Seymour v Migration Agents Registration Authority [2007] FCAFC 5 (2 February 2007)

Last Updated: 2 February 2007

FEDERAL COURT OF AUSTRALIA

Seymour v Migration Agents Registration Authority [2007] FCAFC 5

ADMINISTRATIVE LAW – appeal from primary judge dismissing application for review of Tribunal decision – Tribunal dismissed application for a stay of the Authority’s decision disallowing the appellant’s re-registration as a migration agent – Tribunal held that amended form of s 300 prevented the Tribunal from granting an effective stay order – interpretation of s 300 as amended – purpose of legislation – use of extrinsic materials such as explanatory memoranda in statutory interpretation – no error found in decision of Tribunal or primary judge – appeal dismissed.

Migration Act 1958 (Cth), s 300, Part 3
Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth), s 41(2)
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 13
Judiciary Act 1903 (Cth), s 39B
Acts Interpretation Act 1901 (Cth), s 15AB

Seymour v Migration Agents Registration Authority [2006] FCA 649, upheld
Seymour v Migration Agents Registration Authority [2006] FCA 965, referred to
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, followed
Amin v MARA [2003] AATA 1095, referred to
Maarbani v Migration Agents Registration Authority [2003] AATA 1109, referred to

Supplementary Explanatory Memorandum, Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2004 (Cth)












MICHAEL SEYMOUR v MIGRATION AGENTS REGISTRATION AUTHORITY AND THE ADMINISTRATIVE APPEALS TRIBUNAL (CONSTITUTED BY DEPUTY PRESIDENT BLOCK)
NSD 1067 OF 2006

TAMBERLIN, GYLES & STONE JJ
2 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1067 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MICHAEL SEYMOUR Appellant
AND:	MIGRATION AGENTS REGISTRATION AUTHORITY First Respondent THE ADMINISTRATIVE APPEALS TRIBUNAL (CONSTITUTED BY DEPUTY PRESIDENT BLOCK) Second Respondent

JUDGES:	TAMBERLIN, GYLES AND STONE JJ
DATE OF ORDER:	2 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

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	NSD 1067 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MICHAEL SEYMOUR Appellant
AND:	MIGRATION AGENTS REGISTRATION AUTHORITY First Respondent THE ADMINISTRATIVE APPEALS TRIBUNAL (CONSTITUTED BY DEPUTY PRESIDENT BLOCK) Second Respondent

JUDGES:	TAMBERLIN, GYLES AND STONE JJ
DATE:	2 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from the judgment of Jacobson J handed down on 31 May 2006 which dismissed an application by Mr Seymour for review of a decision of the Administrative Appeals Tribunal ("the Tribunal"): Seymour v Migration Agents Registration Authority [2006] FCA 649. On 27 April 2006, the Tribunal dismissed an application by Mr Seymour for a stay of a decision made by the Migration Agents Registration Authority ("the Authority") on 20 February 2006. On this date, the Authority decided to refuse an application by Mr Seymour for re-registration as a migration agent for the 12 month period from 24 May 2005 to 23 May 2006.

2 Section 300 of the Migration Act 1958 (Cth) ("the Act") provides for the automatic continuance of the registration of a migration agent if the requirements of that section are satisfied. The provisions relating to automatic continuation have been amended in the form of a new s 300 that was introduced by the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 (Cth) ("the Amending Act").

3 The central issue in this appeal is whether, having regard to the provisions of s 300(4) and (7) of the Act as introduced by the Amending Act, any application made to the Tribunal to stay the decision of the Authority pending its determination of an appeal should be refused on the basis that such an order would be futile and ineffective.

4 This question arises because in its decision of 27 April 2006, the Tribunal refused to grant a stay under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") on the ground that the amended form of s 300 prevented the Tribunal from granting a stay order that would be effective.

THE STATUTORY FRAMEWORK

5 Before the Amendments of 1 July 2006, s 300 of the Act provided that:

‘300 Automatic continuation of registration
(1) If:

(a) before the end of the last day (the expiry day) of the period of registration of a registered agent, the agent has made a registration application; and
(b) the agent has paid the registration application fee (if any) in respect of the application; and
(c) the Migration Agents Registration Authority has not decided the application before the end of the expiry day;

the agent’s registration is taken to continue until the Authority decides the application.

(2) Application granted if no decision within a certain period

However, if the Authority has not decided the registration application before the end of the period of 10 months beginning on the day after the expiry day, the application is taken to have been granted at the end of that period.

