Shi v Migration Agents Registration Authority [2007] FCAFC 59 (27 April 2007)

Last Updated: 30 April 2007

FEDERAL COURT OF AUSTRALIA

Shi v Migration Agents Registration Authority [2007] FCAFC 59

MIGRATION – appeal – cancellation of migration agent’s licence – evidence on review of cancellation decision must relate to the date of cancellation rather than the date of review – conditions for lifting of caution are limited to conditions consistent with the migration agent’s registration


Migration Act 1958 (Cth) ss 276, 280, 280(1), 280(1A), 283, 287, 288, 289A, 290, 292, 303(1), 303(1)(a), 303(1)(c), 304A, 303-305B





Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843; (2004) 138 FCR 428
Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127; (2002) 124 FCR 316
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1995) 187 CLR 384
Commissioner of Taxation (Cth) v McMahon (1997) 79 FCR 127
Commonwealth v Ford (1986) 9 ALD 433
Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Egulian and the Tax Agents’ Board of New South Wales, Re (1991) 22 ATR 3542
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Hospital Benefit Fund of WA Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225
Jebb v Repatriation Commission (1988) 80 ALR 329
Migration Agents Registration Authority v Shi (2006) 43 AAR 424
Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31; (1999) 90 FCR 513
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314
Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 51 FLR 325
Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575; (2000) 106 FCR 257



NELSON GUANG LAI SHI v MIGRATION AGENTS REGISTRATION AUTHORITY
NSD 1933 OF 2006

NICHOLSON, DOWNES AND TRACEY JJ
27 APRIL 2007
PERTH (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1933 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NELSON GUANG LAI SHI Appellant
AND:	MIGRATION AGENTS REGISTRATION AUTHORITY Respondent

JUDGES:	NICHOLSON, DOWNES AND TRACEY JJ
DATE OF ORDER:	27 APRIL 2007
WHERE MADE:	PERTH (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1933 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NELSON GUANG LAI SHI Appellant
AND:	MIGRATION AGENTS REGISTRATION AUTHORITY Respondent

JUDGES:	NICHOLSON, DOWNES AND TRACEY JJ
DATE:	27 APRIL 2007
PLACE:	PERTH (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

NICHOLSON J:

1 The principal issue raised by this appeal is what is the relevant date for review by the Administrative Appeals Tribunal (the Tribunal) of the cancellation of a migration agent’s licence. One possible date is the date on which the cancellation of the licence took place (so that the evidence which should be taken into account is that which existed at the time of the cancellation or, although the review is subsequent, casts light on the facts at the time of the original decision). Alternatively, the review could be conducted with reference to the date of the Tribunal’s decision on review (so that the evidence of events since the cancellation can be taken into account in the review). The primary judge (Edmonds J) held in favour of the former view (Migration Agents Registration Authority v Shi (2006) 43 AAR 424). The Tribunal favoured the latter view.

2 The appellant sought review by the Tribunal of four decisions of the Migration Agents Registration Authority (MARA), which the primary judge described as follows:

‘(i) A decision dated 14 July 2003 in which the Authority cancelled the respondent's registration as a migration agent pursuant to s 303(1)(a) of the Act as it was satisfied that:

(a) The respondent had not complied with the Code of Conduct prescribed under s 314 (s 303(1)(h)); and
(b) The respondent was not a person of integrity or her [sic] was otherwise not a fit and proper person to give immigration assistance (s 303(1)(f))
(‘the cancellation decision’)

...
(ii) A decision dated 8 October 2003 in which the Authority refused the respondent's application for repeat registration pursuant to s 290(1) of the Act as it was satisfied that the respondent was not a person of integrity and was otherwise not a fit and proper person to give immigration assistance (s 290(1)(a) and (b)) (‘the first refusal decision’). ...
(iii) A decision dated 20 April 2004 in which the Authority suspended the respondent's registration pursuant to s 303(1)(b) of the Act as it was satisfied that the respondent had not complied with the Code of Conduct prescribed under s 314 - see s 303(1)(h) (‘the suspension decision’). ...
(iv) A decision dated 16 August 2004 in which the Authority refused the respondent's second application for repeat registration pursuant to s 290 of the Act on the same grounds as the first refusal decision (‘the second refusal decision’). ...’

3 The outcome of the proceedings before the Tribunal was as follows. The cancellation decision was set aside and a decision substituted that the appellant be cautioned subject to conditions for its lifting by 1 September 2008. The first and second refusal decisions were set aside and a decision substituted that the appellant’s repeat registration was approved and renewed. The suspension decision was set aside and a decision made not to suspend the appellant’s registration.

RELEVANT LEGISLATIVE PROVISIONS

4 The reasons of the primary judge set out the relevant legislative provisions and it is appropriate to rely on that statement:

‘8. The scheme for the registration of migration agents is set out in Part 3 of the [Migration Act 1958 (Cth) (the Act)], and was inserted by the Migration Amendment Act (No. 3) 1992 (Cth). The scheme was substantially amended by the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 (Cth), the relevant parts of which took effect on 21 April 2004 and 1 July 2004.

