|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Federal Court of Australia |
Last Updated: 15 March 2001
IMMIGRATION - migration agents - agent deregistered for non-compliance with statute - whether agent provided information to Migration Agents Review Board pursuant to s 312(2)(c) of Migration Act 1958 (Cth) where information posted but not received - whether agent paid fee to the Commonwealth in accordance with s 302(1)(b) where cheque posted but not received.
Migration Act 1958 (Cth), ss 280, 281, 286, 287, 288, 289, 296, 297, 299, 301, 302, 302(1)(b), 312, 312(2)(c), 315, 318, 319, 332.
Administrative Decisions (Judicial Review) Act 1977 (Cth).
Judiciary Act 1903 (Cth), s 39B.
Migration Legislation Amendment (Migration Agents) Act 1997 (Cth).
Migration Agents Registration (Renewal) Levy Act 1992 (Cth), s 6(2).
Acts Interpretation Act 1901 (Cth), s 28A(1)(b).
Chaff and Hay Acquisition Committee v J A Hemphill & Sons Pty Ltd [1947] HCA 20; (1947) 74 CLR 375, cited.
Church of Scientology Inc v Woodward [1980] HCA 38; (1982) 154 CLR 25, cited.
R v Duncan; Ex parte Australian Iron and Steel Pty Ltd [1983] HCA 29; (1983) 158 CLR 535, cited.
Hayman v Griffiths [1988] QB 97, considered.
Aikman v White [1986] STC 1, cited.
Regina v Kern's Motor Town Sales Ltd (1968) 68 DTC 5141, cited.
MANI SUBRAMANIAM NAIR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ORS
N 1162 of 2000
SACKVILLE, HELY & STONE JJ
SYDNEY
15 MARCH 2001
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
1. The appeal be allowed.
2. The orders made by the primary Judge be set aside and in lieu thereof the following orders made:
(i) The decision made by the third respondent on or about 5 November 1996, to deregister the appellant as a registered migration agent, be set aside.
(ii) The first and third respondents pay the appellant's costs of the appeal and of the proceedings before the primary Judge.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
JUDGES: |
SACKVILLE, HELY & STONE JJ |
DATE: |
15 MARCH 2001 |
PLACE: |
SYDNEY |
THE COURT:
THE APPEAL
1 This is an appeal against orders made by a Judge of the Court. His Honour dismissed an application by the present appellant for review of a decision made on or about 5 November 1996 by the third respondent, the Secretary of the Department of Immigration and Multicultural Affairs ("the Secretary"). The Secretary decided that the appellant had been automatically deregistered as a migration agent as from 5 November 1996, by reason of his failure to provide certain information to the Migration Agents Registration Board ("the Board"), as required by s 312(2) of the Migration Act 1958 (Cth) ("Migration Act").
2 The application seeking to set aside the decision of the Secretary was filed in this Court more than two years after that decision had been made. The sole ground ultimately relied on by the appellant before the primary Judge was that the Secretary had breached the rules of natural justice in connection with the making of the decision. The primary Judge extended the time for the filing of an application for review of the decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). His Honour pointed out, however, that as the appellant had invoked the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth), an extension of time was probably unnecessary.
3 The appeal involves two related questions of construction. The questions are:
(i) whether a migration agent has "provide[d] the Board with" certain information, within the meaning of s 312(2)(c) of the Migration Act, where the agent posts a form containing the required information to the Board, but the document is not received by the Board; and
(ii) whether a migration agent has "paid [a renewal fee] to the Commonwealth", within the meaning of s 302(1)(b) of the Migration Act, where the agent posts a cheque for the fee to the Board but the cheque is not received by the Board.
4 Both ss 302(1)(b) and 312(2) of the Migration Act were repealed by the Migration Legislation Amendment (Migration Agents) Act 1997 (Cth) ("the Migration Agents Act"), s 3, Sch 3, Part 4, items 13, 14, commencing on 21 March 1999 (see s 2(6)). Thus the questions of construction do not arise under the Migration Act in its current form. In view of the repeal and the fact that the appellant presumably could have applied to be re-registered in the meantime, the Court requested an explanation as to why the appellant's deregistration in November 1996 had any continuing practical significance. Although the appellant's counsel promised an explanation, no satisfactory explanation was forthcoming. Nonetheless, both parties appeared to accept that the questions raised in the appeal had some utility even though neither identified what it might be.
