphasis added.)
21 The Court’s attention was also drawn to the Second Reading Speech of Mr Hardgrave in the House of Representatives on 24 March 2004 at Hansard 27110:
‘Agents who wish to continue to practice following a sanction decision will now have an incentive to expedite the hearing process before the AAT. Current experience to date is that decisions are often delayed, with the effect that the sanctioned agent’s registration is renewed after its original expiry date. For example, one case has been before the AAT since mid 2002 – that is nearly 2 years.’
22 Mr Hardgrave referred to concerns expressed about agents continuing to practise after they had been sanctioned, and gave an example concerning an agent sanctioned on 1 February whose registration year expires on 1 June. In such circumstances, the effect of the amendment is said to be that the agent will no longer be able to practise after 1 June by making an application for review of the sanction decision and then obtaining a stay order from the Tribunal of that decision.
23 During the hearing, the Court was referred to the reasons for decision of the Tribunal in Amin v MARA [2003] AATA 1095 and Maarbani v Migration Agents Registration Authority [2003] AATA 1109, where concern was expressed on behalf of the Authority that if a stay were to be granted by the Tribunal under s 42 of the AAT Act, then, having regard to s 300 as it stood prior to 2004, there could be an automatic continuation of the registration. Accordingly, in order to prevent this possible result in those cases, the Tribunal granted the applications for a stay but made orders designed to limit the duration of the stay in each case.
24 It is submitted by the appellant that the extrinsic material indicates that the amendments to s 300 should be read narrowly so as to cover the specific problem perceived to exist, namely, that if a stay is granted and no decision is made by the Tribunal within a ten month period, then there would be an automatic continuation of that agent’s registration even though the agent had been found by the Authority not to be a person of integrity.
25 It is also contended by the appellant that the wording of s 300(7) should be read narrowly to apply only where there has been a cancellation or suspension of an agent’s registration. Counsel submits that the plain language of s 300(7), which refers to a decision being "later stayed", expressly assumes that a stay can be granted. He says that the reference to the term "decision" in s 300(7) should be read down as simply a reference to a "decision" for a limited purpose and that it is only a reference to a decision "in fact" and is not concerned with the "legal effect" of the decision. There is no substance in this suggested distinction nor any basis for it. There is no such qualification or limitation in the subsection. No basis has been shown either in the extrinsic material or in the scheme of the legislation or in the text which would warrant such a limitation of s 300(7).
26 The operation of s 300 in this case is that where an application was made which complied with ss (1), then that registration continued after the expiry date of 23 May 2005 until the decision was made by the Authority in relation to that application on 20 February 2006. When that decision was made, the continuous registration of the migration agent ceased.
27 The legislative history, the scheme of the legislation, the language of the provision, and the extrinsic material all point to the conclusion that s 300(7) has the consequence that to grant a stay would be futile in the present case because it would have no effect.
28 Paragraph 41 of the Supplementary Explanatory Memorandum as extracted above reinforces the conclusion that the purpose of the amendment was to ensure that the registration of a migration agent would not be unduly extended pending review of a decision, and that the provisions are directed to limit the extent of the automatic continuance of registration beyond the last day of the relevant period.
29 The specific language used in s 300 points to the same conclusion. In its terms, s 300(7) applies to every subsection of s 300, and is not limited to particular subsections such as those referring to suspension or cancellation. It applies equally to other subsections as to ss 300(4) and (5).
30 Mr Seymour points to the hardship an agent would suffer as a consequence of this interpretation, but it must be borne in mind that the legislation is designed to protect the public interest as expressed in the extrinsic material, and is directed specifically to address what is perceived as the undue continuation of deemed registration after the Authority has made a decision adverse to a particular migration agent.
Despite submissions by the applicant to the contrary, in my opinion the decision of the Full Court in Seymour equally applies when considering a stay application under s 32(2) of the ART Act. This is because the language of the ART Act (which permits the Tribunal to “make an order staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review”) is in substantially the same terms as that found in s 41(2) of the AAT Act. There are no relevant changes that might suggest the operation of s 300(7), as determined by the Full Court in the Seymour appeal, was affected by the repeal of the AAT Act and the enactment of the ART Act.
Consequently, I reject the submissions of the applicant at paragraphs 40-48 of the submissions dated 22 April 2025.
