Shi v Migration Institute of Australia Ltd

THE MIGRATION ACT 14 Part 3 of the Migration Act deals with migration agents and immigration assistance. It was introduced in 1992 by way of amendment to the Migration Act, and had the purpose of establishing a comprehensive scheme for the registration and control of migration agents. Before the introduction of that Part, there had been no regulation of migration agents, and their actions were not subject to control by legislation. The Migration Act established the MARA, and empowered it to issue warnings, to suspend, to de-register and to refuse applications for registration. It set out the obligations of registered agents and made provision for a code of conduct to be formulated and prescribed. Division 2 of that Part prohibited persons who were not registered from giving immigration assistance as defined. Further restrictions followed, prohibiting unregistered persons form charging fees for immigration assistance or representations: see s 280. A number of other restrictions were imposed on unregistered persons. 15 Prior to the enactment of Part 3, persons who gave immigration assistance for fees and were unregulated, except for the general law. They were the subject of transitional provisions included in the 1992 legislation. These provisions were intended to ensure a relatively quick transition for existing agents from an uncontrolled to a regulated framework. Under s 288, an individual could apply to the MARA to be registered as a registered agent. This provision applies both to individuals who were registered and seek renewal, and to new or original applicants who had not previously been registered. Applications for renewal do not require publication, unlike applications for original registration. 16 Section 309 of the Migration Act requires that the MARA must inform the applicant, where proposals to refuse a registration application, and to invite the applicant to make a further submission in support of the application. A renewal application which has been granted, or has been automatically continued under s 300, is in force for a twelve month period unless shortened by de-registration or cancellation, or extended as the result of a suspension. Under s 306, an application may be made to the AAT for review of a decision by the MARA made under the Migration Act.

