Shi v Migration Agents Registration Authority

[2008] HCA 31

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(Judgment by: Kirby J)

Shi
vMigration Agents Registration Authority

Court:

Judges:
Kirby JHayne J
Heydon J
Crennan J
Kiefel J

Hearing date: 30 July 2008
Judgment date: 30 July 2008

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Judgment by:
Kirby J

1. This appeal arises from a divided decision of the Full Court of the Federal Court of Australia ^[1] . In that Court, a majority (Nicholson and Tracey JJ; Downes J dissenting) affirmed orders made by the primary judge (Edmonds J) ^[2] . The primary judge had heard an "appeal" from a decision of the Administrative Appeals Tribunal ("the Tribunal"), constituted by Senior Member Kelly ^[3] .

2. The Senior Member had set aside a decision of the Migration Agents Registration Authority ("the Authority"). In place of the Authority's decision to cancel the registration of Mr Nelson Guang Lai Shi ("the appellant") as a migration agent ("agent") under the Migration Act 1958 (Cth) ("the Migration Act"), the Tribunal substituted its own decision that the appellant be cautioned. The Tribunal then made orders providing for the "lifting" of that caution at a specified time, upon certain conditions. It took this course in purported pursuance of ss 303 and 304A of the Migration Act.

3. The Authority contests the entitlement of the Tribunal to make the decision that it did. Its arguments are two-fold. First, it contends that the Tribunal erred in its approach by failing to limit its review to the facts and circumstances prevailing at the time of the Authority's decision, instead taking account of those subsisting at the time of review. Secondly, the Authority disputes the power of the Tribunal to give, and then lift, a caution pursuant to s 304A of the Migration Act and on the conditions specified. In the Federal Court, the Authority successfully argued that the Tribunal exceeded its jurisdiction and powers.

4. These reasons will seek to demonstrate that the Tribunal was correct both in the approach that it adopted and in its conclusion that s 304A of the Migration Act authorised it to substitute its decision for that of the Authority. The dissenting opinion of Downes J in the Full Court on each of these points was correct. The appellant is entitled to succeed. The decision of the Tribunal should be restored.

The facts and legislation

5. Registration of migration agents : The appellant was first registered as an agent under the Migration Act in December 1995. Registration is governed by Div 3 of Pt 3 of that Act ^[4] . The ultimate purpose of registration is to uphold standards of integrity and competence on the part of agents.

6. Responsibility for administering the Register of Migration Agents is reposed in the Authority ^[5] . It may cancel or suspend an agent's registration, or caution an agent, if it becomes satisfied, for example, that the agent is not a person of integrity, or is otherwise not a fit and proper person to give immigration assistance, or if the agent has breached the Code of Conduct prescribed under the Act ^[6] . Registration as an agent is important because only a registered agent may lawfully charge a fee to provide immigration assistance to visa applicants and sponsors ^[7] .

7. The relevant legislation : Section 303(1) of the Migration Act 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."

8. By s 304A of the Act, it is provided:

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

9. And s 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."

10. The relevant provisions of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") include s 25(4):

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

11. The powers of the Tribunal on a review under the AAT Act are relevantly provided by s 43, which includes the following:

"(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."

The decisional history

12. Cancellation of the appellant's registration : The Authority cancelled the appellant's registration as an agent on 14 July 2003. The Authority's decision set out its factual findings and the evidence on which such findings were based, as well as its reasons for taking the course that it did. The Authority found several defects affecting the appellant's dealings with clients; his knowledge of the Migration Act and relevant Regulations; his control of his office, financial and other records; and his supervision of his staff. Many of the breaches of the Code of Conduct found by the Authority related to cases in which the appellant had provided assistance to non-citizens applying for protection visas, sought on the basis of claims to refugee status ^[8] . Having regard to these breaches, the Authority recorded that it was satisfied that the appellant was not a person of integrity or a fit and proper person to give immigration assistance ^[9] .

13. On 31 July 2003, the cancellation decision was stayed by the Tribunal, subject to a condition that the appellant be supervised by another migration agent and comply with an undertaking not to engage in any business relating to protection visas ^[10] .

14. In October 2003 and August 2004, the Authority refused applications by the appellant for repeat registration. In addition, in April 2004, in a separate decision, it suspended his registration for a period of three years, or until specified conditions had been satisfied. These further decisions of the Authority are not in issue in this appeal.

