Shi v Migration Agents Registration Authority
[2007] FCAFC 59 (27 April 2007)(2007) FCR 525
(2007) 240 ALR 23
(Judgment by: Downes J:)
Nelson Guang Lai Shi
v Migration Agents Registration Authority
Judges:
NICHOLSON
dOWNESTRACEY JJ
Subject References:
MIGRATION
appeal
cancellation of migration agent's licence
evidence on review of cancellation decision must relate to the date of cancellation rather than the date of review
conditions for lifting of caution are limited to conditions consistent with the migration agent's registration
Legislative References:
Migration Act 1958 (Cth) - ss 276; 280; 280(1); 280(1A); 283; 287; 288; 289A; 290; 292; 303(1); 303(1)(a); 303(1)(c); 304A; 303-305B
Case References:
Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd - [2004] FCA 843; (2004) 138 FCR 428
Australian Tea Tree Oil Research Institute v Industry Research and Development Board - [2002] FCA 1127; (2002) 124 FCR 316
CIC Insurance Ltd v Bankstown Football Club Ltd - [1997] HCA 2; (1995) 187 CLR 384
Commissioner of Taxation (Cth) v McMahon - (1997) 79 FCR 127
Commonwealth v Ford - (1986) 9 ALD 433
Comptroller-General of Customs v Akai Pty Ltd - (1994) 50 FCR 511
Drake v Minister for Immigration and Ethnic Affairs - (1979) 46 FLR 409
Egulian and the Tax Agents' Board of New South Wales, Re - (1991) 22 ATR 3542
Freeman v Secretary, Department of Social Security - (1988) 19 FCR 342
Hospital Benefit Fund of WA Inc v Minister for Health, Housing and Community Services - (1992) 39 FCR 225
Jebb v Repatriation Commission - (1988) 80 ALR 329
Migration Agents Registration Authority v Shi - (2006) 43 AAR 424
Minister for Immigration and Multicultural Affairs v Sharma - [1999] FCA 31; (1999) 90 FCR 513
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed - [2005] FCAFC 58; (2005) 143 FCR 314
Nevistic v Minister for Immigration and Ethnic Affairs - [1981] FCA 41; (1981) 51 FLR 325
Nong v Minister for Immigration and Multicultural Affairs - [2000] FCA 1575; (2000) 106 FCR 257
Judgment date: 27 APRIL 2007
Judgment by:
Downes J:
FACTS
29 Nelson Guang Lai Shi has been a migration agent since December 1995. In 2003 and 2004 the Migration Agents Registration Authority made four decisions affecting his registration. It cancelled his registration (14 July 2003), refused an application for re-registration (8 October 2003), suspended his registration for three years (19 April 2004) and refused a second application for re-registration (16 August 2004). This appeal is concerned only with the cancellation decision of 14 July 2003. That decision was made pursuant to paras 303(1)(f) (the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance) and 303(1)(h) (the agent has not complied with the Code of Conduct prescribed under s 314) of the Migration Act 1958 (Cth).
30 Mr Shi sought review of all four decisions in the Administrative Appeals Tribunal. Each decision was subject to a stay imposed either by the Tribunal or this Court. On 2 September 2005, the Tribunal (Senior Member Kelly) set aside the cancellation decision and substituted a decision that Mr Shi was cautioned. The caution will be lifted on 1 September 2008 if until that time Mr Shi practices only under the supervision of a registered migration agent and does not provide immigration assistance with respect to protection visas.
31 The Tribunal found that para 303(1)(f) (fitness) was not made out and that cancellation or suspension was not appropriate in relation to the breach of para 303(1)(h) (Code of Conduct). Although Mr Shi had given incorrect and misleading evidence and his conduct as a whole indicated that he did not appreciate his obligations under the prescribed Code, there was no evidence that he had acted dishonestly and he had not breached the Code since 2003. In addition, he had a number of favourable references and had been practising for two years under the supervision of a knowledgeable and experienced migration agent who held him in high regard. In these circumstances, the Tribunal considered that the public interest could be appropriately served by allowing Mr Shi to continue to practice, subject to conditions imposed under s 304A of the Migration Act.
32 On 15 September 2006, Justice Edmonds set aside the Tribunal's decision. His Honour found that the Tribunal had made two errors of law. First, the Tribunal had reviewed the Authority's decision as at the date of the Tribunal decision, rather than at the date of the cancellation decision. Secondly, the Tribunal did not have power to impose conditions restricting Mr Shi's practice because such conditions could not be imposed on registration under s 280 of the Migration Act.
