Kazacos v The Migration Agents Registration Authority

REASONS FOR RULING 1 This is an application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth)seeking to challenge a decision by the Migration Agents Registration Authority (MARA) pursuant to s 305C of the Migration Act 1958 (Cth) (the Act) contained in a letter of 15 November 2004 from the respondent to the applicant. That letter required the applicant to provide MARA with the following client details for each of his clients: the title of the client; the given name of the client; the family name of the client; the contact address of the client; the contact phone number of the client; a client reference number (if any) and any DIMIA reference number (if known) within a limited time. 2 The context in which the decision was made was that MARA was considering making a decision under s 303 of the Act to caution the applicant or suspend or cancel his registration as a Migration Agent. The applicant had been invited to make submissions pursuant to s 309(2) of the Act about that. An extension of time to respond to the notice until 18 February 2005 was granted by MARA on 1 February 2005. On 18 February 2005 an interim order was made by a judge of this Court in effect staying that decision. The matter has come on today for a continuation of the stay of the decision. 3 The applicant has filed evidence dealing with what appears to be a very confined issue. He sought leave to issue subpoenas which I have rejected. The transcript will reveal what took place in that respect. It did not seem to me that there is any live issue to which those subpoenas would properly be directed. 4 It has been submitted for MARA that the application is quite misconceived, it being based upon a misunderstanding of s 303 of the Act as the purpose of the client list is to protect the interests of clients in the event that a decision were taken to suspend or cancel registration. It would enable clients to be very smartly transferred or put in touch with another agent. My attention was drawn to the Explanatory Memorandum to the Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003 which inserted s 305C. It was further submitted that it is quite plain that a decision to take action under s 303 need not have been made prior to the service of a notice under s 305C contrary to the applicant's argument. 5 I am satisfied that there is a relevant question of construction of s 305C when linked with s 303 in these circumstances. It is not crystal clear on the face of those sections that the explanation in the Explanatory Memorandum is correct as a matter of construction of the sections as enacted. For this purpose, I have taken into account reg 7A of the Migration Agents Regulations 1998 (Cth), although that regulation cannot control the construction of the Act. If the section is not construed as contended for on behalf of MARA, consideration would need to be given as to how it could be that a blanket client list with all those particulars could be relevant in the legal sense to the decision to be made. It seems to me that there is a question for trial. 6 If there is no suspension of the decision until final hearing then there will be a continuing breach by the applicant of the law and that is an undesirable consequence. In my opinion this matter needs to have an urgent final hearing. It is not right to have proper regulatory consideration of matters interrupted unnecessarily. Furthermore, if the respondents construction of the Act is correct, then the sooner that is sorted out the better. I am prepared in principle to extend the interim position for a short period to enable an urgent final hearing to take place. The proceeding will stand over for a short period to enable arrangements to be made. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.