Consideration
46 A significant part of the Tribunal's reasoning concerned the construction of s 299, as gleaned from its terms, its historical legislative evolution and the operation of s 300.
47 The relevant portion of the Tribunal's reasons in this respect is extracted as follows:
20. One difference between the sections is that the former section is expressed to be subject to s.300, whereas the current section is not. In my opinion, this case does not concern automatic continuation of registration under s.300, but rather the effect of a suspension of registration, a matter dealt with by s.299(2). Subsection (7) of s.300 has no equivalent in s.299, and s.299 says nothing about a stay.
21. The current form of s.299 makes it clear that subsection (2) will prevail over subsection (1). Therefore in the circumstances, s.299 has the effect that the registration of the applicant continues until 2025, but subject to the order for suspension, so that the suspension continues to affect the applicant unless and until the AAT or a court sets aside the suspension. The automatic continuation provisions prevent the AAT from granting a stay of a refusal by the respondent to renew the registration of the applicant, but no such refusal has occurred and the applicant has not made any such application.
48 Contrary to the reasoning of the Tribunal at T[20], there was no material difference between s 299(1) in its previous form and s 299(1) in its current form. Section 299(1), before its amendment in 2020, was in the following terms:
299 Period of registration
(1) Subject to sections 300, 302, 303, 306AG and 306AGAC and subsection (3), the registration of a registered migration agent lasts for 12 months after the registration.
(3) If the registration of a registered migration agent is suspended for a period, the current period of the agent's registration is extended by a period equal to that period of suspension.
49 Section 299 in its current form is as follows:
299 Period of registration
(1) Subject to any other provision of this Part (including subsection (2) of this section), the registration of a registered migration agent ends 12 months after the day of registration.
(2) If the registration is suspended for a period, the period of the registration is extended by a period equal to the period of suspension.
50 Whilst I accept, as the Tribunal did, that the degree to which consideration can be given to explanatory memoranda is limited, I note that the explanatory memorandum with respect to the amendments to s 299 were as follows:
93. This item repeals and substitutes section 299, which is about the period of registration as a migration agent.
94. New subsection 299(1) provides that, subject to any other provision of Part 3 of the Migration Act (including new subsection 299(2)), a registered migration agent's registration period ends 12 months after the day of registration. The wording has been updated to ensure that registration that starts at the start of a day of one of the calendar months should end immediately before the start of the corresponding day of the calendar month in 12 months' time. The definition of month in section 2G of the Acts Interpretation Act 1901 is relied upon here. For example, if a person's registration commences on 1 July 2020, their registration ends on 30 June 2021.
95. New subsection 299(2) provides that if the registration is suspended for a period, the period of the registration is extended by a period equal to the period of suspension. This reflects the current subsection 299(3), however, new subsection 299(2) is phrased more simply to assist readers. The purpose of new subsection 299(2), and of current subsection 299(3), is to ensure that if a person's registration is suspended for a period, they are still able to enjoy a full 12 month registration period. Where the MARA is satisfied that a person's conduct should result in the person's registration period ending before the full 12 month registration period is concluded, the MARA can cancel the person's registration under section 303 provided that one of the grounds mentioned in paragraphs 303(1)(d)-(h) is made out.
(Emphasis in original.)
51 A review of s 299 reveals the following. First, in its current form s 299(1) is not materially different from s 299(1) in its previous form. Previously, it referred to being subject to a number of sections, now it refers to a wider number of provisions which it is subject to, but contrary to what the Tribunal found, the current section is expressed to being subject to s 300 because it forms part of that Part. Secondly, I am of the view that s 299(2) in its current form, or s 299(3) in its former form, does not apply to this case. Section 299(2) applies in circumstances where a registration is suspended for a period. Where there is a stay of a suspension, there is no "suspension for a period". The choice of the phrase "suspension period" appears to be deliberate and different from Parliament's reference elsewhere to "suspension decision" or where the Authority "decides" to suspend: See for example ss 291A and 300. Therefore, s 299(2) does not, in the circumstances of this case, have the effect of limiting the operation of s 299(1) (the 12 month limitation on registration). Thirdly, a careful reading of s 300 does not apply in the way that the Tribunal considered that it did at T[20]. Section 300 applies in the following way.
