Seymour and Migration Agents Registration Authority
[2006] AATA 369
•27 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 369
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/209
GENERAL ADMINISTRATIVE DIVISION ) Re
Michael Seymour
Applicant
And
Migration Agents Registration Authority
Respondent
DECISION
Tribunal Mr. Julian Block, Deputy President Date 27 April 2006
Place Sydney
Decision The application by the Applicant for a stay, in accordance with section 41(2) of the Administrative Appeals Tribunal Act 1975, of a decision by the Respondent made on 20 February 2006, is denied.
[Sgd] Mr Julian Block, Deputy President
CATCHWORDS
STAY APPLICATION – request for stay in respect of a decision made by the Migration Agents Registration Authority to refuse Applicant’s application for repeat registration as a migration agent – the application by the Applicant for a stay, in accordance with section 41(2) of the Administrative Appeals Tribunal Act 1975, of a decision made by the Migration Agents Registration Authority on 20 February 2006, is denied.
Migration Act 1958 – section 300
Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004
Administrative Appeals Tribunal Act 1975 – section 41(2)
Shi v Migration Institute of Australia Ltd [2003] FCA 1304
Re Alexander and Migration Agents Review Board (1995) 40 ALD 9
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Asset Insure Pty Limited v New Cap Reinsurance Corporation Limited (in liquidation) [2006] HCA 13 (7 April 2006)
Re Levy (1881) 17 Ch D 746
VOAW v Minister of Immigration and Multicultural Affairs [2003] FCAFC 251
REASONS FOR DECISION
27 April 2006 Mr Julian Block, Deputy President
1. The Applicant, pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) seeks a stay, in respect of a decision made by the Respondent on 20 February 2006, pursuant to which the Respondent refused the Applicant’s application made in May 2005 for repeat registration as a migration agent; that application was made in respect of the year 24th May 2005 to 23rd May 2006.
2. The stay was sought at short notice and was originally heard on 6 March 2006. The Applicant applied for a postponement to enable him to consult Mr T. Hurley of counsel (and who had represented him previously) and that application was granted. When the matter came before the Tribunal on 20th March 2006 Mr Hurley appeared for the Applicant and presented written submissions on his behalf. The matter was again postponed to give Mr Cox (of Phillips Fox) who represented the Respondent an opportunity to consider and deal with the Applicant’s submissions. Further submissions were received from both parties and a final hearing took place on 13 April 2006.
3. This application which was heard on three separate days generated a surprisingly large volume of documentation. Apart from written submissions by both parties the Tribunal had before it the T documents (of nearly 400 pages) lodged pursuant to section 37 of the AAT Act. In addition and on the second hearing day Mr Hurley tendered a large volume of documents and including records of debates in the Senate referable to the Amending Act (as defined later in these reasons)
4. The system pursuant to which migration agents seek repeat registration on a year by year basis was described by Tamberlin J in Shi v Migration Institute of Australia Ltd [2003] FCA 1304 as a continuum, such that the refusal of an application amounted to termination of the migration agent’s right to practice as such, and that the Tribunal did indeed have power pursuant to section 41(2) of the AAT Act to grant a stay order. I refer to that judgment more fully later in these reasons.
5. The Applicant had previously and in May 2004 made an application for repeat registration and in respect of the year from 24 May 2004 to 23 May 2005. When that application was refused by the Respondent a stay order was granted by Senior Member Bell. The Applicant sought the review of that refusal decision by the Tribunal and in January 2006 a decision adverse to the Applicant was delivered by Senior Member Allen. The Applicant appealed that decision and the appeal was heard, (judgment being reserved), by the Federal Court (Rares J) in March 2006. Prior to that hearing, a stay order was sought and granted (on conditions set out in the relevant order) by the Federal Court (Wilcox J). The proceedings referred to in this clause 4 are not directly within the province of the Tribunal in respect of this stay application, which in its terms relates to the refusal of an application for repeat registration for the ensuing year.