ISSUES ON APPEAL
33 There are two issues involved in this appeal:
- 1.
- Did the Tribunal ask itself the right question by considering Mr Shi's compliance with paras 303(1)(f) and (h) of the Migration Act on the date of the Tribunal's decision? That is, was it entitled to have regard to facts occurring after the date of the Authority's decision?
- 2.
- Can the Tribunal impose conditions, requiring supervision and restricted practice, for the lifting of a caution under ss 303(1)(c) and 304A of the Migration Act?
34 In my opinion, both questions must be answered affirmatively. The appeal should be allowed and the decision of the Tribunal restored.
ISSUE 1: RELEVANT TIME FOR TRIBUNAL DECISION
35 The Administrative Appeals Tribunal is not a court. It does not exercise the judicial power of the Commonwealth. It is an administrative decision-maker. It exercises the executive power of the Commonwealth. Administrative decision-making is almost always improved if it is based on the facts and circumstances as they are at the time of the decision and not as they were in the past. Administrative decisions should always be made on this basis unless there are compelling reasons for doing otherwise. Sometimes, however, legislation conferring the decision-making power will, expressly or by implication, require the decision-maker to address a time prior to the decision and the facts and circumstances as they were at that time.
36 The position is different with litigation before courts. Judicial power is concerned with resolving disputes between parties. The dispute must exist at the time proceedings are commenced and generally be defined by pleadings or other documents addressing that point of time. Courts, accordingly, focus much more on the circumstances as they were at the time the proceedings were commenced. In this respect the work of courts can be contrasted with that of tribunals engaged in merits review of administrative decisions. It is nevertheless true to say that even in litigation the tendency to look at facts and circumstances occurring after proceedings have commenced has been increasing, albeit for the purpose of informing the state of affairs at the time proceedings were commenced. For example, O 11 r 7 of the Federal Court Rules expressly permits a party to " plead a fact or matter that has occurred or arisen since the commencement of the proceeding ". In an appeal from the judgment of a court the question is whether the decision below is correct. In an application to a tribunal for merits review of an administrative decision the whole matter must be considered afresh.
37 The process of administrative review has been described as "a continuum". A past President of the Administrative Appeals Tribunal, Davies J, sitting in the Federal Court of Australia in Jebb v Repatriation Commission (1988) 80 ALR 329 at 333, said:
"[ The ] general approach of the tribunal has been to regard the administrative decision making process as a continuum and to look upon the tribunal's function as a part of that continuum so that, within the limits of a reconsideration of the decision under review, the tribunal considers the applicant's entitlement from the date of application, or other proper commencing date, to the date of the tribunal's decision ."
38 Hill J expanded upon this in Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521:
" The Tribunal is an administrative Tribunal and, as has often been said, its function is merely to do over again what the original decision-maker did, working out, as a further step in administration, what it considers the decision ought to be : cf Mobil Oil Australia Pty Limited v Commissioner of Taxation (Cth) [ 1963 ] HCA 41 ; (1963) 113 CLR 475 at 502 per Kitto J ; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 413-415 per Bowen CJ and Deane J, and more recently see Liedig v Commissioner of Taxation [ 1994 ] FCA 1058 ; (1994) 50 FCR 461. In exercising its role, in what Davies J in Jebb v Repatriation Commission (1988) 8 AAR 285 at 288-289 referred to as a " part of " an administrative " continuum ", the Tribunal, within the ambit of the jurisdiction conferred upon it as a review authority, decides the matter by reference to the evidence before it and not the evidence before the decision-maker, taking into account events that may have occurred to the date of decision : cf Jebb (at 289-290) ; Lucas v Repatriation Commission (1986) 69 ALR 415 at 421 ; Ward v Nicholls (1988) 20 FCR 18 at 22, per Wilcox J .
It is true that the review to be conducted by the Tribunal is a review of a specific decision and if that decision has to be made by reference to a particular point of time the Tribunal will be limited to deciding the question by reference to that point of time. That was the case in Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225, but ordinarily in such a case the Tribunal will not be limited to the evidence before the decision-maker although obliged to address the question the decision-maker addressed ."