(3) When registration takes effect

If the Authority grants the registration application, or the registration application is taken to have been granted under subsection (2), the registration is treated as having taken effect at the end of the expiry day.’

6 On 1 July 2004, by Item 63 in Schedule 1 of the Amending Act, s 300 was repealed and substituted with a new s 300 that provided:

‘300 Automatic continuation of registration

When agent’s registration is automatically continued

(1) Subsection (4) applies to continue a registered migration agent’s registration beyond the last day (the expiry day) of the agent’s registration if, before the end of the expiry day:

(a) the agent made a registration application; and
(b) the agent paid the registration application fee (if any) in respect of the application; and
(c) the Migration Agents Registration Authority had not decided the application.

Exception – suspension

(2) However, subsection (4) does not apply to continue the agent’s registration if, before the end of the expiry day, the Authority made a decision to suspend the agent’s registration, unless:

(a) the suspension had been completed before the end of the expiry day; or
(b) there was a decision (other than a stay order) of the Administrative Appeals Tribunal or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled.

Exception – cancellation

(3) Subsection (4) also does not apply to continue the agent’s registration if, before the end of the expiry day, the Authority made a decision to cancel the agent’s registration, unless:

(a) there was a decision (other than a stay order) of the Administrative Appeals Tribunal or a court in force, immediately before the end of the expiry day, to the effect that the agent’s registration is not suspended or cancelled; or
(b) there was a decision of the Administrative Appeals Tribunal or a court in force to the effect that the agent’s registration is suspended, and the suspension had been completed before the end of the expiry day.

Period of continuation of registration

(4) The agent’s registration is taken to continue after the expiry day until the earliest of the following:

(a) the Authority decides the application;
(b) the Authority decides to suspend the agent’s registration;
(c) the Authority decides to cancel the agent’s registration;
(d) the end of the period of 10 months beginning on the day after the expiry day.

Application granted if no decision within a certain period

(5) If, before the end of the period of 10 months beginning on the day after the expiry day, the Authority has not:

(a) decided the registration application; and
(b) decided to suspend the agent’s registration; and
(c) decided to cancel the agent’s registration;

then the application is taken to have been granted at the end of that period.

When registration takes effect

(6) If the Authority grants the registration application, or the registration application is taken to have been granted under subsection (5), the registration is treated as having taken effect at the end of the expiry day.

When Authority makes decision

(7) For the purposes of this section, the Authority is taken to have made a decision even if the decision is later stayed.’

BACKGROUND

7 Mr Seymour was first registered as a migration agent on 15 April 1994. Since that time, his annual registration has continued with an expiry date of 23 May in each successive year.

8 In May 2004, Mr Seymour applied to the Authority for re-registration as a migration agent for the 12 month period expiring on 23 May 2005. This was refused in February 2005, but the Tribunal subsequently granted a stay of the decision under the Act as in force prior to the changes implemented by the Amending Act. Mr Seymour then made an application to the Tribunal to set aside the Authority’s decision. The Tribunal decided that the Authority’s decision should be set aside because the decision-maker was not authorised to make the decision. However, the Tribunal substituted its own decision and itself decided that Mr Seymour was not a fit and proper person to be registered. An appeal was then brought to the Court from the Tribunal and on 31 July 2006, Rares J dismissed that appeal: see Seymour v Migration Agents Registration Authority [2006] FCA 965. There is a detailed history of these other proceedings in relation to Mr Seymour in his Honour’s judgment and it is not necessary to repeat those details in these reasons.

9 On 5 May 2005, Mr Seymour lodged an application for re-registration for the period 24 May 2005 to 23 May 2006. On 20 February 2006, the Authority rejected this application in respect of this period. In its reasons, the Authority found that having regard to a number of matters, Mr Seymour was not a person of integrity and for this reason the Authority was bound to refuse registration in respect of that year pursuant to s 290 of the Act.

10 On 27 April 2006, the Tribunal refused the application for a stay, accepting the submission of the Authority that if the Tribunal had the power to grant an effective stay, s 300(7) would have no work to do because it would not significantly alter the law as it previously stood. The Tribunal noted an alternative interpretation of the subsection would have the effect that actual registration would have been granted after the expiration of ten months. Accordingly, the Tribunal decided this interpretation could not be attributed to the legislation. In its reasons, the Tribunal discussed the principles of statutory interpretation and referred to the High Court decision in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408. In this decision, the Court noted the importance of using extrinsic material and other relevant sources, including admissible parliamentary materials and background documents such as law reform reports, as aides in statutory interpretation.