5 One procedural point should be noted. The second respondent to the appeal is the Migration Agents Registration Authority ("the Authority"). The Authority has the functions conferred on it by what is now Division 6 of Part 3 of the Migration Act. These provisions were inserted into the Migration Act by the Migration Agents Act and became operative "immediately before 21 March 1998": s 2(1). It is not clear why the Authority was joined as a party to the proceedings, as none of the transitional provisions in Part 2 of Sch 1 to the Migration Agents Act suggests that the Authority is a necessary proper party where a decision of the Secretary under s 302(1) of the Migration Act is challenged. In any event, the Authority filed a submitting appearance on the appeal. Neither the first respondent ("the Minister") nor the Secretary suggested that it was necessary to join the Board as a party to the proceedings.
THE LEGISLATION
6 The provisions of the Migration Act relevant to this appeal are those in force on 5 November 1996, the approximate date of the Secretary's decision. The following account refers to the provisions of the Migration Act as at that date.
7 Part 3 of the Migration Act enacts a regulatory scheme for migration agents. A person who is not a registered agent is prohibited from giving or receiving a fee for giving "immigration assistance": ss 280(1), 281(1). Division 3 of Part 3 provides for migration agents to be registered: s 286. The Secretary is to keep a register, to be known as the Register of Migration Agents, listing individuals who are registered as migration agents: s 287(1). An individual may apply to the Secretary to be registered as an agent: s 288(1). An applicant must meet certain qualifications (s 294(1)) and the application process provides an opportunity for any person to object to the registration of a particular applicant (s 289(1)). An applicant who qualifies for registration is registered by having his or her name entered on the register: ss 296, 297.
8 Section 299(1) provides that subject (relevantly) to s 302, the registration of a registered migration agent lasts for twelve months after the registration. When the registration of a registered migration agent is renewed, the registration continues for twelve months from the renewal: s 299(2).
9 The Migration Act establishes a scheme for renewal of registration of migration agents which involves automatic deregistration if the agent fails to perform certain acts.
"Renewal of registration300 If, at the end of a period for which a registered agent is registered, he or she is not about to be deregistered, the Board must renew his or her registration.
Notification of renewal of registration
301(1) If, one month before the end of a period for which a registered agent is registered, he or she is not about to be deregistered, the Board must notify him or her that:
(a) his or her registration will be renewed under section 300 if he or she is not deregistered; and
(b) if a renewal fee is payable on renewal - that fee will be payable to the Commonwealth.
(2) For the purposes of paragraph (1)(b), subparagraph ... 6(2)(b)(i)... of the Migration Agents Registration (Renewal) Levy Act 1992 is taken to apply to an applicant who, at the time of the renewal, proposes to give paid immigration assistance in no more than 5 immigration case during the period for which registration continues.
Automatic deregistration
302(1) The Secretary must deregister a registered agent by removing his or her name from the Register if:
(a) he or she requests the Board, in writing, to do so; or
(b) if a renewal fee was payable on the renewal of his or her registration - that fee is not paid to the Commonwealth within 2 months after the renewal; or
(c) he or she does not comply with subsection 312(2); or
(d) he or she dies.
...
Notification Obligations
312(1) ....
(2) A registered agent whose registration is renewed must, within 2 months of the renewal, provide the Board with:
...
(c) if the applicant proposes to give paid immigration assistance in no more than 5 immigration cases in the period of registration - an estimate of the extent of the applicant's proposed immigration assistance."
10 It will be seen that s 301(2) of the Migration Act refers to s 6(2)(b)(i) of the Migration Agents Registration (Renewal) Levy Act 1992 (Cth) ("the Levy Act"). This provision specifies the fee payable by a person, other than an employee, who proposes to give paid immigration assistance in no more than five cases.
