Frugtniet v Tax Practitioners Board

REASONS FOR JUDGMENT 1 In this proceeding, the applicant, Rudy Noel Frugtniet, appeals on questions of law, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), from a decision of the Administrative Appeals Tribunal ("the Tribunal") made on 23 October 2014 to affirm two decisions of the respondent, the Tax Practitioners Board ("the Board"), made on 16 January 2013. Those decisions were to terminate his registration as a tax agent and to preclude him from applying for registration for a period of five years from the date of termination. 2 According to the reasons of the Tribunal, on 30 May 2008 the applicant applied to the then authority, the Tax Agents' Board of Victoria ("the TABV") for registration as a tax agent. Subject to the completion by the applicant of a period of acceptable work experience, that application was granted, and the applicant was registered as a tax agent with effect from 1 January 2010, for a period of three years. 3 On 28 November 2012 the applicant applied for the renewal of his registration as a tax agent. That application was made to the Board, which had by then assumed relevant responsibilities pursuant to the Tax Agent Services Act 2009 (Cth) (the "TAS Act"). That application was unsuccessful. Indeed, on 16 January 2013 the Board Conduct Committee ("the Committee"), acting under the delegated authority of the Board, resolved to terminate the applicant's registration as a tax agent with effect from 22 March 2013, and to preclude the applicant from applying for registration for a period of five years from then, upon the ground that he no longer met the requirement to be a fit and proper person. It was that resolution that formed the basis of the applicant's application for review in the Tribunal in the present case. 4 The Tribunal identified the questions which it was required to answer as follows: (a) whether the applicant ceased to meet one of the tax practitioner registration requirements in that he was not a fit and proper person to act as a registered tax agent; (b) if yes to (a), whether the Board ought to have exercised its discretion to terminate the applicant's registration; and (c) whether the Board ought to have exercised its discretion to determine that the applicant could not apply for registration for a period of five years following the termination of his registration. The Tribunal answered the first question in the negative and, it must be said, did so in terms which left no doubt about the matter. 5 The applicant's first ground of appeal is as follows: The Tribunal erred by failing to take relevant considerations into account in that the [a]pplicant requested the Tribunal to consider that the very forms which were completed by the applicant had not been authorised is [sic] writing as required under the statute. 6 This request was made to the Tribunal in a supplementary written submission made by the applicant on 11 July 2014. To that submission was annexed a copy of an email to him from the Office of the Australian Information Commissioner ("the Information Commissioner") summarising submissions of the Board dated 24 February 2014, in response to a freedom of information request which had been made by him. He had sought access to "any written authority and or approval by the [Board] that existed prior to or in 2008 in respect of application forms and schedules thereto attaching for the use by applicants for registration as a tax agent". In its submissions to the Information Commissioner, the Board confirmed that its searches had not located any documents which fell within the scope of the applicant's request. 7 That response gave birth to this aspect of the applicant's supplementary submission of 11 July 2014, in which he referred to it and continued: The non-existence of there being an approved form in writing which was a strict requirement under the Income Tax Assessment Act 1936 (ITAA 1936 Cth), including the fact that all documents hitherto had to be transferred over as specified pursuant to s 24 of the Tax Agent Services (Transitional Provisions and Consequential Amendments) Act 2009 is a matter for the Tribunal. While it is not obvious just what submission the applicant was making here, the fact is that the Tribunal did not deal with any "approved form" point which the applicant might have had. That circumstance led to the applicant's first ground of appeal, as set out above. In order to understand it, it will be necessary to set out some provisions of the relevant legislation. 8 Registration as a tax agent prior to 1 March 2010 was regulated by the Income Tax Assessment Act 1936 (Cth) (the "ITA Act"). In 2008 when the applicant originally applied for registration, s 251J(3) of the ITA Act required that an application of that kind "shall be in the approved form and shall be accompanied by such information as is required by the form to be provided". An "approved form" was "a form approved in writing by the Board concerned for the purposes of the provision in which the expression appears". Relevantly to Victoria, the "Board concerned" was the TABV. 9 The applicant's point was that the Board, which must be assumed to be the current repository of the records of the TABV, had responded to his freedom of information request with what was, in effect, a nil return. It followed, he contended, that, at the time when he applied for registration, there was no approved form for such an application within the meaning of s 251J(3) of the ITA Act. 10 From there, one goes to the applicant's written outline of argument in this proceeding. He submitted as follows: In considering the validity of the content listed on an application form to be registered as a tax agent the Tribunal was required to firstly determine that it was made on an approved form pursuant to the [ITA Act] s 251J(3). … It is contended that merits review is predicated on having all the relevant and probative material before it can [be] assessed against the applicable law. The Tribunal failed to consider relevant and probative material and did not reference the matter in its decision at all, hence, failing consequently to accord procedural fairness thus permitting such speculation as to whether it accepted the respondent's objection to the material, or had formed a different view. 11 The relevance of the Tribunal's consideration of "the validity of the content listed on an application form", in the circumstances of the applicant's own case, was that a significant dimension of the Tribunal's conclusion that he was not a fit and proper person was his omission to disclose a number of matters of concern when he completed the form by which he made his application in 2008. According to the Tribunal's reasons, the applicant "ticked the No box" in answer to a number of questions on that form, namely: (a) Have you had membership or registration with a professional body or registration board, (including a Tax Agents' Board), refused, cancelled or suspended in the last 10 years?; (b) Have you been disbarred, expelled or struck off from the practice …. of your profession, or have you been disciplined by a professional body or registration board (including a Tax Agents' Board) in the last 10 years?; (c) Is there any other matter which may affect your eligibility for registration?; and (d) Is there any other matter of which you are aware, which may have an effect on whether the Board would regard you as a fit and proper person or of good fame integrity and character? 