Pike and Migration Agents Registration Authority (Migration) [2025] ARTA 222 (12 March 2025)
Applicant:	Barry Frederick Pike
Respondent:	Migration Agents Registration Authority 
Tribunal Number:	2024/10451

Tribunal:	General Member R Smith  
Place:	Adelaide
Date:	12 March 2025

Decision:	The application for a stay of the Respondent’s decision is refused. 

Statement made on 12 March 2025 at 4:13pm 

Catchwords
MIGRATION AGENT – applicant’s registration automatically continued - suspension of registration – application to stay decision – application for stay refused.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) 
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Cases
Migration Agents Registration Authority v Gruszka [2023] FCA 473
Scott v Australian and Securities and Investment Commission [2009] AATA 798
Secondary Materials 
Explanatory Memorandum to the Administrative Review Tribunal Bill 2023 (Cth)

Statement of Reasons

1.	On 10 December 2024, the Office of Migration Agents Registration Authority (OMARA or the Respondent) made a decision to suspend the registration of Mr Pike (or the Applicant) for a period of two years and until certain conditions are met in accordance with s 303(1)(b) of the Migration Act 1958 (Cth) (the Act). The decision took effect at the end of the same day.
2.	On 11 December 2024, the Applicant filed an application with the Tribunal seeking a review of the decision together with an application to stay of the implementation of the decision while the review is determined by the Tribunal.
3.	The Respondent opposes the stay on the basis that the Tribunal does not have the power to make the order, as Mr Pike’s registration has ceased. 
background facts 
4.	Mr Pike has been a registered migration agent for some time, having first been registered in October 2012. His registration was renewed annually thereafter. 
5.	On 8 November 2023, the Respondent received a complaint about Mr Pike from the Administrative Appeals Tribunal. Following the complaint, OMARA conducted an investigation. 
6.	On 28 June 2024, being the expiry day of his registration, Mr Pike lodged an application to re-register as a migration agent. 
7.	On 14 August 2024, the Respondent sent to Mr Pike a notice pursuant to s 309(2) of the Act advising him that it was considering cautioning him, suspending or cancelling his registration under s 303(1) of the Act (the Notice). The Applicant was invited to provide any written submissions by 4 September 2024. This due date was later extended with the permission of the Respondent.
8.	On 26 August 2024, the Respondent requested further information in relation to Mr Pike’s application for re-registration. Mr Pike responded to the request later that same day.  
9.	On 1 October 2024, Mr Pike provided a response to the Notice. 
10.	On 10 December 2024, the Respondent made the decision to subject of the review. 
statutory context
11.	Part 3, Division 3 of the Act sets out the statutory scheme for the registration and regulation of migration agents.  
12.	Section 288(1) of the Act provides that an individual may apply to be registered as a registered migration agent. Section 288(6A) states that if an applicant has been registered before making an application and the Respondent makes a decision to suspend or cancel the application, then the Respondent is precluded from considering a registration application until all proceedings including appeals have been finalised.
13.	Section 300(1) of the Act allows for a registration to be automatically continued where an agent has made a registration application, paid the registration application fee and the authority has not yet decided the application. When the criteria in s 300(1) is met, s 300(4) provides that the agent’s registration is automatically continued after the expiry day (being the last day of the previous registration) until the Respondent either decides the application, suspends the agent’s registration, cancels the agent’s registration or 10 months has lapsed after the expiry day with no decision from the Respondent. 
14.	Making an application to the Tribunal seeking a review of a decision does not affect the operation of the decision. However, on an application by party to a proceeding for a review of a reviewable decision, the Tribunal may make an order staying or otherwise affecting the implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.
15.	The Explanatory Memorandum to the Administrative Review Tribunal Bill 2023 (Cth) makes it clear that s 32 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) is to have the same operation and effect as s 42 of the Administrative Appeal Tribunal Act 1975 (Cth). The authorities concerning the former section are therefore still of relevance.  
16.	In determining whether it is desirable to make an order for that purpose, the matters relevant to the granting of a stay are well established. They are:  
