Case: Shi v Migration Institute of Australia [2003] FCA 1304 ; (2003) 134 FCR 326 considered
Outcome: distinguished
In Shi v Migration Institute of Australia [2003] FCA 1304 ; (2003) 134 FCR 326 (" Shi") , Tamberlin J considered this section. His Honour described the repeat registration system as a 'continuum' and found that s 300 operated as a deeming provision so that an agent is treated as if s/he were registered and has the same rights as if s/he were registered up to the time of the making of the decision not to renew. He concluded that a decision by the MARA not to renew has an operation capable of being stayed, pursuant to s 41(2) of the AAT Act . 9 However, on 1 July 2004, amendments contained in the Amending Act came into effect. By Item 63 in Schedule 1 of the Amending Act , s 300 was repealed and substituted with the following: "300 Automatic continuation of registration When agent's registration is automatically continued (1) Subsection (4) applies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." 10 The applicant was first registered as a migration agent on 15 April 1994. For reasons which are not clear, the applicant's registration came to expire on 23 May each year. 15 The learned Deputy President referred to the decision of Tamberlin J in Shi . However, he observed that Shi was decided on the Act as it stood before the Amending Act . The question for the Deputy President was therefore whether there was power to grant a stay under the new s 300 introduced by the Amending Act . 16 The AAT referred to the amendments to s 300 and the supplementary explanatory memorandum to the Amending Act . It noted that the effect of s 300(4)(a) was that the Applicant's registration as a migration agent ceased on 20 February 2006 when the MARA made its decision. 17 The AAT then considered s 300(7), stating at [17](d)] that:- "The clear import of section 300(7) is that a decision once made (and the term decision must include a decision under subsection 4(a)) stands notwithstanding that it might be the subject of a stay order." 31 Tamberlin J observed in Shi at [14] that Part 3 of the Act was introduced in 1992 with the purpose of establishing a comprehensive scheme for registration and control of migration agents. Prior to its introduction, there was no regulation of migration agents. The emphasis in Division 3, Part 3 on migration agents having sufficient training and good character, and the provisions relating to publication of disciplinary proceedings indicates a concern that the integrity of the visa scheme governed by the Act is maintained. 32 Section s 300 is to be construed in its context in light of the statutory scheme to which I have referred. It is to be borne in mind that a registered agent does not have a right to be re-registered. Applications must be made each year and the criteria for registration must be satisfied on each application. 33 It is true that s 300(1) operates so as to extend the period of registration of a registered migration agent beyond the expiry date of the agent's registration. The combined effect of ss 300(1) and (4) is that a registered agent's registration is taken to continue after the expiry date, provided that the requirements of s 300(1) (a) to (c) are satisfied.