15. Decision of the Tribunal : Pursuant to the Migration Act ^[11] , the appellant relevantly sought review by the Tribunal of the cancellation decision. The powers of the Tribunal on review were derived from the AAT Act. The Tribunal conducted a review and, following a hearing, in April 2005 published written findings to the effect that it was satisfied that the appellant had breached the Code of Conduct on some, but not all, of the occasions found by the Authority ^[12] . Having recorded these findings, the Tribunal relisted the application for disposition of the proceedings.

16. On 2 September 2005, the Tribunal set aside the Authority's decision to cancel the appellant's registration as an agent. In place of that decision, it substituted a decision to caution him ^[13] . Considering all of the evidence as it stood at the date of its decision, the Tribunal then concluded ^[14] :

"I am not satisfied that Mr Shi is not a person of integrity or otherwise not a fit and proper person to give immigration assistance within the meaning of s 303(f). My critical findings about his evidence were one factor to consider. However, there was no evidence that he had acted dishonestly in his practice and he has a number of very favourable references. His attitude to the Code and the consequential non-compliances ... is also of concern. However, I take into account that he has had a supervising migration agent for over two years who is a knowledgeable and experienced migration agent and who holds Mr Shi in high regard. There has been no evidence of breaches since the first decision was made in 2003 and his rate of success has been very high in recent years. Most of the non-compliances with the Code related to protection visas which he has not dealt with since early in 2003."

17. Having so concluded, the Tribunal decided that neither cancellation nor suspension pursuant to s 303(1) of the Migration Act was appropriate. It is clear from the reasons of the Tribunal that it based its conclusion, and decision in this regard, not on the state of the evidence as it stood at the time of the Authority's decision but on the circumstances prevailing at the date of the Tribunal's own decision.

18. In consequence, the Tribunal substituted its own decision that the appellant be cautioned ^[15] . Having administered the caution, the Tribunal noted that it would "appear on the [Authority's] website until it is lifted, pursuant to the Act" ^[16] . The caution was given "subject to conditions imposed pursuant to s 304A" of the Migration Act ^[17] . These required that the appellant be supervised as an agent for a further period of three years from the date of the decision and that he not provide immigration assistance to protection visa applicants during that period ^[18] .

19. As noted, the Authority contests both the approach of the Tribunal and its invocation of s 304A of the Migration Act to impose the conditions stated.

20. Decisions of the Federal Court : The primary judge in the Federal Court upheld the Authority's submissions on both grounds. He concluded that the Tribunal had asked itself the wrong question, by reference to the evidence as it stood at the incorrect time. He considered that a "clear line of authority" obliged attention to the integrity or fitness of the appellant to give immigration assistance as at the date of the Authority's decision ^[19] . The Tribunal's decision was therefore found to be affected by error of law and jurisdictional error ^[20] .

21. The primary judge also found that the conditions purportedly imposed by the Tribunal were outside the ambit of what was contemplated by s 304A. If "conditions" were to be imposed, they had to be consistent with continuing registration as an agent ^[21] . Requiring the appellant to submit to supervision, and excluding him from an important part of the work of an agent for an extended period, were held to be incompatible with such registration. This amounted to a second error of law and to further jurisdictional error ^[22] .

22. In the result, the primary judge set aside the decision of the Tribunal. He remitted the matter to the Tribunal for redetermination.

23. The appellant's appeal to the Full Court of the Federal Court was dismissed. Nicholson and Tracey JJ affirmed the approach of the primary judge on each of the issues that had been determined adversely to the appellant. On the other hand, Downes J would have found in favour of the appellant on each of the grounds argued.

The issues in the appeal

24. There are two issues for decision by this Court:

(1)

Did the Full Federal Court err in holding that the Tribunal was limited to the facts and circumstances as they existed at the time of the Authority's decision? Or was the Tribunal obliged to consider the facts and circumstances as they existed at the time of its own decision?

(2)

Did the Full Federal Court err in holding that the Tribunal lacked the power under s 304A of the Migration Act to impose the conditions that it did on the caution given to the appellant?

