24 Furthermore, an applicant will not be registered if they have been refused registration as a migration agent within 12 months prior to making the application; see s 291.
25 There are further requirements relating to professional development, professional indemnity insurance, age, citizenship, and residency; see ss 290A, 292B, 293 and 294.
26 As noted earlier, registration lasts for 12 months (see s 299), though this period is subject to a number of other provisions, including s 300, which has been reproduced above.
27 Section 303 gives the MARA power to discipline registered migration agents, and in particular to cancel or suspend an agent's registration or caution that agent if satisfied that:-
"(d)the agent's application for registration was known by the agent to be false or misleading in a material particular; or
(e) the agent becomes bankrupt; or
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g) an individual related by employment to the agent is not a person of integrity; or
(h) the agent has not complied with the Code of Conduct prescribed under section 314."
28 Provision is also made in ss 305 and 305A for the publication of disciplinary decisions.
29 An application may be made to the AAT for review of a decision by the MARA: s 306. Section 306AA states that:-
"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."
30 Division 3 of Part 3 of the Act constitutes a highly regulated system of registration. It reveals an intention to ensure, so far as possible, that registered migration agents have and maintain sufficient training and good character so that they provide appropriate immigration assistance to visa applicants and persons seeking advice on migration questions.
31 Tamberlin J observed in Shi at [14] that Part 3 of the Act was introduced in 1992 with the purpose of establishing a comprehensive scheme for registration and control of migration agents. Prior to its introduction, there was no regulation of migration agents. The emphasis in Division 3, Part 3 on migration agents having sufficient training and good character, and the provisions relating to publication of disciplinary proceedings indicates a concern that the integrity of the visa scheme governed by the Act is maintained.
The Proper Construction of s 300
32 Section s 300 is to be construed in its context in light of the statutory scheme to which I have referred. It is to be borne in mind that a registered agent does not have a right to be re-registered. Applications must be made each year and the criteria for registration must be satisfied on each application.
33 It is true that s 300(1) operates so as to extend the period of registration of a registered migration agent beyond the expiry date of the agent's registration. The combined effect of ss 300(1) and (4) is that a registered agent's registration is taken to continue after the expiry date, provided that the requirements of s 300(1) (a) to (c) are satisfied.
34 However, s 300(4) makes it plain that the registration is taken to continue only until the earliest of the decisions of the MARA specified in s 300(4) (a) to (c), or the date specified in s 300(4)(d).
35 The effect of s 300(4) is that although the usual period of registration is for 12 months, it may be extended for a period of up to 10 months.
36 But it is plain from s 300(4)(a) that the statutory extension of an agent's registration ceases when the MARA decides the application in respect of the current year. If the decision is favourable to the agent, he or she is registered for the full 12 month period.
37 However, if the MARA's decision is to refuse registration, then the applicant ceases to be a registered migration agent, so long as that decision is made before the end of the 10 month extension provided for in s 300(4)(d).
38 The same consequence applies if the MARA's decision is to suspend or cancel the agent's registration; see s 300(4)(b) and (c).
39 If the MARA's decision is to refuse registration, an applicant may seek review of the decision of the AAT; see s 306. An appeal on a question of law lies to the Court from the decision of the AAT; see s 44(1) of the AAT Act. Alternatively, the decision of the AAT is amenable to judicial review.
40 It is in those circumstances that the effect of s 300(7) falls for consideration.
41 The ordinary meaning of s 300(7) follows from the opening words. It is plain that the words "(f)or the purposes of this section" apply to each type of decision referred to in s 300(1) to (6).
42 Thus, upon the proper construction of ss 300(4)(a) and (7), the statutory extension of an agent's registration ceases when the MARA decides to refuse the application for registration, even if that decision is later stayed.
43 This is the ordinary meaning of s 300(4)(a) and s 300(7). It is consistent with the scheme of Division 3 of Part 3. It is consistent, in particular, with the central role of the MARA in regulating the scheme. It achieves the dual aim of the provisions of Division 3 of Part 3, being the protection of visa applicants and maintaining the integrity of the visa scheme.
44 It may also be thought that this meaning is consistent with the title of the Amending Act, that is to say the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 (Cth).
The Extrinsic Material
45 The relevant extrinsic material gives unqualified support to the view I have expressed as to the proper construction of ss 300(4)(a) and (7).
46 The learned Deputy President set out in full at [14] of the decision of the AAT the content of the relevant paragraphs of the Supplementary Explanatory Memorandum to the Amending Act. Those paragraphs explain the provisions of s 300 and I do not propose to repeat them.
47 However, I should observe that [30], [31] and [36] of the Supplementary Explanatory Memorandum state in the plainest terms that the statutory extension continues only until the decision of the MARA, or until the other events stated in s 300(4).
48 Moreover, [41] of the Supplementary Explanatory Memorandum states that s 300(7) "makes it clear that for the purposes of s 300, the MARA is taken to have made a decision, even if it is later stayed". Reference is made, by way of example, to orders staying the operation of a suspension or cancellation.
