Ta and Migrations Agents Registration Authority - [2023] AATA 500

Ta and Migrations Agents Registration Authority [2023] AATA 500 (27 March 2023)
Division:General Division
File Number(s): 2023/0328
Re:Jack Ta
APPLICANT

AndMigrations Agents Registration Authority
RESPONDENT

DECISION
Tribunal:Deputy President Bernard J McCabe
Date:27 March 2023
Place:Melbourne

The application for orders under s 41(2) of the Administrative Appeals Tribunal Act 1975 is refused.
................................[SGD]........................................
Deputy President Bernard J McCabe, Deputy President
Catchwords
Inherent risk – Regulated occupation – Migration agents – Automatic continuation of registration
Legislation
Administrative Appeals Tribunal Act 1975
Migration Act 1958
Migration Agents Regulations 1998
Cases
Administrative Appeals Tribunal v Australian Securities and Investments Commission (2009) 181 FCR 130
Anderson and Australian Securities and Investments Commission [2022] AATA 339
Gruszka and Migration Agents Registration Authority [2022] AATA 2128
Rent-to-Own (Aust) Pty Ltd and Australian Securities and Investments Commission [2011] AATA 689
Scott and Australian Securities Investments Commission [2009] AATA 798
Seymour v Migration Agents Registration Authority [2007] FCAFC 5
REASONS FOR DECISION
Deputy President Bernard J McCabe
27 March 2023
The Migration Agents Registration Authority (MARA) decided to cancel Mr Jack Ta’s registration as a migration agent on 13 January 2023. The cancellation decision was made in the wake of a short investigation. The investigation was prompted by allegations in the media about Mr Ta’s conduct, although the delegate also had regard to some historical complaints. Mr Ta has asked the Tribunal to review the cancellation decision. The cancellation decision has already taken effect, and Mr Ta is unable to work as a migration agent while the review proceeds. He has therefore asked the Tribunal to make an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) that would stay the cancellation decision until the final hearing and determination of the review.
MARA, the respondent, opposes the application for a stay. It does so for two reasons. First, it says the application is futile for technical reasons arising out of the interpretation of s 300 of the Migration Act 1958. The technical argument relies on the reasons of the Full Federal Court in Seymour v Migration Agents Registration Authority [2007] FCAFC 5. In essence, MARA says Mr Ta’s registration would ordinarily have lapsed at the end of 2021 but it continued in effect because of s 300. Having been extended by the operation of that section, the registration could not be further extended by a stay. Second, MARA says it would not be desirable to make an order under s 41(2) of the AAT Act having regard to the considerations referred to in Scott and Australian Securities Investments Commission [2009] AATA 798.
I have decided against making the orders Mr Ta seeks under s 41(2) of the AAT Act. That means the decision remains in effect pending the outcome of the review. I explain my reasons for that decision below.
The reviewable decision
The cancellation decision was made by a delegate on 13 January 2023. The decision is lengthy and detailed. It refers to allegations that…

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 Ta and Migrations Agents Registration Authority

Details

AGLC: Ta and Migrations Agents Registration Authority [2023] AATA 500
Case: [2023] AATA 500
Decision Date: 27 March 2023

CaseChat Overview and Summary

This matter concerned an application by Mr Ta for a stay of a decision made by a delegate of the Migration Agents Registration Authority (MARA) to cancel his registration as a migration agent. The cancellation decision, made on 13 January 2023, was based on findings that Mr Ta had undermined migration law by submitting unmeritorious visa applications, repeatedly failed to comply with disclosure obligations under section 312A of the *Migration Act 1958* (Cth), and breached the Code of Conduct for migration agents. The delegate also found Mr Ta was not a person of integrity or a fit and proper person to provide immigration assistance. Mr Ta sought a stay of this cancellation decision under section 41(2) of the *Administrative Appeals Tribunal Act 1975* (Cth).

The central legal issue before the Tribunal was whether it had the power to grant a stay of the cancellation decision, particularly in circumstances where Mr Ta's registration had been automatically continued under section 300(4) of the *Migration Act* pending the renewal of his registration for 2023. MARA contended that section 300(7) of the *Migration Act*, which states that the Authority is taken to have made a decision even if it is later stayed, prevented a stay from having any practical effect in this situation. Mr Ta's counsel argued that section 306AA of the *Migration Act* contemplated the possibility of stays of disciplinary actions, including cancellations, and that there was no reason why such a stay could not be granted even if the agent was operating under an extended registration.

Deputy President Bernard J McCabe P considered the legislative history and the plain language of section 300(7) of the *Migration Act*, as interpreted by the Full Court in *Seymour*. The Tribunal found that the purpose of section 300(7) was to prevent the undue extension of a migration agent's registration after an adverse decision had been made by the Authority. Consequently, the Tribunal concluded that granting a stay of the cancellation decision would be futile, as it would not alter the fact that a decision to cease Mr Ta's registration had been made.

Accordingly, the Tribunal decided against making the orders sought by Mr Ta under section 41(2) of the *Administrative Appeals Tribunal Act*. This meant that the delegate's decision to cancel Mr Ta's registration remained in effect pending the final outcome of the review.

Orders

Orders of the court

Full text does not contain this section.