39 It will be seen that two issues are involved. The first is whether the reviewing decision-maker can have regard to evidence not before the original decision-maker. The answer is almost always yes. The second is whether the reviewing decision-maker can make its decision on facts and circumstances occurring after the making of the original decision usually up to the time of the making of the reviewing decision.
40 Jebb and Akai were followed by Stone J in Australian Tea Tree Oil Research Institute v Industry Research and Development Board [ 2002 ] FCA 1127 ; (2002) 124 FCR 316. That case involved the question of whether the Administrative Appeals Tribunal could consider subsequent evidence when reviewing a decision of the Industry Research and Development Board to refuse registration as an Australian research agency where the applicant did not satisfy the requirements of the legislation at the time of application. The court held that it could. This was notwithstanding regulatory requirements that the Board needed to be satisfied that particular criteria were satisfied. Subsequently satisfying the criteria could not alter the fact that the criteria were not satisfied at the time they were considered by the Board.
41 The issue in the present case is whether the Tribunal, when reviewing a decision to cancel the registration of a migration agent, should act solely on the facts and circumstances as they were at the time of the decision being reviewed. As a matter of policy, I can see no reason why the review decision should be so confined. Indeed, to the extent to which legislative intention is relevant to the meaning of the legislation, I cannot imagine a legislative intention that a review decision should be based on other than the most up to date information. Suppose the Tribunal considered that the material before the Authority did not justify cancellation, but the agent had subsequently committed a serious criminal offence!
42 The appropriate basis to commence consideration of the issues is the prima facie position that administrative decisions should be made on the latest material. The question becomes whether there is anything in the legislation which requires a different conclusion.
43 The relevant section (subs 303(1)) confers power on the Authority to take action, including the cancellation of registration, " if it becomes satisfied " of any of a number of matters generally associated with integrity. The section does not address any moment of time other than the moment of decision. On that basis it is less likely that the decision has to be made at a specific point in time than in Tea Tree . I can see nothing in the legislation which suggests that the Tribunal should do other than consider the question before it at the time of its decision, based on the material then available to it, including events occurring up to the decision.
44 I can see no basis for any qualification limiting the use of subsequent events to the light they shed on character as at the time of the decision under review. It would be clumsy to introduce a distinction that, for example, a subsequent criminal conviction might inform a decision as to integrity (ground (f)) at an earlier point of time, but that a subsequent breach of the Code of Conduct (ground (h)) could not inform a decision on that issue at an earlier point of time. Similarly, if a migration agent has reformed his or her behaviour so that s 303 is no longer contravened and the Tribunal considers that action is no longer warranted, taking no action would seem to be the correct result. Allowing the Tribunal to have regard to subsequent conduct would not undermine the legislation, nor lead, as submitted by counsel for the Authority, to a lessening of standards amongst migration agents. The Tribunal would be bound to carefully scrutinise the changed circumstances and to satisfy itself that the reformed conduct was not merely a device to avoid cancellation or suspension. It would, in any event, take into account that the reformed conduct was not spontaneous. It would pause before it found that such changed circumstances should lead to a different result.
45 During the hearing counsel for the Authority accepted that in a review before the Tribunal " it " in the phrase in subs 303(1) " it becomes satisfied " referred to the Tribunal. This is consistent with the many observations that have been made that the Tribunal " stands in the shoes " of the original decision-maker. So understood, the Tribunal's task is described in the present tense. That is consistent with all the general learning relating to the task of reviewing administrative decision-making to which I have referred.
46 There is no doubt that subs 303(1) shows a clear intent that offending conduct should lead to relevant disciplinary action at the date of the conduct being established. However, that date is the date on which the relevant decision-maker makes the decision. Once a party exercises the right to apply for review to the Tribunal the decision-maker is the Tribunal, the relevant issue is whether it is satisfied and the relevant date is the date of its decision. Because of the continuum approach the Tribunal will naturally take into account the circumstances as they were at the time of the making of the Authority's decision. However, the application for review has the effect of constituting the Tribunal as the body whose satisfaction is relevant - it is no longer the Authority.