The proper approach of the Tribunal

25. Focusing on the legislation : To resolve the question of whether the Tribunal has exceeded or mistaken its jurisdiction and powers a court must give close attention to the enabling legislation. It is undesirable to attempt universal or unqualified propositions. Here, the issue is how to define the jurisdiction and powers of the Tribunal in conducting a review of a decision of the Authority, having regard both to the general provisions of the AAT Act, affording the power of review, and to the more specific provisions of the Migration Act, defining the characteristics of the decision that is subject to review. Only when all of the relevant features of the two inter-related statutes are understood can a correct decision be arrived at as to the ambit of the review in question and the manner in which it should be conducted.

26. The starting point is a recognition that the Parliament has not spelt out in explicit terms an answer to the first question in this appeal. There is nothing in s 43 of the AAT Act to indicate whether, "[f]or the purpose of reviewing a decision", the Tribunal is to have regard to the facts and circumstances at the time the "decision under review" was made or at the time of the Tribunal's making of a "decision in writing". It is this silence that necessitates examination of the inter-related legislation relevant to the particular case. The inter-relationship determines the character of the "decision" that is under review and the "powers and discretions" that the Tribunal is to exercise pursuant to s 43(1) of the AAT Act.

27. In this Court, the Authority propounded a general presumption which, it said, applied in respect of administrative appeals to bodies such as the Tribunal. It argued that there was a presumption of law that the rights of parties to an appeal under an Act are to be determined on the basis of the materials that existed at the time of the decision subject to appeal, absent some explicit indication to the contrary. To support this suggested presumption, the Authority relied on a dictum of McHugh JA in Strange-Muir v Corrective Services Commission of New South Wales ^[23] .

28. The status of the Authority's suggested presumption is not certain. In Strange-Muir , the Court of Appeal of New South Wales was divided and Priestley JA, who favoured the orders made by McHugh JA, expressly limited his concurrence to his construction of the particular legislation at issue ^[24] . He did not appear to embrace the propounded presumption. There are dangers for legal reasoning in the over-ready resort to presumptions ^[25] . However, it is unnecessary to resolve whether such a general presumption exists in this case. It is preferable to decide the issue by reference to the language of the interlocking legislation.

29. Although, as is usually the case when contested questions of statutory construction reach this Court, there are arguments both ways, the preferable conclusion on the jurisdiction and powers of the Tribunal, and on the manner in which it should discharge its functions in cases of the present kind, is that favoured by the dissenting judge in the Full Court and urged upon this Court by the appellant. There are five factors, of varying degrees of significance, that combine to produce this conclusion.

30. Nature of the Tribunal : First, it is essential to appreciate the radical objectives that lay behind the enactment of the AAT Act. That Act grew out of a series of official reports directed towards a major change in federal administrative law and practice. The first (and possibly the most significant) of these reports was that delivered in 1971 by the Commonwealth Administrative Review Committee ^[26] . In the course of discussing the then applicable principles of judicial review, that Committee observed ^[27] :

"It is generally accepted that this complex pattern of rules as to appropriate courts, principles and remedies is both unwieldy and unnecessary. The pattern is not fully understood by most lawyers; the layman tends to find the technicalities not merely incomprehensible but quite absurd. A case can be lost or won on the basis of choice of remedy and the non-lawyer can never appreciate why this should be so. The basic fault of the entire structure is, however, that review cannot as a general rule, in the absence of special statutory provisions, be obtained 'on the merits' - and this is usually what the aggrieved citizen is seeking."

31. It was for this reason that the Committee recommended the establishment of what it called an "administrative review tribunal". Describing the jurisdiction and powers that should be given to such a general federal tribunal for administrative appeals, it proposed ^[28] :

"[S]uch a Tribunal could be given jurisdiction to review on the merits certain administrative decisions made under Commonwealth law. The jurisdiction should be to hear and determine an application by a person who is aggrieved or adversely affected by a decision on the ground that the decision was erroneous on the facts and merits of the case. If such an application is made the Tribunal should also have power to deal with all questions of law necessary for its decision".

32. The proposal to create such a tribunal, with the power to make decisions "on the merits", represented a bold departure from the pre-existing law, with its focus on constitutional and statutory "prerogative" remedies of judicial review. In so far as those remedies were invoked it was, and still is, commonly insisted that the court performing the review is not concerned, as such, with the factual merits of the matter, but only with legal merits, and then often only with any errors of a jurisdictional kind shown to exist at the time of the initial decision. But given the nature of the Tribunal, it is important to approach particular questions concerning its jurisdiction and powers with the history and purpose of its creation at the forefront of attention ^[29] .