It follows that, even if a stay of the Decision was granted, by operation of s 300(7), such a stay would not result in the applicant’s registration continuing until 13 May 2025. Rather, because the respondent decided the 2024 Application on 13 February 2025, it was on this date that the “period of continuation of registration” as provided under s 300(4) came to an end.
In these circumstances, an order staying the Decision would have no utility.
In reaching this conclusion, I do not accept the submission of the respondent that, following the March Grant, the applicant’s registration for the 2023/2024 year would otherwise have expired on 20 March 2024 if a decision had not been made by the respondent in respect of the 2024 Application.
I should briefly explain why.
As noted above, the March Grant occurred in circumstances where the respondent had not determined the application for repeat registration relating to the period 2023/2024 within a period of 10 months from 13 May 2023. This date is the expiry date of the previous registration period from 13 May 2022 until 13 May 2023. By operation of s 300(5), the application for the period 2023/2024 “is taken to be granted at the end of the [ten-month] period” if the respondent has not decided the application or otherwise suspended or cancelled the agent’s registration. It takes effect on “the expiry day” as defined in s 300(1): s 300(6) Migration Act. It operates for a period of 12 months: s 299 Migration Act.
Consequently, the March Grant resulted in registration of the applicant as a migration agent for a period ending 13 May 2024.
I note, in its email dated 20 March 2024 which advised of the March Grant, this date is the date by which the respondent says any renewal was required to be lodged by the applicant.
Finally, I should deal with the written submission from the respondent concerning the decision of the Federal Court in Hotop as to the scope of the order making power under s 41(2) of the AAT Act which I have set out above. This submission was not developed by the applicant at the hearing. Nor did the applicant seek an interim order in the form that his registration continue until 13 May 2025 as distinct from an order in the form staying the Decision.
As to the scope of power under s 32(2) of the ART Act, which as I have said above is in similar terms to s 41(2) of the AAT Act, applying Hotop and the authorities referred to in that decision, in my opinion s 32(2) permits the Tribunal to make an order in a form different to a stay order which has a positive effect in order to permit a party who has made an application to the Tribunal to continue to exercise rights or enjoy entitlements which have otherwise been terminated by a decision for which review is sought.
Tamberlin J came to a similar view to that expressed in Hotop in his decision in Shi v Migration Institute of Australia Ltd[9] (Shi). Shi was decided before Hotop. In Shi, Tamberlin J considered the operation of s 41(2) in the context of refusal by the respondent to grant renewal of a migration agent’s registration.
[9] [2003] FCA 1304.
Of the operation of s 41(2) of the AAT Act, his Honour said[10]:
24 In terms, the power conferred by s 41(2) of the AAT Act is to:
"... make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates .. for the purpose of securing the effectiveness of the hearing and determination of the application for review." (Emphasis added)
25 The subsection is framed in broad general terms, and by reference to a specific purpose. It should be given a liberal interpretation: see Yolbir v Administrative Appeals Tribunal [1994] FCA 910; (1994) 48 FCR 246 at 249. The power is to make an order which stays or otherwise affects the operation or implementation of a decision.
[10] [2003] FCA 1304 at [24]-[25].
Of the decision not to renew registration the registration of Mr Shi in that case, when considering a decision of McMahon DP in Alexander v Migration Agents Registration Board[11], Tamberlin J continued:[12]
26 The question is whether an order for a stay in the present case is in respect of the operation or implementation of the decision not to renew the existing registration. Prior to the refusal to renew, the position was that the agent's registration was taken to continue pursuant to s 300(1) of the Migration Act. This deeming provision is a statutory fiction (see, for example, Ex parte Walton; In re Levy (1881) 17 Ch D 746 at 756 per James LJ), but it requires that the agent must be treated as if he or she were registered. In substance, this means that the agent must be taken to have the same rights as if he or she were registered up to the time of the making of the decision not to renew. Accordingly, the prohibition in s 280 of the Migration Act, which prevents a registered agent from giving immigration assistance, would not apply to him or her. After a decision not to renew is made, the direct legal effect of the decision is that the deemed registration is terminated. That is because the deemed registration is taken to continue only until the MARA decides the application for renewal. Accordingly, in substance, and as a direct consequence of the MARA decision, there has been a termination of the rights of the agent enlivened by the deemed registration. This is quite different from ceasing to have effect a statutory expiry as a consequence of the lapse of time. Accordingly, the decision not to renew has an operation which is capable of being stayed pursuant to s 41(2) of the AAT Act. It is the cessation of the deemed right to be treated as if he were registered as a consequence of the decision not to renew that is the subject of the stay. The "operation" of the decision is the legal impact on the right of Mr Shi to be taken to continue as a registered agent. This is terminated by the decision. Therefore, both as a matter of language, and construing s 41(2) in the light of its purpose, the decision not to renew is capable of being stayed. A stay is therefore within the power of the AAT under s 41(2) of the AAT Act.