11 Division 6 of Part 3 establishes the Board: s 315. The Board consists of the Secretary or his or her nominee as Chairperson, a member of the Immigration Review Tribunal and three ordinary members: ss 318, 319. The Department is to provide the Board with such accommodation, secretarial and other services as are required for the Board to perform its functions: s 332.
12 Reference was made in argument to s 28A of the Acts Interpretation Act 1901 (Cth) ("Acts Interpretation Act"). It provides as follows:
"Service of documents28A(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression `serve', `give' or `send' or any other expression is used, then, unless the contrary intention appears, the document may be served:
(a) on a natural person:
...
(b) on a body corporate - by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate."
THE FACTS
13 The following account of the facts is taken from the findings of the primary Judge. These findings were not challenged on the appeal.
14 On 19 July 1996, the appellant, who is a practising solicitor, was a registered migration agent and had been such since at least 5 September 1995. On 19 July 1996, the Board wrote to the appellant in the following terms:
"I am writing to tell you that it is now time for your registration as a migration agent to be renewed. On 5 September 1996 your registration will be automatically renewed under s300 of the Act if you are not deregistered. Although this renewal is automatic, you MUST tell the Board which of the following matters apply to you by 5 November 1996, or YOUR REGISTRATION WILL BE CANCELLED ON THAT DATE.1. If you still provide paid immigration assistance, you must pay a renewal fee. Note that you can only be exempt from paying a fee if you work for an organisation that does not charge for its services....
2. If you still provide paid immigration assistance and you intend to deal with 5 or fewer cases in the coming year, you must provide an estimate of the number of cases you intend to deal with.
3. ....
4. ....
Remember, you must tell the Board which of these matters apply to you by 5 November 1996 or your registration will be automatically cancelled on that date. Similarly, if you intend to continue charging for your services, your renewal fee must be paid to the Commonwealth by 5 November 1996 or your registration will be cancelled. ...The attached information sheet gives more details."
15 The letter contained a note in a box at the bottom of the page, as follows:
"Note: all correspondence and any fee payable should be directed to(cheques payable to):
Migration Agents Registration Board
PO Box 25, Belconnen ACT 2616."
The letter itself gave the Board's address as "PO Box 25, Belconnen, ACT, 2616."
16 The information sheet attached to the letter included the following extracts:
"FIRST AND FINAL NOTICE FOR RENEWAL OF REGISTRATION
The information requested of you in the attached letter is required under the provisions of the Migration Act 1958 and MUST be received by the Migration Agents Registration Board by the due date in order to keep your registration current.
FAILURE TO PROVIDE THE REQUIRED INFORMATION, INCLUDING THE CORRECT RENEWAL FEE IF APPLICABLE, BY THE DUE DATE WILL RESULT IN YOUR REGISTRATION BEING AUTOMATICALLY CANCELLED. THERE IS NO DISCRETION IN THIS MATTER REGARDLESS OF THE CIRCUMSTANCES.
It is recommended that you use the attached renewal form to provide the required information." (Emphasis in original.)
The information sheet stated that where an applicant estimated that he or she would deal with five cases or fewer in the coming year, the renewal fee was $110.00.
17 The renewal form attached to the Board's letter contained a printed notation as follows:
"REMEMBER - THIS INFORMATION MUST BE RECEIVED BY THE MIGRATION AGENTS REGISTRATION BOARD BY THE DATE SHOWN IN THE ATTACHED LETTER OR YOUR REGISTRATION WILL BE AUTOMATICALLY CANCELLED." (Emphasis in original.)
18 It will be seen that the Board's letter of 19 July 1996 was sent to the appellant some six weeks prior to the end of the period for which he was then registered. Both parties accepted that the letter constituted the notification required by s 301(1) of the Migration Act, notwithstanding the letter was sent six weeks rather than one month "before the end of a period for which [the agent was] registered".