11 An application for review of that decision was made to this Court under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") and s 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act").

12 The primary judge considered the amendments to the Act, the extrinsic material and the relevant authorities. His Honour concluded that the Tribunal’s conclusion was consistent both with the purpose and the clear language of s 300(7), and that the appeal should therefore be dismissed.

13 As a consequence of the refusal of the stay, Mr Seymour has ceased to be entitled to continue in practice as a migration agent. If he were to be successful on his appeal to the Tribunal, then one consequence of the refusal of a stay is that he would have been wrongly deprived of the opportunity to practise as a migration agent pending that decision by the Tribunal. He also submits that as a result of the refusal of the stay, he has been deprived of his capacity to re-apply for a continuation of his registration because he currently does not satisfy the requirement under s 300(1) that at the time of application, the applicant must be a registered migration agent.

REASONING ON APPEAL

14 Part 3 of the Act (ss 275-332A) provides a detailed scheme for the regulation of migration agents and immigration assistance. Section 280 prohibits a person who is not a registered migration agent from giving immigration assistance. This term is broadly defined in s 276. The registration regime is outlined in ss 286-306. Section 290 requires that a person must not be registered if the Authority is satisfied that he or she is not a fit and proper person to give migration assistance or is not a person of integrity. Section 299 fixes the term of registration as 12 months.

15 As noted previously, s 300 is concerned with the automatic continuation of a migration agent’s registration. Section 303 is directed to the cancellation or suspension of registration in specific circumstances, for instance, in the event that the Authority is satisfied that there are materially false statements in the agent’s application; that the agent has become bankrupt; or that the agent is not a person of integrity or otherwise not a fit and proper person to give immigration assistance. Section 306 provides for review by the Tribunal of decisions by the Authority. Section 306AA relates to stay orders and provides that if the Tribunal or a court orders a stay of a decision under s 303 to cancel or suspend a registered migration agent’s registration, it is taken to be a condition of the order that the supervisory requirements apply in relation to the agent during the period of the order.

16 The scheme therefore discloses a concern to closely regulate and monitor the activity of migration agents by establishing a detailed regime in the interests of protecting the public and persons seeking immigration assistance. Section 41(2) of the AAT Act empowers the Tribunal to grant a stay pending its determination in relation to an appeal.

17 As noted above, the High Court in the CIC Insurance Ltd v Bankstown Football Club Ltd made it clear that the "context" of a statutory provision may be considered in the first instance when interpreting a statute and not merely at some later stage when ambiguity is perceived. This "context" includes the existing state of the law; the mischief to which the provision is directed, as described, for example, by law reform reports; the legislative history and any Explanatory Memoranda. The Court in that case noted that s 15AB of the Acts Interpretation Act 1901 (Cth) permits recourse to extrinsic materials and enables the Court to have regard to any anomalies which may result from applying the literal meaning of the language used.

18 In relation to the relevant Amending Act in this case, namely the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 (Cth), the Supplementary Explanatory Memorandum states that the amendments are designed to clarify issues raised in litigation before the Tribunal concerning the automatic continuation of an agent’s registration under s 300 of the Act where the Authority has made a decision to suspend or cancel an agent’s current registration and that decision has been stayed by the Tribunal pending the determination on appeal.

19 More specifically, in a detailed consideration of the new s 300 (Item 63 of the Supplementary Explanatory Memorandum at [28]-[41]), the Memorandum states that the purpose of the proposed s 300 is to limit the circumstances in which an agent’s registration can be automatically continued because the Authority has not made a decision in relation to the agent’s application for re-registration before the agent’s current registration expires. The amendment is designed to ensure that an agent’s registration will not be extended for lengthy periods until review proceedings arising from the cancellation or suspension of an agent’s registration or a decision to refuse to register an agent are finalised.

20 In considering s 300(7) as it now stands, the Supplementary Explanatory Memorandum states:

‘41 New subsection 300(7) makes it clear that, for the purposes of new section 300, the MARA is taken to have made a decision, even if the decision is later stayed by the AAT or a court. For example, any orders made by the AAT or a court staying the operation of a decision to suspend or cancel an agent’s registration pending finalisation of review proceedings do not affect the operation of new subsections 300(2) and (3) to prevent the agent’s registration being continued under new subsection 300(1).’ (Emphasis added.)