33. Function of the Tribunal : Secondly, in the earliest days of the operation of the Tribunal, questions naturally arose as to how, under s 43 of the AAT Act (not relevantly altered since), the Tribunal should proceed with its function of review. In 1981, in Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2 ) ^[30] , Davies J (then President of the Tribunal) explained that:

"Having regard to [its] provisions ... it can hardly be doubted that the [AAT] Act gave effect to [the Commonwealth Administrative Review Committee's] recommendation. The Act provides for a tribunal some of the members of whom [sic] are not lawyers but are selected because of their special knowledge or skill in relation to a class of matters in respect of which decisions may be made. The Act confers upon the Tribunal fact-finding powers and confers the power to set aside a decision and to make a decision in substitution for the decision so set aside. The Act empowers the Tribunal to exercise all the powers and discretions that are conferred by any relevant enactment upon the person who made the subject decision. Clearly the Act established a tribunal whose function and duty it is to review administrative decisions on their merits."

34. The grant of a power of decision "on the merits" presented questions similar to those to be addressed in the instant context. According to whose view of the merits? What weight, if any, should be given to the decision of the primary administrator with the ordinary responsibility for making such decisions? Upon what evidence should the Tribunal act? At what point of time are the "merits" to be examined?

35. Davies J pointed out that, already by 1981, there was established authority in the Federal Court of Australia, and in the Tribunal, on many of these questions ^[31] :

"In Drake v Minister for Immigration and Ethnic Affairs ^[32] , Bowen CJ and Deane J stated the function of the Tribunal as follows:

'The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him . The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal .'

In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd ^[33] , Smithers J said:

'It is important to observe that the Tribunal is not constituted as a body to review decisions according to the principles applicable to judicial review. In essence the Tribunal is an instrument of government administration and designed to act where decisions have been made in the course of government administration but which are in the view of the Tribunal not acceptable when tested against the requirements of good government.'"

36. Responding to a submission that the word "may" in s 43 of the AAT Act implied an element of discretion such as to authorise the Tribunal to limit its function as it saw fit, Davies J concluded ^[34] :

"[T]he provision '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 ...' is not concerned to confer upon the Tribunal authority to limit its function but rather to confer upon it an amplitude of powers so that the Tribunal may exercise, if it is convenient and useful to do so, not only the decision-making power upon which the decision-maker relied, but all relevant powers and discretions which were conferred by the enactment upon the decision-maker. The provision extends the authority of the Tribunal so that it may more adequately exercise its function of reviewing on the merits the subject decision."

37. Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the "material before the Tribunal", particularly where it involved special expertise or knowledge ^[35] . But ultimately, it was for the Tribunal to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal's obligation to conduct a true merits review ^[36] .

38. There was no error in this analysis. On the contrary, it represents the correct and preferable view of the legislation establishing the functions and powers of the Tribunal.

39. Purpose of s 43 of the AAT Act : Thirdly, a conclusion that, ordinarily, the Tribunal might have regard to new, fresh, additional or different evidence in reaching its own decision is reinforced by the apparent purpose of s 43 of the AAT Act. Under that section, when the Tribunal decides to set the decision under review aside, it must consider whether to remit the decision to the Tribunal for reconsideration (with or without directions or recommendations) or whether to make a fresh decision "in substitution for the decision so set aside" ^[37] .

40. Of necessity, any such fresh decision replaces the decision of the primary administrative decision-maker within the Executive Government of the Commonwealth. In law, and in effect, it becomes the decision of the Executive Government. Many days, weeks, months or even a year or more might have passed since the original decision was made by the primary decision-maker. It would be theoretically conceivable that the Tribunal might make a decision which ought to have been made years, months, weeks or many days earlier, leaving it to the primary decision-maker then to update or alter that decision if any new facts and circumstances required, or warranted, that course. However, given the obvious purpose of having the Tribunal (as it is commonly put) "step into the shoes" of the primary decision-maker, so as to make the decision that ought to have been made "on the merits", this would appear to ascribe to the Tribunal an artificial function. It would not be the natural and appropriate function, given the role, purpose and powers of the Tribunal, viewed in its administrative setting.

