FEDERAL COURT OF AUSTRALIA Griffiths v Migration Agents Registration Authority [2001] FCA 455 IMMIGRATION - registration of a migration agent - duty under s 289 Migration Act 1958 (Cth) for the Migration Agents Registration Authority (Authority) to register a person as a migration agent - whether registration of agent for a further twelve month period conditional upon Authority being satisfied under s 290 Migration Act 1958 (Cth) that agent is a "fit and proper person". ADMINISTRATIVE LAW - judicial review under s 7 Administrative Decisions (Judicial Review) Act 1977 (Cth) - power of Federal Court of Australia to grant interlocutory relief pursuant to s 23 Federal Court of Australia Act 1976 (Cth) - power of the Court on judicial review to order, in exceptional circumstances, a decision-maker to make a determination of a particular kind - whether interlocutory order to Authority to register a migration agent applicant for registration for a further twelve month period beyond power of Federal Court of Australia. Migration Act 1958 (Cth), ss 280, 289, 290, 290A, 291, 292, 293, 294, 299, Div 3 of Pt 3 Federal Court of Australia Act 1976 (Cth) ss 23 and 28 Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 7 and 16 Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 referred to Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 followed MacIntosh v Lobel (1993) 30 NSWLR 441 referred to Powerflex Services Pty Ltd v Data Access Corporation (1996) 137 ALR 498 referred to DAMIAN GERARD GRIFFITHS v MIGRATION AGENTS REGISTRATION AUTHORITY Q 76 OF 2001 DRUMMOND J BRISBANE 23 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: 23 APRIL 2001 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. Save to the extent provided for by Order 2, the notice of motion be dismissed. 2. Leave to appeal the interlocutory orders made on 18 April 2001 be granted. 3. The question as to the costs of this notice of motion be reserved to 24 May 2001. 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: 23 APRIL 2001 PLACE: BRISBANE REASONS FOR JUDGMENT 1 On Wednesday last, 18 April, on application by the applicant in the action on short notice to the respondent Authority, I made an interlocutory mandatory order requiring the Authority to forthwith renew the applicant's registration as a migration agent which he had sought by application delivered to the Authority on 15 March 2001. Last Friday, I heard an application by the Authority to revoke this order. 2 I made the order in question in proceedings commenced by the applicant by application filed on 12 April 2001 for final relief in the form of an order directing the Authority to make a decision upon his application for re-registration filed with the Authority on 15 March last which were brought by the applicant on the eve of expiry of his then current twelve month registration. This originating application also sought interlocutory relief in similar terms to the order now sought to be revoked. 3 In the reasons I published on Wednesday last, I said that I considered that the applicant had a strong case that the Authority had, by no later than the date of institution of the present action, 12 April 2001, failed to comply with its duty under s 289(2) the Migration Act 1958 (Cth) to deal as soon as possible with his application of 15 March for re-registration. I also held that the balance of convenience was entirely in favour of the grant of interlocutory relief. The view I took of the legislative scheme which led me to make the interlocutory order in question was that, although registration as a migration agent could only be obtained for a fixed period of twelve months, that scheme envisaged that a person was entitled to an unbroken series of twelve month long registrations unless the Authority promptly concluded that one of the statutory grounds for refusing an application for registration or for cancelling an existing registration was made out. I held that the Court was empowered by s 23 the Federal Court of Australia Act 1976 (Cth) to grant the interlocutory injunction directing registration for the purpose of protecting the applicant's entitlement as a registered agent to a continuous series of registrations. It is common ground that neither the Authority nor the Court has power to order registration for any period other than the twelve month period fixed by s 299(1) the Migration Act. It was for this reason that I made the order in the form I did rather than in the orthodox form of an order providing for registration until trial or earlier order. 4 The application by the Authority for revocation of my order of 18 April 2001 is brought on the basis that the order was made in circumstances in which the respondent Authority asserts that it did not have opportunity to put all the arguments before me relevant to the question as to my power to make the order in question. 