Ta and Migrations Agents Registration Authority
[2023] AATA 500
•27 March 2023
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.
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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 1958Migration 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 798Seymour 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 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.
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.
Ms Germov referred to the Tribunal’s recent decision in Gruszka and Migration Agents Registration Authority [2022] AATA 2128 which discussed the operation of the stay power and the effect of s 300(7). In that case, the Tribunal was dealing with a decision to suspend an agent’s registration in circumstances where the registration was still current at the time of the reviewable decision, but which would lapse shortly thereafter. At that point, the registration would only continue by reason of s 300. The Tribunal concluded s 300(7) was not a barrier to ordering a stay, notwithstanding the reasoning in Seymour and the extrinsic material referred to in the Full Court’s judgment.
Mr Brown ventured it was possible to distinguish the reasoning in Gruszka from the case before me on the basis that Gruzska related to a suspension. Section 299(2) provides that if a registration was suspended for a period, the term of the registration was extended “by a period equal to the period of suspension”. Mr Brown argued cancellation decisions were clearly in a different category precisely because s 300(7) was introduced to prevent periods of automatic extension from being further extended.
I agree it is possible to distinguish the decision in Gruszka. In that case, the automatic continuation of registration had not been engaged when the reviewable decision was made. Whatever special rules might apply to suspensions, the text of s 300(7) appears to exclude the practical possibility of an extension using the stay power in the AAT Act.
Ordering a stay in the current circumstances would have the effect of impermissibly extending – perhaps for a lengthy period – the automatic continuation of registration where it has been cancelled. I am satisfied there is no basis for me making a stay order.
The stay power
While I am not satisfied a stay can or should be ordered in light of s 300(7) of the Migration Act, I acknowledge reasonable minds might disagree on that conclusion. (I was told the decision in Gruszka was subject to appeal, so we may yet receive timely guidance from the Federal Court as to the correct approach.) Out of an abundance of caution, I will consider the stay application having regard to the material and the submissions provided by the parties. I will begin by discussing the stay power in general terms before considering its operation in this case.
Section 41(1) of the AAT Act makes clear that primary decisions come into effect according to their terms subject to the terms of that section or any other provision to the contrary. The operation or implementation of the decision is not ordinarily affected just because an aggrieved person has lodged an application for review with the Tribunal. If the applicant wants orders that stay, limit or modify the operation or implementation of the decision under review while the review proceeds, the applicant must ask for an order to that effect under s 41(2).
The stay power is made available for the purpose of securing the effectiveness of the hearing and determination of the application for review. An order can be made for this purpose if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review.
There is no presumption that a stay order will be made. The Tribunal must be satisfied an order is directed to the requisite purpose, and that it is desirable or appropriate to make such an order in the circumstances indicated by the AAT Act and having regard to:
(a) the nature of the regulatory decision under review and
(b) the objectives of the regulatory scheme which inform its exercise.
In this case, MARA was using one of its disciplinary powers found in s 303 of the Migration Act – specifically, the power to cancel Mr Ta’s registration as a migration agent. It could have decided to suspend Mr Ta’s registration instead. Alternatively, it could have cautioned him. It might also have decided against exercising any powers at all, either because it was not satisfied the allegations of misconduct were made out, or because it was not satisfied disciplinary action was warranted.
While the Migration Act does not include a compendious statement of objectives like that found in s 760A of the Corporations Act 2001, the objectives of the regulatory regime that applies to migration agents can be readily gleaned from the text of the provisions in Part 3. Those objectives include the need to protect visa applicants and the integrity of the migration system from dishonest, unethical or incompetent migration agents. (That much is evident from the cancellation power in s 303 and from the registration requirements in s 290.) There is a related objective of maintaining confidence in the integrity of the system. As the Full Court explained in its reasons in Seymour (at [16] per Tamberlin, Gyles and Stone JJ):
The scheme therefore discloses a concern to closely regulate and monitor the activity of migration agents by establishing a detailed regime in the interests of protecting the public and persons seeking immigration assistance.
Section 306 of the Migration Act says an agent is entitled to seek review of a decision made under Part 3 Div 3. That review process is part of the continuum of executive decision-making. The hearing, when it occurs, will be conducted de novo on the material before the Tribunal at the time, and having regard to submissions. The material and the submissions may ultimately be different from what the delegate considered. Having said that, I am entitled in the context of a stay application to have regard to the fact the regulator has made a decision to cancel registration, and that it has made troubling findings in the course of that decision. As Justice Downes observed in Scott (at [10]):
I think it is important to note that the regulator which has supervisory control, at any event subject to appeal to the Administrative Appeals Tribunal, over the conduct of directors and managers, has made an adverse decision and all other things being equal, the public is entitled to the protection of such a decision.