6. The decision of Deputy President McMahon in Re Alexander and Migration Agents Review Board (1995) 40 ALD 9 was described by Tamberlin J in Shi (supra) (in clauses 20 to 23) in the following terms:
“20 In support of its application, the MARA submits that the decision in Re Alexander and Migrations Agents Registration Board (1995) 40 ALD 99 ("Alexander") is applicable to the present case, and that it was correctly decided.
21 In that case, AAT Deputy President McMahon held that the power contained in 41(2) of the AAT Act is not positive in its effect, but only negative. The content of the power is limited by its legislative intention, which is to preserve the situation prior to making the reviewable decision, and it is not intended to put the Applicant in a different position to that in which he or she would have been placed, prior to the reviewable decision.
22 The relevant facts in Alexander were that the Applicant applied for registration as a migration agent after Part 3 of the Migration Act, requiring registration, came into effect in 1992. Complaints against the Applicant had been lodged with the MARA, and proceedings had been commenced seeking damages from the Applicant. The MARA considered the application and refused it. The Applicant then sought review by the AAT. The letter advising of the refusal stated that the Board had directed that the Applicant should not seek to hold himself out as available to give immigration assistance. At the same time, the Applicant made an application seeking a stay of the refusal to register, and sought a direction suspending the implementation of the decision to give the direction to cease to hold himself out as being available to give immigration assistance. The issue before the AAT was whether it had the power to stay the operation of the decision to refuse registration.
In the course of his reasons for decision, Deputy President McMahon said:
"(20) The question, therefore, is whether this Tribunal has power to stay or otherwise affect the operation of the decision to refuse registration. In my opinion it does not.
(21) The power is given to enable the Tribunal to preserve the status quo, so as to ensure that a continuum which is broken by a reviewable decision may be reinstated in order to secure the ultimate effectiveness of the hearing. Here there is no such continuum.
(22) Prior to the operative decision, the Applicant was not registered under Pt 3. After the operative decision, he continued to be unregistered under Pt 3. What the Applicant really seeks is to have this Tribunal substitute, as a temporary decision, an order granting him registration under Pt 3 without investigation of the merits. In my view this Tribunal has no such power.
(23) In those cases, where the 41(2) power has been exercised (either by the Tribunal or by a court on appeal) it has been the purpose of reinstating the Applicant to the position he or she was in prior to the making of the operative decision. Thus, in Re Dekanic and Tax Agents Board of NSW (1982) 6 ALD 240 and Re Nelson and Tax Agents Board of Queensland (1993) 30 ALD 317, the operative decision was to refuse renewal of registration as a tax agent. Similarly in Yolbir v Administrative Appeals Tribunal (1994) 33 ALD 8 (a decision of a full court of the Federal Court) and in Re Secretary, Department of Social Security and Guner (1990) 21 ALD 399 the reviewable decision had the effect of terminating an ongoing pattern of payment of pension.
(24) I am not aware of any exercise of the power under s 41(2) in relation to an original decision for registration in any professional context. I referred to this in Re Gowing and Civil Aviation Authority (1990) 22 ALD 207 at 209 and I adhere to the views I there expressed. Section 41(2) is not positive in its effects but merely negative. The content of the power is limited by its legislative intendment. It is intended to preserve the situation obtaining prior to the reviewable decision. It is not intended to change the situation entirely and put the Applicant in a different position from what he would have been in prior to the reviewable decision. It is not intended, in the present circumstances, to enable this Tribunal to grant registration, much less to declare that the Applicant's rights under the transitional provisions (which have long since expired) should somehow be revived. If the latter proposition was acceded to, it would mean that the Applicant would for the indefinite future be entitled to ignore all the regulatory provisions of the new legislation and to claim an immunity for professional Acts which is not available to other registered persons."