21 The Court’s attention was also drawn to the Second Reading Speech of Mr Hardgrave in the House of Representatives on 24 March 2004 at Hansard 27110:

‘Agents who wish to continue to practice following a sanction decision will now have an incentive to expedite the hearing process before the AAT. Current experience to date is that decisions are often delayed, with the effect that the sanctioned agent’s registration is renewed after its original expiry date. For example, one case has been before the AAT since mid 2002 – that is nearly 2 years.’

22 Mr Hardgrave referred to concerns expressed about agents continuing to practise after they had been sanctioned, and gave an example concerning an agent sanctioned on 1 February whose registration year expires on 1 June. In such circumstances, the effect of the amendment is said to be that the agent will no longer be able to practise after 1 June by making an application for review of the sanction decision and then obtaining a stay order from the Tribunal of that decision.

23 During the hearing, the Court was referred to the reasons for decision of the Tribunal in Amin v MARA [2003] AATA 1095 and Maarbani v Migration Agents Registration Authority [2003] AATA 1109, where concern was expressed on behalf of the Authority that if a stay were to be granted by the Tribunal under s 42 of the AAT Act, then, having regard to s 300 as it stood prior to 2004, there could be an automatic continuation of the registration. Accordingly, in order to prevent this possible result in those cases, the Tribunal granted the applications for a stay but made orders designed to limit the duration of the stay in each case.

24 It is submitted by the appellant that the extrinsic material indicates that the amendments to s 300 should be read narrowly so as to cover the specific problem perceived to exist, namely, that if a stay is granted and no decision is made by the Tribunal within a ten month period, then there would be an automatic continuation of that agent’s registration even though the agent had been found by the Authority not to be a person of integrity.

25 It is also contended by the appellant that the wording of s 300(7) should be read narrowly to apply only where there has been a cancellation or suspension of an agent’s registration. Counsel submits that the plain language of s 300(7), which refers to a decision being "later stayed", expressly assumes that a stay can be granted. He says that the reference to the term "decision" in s 300(7) should be read down as simply a reference to a "decision" for a limited purpose and that it is only a reference to a decision "in fact" and is not concerned with the "legal effect" of the decision. There is no substance in this suggested distinction nor any basis for it. There is no such qualification or limitation in the subsection. No basis has been shown either in the extrinsic material or in the scheme of the legislation or in the text which would warrant such a limitation of s 300(7).

26 The operation of s 300 in this case is that where an application was made which complied with ss (1), then that registration continued after the expiry date of 23 May 2005 until the decision was made by the Authority in relation to that application on 20 February 2006. When that decision was made, the continuous registration of the migration agent ceased.

27 The legislative history, the scheme of the legislation, the language of the provision, and the extrinsic material all point to the conclusion that s 300(7) has the consequence that to grant a stay would be futile in the present case because it would have no effect.

28 Paragraph 41 of the Supplementary Explanatory Memorandum as extracted above reinforces the conclusion that the purpose of the amendment was to ensure that the registration of a migration agent would not be unduly extended pending review of a decision, and that the provisions are directed to limit the extent of the automatic continuance of registration beyond the last day of the relevant period.

29 The specific language used in s 300 points to the same conclusion. In its terms, s 300(7) applies to every subsection of s 300, and is not limited to particular subsections such as those referring to suspension or cancellation. It applies equally to other subsections as to ss 300(4) and (5).

30 Mr Seymour points to the hardship an agent would suffer as a consequence of this interpretation, but it must be borne in mind that the legislation is designed to protect the public interest as expressed in the extrinsic material, and is directed specifically to address what is perceived as the undue continuation of deemed registration after the Authority has made a decision adverse to a particular migration agent.

31 When the appeal came on for hearing, the appellant sought to adduce further evidence directed to the action which the Court should take in the event that the appeal was successful. In view of the above conclusion, this evidence is not material.

32 For the above reasons, we can see no error in either the decision of the Tribunal or his Honour which would warrant the grant of this appeal. Accordingly, the appeal is dismissed with costs.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Gyles and Stone.

Associate:
Dated: 2 February 2007

Counsel for the Appellant:	Mr T V Hurley
Counsel for the First Respondent:	Mr J D Smith
Solicitor for the First Respondent:	DLA Phillips Fox
Counsel for the Second Respondent:	Ms V McWilliam
Solicitor for the Second Respondent:	Administrative Appeals Tribunal
Date of Hearing:	22 August 2006
Date of Judgment:	2 February 2007