Scott concerned ASIC and the conduct of a director, but the reasoning is applicable to the regulatory function under consideration here. I will return to the reasoning in Scott below.
A stay order can stay the operation or implementation of the decision in its entirety, or it can modify or restrain an aspect of the decision. The order can also be made on conditions. In this case, Mr Ta has agreed he would accept the supervision of a registered migration agent – something that was arguably required by s 306AA of the Migration Act which referred to supervisory requirements set out in Regulation 7B of the Migration Agents Regulations 1998.
While the Tribunal is prepared to consider conditions that carefully calibrate the operation of a stay, there are limits to its willingness to do so. In Rent-to-Own (Aust) Pty Ltd and Australian Securities and Investments Commission [2011] AATA 689 (at [47]), the Tribunal cautioned against using conditions in a way that suggested “an overanxious desire to permit regulated activity wherever possible”. While that case dealt with the imposition of conditions on an Australian Credit Licence, the same reasoning applies here in a stay application. As Downes J and DP Hack explained in that case: “the central consideration remains…good regulation and good administration”.
The relevant factors
The decision in Scott provides a framework for dealing with stay applications. The six considerations referred to at [4] in that decision are not intended as an exhaustive list of matters which may be relevant, but the parties agreed it was appropriate to use Scott as a starting point for my analysis. I will deal with each point below. In doing so, I acknowledge I must keep in mind the nature of the power being exercised and the objectives evident in the Migration Act.
The prospects of success.
An obviously strong case on review will weigh in favour of the exercise of discretion, while an obviously weak case will weigh against ordering a stay. In most cases, the stay is sought at an early stage of the proceedings. It may be difficult to form a confident view about prospects. It is certainly not appropriate to conduct a mini-trial. The best that can be said in many cases is that there is an arguable case about the facts, the application of the law or the stringency of the action which might result. The applicant in this case, in his statement and in submissions lodged on his behalf, disputes some of the facts. I note he complains about the way the contents of the ‘60 Minutes’ interview were used and suggests that editing might have put him at a disadvantage. He also complains that he has not had proper access to some of the lodgement data which informed the delegate’s decision. In those circumstances, Ms Germov said the applicant had reasonable prospects of success. Mr Brown was more sanguine: he pointed out he has had the benefit of seeing the material which will shortly be provided to the applicant in the documents required under s 37 of the AAT Act. I have not seen those documents so it is difficult to gauge whether Mr Brown is right to be confident at this stage.
I am prepared to accept there is an arguable case on the facts, but it is difficult to go further at this stage. It follows this factor does not count heavily in favour of ordering a stay.
The consequence for the applicant of the refusal of a stay.
The applicant has already resigned from his former businesses but he wants the opportunity to continue earning an income by consulting to those business, and perhaps others. Although he has not provided income data or information about his personal financial position or the likely impact of the cancellation decision in the short term if he does not get the stay, it is reasonable to infer he will experience a loss of income from migration agent-related activities if the stay is not ordered. It is difficult to say more than that about the consequences.
At a more general level, the applicant is concerned about the adverse publicity which has been generated in connection with the cancellation decision. His statement appears to assume he will be able to respond to that publicity if he gets a stay order, as if an order were somehow a partial vindication of his position that should send a signal to his clients.
That is a matter of concern. While the Tribunal is required to make a rough assessment of the merits of a case, the decision to order a stay is not otherwise a comment on the decision under review and should not be presented as a vindication or early sign of the Tribunal’s attitude to the applicant’s case.
I accept the applicant will experience financial hardship if the stay is not granted. That stands to reason: the recipient of a banning order will almost always experience financial hardship (and bad publicity) if regulatory action is taken against him. The possibility of regulatory action in the public interest (and all the consequences which flow with it) is an inherent risk attaching to participation in a regulated occupation: see, generally, Administrative Appeals Tribunal v Australian Securities and Investments Commission (2009) 181 FCR 130 at [76] and Anderson and Australian Securities and Investments Commission [2022] AATA 339 at [71]. If the financial impact on an applicant were to be given undue weight in a stay hearing, the discretion would become distorted. I do not give extensive weight to this adverse consequence for the applicant.
The public interest.
The public interest is undoubtedly the most important consideration in a case like this given the objectives of the regulatory regime.