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

I have decided against making the orders Mr Ta seeks under s 41(2) of the AAT Act. That means the decision remains in effect pending the outcome of the review. I explain my reasons for that decision below.The reviewable decision The cancellation decision was made by a delegate on 13 January 2023. The decision is lengthy and detailed. It refers to allegations that Mr Ta “undermined the migration law by submitting unmeritorious visa applications”. The delegate concluded the applicant had repeatedly failed to comply with s 312A of the Migration Act which obliges migration agents to disclose when they provide assistance to a visa applicant. The delegate also concluded there were numerous failures to comply with the Code of Conduct which regulates migration agents. The delegate also found Mr Ta was not a person of integrity or was not otherwise a fit and proper person to give immigration assistance within the meaning of s 303(1)(f). The delegate noted s 292 of the Migration Act says a person whose registration was cancelled is not able to be re-registered as a migration agent for five years from the date of cancellation.The argument about the operation of s 300 of the Migration Act MARA points out the applicant’s registration for the 2023 year had not been renewed when it made the cancellation decision. Mr Ta had applied for that renewal in a timely way but he had not received approval when his 2022 registration came to an end on 22 December 2022. He was able to continue in practice after that date because s 300(4) of the Migration Act provided for an automatic continuation of registration from the previous year in certain circumstances until:(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. The decision to cancel the applicant’s registration on 13 January 2023 terminated Mr Ta’s automatic continuation of registration: that much is agreed. Mr Ta says the Tribunal can order a stay of that decision under s 41(2) of the AAT Act. His counsel, Ms Germov, points out s 306AA of the Migration Act says:If the Administrative Appeals Tribunal or a court orders a stay of a decision under section 303 to cancel or suspend a registered migration agent's registration, it is taken to be a condition of the order that the prescribed supervisory requirements apply in relation to the agent during the period of the order. Ms Germov says that sub-section plainly contemplates the possibility of a stay of disciplinary action under s 303, albeit that the stay was necessarily subject to conditions provided for in the regulations. She added there was no reason to think a stay could not be made in relation to a cancellation decision that was made in circumstances where the agent was operating under registration that had been extended pursuant to s 300(4). MARA says the effect of s 300(7) needs to be considered. That subsection provides: (7) For the purposes of this section, the Authority is taken to have made a decision even if the decision is later stayed.

Ratio Decidendi

Legal Principle Established

The delegate noted s 292 of the Migration Act says a person whose registration was cancelled is not able to be re-registered as a migration agent for five years from the date of cancellation.The argument about the operation of s 300 of the Migration Act MARA points out the applicant’s registration for the 2023 year had not been renewed when it made the cancellation decision. Mr Ta had applied for that renewal in a timely way but he had not received approval when his 2022 registration came to an end on 22 December 2022. He was able to continue in practice after that date because s 300(4) of the Migration Act provided for an automatic continuation of registration from the previous year in certain circumstances until:(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. The decision to cancel the applicant’s registration on 13 January 2023 terminated Mr Ta’s automatic continuation of registration: that much is agreed. Mr Ta says the Tribunal can order a stay of that decision under s 41(2) of the AAT Act. His counsel, Ms Germov, points out s 306AA of the Migration Act says:If the Administrative Appeals Tribunal or a court orders a stay of a decision under section 303 to cancel or suspend a registered migration agent's registration, it is taken to be a condition of the order that the prescribed supervisory requirements apply in relation to the agent during the period of the order. Ms Germov says that sub-section plainly contemplates the possibility of a stay of disciplinary action under s 303, albeit that the stay was necessarily subject to conditions provided for in the regulations. She added there was no reason to think a stay could not be made in relation to a cancellation decision that was made in circumstances where the agent was operating under registration that had been extended pursuant to s 300(4). MARA says the effect of s 300(7) needs to be considered. That subsection provides: (7) For the purposes of this section, the Authority is taken to have made a decision even if the decision is later stayed. Mr Brown, who appeared for MARA, argued the effect of s 300(7) was to limit the ability of an agent who was already operating in ‘extra time’ pursuant to s 300(4) from obtaining further extensions through the mechanism of the Tribunal’s stay power. In written submissions, he explained:…once the cancellation decision was made by the respondent on 13 January 2023, paragraph 300(4)(c) read with sub-section 300(7) meant that a decision had been made by the respondent ceasing the applicant’s registration as a migration agent, and a stay decision could not change the fact he was no longer a registered migration agent. Mr Brown relied on the Full Court’s decision in Seymour. In Seymour, the Full Court referred to (a) the supplementary explanatory memorandum which accompanied the amending legislation which introduced s 300(7) in its current form and (b) the minister’s second reading speech before explaining (at [27]-[30]):27. 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.28. Paragraph 41 of the Supplementary Explanatory Memorandum as extracted above reinforces the conclusion that the purpose of the amendment was to ensure that the registration of a migration agent would not be unduly extended pending review of a decision, and that the provisions are directed to limit the extent of the automatic continuance of registration beyond the last day of the relevant period.29. The specific language used in s 300 points to the same conclusion. In its terms, s 300(7) applies to every subsection of s 300, and is not limited to particular subsections such as those referring to suspension or cancellation. It applies equally to other subsections as to ss 300(4) and (5).30. Mr Seymour points to the hardship an agent would suffer as a consequence of this interpretation, but it must be borne in mind that the legislation is designed to protect the public interest as expressed in the extrinsic material, and is directed specifically to address what is perceived as the undue continuation of deemed registration after the Authority has made a decision adverse to a particular migration agent.