52 Section 300 is a provision that allows for the automatic continuation of registration in certain circumstances, which appear to relate to circumstances where an agent has made a registration application, paid the registration fee, and there has been a delay in the Authority deciding the application. As a consequence, where those preconditions have been satisfied, s 300(4) applies, namely the agent's registration is deemed to continue after the expiry date until the earliest of certain dates occurring, which include of course where the Authority decides to suspend an agent's registration.
53 Section 300(2) ensures, however, that there will be no automatic continuation of registration if before the expiry date the Authority made a decision to suspend the agent's registration unless the suspension had been completed before the end of the expiry or there was a decision to the effect that the agent's registration is not suspended or cancelled: s 300(2)(b) of the Act. Of some significance, s 300(2)(b) refers in parentheses to "other than a stay order". Its effect is such that a stay order cannot have the effect of continuing the registration in the same way where there had been a decision that the agent's registration is not suspended or cancelled. What is clear from a consideration of this provision, albeit with respect to the automatic continuation of registration, rather than a suspension, is that the intention of Parliament is exactly the opposite of how Ms Gruszka urges this Court to consider the effect of stay orders on registration. Ms Gruszka is effectively, by virtue of her erroneous interpretation of s 299(2), suggesting that the effect is the opposite of what is clear from the effect of s 300(2)(b), i.e. that there is, in essence, an automatic continuation of registration despite the fact of suspension, and where there is a stay order, which is completely contrary to what is clear from the operation of s 300(2)(b).
54 Whilst I accept that the Tribunal's reading of the operation of s 299 might be open in isolation, upon a consideration of the context and purpose of the section, I do not accept ultimately it can be the preferable one. The Tribunal did not have the benefit of the assistance I have received as well as the absence of the urgency, given the Tribunal was required to consider the matter on an urgent interlocutory basis.
55 Part 3 of the Migration Act is a protective scheme, designed to ensure that only those persons registered as migration agents can provide immigration assistance for a fee. Part 3 achieves its protective purpose through registration or suspension or lack of registration. Time-limited registration achieves this purpose: Section 299(1) ensures that a migration agent's registration is time limited (for a year).
56 A review of the following aspects of the scheme reinforce the significance of the time-limited registration. The mischief to be avoided, amongst other things, is the continued registration of a migration agent in circumstances where he or she is the subject of suspension.
57 This construction (as opposed to Ms Gruszka's, as accepted by the Tribunal) avoids absurd or irrational circumstances (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297 at 321, per Mason and Wilson JJ) and better reflects the purpose of the statute: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]. I do not accept Ms Gruszka's characterisation of the Authority's submissions as to "absurdity" being in effect merits review.
58 On Ms Gruszka's construction, an agent would (potentially) benefit from an extended registration beyond the limits of s 299(1). I accept that in this case, as Ms Gruszka submits, the stay is not to effect an extension of three years but for the extension to remain in place until the Tribunal review is complete, which is for a confined period. Nonetheless, I am of the view that it cannot be accepted that s 299(2) applies in these circumstances nor has this effect. The purpose of s 299(2) is to ensure, if a person is in fact suspended, they are entitled (if/when the suspension is lifted) to enjoy what remained of their 12 month period of registration.
59 Further, Ms Gruszka contends that to adopt the Authority's construction would be to ignore the ambit of the disciplinary power in s 303 of the Migration Act, which is not limited to circumstances arising on an application for registration: see ss 303(1)(d)-(h) and 303(2) of the Act and where both ss 303(1)(a) and (b) are amenable to a stay under s 41(2) of AAT Act. I do not accept this submission. The ambit of the disciplinary power under s 303 does not support Ms Gruszka's construction when read within the context and purpose of the legislation. Section 303 concerns the disciplinary power but says nothing about registration periods nor the effect of a suspension or a stay upon the period of registration because there are other specific provisions which deal with those matters.
