Seymour v Migration Agents Registration Authority - [2006] FCA 649

FEDERAL COURT OF AUSTRALIA
Seymour v Migration Agents Registration Authority [2006] FCA 649
ADMINISTRATIVE LAW – application for review of a decision of the Administrative Appeals Tribunal (“AAT”) – AAT decision to refuse application for stay of decision of Migration Agents Registration Authority to refuse migration registration application – effect of s 300(7) of Migration Act 1958 (Cth) - whether stay would be effective
Administrative Appeals Tribunal Act 1975 (Cth) - s 41(2)
Migration Act 1958 (Cth) – s 300, Division 3 Part 3
Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 (Cth)
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 cited
Isherwood v Butler Pollnow Pty Limited (1986) 6 NSWLR 363 cited
Newcastle City Council v GIO General Limited (1997) 191 CLR 85 cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited
R v Young (1999) 46 NSWLR 681 cited
Re Bolton; Ex parte Beane (1987) 162 CLR 514 cited
Shi v Migration Institute of Australia (2003) 134 FCR 326 considered, distinguished
Tanari v Migration Agents Registration Authority [2005] AATA 419 distinguished
Supplementary Explanatory Memorandum, Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2004 (Cth)
MICHAEL SEYMOUR V MIGRATION AGENTS REGISTRATION AUTHORITY AND ADMINISTRATIVE APPEALS TRIBUNAL
NSD 805 OF 2006
JACOBSON J
31 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD805 OF 2006

BETWEEN:

MICHAEL SEYMOUR
APPLICANT

AND:

MIGRATION AGENTS REGISTRATION AUTHORITY
FIRST RESPONDENT

ADMINISTRATIVE APPEALS TRIBUNAL
SECOND RESPONDENT

JUDGE:

JACOBSON J

DATE OF ORDER:

31 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The application be dismissed; and

The Applicant pay the Respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD805 OF 2006

BETWEEN:

MICHAEL SEYMOUR
APPLICANT

AND:

MIGRATION AGENTS REGISTRATION AUTHORITY
FIRST RESPONDENT

ADMINISTRATIVE APPEALS TRIBUNAL
SECOND RESPONDENT

JUDGE:

JACOBSON J

DATE:

31 MAY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Introduction

This is an application for review of a decision of the Administrative Appeals Tribunal (“AAT”), dated 27 April 2006. The application is made under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) and s 39B of the Judiciary Act 1903 (Cth) (“Judiciary Act”).
The AAT refused to grant a stay under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) against the operation of a decision of the first respondent, the Migration Agents Registration Authority (“the MARA”) made on 20 February 2006. On that date the MARA refused an application made by the applicant for registration as a migration agent for the 12 month period from 24 May 2005 to 23 May 2006.
The Migration Act 1958 (Cth) (“the Act”), both in its previous form, and in the terms as amended by the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 (Cth) (“the Amending Act”), provided…

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: [2006] FCA 649
Decision Date: 31 MAY 2006

CaseChat Overview and Summary

The case of Seymour v Migration Agents Registration Authority involved the applicant, seeking a stay of the decision of the Migration Agents Registration Authority (MARA) in the Administrative Appeals Tribunal (AAT). The MARA had rejected the applicant's registration for the period in question, and the applicant argued that a stay would prolong registration under section 300 of the Act. The AAT was required to determine whether it had the power to grant a stay under the newly amended section 300 introduced by the Amending Act. The AAT referred to the amendments to section 300 and the supplementary explanatory memorandum to the Amending Act. It noted that the effect of section 300(4)(a) was that the applicant's registration as a migration agent ceased on the date the MARA made its decision. The AAT considered section 300(7) and concluded that a decision once made stands, notwithstanding that it might be the subject of a stay order. The AAT found that granting a stay order would be entirely without purpose as it would not be effective, and it might mislead the public and expose the applicant to prosecution under various sections of the Act.