41. When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration. When, therefore, the Tribunal elects to make "a decision in substitution for the decision so set aside", as the Act permits, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard.

42. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd , Mason J, who had earlier been a member of the Commonwealth Administrative Review Committee, said this of an analogous question, in words applicable to the present issue ^[38] :

"It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

This conclusion is all the more compelling when the decision in question is one which may adversely affect a party's interests or legitimate expectations by exposing him to new hazard or new jeopardy."

43. Nature of the decision under review : Fourthly, although the foregoing considerations lead to a conclusion that the Tribunal is not ordinarily confined to material that was before the primary decision-maker, or to consideration of events that had occurred up to the time of its decision ^[39] , the fact that the review contemplated by s 43 of the AAT Act is one addressed to a "decision", inferentially arising under a different federal enactment, makes it necessary in each case to identify the precise nature and incidents of the decision that is the subject of the review.

44. Sometimes, it may be inherent in the nature of a particular decision that review of that decision is confined to identified past events. If, for example, under federal legislation, a pension is payable at fortnightly rests, by reference to particular qualifications that may themselves alter over time, a "review" of an administrative "decision" to grant or refuse such a pension, by reference to statutory qualifications, may necessarily be limited to the facts at the particular time of the decision.

45. That issue was raised in Jebb v Repatriation Commission ^[40] , another decision of Davies J, but this time in the Federal Court of Australia, deciding an "appeal" from a decision of the Tribunal on a suggested error of law. In that case, Davies J found that the Tribunal had fallen into error in considering the applicant's entitlement to certain benefits exclusively by reference to the state of the evidence at a particular time in the past. In the relevant statutory context, there was no warrant for doing so. His Honour said ^[41] :

"[T]he general approach of the [T]ribunal has been to regard the administrative decision making process as a continuum and to look upon the [T]ribunal's function as a part of that continuum so that, within the limits of a reconsideration of the decision under review, the [T]ribunal considers the applicant's entitlement from the date of application, or other proper commencing date, to the date of the [T]ribunal's decision. That function was enunciated in Re Tiknaz and Director-General of Social Services ^[42] . The approach there taken has since been generally adopted. In the repatriation jurisdiction, it was applied after Banovich [ ^[43] ] in Re Easton and Repatriation Commission ^[44] , where ... the [T]ribunal ... said[ ^[45] ]:

'The ambit of a review by the [Tribunal] is necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review, for the function of the [Tribunal] is to review a decision. But provided that the matter is within the ambit of its jurisdiction as a review authority, the general practice of the [T]ribunal is to take account of events that have occurred up to the date of the decision. Indeed, s 43(1) of the [AAT Act so implies].'"

46. There is thus a general approach deriving in particular from the statutory function of substituting one administrative decision for another. Nevertheless, the particular nature of the "decision" in question may sometimes, exceptionally, confine the Tribunal's attention to the state of the evidence as at a particular time ^[46] .

47. The nature and incidents of the decision under review in the present case do not support a contention that the review was limited to the particular time in the past when the decision was made by the Authority. The present was not a case where, of its nature, a decision was made falling to be determined by reference to the state of evidence at a particular time. Both the language of s 303 of the Migration Act and its purpose suggest otherwise.

48. Section 303 of the Migration Act directs the Authority's attention, amongst other things, to whether an agent "becomes bankrupt"; whether he or she "is not a person of integrity" or "otherwise not a fit and proper person"; and whether "an individual related by employment to the agent is not a person of integrity". Each of these grounds is expressed in the present tense. Necessarily, the circumstances to which each is addressed could be altered by supervening events. Thus, the language in s 303 of the Migration Act clearly contemplates the possibility that circumstances may change between an initial decision of the Authority and a subsequent decision of the Tribunal, performing the "review" which s 306 of the Migration Act contemplates and for which s 43 of the AAT Act provides ^[47] .

49. Circumstantial changes may sometimes be adverse to an applicant before the Tribunal. Given the Tribunal's powers in certain circumstances to make a decision "in substitution for" a decision of the Tribunal which has been set aside upon review, it would be remarkable if the substituted decision could not take into account evidence of relevant, and even critical, supervening events. Such events might include the intervention of bankruptcy, or a criminal conviction for an offence of dishonesty of significance for the continued registration of the agent under the Migration Act.