12 At the conclusion of its reasons, the Tribunal found as follows: On taking into account all of the documentary evidence before me and the oral evidence provided by [the applicant] I have formed the view that he failed, except for one question, to truthfully answer the questions to which I have referred at paragraph [26] on his application for registration as a tax agent in May 2008. The enquiry raised by those questions clearly went to his fitness and propriety to act as a tax agent. If, as he contended, he had put his past misdeeds behind him, I would have expected him to have disclosed his past conduct, including charges of which he was acquitted, which would then indicate sincerity in having changed from the person he was. That he chose not to do so, must be cause for concern that he has not changed his behaviour. In fact, the judgments of Pagone and Gillard JJ are highly critical of [the applicant's] failure to disclose his past misconduct. As Gillard J said, if his past conduct shows him to be a man who is dishonest and cannot be trusted, he must show that his past is behind him and that he can be trusted to pursue an honest career. I find that [the applicant] has failed to do so in answering the questions in his application in the negative. The judgment of Pagone J referred to was Frugtniet v Board of Examiners [2002] VSC 140, and the judgment of Gillard J referred to was Frugtniet v Board of Examiners [2005] VSC 332. 13 Returning to the applicant's first ground of appeal, as expressed, that ground has the appearance of invoking the principle referred to by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-41. But it is clear that the circumstances relied on by the applicant do not legitimately invoke that principle. On the other hand, the applicant's outline of argument appears to contend that the Tribunal's failure to deal with the point amounted to a denial of procedural fairness. I would not accept any such contention. The applicant's supplementary submission was received by the Tribunal, and it should not be assumed that it was not considered. There are two very obvious reasons why the Tribunal might, quite legitimately, have chosen not to refer to the point in its written reasons. First, the applicant himself, in his supplementary submission of 11 July 2014, said that this was "a matter for the Tribunal", thereby implying that he was drawing the apparent absence of any approval for the form which he in fact used in 2008 to the Tribunal's attention for such relevance as, in the Tribunal's assessment, it may have had. The applicant did not submit that this circumstance precluded the Tribunal from taking into account his failure to disclose, on that form, various matters which went to the question whether he was a fit and proper person. Secondly, such a submission, had it been made in terms, would have been conspicuously without merit. The applicant's application in 2008 was in fact made on a Commonwealth government form, headed: "Application for registration as a tax agent - individual". The applicant willingly used that form, and provided all the information, answered all the questions and marked all the boxes required by or set out on it. Whether approved or not, this form, when completed, was in fact a written application by the applicant for registration as a tax agent. The accuracy of the responses which the applicant provided on it, and the relevance of them to the question that was before the Tribunal, were centrally in play in the proceeding in which the applicant fully participated. There is no possible way that these facts might be characterised as having given rise to a denial of procedural fairness for the applicant. 14 For those reasons, I would reject the applicant's first ground. 15 The applicant's second ground of appeal is as follows: The Tribunal erred as the determination was not authorised by the enactment in determining that the applicant had been found by the Board of Examiners/Supreme Court to not be to [sic] a fit and proper person. 16 To understand this ground a little better, it is useful to refer to the applicant's written outline of argument: The Tribunal proceeded to determine that the applicant had been found by the Board of Examiners/Supreme Court on two occasions to not be a fit and proper person which is fundamentally erroneous and follows a reasoning that is incompatible as the applicant failing to discharge the burden in his own applications to both the Board of Examiner/Supreme Court de novo does not amount to a finding that the applicant was not a fit and proper person. Because of the nature of this ground, I should set out the relevant provisions of the legislation under which the Tribunal was operating in the present case. 17 In relation to individuals, s 20-5(1) of the TAS Act relevantly provides as follows: An individual, aged 18 years or more, is eligible for registration as a *registered tax agent or BAS agent if the Board is satisfied that: (a) the individual is a fit and proper person; … Section 20-15 sets forth some matters that must be taken into account when deciding whether a person is a "fit and proper person", as follows: In deciding whether it is satisfied that an individual is a fit and proper person, the Board must have regard to: (a) whether the individual is of good fame, integrity and character; and (b) without limiting paragraph (a): (i) whether an event described in section 20-45 has occurred during the previous 5 years; and (ii) whether the individual had the status of an undischarged bankrupt at any time during the previous 5 years; and (iii) whether the individual served a term of imprisonment, in whole or in part, at any time during the previous 5 years. 18 The Board has the power under s 40-5(1) of the TAS Act to terminate the registration of an individual's status as a tax agent if he or she ceases to be a "fit and proper person", as follows: If you are a *registered tax agent or BAS agent and an individual, the Board may terminate your registration if: (a) an event affecting your continued registration, as described in section 20-45, occurs; or (b) you cease to meet one of the *tax practitioner registration requirements; or (c) you breach a condition of your registration. … 19 The expression, a "tax practitioner registration requirement", is defined in the Dictionary found in s 90-1(1) of the TAS Act as meaning: ... the matters about which the Board must, under Subdivision 20-A, be satisfied before the Board is obliged to grant an application for registration under this Act. Section 20-5 is a provision found within Subdivision 20-A. 20 The position was, therefore, that, in relation to its decision to affirm the decision of the Board to terminate the applicant's registration as a tax agent, the Tribunal was required to consider whether he had ceased to be a fit and proper person. 21 In his submissions in this case, the applicant drew attention to the following passage in the Tribunal's reasons: What the [Board] discovered in 2011 was that the Board of Examiners (the body which determines whether legal practitioners should be admitted to practise in the State of Victoria) had, on two occasions, refused [the applicant] admission to practise as a barrister and solicitor. On both occasions, the Board of Examiners found that [the applicant] was not a fit and proper person for admission to practise as a legal practitioner. The applicant's point is that, on each of these occasions, the Supreme Court, exercising a de novo appellate jurisdiction from the Board of Examiners, held only that the applicant had not satisfied it that he was a fit and proper person for admission to practise as a legal practitioner. That was something less, it was submitted, than an affirmative conclusion to the contrary as required by s 40-5(1)(b) of the TAS Act. Further, and significantly in the applicant's submission, that was not what the Tribunal said had happened in the passage set out above. 