Shi
vMigration Agents Registration Authority

Judges: Kirby J
Hayne J
Heydon J
Crennan J

Kiefel J

Judgment by:
Kiefel J

119. The principal question on this appeal concerns the review by the Administrative Appeals Tribunal ("the Tribunal") of a decision of the Migration Agents Registration Authority ("the Authority") to cancel the appellant's registration as a migration agent. The question is whether, on that review, the Tribunal is restricted to a consideration of facts and events which had occurred at the time of the Authority's decision. The answer to it lies in the identification of the powers which are to be exercised by the Tribunal and the specific decision to which they are addressed.

The Authority's decision

120. Part 3 of the Migration Act 1958 (Cth) is concerned with migration agents and the immigration assistance they may render. Immigration assistance ^[90] can only be given by a person who is registered as a migration agent ^[91] . Division 3 deals with registration and confers power upon the Authority ^[92] to discipline registered migration agents. Section 303(1) provides:

"The Migration Agents Registration Authority may:

(a)

cancel the registration of a registered migration 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."

121. On 14 July 2003 the Authority cancelled the appellant's registration, by reference to s 303(1)(h) and (f). Its decision records the investigatory steps taken by it subsequent to the receipt of a complaint about the appellant, including its request of the appellant for his files ^[93] and its interviews of him ^[94] , culminating in its notice to him that it was contemplating taking the action referred to in s 303(1)(a) to (c) because of breaches of the Code of Conduct, which it specified by reference to the clauses concerned. Following upon the receipt of the appellant's submissions the Authority made findings of breaches of the Code of Conduct. The breaches included failures, on his part, to keep his clients informed, failures to control and supervise his staff, failures connected with applications which were vexatious or grossly unfounded, the making of misleading and inaccurate statements, failures to maintain and improve his knowledge of statutory amendments and failures to seek assistance and advice when necessary. The Authority also found that he was not a person of integrity or otherwise not a fit and proper person to give immigration assistance. This conclusion was arrived at by reference to the pattern of conduct evidenced by the breaches of the Code. The Authority made three further decisions relating to the appellant's registration as an agent, but they are not relevant to the appeal.

Statutory provisions for review

122. By s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), an enactment may provide for applications to be made to the Tribunal "for review of decisions made in the exercise of powers conferred by that enactment". Sub-section (4) provides that the Tribunal has power to review any decision in respect of which application is made to it under any enactment. The Tribunal may determine the scope of its review, by limiting questions of fact or the evidence and issues before it ^[95] . Section 306 of the Migration Act provides that application may be made to the Tribunal for a review of a decision of the Authority made under Div 3, subject to the AAT Act.

123. The Tribunal's powers on review are provided by s 43(1) of the AAT Act, which is in terms:

"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."

And s 43(6) provides:

"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."

124. The Tribunal is provided, in the first instance, with the evidence and materials upon which the original decision-maker's decision was based, and copies of all relevant documents in that person's possession ^[96] . The Tribunal may require other documents to be lodged, where it considers they may be relevant to its review ^[97] . Amongst the procedural powers given to the Tribunal is the power to require a person to give evidence and produce books, documents or things mentioned in the Tribunal's summons ^[98] . It may direct a party to the proceedings to provide further information in relation to the proceedings ^[99] .

The Tribunal's decision

125. On 31 July 2003 the Tribunal granted a stay with respect to the Authority's decision ^[100] , subject to conditions that the appellant be supervised by another migration agent and that he undertake not to engage in any business relating to protection visas. Visas of this kind are granted where a non-citizen has established a claim to the status of a refugee ^[101] .

126. The process undertaken by the Tribunal was to make findings as to the breaches by the appellant of the Code of Conduct, receive submissions with respect to those findings and then publish its decision. The Tribunal did not find that the appellant had breached the provisions of the Code to the extent that the Authority had. Nevertheless it found 51 breaches, 47 of which related to protection visa cases. In its decision of 2 September 2005 the Tribunal concluded, to the contrary of the conclusion reached by the Authority, that it was not satisfied that the appellant was not a person of integrity or was not otherwise a fit and proper person to give immigration assistance ^[102] . It made orders setting aside the decisions under review. It substituted, for the cancellation decision, a decision that the appellant be cautioned pursuant to s 303(1)(c) and that the caution would be lifted on 1 September 2008 if he complied with conditions in terms of those attaching to the stay it had granted. A further issue on appeal is whether the Tribunal has power to impose conditions of this kind.

