Senanayake and Migration Agents Registration Authority (Migration)

[2017] AATA 2157

Senanayake and Migration Agents Registration Authority (Migration) [2017] AATA 2157 (3 November 2017)

Division:GENERAL DIVISION

File Number:2017/6023           

Re:Chanaka Senanayake  

APPLICANT

Migration Agents Registration AuthorityAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member  

Date:3 November 2017

Place:Sydney

Pursuant to s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth), Mr Chanaka Senanayake’s application for a stay of the decision by the Migration Agents Registration Authority dated 9 October 2017, is refused.

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

Dr L Bygrave, Member

CATCHWORDS

PRACTICE & PROCEDURE – Applicant’s registration as a migration agent cancelled under s 303(1) – Applicant requested a stay of the decision – whether the Tribunal can grant a stay – Tribunal cannot stay the decision – application for stay refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

CASES

Seymour v Migration Agents Registration Authority [2007] FCAFC 5

Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065

REASONS FOR DECISION

3 November 2017 

INTERLOCUTORY APPLICATION

1. The applicant, Mr Chanaka Senanayake, was first registered as a migration agent on 18 March 2010.

2. On 9 October 2017, the Migration Agents Registration Authority (MARA) decided to cancel Mr Senanayake’s registration as a migration agent pursuant to s 303(1)(a) of the Migration Act 1958 (Cth) (the Act). The effect of this decision has been to prohibit Mr Senanayake from practising as a registered migration agent for a period of five years from the date of cancellation.

3. Mr Senanayake applied to the Administrative Appeals Tribunal (the Tribunal) on 9 October 2017 for a review of the decision by MARA (substantive application).

4. These interlocutory proceedings concern an application by Mr Senanayake on 9 October 2017 for an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to stay the operation of the decision until the Tribunal determines the substantive application.

5. The granting of a stay order is opposed by MARA.

6. The Tribunal heard the application in Sydney on 26 October 2017. Mr Senanayake attended the hearing by telephone, and gave written and oral submissions. MARA was represented by Ms Mia Donald, lawyer at Sparke Helmore, who also attended by telephone and provided written and oral submissions.

   RELEVANT LEGISLATION – POWER TO GRANT A STAY

7. Section 41(1) of the AAT Act provides that the making of an application to the Tribunal for a review of a decision does not affect the operation or implementation of the decision under review. That is, the decision under review has full effect until and unless the Tribunal makes an order staying the operation or implementation of the decision.

8. The Tribunal may, after taking into account the interests of any persons who may be affected by the review, make such orders staying the operation or implementation of the decision pursuant to s 41(2) of the AAT Act, as it considers appropriate for the ‘purpose of securing the effectiveness of the hearing and determination of the application for review’.

9. Ordinarily, the Tribunal would have regard to the well-established factors and principles that may be considered when determining a stay application, including the merits of the applicant’s case on review.[1]

   [1] For example, see Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065 at [6]-[7].

10. In relation to Mr Senanayake’s application for a stay order, however, MARA referred the Tribunal to the Act. In particular, MARA noted 300(1) of the Act that provides:

    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.

11. Section 300(4) of the Act that sets out:

    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.

12. And s 300(7) of the Act that provides:

    For the purposes of this section, the Authority is taken to have made a decision even if the decision is later stayed.

    CONSIDERATION

13. MARA submitted to the Tribunal that s 300(7) of the Act has the effect that once Mr Senanayake’s continued registration ceased under s 300(4), the Tribunal cannot stay the operation of ss 300(1) and (4) so as to continue a review applicant’s registration beyond the ‘expiry day’ of their registration. MARA referred to the Full Federal Court’s decision in Seymour v Migration Agents Registration Authority (Seymour).[2] Paragraph 27 of Seymour found:

    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.

    [2] [2007] FCAFC 5.

14. Having regard to both the statute and the Federal Court’s decision in Seymour, the Tribunal accepts the practical effect of s 300(7) of the Act is that once MARA decided on 9 October 2017 to cancel Mr Senanayake’s registration as a migration agent under s 303(1)(a) of the Act, the ‘deemed’ continuation of his registration in accordance with s 300 of the Act ceased on that date and cannot be revived.

15. At the hearing, Mr Senanayake referred the Tribunal to correspondence he received from MARA dated 16 October 2017 providing a notice of intention to consider refusing a registration application by Mr Senanayake lodged on 1 March 2017. He contended that this correspondence ensured his situation was unique and different to that set out in Seymour. 

16. The Tribunal is not persuaded by Mr Senanayake’s submission as the letter on 16 October 2017 relates to a separate application for registration made by Mr Senanayake on 1 March 2017; consequently, it is separate to his application for a stay order and his substantive application.

    CONCLUSION

17. For the reasons given above, Mr Senanayake’s application for a stay is refused.

    DECISION

18. Pursuant to s 41(2) of the AAT Act, Mr Senanayake’s application for a stay of the decision by MARA dated 9 October 2017, is refused.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated: 3 November 2017

Date(s) of hearing:
Applicant:	By telephone
Solicitors for the Respondent:	Ms M Donald, Sparke Helmore