Pike and Migration Agents Registration Authority (Migration) - [2025] ARTA 222

Pike and Migration Agents Registration Authority (Migration) [2025] ARTA 222 (12 March 2025)
Applicant:Barry Frederick Pike
Respondent: Migration Agents Registration Authority
Tribunal Number: 2024/10451

Tribunal:General Member R Smith
Place:Adelaide
Date:12 March 2025

Decision:The application for a stay of the Respondent’s decision is refused.

Statement made on 12 March 2025 at 4:13pm
CATCHWORDS
MIGRATION AGENT – applicant’s registration automatically continued - suspension of registration – application to stay decision – application for stay refused.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
CASES
Migration Agents Registration Authority v Gruszka [2023] FCA 473
Scott v Australian and Securities and Investment Commission [2009] AATA 798
SECONDARY MATERIALS
Explanatory Memorandum to the Administrative Review Tribunal Bill 2023 (Cth)
Statement of Reasons

On 10 December 2024, the Office of Migration Agents Registration Authority (OMARA or the Respondent) made a decision to suspend the registration of Mr Pike (or the Applicant) for a period of two years and until certain conditions are met in accordance with s 303(1)(b) of the Migration Act 1958 (Cth) (the Act). The decision took effect at the end of the same day.
On 11 December 2024, the Applicant filed an application with the Tribunal seeking a review of the decision together with an application to stay of the implementation of the decision while the review is determined by the Tribunal.
The Respondent opposes the stay on the basis that the Tribunal does not have the power to make the order, as Mr Pike’s registration has ceased.
BACKGROUND FACTS
Mr Pike has been a registered migration agent for some time, having first been registered in October 2012. His registration was renewed annually thereafter.
On 8 November 2023, the Respondent received a complaint about Mr Pike from the Administrative Appeals Tribunal. Following the complaint, OMARA conducted an investigation.[1]
[1] T4
On 28 June 2024, being the expiry day of his registration, Mr Pike lodged an application to re-register as a migration agent.
On 14 August 2024, the Respondent sent to Mr Pike a notice pursuant to s 309(2) of the Act advising him that it was considering cautioning him, suspending or cancelling his registration under s 303(1) of the Act (the Notice). The Applicant was invited to provide any written submissions by 4 September 2024. This due date was later extended with the permission of the Respondent.[2]
[2] T5
On 26 August 2024, the Respondent requested further information in relation to Mr Pike’s application for re-registration. Mr Pike responded to the request later that same day.[3]
[3] Annexure A of the Applicant’s Amended Statement of Facts Issues and Contentions.
On 1 October 2024, Mr Pike provided a response to the Notice.[4]
[4] T8
On 10 December 2024, the Respondent made the decision to subject of the review.[5]
[5] T2
STATUTORY CONTEXT
Part 3, Division 3 of the Act sets out the statutory scheme for the registration and regulation of migration agents.
Section 288(1) of…

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 222
Decision Date: 12 March 2025

CaseChat Overview and Summary

The case before the court involved Mr Pike, a registered migration agent, and the Migration Agents Registration Authority (the Respondent). Mr Pike had applied to re-register as a migration agent on the expiry of his registration, but the Respondent was considering suspending or cancelling his registration due to a complaint. Mr Pike applied for a stay of the Respondent's decision pending the outcome of the review, which the Respondent opposed, arguing that the Tribunal lacked the power to grant such a stay as Mr Pike's registration had already ceased. The primary legal issue before the court was whether the Tribunal had the authority to grant a stay of the Respondent's decision to suspend or cancel Mr Pike's registration when his registration had already expired. This hinged on interpreting sections 300 and 32 of the Act, which deal with the automatic continuation of registration applications and the power of the Tribunal to stay decisions, respectively.

The court considered the statutory provisions and relevant case law, particularly Gruszka, which established that the Tribunal's power to stay decisions is limited to situations where the applicant's registration is still effective. Since Mr Pike's registration had expired, the court held that the Tribunal did not have the power to stay the Respondent's decision. The court noted that under section 300(4) of the Act, an applicant’s registration is automatically continued only if certain conditions are met, which did not apply here as the Respondent had not yet made a decision on the re-registration application. Additionally, section 32 of the Act allows the Tribunal to stay decisions only if it is necessary to ensure the effectiveness of the review, which was not applicable as Mr Pike's registration had already ceased. Consequently, the court refused the application for a stay, holding that the Tribunal did not have the requisite power in these circumstances.

In light of the above, the court dismissed Mr Pike's application for a stay of the Respondent's decision. The final orders of the court were that the application for a stay of the Respondent’s decision is refused, and Mr Pike is not granted a stay pending the outcome of the review.

Orders

Orders of the court

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Background

Background to the litigation

The Respondent opposes the stay on the basis that the Tribunal does not have the power to make the order, as Mr Pike’s registration has ceased. BACKGROUND FACTS Mr Pike has been a registered migration agent for some time, having first been registered in October 2012. His registration was renewed annually thereafter. On 8 November 2023, the Respondent received a complaint about Mr Pike from the Administrative Appeals Tribunal. Following the complaint, OMARA conducted an investigation.[1] [1] T4 On 28 June 2024, being the expiry day of his registration, Mr Pike lodged an application to re-register as a migration agent. On 14 August 2024, the Respondent sent to Mr Pike a notice pursuant to s 309(2) of the Act advising him that it was considering cautioning him, suspending or cancelling his registration under s 303(1) of the Act (the Notice). The Applicant was invited to provide any written submissions by 4 September 2024. This due date was later extended with the permission of the Respondent.[2][2] T5 On 26 August 2024, the Respondent requested further information in relation to Mr Pike’s application for re-registration. Mr Pike responded to the request later that same day.[3] [3] Annexure A of the Applicant’s Amended Statement of Facts Issues and Contentions. On 1 October 2024, Mr Pike provided a response to the Notice.[4] [4] T8 On 10 December 2024, the Respondent made the decision to subject of the review.[5] [5] T2STATUTORY CONTEXT Part 3, Division 3 of the Act sets out the statutory scheme for the registration and regulation of migration agents. Section 288(1) of the Act provides that an individual may apply to be registered as a registered migration agent. Section 288(6A) states that if an applicant has been registered before making an application and the Respondent makes a decision to suspend or cancel the application, then the Respondent is precluded from considering a registration application until all proceedings including appeals have been finalised. Section 300(1) of the Act allows for a registration to be automatically continued where an agent has made a registration application, paid the registration application fee and the authority has not yet decided the application. When the criteria in s 300(1) is met, s 300(4) provides that the agent’s registration is automatically continued after the expiry day (being the last day of the previous registration) until the Respondent either decides the application, suspends the agent’s registration, cancels the agent’s registration or 10 months has lapsed after the expiry day with no decision from the Respondent. Making an application to the Tribunal seeking a review of a decision does not affect the operation of the decision.[6] However, on an application by party to a proceeding for a review of a reviewable decision, the Tribunal may make an order staying or otherwise affecting the 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.[7][6] Administrative Review Act 2024 (Cth) ss 32(1).[7] Ibid ss 32(2).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the decision in Gruszka, which I am bound to follow, consideration of the discretionary factors is therefore unnecessary.DECISION The application for a stay of the Respondent’s decision is refused.

Ratio Decidendi

Legal Principle Established

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