22 Although there may be circumstances in which a distinction between a court or tribunal not being satisfied of the existence of a fact and it being satisfied of the non-existence of the fact is important, in the present case it was, in my view, a distinction without a difference. The issue was not whether it had been found that the applicant was other than a fit and proper person for admission to practise law at some time in the past. Rather, the issue was the significance of the applicant's failure to disclose, on his 2008 application for registration as a tax agent, the circumstances which attended the Board of Examiners', and the Supreme Court's, decisions rejecting the applications that were before them. 23 The significance of those decisions can hardly be gainsaid. The Tribunal undertook a careful consideration of the judgments of Pagone and Gillard JJ, and I do not propose to repeat that exercise. It is sufficient to draw attention to the following passage in the latter ([2005] VSC 332 at [68]): [The applicant's] pattern of conduct raises a substantial question mark concerning his honesty and his character and reputation. He is a person who does not appear to have learned from his experiences during 1989 to 2000. He carries a very heavy burden of persuading this Court that he is a person of good character and reputation and a fit and proper person to practise law. He has not discharged that burden. The way he has presented himself to this Court shows a man who is loose with the truth and is prepared to distort the truth if he thinks it will help him. Often he was asked questions which he failed to answer and went off on some tangent seeking to minimise his criminality in the past. The evidence does not persuade me that the appellant has learned from his past experience, or that he is a person motivated to tell the truth. 24 In the Tribunal's decision, there was no error of law of the kind contended for in the applicant's second ground. 25 The applicant's third ground of appeal is as follows: The Tribunal erred by taking irrelevant considerations into account that the applicant had failed to make disclosure of his failed applications to the Board of Examiners/Supreme Court on a form for registration which was not authorised in writing as required under the statute nor was it a requirement to disclose same. From the submissions made by the applicant, it is apparent that this ground involves more than a reiteration of the substance of the first ground, although it does involve that. It relates also to the answers which the applicant gave to the questions referred to in para 11 above, and to the Tribunal's treatment of those answers. 26 In relation to question (a), the applicant submitted that neither the Board of Examiners nor the Supreme Court was a registration or membership body. It was "a long bow" for the Tribunal to have held that his application to either required disclosure under Commonwealth legislation. In relation to question (b), and by way of contrast, the Tribunal accepted the applicant's negative answer. In relation to questions (c) and (d) - asking about "any other matter" - they were best understood as inquiring of things that related to a person's fitness and propriety to give tax advice, and were "not intended under the legislative provisions to be anything and everything which is unrelated to the provisioning of tax advice". 27 A similar submission was put to the Tribunal. It dealt with it in the following terms: With respect to [the applicant], the question needs to be considered in its context, not simply the literal meaning of two words. As the High Court of Australia (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) said in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, at 396-397: The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. In R v Brown, a recent House of Lords decision, Lord Hoffmann said: The fallacy in the Crown's argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence … This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole. 28 The Tribunal then set out the statutory provisions under which the Board of Examiners operated, referred to its website, and continued: While I accept that it is accurate to describe the Board of Examiners as a statutory body, that simply describes its genesis. However, the question is directed to an organisation's function and, in this case, to a body which deals with the accreditation or right to practise in certain professions. Effectively, the Board of Examiners determines the right of suitably qualified professionals to practise as barristers and solicitors of the Supreme Court of Victoria. While it might be true to say that it simply provides a certificate relied upon by the Supreme Court to admit a person to the profession, its function is no different to that of a registration board. In practice, its function is to determine which persons are eligible to be admitted and those which are not. It follows, in my opinion, that [the applicant's] answer to the question dealing with membership or registration by a professional body or registration board was plainly incorrect. Having been directed to the TAS Act and particularly those requirements setting out the eligibility for registration as a tax agent, [the applicant] must have been aware that whether he was a fit and proper person to be registered as a tax agent was a relevant consideration. Furthermore, given the two applications he made for admission to practise as a legal practitioner in Victoria and that the function of the Board of Examiners was to determine whether he was a fit and proper person to be admitted, undoubtedly would have alerted him to the need to make full disclosure of all matters which would go to his fame, integrity and character. He deliberately chose to answer No to that question. Regarding the question which asks him to answer whether he had been disbarred, expelled or struck off from the practise of his profession or was disciplined by a professional body or registration board, I believe his answer to that question was correct. However, I do not agree with his answer given to the question whether there was any other matter which may affect his eligibility for registration. Plainly, s. 20-5(1) of the TAS Act states that the very first eligibility criterion is that the individual is a fit and proper person. Having been through two Supreme Court appeals where extensive reasons for judgement were given by the judges concerned including the fact that in determining whether a person was fit and proper to be admitted to practise as a legal practitioner, he must have been aware that full disclosure needed to be made of all matters which may impact on that finding. It is not restricted simply to convictions for criminal offences. In his case, as Gillard J said in the passage I have quoted at [43], it was particularly important for him to make full disclosure of his conduct in the past because that established his reputation and character particularly in relation to honesty and fair dealing. Given his past conduct, he needed to show that this was behind him and that he could now be trusted to pursue an honest career. It follows that the answer which [the applicant] gave to this question was false. Furthermore, I find that he must have been aware that it was false. The application for registration as a tax agent had a final catch all question requiring an applicant disclose any other matter which may have an effect on whether the Board would regard him or her as a fit and proper person or of good fame, integrity and character. Plainly, this question required him to disclose all of the events to which I have referred above. Once again, his No answer was incorrect. (Original emphasis) 29 None of this was irrelevant to the task upon which the Tribunal was engaged, or otherwise involved an error of law. I would reject the applicant's third ground. 30 The applicant's fourth and fifth grounds of appeal, which were dealt with together in his submissions, are as follows: The Tribunal erred in breach of natural justice principles in determining there was no breach as an investigation was not conducted by the [Board], that natural justice was not denied, and that the Respondent merely conducted enquiries and therefore could not result in the finding that after a period of six months under the statute it be determined that no further action be taken. The Tribunal erred in determining that there was no breach of natural justice and that the [Board] resolved to conduct an investigation in November 2012, contrary to the [Board] reasons for decision, and submissions made by it that it did not conduct an investigation therefore complying with legislative requirements of the statute. 