47 Considerable time was spent in argument in this Court and in the court below considering the decision of Davies J in Freeman v Department of Social Security (1988) 19 FCR 342, given only four months after his decision in Jebb . Edmonds J said that, along with other decisions, the decision established that the question for the Tribunal was " whether, on 14 July 2003, the correct or preferable decision was to cancel the respondent's registration ". In Freeman , Davies J held that the Tribunal, in reviewing a decision to cancel the appellant's pension, was entitled to consider only the appellant's circumstances as at the date of the cancellation decision, despite the fact that those circumstances may no longer have applied at the date of the Tribunal decision. Freeman concerned a pension payable fortnightly. There is a compelling basis in such a case, where it had been established before a competent decision-maker that the entitlement had ceased at a prior point of time, that cancellation should be affirmed. If the pensioner subsequently qualified anew then that would require a fresh application. There would be no pension entitlement in the interim. That is an example of a case where legislation did require the Tribunal to address a particular point of time. Moreover, as both parties agreed, Davies J did not in Freeman promulgate a general rule applicable to cancellation decisions. Rather, he emphasised that "[ r ] egard must always be had to the nature of the decision which is under review " (at 345). There is nothing about the nature of the decision under review in the present case that causes me to consider that I should depart from the general principle that administrative review is conducted at the time of the review on the latest material available.
ISSUE 2: IMPOSITION OF A CAUTION SUBJECT TO CONDITIONS
48 The second issue in the appeal is whether it was competent for the Tribunal, having set aside the decision to cancel the agent's registration, to substitute a caution which was to be lifted at a fixed time if the agent desisted in the meantime from providing assistance with protection visas and was supervised by a registered migration agent.
49 The thrust of the decision below is that the Tribunal was not competent to substitute such a decision because similar conditions were not contemplated and could not be imposed at the time of a migration agent's initial registration (see s 280). Registration contemplated the right to give immigration advice and any condition could not impinge upon that right.
50 The circumstances of a migration agent who has been found to have contravened one or more of the standards in subs 303(1) warranting disciplinary action are very different to those of an agent applying for ordinary registration. Given that cancellation precludes all activity and suspension precludes all activity for a period, it seems to me that precluding some specific activity associated with the contravention for a limited time is a reasonable disciplinary alternative. It does not seem to me to be inconsistent that an agent not under discipline cannot be subject to a similar limitation. The question is, what does the legislation authorise?
51 The concept of a caution subject to conditions is new to me. The idea that a condition could relate to the lifting of the caution itself seems even more novel. However, this is what ss 303 and 304A expressly provide. The novelty of a concept should not lead to a narrowing of its extent. Section 304A provides:
" The Migration Agents Registration Authority may set one or more conditions for the lifting of a caution it gives to a registered migration agent ."
52 I can well understand that the legislature might have provided for a fourth disciplinary alternative within subs 303(1), namely, the imposition of conditions on registration itself. That is how one would ordinarily expect conditions to operate. However, that is not what is provided by s 303(1)(c) and the rather inelegantly worded s 304A.
53 Section 304A speaks of a " condition for the lifting of a caution ". The concept of the lifting of a caution itself seems odd. After all, a caution is a single act of communication. It will usually have as its future consequence some more serious disciplinary action if the caution is not heeded, rather than the " lifting " of the caution through compliance with conditions. How can a caution, once given, be lifted? The answer to that is more associated with practical considerations under the legislative regime than the nature of a caution. By s 287 the caution must be shown on a public register unless it is no longer in effect. Although in this realm of strained use of the English language it may not necessarily follow that a lifted caution is no longer in effect, that would seem to be the intent of the legislation.
54 Counsel for the Authority submitted that conditions attached to a caution are incapable of restricting a migration agent's practice. As a consequence of his continued registration, Mr Shi is still legally entitled to provide services with respect to protection visas and to act without supervision. The Authority submits that the only consequence of breaching the conditions is that the caution will not be lifted. However, this is not necessarily the case. Such conduct would be likely to trigger further disciplinary action. The fact that the Act does not provide a more coercive mechanism for restricting an agent's practice does not mean that the conditions imposed by the Tribunal are unlawful.
55 The question in this Court is whether the tribunal erred in law. We have no power to address the merits of the decision. We did not hear the evidence. Consistently with the limitation on the appeal before us, counsel for the parties did not address the merits. Nevertheless, the limited knowledge we have of the facts may suggest that the appellant was fortunate in the result which occurred in this case. I repeat, however, that that is not a matter for us and cannot affect the outcome of the issues of law before us.
56 Sections 303(1)(a) and 304A provide an unusual mechanism for attempting to restrict the practice of a migration agent under discipline. The Tribunal did not err in law in engaging the provisions in the manner it did.
57 In my opinion, the appeal must be allowed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.