60 Ms Gruszka relied upon an analogy between the effect of the stay here and a stay of execution where an order restraining the enforcement of a judgment debt does not alter the status of that debt as being one that is due and payable. Similarly here, on her submission, the stay does not have the effect of altering the status of (being the character or effect of) the suspension.
61 I accept the submission of the Authority that this characterisation of a stay not altering the character or effect of the suspension does not result in the conclusion that s 299(2) applies for the duration of the stay because the practical consequences of Ms Gruszka's construction demonstrate that it cannot be the preferred construction. The Authority's construction does not suggest that the stay interferes with the statutory duration of the suspension nor that a stay alters either the character or effect of the suspension.
62 In a related way, Ms Gruszka submits if the Authority's construction is preferred then the effect of s 299(2) and the suspension itself is nullified and it cannot be Parliament's intention that a review would be rendered futile where a stay is contemplated by Part 3, Division 3 of the Migration Act. I do not accept this construction. The effect of the stay only appears to be nullified in this case by reason of the point in time (close to the expiry of the 12 month registration period) when the stay was sought.
63 In answer to that part of Ms Gruszka's submission that the effect of the stay is to maintain the efficacy of her right of review, I accept the Authority's contention that Ms Gruszka overstates the Tribunal's power under s 41(2) of the AAT Act. The Tribunal cannot, in exercising its power under s 41(2), bestow a benefit on Ms Gruszka which she is not entitled to under the Migration Act: As submitted by the Authority, which I accept, the Tribunal's power to order a stay is for the purpose of securing the effectiveness of the hearing and determination of the application for review but only so far as the source under the Migration Act allows. Section 299(2) does not apply in these circumstances. In a consistent way, the legislative design of Part 3 stipulates that for agents whose registration has been suspended - even if the suspension decision is stayed - those individuals are prevented from re-registering during the period of the suspension.
64 As the Authority acknowledged, while this construction might produce harsh outcomes (especially where the suspension period was short) it is an outcome plainly envisaged by s 291A, for which there is no evident ambiguity (dealt with further below): see Tickle Industries Pty Ltd v Hann [1974] HCA 5; 130 CLR 321 at 331 (per Barwick CJ). If Ms Gruszka's construction was preferred then I accept it would "manifestly frustrate the intention of Parliament": see Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd [1979] HCA 67; 143 CLR 499 at 509 (per Stephen J).
65 For it to be otherwise, the agent would not only benefit from elongated registration but also not be required to satisfy the requirements that Parliament has set for any agent to be registered: see ss 290-292B of the Migration Act. This is because there would not be a re-registration event triggering those provisions given the elongation of the registration.
66 Ms Gruszka's interpretation would mean that despite being suspended, the effect of the stay would be such that her registration would continue regardless of whether she complied with the continuing professional development requirements or not under s 290A (required of all other migration agents) or whether or not she had paid her registration status charge (required under s 290B), (again required of all other migrant agents). Such an outcome, rather than confronting, in fact compounds the mischief that the legislation seeks to overcome which is to ensure that migration agents are fit and proper and competent by reason of completing annual professional development.
67 Ms Gruszka's submission that where a stay is granted, s 306AA provides that the agent remains subject to the prescribed supervisory requirements in reg 7B (including supervision by another registered migration agent), provides no answer. That provision addresses, consistent with the operation of the rest of the scheme, that a person subject of a suspension (and a subsequent stay), remains the subject of supervision (despite the stay). The section says nothing about, nor is inconsistent, with the operation of the time limitation under s 299(1).
68 Furthermore, Ms Gruszka's interpretation would be entirely inconsistent in effect with other provisions under the Act which prevent re-registration of a person whose registration has been suspended. Sections 288(6A) and s 291A have this effect (extracted at [14] and [17] above). The Authority's construction is consistent with how other aspects of the registration scheme operate including how an agent who is the subject of a suspension decision loses the benefit of "automatic continuation" under s 300(4) (dealt with earlier in these reasons). In addition, the Authority cannot re-register an agent subject to a suspension decision: s 291A. Lastly, where an agent applies to the Tribunal for review of a suspension decision, the Authority cannot consider the registration application until all proceedings and any appeals resulting from the review application are finalised: s 288(6A).