50. This reasoning is further strengthened by an appreciation that the fundamental object of the exercise of the Authority's power to cancel or suspend the registration of an agent under the Migration Act is the protection of the section of the public that deals with migration agents. It is not, as such, the punishment of agents ^[48] . This object is best achieved by the Tribunal making its decision upon the most up to date material available to it at the time of its own decision. It would be impeded if the Tribunal were confined to the facts and circumstances subsisting at the time of the Authority's original decision weeks, months or even years in the past.

51. Moreover, to the extent that the essential function of the Tribunal is to provide a review "on the merits", conducting such a review on the basis of the most up to date evidence available is conformable with the basic objectives of the AAT Act. In this particular context, the contrary approach, urged by the Authority, would be likely to attract the very criticisms addressed to the law predating that Act in the report of the Commonwealth Administrative Review Committee ^[49] .

52. Errors in the reasoning below : Fifthly, there are a number of particular defects in the reasoning of the majority in the Full Court which it is proper to mention. Thus, Nicholson J, having considered some of the provisions appearing in Div 3 of Pt 3 of the Migration Act, observed that ^[50] :

"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."

53. Nicholson J was correct to acknowledge that it is necessary to derive the meaning of s 303(1) from the context of the entirety of Div 3 of Pt 3 of the Migration Act, not just the sub-section read in isolation ^[51] . However, part of that context, not specifically referred to by Nicholson J, is the express provision in s 306 for review, on the merits, of decisions of the Authority by the Tribunal. There is nothing to suggest that such review should not be performed by the Tribunal with the benefit of any new, fresh, additional or different material. In this case, such material was received and found to warrant the setting aside of the decision under review and the substitution of a different decision. With respect, it was an error on the part of Nicholson J to interpret s 303(1) of the Migration Act without sufficient regard to the substantial powers of the Tribunal to review the subject decision and, where it so decided, to set it aside and to make a different decision in substitution.

54. Likewise, Tracey J placed great emphasis on the fact that s 303(1) of the Migration Act was, as he saw it, predicated on a particular state of satisfaction on the part of the Authority, as distinct from the Tribunal ^[52] . This evidences the same error. It involves reading s 303(1) of the Migration Act without paying due regard to s 306 of that Act. That section affords significant powers to the Tribunal. These include the power to substitute its own decision for that of the Authority. Given the broad ambit of the power of substitution, as stated in the AAT Act and as upheld in judicial decisions over nearly 30 years, this Court would not be justified in endorsing such a narrow view of the Tribunal's powers. To do so would be incompatible with the history, purpose and object of the Act establishing the Tribunal, and the extension to it of broad powers of review "on the merits".

55. Conclusion : the appellant succeeds : For the foregoing reasons, the majority of the Full Court erred in their construction of the powers of the Tribunal. The reasons of Downes J are to be preferred, in respect of the approach that it was proper for the Tribunal to take and the materials upon which it was entitled and required to rely. The result is that the appellant is entitled to succeed on the first issue.

The conditions for lifting the caution were applicable

56. A contestable question : The Authority submitted that the "conditions" set by the Tribunal for lifting the appellant's "caution" were inconsistent, because they were incompatible with registration as an agent under the Migration Act. This submission is not without a certain forensic force. So much is self-evident given that it convinced the primary judge and the majority in the Full Court of the Federal Court, and has now persuaded Kiefel J in this Court.

57. It must therefore be acknowledged that the position is not absolutely clear-cut. It falls to the courts, and now to this Court, to give the preferable, and therefore correct, meaning to the language of s 304A of the Migration Act. Whilst I acknowledge the arguability of the contrary interpretation, the better conclusion is that the Tribunal did not fall into jurisdictional or other legal error in invoking s 304A so as to impose the conditions that it specified for lifting the caution that it gave to the appellant. The majority of the Full Court erred in holding otherwise. Five considerations support this opinion.

58. Timing of the Tribunal's decision : First, the stage at which the relevant administrative "decision" was made is important. The Authority had earlier exercised its powers and, relevantly, decided to cancel the appellant's registration as an agent. As was his right, the appellant, invoking s 306 of the Migration Act, sought review by the Tribunal. It concluded that, by reason of demonstrated errors, the decision under review should be "set aside". Its power to so decide arises from the AAT Act and has not been contested. The errors identified in the decision of the Authority are not presently disputed.