31 The applicant's written submissions in support of these grounds were as follows: The [a]pplicant had sought to rely on the facts that an investigation had been conducted, which the primary decision maker determined was not the case, although the Tribunal says was merely enquiries before an investigation took place and it was within the framework and time provided for under [the TAS Act]. Contrary to either of these stated positions and contained in the explanatory memorandum, the facts demonstrate that as referred to in the applicant's supplementary submission … that an investigation did take place whether authorized or not, which was further confirmed by the respondents lawyer in the stay application written submissions dated 6 March 2013 which stated that only upon investigating the three complaints made on the 27 September 2011 that matters became known to the respondent. It is to be noted that that [sic] the Index of documents produced by the applicant to the Tribunal pursuant to FOI …, clearly evidence an investigation by stealth. The previous regime contained no statutory requirements for the conduct of investigations, whereas the new framework and responsibilities for investigations related to, and enforcement of the law explicit. It provided for notification requirements, for application to extend the time period in which to complete, made such decisions reviewable in itself before the [Tribunal] [the TAS Act] 70-10(i) and if no decision was made within six months it was deemed that no further action in relation to the matter could be taken under [the TAS Act] s 60-125(7). The Tribunal finding is unsupportable as the overwhelming evidence supports an investigation that would have circumscribed the Tribunal under [s 25(5) of the AAT Act]. 32 As will appear from what follows, whatever else may be said about these grounds, they do not point to any error of law made by the Tribunal. 33 According to the Tribunal's reasons, the applicant originally claimed that an investigation had not been conducted by the Board, the result being that no finding could be made against him under the TAS Act. Then, in a supplementary submission, according to those reasons, the applicant contended that the Board had not complied with the TAS Act when conducting its investigation into his conduct. The Tribunal's reasons continued: While it is rather difficult to follow [the applicant's] contentions about this point, as best I can make out, he appears to be claiming that the Board did not conduct an investigation and that the Tribunal was being asked to simply accept that he had breached the Code. With respect to [the applicant], this assertion is misconceived. 34 In this court, the applicant's point was the obverse of what it originally had been: he contended that the Board did conduct an investigation, but the timing of things was such that it was, and presumably the Tribunal was likewise, disempowered from making any adverse findings against him, by reason of certain provisions of the TAS Act. It is to those provisions that I must now turn. 35 Section 60-95 of the TAS Act provides, in part: (1) The Board may investigate: (a) your application for registration; or (b) any conduct that may breach this Act; or (c) other matters prescribed by the regulations. (2) The Board must notify you in writing if the Board decides to investigate you. The notice must be given within 2 weeks after the decision is made. (3) An investigation is taken to commence on the date of the notice. … 36 Section 60-125 of the TAS Act provides, in part: Investigation relating to whether conduct breaches this Act (2) If the Board investigates conduct under section 60-95 and finds that the conduct breaches this Act, the Board must either: (a) make a decision that no further action will be taken; or (b) do one or more of the following: (i) impose one or more sanctions under Subdivision 30-B; (ii) terminate an entity's registration under Subdivision 40-A; (iii) apply to the *Federal Court for an order for payment of a pecuniary penalty under Subdivision 50-C; (iv) apply to the Federal Court for an injunction under section 70-5. Note: The Board may terminate an entity's registration under Subdivision 40-A without investigating conduct under section 60-95. Period within which a decision must be made (3) The Board must make a decision under subsection (2): (a) within 6 months after the day on which the investigation is taken to have commenced under subsection 60-95(3); or (b) if a longer period is determined by the Board under subsection (4) - within that period. (4) If the Board is satisfied that, for reasons beyond the control of the Board, a decision under subsection (2) cannot be made within the period mentioned in paragraph (3)(a), the Board may determine a longer period within which the Board must make a decision under subsection (2). (5) If the Board determines a longer period, the Board must do so not later than 2 weeks before the expiry of the period mentioned in paragraph (3)(a). (6) The reasons mentioned in subsection (4) include, but are not limited to, the following: (a) undue delay that has been caused by an entity other than the Board and that has affected the conduct of the investigation to which the decision relates; (b) the complexity of the investigation. Decision not made (7) If: (a) a decision is not made within the period mentioned in paragraph (3)(a) and the Board does not determine a longer period; or (b) the Board determines a longer period but does not make a decision within that period; the Board is taken to have decided to take no further action in relation to the matter that was the subject of investigation. … 37 Factually, the Tribunal found as follows: The Board carried out a preliminary enquiry into the affairs of [the applicant] following the publicity given to a decision made by the Victorian Civil and Administrative Tribunal (VCAT) on 8 April 2011. The 8 April 2011 decision held that the Law Institute of Victoria, as a delegate of the Legal Services Board, was justified in in [sic] finding that [the applicant] should be a disqualified person for the purposes of Division 3 of Part 2.2 of the Legal Profession Act 2004. The [Board] became aware that the Board of Examiners, which deals with the applications of qualified persons to be admitted to practise law in Victoria, had found that [the applicant] was not a fit and proper person for admission to legal practise [sic] on two occasions. The enquiry was conducted by Mr Frank Pietka, a delegate of the Board. … Following Mr Pietka's enquiry, which included discussions with [the applicant], the Board decided that it would investigate whether he was a fit and proper person to be registered as a tax agent under the TAS Act. [The applicant] was notified of that decision in a letter dated 20 November 2012 (stated to be 2005, but that is clearly a typographical error). Relevantly, the letter stated: This letter is formal notification to you that a Delegate of the Board, acting under the delegated authority of the Board, has made an allegation in the attached Submission that you are not a fit and proper person to be registered as a tax agent under the [TAS Act] …. This may have consequences for your continued registration as a tax agent. The Delegate has determined that this matter, including the relevant information you have provided in relation to this matter to date, should be put to a Committee of the Board, acting under the delegated authority of the Board, to determine whether you are a fit and proper person within the meaning of [the TAS Act]. On 15 February 2013 the Board notified [the applicant] that his registration as a tax agent had been terminated. Relevantly, the letter stated: 1. We refer to our letter dated 20 November 2012 in which a Delegate of the [Board] formally notified you of the decision to refer concerns regarding your fitness and propriety and continued registration as a tax agent to the [Committee]. 2. … 3. The Committee resolved to terminate your registration under paragraph 40-5(1)(b) of the [TAS Act] on the basis that you have ceased to meet the tax practitioner registration requirement that you are a fit and proper person. 4. This letter is formal notification of the Board's decision to terminate your registration. The termination of your registration will take effect from 20 February 2013. 