5 The solicitor for the Authority who appeared as advocate on the hearing before me on 18 April last, in an affidavit filed in support of the Authority's revocation application, repeatedly asserts that the hearing on 18 April was set down as a directions hearing only. 6 The assertion is without foundation. On 12 April, the applicant sought an urgent hearing of its application for interlocutory relief because of the impending expiration of his then-current registration as a migration agent and the Authority's failure to deal with his application for re-registration filed on 15 March last and because of the associated disruption to his long-established business that was looming. I then gave directions to ensure that the matter would come before me on 18 April on notice given to the Authority on 12 April. The originating application, which included a claim for interlocutory relief in terms similar to the order I ultimately made on 18 April last, and the applicant's supporting affidavit material were delivered to the Authority that afternoon. The matter was listed for hearing on 18 April in relation to "Directions and Interlocutory". This is in accordance with the Court's established practice of putting the parties on notice that, in addition to hearing the interlocutory application, the Court will also consider making directions for the further conduct of the action. The Authority's solicitor acknowledges that on 17 April he was given a copy of the notice of motion seeking only interlocutory orders that was filed by the applicant by leave at the start of the hearing on 18 April. The solicitor was asked and expressly stated that he did not object to the grant of such leave though senior counsel for the applicant had just read the material upon which he relied in support of the claim for an order directing the Authority to register the applicant. At the hearing on 18 April, though that solicitor said the Authority had not had a proper opportunity to deal with the claim for interlocutory relief, he did not then seek any adjournment of the hearing. The interlocutory hearing proceeded to its conclusion in those circumstances. 7 Despite what the solicitor deposed to in his affidavit read on Friday last, counsel for the Authority, after taking instructions from that solicitor at the bar table during the hearing before me, stated: "MR BICKFORD: … There was some discussions your Honour between my instructing solicitor and senior counsel for the applicant and he was aware the matter might proceed to a hearing before your Honour on the 18th. HIS HONOUR: So Mr Copley came here in the expectation that the applicant might pursue the claim for interlocutory relief. MR BICKFORD: Yes." 8 At the hearing before me on 18 April, it was common ground that this Court had jurisdiction to grant the final relief sought in the originating application under s 7 the Administrative Decisions (Judicial Review) Act 1977 (Cth). The solicitor who then appeared for the Authority submitted that I did not have power to make the interlocutory order sought directing registration (and ultimately made) because I could not grant final relief in that form. It was this proposition which was the subject of developed submissions by counsel in support of the revocation application. The question was raised by counsel for the applicant as to the propriety of the respondent Authority having a second bite of the cherry. Notwithstanding short notice and the intervention of the Easter holiday period, it is difficult to accept that the respondent's legal advisers could not have been in the position on 18 April last that they were in on Friday last to make the detailed submissions on the point which the Authority's counsel put on the latter occasion. It is a common event for litigants to have to deal on short notice with urgent applications made because an applicant is being faced with draconic consequences sought to be averted by obtaining interlocutory relief from the Court. 9 But notwithstanding these considerations, if the position be that I lack power to make the interlocutory order in question, then I think it would be proper for me to revoke that order now since as long as the order stands, the Authority will be at risk of contempt proceedings if it does not comply with that order. 10 The Authority submits that the Court's powers to make orders by way of final relief on the applicant's originating application are confined to those set out in s 16(3) the Administrative Decisions (Judicial Review) Act. The applicant does not dispute that submission. The respondent further submits that the Court's powers under s 16(3)(c) are confined to making only such mandatory orders as the Court considers necessary to do justice "according to law" between the parties. Though the phrase in quotation does not appear in the sub-section, it can be accepted as accurately stating the ambit of the Court's powers under this provision. It was then submitted that my interlocutory order goes beyond the power conferred on this Court by s 23 the Federal Court of Australia Act to make such orders as are necessary or incidental to the exercise of the Court's jurisdiction under the Administrative Decisions (Judicial Review) Act by way of reasonable protection of the right which the Court may enforce by final judgment. It was submitted that my order was beyond power because it granted relief beyond that which the Court could grant by way of final relief under s 16(3). 