27 The decision in Alexander is distinguishable from the present case because the circumstances in that case concerned a situation where the applicant had not previously been registered. There was no deeming of the applicant to have been registered which was terminated or affected by the decision. This is an important difference. There was a transitional provision in that case, which provided that if an original applicant made an application within a three month period, then that part of the Act dealing with migration agents and immigration assistance would not apply. In my opinion, such a transitional provision is significantly different from the deeming right conferred in the present case, which is a right to be treated as if registered under s 300 of the Migration Act. The latter is an affirmative or positive entitlement as opposed to an immunity from the requirement to be registered. In the latter case of an immunity from the requirement the Migration Act simply does not apply.
28 Using the language of Deputy President McMahon, the effect of the decision not to renew in circumstances where a person is taken to have been registered, is to break the "continuum" by a reviewable decision. It is evident that if a decision favourable to an applicant is made by the AAT in relation to the application to renew, then the agent in this case will have been wrongfully deprived of the opportunity to earn his livelihood from that time up to the time of the favourable determination. There may also be damage to his practice and reputation. There is no provision for recovery of this loss or for any disruption to the practice, or loss of reputation or goodwill. A favourable decision to the applicant by the AAT would also mean that the applicant had been wrongfully refused registration and these are important considerations: see the remarks of Davies J in Re Dekanic & Tax Agents Board of New South Wales (1982) 6 ALD 240 at 242-243. These observations were applied in Re Nelson & Tax Agents Board Queensland [1993] AATA 262; (1993) 30 ALD 317.
29 If the applicant in the present case is not granted a stay, the effectiveness of the hearing and determination of the application for review will be diminished.
30 In summary, I consider that s 41(2) of the AAT Act must be given a broad interpretation. I am of opinion that the circumstances giving rise to the decision in Alexander are distinguishable in important respects from the present case. Alternatively, I am of the view that the decision of the AAT in relation to its power to grant a stay in the present case was wrongly decided. I note that the decision-maker has formed the view that it is appropriate a stay be granted if the correct legal position is that he has power to grant a stay.
31 Having regard to the way in which the MARA decision to refuse renewal operates, there is no need to make a mandatory order which requires the MARA to re-register Mr Shi as a migration agent, pending the determination of his appeal to the AAT. This is because if the stay is granted he must be taken to continue to be registered, regardless of whether he is in fact on the register. Therefore I do not make such a mandatory order.
[11] (1995) 40 ALD 99.
[12] [2003] FCA 1304 at [28]-[31].
That is, his Honour accepted s 41(2) then permitted a mandatory order to be made by the AAT to continue registration pending determination of the review application. However, having regard to the operation of s 300, it was not necessary to do so.
However, Shi was decided before the current form of s 300, including s300(7), was inserted into the Migration Act and before the decision in Seymour appeal, in which Tamberlin J was a member of the Full Court constituted by His Honour and Gyles and Stone JJ.
The effect of the amendment to the Migration Act and the insertion of s 300(7) was explained by the Full Court said in the Seymour appeal [13] , which I have set out above.
[13] [2007] FCAFC 5 at [20]-[30].
In short, the Full Court determined that a stay would be futile as the insertion of s 300(7) had the consequence of removing continuity of registration under s 300 even if a stay were granted. This was so even if an applicant for review would suffer hardship.
It seems to me that the analysis of the Full Court leads to the conclusion that a positive order, of the type contemplated in Hotop, renewing registration (as opposed an order staying the operation of the original decision) cannot be made to maintain registration pending determination of the substantive review application concerning the registration of a migration agent.
My reasons are as follows:
(d)The effect of s 299 of the Migration Act is that, following the March Grant, the applicant’s registration for the year ending 13 March 2024 expires at the end of the 12-month period.