7.Tamberlin J held in Shi (supra) that Alexander (supra) was distinguishable
because Alexander (supra) was concerned with a situation where the agent had not previously been registered. His Honour noted that the power contained in section 41(2) of the AAT Act is wide and that it should be interpreted liberally. His Honour then went on to find that the regime was such that there was a continuum and so that the agent must be taken to be registered up to the date of the decision not to renew. He found that “the direct legal effect of the decision is that the deemed registration is terminated”. See clauses 24 to 26 of the judgment in Shi (supra) as follows:
“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) 48 FCR 246 at 249. The power is to make an order which stays or otherwise affects the operation or implementation of a decision.
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.”
8. It is necessary in the first instance for the Tribunal to determine whether amendments to section 300 of the Migration Act 1958 (“the Act”) effected by the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 (“the Amending Act”) have the effect that, in the circumstances of this matter, the Tribunal does not have the power to grant a stay order which is effective. If the Tribunal does have the power to issue an effective stay order it is then necessary for the Tribunal to determine whether this is a case in which it would be proper to grant such an order. (Section references contained in these reasons which do not refer in specific terms to the Act should be construed as references to the Act).
9. Section 300 of the Act prior to its amendment in accordance with the Amending Act read as follows:
”Automatic continuation of registration(1)
(a) before the end of the last day (the expiry day) of the period of registration of a registered agent, the agent has made a registration application; and
(b) the agent has paid the registration application fee (if any) in respect of the application; and(c) the Migration Agents Registration Authority has not decided the application before the end of the expiry day;
The agent's registration is taken to continue until the Authority decides the application.
Application granted if no decision within a certain period
(2)
However, if the Authority has not decided the registration application before the end of the period of 10 months beginning on the day after the expiry day, the application is taken to have been granted at the end of that period.
When registration takes effect
(3)
If the Authority grants the registration application, or the registration application is taken to have been granted under subsection (2), the registration is treated as having taken effect at the end of the expiry day.”
10.Subsequent to its amendment in accordance with the Amending Act section 300 of the Act reads as follows:
“Automatic continuation of registration
When agent’s registration is automatically continued
(1) 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.
Exception—suspension
(2) However, subsection (4) does not apply to continue the agent’s registration if, before the end of the expiry day, the Authority made a decision to suspend the agent’s registration, unless:
(a) the suspension had been completed before the end of the expiry day; or
(b) there was a decision (other than a stay order) of the Administrative Appeals Tribunal or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled.
Exception—cancellation
(3) Subsection (4) also does not apply to continue the agent’s registration if, before the end of the expiry day, the Authority made a decision to cancel the agent’s registration, unless:
(a) there was a decision (other than a stay order) of the Administrative Appeals Tribunal or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled; or
(b) there was a decision of the Administrative Appeals Tribunal or a court in force to the effect that the agent’s registration is suspended, and the suspension had been completed before the end of the expiry day.
Period of continuation of registration
(4) 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.
Application granted if no decision within a certain period
(5) If, before the end of the period of 10 months beginning on the day after the expiry day, the Authority has not:
(a) decided the registration application; and
(b) decided to suspend the agent’s registration; and
(c) decided to cancel the agent’s registration;
then the application is taken to have been granted at the end of that period.
When registration takes effect
(6) If the Authority grants the registration application, or the registration application is taken to have been granted under subsection (5), the registration is treated as having taken effect at the end of the expiry day.
When Authority makes decision
(7) For the purposes of this section, the Authority is taken to have made a decision even if the decision is later stayed.”
11. Mr. Hurley contended on behalf of the Applicant that the refusal of a repeat application is not a suspension within section 300(2) and it is also not a cancellation within section 300(3). (The provisions of the Act as to suspension are not relevant in this matter). Mr Hurley contended that a cancellation might occur under section 303(1) (a) of the Act; it could also occur under section 306AG (1) (c) or under section 306 AGAC (1) (c) of the Act. The first of these provisions is contained in Part 3 Division 3 while the second and third are contained in Part 3 Division 3AA of the Act. Mr Hurley noted that Division 3AA was introduced in 2004; he referred in particular to a lengthy speech by Senator Bartlett of the Australian Democrats made in the Senate on 23 March 2004 and in particular to page 21639. (That debate record is one of the documents contained in the large folder tendered by My Hurley).