5. The Committee also decided in accordance with subsection 40-25(1) of the [TAS Act] that you may not apply for registration under the [TAS Act] for a period of five years (5) years [sic] from the date that the termination of your registration takes effect. 38 I can now return to what was the applicant's point about this procedure in the present case. He submitted that it should be found, as a fact, that the Board's investigation commenced well before 20 November 2012. If so, he was not told about it as required by s 60-95(2) of the TAS Act, and the investigation was not completed within six months as required by s 60-125(3) of that Act. No longer period having been determined under s 60-125(4), there was a deemed decision to take no further action pursuant to s 60-195(7). 39 To the extent that this series of contentions was put clearly to the Tribunal, it was dealt with by the Tribunal in the following passage in its reasons: In my opinion, the above sequence of events indicates that the Board properly complied with the TAS Act in the conduct of its preliminary enquiry and subsequent investigation by a Committee of the Board into whether [the applicant] was a fit and proper person to be a registered tax agent. He was accorded procedural fairness and given ample time to respond to the allegations made. The decision was made within six months after the date on which the investigation was taken to have commenced in accordance with s. 60-125(3). It is not the case, as was submitted by [the applicant], that a decision was not made within the six-month period and therefore s. 60-125(7) applied. Unless it be held that the Tribunal misunderstood what constituted an "investigation" under the TAS Act, there can be no error of law identified in this reasoning. Indeed, absent such a misunderstanding, the above passage should be viewed as concerned only with facts. 40 This is not the occasion to consider what the position would be in a case in which the Board gives no notice under s 60-95(2) of the TAS Act. In the present case, the Board did give such a notice. Then, by the operation of subs (3), the investigation was taken to have commenced. The submissions of the applicant that the investigation commenced at some anterior point in time are inconsistent with the TAS Act and cannot be accepted. The Tribunal did not, in this or any other respect, misunderstand what constituted an investigation under that Act. 41 For those reasons, I would reject the applicant's fourth and fifth grounds. 42 The applicant's sixth ground of appeal is as follows: The Tribunal erred in law it its finding that the applicant misled the Tribunal, there being no probative evidence or material tendered by the parties to make such a finding that no reasonable decision maker would have made. 43 In his written outline of submissions, the applicant supported this ground in the following terms: On the basis that the Tribunal was adopting by reason of the fact that the applicant had not disclosed his conviction in the UK to the Board of Examiners, but subsequently disclosed all such matters to the Supreme Court only after being put on notice was rejected by the applicant. The [a]pplicant's evidence was that it was continuum as the Board's lawyers were in discussions seeking to obtain an admission of conviction which had been disclosed to them as a spent conviction. It was only after admitting to same that the applicant filed his subsequent affidavit which did not provide for interpreting Pagone J statement any other way. Any concession from the applicant about the disclosure of charges in relation to state legislation is not a concession for the purposes of any Commonwealth legislation so that a spent conviction is prohibited and charges are of no consequence under the previous or present Commonwealth legislation. The Tribunal appears to have adopted as result the matters listed here a reasoning that the respondent was correct which the applicant rejects. 44 In order to understand this ground, it is necessary to set out a passage from the Tribunal's reasons which referred to something said by Pagone J in his Honour's judgment referred to earlier. The Tribunal said: His Honour went on to say that the Board of Examiners might have found in [the applicant's] favour if he had candidly disclosed the matters relating to the perjury charges, the ANZ charges and the UK convictions. Pagone J then said, at [12]: However, these were matters that only came to light upon investigations undertaken by the Board itself after its adverse decision, after the applicant's institution of this appeal and after the applicant had filed his first affidavit in this court in support of the appeal. In those circumstances I have no present confidence that the applicant would have disclosed these matters if they had not come to the Board's knowledge and had the Board not tendered the evidence in the proceeding before me. 45 Later in its reasons, the Tribunal said that it had directed the applicant to produce the affidavit which he filed in the proceeding before Pagone J which he claimed supported his view that he had disclosed his UK convictions to the Supreme Court. The Tribunal continued: The reason why those documents were sought to be produced to the Tribunal was because, when [the applicant] was confronted with the statement made by Pagone J …, Mr G D Wendler of counsel, who appeared on behalf [the applicant], and [the applicant] in the course of his re-examination, submitted that where his Honour said, after the applicant had filed his first affidavit, his Honour was stating that those matters had been brought to light by [the applicant] in an affidavit. In fact my notes indicate that when Mr Wendler asked [the applicant] whether the affidavit contained all of the non-disclosed material, he answered: it did. He also suggested that he could not reconcile that with the statement made by Pagone J. On 11 July 2014 [the applicant] lodged with the Tribunal an affidavit sworn on 7 March 2002 and lodged with the Supreme Court of Victoria in his action against the Board of Examiners. In that affidavit, [the applicant] explained in some detail why he did not include details of his UK convictions in his application to be admitted as a legal practitioner in Victoria. In response to that document, Mr D Brown, a solicitor employed by the Australian Government Solicitor who acted on behalf of the Board, obtained from the Supreme Court of Victoria three affidavits filed in [the applicant's] appeal proceeding in 2002. They included his first affidavit sworn 8 November 2001 as well as an affidavit sworn by Mr Page, a legal executive in the office of the Director of Public Prosecutions of the State of Victoria and Mr Blythman, a solicitor who acted on behalf of the Board of Examiners. In his submissions regarding those additional documents, Mr Brown pointed out that the additional affidavit lodged by [the applicant] was in fact lodged after the affidavits of Mr Page and Mr Blythman. It was those affidavits, Mr Brown submitted, which disclosed to the Supreme Court details of [the applicant's] criminal charges and convictions in the UK. There can be no question that Mr Brown is correct. In fact [the applicant's] affidavit of 7 March 2002 expressly refers to Mr Blythman's affidavit and he confirmed that he did not include the details provided by Mr Blythman upon making his application for admission to practise. According to Mr Brown, the fact that [the applicant] did not make it clear that his affidavit of 7 March 2002 was filed subsequent to the affidavits made by Mr Page and Mr Blythman, which in fact revealed his history of criminal charges and convictions in the UK to the Supreme Court of Victoria, revealed the following: • [The applicant] had again been exposed as a person who was loose with the truth (a statement made by Gillard J in a second Supreme Court of Victoria appeal in August 2005); • [The applicant] had further entrenched a pattern of conduct which raised a substantial question mark concerning his honesty, character and reputation, a pattern which has been remarkably consistent over the last decade and was again evident in the course of this proceeding; and • [The applicant's] pattern of conduct and his apparent preparedness