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[2003] FCA 1394
Federal Court of Australia
2003-12-02
Handley DP, Whitlam J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an application for an order under s 44A(2) of the Administrative Appeals Tribunal Act 1975 ('the AAT Act'). In the decision under appeal the Administrative Appeals Tribunal ('the Tribunal') affirmed a decision by the Migration Agents Registration Authority ('the Authority') refusing a registration application under Pt 3 of the Migration Act 1958 ('the Act'). 2 The applicant was a migration agent whose registration was due to end on 7 January 2003. On 10 December 2002 he applied to be registered again. Since the Authority did not decide this application before the end of 7 January 2003, the applicant's registration continued automatically past that date by virtue of s 300 of the Act. 3 On 9 January 2003 the Authority gave the applicant notice that it was considering refusing his application because s 294 of the Act may prohibit his registration. The applicant claimed to meet the requirement of s 294(b) that he be 'an Australian permanent resident (within the meaning of the regulations)'. The Authority raised with him its concern that that specification meant that he must be 'usually resident in Australia' and pointed out that its investigations revealed that 'as at 11 December 2002… you had only been in Australia for a total of 171 days in the last 5 years, or approximately 5.7 months in the last 60 months'. The applicant made submissions on this matter to the Authority, but on 8 May 2003 it decided to not register the applicant. The Authority gave the applicant notice of its decision by letter dated 21 May 2003. 4 The application to the Tribunal for review of the Authority's decision was lodged on 6 June 2003. The applicant also sought an order under s 41(2) of the AAT Act. On 1 July 2003 a presidential member (Handley DP) made such an order in the following terms:
'The operation or implementation of the decision of the Migration Agents Registration Authority made on 21 [sic] May 2003 be stayed until 31 October 2003 being seven days before the end of 10 months after the expiry date, for the purposes of subsection 300(2) of the Migration Act 1958.'
The application for review was heard and determined on 10 October 2003. The Tribunal affirmed the Authority's decision.
5 Section 43(5C) of the AAT Act provides: '… if: (a) the Tribunal has made an order under subsection 41(2) staying the operation or implementation of the decision under review; and (b) the order was in force immediately before the decision given by the Tribunal on the review; then, unless the Tribunal, the Federal Court of Australia or the Federal Magistrates Court otherwise orders, the operation or implementation of the Tribunal's decision is stayed until: (c) subject to paragraph (d), the end of the period within which a party to the proceeding before the Tribunal may appeal from the decision to the Federal Court of Australia under subsection 44(1) (including any further time for bringing the appeal that is allowed by the Federal Court before the end of that period); or (d) if such an appeal is brought - the appeal is determined.'
This provision was not addressed by the parties on the hearing of the present motion. Although the order reproduced at [4] above stayed the operation or implementation of the Authority's decision only until 31 October 2003, it was, as s 43(5C)(b) provides, 'in force immediately before the decision given by the Tribunal on the review'. Accordingly, since the Tribunal did not 'otherwise' order, the operation or implementation of the Tribunal's decision is currently stayed. 6 The evidence used on the present application consisted, in the main, of the documents received in evidence by the Tribunal. The nub of the applicant's predicament is very simple. His work as a migration agent was carried out for a company located in Sydney, of which he is a director, and for a Chinese law firm in Beijing, of which he is a partner. However, although he is a Chinese national who holds a permanent visa permitting him to remain in Australia indefinitely, the applicant spends most of his time in Beijing. His wife and infant child are Australian citizens. They live in Sydney in a strata unit owned by the applicant. In an affidavit supporting his present motion, the applicant says that his work as a migration agent generated most of his income. 7 In Shi v Migration Institute of Australia Ltd [2003] FCA 1304 Tamberlin J held that an order under s 41(2) of the AAT Act may stay a decision of the Authority refusing an application to be registered as a migration agent. The solicitor for the Authority accepts that the Court would have the same power in a pending appeal under s 44A(2)(b) of the AAT Act. 8 The question of law raised on this appeal is the correct construction of the phrase 'usually resident' in the statutory definition of 'Australian permanent resident'. The Authority's solicitor does not submit that the construction contended for by the applicant is unarguable. However, the Authority opposes a stay of the decision not to register the applicant. On the other hand, the applicant's solicitor emphasizes that there is no question of any lack of integrity on the part of his client and that his livelihood depends to a large extent on income from his work as a migration agent. To this submission the Authority's solicitor responds that the applicant has survived other periods of non-registration and that a stay is not necessary to prevent the appeal, if successful, from being nugatory. 9 In all of the circumstances I think that a stay of the Authority's decision should also be granted. The Tribunal's decision will remain stayed by operation of s 43(5C) of the AAT Act. If the Tribunal's decision is eventually affirmed when this appeal is determined, s 300(2) of the Act will ultimately have no effect. In the meantime, the parties might be wise to treat the applicant as having been registered at the end of 7 January 2003. That would appear to be the temporary effect of the stays. The costs of the present motion should be each party's costs in the appeal. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.
Solicitor for the applicant: Brett Slater
Solicitor for the Migration Agents Registration Authority: Elizabeth Warner of the Australian Government Solicitor
Dates of hearing: 12 and 28 November 2003
Date of judgment: 2 December 2003
Wang
Administrative Appeals Tribunal