49 Although this paragraph of the Supplementary Explanatory Memorandum refers to only two of the three types of decision referred to in s 300(4), these words can only be used as a guide to the meaning of the Act. They do not replace the statutory language; see Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 (Mason CJ, Wilson and Dawson JJ); see also R v Young (1999) 46 NSWLR 681 at [35] (Spigelman CJ).
50 In my opinion it is clear that the Supplementary Explanatory Memorandum referred to a cancellation and suspension only by way of example. It is clear that the draftsman of the document was pointing to the effect of s 300(7) in relation to all types of decisions contemplated by the section.
51 If further support be needed, it may be found in the Second Reading Speech made by Mr Gary Hargrave, the Minister for Citizenship and Multicultural Affairs.
52 The Minister said, on 24 March 2004, at Hansard p 27110, that the Amending Act, dealt inter alia, with concerns about sanctioned agents no longer being able to practice once their registration year expires. He said that such an agent will no longer be able to practice after the expiry date by making an application for review and obtaining a stay.
53 These comments, on their face, seem to be directed at agents whose registration is suspended or cancelled but the overall thrust of the speech supports the construction which I have adopted.
The applicant's submissions
54 The essence of the applicant's submission is that the opening words of s 300(7) are limited to decisions of the MARA to suspend or cancel the agent's registration.
55 However, there is simply no warrant for this approach in the plain meaning of s 300(4) or the plain words of s 300(7). The words "for the purposes of this section" mean what they say. There is nothing to suggest that they should be read down in the manner urged by the applicant.
56 The applicant submits that the AAT's decision ignores the power given to the AAT to stay decisions of the MARA pursuant to s 306AA and Regulation 7B of the Migration Agents Regulations 1998.
57 However, s306AA is not concerned with a stay of a decision refusing an application for registration which was deemed continuing by force of s 300(1) and (4). Rather, s 306AA deals with orders staying a decision under s 303 to cancel or suspend the registration of an agent who has already been registered for the current year; that is, prior to the cancellation or suspension. This was illustrated in Tanari v Migration Agents Registration Authority [2005] AATA 419 ("Tanari").
58 Section 300 lays down a different regime for deemed registration. Quite plainly, a migration agent whose application for registration in the current year is granted, is no longer deemed registered; s/he is actually registered. But the registration is treated as having taken effect at the end of the expiry date; ie from the commencement of the current year; see s 300(6).
59 Section 300(4)(b) and (c) therefore deal with the situation where the MARA decides, during the period of deemed continuation of registration (but before the grant of any application for registration), to suspend or cancel the agent's registration. The relevant regime is explained by reference to s 300(2) and (3) when read with s 300(4).
60 Section 300(2) and (3) deal with the situation where an application for registration is made before the end of the expiry day and, between the date of the application and the end of the expiry day suspension or cancellation proceedings are brought against the agent. If, between those dates the MARA makes a decision to suspend or cancel the registration, then s 300(4) does not apply to continue the agent's registration unless the conditions stated in s 300(2)(a) or (b) or s 300(a) or (b) are satisfied.
61 Section 300(4)(b) and (c) must therefore address the situation where suspension or cancellation proceedings are on foot between the date of application and the expiry day but the MARA has not made a decision on those proceedings until after the expiry day. The effect of ss 300(4)(b) and (c) is that, if the MARA then decides to suspend or cancel the registration, the deemed continuation ceases.
62 Such a decision, as with a decision taken during the deeming period to refuse an application for registration, is not amenable to an effective stay by virtue of the provisions in s 300(7).
63 This approach to the proper construction is supported by the Minister's Second Reading speech to which I referred in [51] - [52].
64 The applicant submits that the interpretation of s 300(7) which I have adopted produces an "absurd result". Mr Hurley argues that Part 3 creates a scheme where registration is paramount, is to be obtained over short periods, and decisions refusing registration are subject to merits review. The applicant submits that without the possibility of staying a decision of the MARA, the merits review system is 'useless' unless concluded within one registration year, for otherwise, an agent would not be eligible for re-registration.
65 The applicant also points to the serious consequences of the AAT's decision for the applicant. The practical effect of the decision is that he can no longer practice as a migration agent and so is deprived of the opportunity to pursue his livelihood, at least until he obtains successful merits review or successfully applies afresh for registration.
66 I do not think these consequences can be described as "absurd". It seems to me that the construction given to s 300(7) by the AAT is consistent with the purpose of the provisions and the clear wording of the section. Upon a decision to refuse registration, s 300(4)(a) is enlivened and the deeming provision in s 300(1) ceases to have the effect of continuing an agent's registration; section 300(7) evinces a clear legislative intention that even a stay cannot operate to defeat the effect of the decision.
Conclusion and Orders
67 The AAT has made no error of law, and the application must be dismissed with costs.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.