59. Having elected to set the decision of the Authority aside, the Tribunal was empowered by the AAT Act either to remit the matter to the Authority for reconsideration or to make a decision "in substitution for" the decision set aside. The Tribunal opted to take the latter course.

60. Once it is concluded that the Tribunal is authorised, in a case such as the present, to have regard to new, fresh, additional or different evidence and should make its decision on the basis of current facts and circumstances ^[53] , it necessarily follows that the Tribunal is able to utilise all of the powers enjoyed by the Authority at the time the Tribunal makes its decision, including powers that may have accrued to the Authority in the interval of time since the original decision was made. So much follows not only from general principles governing the accretion of powers affecting dispositions of bodies such as the Tribunal but also from the power of "substitution" granted by s 43(1)(c)(i) of the AAT Act.

61. It was therefore proper for the Tribunal to consider a different order for disciplining the appellant in respect of findings of default on the appellant's part which the Tribunal upheld or itself made. In the result, the Tribunal decided to "caution" the appellant, in accordance with s 303(1)(c) of the Migration Act. However, it also decided to provide for the "lifting" of the caution in the manner described. In doing so, the Tribunal adhered closely to the language of the Migration Act. The power that s 304A of that Act affords was granted in the expectation that it would be used. Moreover, it was granted at large without any relevant statutory limitations. Ordinary canons of statutory construction would suggest that a power, granted at large, is available to be deployed by the Authority (or, in substitution, by the Tribunal) in a case such as the present.

62. Nature of disciplinary powers : Secondly, it is proper to observe that the power conferred by s 304A was introduced into the Migration Act by amendment taking effect on 1 July 2004 ^[54] . By the amending provision, the power applied in respect of cautions given after that date ^[55] . The caution given to the appellant by the Tribunal, in substitution for the cancellation of his registration, was given after 1 July 2004.

63. The Migration Act, as amended by the Parliament, contemplates the exercise of the power to caution following satisfaction of matters stated in s 303(1). There is nothing to preclude the administration of a caution even where, for example, the decision-maker becomes satisfied that the agent "is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance" at a given time ^[56] . Thus, the language and structure of s 303(1) of the Migration Act suggest that a caution is intended to be a significant disciplinary measure, especially given the provision for publicising disciplinary decisions and providing details to clients of the agent concerned ^[57] .

64. The exceptional power to "lift" a caution given to an agent was obviously intended to be applied. There is no reason to read down the ambit of the power to caution or the additional power to lift a caution conditionally, pursuant to the 2004 amendments to the Migration Act. To do so would defeat the apparent purpose of the Parliament expressed in the language that it enacted.

65. Nature of powers of the Tribunal : Thirdly, the fact that the power to "lift" a caution in s 304A is reposed in an independent statutory entity such as the Authority ^[58] , with the facility for review by the Tribunal, supports construing that power in a broad and ample way.

66. Analogies between the Tribunal and a court ought not to be pressed too far. Nevertheless, given the role of the Tribunal, some parallels can be drawn between the conventional approach of viewing powers conferred on courts amply, so that they may fulfil their functions, and the principles that ought to be applied in construing statutory powers granted to the Tribunal. Like a court, the Tribunal is entirely independent, and intended to be impartial in its decision-making. Its President must be a judge of the Federal Court of Australia ^[59] . Its Deputy Presidents can be, and are, judges also. It would therefore be contrary to principle to construe a power, conferred on the Tribunal for use in disposing of disciplinary proceedings, in a way that would narrow or curtail the power afforded when "stepping into the shoes" of the primary decision-maker ^[60] . On the contrary, the nature and statutory functions of the Tribunal argue for a broad and ample interpretation of its powers, because they are to be exercised in substitution for the Authority.

67. Purpose of the review : Fourthly, once it is appreciated that the substituted decision of the Tribunal is intended to uphold discipline amongst agents, in accordance with the Migration Act, and thus to protect members of the public who deal with such agents, there can be no good reason for construing s 304A of that Act narrowly, particularly where a decision of the Tribunal is concerned. Still less can there be a reason to exclude recourse to s 304A where the only expressed precondition for its operation (the giving of "a caution") is fulfilled, as it was in the present instance.