(i)	the prospects of success; 
(ii)	the consequences for the Applicant of the refusal of a stay; 
(iii)	the public interest;  
(iv)	the consequences for the Respondent in carrying out its functions; 
(v)	whether the application for a view would be rendered nugatory if a stay were not granted; 
(vi)	 any other relevant matter.  
17.	The Tribunal’s power to order a stay is not unfettered and is subject to the provisions of the Act. In Migration Agents Registration Authority v Gruszka [2023] FCA 473 (Gruszka) at [63], Raper J observed:
The Tribunal cannot, in exercising its power under s 41(2), bestow a benefit on Ms Gruszka which she is not entitled to under the Migration Act: As submitted by the Authority, which I accept, the Tribunal’s power to order a stay is for the purpose of securing the effectiveness of the hearing and determination of the application for review but only so far as the source under the Migration Act allows. 
consideraTion of the issue
18.	The Respondent argued the Tribunal does not have power to stay the operation of the suspension decision in the particular circumstances of this case, which they say involve an automatic continuation of registration under s 300(4) of the Act that has been brought to an end by suspension. More specifically that s 300(4)(b) specifies a particular consequence, being that the automatic continuation of registration lasts only until suspension and that the Act does not permit the Tribunal to relieve this consequence by issuing a stay order under s 32 of the ART Act.
19.	Mr Pike argued the Respondent approved his registration as migration agent from 26 August 2024, which was prior to the suspension decision and on that basis the Tribunal has the power to stay the Respondent’s decision (at least until the expiration of that registration).  The date relied upon by the Applicant is taken from the Decision Record of the Respondent. Mr Pike explained that he has no reason to doubt the accuracy of the date in circumstances where:
(a)	It is not unreasonable to assume the Delegate would have confirmed the registration details as part of making their decision and in drafting the Decision Record;
(b)	In his experience, the Respondent had always approved his registration as a matter of course once all the requested evidence was received. On 26 August, he provided to the Respondent information request in support of the re-registration; and
(c)	His review of the database prior to the suspension decision indicated he was registered. 
20.	Mr Pike conceded that he did not receive written confirmation that his registration was approved by the Respondent prior to the suspension decision. In doing so, he clarified that he does not recall receiving written approval in respect of any of his past re-registration applications. 
21.	The Respondent advised the Tribunal that the reference to the registration commencing on 26 August 2024 in the Decision Record was a regrettable error and that Respondent’s records confirm the registration had not been determined at the time of the suspension decision.
22.	Mr Pike lodged an application to re-register as a migration agent on 28 June 2024. Thereafter, he had the benefit of an automatic extension of his registration after the expiry date by operation of s 300(4) of the Act. 
23.	Notwithstanding that the Respondent made some further enquiries from Mr Pike on 26 August 2024, to which he provided a prompt response, there is no evidence before the Tribunal to conclude the Respondent determined and approved the registration on that day.  
24.	Mr Pike’s reliance on the date stated by the Delegate in the Decision Record is not unreasonable in the circumstances. However, the inclusion of this date in the Decision Record of itself does not prove the Respondent approved the registration. I am advised by the Respondent, and I accept, the reference to this date by the Delegate is an error.
25.	Section 300(6) provides that once the Respondent grants the registration it is taken to have effect from the end of the expiry day.  If the re-registration had been approved by OMARA, you would expect the commencement date to be recorded as 26 June 2024.  This is consistent with s 299(1) of the Act which looks to restrict a period of registration to 12 months. 
26.	I acknowledge that it may have been Mr Pike’s previous experience that re-registration applications were routinely approved promptly upon further evidence being provided to the Respondent. However, there was a significant difference in Mr Pike’s circumstances from previous years. The Applicant had been advised on 14 August 2024 by the Respondent that it had undertaken an investigation into his conduct and was considering disciplinary action.  