127. In reaching its decision the Tribunal took into account that the appellant had been supervised for two years and the supervisor, who was a knowledgeable and experienced migration agent, held the appellant in high regard. There had been no evidence of breaches since the Authority's decision in 2003 and his rate of success had been very high in recent years. Further, most of the non-compliances with the Code of Conduct related to protection visas and the appellant had not dealt with them since 2003. It is the Tribunal's consideration of these matters which gives rise to the principal question on the appeal, because they are referable to events occurring after the Authority's decision.

The reasons of the Full Court

128. A majority of a Full Court of the Federal Court (Nicholson and Tracey JJ) ^[103] upheld the decision of the primary judge (Edmonds J) ^[104] , that the Tribunal was limited in its review powers to the facts and matters upon which the Authority's decision had been based. Edmonds J held that this was established by a "clear line of authority" ^[105] in the Federal Court, commencing with Freeman v Secretary, Department of Social Security ^[106] . His Honour held that the question that the Tribunal had to ask itself was whether, on 14 July 2003, the correct or preferable decision was to cancel the appellant's registration; which is to say, whether at that date the appellant was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance ^[107] . The majority in the Full Court considered that s 303(1) was intended to operate so as to provide a disciplinary result at the date the conduct was established ^[108] . There was nothing to suggest that later evidence, of a rehabilitative kind or as to character, should be taken into account. Tracey J pointed to a further temporal element, arising from the consequence that an agent, whose registration is cancelled, cannot be registered within five years of the date of the cancellation decision ^[109] .

129. Downes J dissented. In his Honour's view it is the satisfaction of the Tribunal to which s 303(1) of the Migration Act refers, once it becomes the decision-maker. The relevant conduct is therefore to be established at the time it makes its decision ^[110] . His Honour distinguished Freeman , for the reason that the statute there required the Tribunal to address the relevant circumstances at a particular point of time. There was nothing about the nature of the decision in the present case which caused his Honour to consider that there should be a departure "from the general principle that administrative review is conducted at the time of the review on the latest material available" ^[111] .

130. The majority in the Full Court also upheld the conclusion reached by Edmonds J as to the Tribunal's power to condition the caution in the way it sought to do ^[112] . In the interval between the Authority's decision and that of the Tribunal, s 304A was added to the Migration Act ^[113] . It provides that the Authority may set one or more conditions for the lifting of a caution it gives to a migration agent. Edmonds J held that the conditions to which the section refers must be those which are consistent with the appellant's entitlement, upon registration, to provide immigration assistance. Neither the Authority nor the Tribunal could set conditions which could not be imposed upon an individual's registration as a migration agent ^[114] . Tracey J observed that the notion of conditional registration is foreign to the Act ^[115] .

The appeal

131. The appellant acknowledged a temporal element to be present with respect to the conduct constituting breaches of the Code of Conduct. He denied that considerations as to his integrity and fitness to provide immigration assistance could be limited in point of time. In addition to maintaining that there were temporal connections arising from the nature of the decision, the respondent's argument focused upon the nature of the review conducted by the Tribunal. The respondent contended that the Tribunal's role was to determine whether the original decision was erroneous. This was the enquiry, of which the cases speak, as to whether it was the "correct or preferable decision", it was submitted. On this view the Tribunal does not exercise the powers of the original decision-maker. It follows, the respondent contended, that the Tribunal is limited to a consideration of evidence which may inform it as to whether the original decision was correct when it was made.

132. The nature of the review conducted by the Tribunal depends upon the terms of the statute conferring the right, rather than upon the identification of it as an administrative authority entrusted with a particular type of function ^[116] . The jurisdiction of the Tribunal, a statutory tribunal, depends upon there having been a decision made which it is authorised to review ^[117] . Section 25 of the AAT Act, together with s 306 of the Migration Act , provides that authority with respect to a decision under s 303(1) of the Migration Act . Section 25(4) of the AAT Act limits the Tribunal's powers to a review of that decision.

133. Section 43(1) of the AAT Act provides for the powers that the Tribunal may exercise with respect to matters in respect of which it has jurisdiction. The exercise of the powers conferred by the sub-section is restricted to the Tribunal's purpose, of reviewing the decision in question ^[118] . As Sheppard J said in Secretary to the Department of Social Security v Riley ^[119] , it is not possible to apply s 43(1) to the facts of any case without determining, first of all, what is the decision under review. It may therefore be appreciated that the decision, and the statutory question it answers, should be identified with some precision, for it marks the boundaries of the review.