The court's reasoning was based on the modern approach to statutory construction, which involves construing the relevant provision in its context so that it is consistent with the language and purpose of all provisions of the statute. The court referred to several cases that established this approach, including CIC Insurance Limited v Bankstown Football Club Limited and Project Blue Sky Inc v Australian Broadcasting Authority. The court considered the context of section 300 within Part 3 of the Act, which deals with the provision of assistance to persons in connection with applications for migration visas. The court observed that the applicant's registration had ceased on the date of the MARA's decision, and granting a stay order would not change that fact. The court concluded that granting a stay order would be ineffective and would not serve any purpose.

The AAT dismissed the applicant's application for a stay of the MARA's decision. The court found that the effect of section 300(7) was that a decision once made stands, notwithstanding that it might be the subject of a stay order. The court held that granting a stay order in these circumstances would be entirely without purpose and would not be effective. The court concluded that to grant a stay order might have the effect that the public is misled and would expose the applicant to prosecution under a number of sections of the Act. The court found that the effect of this decision might appear to be harsh; however, the legislation was cast in terms that prevented the AAT from granting a stay order that was effective.

The final orders of the AAT were that the application be dismissed and that the applicant pay the respondent's costs. The court found that the applicant's argument that a stay would have the effect of prolonging registration under section 300 of the Act was not supported by the language or purpose of the amended provision. The court held that the applicant's registration had ceased on the date of the MARA's decision, and granting a stay order would not change that fact. The court concluded that granting a stay order would be ineffective and would not serve any purpose.

Orders

Orders of the court

1. The application be dismissed; and

2. The Applicant pay the Respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JACOBSON J

On 20 February 2006, the MARA rejected the application for the period 24 May 2005 to 23 May 2006. The Decision of the AAT The applicant sought a stay of the decision of the MARA in the AAT, arguing that a stay would have the effect of prolonging registration under s 300 of the Act. The learned Deputy President referred to the decision of Tamberlin J in Shi. However, he observed that Shi was decided on the Act as it stood before the Amending Act. The question for the Deputy President was therefore whether there was power to grant a stay under the new s 300 introduced by the Amending Act. The AAT referred to the amendments to s 300 and the supplementary explanatory memorandum to the Amending Act. It noted that the effect of s 300(4)(a) was that the Applicant’s registration as a migration agent ceased on 20 February 2006 when the MARA made its decision. The AAT then considered s 300(7), stating at [17](d)] that:-“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)) stands notwithstanding that it might be the subject of a stay order.” The AAT concluded at [21] that:-“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.”The Proper Approach to Statutory Construction The modern approach to statutory construction is to construe the relevant provision in its context so that it is consistent with the language and purpose of all the provisions of the statute; see CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ). Recourse to extrinsic material, including the legislative history and explanatory material such as a Second Reading Speech is permitted; see Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 99 (Toohey, Gaudron and Gummow JJ) and at 112 (McHugh J); Isherwood v Butler Pollnow Pty Limited (1986) 6 NSWLR 363 at 387-388 (McHugh JA). Part 3 of the Act, as amended by the Amending Act Section 300 is located within Part 3 of the Act; this part deals with the provision of assistance to persons in connection with applications for migration visas. Persons must be registered as migration agents in order to give, and charge a fee for, migration assistance; see ss 280 and 281. Severe penalties are imposed for the breach of these provisions.

Ratio Decidendi

Legal Principle Established

Established by: JACOBSON J

However, on 1 July 2004, amendments contained in the Amending Act came into effect. By Item 63 in Schedule 1 of the Amending Act, s 300 was repealed and substituted with the following:“300 Automatic continuation of registrationWhen 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.”Background

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD805 OF 2006

BETWEEN:	MICHAEL SEYMOUR APPLICANT
AND:	MIGRATION AGENTS REGISTRATION AUTHORITY FIRST RESPONDENT ADMINISTRATIVE APPEALS TRIBUNAL SECOND RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	31 MAY 2006
WHERE MADE:	SYDNEY

JUDGE:	JACOBSON J
DATE:	31 MAY 2006
PLACE:	SYDNEY