Ogbonna and Migration Agents Registration Authority (Practice and procedure) - [2025] ARTA 595

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Administrative Appeals Tribunal Act 1975 (Cth) (repealed) – s 41(2)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 300
Cases
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 5
Shi 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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2025] ARTA 595
Decision Date: 22 May 2025

CaseChat Overview and Summary

In Ogbonna and Migration Agents Registration Authority (Practice and procedure), the applicant, Mr Ogbonna, sought a stay of a decision made by the Migration Agents Registration Authority (MARA) to refuse his application for registration as a migration agent. The dispute centred on whether the Tribunal had the power to grant a stay of the decision pending the determination of the review application. The primary legal issue was the interpretation and application of s 32(2) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), which grants the Tribunal the power to stay the operation or implementation of a reviewable decision. The court examined the principles guiding the granting of a stay, including the prospects of success of the review application, the consequences for the applicant and respondent, and the public interest.

The court found that the decision not to renew Mr Ogbonna's registration had an immediate legal impact by terminating his deemed registration under s 300 of the Migration Act 1958 (Cth). However, the court held that the decision did not need to be stayed because the applicant must be treated as if he were still registered regardless of whether he appears on the register. This interpretation aligns with the purpose of the deeming provision, which is to ensure continuity until the MARA makes a decision on the renewal application. The court concluded that there was no utility in staying the decision, as it would not affect the outcome of the review application. Therefore, the application for a stay was dismissed.

In summary, the court found that the Tribunal did not have the power to grant a stay in this context, as the deeming provision already ensures that the applicant is treated as if he were still registered. The court's decision was based on the interpretation of the relevant statutory provisions and the lack of any benefit to the applicant from staying the decision.

Orders

Orders of the court

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Background

Background to the litigation

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).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 otherwiseGeneral 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.

Ratio Decidendi

Legal Principle Established

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].