9. Section 303(1) of the Act provides:

‘The Migration Agents Registration Authority may:

(a) cancel the registration of a registered agent by removing his or her name from the register; or

(b) suspend his or her registration; or

(c) caution him or her;

if it becomes satisfied that:

(d) the agent’s application for registration was known by the agent to be false or misleading in a material particular; or

(e) the agent becomes bankrupt; or

(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or

(g) an individual related by employment to the agent is not a person of integrity; or

(h) the agent has not complied with the Code of Conduct prescribed under section 314.’

10. Section 290 of the Act relevantly provides:

‘(1) An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:

(a) the applicant is not a fit and proper person to give immigration assistance; or

(b) the applicant is not a person of integrity; or

(c) ...

(2) In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:

(a) the extent of the applicant’s knowledge of migration procedure

...

(4) To avoid doubt, this section applies to all applicants (not just first time applicants).’

11. Section 292 of the Act provides:

‘An applicant must not be registered if his or her registration as a migration agent has been cancelled under section 303 within 5 years before the application.’

12. Section 304A of the Act provides:

‘The Migration Agents Registration Authority may set one or more conditions for the lifting of a caution it gives to a registered migration agent.’

13. Section 306 of the Act provides:

‘Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division.’

14. Section 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) relevantly provides:

‘The Tribunal has power to review any decision in respect of which application is made to it under any enactment.’

15. Section 43 of the AAT Act relevantly provides:

‘(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a) affirming the decision under review;

(b) varying the decision under review; or

(c) setting aside the decision under review and:

(i) making a decision in substitution for the decision so set aside; or

(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

...

(6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.’’

TRIBUNAL REASONING

5 As the primary judge recounted at [4]:

‘The Tribunal split its decision-making process, first by making findings of fact on the respondent’s alleged breaches of the Code of Conduct prescribed by s 314 of the Act – finding 51 such breaches, of which 47 related to protection visa cases (‘the 6 April 2005 findings’) – and then, after receiving submissions on those findings, publishing its decision and reasons for decision on 2 September 2005, making findings on whether the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance pursuant to s 303(1)(f) of the Act (‘the 2 September 2005 reasons’).’

6 The Tribunal’s reasons are extensively summarised in the published reasons of the primary judge.

FIRST GROUND OF APPEAL: RELEVANT DATE FOR DETERMINATION

Reasoning of primary judge

7 The primary judge described the first ground of appeal before him as follows (at [16]-[17]):

‘The first ground of appeal agitated in the Authority’s written and oral submissions focused on the cancellation decision. It was common ground that in relation to the review of the decision to cancel the respondent’s registration, the question for the Tribunal was whether that decision was the correct or preferable decision: Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J; that is, whether it was the correct or preferable decision to conclude that the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance.
...
The primary issue raised by this ground was whether the Tribunal asked itself this question in relation to the correct point in time. The Authority submitted that the Tribunal did not consider whether, on 14 July 2003 – the date of the Authority’s decision – the correct or preferable decision was to cancel the respondent’s registration; rather, the question which the Tribunal asked itself was whether, on 2 September 2005 – the date of the Tribunal’s decision – the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance.’

8 His Honour’s view on the ground was (at [73]-[77]):

‘After having considered the relevant provisions of the Act, the authorities to which I was referred and the respective submissions of the parties, I have concluded that the ‘clear line of authority’, beginning with the decision of Davies J in Freeman, upon which the Authority relies, does govern the position in relation to the cancellation decision and that the question which the Tribunal had to ask itself was whether, on 14 July 2003, the correct or preferable decision was to cancel the respondent’s registration; in other words, the question which the Tribunal had to ask itself was whether, as at that date, the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance.

I am of the view that the Tribunal did not ask itself this question. Rather, it asked itself whether, at the time of its decision, the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance.

...

In my view, the Tribunal’s error constitutes an error of law and a jurisdictional error in two respects: The Tribunal asked itself the wrong question; and the Tribunal had regard to matters it was bound not to consider.’

9 The appellant appeals against this decision of his Honour on the first ground before him.

Propositions from the authorities

10 His Honour’s reasoning was based on what he described as the ‘clear line of authority’. It is therefore appropriate to examine the line of authority on the issue. I consider it establishes the following:

1. The Tribunal is empowered to exercise all of the powers and discretions that are conferred by any enactment on the person who made the decision the subject of the Tribunal’s review (s 43(1) of the AAT Act): Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843; (2004) 138 FCR 428 at [24] per Branson J.
2. The Tribunal is required to determine whether the decision under review was the correct or preferable decision having regard to the material before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 per Bowen CJ and Deane J at 419 and Smithers J at 438-439, cited by Branson J at [24] in Aged Care [2004] FCA 843; 138 FCR 428. That is, the Tribunal is not confined either to the material which was before the primary decision-maker or the events which had occurred up till the time of its decision: per Wilcox J in Commonwealth v Ford (1986) 65 ALR 323 at 437-438 citing Drake 46 FLR at 419 and Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 51 FLR 325 at 326-327 cited by Davies J in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 344. This general approach of the Tribunal was described by Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329 at 289 as being:
‘to regard the administrative decision-making process as a continuum and to look upon the Tribunal’s function as a part of that continuum so that, within the limits of the reconsideration of the decision under review, the Tribunal considers the applicant’s entitlement from the date of application or other proper commencing date to the date of the Tribunal’s decision.’