19 On 19 September 1996, on the appellant's instructions, his son posted a letter addressed to the Board, at PO Box 25, Belconnen ACT 2616. The letter included the completed renewal form. The completed form indicated that the appellant intended to deal with five immigration cases in the coming year. The letter also included the appellant's cheque for $110.00 payable to the Board. (The cheque was originally made payable to the Department of Immigration and Multicultural Affairs in the sum of $560.00. Both the payee and the amount for which the cheque was drawn had been altered by hand. The primary Judge accepted the appellant's son's evidence that the cheque had been drawn on or about 19 September 1996 in order to pay the amount due by the appellant to the Board. The appellant did not give evidence.)
20 The Board did not receive the letter. Accordingly, it did not receive either the renewal form or the cheque.
21 On 21 November 1996, an officer of the "Migrations Agents Registration Secretariat" wrote to the appellant as follows:
"According to section 312(2) of the Migration Act 1958, all registered agents are obliged to provide the Board with certain information within 2 months of the renewal of their registration. Your registration was renewed on Thursday, 5 September 1996 and you were obliged to provide the information by Tuesday, 5 November 1996.Pursuant to section 302 of the Migration Act 1958, you have been automatically deregistered as a migration agent because you have not provided the Board with the information by the required date. Your deregistration was effective from Tuesday, 5 November 1996."
The appellant received this letter on 29 November 1996. There was no communication between the Secretary or the Board and the appellant between the letter of 19 July 1996 and the letter of 21 November 1996.
22 As the primary Judge pointed out, the deregistration decision in the case of the appellant was based on s 302(1)(c) of the Migration Act, namely the appellant's non-compliance with s 312(2). It was not said to have been based additionally or alternatively on s 302(1)(b) of the Migration Act, namely non-payment to the Commonwealth by the appellant of the fee for renewal of his registration.
THE PRIMARY JUDGE'S REASONING
23 The primary Judge held that the lawfulness of the Secretary's performance of the function conferred by s 302(1) of the Migration Act was conditional upon the appellant being given an opportunity to be heard before the decision was made to deregister him. His Honour also held that the Secretary had not afforded the appellant an opportunity to be heard on the question of whether he had complied with s 312(2) of the Migration Act. Accordingly, he concluded that the Secretary had breached the rules of natural justice in connection with the making of the decision to deregister the appellant.
24 Nevertheless, the primary Judge declined to grant the relief sought by the appellant. He took this course on the ground that any submissions which the appellant might have made to the Secretary could not have dissuaded the latter from deregistering the appellant. His Honour reached this conclusion for the following reasons:
* Since the appellant had not proposed to give immigration assistance in more than five immigration cases during the period of renewal of his registration, he was obliged, by virtue of s 312(2)(c) of the Migration Act, to provide the Board with an estimate of the extent of his proposed immigration assistance.
* The appellant had failed to "provide the Board with" the requisite estimate. In his Honour's view, unless the Board actually received the estimate, the appellant could not be said to have provided the Board with it. This construction of s 312(2)(c) of the Migration Act was consistent, so his Honour held, with the ordinary English meaning of the word "provide". His Honour considered that there was no reason to adopt any different construction of the word.
* It followed that no submission made by the appellant could have persuaded the Secretary not to deregister him.
25 The primary Judge also held that, on the proper construction of s 302(1)(b) of the Migration Act, the appellant had not "paid to the Commonwealth" the requisite renewal fee. His Honour construed s 302(1)(b) as requiring receipt by the Commonwealth of the amount owing. In view of the conclusion which he reached on s 312(2)(c) of the Migration Act, his Honour said that it was not necessary to deal further with the question of non-compliance with s 302(1)(b) of the Migration Act.
26 In the result, the primary Judge dismissed the appellant's application.
THE SUBMISSIONS
27 Mr Gageler SC, who appeared with Mr Lloyd for the Minister and the Secretary, did not dispute that, if the primary Judge had erred in his construction of both ss 302(1)(b) and 312(2) of the Migration Act, the appeal should be allowed and the deregistration decision of the Secretary should be set aside. Accordingly, the submissions proceeded on the basis that the only issues in dispute concerned the interpretation of the two provisions.
