Seymour v Migration Agents Registration Authority

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 02 February 2007
• Neutral Citation: [2007] FCAFC 5
• Date: 02 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) 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...