Freeman 19 FCR at 344 cited by Branson J in Aged Care 138 FCR at [29].

3. However, the Tribunal is obliged to address the same question as the primary decision-maker: Freeman 19 FCR at 345 per Davies J; Hospital Benefit Fund of WA Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234; Commissioner of Taxation (Cth) v McMahon (1997) 79 FCR 127 per Lockhart J at 133-134, Beaumont J at 140-141 and Emmett J at 150 cited by Branson J in Aged Care 138 FCR at [25]; followed by Weinberg J in Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31; (1999) 90 FCR 513. The principle in 2 cannot be applied beyond its scope, that is, in circumstances where the question under review does not attract the application of the principle: Freeman 19 FCR at 344.
4. Where the question to be decided arises under a statute, the relevance of later evidence will depend upon the proper construction of the statute and the particular factual context: Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314 at [51] per Hely, Gyles and Allsop JJ. In Re Egulian and the Tax Agents’ Board of New South Wales (1991) 22 ATR 3542 an application for registration as a tax agent under s 251JA of the Income Tax Assessment Act 1936 (Cth) in relation to which experience in tax matters in the preceding five years was required to be considered, was held by Deputy President McMahon to relate to the five years preceding the application rather than the review, applying the reasoning in Freeman 19 FCR 342. If the primary decision had to be made by reference to a particular point of time, the Tribunal will be limited to deciding the question by reference to that point of time: Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521 per Hill J applying Hospital Benefit Fund 39 FCR 225. See also Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575; (2000) 106 FCR 257 per Katz J at [31] holding that the issue whether a student was or was not in compliance with a condition of a student visa required reference to the date of the delegate’s decision, not the date of the decision of the Tribunal. In the factual context in Akai 50 FCR 511 Hill J found that a construction limiting the Tribunal not to have regard to submissions made by parties to a later external review could have only been adopted where express words or necessary implication required it. In Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127; (2002) 124 FCR 316 at [18]- [32] Stone J was unable to find support in the Industry Research and Development Act 1986 (Cth) for either of the opposing views put to her and decided the issue on the basis that there was no inconsistency between the policy of the Act and the possibility that an applicant may become registered having met the criteria for registration after the date its application was made.
5. Categorisation (by which I understand to include characterisation) of a decision (such as a cancellation or revocation decision on the one hand or an approval or entitlement decision on the other) is ‘helpful only to the extent that it assists in the identification of the issues that the accrediting authority was required to address for the purpose of making its decision’: per Branson J in Aged Care 138 FCR at [26].
6. It is important to examine the decision in question to ascertain any special features created by statutory provisions applicable to it, for example that it must be made within a certain time limit or can only be made following a certain procedure: cf Aged Care 138 FCR at [27]-[28] per Branson J. Where the decision under review is a decision cancelling a pension it should be considered in the context of any provisions providing that once a pension has been cancelled there is no entitlement to restoration of it without lodgement of a further claim: Freeman 19 FCR at 345.
7. If the decision could only have been made following a certain procedure, it may be that the evidence called on the review cannot be such as would undermine that procedure. This may preclude the calling of evidence of improvements implemented after the date of the decision and in response to the procedure: per Branson J in Aged Care 138 FCR at [30].
8. This does not mean that the Tribunal cannot receive evidence of facts that occurred after the date of the decision under review provided that evidence bears on the merits of the decision as at the time that it was required to be made: Aged Care 138 FCR at [31].

The decision before the primary decision-maker and its statutory context

11 The decision of the respondent to cancel the registration of the appellant was made on 14 July 2003 in express reliance upon s 303(1)(a) of the Act. It appears in Pt 3 ‘Migration agents and immigration assistance’. Division 2 enacts ‘Restrictions on giving of immigration assistance and making of immigration representations’. Section 280(1) provided that, subject to the section, a person who is not a registered migration agent must not give immigration assistance. Section 276 in Div 1 defines what is meant by immigration assistance to include assistance given to a visa applicant or cancellation review applicant where the person uses or purports to use, knowledge of, or experience in, migration procedure. It is clear that the prohibition in s 280 is intended to provide protection to visa applicants and cancellation review applicants in respect of inappropriate or unregulated migration assistance. This is emphasised by s 280(1A) which provides an offence under s 280(1) is an offence of strict liability. The importance of registration appears also from s 283 which makes it an offence for a person to falsely represent themselves as a migration agent.

12 Registration is provided for in Pt 3, Div 3. Section 287 sets up a register of migration agents. Section 288 provides for the mode of application for registration, including a publishing requirement. Powers are given to the respondent to require some applicants to make a statutory declaration (s 288B of the Act). Section 289A provides that a new applicant or one not registered for 12 months must not be registered without completion of a prescribed course and the holding of prescribed qualifications. Section 290, set out earlier in these reasons, establishes a prohibition on registration if the applicant is not a person of integrity or not fit and proper.

13 Section 292, also set out earlier, is important because, by providing that following cancellation an applicant must not be registered within 5 years, it supports the view that the Act shows an intent that the cancellation shall take effect when the circumstances justifying it arise. Also that a fresh application is required to attain re-registration after expiry of the prohibited period.