28 Mr Stevens QC, who appeared with Dr Churches for the appellant, contended that a registered migration agent has "provide[d]" the estimate referred to in s 312(2)(c) of the Migration Act if the agent has done all he or she can to ensure that the information is forwarded in accordance with the instructions given by the Board. According to Mr Stevens, the appellant had done that, by adopting the course strictly stipulated by the Board in its letter of 19 July 1996. The analysis was said to apply to the expression "paid to the Commonwealth" in s 302(1)(b) of the Migration Act.
29 Mr Stevens next submitted that s 28A(1)(b) of the Acts Interpretation Act created a presumption that the written estimate required by s 312(2)(b) had been duly served on the Board. He made a similar argument in relation to the payment of the fee required by s 302(1)(b) of the Migration Act. There were at least two assumptions underlying this submission. They were that the Board was a "body corporate" for the purposes of s 28A(1)(b) of the Acts Interpretation Act and that the appellant's letter of 19 September 1996 was sent by pre-paid post to "the head office, a registered office or a principal office of" the Board.
30 Finally, Mr Stevens contended that the Board had appointed Australia Post its agent to receive documents, including cheques, sent by registered migration agents seeking renewal of their registration. Accordingly, the appellant's letter of 19 September 1996 was effective to provide the Board with information and to pay the requisite fee, since the letter enclosing the renewal form and the cheque had been entrusted to the Board's duly authorised agent.
REASONING
THE ACTS INTERPRETATION ACT ARGUMENT
31 It is convenient to deal first with the appellant's argument founded on s 28A of the Acts Interpretation Act. In our view, neither of the assumptions underlying that submission (see [29] above) is sound.
32 There is nothing in the Migration Act to indicate that the Board is or was a body corporate, for the purposes of s 28A(1)(b) of the Acts Interpretation Act. In Chaff and Hay Acquisition Committee v J A Hemphill & Sons Pty Ltd [1947] HCA 20; (1947) 74 CLR 375, the High Court held that the Committee, a statutory body created under a South Australian statute, could be sued in New South Wales. While the Court acknowledged that the Committee might not have been a corporation, it was nonetheless said to be a legal entity distinct from the natural persons who constituted it: at 385, per Latham CJ; at 389-390, per Starke J; at 397, per Williams J.
33 In Church of Scientology Inc v Woodward [1980] HCA 38; (1982) 154 CLR 25, at 56, Mason J summarised the position as follows:
"[T]he authorities suggest that it is possible to incorporate a statutory body by implication or to endow it with an artificial legal personality falling short of incorporation. This may be achieved by providing that it is to own property, employ its own staff, enter into transactions, sue and be sued in its collective or corporate name. In Chaff and Hay Acquisition Committee v J A Hemphill and Sons Pty Ltd this Court held that the Committee, which did not have perpetual succession or a common seal, was not incorporated, but was nevertheless a legal entity distinct from the natural persons who composed it."
See also R v Duncan; Ex parte Australian Iron and Steel Pty Ltd [1983] HCA 29; (1983) 158 CLR 535, at 587, per Deane J.
34 There are fewer indications in the Migration Act that the Board is intended to be a body corporate than in the South Australian legislation considered in Chaff and Hay Committee v Hemphill. The Board, for example, has no express power to own property, enter into contracts or sue and be sued in its corporate name. Whether it is an entity separate from its members is not necessary to decide. Even if it does have an "artificial legal personality", it cannot be described as a body corporate for the purposes of s 28A(1)(b) of the Acts Interpretation Act.
35 The second difficulty with the appellant's reliance on s 28A(1)(b) of the Acts Interpretation Act is that the appellant's letter of 19 September 1996 was not sent "to the head office, a registered office or a principal office of [the Board]". The letter was simply addressed to a post office box number. Mr Stevens did not explain how a letter so addressed could come within the language of s 28A(1)(b). Indeed, there was no evidence before the primary Judge that the Board actually had a "head office" or "principal office" at the relevant time. This is by no means a mere oversight, since there was affidavit evidence that fees paid by migration agents or persons applying to become agents were processed by the "Migration Agents Registration Scheme Section" of the Department of Immigration and Multicultural Affairs. This evidence is consistent with the Board not having premises separate from the Department and not having anything that could be described as a "head office" or "principal office".