(e)If the conditions in s 300(1) are met, to use the words of Tamberlin J in Shi[14], thereafter there is a “statutory fiction” which deems registration to continue after that date until the earliest of the events identified ins 300(4) occurs.
(f)Consistent with the decision in the Seymour appeal, the deeming of continuous registration comes to an end on the making of a refusal decision and, by operation of s 300(7), the making of a stay does not affect this position. That is, an order staying the operation of a refusal decision does not reinstate the deemed registration.
(g)As explained in the Supplementary Explanatory Memorandum and by Mr Hargrave in the Second Reading Speech referred to at [20]- [21] of the Seymour appeal, the purpose of the amendments were to prevent an agent’s registration being continued under s 300 by means of the grant of a stay by the Tribunal and to provide an incentive to an agent who has seeks registration or continuing registration to act in a manner to expedite the hearing of any review application.
(h)In these circumstances, the reference to the word “stay” found in s 300(7) is properly a reference to the power in s 41(2) of the AAT Act, and now s 32(2) of the ART Act, to make an order “staying or otherwise affecting the operation or implementation of the decision”.
(i)To construe s 300(7) in a different, more limited manner would subvert the intention of the repeal and replacement of s 300 that occurred on 1 July 2004, namely to prevent an agent maintaining registration pending determination of their review application to the Tribunal after an adverse decision had been made by the respondent.
(j)Further, a positive interim order by the Tribunal to grant registration pending determination of the review application would, having regard to the decision in the Seymour appeal, result in an order which conflicted with the express provision of s 300(4) which provides that continuation of registration ceases upon the respondent making a decision “even if the [respondent’s] decision is overstayed” by the Tribunal.
[14] [2003] FCA 1304 at [26].
In reaching this conclusion, it seems clear that, in Seymour, the Court (on appeal from the AAT) and the Full Court (on appeal from Jacobson J) had regard to:
(a)the wide language of the order making powers in s 41(2) of the AAT Act; and
(b)the decision of Tamberlin J in Shi[15]
in reaching their decision concerning the utility of any order the Tribunal might make under that section in the context of the Migration Act.
[15] See eg [2006] FCA 649 per Jacobson J at [8] who then went on to consider at [9] the effect of the amendments on 1 July 2004 whereby s 300 was repealed and replaced including with s 300(7).
Short of determining the review application and making a final order in terms that sets aside any refusal decision and grants the renewal application, it seems to me there is no other power in the Migration Act or ART Act to make any other interim order in connection with an application seeking review by this Tribunal of a decision by the respondent to refuse registration.
Finally, even if I am wrong and contrary to my views there is power to make a positive order to continue the registration of the applicant as a migration agent, I would decline to do so for the following reasons:
(a)The applicant did not seek this form of order.
(b)Any order that I could make in connection with the 2024 Application could not extend registration beyond the period ending 13 May 2025, that is for a period of 12 months from when the previous registration following the March Grant expired. As that period has past, there would be no utility in making such an order on an interim basis.
(c)The applicant said that he intends to apply for renewal. In this regard, the applicant said he wished to take advantage of the deeming provisions for the period 2025/2026. However, having regard to the decision in Seymour, those provisions could not assist the applicant in securing continuity of registration.
(d)Any registration for the 2025/2026 year can only be granted on further application to the respondent. Until such application is determined and, thereafter, any relevant application is made to the Tribunal for review, the Tribunal has no power to make orders in connection with this period of registration.
Further, balancing the issue of public protection against the detriment to the applicant, having regard to:
(a)the fact there are a small number of existing clients;
(b)that it would appear those clients could be placed with an alternative migration agent; and
(c)the absence of any evidence of significant financial loss that might result for the applicant,
on balance I am not satisfied any orders under s 32(2) of the ART Act are warranted.
As to the grounds for requesting the stay in the applicant’s stay application, which I have set out above, and the submissions made which appear to challenge whether the bankruptcy decision was properly made, these are matters that will be dealt with at the final hearing of the review application as appropriate. They are not matters which persuade me interim orders should be made, even if I had power to do so.
For these reasons, the application for stay is dismissed.
78. Date(s) of hearing:
79. 9 May 2025
80. Applicant:
81. Self-Represented
82. Solicitors for the Respondent:
83. Caitlin White (Appearing), Daphne Jones-Bolla (Instructing), Sparke Helmore Lawyers