14 The disciplinary provisions are contained in ss 303-305B, some of which have been previously set out.

15 Subsequent divisions of Pt 3 of the Act also make apparent the intent of the Act to have effective discipline and control over migration agents and former migration agents: see Divs 3AA, 3A, 4, 4A and 5.

16 In my view the context in which s 303(1) appears shows a clear intent that conduct falling short of that required by the Act in relation to migration agents shall lead to the appropriate disciplinary result as at the date of the conduct being established. There is nothing from which to infer that later evidence of a rehabilitative nature or other character evidence should be taken into account. On the contrary, the intent of Parliament is to impose standards and to not allow inappropriate conduct to go undisciplined.

17 The decision which the primary decision-maker considered was whether the registration of the appellant should be cancelled as at 14 July 2003, necessarily on the evidence available as at that date. It was that decision which the Tribunal was required to review.

18 Applying the principles set out above from the authorities, I am unable to agree that it was open to the Tribunal to take into account evidence occurring after 14 July 2003, save as any such evidence may have cast light upon the decision as at that date.

19 I therefore agree with the reasoning of the primary judge on this ground and share with him the view that the approach of the Tribunal was in error in this particular instance.

SECOND GROUND: POWER OF TRIBUNAL TO SET CONDITIONS ON LIFTING OF CAUTION

20 In making its decision to set aside the cancellation decision the Tribunal substituted the decision to caution the appellant. It went on to order that the caution will be lifted on 1 September 2008 if: (1) the Agent is supervised by a registered migration agent until that date; and (2) the appellant did not provide immigration assistance with respect to protection visas before that date.

21 The primary judge relevantly described the second ground before him as follows (at [81]-[83]):

‘The second ground of appeal agitated by the Authority namely, whether the Tribunal took into account the extent of the respondent’s knowledge of migration procedure when it considered whether the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance, contains two streams of contention.

First, ...

Second, the fact that the Tribunal considered that the public interest required the respondent to be supervised for a period of three years and to have his areas of work limited so that he could not undertake work relating to protection visas during the same period, should have led the Tribunal to the view that the respondent was not a fit and proper person to give immigration assistance and, insofar as it did not do so, there was a misconstruction of the Act to the facts as found and a jurisdictional error.’

22 As to the second stream of contention his Honour said (at [85] and [87]):

So far as the second stream is concerned, the correct analysis is, I think, more complex. Section 304A provides that the Authority may set one or more conditions for the lifting of a caution it gives to a registered migration agent. Section 304A has to be construed, in the first instance, in context in its wider sense: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; [1995] 187 CLR 384 at 408. The context here is Division 3 of Part 3 of the Act including, as it does, s 290. This limits, in my view, the conditions that may be set for the lifting of a caution to conditions which are consistent with the migration agent’s registration. In other words, the conditions which may be set for the lifting of a caution must be predicated upon the migration agent’s registration as such, including his entitlement to provide immigration assistance.
...
It follows, in my view, that the Authority, and in its shoes on review the Tribunal, cannot set conditions for the lifting of a caution which could not be imposed as conditions of an individual’s registration as a migration agent. In my view, the conditions imposed in the present case fall into that category.’

23 The appellant now contends that his Honour ought to have found that the Tribunal was entitled to set conditions under s 304A of the Act for the lifting of a caution given under s 303(1)(c) of the Act.

24 The appellant contends that the power to impose conditions relevant to the lifting of a caution as provided for in s 304A is not subject to any statutory description or words of limitation. It is submitted these should not be implied in the absence of any clear necessity.

25 As to the nature of the conditions, it is submitted that there is no reason why the Tribunal could not impose any reasonable condition, including a condition limiting the class of professional work that an agent may undertake.

26 I agree with the reasoning of his Honour that the conditions that may be set for the lifting of a caution are necessarily limited to conditions that are consistent with the migration agent’s registration. As was said in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1995) 187 CLR 384 at 408 in the passage cited by his Honour ‘context’ in relation to statutory interpretation is used in its widest sense and instances of general words being constrained by there context are numerous. That being the case and, in the view of the Tribunal the registration of the appellant not being cancelled or suspended, the power in s 304A cannot be utilised to impose conditions by way of limitation on his right to give immigration assistance. To so permit would be in effect to permit the Act to be amended in the guise of orders made under s 304A.

27 I therefore do not consider that the appellant can make out any error of law in his Honour’s conclusion in the area raised by this second ground.

CONCLUSION

28 For these reasons I consider the appeal should be dismissed and the appellant should pay the respondent’s costs of the appeal. The orders of Edmonds J would therefore remain in place and the remitter to the Tribunal would take place in accordance with those orders.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:
Dated: 27 April 2007

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1933 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NELSON GUANG LAI SHI Appellant
AND:	MIGRATION AGENTS REGISTRATION AUTHORITY Respondent

JUDGES:	NICHOLSON, DOWNES AND TRACEY JJ
DATE:	27 APRIL 2007
PLACE:	PERTH (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

DOWNES J:

FACTS

29 Nelson Guang Lai Shi has been a migration agent since December 1995. In 2003 and 2004 the Migration Agents Registration Authority made four decisions affecting his registration. It cancelled his registration (14 July 2003), refused an application for re-registration (8 October 2003), suspended his registration for three years (19 April 2004) and refused a second application for re-registration (16 August 2004). This appeal is concerned only with the cancellation decision of 14 July 2003. That decision was made pursuant to paras 303(1)(f) (the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance) and 303(1)(h) (the agent has not complied with the Code of Conduct prescribed under s 314) of the Migration Act 1958 (Cth).