11 It can be accepted that the Court's power to grant interlocutory relief under s 23 the Federal Court of Australia Act cannot authorise the grant of interlocutory relief which is, in terms, more extensive than that which the Court is empowered to grant by way of final relief in the particular case. See, eg, Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 at 179. Reference was made to a number of authorities at common law and on provisions of the Administrative Decisions (Judicial Review) Act similar to s 16(3)(c), which establish that in exceptional circumstances, a Court exercising only powers of judicial, as distinct from merit review, may nevertheless direct a decision-maker to make a determination of a particular kind. Of particular relevance is Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 where the Full Court held in a case involving a final determination that, although s 16(1)(d) of the Administrative Decisions (Judicial Review) Act does empower the Court, in an appropriate case, to order a decision-maker to decide a matter in a particular way, as the Minister had a residual discretion as to what decision he should reach in the case there before the Court, the Court would not order him to grant temporary entry permits under the Migration Act but would merely set aside his decision refusing to grant such permits and order that the application for such permits be considered and determined afresh in accordance with law. Sheppard J, in the leading judgment in the Full Court, said of the provisions of s 16(1)(d) which are equivalent to s 16(3)(c) the Administrative Decisions (Judicial Review) Act: "In my opinion s 16(1)(d) plainly confers power upon the court, in an appropriate case, to order a decision-maker, whether a Minister of the Crown or other public official, to decide a matter in a particular way. The same considerations may apply where the decision-maker is a board, a committee or a tribunal. … But in an appropriate case there is no reason why the accompanying order may not be made pursuant to subs (1)(d) compelling a decision of the particular kind or the acknowledgment of a right or entitlement, for instance, by directing the issue of a licence or the making of a payment." 12 The respondent further submits that registration under s 289(1) the Migration Act of a person as a migration agent cannot occur unless the Authority is satisfied that none of the prohibitions set out in ss 290 to 294 are applicable to the particular application. It is pointed out, as I accepted on 18 April, that there is a real issue between the applicant and the respondent as to whether the applicant is a fit and proper person and a person of integrity within s 290(1)(a) and (b). It is then said that my interlocutory order that the Authority forthwith register the applicant has the effect of preventing the Authority from performing its statutory duty to consider such matters before making a decision on the applicant's pending registration application. It is said that the respondent has been ordered to register the applicant as a migration agent in circumstances where the Authority is not satisfied of the matters referred to in ss 290 and 290A: a final order could not be made under s 16(3)(c) having this effect. 13 Critical to the correctness of the respondent's submission as to the interlocutory order of 18 April being beyond power is the proposition that Div 3 of Pt 3 the Migration Act, on its proper construction, conditions registration as a migration agent upon an applicant, whether a new applicant or a person previously registered who seeks re-registration, satisfying the Authority of each of the matters in ss 290 to 294. 14 That submission cannot, in my opinion, be accepted. 15 Section 289 provides: "(1) The Migration Agents Registration Authority must register an applicant by entering his or her name in the Register, unless section 290, 290A, 291, 292, 293 or 294 prohibits registration of the applicant." 16 Two of these provisions, viz, ss 290 and 290A, employ the following formula: "An applicant must not be registered if the Migration Agents Registration Authority is satisfied that" the applicant lacks a particular quality or has failed to meet a particular standard. The other provisions, viz, ss 291 to 294, adopt what, in my opinion, is a significantly different verbal formula: "An applicant must not be registered if" a particular state of facts exists. 