Bulos v Migration Agents Registration Authority [2002] FCA 336

FEDERAL COURT OF AUSTRALIA

Bulos v Migration Agents Registration Authority [2002] FCA 336

COSTS – application for review of decision of Migration Agents Registration Authority ("MARA") that applicant did not have requisite knowledge of migration procedures and was therefore not a fit and proper person for re-registration – applicant sought reasons for decision – no response provided – applicant sought interlocutory relief – MARA re-registered applicant on day of hearing – whether applicant entitled to costs Migration Act 1958 (Cth) ss 290-294 Federal Court of Australia Act 1976 (Cth) s 43 Administrative Appeals Tribunal Act 1975 (Cth) s 41 Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 at 287 referred to CHARLIE BULOS v THE MIGRATION AGENTS REGISTRATION AUTHORITY V1254 OF 2001 WEINBERG J 26 MARCH 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V1254 OF 2001

BETWEEN: CHARLIE BULOS

APPLICANT

AND: THE MIGRATION AGENTS REGISTRATION AUTHORITY

RESPONDENT

JUDGE: WEINBERG J

DATE OF ORDER: 26 MARCH 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The respondent pay the applicant's costs of and incidental to the application, the notice of motion, and the costs of preparing written submissions on the question of costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V1254 OF 2001

BETWEEN: CHARLIE BULOS

APPLICANT

AND: THE MIGRATION AGENTS REGISTRATION AUTHORITY

RESPONDENT

JUDGE: WEINBERG J

DATE: 26 MARCH 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT

background 1 The applicant is a registered migration agent. He relies on his practice as a migration agent for his livelihood. The Migration Act 1958 (Cth) ("the Act") sets out a compulsory scheme of registration whereby the respondent, the Migration Agents Registration Authority ("the MARA"), is the statutory regulating body. Any person who wishes to provide migration assistance must be a registered agent. The scheme is that there is registration for a twelve month period. The MARA is required to register an applicant for registration unless one of the situations prescribed in ss 290-294 of the Act is applicable. 2 Section 290(1) of the Act provides, inter alia, that an applicant must not be registered if the MARA is satisfied that the applicant is not a fit and proper person to give immigration assistance or is not a person of integrity. Section 290(2) provides that in considering whether it is satisfied that the applicant is not a fit and proper person, or not a person of integrity, the MARA must take into account a range of matters, one of which is the extent of the applicant's knowledge of migration procedure. 3 In September 1999 a former client of the applicant made a complaint about him to the MARA. On 27 September 1999 the MARA wrote to the applicant informing him of that complaint. None of the matters to which the MARA referred in that letter, or in subsequent correspondence, raised the issue of the extent of the applicant's knowledge of migration procedure. Nevertheless, by letter dated 23 February 2001 the MARA informed the applicant that although it had "decided to take no further action to the complaint" it had "found that you have demonstrated a lack of sound knowledge in the area of Visitor Visa matters and Visitor Visa conditions". The MARA went on to say: "…at the time of your next application for registration in order for the Authority to be satisfied that you are a fit and proper person to give immigration assistance … you will need to demonstrate that you have improved your knowledge of Visitor Visa matters and Visa Conditions … At the time of your next application for registration, in addition to any legislative requirements for that registration, and in addition to your mandatory CPD requirements, the completion of selected courses totalling an additional 8 CPD points … will be sufficient to demonstrate sound knowledge … The courses must be completed prior to your next registration as a migration agent." 4 The applicant sought to persuade the MARA that he should not have to do additional CPD units. He argued that to require him to do so would be onerous, and perhaps also practically impossible. The MARA then offered him the alternative of completing a "sound knowledge exam to satisfy the Authority's requirements". However, it did not specify what such an examination would entail. 5 In July 2001, the applicant wrote to the MARA seeking reasons for its determination that he did not have the requisite knowledge of migration procedure. He received no response to that letter. 6 The applicant claimed that at no stage did the MARA ever inform him of how it had come to the view that he lacked sound knowledge of migration procedure, save that in a letter dated 15 February 2002, it said that its view was founded on the material in the complaint made by the client in September 1999. 7 It was against this background that, on 13 December 2001, the applicant commenced proceedings for judicial review in this Court. A notice of motion seeking urgent interlocutory relief was filed at the same time as the substantive application. 8 The application for interlocutory relief was listed for hearing on the morning of 20 February 2002, the last day of the applicant's then current registration. However, on that morning the applicant was informed that the MARA had decided to register him, and had in fact done so. In these circumstances, the application for judicial review became moot. The applicant now seeks his costs. He submits, in the alternative, that there should be no order as to costs. That was the position originally taken by counsel for the MARA on 20 February 2002.