30 Mr Shi sought review of all four decisions in the Administrative Appeals Tribunal. Each decision was subject to a stay imposed either by the Tribunal or this Court. On 2 September 2005, the Tribunal (Senior Member Kelly) set aside the cancellation decision and substituted a decision that Mr Shi was cautioned. The caution will be lifted on 1 September 2008 if until that time Mr Shi practices only under the supervision of a registered migration agent and does not provide immigration assistance with respect to protection visas.

31 The Tribunal found that para 303(1)(f) (fitness) was not made out and that cancellation or suspension was not appropriate in relation to the breach of para 303(1)(h) (Code of Conduct). Although Mr Shi had given incorrect and misleading evidence and his conduct as a whole indicated that he did not appreciate his obligations under the prescribed Code, there was no evidence that he had acted dishonestly and he had not breached the Code since 2003. In addition, he had a number of favourable references and had been practising for two years under the supervision of a knowledgeable and experienced migration agent who held him in high regard. In these circumstances, the Tribunal considered that the public interest could be appropriately served by allowing Mr Shi to continue to practice, subject to conditions imposed under s 304A of the Migration Act.

32 On 15 September 2006, Justice Edmonds set aside the Tribunal’s decision. His Honour found that the Tribunal had made two errors of law. First, the Tribunal had reviewed the Authority’s decision as at the date of the Tribunal decision, rather than at the date of the cancellation decision. Secondly, the Tribunal did not have power to impose conditions restricting Mr Shi’s practice because such conditions could not be imposed on registration under s 280 of the Migration Act.

ISSUES ON APPEAL

33 There are two issues involved in this appeal:

1. Did the Tribunal ask itself the right question by considering Mr Shi’s compliance with paras 303(1)(f) and (h) of the Migration Act on the date of the Tribunal’s decision? That is, was it entitled to have regard to facts occurring after the date of the Authority’s decision?

2. Can the Tribunal impose conditions, requiring supervision and restricted practice, for the lifting of a caution under ss 303(1)(c) and 304A of the Migration Act?

34 In my opinion, both questions must be answered affirmatively. The appeal should be allowed and the decision of the Tribunal restored.

ISSUE 1: RELEVANT TIME FOR TRIBUNAL DECISION

35 The Administrative Appeals Tribunal is not a court. It does not exercise the judicial power of the Commonwealth. It is an administrative decision-maker. It exercises the executive power of the Commonwealth. Administrative decision-making is almost always improved if it is based on the facts and circumstances as they are at the time of the decision and not as they were in the past. Administrative decisions should always be made on this basis unless there are compelling reasons for doing otherwise. Sometimes, however, legislation conferring the decision-making power will, expressly or by implication, require the decision-maker to address a time prior to the decision and the facts and circumstances as they were at that time.

36 The position is different with litigation before courts. Judicial power is concerned with resolving disputes between parties. The dispute must exist at the time proceedings are commenced and generally be defined by pleadings or other documents addressing that point of time. Courts, accordingly, focus much more on the circumstances as they were at the time the proceedings were commenced. In this respect the work of courts can be contrasted with that of tribunals engaged in merits review of administrative decisions. It is nevertheless true to say that even in litigation the tendency to look at facts and circumstances occurring after proceedings have commenced has been increasing, albeit for the purpose of informing the state of affairs at the time proceedings were commenced. For example, O 11 r 7 of the Federal Court Rules expressly permits a party to "plead a fact or matter that has occurred or arisen since the commencement of the proceeding". In an appeal from the judgment of a court the question is whether the decision below is correct. In an application to a tribunal for merits review of an administrative decision the whole matter must be considered afresh.

37 The process of administrative review has been described as "a continuum". A past President of the Administrative Appeals Tribunal, Davies J, sitting in the Federal Court of Australia in Jebb v Repatriation Commission (1988) 80 ALR 329 at 333, said:

"[The] general approach of the tribunal has been to regard the administrative decision making process as a continuum and to look upon the tribunal’s function as a part of that continuum so that, within the limits of a reconsideration of the decision under review, the tribunal considers the applicant’s entitlement from the date of application, or other proper commencing date, to the date of the tribunal’s decision."

