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.
..................[sgd]......................................................
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. 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. 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. 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. 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. 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. 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. 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.        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…

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.

Continue reading Podger and Migration Agents Registration Authority

Details

AGLC: Podger and Migration Agents Registration Authority [2019] AATA 2119
Case: [2019] AATA 2119
Decision Date: 5 July 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered whether it had jurisdiction to review a decision by the Migration Agents Registration Authority (MARA) concerning Mr. Podger. The dispute arose from MARA's refusal to grant Mr. Podger registration as a migration agent. Mr. Podger sought to have this refusal reviewed by the AAT.

The central legal issue before the Tribunal was whether MARA's refusal to grant registration constituted a "decision" for the purposes of the *Administrative Appeals Tribunal Act 1975* (Cth). Specifically, the Tribunal had to determine if the refusal fell within the definition of a decision that could be subject to review under that Act, particularly in light of any deeming provisions that might apply.

The Tribunal reasoned that the refusal to grant registration was not a "decision" as defined by section 3(3) of the *Administrative Appeals Tribunal Act 1975*. This section outlines what constitutes a reviewable decision, and the Tribunal found that MARA's action did not meet the criteria. Consequently, the Tribunal concluded that it lacked jurisdiction to entertain Mr. Podger's application for review of MARA's decision.

Orders