to mislead the Tribunal, provided a strong endorsement of the Board's decision to terminate his registration as a tax agent and to preclude him from applying for registration for a period of five years. (Original emphasis) 46 It is, it seems, this final point made by the Tribunal which forms the basis of the applicant's sixth ground of appeal. In dealing with it, I put to one side the circumstances that, in terms, the comment made by the Tribunal was no more than that the applicant had an "apparent preparedness" to mislead it and that it was not so much a finding by the Tribunal as a setting out of the submissions then made on behalf of the respondent. I am content to determine this ground of appeal on the footing that the Tribunal here found that the applicant had misled it. 47 When the course of events before the Tribunal is disclosed as I have above, it will be seen that the proposition that there was no probative evidence or material sufficient to justify the Tribunal's finding simply cannot be sustained. Indeed, the very comment of which the applicant complains was in the nature of a conclusion manifestly open by reference to the way that the applicant had conducted his case and the avenues by which relevant material, which ought to have been disclosed by the applicant, ultimately came to the attention of the Tribunal. 48 For those reasons, I would reject the applicant's sixth ground. 49 The applicant's seventh ground of appeal is as follows: The Tribunal erred in law in its interpretation of s. 251BC(1) by expanding the law to convictions for other offences and by implication matters and circumstances which gives rise to criminal charges being laid, irrespective of the outcome. 50 In his written outline of submissions, the applicant supported this ground in the following terms: The Tribunals [sic] interpretation of s. 251BC [of the ITA Act] is a novel interpretation not referenced in any case law that s. 251BC(1)(a)-(f) would give rise to the implicit consideration of any criminal charges being laid, irrespective of the outcome in determining whether a person is of good fame, integrity and character. No where in the legislation is there by implication any statement that charges should be disclosed under Commonwealth legislation, instead by implication a conviction for serious taxations [sic] offences or for that matter by implication a conviction that is not spent may be relevant. The legislation of that time and more immediately under [the TAS Act] including the explanatory memorandum does not assist the broader and expansive interpretation by the Tribunal in thus concluding to disclose all events which the Tribunal so referred therein. 51 This ground related to the following passage in the reasons of the Tribunal: I should also refer to s. 251BC of the [ITA Act] which was in force [at the] time [the applicant] made his application. That section dealt with a fit and proper person to prepare income tax returns. Relevantly, it provided: (1) Without limiting the generality of an expression used in this Part, but subject to this section, a person is not a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters, as at a particular time, if: … (d) the person is not [of] good fame, integrity and character; (e) the person has been convicted of a serious taxation offence during the previous 5 years; or (f) the person is under sentence of imprisonment for a serious taxation offence. The significance of what is set out in s. 251BC(1) is that convictions or imprisonment for serious taxation offences are to be considered in addition to whether or not the person is of good fame, integrity and character. In other words, there may be reasons other than convictions for those offences which may preclude an applicant from being registered as a tax agent. Necessarily, the implication is that the matters and circumstances which might give rise to criminal charges being laid, irrespective of the outcome, may play a part in determining whether a person is of good fame, integrity and character. 52 The Tribunal's reading of s 251BC(1) of the ITA Act was not "novel", and did not give rise to any expansion of the law. To the contrary, that reading was conventional and required no reference to "case law" to justify it. Like the Tribunal, I would not have read para (e) of the subsection as implying, for example, that circumstances which led to a person being charged with the commission of a serious taxation offence, but which did not lead to a conviction, could never be relevant under para (d). Rather, I would have understood that the justification for the inclusion of para (e) was to catch the situation of a person, otherwise of good fame, integrity and character, who had, perhaps because of an isolated transgression, been convicted for the commission of such an offence. 53 For those reasons, I would reject the applicant's seventh ground. 54 The applicant's eighth ground of appeal is as follows: The Tribunal erred in law failing to take account of relevant considerations and determinations made by the Migration Agents Registration Authority (MARA) in respect of any adverse findings made as result of applications in 2002 and 2005 before the Supreme Court. 55 The applicant supported this ground with the following submission in his written outline: It is simply submitted that the plain terms of the correspondence in relation to what was available to be found by the Migration Agents Registration Authority (MARA) subsequently as a result of either judgment of the Supreme Court but in particular that of Gillard J although redacted to exclude personal and irrelevant details, i.e. spent conviction established to MARA's satisfaction that it was not satisfied that the applicant was not a person of integrity or not a fit and proper person to give immigration assistance. For the Tribunal to speculate and conclude otherwise that any such redaction of the correspondence raises as a matter concern that a reasonable person would hold regarding the applicant's character is fallacious and utterly misconceived. The documents formed part of the attachments sent by way submissions to the … Board prior to decision specifically requesting applicant to excise any unwanted and or irrelevant references to matters of spent convictions amongst other matters … and simply failed to take relevant considerations into account in the determination of this matter. 56 This ground relates to the following passage in the Tribunal's reasons: [The applicant] also relied on the fact that the Migration Agents Registration Authority (MARA), after examining the judgements of Pagone and Gillard JJ, concluded that it was not satisfied that he was not a fit and proper person. I had in evidence two letters from MARA dated 19 July 2002 (the first letter) and 19 December 2005 (the second letter) to [the applicant]. Both letters deal with the concerns MARA had following the judgements delivered by Pagone J in 2002 and Gillard J in 2005. The first letter stated that it was open to MARA to be satisfied that [the applicant] might not be a person of integrity or otherwise was not a fit and proper person to give migration assistance. That was because in completing this application for registration as a migration agent, he provided information which was false or misleading in a material particular. The second letter appears to set out similar grounds. The first problem I have with both letters is that they are so heavily redacted, presumably by [the applicant], that they raise serious questions regarding their utility. The redactions were not made simply to avoid the disclosure of personal information of a private nature but rather, they obliterate large passages of text which are clearly relevant to enable a proper understanding of what was said. The second problem is that MARA in both letters offered [the applicant] the opportunity to respond. In the two letters by which MARA notified [the applicant] of the outcome of its investigation, which are dated 3 February 2003 and 26 July 2006 respectively, it is noted that [the applicant] responded to the first letter on 14 August 2002, 24 October 2002 and 5 December 2002 and