38 Hill J expanded upon this in Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521:

"The Tribunal is an administrative Tribunal and, as has often been said, its function is merely to do over again what the original decision-maker did, working out, as a further step in administration, what it considers the decision ought to be: cf Mobil Oil Australia Pty Limited v Commissioner of Taxation (Cth) [1963] HCA 41; (1963) 113 CLR 475 at 502 per Kitto J; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 413-415 per Bowen CJ and Deane J, and more recently see Liedig v Commissioner of Taxation [1994] FCA 1058; (1994) 50 FCR 461. In exercising its role, in what Davies J in Jebb v Repatriation Commission (1988) 8 AAR 285 at 288-289 referred to as a "part of" an administrative "continuum", the Tribunal, within the ambit of the jurisdiction conferred upon it as a review authority, decides the matter by reference to the evidence before it and not the evidence before the decision-maker, taking into account events that may have occurred to the date of decision: cf Jebb (at 289-290); Lucas v Repatriation Commission (1986) 69 ALR 415 at 421; Ward v Nicholls (1988) 20 FCR 18 at 22, per Wilcox J.
It is true that the review to be conducted by the Tribunal is a review of a specific decision and if that decision has to be made by reference to a particular point of time the Tribunal will be limited to deciding the question by reference to that point of time. That was the case in Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225, but ordinarily in such a case the Tribunal will not be limited to the evidence before the decision-maker although obliged to address the question the decision-maker addressed."

39 It will be seen that two issues are involved. The first is whether the reviewing decision-maker can have regard to evidence not before the original decision-maker. The answer is almost always yes. The second is whether the reviewing decision-maker can make its decision on facts and circumstances occurring after the making of the original decision usually up to the time of the making of the reviewing decision.

40 Jebb and Akai were followed by Stone J in Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127; (2002) 124 FCR 316. That case involved the question of whether the Administrative Appeals Tribunal could consider subsequent evidence when reviewing a decision of the Industry Research and Development Board to refuse registration as an Australian research agency where the applicant did not satisfy the requirements of the legislation at the time of application. The court held that it could. This was notwithstanding regulatory requirements that the Board needed to be satisfied that particular criteria were satisfied. Subsequently satisfying the criteria could not alter the fact that the criteria were not satisfied at the time they were considered by the Board.

41 The issue in the present case is whether the Tribunal, when reviewing a decision to cancel the registration of a migration agent, should act solely on the facts and circumstances as they were at the time of the decision being reviewed. As a matter of policy, I can see no reason why the review decision should be so confined. Indeed, to the extent to which legislative intention is relevant to the meaning of the legislation, I cannot imagine a legislative intention that a review decision should be based on other than the most up to date information. Suppose the Tribunal considered that the material before the Authority did not justify cancellation, but the agent had subsequently committed a serious criminal offence!

42 The appropriate basis to commence consideration of the issues is the prima facie position that administrative decisions should be made on the latest material. The question becomes whether there is anything in the legislation which requires a different conclusion.

43 The relevant section (subs 303(1)) confers power on the Authority to take action, including the cancellation of registration, "if it becomes satisfied" of any of a number of matters generally associated with integrity. The section does not address any moment of time other than the moment of decision. On that basis it is less likely that the decision has to be made at a specific point in time than in Tea Tree. I can see nothing in the legislation which suggests that the Tribunal should do other than consider the question before it at the time of its decision, based on the material then available to it, including events occurring up to the decision.

44 I can see no basis for any qualification limiting the use of subsequent events to the light they shed on character as at the time of the decision under review. It would be clumsy to introduce a distinction that, for example, a subsequent criminal conviction might inform a decision as to integrity (ground (f)) at an earlier point of time, but that a subsequent breach of the Code of Conduct (ground (h)) could not inform a decision on that issue at an earlier point of time. Similarly, if a migration agent has reformed his or her behaviour so that s 303 is no longer contravened and the Tribunal considers that action is no longer warranted, taking no action would seem to be the correct result. Allowing the Tribunal to have regard to subsequent conduct would not undermine the legislation, nor lead, as submitted by counsel for the Authority, to a lessening of standards amongst migration agents. The Tribunal would be bound to carefully scrutinise the changed circumstances and to satisfy itself that the reformed conduct was not merely a device to avoid cancellation or suspension. It would, in any event, take into account that the reformed conduct was not spontaneous. It would pause before it found that such changed circumstances should lead to a different result.

45 During the hearing counsel for the Authority accepted that in a review before the Tribunal "it" in the phrase in subs 303(1) "it becomes satisfied" referred to the Tribunal. This is consistent with the many observations that have been made that the Tribunal "stands in the shoes" of the original decision-maker. So understood, the Tribunal’s task is described in the present tense. That is consistent with all the general learning relating to the task of reviewing administrative decision-making to which I have referred.

46 There is no doubt that subs 303(1) shows a clear intent that offending conduct should lead to relevant disciplinary action at the date of the conduct being established. However, that date is the date on which the relevant decision-maker makes the decision. Once a party exercises the right to apply for review to the Tribunal the decision-maker is the Tribunal, the relevant issue is whether it is satisfied and the relevant date is the date of its decision. Because of the continuum approach the Tribunal will naturally take into account the circumstances as they were at the time of the making of the Authority’s decision. However, the application for review has the effect of constituting the Tribunal as the body whose satisfaction is relevant – it is no longer the Authority.