12. The Senate debate speech by Senator Bartlett appears to me to be of little relevance. However it is necessary to consider whether a cancellation and the refusal of a repeat registration application are different concepts. Mr Hurley contended that they are and as I understood Mr. Cox, he appeared to agree that there is a difference. Tamberlin J in Shi (supra) described the refusal of a repeat application as a termination. Although the actual decision in Shi (supra) is now distinguishable in the light of amendments to section 300 there is no reason for or basis on which I should disagree with that statement with His Honour. Since the effect of a termination and a cancellation is the same (and resulting in loss of registration as a migration agent) it is in my view at least arguable that there is no difference in substance between the two concepts. I propose however, in the light of Mr. Cox’s concession, to approach the matter on the basis that there is a difference. It is to be noted in this context that section 306 of the Act provides for review by the Tribunal and that section 306AA refers to a stay of a decision made under section 303 to cancel or suspend an agent’s registration. (Sections 306 and 306AA are contained in Division 3. Section 306AH in Division 3AA provides for review by the Tribunal in somewhat different terms).
13. Following CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 it is clear that as a matter of law and in the construction of a statute, regard must be had not only to the legislative text but also other sources which assist in ascertaining the purpose of the legislation. On 7 April 2006 the High Court handed down its judgment in Asset Insure Pty Limited v New Cap Reinsurance Corporation Limited (in liquidation) [2006] HCA 13 (7 April 2006) where once again it made it clear that this is the manner in which a statute should be interpreted. Clause 87 of the judgment by Gleeson CJ, Heydon and Crennan JJ reads as follows:
“Once again, we can accept that the contrary argument is tenable, at least on a narrow reading of the language of s 562A that would place emphasis on the successive use of the different terms "insurance" and "reinsurance". However, that approach is not the way this Court has repeatedly said that the task of statutory construction should be undertaken [59]. That task must start with the language of the legislative text. However, it is necessary as well to consider other relevant sources that assist in deriving the purpose of the legislation. Such sources include the statutory context, the legislative history, admissible parliamentary materials and background documents, such as law reform reports. When these available sources are taken into account in the present case they lead to the conclusion that we have expressed.
(It may be noted that the footnote reference in clause 87 (footnote 59) refers to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 112- 113; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69], 384)”
14. The Supplementary Explanatory Memorandum in respect of the amended section 300 reads as follows.
“Item 63 Section 300
28. This item repeals existing section 300 of the Act and inserts new section 300.
29. In broad terms, new section 300 sets out when an agent’s registration will be automatically continued because the MARA has not decided the agent’s application for re registration before the last day of the agent’s registration period (the expiry day).
30. The purpose of new section 300 is to limit the circumstances in which an agent’s registration can be automatically continued because the MARA has not made a decision in relation to the agent’s application for re-registration before the agent’s current registration expires. This will ensure that an agent’s registration will not be extended for lengthy periods until review proceedings arising from the cancellation or suspension of an agent’s registration or a decision to refuse to re- register an agent are finalised.
31. New subsection 300(1) is similar to existing subsection 300(1) of the Act. However, unlike existing subsection 300(1) of the Act which provides that an agent’s registration continues until the MARA makes a decision in relation to the application for re-registration, new subsection 300(1) provides that an agent’s registration is taken to continue until one of the events set out in new subsection 300(4) occurs.
32. New subsections 300(2) and (3) provide exceptions to the general rule under subsection.
33. New subsection 300(2) provides that an agent’s registration will not be continued under subsection 300(1) if the MARA has made a decision to suspend the agent’s registration before the expiry day, unless the suspension has been completed or there is a decision of the AAT or a court (other than a stay order) in force to the effect that the agent’s registration is not suspended or cancelled.
34. New subsection 300(3) provides that an agent’s registration will not be continued under subsection 300(4) if the MARA has made a decision to cancel the agent’s registration before the expiry day, unless there is a decision of the AAT or a court (other than a stay order) in force to the effect that the agent’s registration is not suspended or cancelled, or if the MARA’s decision has been substituted for a suspension decision and the suspension has been completed.