application for stay - s 41(2) of the AAT Act 17 The MARA submits that because the AAT is only empowered to stay a decision, or to modify its operation or implementation, the power can only operate on a decision that has some "operation", or requires some "implementation", which is capable of being stayed or otherwise affected. The purpose of such an order is to secure the effectiveness of the AAT hearing and review of the decision. Therefore, it is not enough that an applicant is inconvenienced by the decision under review. Some reason must be shown as to why it is that the fact that the decision has effect pending the outcome of review would compromise the AAT in the performance of its review function. These considerations, it is said, indicate that the power conferred by s 41(2) of the AAT Act is essentially negative. The dispute, it is submitted, in substance, turns on whether, by its decision, the MARA has cancelled the applicant's existing registration, or has merely refused to register him for a further term. In the former case, it is conceded that there is power to grant a stay. In the latter case of refusal to re-register, it is contended that a stay cannot be granted because there is no operation or implementation to stay or affect. This is simply expiry by lapse of time. 18 The MARA submits that at the end of an agent's period of registration, if there is an application for re-registration and a decision is made to refuse the application, then the MARA has done nothing to enliven s 41(2) of the AAT Act. 19 It is important to note that actual or deemed registration is necessary if an agent is to continue to be permitted to act as a migration agent, because each grant is only for a twelve month period. Registration will automatically end unless an application is made in proper form, and accompanied by the necessary fee, before the end of the period. Where there is a deemed grant, the Migration Act treats the registration as the equivalent of an actual grant of registration immediately after the expiry date. It is submitted that there is no relevant difference under the Migration Act between an initial application for registration and an application for a further term, because in both cases a registration application must be filed and assessed in the same manner as an original application. Accordingly, both the original application and an application for renewal are to be assessed in the same manner. Where a re- registration application is refused by the MARA, the decision is not a cancellation. There is nothing to cancel. The expiry period simply runs out without any intervention. It is not a decision to take away a statutory status but a decision not to grant that status and therefore cannot be stayed under s 41 of the AAT Act. A decision not to grant an application needs implementation and has no positive operation. 20 In support of its application, the MARA submits that the decision in Re Alexander and Migrations Agents Registration Board (1995) 40 ALD 99 ("Alexander") is applicable to the present case, and that it was correctly decided. 21 In that case, AAT Deputy President McMahon held that the power contained in s 41(2) of the AAT Act is not positive in its effect, but only negative. The content of the power is limited by its legislative intention, which is to preserve the situation prior to making the reviewable decision, and it is not intended to put the applicant in a different position to that in which he or she would have been placed, prior to the reviewable decision. 22 The relevant facts in Alexander were that the applicant applied for registration as a migration agent after Part 3 of the Migration Act, requiring registration, came into effect in 1992. Complaints against the applicant had been lodged with the MARA, and proceedings had been commenced seeking damages from the applicant. The MARA considered the application and refused it. The applicant then sought review by the AAT. The letter advising of the refusal stated that the Board had directed that the applicant should not seek to hold himself out as available to give immigration assistance. At the same time, the applicant made an application seeking a stay of the refusal to register, and sought a direction suspending the implementation of the decision to give the direction to cease to hold himself out as being available to give immigration assistance. The issue before the AAT was whether it had the power to stay the operation of the decision to refuse registration. 23 In the course of his reasons for decision, Deputy President McMahon said: "(20) The question, therefore, is whether this tribunal has power to stay or otherwise affect the operation of the decision to refuse registration. In my opinion it does not. (21) The power is given to enable the tribunal to preserve the status quo, so as to ensure that a continuum which is broken by a reviewable decision may be reinstated in order to secure the ultimate effectiveness of the hearing. Here there is no such continuum. (22) Prior to the operative decision, the applicant was not registered under Pt 3. After the operative decision, he continued to be unregistered under Pt 3. What the applicant really seeks is to have this tribunal substitute, as a temporary decision, an order granting him registration under Pt 3 without investigation of the merits. In my view this tribunal has no such power. (23) In those cases, where the s 41(2) power has been exercised (either by the tribunal or by a court on appeal) it has been the purpose of reinstating the applicant to the position he or she was in prior to the making of the operative decision. Thus, in Re Dekanic and Tax Agents Board of NSW (1982) 6 ALD 240 and Re Nelson and Tax Agents Board of Queensland (1993) 30 ALD 317, the operative decision was to refuse renewal of registration as a tax agent. Similarly in Yolbir v Administrative Appeals Tribunal (1994) 33 ALD 8 (a decision of a full court of the Federal Court) and in Re Secretary, Department of Social Security and Guner (1990) 21 ALD 399 the reviewable decision had the effect of terminating an ongoing pattern of payment of pension. (24) I am not aware of any exercise of the power under s 41(2) in relation to an original decision for registration in any professional context. I referred to this in Re Gowing and Civil Aviation Authority (1990) 22 ALD 207 at 209 and I adhere to the views I there expressed. Section 41(2) is not positive in its effects but merely negative. The content of the power is limited by its legislative intendment. It is intended to preserve the situation obtaining prior to the reviewable decision. It is not intended to change the situation entirely and put the applicant in a different position from what he would have been in prior to the reviewable decision. It is not intended, in the present circumstances, to enable this tribunal to grant registration, much less to declare that the applicant's rights under the transitional provisions (which have long since expired) should somehow be revived. If the latter proposition was acceded to, it would mean that the applicant would for the indefinite future be entitled to ignore all the regulatory provisions of the new legislation and to claim an immunity for professional acts which is not available to other registered persons." 