47 Considerable time was spent in argument in this Court and in the court below considering the decision of Davies J in Freeman v Department of Social Security (1988) 19 FCR 342, given only four months after his decision in Jebb. Edmonds J said that, along with other decisions, the decision established that the question for the Tribunal was "whether, on 14 July 2003, the correct or preferable decision was to cancel the respondent’s registration". In Freeman, Davies J held that the Tribunal, in reviewing a decision to cancel the appellant’s pension, was entitled to consider only the appellant’s circumstances as at the date of the cancellation decision, despite the fact that those circumstances may no longer have applied at the date of the Tribunal decision. Freeman concerned a pension payable fortnightly. There is a compelling basis in such a case, where it had been established before a competent decision-maker that the entitlement had ceased at a prior point of time, that cancellation should be affirmed. If the pensioner subsequently qualified anew then that would require a fresh application. There would be no pension entitlement in the interim. That is an example of a case where legislation did require the Tribunal to address a particular point of time. Moreover, as both parties agreed, Davies J did not in Freeman promulgate a general rule applicable to cancellation decisions. Rather, he emphasised that "[r]egard must always be had to the nature of the decision which is under review" (at 345). There is nothing about the nature of the decision under review in the present case that causes me to consider that I should depart from the general principle that administrative review is conducted at the time of the review on the latest material available.

ISSUE 2: IMPOSITION OF A CAUTION SUBJECT TO CONDITIONS

48 The second issue in the appeal is whether it was competent for the Tribunal, having set aside the decision to cancel the agent’s registration, to substitute a caution which was to be lifted at a fixed time if the agent desisted in the meantime from providing assistance with protection visas and was supervised by a registered migration agent.

49 The thrust of the decision below is that the Tribunal was not competent to substitute such a decision because similar conditions were not contemplated and could not be imposed at the time of a migration agent’s initial registration (see s 280). Registration contemplated the right to give immigration advice and any condition could not impinge upon that right.

50 The circumstances of a migration agent who has been found to have contravened one or more of the standards in subs 303(1) warranting disciplinary action are very different to those of an agent applying for ordinary registration. Given that cancellation precludes all activity and suspension precludes all activity for a period, it seems to me that precluding some specific activity associated with the contravention for a limited time is a reasonable disciplinary alternative. It does not seem to me to be inconsistent that an agent not under discipline cannot be subject to a similar limitation. The question is, what does the legislation authorise?

51 The concept of a caution subject to conditions is new to me. The idea that a condition could relate to the lifting of the caution itself seems even more novel. However, this is what ss 303 and 304A expressly provide. The novelty of a concept should not lead to a narrowing of its extent. Section 304A provides:

"The Migration Agents Registration Authority may set one or more conditions for the lifting of a caution it gives to a registered migration agent."

52 I can well understand that the legislature might have provided for a fourth disciplinary alternative within subs 303(1), namely, the imposition of conditions on registration itself. That is how one would ordinarily expect conditions to operate. However, that is not what is provided by s 303(1)(c) and the rather inelegantly worded s 304A.

53 Section 304A speaks of a "condition for the lifting of a caution". The concept of the lifting of a caution itself seems odd. After all, a caution is a single act of communication. It will usually have as its future consequence some more serious disciplinary action if the caution is not heeded, rather than the "lifting" of the caution through compliance with conditions. How can a caution, once given, be lifted? The answer to that is more associated with practical considerations under the legislative regime than the nature of a caution. By s 287 the caution must be shown on a public register unless it is no longer in effect. Although in this realm of strained use of the English language it may not necessarily follow that a lifted caution is no longer in effect, that would seem to be the intent of the legislation.

54 Counsel for the Authority submitted that conditions attached to a caution are incapable of restricting a migration agent’s practice. As a consequence of his continued registration, Mr Shi is still legally entitled to provide services with respect to protection visas and to act without supervision. The Authority submits that the only consequence of breaching the conditions is that the caution will not be lifted. However, this is not necessarily the case. Such conduct would be likely to trigger further disciplinary action. The fact that the Act does not provide a more coercive mechanism for restricting an agent’s practice does not mean that the conditions imposed by the Tribunal are unlawful.

55 The question in this Court is whether the tribunal erred in law. We have no power to address the merits of the decision. We did not hear the evidence. Consistently with the limitation on the appeal before us, counsel for the parties did not address the merits. Nevertheless, the limited knowledge we have of the facts may suggest that the appellant was fortunate in the result which occurred in this case. I repeat, however, that that is not a matter for us and cannot affect the outcome of the issues of law before us.

56 Sections 303(1)(a) and 304A provide an unusual mechanism for attempting to restrict the practice of a migration agent under discipline. The Tribunal did not err in law in engaging the provisions in the manner it did.

57 In my opinion, the appeal must be allowed.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.

Associate:

Dated: 27 April 2007

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1933 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NELSON GUANG LAI SHI Appellant
AND:	MIGRATION REGISTRATION AUTHORITY Respondent

JUDGES:	NICHOLSON, DOWNES AND TRACEY JJ
DATE:	27 APRIL 2007
PLACE:	PERTH (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

TRACEY J:

58 I agree with Nicholson J that this appeal should be dismissed. I do so for the reasons given by his Honour and for the following additional reasons.