134. Section 43(1) expresses clearly that the Tribunal may exercise all of the powers and discretions conferred upon the original decision-maker ^[120] . The Tribunal has been said to stand in the shoes of the original decision-maker, for the purpose of its review ^[121] . In Minister for Immigration and Ethnic Affairs v Pochi ^[122] Smithers J said that, in reaching a decision on review of a decision of the original decision-maker, the Tribunal should consider itself as though it were performing the function of that administrator in accordance with the law as it applied to that person ^[123] . In Liedig v Commissioner of Taxation ^[124] , Hill J adopted, as applicable to the Tribunal, what Kitto J said of the Taxation Board of Review in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation ^[125] , namely that its function is "merely to do over again ... what the Commissioner did in making the assessment", within the limits of the taxpayer's objection.

135. In Strange-Muir v Corrective Services Commission of New South Wales ^[126] McHugh JA held that there was a presumption, which operated as a rule, that an appeal to an administrative tribunal against an administrative decision would not usually involve a grant of jurisdiction to make a fresh or original decision. The respondent relied upon this decision as supporting a more limited role for the Tribunal, one concerned with ascertaining whether the decision under review was attended with error. As McHugh JA acknowledged, however, any such presumption gives way to contrary statutory indications ^[127] . There can be little room for its operation where, as here, the Tribunal is expressly provided with the powers of the original decision-maker ^[128] and its decision, to vary or substitute the original decision, is taken to be that of the original decision-maker ^[129] .

136. The respondent argued that s 43(6), read with s 43(1), shows that the Tribunal is only intended to exercise the power of the original decision-maker when it discovers error. Error is the foundation for the power to vary or set aside the decision, under s 43(1)(b) or (c)(i). Where it affirms a decision ^[130] it determines that the decision is correct. In the case of remitter ^[131] , the further exercise of powers is left to the original decision-maker.

137. The respondent's argument does not distinguish between the powers given to the Tribunal by s 43(1) "[f]or the purpose of reviewing a decision" and the making of a decision, under pars (a) to (c), following upon that review and to give effect to it. Indeed the argument tends to ignore the powers, which are to permit the Tribunal to consider for itself what the decision should be. Such powers are not consistent with a role limited to the ascertainment of error.

138. The respondent conceded that its argument treats the function of the Tribunal as analogous to that of an appeal court. The question for a court on an appeal, in the strict sense, is whether the decision sought to be corrected was right or wrong, judged at the time it was given ^[132] . Even if a court is given power to receive further evidence, as the Tribunal is, its powers by way of rehearing would be construed on the basis that they were to be exercised for the correction of error, the respondent pointed out ^[133] . The respondent was concerned to distinguish the Tribunal's function from a function exercised by way of hearing de novo, where the matter is heard afresh and a decision given on the evidence presented at that hearing ^[134] .

139. Professor Allars has observed that the judicial paradigm of procedure is such a familiar model for decision-making to lawyers, that it tends to overshadow the alternative choices which can be made for the procedures of tribunals ^[135] . Professor Allars' comments have a clear application to the AAT Act. Provisions for more informal and expeditious procedures are a direct legislative response to the dominance of the judicial paradigm ^[136] . It was the need to overcome the complex and strict requirements of judicial review of administrative decisions that led to the recommendation for a general tribunal, which became the Administrative Appeals Tribunal ^[137] . The authors of the Kerr Report acknowledged that people affected by administrative decisions wanted a review of the merits of the decision ^[138] .

140. The term "merits review" does not appear in the AAT Act, although it is often used to explain that the function of the Tribunal extends beyond a review for legal error, to a consideration of the facts and circumstances relevant to the decision. The object of the review undertaken by the Tribunal has been said to be to determine what is the "correct or preferable decision" ^[139] . "Preferable" is apt to refer to a decision which involves discretionary considerations ^[140] . A "correct" decision, in the context of review, might be taken to be one rightly made, in the proper sense ^[141] . It is, inevitably, a decision by the original decision-maker with which the Tribunal agrees. Smithers J, in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd ^[142] , said that it is for the Tribunal to determine whether the decision is acceptable, when tested against the requirements of good government. This is because the Tribunal, in essence, is an instrument of government administration.

141. The reasons of the members of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs ^[143] confirm what is apparent from s 43(1), that the Tribunal reaches its conclusion, as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed ^[144] . To the contrary of the argument put by the respondent on this appeal, that the Tribunal's exercise of power is dependent upon the existence of error in the original decision, Smithers J denied that the Tribunal was limited to something of a supervisory role. As his Honour said, the Tribunal is authorised and required to review the actual decision, not the reasons for it ^[145] .

142. In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address ^[146] . Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunal's general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.

143. Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light ^[147] . It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time ^[148] .

