Shi v Migration Agents Registration Authority

[2007] FCAFC 59 (27 April 2007)
(2007) FCR 525
(2007) 240 ALR 23

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(Judgment by: Nicholson J:)

Nelson Guang Lai Shi
v Migration Agents Registration Authority

Court:

Judges:
NICHOLSONdOWNES
TRACEY 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

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Judgment by:
Nicholson J:

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

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

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

(a) The respondent had not complied with the Code of Conduct prescribed under s 314 (s 303(1)(h)); and

(b) The respondent was not a person of integrity or her [sic] was otherwise not a fit and proper person to give immigration assistance (s 303(1)(f)) ('the cancellation decision')

...

(ii) A decision dated 8 October 2003 in which the Authority refused the respondent's application for repeat registration pursuant to s 290(1) of the Act as it was satisfied that the respondent was not a person of integrity and was otherwise not a fit and proper person to give immigration assistance (s 290(1)(a) and (b)) ('the first refusal decision') . ...

(iii) A decision dated 20 April 2004 in which the Authority suspended the respondent's registration pursuant to s 303(1)(b) of the Act as it was satisfied that the respondent had not complied with the Code of Conduct prescribed under s 314 - see s 303(1)(h) ('the suspension decision') . ...

(iv) A decision dated 16 August 2004 in which the Authority refused the respondent's second application for repeat registration pursuant to s 290 of the Act on the same grounds as the first refusal decision ('the second refusal decision'). ...'

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

RELEVANT LEGISLATIVE PROVISIONS

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

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

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

'The Migration Agents Registration Authority may:

(a)

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

(b)

suspend his or her registration; or

(c)

caution him or her;

if it becomes satisfied that:

(d)

the agent's application for registration was known by the agent to be false or misleading in a material particular; or

(e)

the agent becomes bankrupt; or

(f)

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

(g)

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

(h)

the agent has not complied with the Code of Conduct prescribed under section 314.'

10. Section 290 of the Act relevantly provides :

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

(a)

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

(b)

the applicant is not a person of integrity; or

(c)

...

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

(a)

the extent of the applicant's knowledge of migration procedure

...

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

11. Section 292 of the Act provides :

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

12. Section 304A of the Act provides :

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

13. Section 306 of the Act provides :

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

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

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

15. Section 43 of the AAT Act relevantly provides :

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

(a)

affirming the decision under review;

(b)

varying the decision under review; or

(c)

setting aside the decision under review and:

(i)

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

(ii)

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

...

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

TRIBUNAL REASONING

5 As the primary judge recounted at [4]:

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

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

FIRST GROUND OF APPEAL: RELEVANT DATE FOR DETERMINATION

Reasoning of primary judge

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

'The first ground of appeal agitated in the Authority's written and oral submissions focused on the cancellation decision. It was common ground that in relation to the review of the decision to cancel the respondent's registration, the question for the Tribunal was whether that decision was the correct or preferable decision : Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J ; that is, whether it was the correct or preferable decision to conclude that the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance .

...

The primary issue raised by this ground was whether the Tribunal asked itself this question in relation to the correct point in time. The Authority submitted that the Tribunal did not consider whether, on 14 July 2003 - the date of the Authority's decision - the correct or preferable decision was to cancel the respondent's registration ; rather, the question which the Tribunal asked itself was whether, on 2 September 2005 - the date of the Tribunal's decision - the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance.'

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

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

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

...

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

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

Propositions from the authorities

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

1. The Tribunal is empowered to exercise all of the powers and discretions that are conferred by any enactment on the person who made the decision the subject of the Tribunal's review (s 43(1) of the AAT Act): Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [ 2004 ] FCA 843 ; (2004) 138 FCR 428 at [24] per Branson J.

2. The Tribunal is required to determine whether the decision under review was the correct or preferable decision having regard to the material before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 per Bowen CJ and Deane J at 419 and Smithers J at 438-439, cited by Branson J at [24] in Aged Care [2004] FCA 843; 138 FCR 428. That is, the Tribunal is not confined either to the material which was before the primary decision-maker or the events which had occurred up till the time of its decision: per Wilcox J in Commonwealth v Ford (1986) 65 ALR 323 at 437-438 citing Drake 46 FLR at 419 and Nevistic v Minister for Immigration and Ethnic Affairs [ 1981 ] FCA 41 ; (1981) 51 FLR 325 at 326-327 cited by Davies J in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 344. This general approach of the Tribunal was described by Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329 at 289 as being:

'to regard the administrative decision-making process as a continuum and to look upon the Tribunal's function as a part of that continuum so that, within the limits of the reconsideration of the decision under review, the Tribunal considers the applicant's entitlement from the date of application or other proper commencing date to the date of the Tribunal's decision.'