59 The first issue on the appeal (‘the temporal issue’) falls to be determined having regard to the provisions of Part 3 of the Migration Act 1958 (Cth) (‘the Migration Act’) and s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). The registration scheme provided for in Part 3 of the Migration Act is primarily concerned with protecting the public (and, in particular, that section of the public which may, from time to time, require advice about matters dealt with in the Migration Act) from unscrupulous or incompetent persons who hold themselves out as being capable of providing immigration assistance or immigration representations for a fee. The regulatory scheme involves an initial assessment of fitness (including competence) when registration is first sought. Once registration is obtained there is an ongoing obligation, imposed on registrants, to maintain required standards. In this sense a discipline is imposed on migration agents.

60 The statutory regulator, the Migration Agents Registration Authority ("MARA") has power, under the Migration Act, to intervene in circumstances where "it becomes satisfied", inter alia, that the agent is "not a fit and proper person to give immigration assistance" or has not complied with the prescribed code of conduct: see s 303(1)(f) and (h). Upon becoming so satisfied MARA may cancel an agent’s registration, suspend the agent’s registration or caution the agent: see s 303(1)(a), (b) and (c). If MARA takes one of these steps the agent may make an application for review to the Administrative Appeals Tribunal: see s 306. When reviewing a decision the Tribunal is empowered, by s 43 of the AAT Act, to exercise all of the powers and discretions which are conferred in MARA by the Migration Act and may affirm MARA’s decision or take one or more of the remedial steps provided for in s 43(1).

61 In the present case the Tribunal proceeded on the basis that it was required to determine, as at the date of its decision, whether the agent was a fit and proper person to provide immigration assistance. As a result it took into account various remedial steps which had been taken by the agent following MARA’s decision to cancel his registration. These steps had a material bearing on the Tribunal’s favourable assessment of the agent’s fitness and propriety (although it was expressed as a double negative: the Tribunal was "not satisfied" that the agent was "not a fit and proper person ...").

62 I agree with the learned primary Judge that, in approaching its task in this way, the Tribunal erred. Section 303(1) of the Migration Act does not provide that disciplinary action may be taken against a migration agent if the agent is not a fit and proper person to provide immigration assistance. The pre-condition for intervention is MARA becoming satisfied that the agent is (no longer) a fit and proper person. Upon becoming so satisfied MARA can take the action prescribed by s 303(1) of the Migration Act. If it decides to cancel registration one consequence is that the agent cannot be re-registered within five years of the date of the cancellation decision: see s 292. These provisions focus attention on the time at which MARA becomes satisfied as to an agent’s shortcomings and acts. In my view they support the conclusion to which the primary Judge came, namely, that when the Tribunal came to review MARA’s decision, it had to determine whether, on 14 July 2003, when MARA made the decision to cancel the agent’s registration, he was or was not a fit and proper person to give immigration assistance.

63 I accept that, in some cases, it may be convenient if the Tribunal were able to have regard to events which occurred after MARA had made its decision even though those events could in no way assist in the formation of the necessary opinion as at the date on which the decision under review was made. An example cited in argument was that of an agent who is convicted of a serious criminal offence whilst his review application is pending. Notions of convenience must, however, yield to the dictates of the legislation. There is, in my view, force in the respondent’s argument that the regulatory scheme would be undermined if migration agents understood that they could engage in conduct warranting disciplinary action safe in the knowledge that, if and when MARA became aware of it and took action, they could reform their conduct prior to a hearing before the Tribunal such as to render themselves fit and proper persons and have any disciplinary action taken by MARA set aside. It will, on occasions, be inconvenient for a second set of proceedings to be commenced to deal with an event, such as a criminal conviction, which occurs while an application for review is pending in the Tribunal. However, MARA has the capacity to act speedily to protect the public by cancelling or suspending registration if that is considered to be an appropriate response.

64 The second point raised on the appeal arises because the Tribunal, while declaring itself satisfied that the agent had failed to comply with the code of conduct, determined that the appropriate response was to caution the agent and to further determine that the caution would be lifted on 1 September 2008 if, in the interim, the agent was supervised in his work by a registered migration agent and that the agent did not provide immigration assistance with respect of protection visas. Because the Tribunal set aside MARA’s decision to cancel the agent’s registration, the result was that the agent remained free to hold himself out as agent but could do so only subject to the conditions imposed by the Tribunal if he wished the caution to be lifted in September 2008.

65 The notion of conditional registration is foreign to the Act. An agent is either registered or he or she is not. If registered the agent may undertake the full range of work comprehended by the terms "immigration assistance" and "immigration representations" as defined in the Migration Act. He or she may do so unsupervised. I agree with the primary Judge that s 304A does not empower MARA (or the Tribunal on review) to do more than provide for steps which must be taken by an agent in order to have a caution lifted, such caution attaching to an unrestricted right to act as a migration agent. Remedial steps may include the taking of courses of instruction as to, for example, the requirements of the code of conduct or some aspect of migration law which are judged necessary in order to improve the level of the agent’s competence. However, while these conditions operate, the agent remains registered and able to function as such without restriction. If the agent does not satisfy the condition the only consequence is that the caution remains in place. The public is protected to the extent that particulars of any caution given are recorded in the Register of Migration Agents which is a publicly available document: see s 287(2)(h) and (4).

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated: 27 April 2007

Counsel for the Appellant:	T Game SC with N Poynder
Solicitor for the Appellant:	KesselsGoddard+Ajuria
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 February 2007
Date of Judgment:	27 April 2007