17 In my opinion, the Authority is barred from registering or re-registering a person as a migration agent if, in relation to each of the second category of prohibition provisions, the factual situation the subject of the prohibition exists. That is, if a person has in fact been refused registration as a migration agent within twelve months before his or her application (s 291) or if a person is under eighteen years of age (s 293), whatever be the opinion of the Authority about the matter, s 289(1) denies the Authority power to register the person as an agent. On application to review the failure of the Authority to make a decision on a registration application, the Court could not make a final order under s 16(3)(c) the Administrative Decisions (Judicial Review) Act directing the Authority to register the application if there was evidence as to the existence or possible existence of any of the facts the subject of the prohibitions in this second category of provisions, viz, ss 291 to 294. There is no suggestion that the bars to registration the subject of ss 293 or 294 may exist here. As to ss 291 and 292, the position here is dealt with in my reasons of 18 April. 18 However, so far as the prohibitions the subject of ss 290 and 290A are concerned, they do not deal with readily ascertainable facts but rather with issues upon which an opinion needs to be formed by the Authority before it can conclude that the relevant prohibition exists in the particular case. On its proper construction, s 290(1) does not, I think, condition the Authority's duty under s 289(1) and (2) to register an applicant as a migration agent as soon as possible upon the applicant in fact being a fit and proper person and a person of integrity etc within s 290(1). Nor does it condition performance by the Authority of its duty of registration under s 289 upon the applicant satisfying the Authority of such matters. Section 290(1) only operates to prohibit the Authority from registering an applicant if, by the end of the period fixed by s 289(2), it has become satisfied that the person is not a fit and proper person. It follows that the Authority must register a person even though there is an issue as to the person's fitness if the Authority is unable promptly to reach a state of satisfaction as to the person's fitness. 19 The content of the duty imposed on the Authority by s 289(2) to register an applicant "as soon as possible" is further illuminated by the fact that the Act draws a distinction, understandably enough, between an initial application for registration and an application for re-registration. In the former case, the applicant must give public notice of the application and an opportunity to lodge objections to registration with the Authority (s 288(1A)) and the Authority must not register such an application before the time limited for objections has expired and then must consider each objection before deciding whether to register (s 289(3)). In the case of an application for re-registration, however, no such steps are required. Instead, by s 301, the Authority is obliged to warn each registered agent of the expiry of its current registration by notice to be given one month before expiry of the period of that registration. The legislation envisages that the Authority will act on an application for re-registration in a more limited period than it must act within when dealing with an application for initial registration. 20 In my opinion, properly construed, the Authority must register a person as a migration agent by force of s 289(1) even where there is, in relation to ss 290 and 290A, an issue, under those provisions, by way of example, as to the person's fitness or integrity within s 290(1)(a) and (b), unless the Authority has been able promptly to reach a state of being satisfied that the particular applicant is unfit or lacking in the necessary integrity. It must make a decision on an application for registration promptly - "as soon as possible" in the context of the scheme of annual registrations. If it cannot reach a conclusion on the issue of an applicant's fitness within that quite tight timeframe, it must, in my opinion, register the application. That follows both from the wording of ss 290 and 290A and from the duty imposed on the Authority by s 289(2), a duty imposed in the context of a legislative scheme providing for an unbroken series of twelve month registrations for people carrying on the business of providing immigration assistance who must be registered from year to year in order to lawfully carry on such business. There is therefore no justification for reading the relevant provisions of Div 3 of Pt 3 of the Migration Act as prohibiting the Authority from registering a person as a migration agent unless and until it has determined that the person satisfies the criteria in s 290 and 290A. The existence of power in the Authority under s 303 to cancel a registration ensures that the Authority can deal effectively with a migration agent who is unfit to remain or to be registered. 21 I therefore do not accept that a final mandatory order to the Authority under s 16(3)(c) the Administrative Decisions (Judicial Review) Act to register this applicant on application made under s 7 for review of the Authority's delay in making a decision would be beyond power because it might prevent the Authority from performing as a condition precedent to granting registration, a duty to decide whether or not the applicant is prohibited for want of fitness etc from being registered as a migration agent. 