69 Section 291A recognises an agent's registration ceases even where a suspension decision is stayed. Example 2 illustrates the same and is explanatory rather navigator and forms part of the Act: s 13 of the Acts Interpretation Act 1901 (Cth). This is confirmed by what is contained in the Supplementary Explanatory Memorandum to the 2003 Bill which suggests that the mischief that s 291A was introduced to address was the prospect that an agent could avoid the effect of suspension by re-registration. The relevant portions of the SE Memorandum, at [14]-[18], stated:
14. The purpose of new section 291A is to address the problem of suspensions against agents losing their effect. This is because if the registration ends, for example the agent de-registers him or herself, the suspension may no longer be effective.
15. New section 291A provides that an applicant must not be re-registered if any suspension of his or her previous registration would still be in effect if the registration had not already ended. This is to ensure that, even if a suspension of an agent's registration is not effective because the registration has ended, the MARA must not re-register the agent until the period of the suspension would have passed or the agent has met any conditions set for the lifting of the suspension.
16. For example, if an agent's registration is suspended and the agent deregisters him or herself under section 302, the suspension will end because the registration it suspends has ended. New section 291A has the effect that the agent cannot be registered until the suspension period would have ended if the agent had not been deregistered.
17. As a further example, if the MARA suspends an agent's registration, and the Administrative Appeals Tribunal (the AAT) makes a stay order enabling the agent to continue to practice until the review is finalised, then the agent's registration period may end while the stay order is in force. New subsection 288(6A) (contained in proposed amendment (3)) prevents the agent from being re-registered until the review proceedings are finalised, and new section 291A means that the agent cannot be re-registered if the decision to suspend is upheld on review, and the suspension has not been completed.
18. As a final example, if the MARA suspends an agent's registration after it has been taken to continue under section 300, new paragraph 300(4)(b) (contained in proposed amendment (8)) ends the agent's registration. New section 291A operates to prevent the agent from being re-registered whilst the suspension would have been in effect if the registration had not ended.
70 I accept that legislative history and extrinsic materials cannot displace the meaning of the statutory text nor is their examination an end in itself: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]. However, they are relevant to ascertain the mischief: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408. It is my view that this material confirms the mischief and is supportive of the Authority's construction. I do not accept Ms Gruszka's contrary submission in this regard.
71 Lastly, I do not consider that the reasoning in Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; 181 FCR 130 at [49]-[50] is of assistance in this case. In that case the Australian Securities and Investments Commission (ASIC) had argued that the Tribunal had no power under s 41(2) to make any order affecting ASIC's obligations under ss 920E(2) and 922A(1) of the Corporations Act 2001 (Cth) rather than the inability of the Tribunal's power to rise above the source of its powers under the Migration Act.
72 As to materiality, the Authority submits, which I accept, that had the Tribunal understood that Ms Gruszka's registration remained subject to s 299(1) and accordingly accepted the Authority's submission that the grant of the stay lacked utility because of the pending cessation of Ms Gruszka's registration, there is a realistic possibility that it could have decided not to have exercised its discretionary power to grant the stay: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [60].
73 For these reasons, I find that the Tribunal erred in the exercise of its discretion under s 41(2) of the AAT Act by proceeding on an erroneous construction of the legislation and will make orders that the order of the Tribunal on 23 June 2022 be quashed.
74 Finally with respect to the declarations sought, Ms Gruszka did not dispute the underlying facts giving rise to them and made no submission as to the (in)appropriateness of them being made: BMI Ltd v Federated Clerks' Union of Australia [1983] FCA 403; 76 FLR 141 at 152-153 per Keely and Beaumont JJ; Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18; 161 ALR 79 at [38]-[39]. I accept the submission of the Authority that they confirm and clarify Ms Gruszka's registration status at relevant points in time and accordingly will make them.