to the second letter on 31 January 2006. None of those letters in response were in evidence. The second problem with [the applicant] relying on his migration agent registration applications is that the questions, as best I can determine from the redacted documents, are significantly different to the questions he was required to answer when seeking admission to practise as a lawyer. Generally, they asked whether he had ever been the subject of an investigation or enquiry by a professional association, corporate regulatory agency or consumer organisation or had he ever been the subject of an investigation by a Department of the Commonwealth or State Public service. In the second letter, the author said that Gillard J was faced with determining the effect that should be given to an applicant who had been charged with criminal offences and acquitted, but the remainder of the passages dealing with that point have been redacted. Nevertheless, the author of that second letter said that it was open to MARA on the evidence before it to be satisfied that [the applicant] had lodged applications for repeat registration which he knew to be false or misleading in a material particular. MARA also stated that [the applicant] may have demonstrated that he may not be a person of integrity or may otherwise not be a fit and proper person to give immigration assistance. It then requested that [the applicant] provide a response to what was set out in that letter. As I have already said, [the applicant's] response was not put into evidence. I therefore am unable to determine the reasons for the decision made by MARA which was conveyed to [the applicant] in the 26 July 2006 letter where it said that it was not satisfied that he was not a person of integrity or not a fit and proper person to give immigration assistance. In my respectful opinion, because of the way [the applicant] has attempted to use the MARA application findings in this proceeding, by what appears to be a redaction of matters which he did not wish to disclose to the Tribunal thereby leaving those matters which, undoubtedly, were favourable to this application, is another example of the concerns a reasonable person would hold regarding [the applicant's] character and integrity. 57 The legal principle upon which the applicant relies in this department of his case is that referred to by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-41: The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. … The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision …. What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. … Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision …. The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned …. (Original emphasis) 58 The subject of the redacted portions of the documents referred to in this ground of appeal was not a consideration to which the Tribunal was bound to give attention pursuant to the provisions of the TAS Act. To the contrary, they were no more than evidence upon which the applicant himself sought to rely as one aspect of his case. And, necessarily, the evidence, whatever it may have been, was, by the choice of the applicant himself, shielded from the eyes of the Tribunal by the redactions which he had made. Whatever else may be said of the Tribunal's treatment of this evidence, it did not come close to constituting an error of law of the kind referred to by the applicant in this ground of appeal. 59 For those reasons, I would reject the applicant's eighth ground. 60 The applicant's ninth ground of appeal is as follows: The Tribunal erred in law by determining that the [a]pplicant had sought to defraud the Commonwealth by a scheme that he had implemented, there being no evidence or material to support such a finding. 61 The applicant supported this ground by the following passage in his written outline: The Tribunal erred in embarking upon some quasi criminal reasoning that by reason of alleging in email correspondence by the [a]pplicant of Ms Galvez-Londono as being complicit in seeking to defraud the Commonwealth Government, in the opinion of the Tribunal that may be taken as an admission of conduct by the applicant. In finding that on the balance of probabilities, that this was scheme [sic] devised by the applicant to deprive the Commonwealth of funds to which he was not entitled is completely misconceived. In making such a finding the Tribunal attributes an allegation made by the applicant as an admission of conduct and is not supported by any legal principle, including a finding amounting to defraud, which should be supported by reasoning of facts that the applicant knowingly and or intentionally set out to defraud including a standard of proof that at best must be beyond a reasonable doubt. The findings are very serious and would involve fact finding which is well beyond the simple civil standard. See Briginshaw [v Briginshaw] 1938 60 CLR 336[;] Kekatos v The Council of the Law Society of NSW [1999] NSWCA 288. 62 If there is an identifiable passage in the Tribunal's reasons to which this ground refers, it must be the following: Finally, in his email of 19 September 2011 [the applicant] suggested that Ms Galvez-Londono might be complicit in seeking to defraud the Commonwealth Government. In my opinion, that may be taken as an admission of his conduct while seeking to apportion blame to Ms Galvez-Londono. I find, on the balance of probabilities, that this was a scheme devised by [the applicant] and implemented by him in an attempt to deprive the Commonwealth of funds to which he was not entitled. It is, without question, disgraceful conduct by a registered tax agent. This was the last of 33 paragraphs in the Tribunal's reasons where the circumstances of the applicant's dealings with Ms Galvez-Londono were explained in detail and dealt with in findings. Whatever else may be said about those findings, or about that paragraph, it could never be suggested that the Tribunal lacked the evidence and material required for them. I would go further and say that, by reference to what the Tribunal set out, its findings, now the subject of the applicant's complaint, were so conspicuously justified as to make distinctions of the kind with which Briginshaw v Briginshaw (1938) 60 CLR 336 was concerned quite beside the point. 63 For those reasons, I would reject the applicant's ninth ground. 64 The applicant's tenth ground of appeal is as follows: The Tribunal erred and denied natural justice to the applicant in determining contrary to the application of the applicant that the Member not hear the matter on the basis of apprehended bias as an objective bystander would have apprehended bias by Senior Member Fice who had made adverse findings in other proceedings at the AAT against the applicant in 2004. 65 The applicant's submissions in support of this ground in his written outline were the following: The Senior Member of the Tribunal in hearing this matter had made adverse findings that the applicant had made false statements in support of application for social security payments in a decision handed down on 24 September 2004 in Re Frugtniet and Secretary, Department of Family and Community Services (2004) 84 ALD 774, that a reasonable person objectively would apprehend bias if the Member were to be hearing another matter. The application for apprehended bias was brought and objection taken to the hearing by the Senior Member who would not vacate hearing the matter with the respondent merely acceding to the Tribunal's decision which whilst not referenced at all in the decision is recorded in the transcript. The decision of the Tribunal on simply what must be considered as a matter of legal principles as espoused on the lower threshold of apprehended bias, this was clearly a decision that is impeachable. 66 At the outset of what became a two-day hearing before the Tribunal, counsel for the applicant objected to the Tribunal as constituted hearing the matter because of the findings and determination which the member had made, adversely to the applicant, in 2004. Counsel stressed particularly the relevance of certain findings made in 2004 to a case, which counsel then apprehended would be advanced against the applicant, based in part on the way he had answered questions on government forms. The Tribunal rejected that objection, and proceeded to hear and determine the matter before it on the merits. 