22 The Authority also submits that my interlocutory order should be revoked because, if it is overturned on appeal, although effective while it stands as the order of a superior court, the respondent will be exposed to prosecution under provisions such as s 280 the Migration Act in respect of the period between the making of the interlocutory order on 18 April and the overturning of the order on appeal, unless the Full Court determines to set aside the interlocutory order only in futuro. 23 Although the Full Court has power under s 28(1)(b) the Federal Court of Australia Act to set aside a first instance order ab initio, it is doubtful whether, even in that event, acts lawfully done in consequence of the existence of the first instance order become unlawful. In so far as the applicant carries on business as a migration agent during that period, he will not be performing acts in accordance with an order of a superior court which, if the order is subsequently reversed, are protected on the principle discussed in cases such as MacIntosh v Lobel (1993) 30 NSWLR 441 at 459 - 460. But the interlocutory order requires the Authority to register the applicant forthwith as a migration agent. It is that registration, not my order, which protects him from prosecution for the breach of provisions such as s 280 while that registration stands. If my interlocutory order is set aside on appeal and the Full Court were to go on and order that the applicant's registration directed by that order be cancelled ab initio, that could not, I think, alter the fact that, if the applicant were thereafter to be prosecuted for having breached s 280(1) by giving immigration assistance during the currency of the registration made in compliance with my interlocutory order, he could in his defence point to the fact that at that time he was "a registered agent" within s 280(1), ie, "an individual registered as a migration agent under section 286" as defined in s 275. During that period, the applicant will have been shown in the Register of Migration Agents kept in accordance with s 287 as the subject of a then-current registration, irrespective of any order the Full Court could be expected to make even if it were to allow the appeal. Moreover, the respondent expressly accepts that risk of prosecution. The consideration here advanced by the Authority does not justify revocation of the order of 18 April. 24 By way of alternative relief, the respondent seeks leave to appeal the interlocutory order of 18 April 2001 and a stay of that interlocutory order (and associated orders) pending determination of any such appeal. 25 Given the significant question of construction of the relevant provisions of the Migration Act here in question, and the problems of administration for the Authority if this interlocutory order is based on an erroneous construction of those provisions but cannot be challenged, it is appropriate that leave to appeal my interlocutory orders be granted. 26 The approach I should take to the stay application is that stated by the Full Court in Powerflex Services Pty Ltd v Data Access Corporation (1996) 137 ALR 498. However, to grant a stay of those orders until the hearing of the appeal would negate the justification I consider exists for the making of the order, viz, to ensure that the applicant's longstanding business as a migration agent and the interests of employees and clients of the business will not be seriously disrupted in circumstances in which I also considered that there was a strong case that the Authority had failed to perform its statutory duty under s 289(1) and (2) and in circumstances, moreover, in which the Authority could not show any prejudice for the making of the interlocutory orders. Counsel for the Authority on the hearing on Friday last confirmed that there was no evidence before me, even now, of any prejudice to the respondent should the order not be stayed. (The difficulties in administration of the legislation created for the Authority by my order will subsist whether or not a stay is granted.) 27 This is not a case in which a judgment is given in private litigation which advances the interests of one party at the expense of the opposing party. It is, instead, a case in which an interlocutory order has been made against a public Authority requiring it to register a person in circumstances in which the Authority remains free to cancel that court-ordered registration, should it come to the conclusion that the beneficiary of the interlocutory order is unfit to remain registered. 28 In these circumstances, I refuse to order to stay my interlocutory order of 18 April. 29 The notice of motion will be dismissed. I will reserve the question as to the costs of this motion to 24 May next. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond. Associate: Dated: 24 April 2001 Counsel for the Applicant: DB Fraser QC and M Burns Solicitor for the Applicant: McCullough Robertson Counsel for the Respondent: PG Bickford Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 20 April 2001 Date of Judgment: 23 April 2001