144. In Freeman , Davies J identified the importance of the nature of the decision under review, in determining what facts the Tribunal might take into account ^[149] . A decision had been made to cancel Mrs Freeman's widow's pension. The definition of "widow", in the Act providing for the pension, did not include a widow who was living with a man, as his de facto wife. That circumstance applied to Mrs Freeman at the time of the decision. That was sufficient to disentitle her from receipt of a pension. The statutory scheme was such that a pension, once cancelled on this ground, could only be reinstated on a further claim being made ^[150] . Subsequent to the cancellation decision Mrs Freeman's circumstances changed, such that she again qualified for the pension. His Honour held the Tribunal to have been correct to limit its consideration to the circumstances existing at the time the decision to cancel was made. The Tribunal was entitled to take into account all the facts placed before it, but the issue was whether the decision it was reviewing, to cancel the pension, was the correct or preferable decision when it was made. It was not whether Mrs Freeman had an entitlement to a widow's pension at the date of the Tribunal's decision ^[151] .

145. The situation in Freeman was distinguished by Davies J from cases where the matter to be determined is a person's entitlement to a pension ^[152] . Where that was the decision to be reviewed the Tribunal might not be limited to facts existing at a particular time, since the entitlement might be a continuing one. His Honour did not suggest, by this comparison, that the ambit of the decision to be reviewed was to be determined by a general description of what the decision concerned - a grant or a cancellation of an entitlement. In each case what is entailed in a decision is to be ascertained by reference to the statute providing for it.

146. The question which here arose for the Authority under s 303(1), which it answered, was whether it should exercise its powers, under pars (a) to (c) of the sub-section, because the grounds in pars (h) and (f) were established, in particular because the appellant had breached the Code of Conduct. That part of the decision which comprises the finding, that the ground in par (h) had been made out, was referable to conduct which had occurred to a point in time. That is the nature of the finding required by the provision. It follows that the Tribunal was restricted to a consideration of events to that point and not those occurring later, in determining for itself whether there had been non-compliance with the Code. The appellant accepted as much in his submissions.

147. There is another restriction which operates with respect to the evidence the Tribunal may consider as to this ground. The effect of the restriction appears to have been assumed in argument. The Tribunal does not acquire all the powers of the Authority, but only those necessary to review the decision made by it ^[153] . The Authority's decision concerned particular conduct of the appellant, which it had investigated. The Tribunal does not have all the Authority's disciplinary powers, and does not have its investigatory powers for the purposes given by the Migration Act . The question for the Tribunal is not whether there has been a breach by the appellant of the Code in any respect, but whether those identified by the Authority are established. It may use its own evidence-gathering powers to further inform itself about those matters, but those powers do not translate to general investigatory powers and cannot be used to ascertain other, inculpatory, conduct.

148. The ground in s 303(1)(f) involves the Tribunal in considerations of a different kind. The ordinary meaning of a person's "integrity" is plain enough. The expression "fit and proper" is one traditionally used with reference to an office or vocation, "fit" being referable to a person's honesty, knowledge and ability ^[154] . A person's knowledge of migration procedure is one of the matters listed in s 290(2) of the Migration Act , as necessary to be taken into account by the Authority in determining whether a person is not fit and proper or not a person of integrity. That section provides that a person must not be registered as a migration agent if the Authority is not satisfied that they have those characteristics.

149. Section 303(1)(f) provides that the Authority may take disciplinary action if it "becomes satisfied" that a registered migration agent is not a person of integrity or otherwise not a fit and proper person to give immigration assistance. The Migration Act provides the Authority with an ongoing role, to monitor the conduct of agents and to take disciplinary action where necessary. The reference to the Authority becoming satisfied was considered by Tracey J to identify a point in time, one at which the Authority was no longer satisfied about the agent ^[155] . The topic with which s 303(1)(f) is concerned is not, however, one which identifies particular conduct, as is the case with respect to breaches of the Code of Conduct. The enquiry posed by the paragraph is a general one, and it may be considered by the Tribunal in that way. It does not limit an assessment of an agent's integrity and fitness to what has been conveyed by any breaches. There is no reason why the Tribunal's review should not extend to any information which sheds light upon the presence or absence of the necessary characteristics in the migration agent. The list in s 290(2) is not exhaustive. There is good reason why the Tribunal should be in a position to consider the most recent material bearing upon the question of an agent's integrity and their fitness to continue to provide immigration assistance. By this means facts such as an agent's subsequent conviction for a serious offence could be taken into account. The relevance of such a factor, to the question of an agent's integrity and fitness, is confirmed by its specification in s 290(2), as a matter which must be taken into account by the Authority in connection with their registration.

