Griffiths v Migration Agents Registration Authority [2001] FCA 441

FEDERAL COURT OF AUSTRALIA

Griffiths v Migration Agents Registration Authority [2001] FCA 441

DAMIAN GERARD GRIFFITHS v MIGRATION AGENTS REGISTRATION AUTHORITY Q 76 OF 2001 DRUMMOND J BRISBANE 18 APRIL 2001

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 76 OF 2001

BETWEEN: DAMIAN GERARD GRIFFITHS

APPLICANT

AND: MIGRATION AGENTS REGISTRATION AUTHORITY

RESPONDENT

JUDGE: DRUMMOND J

DATE OF ORDER: 18 APRIL 2001

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. On the applicant by his senior counsel giving the usual undertaking as to damages, the respondent forthwith renew the applicant's registration as a migration agent sought by application delivered to the respondent on 15 March 2001.

2. There be liberty to apply.

3. The matter be adjourned for further directions to 24 May 2001.

4. The question of the costs of today's proceedings be reserved to 24 May 2001.

5. Each party notify the other by 21 May 2001 of any orders, including orders as to costs, that they will be seeking.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 76 OF 2001

BETWEEN: DAMIAN GERARD GRIFFITHS

APPLICANT

AND: MIGRATION AGENTS REGISTRATION AUTHORITY

RESPONDENT

JUDGE: DRUMMOND J

DATE: 18 APRIL 2001

PLACE: BRISBANE

REASONS FOR JUDGMENT

1 I have before me a notice of motion seeking by way of interlocutory relief an order that the respondent Authority forthwith renew the applicant's registration as a migration agent until the hearing of the applicant's application for an order of review filed on 12 April 2001. By this application for an order of review the applicant sought by way of final relief an order that the respondent decide within such period as this honourable Court deems appropriate, whether the applicant's registration as a migration agent ought to be renewed. Interlocutory relief in terms of the notice of motion was also there claimed. 2 On 15 March 2001, the applicant filed an application for renewal of his registration as a migration agent. His current registration expired yesterday, 17 April 2001. Under s 299(1) the Migration Act 1958 (Cth), registration as a migration agent is only for a twelve month period, though the Authority can cancel a registration within that twelve month period under s 303. But registration can be renewed, or, more accurately, a new twelve month registration can be obtained on application made. To aid continuous registration, notwithstanding the twelve month period of each registration that is all that is available under the legislation, the Authority is obliged by s 301 to warn each agent of the expiry of its current registration by notice to be given one month before expiry of the then current registration period. 3 The current registration of the applicant has on one view now expired by effluxion of time, though it was earlier cancelled by the Authority. In any event, there is nothing in the Migration Act that permits the Authority, or this Court, to renew that dead registration. 4 The applicant seeks review under s 7 the Administrative Decisions (Judicial Review) Act 1977 (Cth) of the Authority's failure to make a decision on his pending application lodged on 15 March 2001 for renewal of his now expired registration. The solicitor who appears for the Authority did not dispute the availability of such review under the ADJR Act. He submitted, however, that the Court's powers were limited to making orders of the kind provided for by s 16 the ADJR Act. 5 Though registration lasts only for a maximum of twelve months, the Migration Act envisages that a person is entitled to an unbroken series of twelve monthly registrations, unless the Authority promptly concludes that one of the statutory grounds for refusing registration under ss 290 to 294, or for cancelling an existing registration under s 303 is made out. See ss 289(1) and 299(1) respectively. The registration provisions of the Migration Act are designed to regulate, by registration of suitable persons, the conduct of what is now the well-established practice of persons carrying on business as intermediaries between the Australian migration authorities and foreigners desirous of obtaining the right to reside in Australia. See, by way of example, ss 287(2)(b) and (c); 288(3); 290A; Div 3A of Pt 3; ss 312(f) to (h) and 313 the Migration Act. Section 289(2) requires the Authority to register an applicant "as soon as possible", and s 301 obliges the Authority to give each registered agent one month's prior notice of expiry of his or her current registration. 6 In my opinion, the Court's interlocutory jurisdiction under s 23 the Federal Court of Australia Act 1976 (Cth) is not excluded by anything in the ADJR Act or the Migration Act. This jurisdiction empowers the Court to grant an interlocutory injunction for the purpose of protecting a registered agent's entitlement to a continuous series of registrations. See Fletcher v Foodlink Ltd (1995) 60 FCR 262 at 264 -265. That a mandatory interlocutory injunction is sought is, in these circumstances, no reason for the Court to require any specially clear proof of the strength of the applicant's case for final relief. See McDermott v BP Australia Ltd (1997) ATPR 41-547 at 43,602. 7 There is a long history of disputation between the applicant and the Authority as to his fitness to be a registered migration agent. It is set out in some detail in the applicant's affidavit. The applicant was first registered in 1996. He has been continuously registered since then, save that on 21 December 2000 the Authority cancelled his then current registration. The applicant was, however, able to persuade the Administrative Appeals Tribunal ("the AAT") to whom he made application under s 306 the Migration Act for review of that cancellation decision, to order on 16 January 2001 that: