Shi v Migration Agents Registration Authority

[2008] HCA 31

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(Judgment by: Hayne J, Heydon J)

Shi
vMigration Agents Registration Authority

Court:

Judges: Kirby J

Hayne J
Heydon JCrennan J
Kiefel J

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

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Judgment by:
Hayne J
Heydon J

79. In July 2003, the Migration Agents Registration Authority ("MARA") cancelled the appellant's registration as a migration agent. Part 3 (ss 275-332B) of the Migration Act 1958 (Cth) ("the Migration Act") regulated the registration of migration agents and the provision of immigration assistance. MARA was satisfied that the appellant had not complied with the Code of Conduct prescribed under s 314 of the Migration Act, and that he was not a person of integrity, or was otherwise not a fit and proper person to give immigration assistance. Subsequently, MARA made a number of other decisions about the appellant's registration as a migration agent, including decisions not to re-register him.

80. Section 306 of the Migration Act provided that, subject to the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), application might be made to the Administrative Appeals Tribunal ("the Tribunal") for review of certain decisions made by MARA, including a decision to cancel registration as a migration agent. The appellant applied to the Tribunal for review of the cancellation decision, and for review of the other decisions that MARA had made about his registration as a migration agent.

81. Two questions about the Tribunal's review of the cancellation decision now come to this Court. One concerns the Tribunal's task. Was it, as MARA contended, to decide whether, at the time MARA made its decision , the correct or preferable ^[64] decision was that the appellant was not a person of integrity, or was otherwise not a fit and proper person to give immigration assistance? Or was it, as the appellant contended, to decide what was the correct or preferable decision at the time the Tribunal made its decision ? The second question in this Court concerns the powers of MARA. Could MARA (and could the Tribunal in exercising for itself "the powers and discretions that are conferred" ^[65] by the Migration Act on MARA) impose certain conditions on the appellant about his future conduct as a migration agent when it cautioned him?

82. To explain how those questions arise in this Court it is necessary first to refer briefly to the steps taken by MARA, next to describe the course of proceedings in the Tribunal and the courts below, and then to refer to the relevant legislative provisions.

The steps taken by MARA

83. MARA cancelled the appellant's registration on 14 July 2003, refused to renew his registration on 8 October 2003 ^[66] , suspended his registration in April 2004, and again refused to renew his registration in August 2004. Each of these decisions was stayed, enabling the appellant to continue acting as a migration agent. But the stay that was granted in respect of the cancellation decision was conditional upon the appellant undertaking not to engage in any business relating to protection visas and upon his being supervised by another migration agent. Most of MARA's findings that the appellant had breached the Code of Conduct concerned applications for protection visas.

The course of proceedings in the Tribunal

84. On 6 April 2005, the Tribunal published the findings of fact it made about whether the appellant had breached the Code of Conduct. The Tribunal found 51 breaches of the Code. (MARA had found 98.) All of the breaches found by the Tribunal were constituted by acts or omissions that had occurred before MARA made its decision to cancel the appellant's registration.

85. On 2 September 2005, the Tribunal published its decision on its review of the cancellation decision and the other decisions that MARA had made about the appellant's registration as a migration agent. The Tribunal concluded 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. It set aside the cancellation decision and the other decisions under review. The Tribunal decided that the appellant should be cautioned and that the caution would be lifted on 1 September 2008 if the appellant did not, in the meantime, provide assistance with applications for protection visas, and if, further, his work as a migration agent during that time was supervised by another registered migration agent.

86. In deciding whether the appellant was not a person of integrity, or was otherwise not a fit and proper person to give immigration assistance, the Tribunal took into account evidence of the appellant's conduct between July 2003 (when MARA had cancelled his registration) and September 2005 (when the Tribunal made its decision).

Proceedings in the courts

87. Being dissatisfied with the Tribunal's decision, MARA "appealed" to the Federal Court of Australia. That "appeal", brought pursuant to s 44(1) of the AAT Act, was confined to a question of law. First, MARA submitted that the Tribunal made an error of law by asking whether, in September 2005, at the time of the Tribunal's decision, the appellant was shown not to be a person of integrity or was otherwise not a fit and proper person to give immigration assistance. MARA submitted that the Tribunal should have considered whether, in July 2003, when MARA made its decision, the correct or preferable decision was to cancel the appellant's registration as a migration agent. Secondly, MARA submitted that the Tribunal's finding that the appellant should not do certain kinds of work as a migration agent, and that he should be supervised in the work he did, showed either that the Tribunal had concluded that the appellant was not yet a fit and proper person to be a migration agent or that it had misconstrued the relevant provisions of the Migration Act.

88. MARA's appeal to the Federal Court was allowed ^[67] . The Tribunal's decision was set aside and the matter was remitted to the Tribunal to be determined according to law. The primary judge (Edmonds J) concluded ^[68] that the question for the Tribunal was whether, at the date of MARA's decision, the appellant was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance. Because the Tribunal had considered the appellant's conduct during the period between MARA's decision to cancel his registration and the Tribunal conducting its review, the primary judge concluded ^[69] that it had "asked itself the wrong question; and the Tribunal had regard to matters it was bound not to consider".

89. The primary judge did not accept ^[70] MARA's argument that the Tribunal's imposition of conditions about the appellant's future work as a migration agent showed either that the Tribunal had concluded that the appellant was not a fit and proper person to give immigration assistance, or that the Tribunal had misconstrued the Migration Act provisions about a migration agent being a fit and proper person to give immigration assistance. But the primary judge held ^[71] that neither MARA, nor the Tribunal on review of a decision of MARA, could set conditions for the lifting of a caution administered to a migration agent, if those conditions could not be imposed as conditions of registration as a migration agent. The primary judge concluded ^[72] that the conditions imposed by the Tribunal in this case were beyond power.

90. The appellant appealed to the Full Court of the Federal Court against the orders of Edmonds J. The Full Court, by majority (Nicholson J and Tracey J; Downes J dissenting), dismissed ^[73] that appeal.

91. By special leave, the appellant now appeals to this Court. The appeal to this Court should be allowed. The orders of the Full Court should be set aside and consequential orders made restoring the Tribunal's decision.

The applicable legislation

92. As this Court has so often emphasised ^[74] in recent years, questions presented by the application of legislation can be answered only by first giving close attention to the relevant provisions. Reference to decided cases or other secondary material must not be permitted to distract attention from the language of the applicable statute or statutes. Expressions used in decided cases to explain the operation of commonly encountered statutory provisions and their application to the facts and circumstances of a particular case may serve only to mask the nature of the task that is presented when those provisions must be applied in another case. That masking effect occurs because attention is focused upon the expression used in the decided cases, not upon the relevant statutory provisions.

93. In this case, attention must be directed to provisions of both the AAT Act and the Migration Act. The task of the Tribunal in reviewing the cancellation decision was to be identified by considering the intersecting operation of ss 25 and 43 of the AAT Act, and ss 303 and 306 of the Migration Act.

94. Section 25 of the AAT Act provided (so far as presently relevant) that:

"(1) An enactment may provide that applications may be made to the Tribunal:

(a)

for review of decisions made in the exercise of powers conferred by that enactment; or

(b)

for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

(3) Where an enactment makes provision in accordance with subsection (1), that enactment:

(a)

shall specify the person or persons to whose decisions the provision applies;

(b)

may be expressed to apply to all decisions of a person, or to a class of such decisions; and

(c)

may specify conditions subject to which applications may be made.

...

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

Section 306 of the Migration Act was an enactment of the kind described in s 25(1) of the AAT Act. At the times relevant to this matter, s 306 of the Migration Act provided:

"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."

The relevant decision by MARA "made under this Division" ^[75] was a decision under s 303. After MARA made its decision to cancel the appellant's registration, s 303 was amended by the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 (Cth) ("the 2004 Amendment Act"). Nothing turns on the amendments that were made to s 303. At the time the Tribunal made its decision, s 303 (as amended by the 2004 Amendment Act) provided:

"(1) 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.

Note 1: The Authority is required to caution a registered migration agent or cancel or suspend a registered migration agent's registration in certain circumstances: see Division 3AA.

Note 2: If the Authority is considering making a decision under this section, it must invite the registered migration agent to make a submission: see sections 309 and 310.

Unpaid registration status charge

(2) The Authority may also suspend the registration of a registered migration agent if any registration status charge payable by him or her remains unpaid after the time when it becomes due for payment."

Section 43 of the AAT Act governed the Tribunal's decision on review. So far as now relevant, s 43 provided:

"(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."

95. The decision which was the subject of the Tribunal's review, and which is at the centre of the present proceedings, was a decision of the kind identified in s 303(1)(a) of the Migration Act - a decision to "cancel the registration of a registered migration agent by removing his ... name from the register". The grounds on which MARA acted in exercising that power were those identified in s 303(1)(f) and (h) - that MARA was satisfied that the appellant "is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance" (par (f)) and that "the agent has not complied with the Code of Conduct prescribed under section 314" (par (h)).

The Tribunal's task

96. In reviewing MARA's decision to cancel the appellant's registration, the Tribunal was empowered (by s 43(1) of the AAT Act) to exercise all the powers and discretions conferred by the Migration Act on MARA. The questions for the Tribunal in reviewing the cancellation decision were first, whether the Tribunal was satisfied that either of the s 303(1) grounds said to be engaged in this case was made out, and secondly, whether the Tribunal should exercise the powers given by s 303(1) to cancel or suspend the appellant's registration or to caution him. That is, the first questions for the Tribunal were whether it was satisfied that the appellant "is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance" and whether it was satisfied that the appellant had not complied with the Code of Conduct.

97. MARA's contention, in this Court and in the courts below, that the question for the Tribunal was whether the correct or preferable decision when MARA made its decision was to cancel the appellant's registration, should be rejected. It finds no footing in the relevant provisions. To frame the relevant question in the manner urged by MARA would treat the Tribunal's task as confined to the correction of demonstrated error in administrative decision-making in a manner analogous to a form of strict appeal ^[76] in judicial proceedings. But that is not the Tribunal's task.

98. It has long been established ^[77] that:

"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 ." (emphasis added)

And MARA accepted in argument in this Court that in conducting its review the Tribunal was not limited to the record that was before MARA ^[78] . It submitted, however, that the Tribunal had to consider the circumstances "as appear from the record before it as they existed at the time of the decision under review ".

99. Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.

100. The AAT Act provides for the review of decisions by a body, the Tribunal, that is given all of the powers and discretions that are conferred on the original decision-maker. As Brennan J rightly pointed out in an early decision of the Tribunal ^[79] , not all of the powers that the Tribunal may exercise draw upon the grant of powers and discretions to the primary decision-maker:

"A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal's order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise."

But subject to that qualification, the Tribunal's task is "to do over again" ^[80] what the original decision-maker did.

101. Nothing in the provisions of the Migration Act fixed a particular time as the point at which a migration agent's fitness to provide immigration assistance was to be assessed. Unlike some legislation providing for pension entitlements ^[81] , in which the critical statutory question is whether a criterion was met or not met at a particular date, such as the date of cancellation of entitlements, the provisions of s 303 of the Migration Act contained no temporal element. It follows that when the Tribunal reviews a decision made under s 303, the question which the Tribunal must consider (is the Tribunal satisfied that the person concerned is not a fit and proper person to give immigration assistance?) is a question which invites attention to the state of affairs as they exist at the time the Tribunal makes its decision. MARA's argument to the contrary should have been rejected in the courts below.

Cautioning on condition?

102. As noted earlier, after MARA made its cancellation decision, but before the Tribunal decided its review, the 2004 Amendment Act amended the Migration Act. In particular, the 2004 Amendment Act provided for the insertion of s 304A:

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

Note: Particulars of cautions are shown on the Register: see section 287."

103. In the present case, the Tribunal concluded that the appellant's registration as a migration agent should be neither cancelled nor suspended. But it concluded that he should not be permitted to offer assistance in connection with applications for protection visas or to practise unsupervised before 1 September 2008.

104. It was not disputed in the proceedings in this Court or in the courts below that, in reviewing the cancellation decision, the Tribunal could exercise the power given by s 304A. The tension between MARA's acceptance that the Tribunal could exercise the power given by s 304A and MARA's submission that the Tribunal should otherwise be confined to considering the state of affairs at the date of MARA's cancellation decision is evident. For the reasons given earlier, it is a tension that is resolved by the rejection of the latter submission.

105. MARA submitted that the majority in the Full Court of the Federal Court and the primary judge had correctly concluded that s 304A did not authorise imposing conditions of the kind imposed in this case as conditions for the lifting of the caution administered to the appellant. In particular, MARA submitted that s 304A did not authorise "conditions for the lifting of a caution that seek to qualify the registered agent's right to use that registration".

106. The power to "set one or more conditions for the lifting of a caution" ^[82] is expressed in terms that do not expressly identify the kinds of condition that may be set. The limits to the power are therefore to be identified by reference to the subject-matter, scope and purpose of the legislation.

107. In considering what are those limits, it is necessary to begin by identifying what is meant by a "caution" in the provisions of the Migration Act that dealt with the registration of migration agents. Section 303(1) provided that one of the three possible consequences of MARA being satisfied of one or more of the matters stated in pars (d) to (h) of that sub-section was for MARA to "caution" a migration agent. But administration of a "caution" was more than the formal communication of a warning to the agent concerned. Particulars of any caution given to an agent were to be recorded in the Register of Migration Agents ^[83] , and MARA was obliged ^[84] to make that Register available for inspection by any person. Thus the administration of a caution was a matter of public record.

108. The reference in s 304A to the "lifting" of a caution must be understood in that light. The "lifting" to which the section referred would be reflected in the Register. (The assumption in argument may have been that it would be reflected by removing from the Register any reference to the caution. Whether that was required or only a note that the caution was no longer continuing matters not for present purposes.)

109. Reference to a form of "qualified registration" provides no useful criterion for distinguishing between conditions that can and those that cannot be lawfully imposed under s 304A as conditions for lifting a caution. The primary judge expressed ^[85] the relevant criterion as being whether the conditions set for the lifting of a caution are "conditions which are consistent with the migration agent's registration". That is, it was the view ^[86] of the primary judge that conditions would not be set for lifting a caution "which could not be imposed as conditions of an individual's registration as a migration agent".

110. These statements in amplification of the reference to "qualified registration" reveal why it provides no useful criterion for distinguishing between conditions that can and cannot be set as conditions for lifting a caution. The root of the difficulty in the asserted criterion is that the Migration Act did not provide for MARA to impose conditions in connection with the registration of a migration agent except as conditions for lifting a caution. If the use of the expression "qualified registration" was intended to invite a comparison between conditions that could be imposed on registration and those that could not, it is a comparison that could not be made.

111. Any condition imposed as a condition for lifting a caution could be described as providing a form of "qualified registration" of a migration agent. The agent would be registered but the agent's registration would be "qualified" for so long as the condition applied. The qualification to the registration would be that the agent concerned was under caution until the condition was met. The power given by s 304A is not limited in the manner alleged by MARA.

112. MARA accepted, correctly, that a caution could be administered to a migration agent on condition that the agent undertake a prescribed course of training. The Explanatory Memorandum for the 2004 Amendment Act had expressly given that as an example of the operation of the new s 304A. But no relevant distinction can be drawn between a condition that required an agent to undertake a course of instruction, and a condition that required an agent to work subject to supervision. No relevant distinction can be drawn because both are conditions that relate to the subject-matter, scope and purpose of the relevant provisions of the Migration Act and fall within the otherwise general words of s 304A. Likewise, a condition that a migration agent not undertake certain kinds of work relates to the subject-matter, scope and purpose of the relevant provision and falls within the words of s 304A.

113. Contrary to MARA's submission, the provisions of the Migration Act which provide for and regulate the registration of migration agents are not to be read as if registration as an agent confers on the person registered an unfettered capacity to give migration assistance. The relevant provisions must be read together. The powers and duties of a migration agent are to be identified from the combined operation of all of those provisions. Section 280(1) of the Migration Act provides that a person who is not a registered migration agent must not give immigration assistance. But what a registered migration agent may do in giving immigration assistance is regulated by other applicable provisions of the Migration Act, including s 304A.

114. A failure to abide by the conditions for lifting a caution may well be a matter relevant to the annual exercise of the power to re-register an agent ^[87] . Failure to abide by such conditions may also be relevant to whether an agent is a fit and proper person to give immigration assistance. But a migration agent subject to a caution of the kind now in issue may continue to act as a migration agent. Imposition of conditions of the kind imposed in this case as conditions for the lifting of the caution administered to the appellant was not inconsistent with the scheme for which the relevant provisions of the Migration Act provided.

Conclusion and orders

115. For these reasons the appeal to this Court should be allowed with costs. The orders of the Full Court of the Federal Court of Australia should be set aside and in their place there should be orders that (a) the appeal to that Court is allowed with costs; and (b) the orders of Edmonds J made on 15 September 2006 and 27 November 2006 are set aside and in their place there are orders that the appeal to the Federal Court against the decision of the Administrative Appeals Tribunal is dismissed with costs.