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

3. However, the Tribunal is obliged to address the same question as the primary decision-maker: Freeman 19 FCR at 345 per Davies J; Hospital Benefit Fund of WA Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234; Commissioner of Taxation (Cth) v McMahon (1997) 79 FCR 127 per Lockhart J at 133-134, Beaumont J at 140-141 and Emmett J at 150 cited by Branson J in Aged Care 138 FCR at [25]; followed by Weinberg J in Minister for Immigration and Multicultural Affairs v Sharma [ 1999 ] FCA 31 ; (1999) 90 FCR 513. The principle in 2 cannot be applied beyond its scope, that is, in circumstances where the question under review does not attract the application of the principle: Freeman 19 FCR at 344.

4. Where the question to be decided arises under a statute, the relevance of later evidence will depend upon the proper construction of the statute and the particular factual context: Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [ 2005 ] FCAFC 58 ; (2005) 143 FCR 314 at [51] per Hely, Gyles and Allsop JJ. In Re Egulian and the Tax Agents' Board of New South Wales (1991) 22 ATR 3542 an application for registration as a tax agent under s 251JA of the Income Tax Assessment Act 1936 (Cth) in relation to which experience in tax matters in the preceding five years was required to be considered, was held by Deputy President McMahon to relate to the five years preceding the application rather than the review, applying the reasoning in Freeman 19 FCR 342. If the primary decision had to be made by reference to a particular point of time, the Tribunal will be limited to deciding the question by reference to that point of time: Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521 per Hill J applying Hospital Benefit Fund 39 FCR 225. See also Nong v Minister for Immigration and Multicultural Affairs [ 2000 ] FCA 1575 ; (2000) 106 FCR 257 per Katz J at [31] holding that the issue whether a student was or was not in compliance with a condition of a student visa required reference to the date of the delegate's decision, not the date of the decision of the Tribunal. In the factual context in Akai 50 FCR 511 Hill J found that a construction limiting the Tribunal not to have regard to submissions made by parties to a later external review could have only been adopted where express words or necessary implication required it. In Australian Tea Tree Oil Research Institute v Industry Research and Development Board [ 2002 ] FCA 1127 ; (2002) 124 FCR 316 at [18]- [32] Stone J was unable to find support in the Industry Research and Development Act 1986 (Cth) for either of the opposing views put to her and decided the issue on the basis that there was no inconsistency between the policy of the Act and the possibility that an applicant may become registered having met the criteria for registration after the date its application was made.

5. Categorisation (by which I understand to include characterisation) of a decision (such as a cancellation or revocation decision on the one hand or an approval or entitlement decision on the other) is 'helpful only to the extent that it assists in the identification of the issues that the accrediting authority was required to address for the purpose of making its decision': per Branson J in Aged Care 138 FCR at [26].

6. It is important to examine the decision in question to ascertain any special features created by statutory provisions applicable to it, for example that it must be made within a certain time limit or can only be made following a certain procedure: cf Aged Care 138 FCR at [27]-[28] per Branson J. Where the decision under review is a decision cancelling a pension it should be considered in the context of any provisions providing that once a pension has been cancelled there is no entitlement to restoration of it without lodgement of a further claim: Freeman 19 FCR at 345.

7. If the decision could only have been made following a certain procedure, it may be that the evidence called on the review cannot be such as would undermine that procedure. This may preclude the calling of evidence of improvements implemented after the date of the decision and in response to the procedure: per Branson J in Aged Care 138 FCR at [30].

8. This does not mean that the Tribunal cannot receive evidence of facts that occurred after the date of the decision under review provided that evidence bears on the merits of the decision as at the time that it was required to be made: Aged Care 138 FCR at [31].

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

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

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

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

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

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

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

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

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

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

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

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

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

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

First , ...

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

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

So far as the second stream is concerned, the correct analysis is, I think, more complex. Section 304A provides that the Authority may set one or more conditions for the lifting of a caution it gives to a registered migration agent. Section 304A has to be construed, in the first instance, in context in its wider sense : CIC Insurance Ltd v Bankstown Football Club Ltd [ 1997 ] HCA 2 ; [ 1995 ] 187 CLR 384 at 408. The context here is Division 3 of Part 3 of the Act including, as it does, s 290. This limits, in my view, the conditions that may be set for the lifting of a caution to conditions which are consistent with the migration agent's registration. In other words, the conditions which may be set for the lifting of a caution must be predicated upon the migration agent's registration as such, including his entitlement to provide immigration assistance .

...

It follows, in my view, that the Authority, and in its shoes on review the Tribunal, cannot set conditions for the lifting of a caution which could not be imposed as conditions of an individual's registration as a migration agent. In my view, the conditions imposed in the present case fall into that category.'

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

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

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

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

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

CONCLUSION

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

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