27.	Further, the Notice served by the Respondent on the Applicant specifically advised Mr Pike that “… it may be open to me to be satisfied that you are not a person of integrity or otherwise a fit and proper person to provide immigration assistance”. Section 290(4) of the Act provides that integrity and fit and proper person requirements are to be assessed for all applicants, not just first -time applicants. This should have flagged to him that his continued registration was not certain.
28.	I accept that Mr Pike may have reviewed review of the records prior to his suspension and that those records confirmed he was in fact registered. Noting that it is not in dispute that he had the benefit of an automatic continuation of his registration prior to the suspension decision, I am not sure this assertion assists his case. His evidence did not confirm the date his registration was effective from. 
29.	Mr Pike was honest about the fact he was unable to provide to the Tribunal any positive evidence that his application for re-registration was determined and approved prior to the suspension decision. His evidence at its highest is that the date in the Decision Record was consistent with his prior experience and recollection of the records. 
30.	It is incumbent upon the Respondent to assess every application to register as a migration agent, including applications for re-registration, to determine if the applicant meets the registration requirements outlined in the legislation. Given the legislative context of the application process, had the Respondent approved the registration I consider the approval decision would be recorded in the Respondent’s records and communicated to the Applicant in writing. I have not been provided with any evidence such as an email or letter from the Respondent, an extract from the agent’s portal or other registration records confirming the application was approved. 
31.	Based on the material before me and in the absence of any evidence of express approval of the registration, I find that the re-registration of the application was not approved by the Respondent. Therefore, the decision to suspend Mr Pike’s registration was the earliest of the four events referred to in s 300(4) of the Act and the automatic continuation of the registration was brought to an end by the suspension decision. 
32.	In determining whether this prevents the Tribunal from granting a stay of the decision, Gruszka is of some assistance noting the Court in that case reviewed the legislative scheme in some detail. In my view the factual differences between Gruszka and this matter do not infect that analysis. 
33.	In that matter, the court determined that if the Respondent suspends an agent’s registration before the expiry day of their registration, the Tribunal does have power to grant a stay of the suspension that lasts up to the expiry day. The Tribunal may not, however, purport to grant a stay of a suspension decision so as to continue the agent’s registration beyond the expiry day. 
34.	Once the suspension decision was made by the Respondent, the Applicant’s registration as a migration agent was ceased pursuant to s 300(4)(c) of the Act.  When read with s 300(7) of the Act (which states that the Respondent is taken to have made a decision even if the decision is later stayed) it is clear a stay decision cannot undo the effect of the suspension decision to cease the automatic continuation of the registration. The Act does not envisage a stay order allowing an agent to have the benefit of an automatic extension of their registration after the expiry day. Mr. Pike therefore does not have an approved registration that is capable of coming into effect as a result of his application for a stay.
35.	Pursuant to s 288(6A) of the Act, the Respondent must not consider a registration application unless it is satisfied that all proceedings including any appeals resulting from the review application have been finalised, and s 219A of the Act means he cannot be re-registered if the decision to suspend is upheld on review and the suspension has not been completed. 
36.	Mr Pike has been suspended as a migration agent and has no ability to seek a stay from the Tribunal of the implementation of that decision. I recognise that the application of the legislative scheme to Mr Pike’s circumstances is harsh, a matter also acknowledged by the by the Court in Gruszka.  
37.	Given the decision in Gruszka, which I am bound to follow, consideration of the discretionary factors is therefore unnecessary.

decision
38.	The application for a stay of the Respondent’s decision is refused.
39.	
I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for the decision herein of General Member R Smith.
40.		
...........................[sgnd]........................................
                          Associate 

Date of hearing:	28 February 2025	
Date final submissions received:	28 February 2025	
Counsel for Applicant:	Self-represented	
Counsel for the Respondent:	Ms T Weir 	
Solicitor for the Respondent:	HWL Ebsworth Lawyers