24 In terms, the power conferred by s 41(2) of the AAT Act is to: "… make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates … for the purpose of securing the effectiveness of the hearing and determination of the application for review." (Emphasis added) 25 The subsection is framed in broad general terms, and by reference to a specific purpose. It should be given a liberal interpretation: see Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246 at 249. The power is to make an order which stays or otherwise affects the operation or implementation of a decision. 26 The question is whether an order for a stay in the present case is in respect of the operation or implementation of the decision not to renew the existing registration. Prior to the refusal to renew, the position was that the agent's registration was taken to continue pursuant to s 300(1) of the Migration Act. This deeming provision is a statutory fiction (see, for example, Ex parte Walton; In re Levy (1881) 17 Ch D 746 at 756 per James LJ), but it requires that the agent must be treated as if he or she were registered. In substance, this means that the agent must be taken to have the same rights as if he or she were registered up to the time of the making of the decision not to renew. Accordingly, the prohibition in s 280 of the Migration Act, which prevents a registered agent from giving immigration assistance, would not apply to him or her. After a decision not to renew is made, the direct legal effect of the decision is that the deemed registration is terminated. That is because the deemed registration is taken to continue only until the MARA decides the application for renewal. Accordingly, in substance, and as a direct consequence of the MARA decision, there has been a termination of the rights of the agent enlivened by the deemed registration. This is quite different from ceasing to have effect a statutory expiry as a consequence of the lapse of time. Accordingly, the decision not to renew has an operation which is capable of being stayed pursuant to s 41(2) of the AAT Act. It is the cessation of the deemed right to be treated as if he were registered as a consequence of the decision not to renew that is the subject of the stay. The "operation" of the decision is the legal impact on the right of Mr Shi to be taken to continue as a registered agent. This is terminated by the decision. Therefore, both as a matter of language, and construing s 41(2) in the light of its purpose, the decision not to renew is capable of being stayed. A stay is therefore within the power of the AAT under s 41(2) of the AAT Act. 27 The decision in Alexander is distinguishable from the present case because the circumstances in that case concerned a situation where the applicant had not previously been registered. There was no deeming of the applicant to have been registered which was terminated or affected by the decision. This is an important difference. There was a transitional provision in that case, which provided that if an original applicant made an application within a three month period, then that part of the Act dealing with migration agents and immigration assistance would not apply. In my opinion, such a transitional provision is significantly different from the deeming right conferred in the present case, which is a right to be treated as if registered under s 300 of the Migration Act. The latter is an affirmative or positive entitlement as opposed to an immunity from the requirement to be registered. In the latter case of an immunity from the requirement the Migration Act simply does not apply. 28 Using the language of Deputy President McMahon, the effect of the decision not to renew in circumstances where a person is taken to have been registered, is to break the "continuum" by a reviewable decision. It is evident that if a decision favourable to an applicant is made by the AAT in relation to the application to renew, then the agent in this case will have been wrongfully deprived of the opportunity to earn his livelihood from that time up to the time of the favourable determination. There may also be damage to his practice and reputation. There is no provision for recovery of this loss or for any disruption to the practice, or loss of reputation or goodwill. A favourable decision to the applicant by the AAT would also mean that the applicant had been wrongfully refused registration and these are important considerations: see the remarks of Davies J in Re Dekanic & Tax Agents Board of New South Wales (1982) 6 ALD 240 at 242-243. These observations were applied in Re Nelson & Tax Agents Board Queensland (1993) 30 ALD 317. 29 If the applicant in the present case is not granted a stay, the effectiveness of the hearing and determination of the application for review will be diminished. 30 In summary, I consider that s 41(2) of the AAT Act must be given a broad interpretation. I am of opinion that the circumstances giving rise to the decision in Alexander are distinguishable in important respects from the present case. Alternatively, I am of the view that the decision of the AAT in relation to its power to grant a stay in the present case was wrongly decided. I note that the decision-maker has formed the view that it is appropriate a stay be granted if the correct legal position is that he has power to grant a stay. 31 Having regard to the way in which the MARA decision to refuse renewal operates, there is no need to make a mandatory order which requires the MARA to re-register Mr Shi as a migration agent, pending the determination of his appeal to the AAT. This is because if the stay is granted he must be taken to continue to be registered, regardless of whether he is in fact on the register. Therefore I do not make such a mandatory order. 32 At this point in the proceedings, because the question of the power of the AAT to grant a stay was the only matter agitated before me, the appropriate course is to publish my reasons and invite the parties to bring in Short Minutes as to the form of appropriate draft orders and to seek orders as to the future conduct of the matter. The draft Orders should deal with the question of costs. If there is any dispute on these matters, I will hear argument. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate: Dated: 14 November 2003 Counsel for the Applicant: M B Smith N Poynder

Solicitor for the Applicant: Kessels Goddard

Counsel for the First Respondent: G R Kennett

Solicitor for the First and Second Respondents: Australian Government Solicitor

Date of Hearing: 4 November 2003

Date of Judgment: 14 November 2003