35. The purpose of new subsections 300(2) and (3) is to prevent an agent, who has been granted a stay order in relation to a decision to cancel or suspend his or her registration, from extending his or her registration until review proceedings have been finalised.
36. The effect of new subsection 300(4) is that an agent’s registration is taken to continue until the MARA makes a decision in relation to the re-registration application, the MARA suspends or cancels the agent’s registration or it has been 10 months since the expiry day.
37. If the MARA suspends or cancels an agent’s registration after it has been taken to continue under new subsection 300(1), new subsection 288(6A) provides that the MARA must not consider the outstanding re- registration application until all review proceedings relating to the suspension or cancellation decision have been finalised.
38. If a suspension or cancellation decision is in effect after all review proceedings have been finalised, new sections 291A and 292 exclude the agent from being re-registered within5 years of the cancellation decision or until the suspension would have been completed if the registration had not ended.
39. If an agent’s registration is taken to continue after the expiry day, then new subsection 300(5) provides that the application for re-registration is taken to have been granted 10 months after the expiry day.
40. New subsection 300(6) is the same as existing subsection 300(3). It provides that if the MARA grants the re-registration application or the re-registration application is taken to have been granted under new subsection 300(5), then the registration is taken to have had effect at the end of the expiry day.
41. New subsection 300(7) makes it clear that, for the purposes of new section 300, the MARA is taken to have made a decision, even if the decision is later stayed by the AAT or a court. For example, any orders made by the AAT or a court staying the operation of a decision to suspend or cancel an agent’s registration pending finalisation of review proceedings do not affect the operation of new subsections 300(2) and (3) to prevent the agent’s registration being continued under new subsection 300(1).”
15. It is of importance to note that despite contentions by the Applicant to the contrary, section 300 (7) applies in its terms to the whole of section 300 and not to some part only of it. In particular it does not apply only to subsections (2) and (3) or for that matter to only subsections (4) and (5). Mr. Hurley made the point that even if section 300 (7) applies in respect of the whole of section 300 it does not affect the operation of section 41(2) of the AAT Act; I do not see how this can be relevant.
16. Tamberlin J in Shi (supra) noted that the fact that an agent’s registration was deemed pursuant to subsection (1), and upon the making of an application, to continue amounted to a statutory fiction. As he noted, that subsection requires that until there is a decision to refuse the application the agent must be treated as if he were registered. The effect of subsections (4) and (5) is that that deemed registration continues after the expiry day until the occurrence of one of the events set out in subsection (4) but provided that under subsection (5), if within 10 months of the expiry day the application has not been decided, it is taken to have been granted and continues until the end of the relevant year. In the circumstances of this case subsection (4) (a) applied because prior to the expiry of the period of 10 months, the Respondent (on 20 February 2006) decided to refuse the application.
17. Analysing section 300 in rather more detail:
(a) Under section 300 (1) an agent’s registration continues beyond the expiry date where the agent complies with subsection (1); there is no dispute as to the fact that the Applicant did so.
(b) Subsection (2) is not relevant because there was no suspension. Subsection (3) provides that subsection (4) does not apply to continue the agent’s registration if before the expiry day a cancellation decision was made. There is doubt as to whether subsection (3) is relevant.
(c) Subsection (4) is important; pursuant to its provisions the agent’s registration is taken to continue until the earliest of the four events listed; in this instance the Respondent decided the application on 20 February 2006 (and so that subsection (5) could not apply) and on that date the Applicant’s registration as a migration agent ceased.
(d) Subsection (7) provides in its terms that the Authority is taken to have made a decision even if that decision is later stayed. The Respondent contends that it is in these circumstances that a stay order by the Tribunal would be ineffective since the decision which terminates the registration of the agent stands. The Applicant referred to the second sentence of clause 41 of the Supplementary Explanatory Memorandum in order to contend that since a refusal is neither a suspension nor a cancellation section 300 (7) cannot be interpreted in the manner for which the Respondent contends. That ignores the words “For example” with which the second sentence of clause 41 commences. The clear import of section 300 (7) is that a decision once made (and the term “decision” must include a decision under subsection (4) (a)) it stands notwithstanding that it might be the subject of a stay order. The words “for example” indicate that the effect of section 300 (7) is not confined to decisions under subsections (2) and (3).
