Podger and Migration Agents Registration Authority

[2019] AATA 2119

Podger and Migration Agents Registration Authority [2019] AATA 2119 (5 July 2019)

Division:GENERAL DIVISION

File Number:           2019/2884

Re:Tristan Jon Podger

APPLICANT

AndMigration Agents Registration Authority

RESPONDENT

Decision

Tribunal:Senior Member C. J. Furnell


Date of decision:                   5 July 2019

Date of written reasons:        19 July 2019

Place:Melbourne

The Tribunal does not have jurisdiction in respect of the application for review lodged by Mr Podger on 23 May 2019.

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Senior Member C. J. Furnell

Catchwords

PRACTICE AND PROCEDURE – whether the Tribunal has jurisdiction – whether there is a decision – meaning of decision under s 3(3) of the Administrative Appeals Tribunal Act 1975 – application of deeming provisions – the Tribunal does not have jurisdiction in respect of the application for review

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

Re Carson and Comcare [2011] AATA 103

Re Crowe and Repatriation Commission (1990) ALD 124

REASONS FOR DECISION

Senior Member C. J. Furnell

19 July 2019

1. 1.        On 23 May 2019, the applicant, Mr Podger, applied to the Tribunal for review of a “decision” of the Migration Agents Registration Authority (the Authority).

2. 2.        The “decision” was said to be constituted by a failure of the Authority to decide whether to approve or refuse Mr Podger’s application for registration as a migration agent (noting that Mr Podger was, in effect, seeking renewal of his registration, something generally required to be done annually).

3. 3.        On 6 June 2019, Mr Podger was told of the Tribunal’s intention to convene a hearing to consider whether it had jurisdiction to review such a “decision”.

4. 4.        The interlocutory hearing was convened on 5 July 2019. The Authority was given an opportunity to make submissions in that hearing, and elected to do so (as did Mr Podger). 

5. 5.        At the conclusion of the hearing, I decided that the Tribunal did not have jurisdiction to review the “decision”. I provided reasons for that decision, orally. I now provide them in writing, at Mr Podger’s request.

6. 6.        The Tribunal does not have inherent jurisdiction. Any jurisdiction it does have is conferred by statute. Specifically, under s 25 of the Tribunal’s constituent legislation, an enactment may provide that an application may be made to the Tribunal for review of a decision made in exercise of a power conferred by the enactment.

7. 7.        Mr Podger took the Tribunal to the Migration Act 1958 (the Act). It was under Division 3 of Part 3 of that Act that Mr Podger made his application for registration as a migration agent and it is under that Division that the Authority makes decisions with respect to such applications.

8. 8.        Given this legislative context, at the hearing to consider the Tribunal’s jurisdiction in this matter, the questions in issue were:

   1.(1)       Whether the failure of the Authority to decide whether to approve or refuse Mr Podger’s application for registration as a migration agent constituted a decision made in exercise of a power conferred by the Act.

   2.(2)       If so, whether an enactment provided that an application for review of such a decision may be made to the Tribunal.

9. 9.        Taking the latter question first, the Act makes clear that applications may be made to the Tribunal for review of decisions made by the Authority under Division 3 of Part 3 of the Act.

10. 10.      This leaves the question of whether the Authority’s failure to make a decision in this case constituted a decision made by it in exercise of a power conferred under Division 3 of Part 3 of the Act.

11. 11.      As the Tribunal understood them, Mr Podger’s submissions were to the effect that the Authority’s failure to make a decision in his case was, indeed, a decision made in exercise of a power so conferred.

12. 12.       I, however, have concluded that the Authority’s failure to make a decision in this case was not a decision, let alone a decision made in exercise of a power so conferred.

13. 13. Generally, the Tribunal does not have jurisdiction to review a failure to make a decision as such a failure does not constitute a decision. This is so despite the breadth of meaning given to the concept of “decision” by s 3(3) of the Administrative Appeals Tribunal Act 1975. In particular, while the concept as so enlarged encompasses a refusal to act, it nevertheless does not extend so far as to capture a failure to act. “The Tribunal has no jurisdiction to review a failure to make a decision (as opposed to a refusal to make a decision), in the absence of a deeming provision equating a failure to decide with a negative determination, even if there is an express or implied duty to make a decision.”

14. 14.      As the words quoted suggest, despite the general rule, the legislature might have thought fit to enact a provision which operated, in effect, to deem a failure such as the one here under consideration to be a decision. It has not, however, done so.

15. 15.      This is not to say that there are no potentially relevant deeming provisions.

16. 16.      Section 300(5) of the Act is such a deeming provision. In essence, under that section a decision to accept an application such as that made by Mr Podger will be deemed to have been made in certain circumstances. In Mr Podger’s case, however, the section does not currently have effect. It can only have effect in his case if 10 months had elapsed since the last day of his registration as a migration agent. That 10 month period had not elapsed either at the time of Mr Podger’s application for review or at the time of the hearing to consider the Tribunal’s jurisdiction in this matter.

17. 17. Section 25(5) of the Administrative Appeals Tribunal Act 1975 is another such deeming provision. In essence, pursuant to that section, a failure by the Authority to have done something (such as accept Mr Podger’s application for registration) “within the period prescribed by” an enactment (such as the Act) as the period for the doing of that thing is deemed to constitute a decision not to do the relevant thing.

18. 18.      The Authority is obliged to register an applicant for registration as a migration agent unless registration of the applicant is prohibited under Part 3 of the Act.  It “must do so as soon as possible”.

19. 19.      The question before the Tribunal is whether this obligation to register an applicant as soon as possible is “the period prescribed” for registration. I have concluded that it is not.

20. 20.      As soon as possible is not a period. As soon as possible is not an extent of time which starts and ends by reference to an objectively ascertainable date or event. As to the concept of “period” Deputy President Thompson stated in Re Crowe that “…[c]learly it is an extent which has a beginning and an end but, in my view, the beginning and end may be set by reference to the occurrence of some event and not merely by reference to a specified date.” No end is set in relation to an “as soon as possible” time frame.

21. 21. Even if as soon as possible is a period, in order for it to apply in the context of s 25(5) of the Tribunal’s constituent legislation, it would need to be “the” prescribed period. This suggests a requirement for a particular, single, period, not a period that would vary with the circumstances (as would be the case were “as soon as possible” to be a period).

22. 22. Lastly, a construction which would have “as soon as possible” as being the period prescribed by the Act for the making of migration agent registration application decisions would be one that ignores the context in which those words appear in the Act. The legislature’s intention in relation to the failure to make a timely decision with respect to a registration application is clearly evinced in s 300(5). Under that section, the lapse of up to 10 months is required before a decision is, in effect, deemed to have been made and, when made, it is to the effect that the registration application is successful. This is a decision the reverse of the one that would apply under s 25(5) of the Tribunal’s constituent legislation were “as soon as possible” to be characterised as the period prescribed by the Act for the making of registration application decisions.

23. 23.      For the foregoing reasons, I have decided that the Tribunal does not have jurisdiction to review the matter raised by Mr Podger in his application for review.

    16.      

I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the written reasons for the decision of Senior Member C. J. Furnell

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Dated: 19 July 2019

Date of hearing:	5 July 2019
Applicant:	Self-represented
Advocate for the Respondent:	Ms Rachel Noronha Clayton Utz