36 For these reasons the appellant's reliance on s 28A(1)(b) of the Acts Interpretation Act was misplaced.
THE QUESTION OF CONSTRUCTION
37 Section 312(2)(c) of the Migration Act requires a registered agent whose registration is renewed and who proposes to give paid immigration assistance in no more than five immigration cases to "provide the Board" with an estimate of his or her proposed immigration assistance. The dictionary definitions of "provide" include:
"to furnish or supply" (Macquarie Dictionary)
and
"furnish or supply with something". (Shorter Oxford English Dictionary).
38 These definitions do not unequivocally indicate that something must be received before it can be said to be provided. In Hayman v Griffiths [1988] QB 97, Mann J (with whom Walker LJ agreed) observed (at 104) that the ordinary English meaning of "furnish" (which has a dictionary meaning of "provide or supply") usually involves receipt of a thing. Depending on the context, however, "furnish" or "provide" can refer to conduct which does not involve the intended recipient of a thing actually receiving it. In Hayman v Griffiths itself it was held that, in the context of criminal proceedings under the Value Added Tax (General) Regulations 1985 (UK), taxpayers had fulfilled their statutory obligation to "furnish" a return by posting the duly completed statutory form in a prepaid and preaddressed envelope supplied for the purpose by the Commissioner of Customs and Excise. The Court held that, since the taxpayers had followed the instruction on the statutory form itself, they had furnished the return, notwithstanding that the Commissioner had never received it. The Court followed identical reasoning in a Scottish case, Aikman v White [1986] STC 1.
39 The present case is by no means on all fours with Hayman v Griffiths. Nonetheless, there are parallels. The statutory scheme created by Div 3 of Part 3 of the Migration Act specifically requires the Board to notify an agent whose registration is about to expire that, if a renewal fee is payable, the fee will be payable to the Commonwealth: s 301(1). The renewal fee must be "paid to the Commonwealth" within two months after the renewal: s 302(1)(b). Within the same period, an agent who proposes to give immigration assistance in no more than five cases during the renewed period of registration must "provide to the Board" an estimate of the extent of his or her proposed immigration assistance (s 312(2)(c)). The purpose of the latter requirement is plainly to enable the Board to verify that the appropriate fee has been paid, since the amount of the fee depends on whether or not the agent proposes at the time of renewal to give paid immigration assistance in no more than five cases: Levy Act, s 6(2).
40 Section 301(1) does not expressly require the Board to notify a registered migration agent as to the manner in which the information required by s 312(2)(c) is to be provided or the manner in which the renewal fee required by s 302(1)(b) is to be paid. Nonetheless, it is implicit in the statutory scheme that the Board will inform the agent as to these matters. As the framers of the legislation must have contemplated, it would be absurd for the Board simply to notify a registered agent that a renewal fee is payable to the Commonwealth without specifying how it is to be paid. And since the purpose of the requirement imposed by s 312(2)(c) is to enable the Board to confirm that the agent has paid the correct renewal fee, it must have been contemplated that the notification would address the manner in which the agent is to provide the requisite information.
41 These considerations support the view that the estimate required by s 312(2)(c) of the Migration Act is "provide[d] to the Board" if the agent concerned supplies the information in the manner specified in the notification given by the Board to the agent in accordance with s 301. On this view, if the Board wishes to overcome the difficulties created by the risk of documents or cheques going astray, it can advise migration agents to follow procedures that would eliminate, or at least very substantially reduce those risks. It is not difficult to think of such procedures.
42 This construction of s 312(2)(c) also receives support from the provisions governing the operations of the Board. As we have noted, the Board is not a body corporate and may or may not have a legal personality distinct from its members. More importantly, the legislation obliges the Department to provide the Board with accommodation and "secretarial and other services as are required for the Board to perform its functions": s 332. No provision is made for the Board to engage staff. It is consistent with the legislative scheme for the Board not to have its own premises and for its functions to be carried out within the Department by Departmental officers. Indeed, so far as the evidence goes, it seems that the Board's administrative functions were carried out by Departmental officers located in the Department's offices in Canberra. Unless the Board makes special arrangements, a migration agent cannot ensure that moneys or documents are received by the Board simply by delivering them to the Board's premises or collection facilities in his or her capital city or even in Canberra. The Migration Act contemplates that this will be the position.