150. Tracey J also considered that the fact that an agent cannot be registered within five years from the date of a cancellation decision, focuses attention upon the point in time where the Authority is satisfied about an agent's conduct and shortcomings ^[156] . It may be accepted that the focus of s 292 is upon the date that cancellation takes effect; but it is not concerned with who made the decision. Where the Authority has made a decision to cancel and the Tribunal affirms that decision, time will continue to run from the date of that decision for the purposes of s 292. Where the Authority has decided not to cancel the registration, but the Tribunal considers that it was not the correct decision, and substitutes a decision to cancel, the effect of s 43(6) of the AAT Act is that time will run from the date of the Authority's decision or from the date that the Tribunal orders that the substituted decision will operate from. This does not suggest the date of the Authority's decision to be critical for this purpose. The effect provided for by s 292 upon cancellation, does not alter the nature of the question arising under s 303(1)(f).

151. The Tribunal used the evidence of the appellant's subsequent conduct to determine that question. The Tribunal had observed that there was no evidence that the appellant had acted dishonestly. Nevertheless, it was concerned about the breaches of the Code and what that conveyed about him and his attitude. It may be inferred that the Tribunal considered his more recent conduct as a migration agent showed him in a different light. It was entitled to have regard to this evidence in answering the statutory question about his fitness and integrity. It was a matter for it what weight it gave to the evidence, having regard to the nature and extent of the breaches found by it. The Tribunal did not say how it determined the appellant's fitness for the duties of a migration agent, given the restrictions and level of supervision he had operated under, but no issue arises as to its ability to reach the conclusion it did.

152. It remained for the Tribunal to consider what disciplinary action ought to follow upon its being satisfied that the ground in s 303(1)(h) was made out. The decision for the Tribunal involved consideration of one of the three available courses of action, those referred to in pars (a) to (c): cancelling the appellant's registration, suspending it or cautioning him. It is not suggested that it was appropriate for the Tribunal to take no action, assuming for present purposes that that was an option.

153. The Tribunal determined, in effect, that a continuance of the regime that had applied under the orders for a stay of the Authority's cancellation decision would be a sufficient protection for the public. It would ensure that the appellant could not provide assistance with respect to protection visas, an area where he had not performed satisfactorily in the past; and he would remain subject to the supervision of an experienced migration agent for the same period as the Authority had determined as applying to the cancellation of his registration. A caution would of course permit the appellant to continue to operate as a registered migration agent.

154. The details of a caution made under s 303(1)(c) are required to be shown on the Register of Migration Agents ^[157] and are removed when the caution ceases to have effect ^[158] . The notification serves as both a warning to the public and an admonition of the agent. A caution does not itself affect the entitlement of a migration agent, consequent upon registration, to provide immigration assistance of any kind.

155. The conditions sought to be imposed by the Tribunal were not conditions "for the lifting of a caution", as s 304A permits. They did not involve some requirement, the fulfilment of which had the effect of permitting the removal of the caution. An example of a condition operating in this way is one requiring the completion of a course of relevant education by an agent ^[159] . The conditions in question were requirements by which it was sought to make the caution effective for other purposes.

156. It was not open to the Tribunal to continue the interim regime, established by the conditions to the stay decision, when making its decision under s 303(1). The enquiry for the Tribunal under the sub-section was what disciplinary action there provided for should be taken; it was not whether the appellant should be permitted to continue as a registered migration agent, subject to conditions limiting his entitlement to give advice and requiring him to be supervised in what advice he did give. The Migration Act does not, in any event, comprehend a restricted form of immigration assistance. A person is either qualified as a registered migration agent, and thereby entitled to continue as such, or they are not. That the Tribunal perceived a need for restrictions may suggest that it did not consider his continuance as a migration agent as appropriate. The critical matter, to this appeal, is that the Tribunal has not addressed the question of disciplinary action as provided by s 303(1).

Conclusion

157. It was open to the Tribunal to have regard to the evidence of conduct subsequent to the Authority's decision, so far as it concerned the question under s 303(1)(f), as to his integrity and fitness to continue as a registered migration agent. It was not open to the Tribunal to issue a caution upon the conditions in question. It follows that the Tribunal has not addressed the question, as to which of the disciplinary actions provided for in s 303(1)(a) to (c) should be applied. The Tribunal's decision is thereby attended with jurisdictional error and should be set aside.

158. Edmonds J made orders setting aside the Tribunal's decision and remitting the matter to it, to be determined according to law. His Honour subsequently ordered the appellant to pay the respondent's costs. The decision of the Full Court left these orders undisturbed. The appeal should be dismissed with costs.