68. It is true that the Tribunal does not enjoy all of the investigatory powers afforded to the Authority by the Migration Act. This fact would be known to the Tribunal. In given circumstances, it might afford a reason for the Tribunal, having set aside a decision under review for error, to elect to remit the matter to the Authority for reconsideration, in accordance with any directions or recommendations thought appropriate. In the present case, that course was not adopted. There is no indication in the reasons of the Tribunal that it felt constrained by a lack of relevant evidence, or otherwise that it was unable to reach a decision that it could properly substitute for that of the Authority. Given the broad powers afforded to the Tribunal for the purpose of bringing disputes over relevant administrative decisions to finality "on the merits", no ground is shown for narrowing the decision-making powers of the Tribunal, either generally or in the present case.

69. Taking account of the circumstances : Fifthly, there is nothing in s 304A, or in any other provision of the Migration Act, that limits the power to "lift" a caution given to an agent, where such a course is appropriate, on "conditions" moulded to the particular circumstances of the case. This is what the Tribunal set out to do in the appellant's case.

70. Mindful of the purpose of protecting the public, but also of the evidence concerning the appellant's recent conduct and experience, the Tribunal made an available and arguably a sensible disciplinary decision. It paid regard to the evidence provided to the Tribunal about the activities of the appellant after the decision to cancel his registration as an agent was made and after the stay of the operation of that order took effect.

71. In the context of professional discipline in other fields, it is not unusual for conditional orders to practise, or to return to practise, to be made, fashioned so as to take into account particular impediments, arising from the evidence, to a full, immediate return to the entire range of professional duties ^[61] .

72. Whilst it is true that the Migration Act does not comprehend qualified rights to practise as such, neither do the laws providing for the registration of medical practitioners or dentists, or the admission of legal practitioners. Yet in particular circumstances, the imposition of temporary conditions following disciplinary proceedings, here as an adjunct to a caution, might well be an entirely appropriate disciplinary response, protective of the public. In such cases, it would represent the "correct or preferable decision" on the merits of the case. Clearly, the Tribunal considered a decision of such a nature to be appropriate to its ultimate factual findings. This Court is not concerned with the factual merits of that conclusion. A decision that the Tribunal lacked the jurisdiction and power to fashion the order that it did is not required by the language, still less the purpose, of the Migration Act. It does not represent the better view of the meaning of the amended provisions of that Act.

73. It is true, as Downes J acknowledged ^[62] , that the language of s 304A of the Migration Act is somewhat confusing and imperfect:

"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. ...

I can well understand that the legislature might have provided for a fourth disciplinary alternative within s 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.

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?"

74. Whilst noting these concerns, Downes J, alone in the Full Court, gave proper meaning to the provision that the Parliament had enacted. Faced with the "strained use of the English language" ^[63] in the Migration Act, the approach taken by Downes J was the correct one.

75. When the relevant decision-maker (the Authority or the Tribunal, as the case may be) decides in a disciplinary matter to give a "caution", the special power of "lifting" the caution on conditions becomes available, as s 304A provides. That is the power that the Senior Member of the Tribunal decided to exercise in the appellant's case. There is no challenge (so far as one would be possible) to the factual premises upon which that decision rested. The Authority's contention that error of law affected the exercise of the Tribunal's jurisdiction and powers is not made out.

76. Conclusion : the appellant succeeds : The conclusion reached, and the decision made, by the Tribunal were open to it after it found mistakes in the original decision of the Authority. The Tribunal having decided to "set aside" the Authority's decision and to make "a decision in substitution for the decision so set aside", the giving of a caution was permitted pursuant to s 303(1)(c) of the Migration Act. Its "lifting" on the stated conditions was permitted on the basis of s 304A of that Act.

77. It follows that on the second issue also the approach and conclusion of Downes J are to be preferred. The result is that on this issue, the appellant is entitled to succeed.

Orders

78. The appeal to this Court should be allowed with costs. The judgment of the Full Court of the Federal Court of Australia should be set aside. In place of that judgment, it should be ordered that (a) the appeal to the Full Court is allowed with costs; (b) the orders of the primary judge (Edmonds J) are set aside and the appeal to the Federal Court is dismissed with costs.