The applicant mentioned that, in effect, his former clients might be discomfited by the reviewable decision as their visa applications progress. That cannot be helped, and it is unclear why a stay would reassure them. I also accept his former businesses and, indirectly, their employees and contractors, might experience a loss of income as a consequence of the reputational damage that has been sustained. But once again, it is unclear how a stay will remedy that. The damage to those businesses presumably occurred when the media took an interest in Mr Ta’s conduct and broadcast serious allegations about him. I accept those businesses might suffer if Mr Ta is prevented from exploiting his high profile in the migrant community to attract clients to those firms through a consulting arrangement, but – given the public opprobrium he has experienced in the wake of the allegations being broadcast – it is unclear whether that will be a significant burden. I note the businesses have changed their names in the wake of the bad publicity, which rather suggests they are wary about associating with the applicant.
Those considerations apart, the respondent’s findings of fact point to a serious risk to visa applicants and to the integrity of the system. The findings include allegations of dishonesty and intentional bad behaviour in breach of the Code and the Act. That suggests there is a short-term risk to the public which should not be countenanced. I acknowledge the applicant would be required to accept supervision by an experienced migration agent if a stay were ordered, but it is unclear whether that would be enough to moderate the risk to an acceptable level. I also note Mr Ta claims he has stepped away from control of his former businesses, but it is also obvious he intends remaining engaged and will potentially continue to play a decisive role given his personality and experience.
On balance, I am satisfied the public interest considerations weigh heavily against ordering a stay.
The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.
As a general rule, the Tribunal’s decision to order a stay does not reflect on or compromise the respondent as it carries out its functions. The stay power is available to the Tribunal to ensure the efficacy of its review. That review forms part of the regulatory regime. A stay is not some extraordinary event. Having said that, there may be circumstances in a particular case where a stay order might cause difficulties for the respondent. The fact Mr Ta appears to want the stay so he can reassure his clients as if the stay were a reflection on the quality of the case brought against him is troubling. (Ms Germov assured me that was not what the applicant had in mind, but the statement suggests that may have been in contemplation.) If a stay order were presented in that way to an audience comprised of people who were not familiar with the regulatory system and who had limited English language skills, there is the potential for the regulator’s competence and efficacy to be questioned without all the facts to hand. That is undesirable given the objectives of the regulatory regime.
I am satisfied this consideration counts against ordering a stay in the circumstances of this case.
Whether the application for review would be rendered nugatory if a stay were not granted.
This consideration goes to the heart of the stay power. It directs attention to the purpose for which the stay is sought – namely, whether it is for the purpose of securing the effectiveness of the hearing and review. I must consider whether there would be some irreparable (or hard to remedy) harm that would accrue to the applicant if the status quo were not maintained, or if the review would be rendered practically pointless in the absence of a stay.
The applicant points to a loss of income and reputational damage that has already occurred, but that does not really assist. That harm has already been sustained as consequence of the bad publicity. The applicant appears to believe he could remedy some of the reputational harm and associated loss if he had the benefit of a stay, but it is unclear how that can legitimately be done. I accept he is likely to sustain ongoing financial losses if he cannot trade as a consultant to his former businesses, although it is unclear whether he has alternative sources of income.
The applicant has not demonstrated how the review would be rendered nugatory if he did not receive the benefit of a stay. He seems confident that he could contain the losses if he were favoured with a stay. If that is so, it is unclear why his reputation would not quickly recover if he were vindicated following a successful outcome to the review. Indeed, one could speculate his long term financial and reputational interest may be served by taking a low profile and concentrating on preparing his case on review. That is certainly a possibility, at any rate.
This consideration does not weigh in favour of ordering a stay. Indeed, it calls into question whether the stay power is engaged at all.
Other matters that are relevant.
The one remaining consideration that appears to be relevant is the time it might take to bring the matter on for a hearing.
Mr Brown was confident that MARA could progress the case quickly, but much depends on Mr Ta. Ms Germov candidly acknowledged she was not able to estimate how long it would take to prepare the case given the limited material before her. She noted her client would need to locate and analyse the data which the delegate relied on in his decision. Much of that material might be made available in the documents provided pursuant to s 37 of the AAT Act, but they have not yet been delivered.
In circumstances where the timetable for the proceedings remains unclear, it is difficult to assign this consideration any weight.
Conclusion
Weighed together, the considerations suggest it would be inappropriate to order a stay – even a stay on conditions. While I accept the risk to the public might be moderated if the applicant were required to act under supervision, the public interest is sufficiently grave and the allegations (particularly allegations of cynical and dishonest conduct) are such that the public is entitled to the benefit, for now, of the regulator’s decision.
47. I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe
48.
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Dated: 27 March 2023
49. Date(s) of hearing:
50. 21 March 2023
51. Counsel for the Applicant:
52. Ms Roz Germov
53. Solicitor for the Respondent:
54. Mr David Brown, AGS
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