67 In the 2004 proceeding, the applicant sought a review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 7 October 2003, which had affirmed a decision originally made by a delegate of the Secretary to the Department of Family and Community Services to recover a debt of $19,665.85 arising from the overpayment of the "newstart" allowance to the applicant in respect of the period 21 August 1998-6 July 2000. In short, and relevantly to the applicant's present point, the Tribunal then found that the applicant had, on several occasions, falsely represented the existence or extent of his other employment and/or income to the Commonwealth agency concerned with the payment of that allowance. 68 In the course of its reasons in 2004, the Tribunal found as follows: On the information checklist, he ticked the "No" box when asked whether he had been studying in the last 6 months. Although [the applicant] said that it was correct to say that he was not employed at the time he completed that application, he admitted that he was studying law as an external student at Deakin University at that time. Therefore, necessarily, his answer to the question regarding his studies in the past 6 months must have been false. Furthermore, in a form which [the applicant] completed on 10 March 1998, setting out information to support his claim for a newstart allowance, he ticked the "No" box in response to a question which asked whether he was self-employed or the owner or part-time owner of a business or farm. This answer was also false. And: On each of those forms, when asked the question whether he did any work during the relevant period, [the applicant] answered "No". This was despite the fact that sub-questions asked him to state whether he was in permanent full-time employment or self-employment. In other words, [the applicant] continued to deny that he was either doing any work or that he was in any form of employment, including self-employment. These answers are false. When put to [the applicant] in evidence that these answers were false, he continued to deny that to be the case. Instead, he attempted to excuse his answers by stating that that was what he was told to put on the form by the Centrelink officer after discussing both his self-employment and employment with Network Recruitment in a full and frank manner with that officer. And: I do not accept [the applicant's] evidence regarding these matters. The questions are extremely simple and require no explanation. They do not relate in any way to whether income was earned during the period, but only refer to doing work. [The applicant] could not honestly answer that question in the way that he did. And: In this case, [the applicant] was clearly aware, at the time that he made the statements, that he was employed on a full-time basis by Network Recruitment and the evidence was that his migration practice had also become active again, which explained the deductions claimed in his 2000 income tax return. Therefore, the answer "No" to a question asking whether he did any work in the relevant period must have been made in the full knowledge of the falsity of that statement. 69 The issue which arises on these facts is whether a fair-minded lay observer might reasonably have apprehended that the member constituting the Tribunal in the present case might not bring an impartial mind to the resolution of the question which he was required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6]. At a high level, that question was whether the applicant was a fit and proper person, and, at the more specific level, whether he was of "good fame, integrity and character". To answer that question, at either of its levels, required the Tribunal to bring a certain system of values to the deliberative table, values which would have been difficult, if not impossible, to articulate more particularly than the legislature did, but which would be second nature to anyone familiar with the norms and traditions of the professions. Of its nature, the question would always be more readily answered by reference to the facts of a particular case, rather than in the abstract. 70 One needs only to suppose that the events which led to the Tribunal's findings in 2004 were of recent date, and to ask whether those events and findings would have been relevant to the exercise on which the Tribunal embarked in the proceeding under appeal, to perceive the existence of a clear connection between the two cases. Had the 2004 findings been made, say, only six months before the applicant's application to the Tribunal in the present case, the fair-minded lay observer would, in my view, readily have apprehended that they might (at least) have coloured the Tribunal's thinking about the applicant to such an extent that the member was not able to bring an impartial mind to the question whether the applicant was a fit and proper person. 71 The more difficult question is whether a difference is made by the circumstance that the 2004 findings were made ten years before the present matter came before the Tribunal. There is a temptation to think that, realistically, the tide of time would, by now, have washed from the member's conscious thoughts any adverse disposition towards the applicant. As I understand the position, however, the fair-minded lay observer is not to be assumed able to speculate on such matters. He or she is a notional person who takes an objective approach. He or she could only go by the record as it stands. It is by reference to that record that justice must be seen to be done. I would, therefore, answer the question stated at the start of this paragraph in the negative. 72 The next issue is whether the applicant waived his right to object to the constitution of the Tribunal when he continued to participate in the hearing on the merits after the objection raised by his counsel at the outset was rejected. I would hold not. In Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, Gummow A-CJ, Hayne, Crennan and Bell JJ said (at 449 [76]): It is well established [footnote omitted] that a party to civil proceedings may waive an objection to a judge who would otherwise be disqualified on the ground of actual bias or reasonable apprehension of bias. ... If a party to civil proceedings, or the legal representative of that party, knows of the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection, it will likely be held [footnote omitted] that the party has waived the objection. The present was not a case of the kind referred to by their Honours. It was a case in which the applicant made the appropriate objection front and centre. It was never going to be a long case, and it would scarcely have served the interests of justice for the applicant, rather than participating before the Tribunal, to have sought prohibition from this court under s 39B of the Judiciary Act 1903 (Cth) (an appeal under s 44 of the AAT Act not being available at that stage: Director-General of Social Services v Chaney (1980) 31 ALR 571, 593). I would hold that, having made it clear that he objected to the Tribunal as constituted dealing with his application, the applicant did not, by the course which he thereafter followed, waive his right to rely on that objection in an appeal of the kind now before the court. 73 For those reasons, I would uphold the applicant's tenth ground. For the Tribunal as constituted to have heard and determined the applicant's case amounted to a denial of natural justice and, therefore, to an error of law. I shall order that the decision of the Tribunal be set aside, and that the applicant's application be re-heard, and determined, by a differently constituted Tribunal. 74 I shall give the applicant (who represented himself) leave to apply, within 14 days, for an order requiring the Board to pay any out-of-pocket expenses he has incurred in connection with this proceeding. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.