43 In our view, the same analysis can be applied to the implicit statutory requirement that the agent pay the requisite renewal fee to the Commonwealth within two months of the renewal. The British Colombia Court of Appeal (Regina v Kern's Motor Town Sales Ltd (1968) 68 DTC 5141, at 5142, per Davey CJBC, with whom MacLean and Bull JJA agreed) has observed that:
"`Pay' may mean many things. Usually money is not paid until the debtor seeks out his creditor and puts it in the hands of the creditor, but it does not necessarily mean that; under some circumstances and some contracts, or in the course of practise adopted by the debtor and the creditor, the money may be paid as soon as it is mailed by post, properly addressed to the creditor. In that case the responsibility for its loss or delay lies not upon the shoulders of the debtor but upon the shoulders of the creditor."
The Court in that case held that the employer had met the obligation to pay to the Receiver General amounts withheld from salary on account of tax "as soon as the money is started on the course of transmission".
44 For the reasons we have given, the statutory context suggests that, for the purposes of s 302(1)(b) of the Migration Act, a renewal fee is paid to the Commonwealth if it is sent to the Board in the manner specified in the notification given by the Board in accordance with s 301. In the present case, the notification given by the Board to the appellant nominated only one method of providing the estimate required by s 312(2)(c) and of paying the renewal fee required by s 302(1)(b). All correspondence and any fee payable were to be directed to the Board at its post office box number in Canberra. Cheques were to be made payable to the Board. Not only was no alternative suggested, but no address was given for the Board other than its box office number.
45 It is true that the notice sent to the appellant emphasised that the requisite information had to be received by the Board by the due date, on pain of automatic cancellation of the appellant's registration. But this warning does not alter the fact that the only means afforded to the appellant to meet his statutory obligations was to forward the renewal form and his cheque by mail to the Board's post office box number. On the findings made by the primary Judge, the appellant followed the course nominated by the Board. The appellant therefore complied with the requirements specified or implied by ss 302(1)(b) and 312(2)(c) of the Migration Act. It follows that the Secretary erred in deregistering the appellant as a migration agent.
THE AGENCY ARGUMENT
46 In view of the conclusion we have reached on the question of statutory construction, it is not necessary to address the appellant's third submission. If, however, as a matter of construction, the Migration Act requires information or fees to be received by the Board by a certain date, it is difficult to see how conduct by the Board itself can alter the effect of the legislation.
RELIEF
47 The notice of appeal sought a variety of orders and declarations in the event that the appeal was successful. No argument was addressed as to the form of relief that might be appropriate and, in particular, why declarations should be made that the appellant was registered as a migration agent during various periods after 5 November 1996. As we noted, the appellant was invited to explain the practical significance of his challenge to a deregistration decision made over four years ago, but there was no satisfactory response to that invitation.
48 The appeal should be allowed. The orders made by the primary Judge should be set aside and in lieu thereof the following orders made:
1. The decision made by the Secretary on or about 5 November 1996, to deregister the appellant as a registered migration agent be set aside.
2. The Minister and the Secretary pay the appellant's costs of the appeal and of the proceedings before the primary Judge.
49 In the circumstances, we are not satisfied that any more extensive relief is appropriate.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville, Hely & Stone. |
Associate:
Dated: 16 March 2001
Counsel for the Applicant: |
Mr C Stevens QC with Dr S Churches |
|
|
|
Solicitor for the Applicant: |
M S Nair & Co |
|
|
|
Counsel for the Respondent: |
Mr S Gageler SC with Mr S Lloyd |
|
|
|
Solicitor for the Respondent: |
Australian Government Solicitor |
|
|
|
Date of Hearing: |
2 March 2001 |
|
|
|
Date of Judgment: |
16 March 2001 |
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FCA/2001/249.html