17. The Respondent in referring to Shi (supra) drew attention in particular to the reference by Tamberlin J to the deeming provision as a statutory fiction which required that the agent be treated as if registered. His Honour referred in Shi (supra) to Ex Parte Walton; in Re Levy (1881) 17 Ch D 746 at 756; and where James LJ said: “when a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purpose and between what persons the statutory fiction is to be resorted to.”
That case was concerned with the rights of third parties in relation to a deeming provision in bankruptcy legislation in the United Kingdom. The deeming provision was held to affect rights as between the trustee and the bankrupt but not the rights and liabilities of third parties.
19. Clauses 29, 30 and 31 of the Respondent’s final submissions (and with which I agree) read as follows:
“29. The fallacy contained in the Applicant’s submission is shown in the reasoning of his submissions 3.9 and 3.10. On the one hand; it is contended that should the Tribunal stay the decision under review, that there is no decision operating at law (with the result the registration of the Applicant will be preserved until the decision of the Tribunal is known). On the other hand; the Applicant refers to s.300 as preserving “the fact” of the decision to prevent an agent claiming (subsequent to a stay order) that their registration continues after the period of 10 months in s.300(4)(d) only.
30. That is, subsequent to a stay, the Applicant’s submission depends on attributing a different effect to the word “decision” in s. 300(4)(a) depending on whether a period of ten months has passed or not. According to the Applicant, previous to the passing of those 10 months, there will be no decision “at law”. Subsequent to the passing of that time, it is claimed that an agent will not be able to gain the benefit of s.300 (4) (d) to receive an actual registration. It is said, apparently, that there is now only a decision in fact, not in law, for the purposes of s. 300(4) (d) only.
31. That interpretation leaves s. 300(7) with no work to do as the situation before the provision was inserted was precisely that a stay order operate to the effect that actual registration would be granted once the ten month period had elapsed without the review decision being made.”
20. I also agree with the Respondent’s contention that it is not necessary to read section 300(7) down to correct a drafting oversight or to fill in a gap. The proper approach is, as the Respondent contends, that set out by the Full Federal Court in VOAW v Minister of Immigration and Multicultural Affairs [2003] FCAFC 251 (Ryan, Lindgren and Sundberg JJ) at clause 12 as follows: “Unless one can be certain that one is filling a gap in accordance with Parliament’s probably intention, the appropriate course is to follow Lord Simonds” injunction in Magor and St. Mellons RDC v Newport Corporation [1952] AC 189 “if a gap is disclosed the remedy lies in an amending Act” and not in a “usurpation of the legislative function under the thin guise of interpretation”. See also Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 12 per Gibbs J.”
VOAW dealt with a deeming phrase which provided that “the notification is taken to have been received by the applicant even if it were not received”. That provision might usefully be compared with section 300 (7) and the words “is taken to have made a decision even if the decision is later stayed.”
21. To grant a stay order in these circumstances would be entirely without purpose, and simply because it would not be effective. The registration of the Applicant ceased on 20 February 2006 and without registration he cannot act as a migration agent. To grant a stay order might have the effect that the public is misled and moreover would expose the Applicant to prosecution under a number of sections of the Act. I appreciate that the effect of this decision might appear to be harsh; however the legislation is cast in terms which in my view, prevents me from granting a stay order which is effective.
22. Accordingly, the Tribunal determines that the Applicant’s application for a stay pursuant to section 41(2) of the AAT Act must be denied.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Julian Block, Deputy President
Signed: Associate
Dates of Hearing 6 March 2006, 20 March 2006 and 13 April 2006
Date of Decision 27 April 2006
Counsel for the Applicant Mr. T Hurley
Solicitor for the Respondent Mr. A Cox
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