Lilienthal v Migration Agents Registration Authority

REASONS FOR JUDGMENT 1 There is before me an application which invokes the jurisdiction conferred on this Court by subs 8(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the JRA"). 2 Yesterday, I gave the application a final hearing on an urgent basis in circumstances which I am about to relate. 3 Part 3, Div 3 of the Migration Act 1958 (Cth) ("the Act") creates a scheme for the registration of migration agents. The Minister for Immigration & Multicultural Affairs ("the Minister"), the second respondent to the present proceeding, has appointed the Migration Institute of Australia Limited (ACN 003 409 390) ("the Institute") under subs 315(1) of the Act, an appointment which has had the effect that the Institute constitutes the Migration Agents Registration Authority ("the Authority") for the purposes of Pt 3 of the Act: see the definition of the Authority in s 275 of the Act. It is the Authority which administers the migration agents registration scheme created by Pt 3, Div 3 of the Act and which is the first respondent to the present proceeding. 4 It is convenient to mention immediately that s 290A, which appears in Pt 3, Div 3 of the Act, prohibits the Authority from re-registering an applicant for registration if that applicant has not met the requirements prescribed by the regulations for the continuing professional development ("the CPD") of registered agents. Regulation 6 of the Migration Agents Regulations 1998 (Cth) ("the Regulations") provides that for s 290A of the Act, the requirements for the CPD of registered agents are set out in Sch 1 to the Regulations. Clause 1 of Sch 1 to the Regulations requires a migration agent, in the year ending on the anniversary of the migration agent's previous registration, to complete certain "approved activities". Paragraph 3(b) of Sch 1 to the Regulations authorises the Minister to specify approved activities, including "course providers". Subclause 3A(1) of Sch 1 to the Regulations provides that in deciding whether or not to specify an activity under cl 3 of Sch 1 to the Regulations, the Minister may take into account the character and reputation, or a doubt about the character and reputation, of a person connected with the activity. 5 Mr Gary Ian Lilienthal, the applicant in the present proceeding, is currently registered as a migration agent in accordance with Pt 3 of the Act. Subsection 299(1) of the Act provides generally that the registration of a registered agent lasts for twelve months after the registration. Mr Lilienthal's current registration took effect on Saturday, 8 January 2000 and will last until this Sunday, 7 January 2001. Further, as of the start of November 2000, Mr Lilienthal was the provider of three courses which were approved activities for the purposes of Sch 1 to the Regulations. 6 On 2 November 2000, Mr Lilienthal was asked whether he wished the three courses of which he was then the provider to remain approved activities for the purpose of Sch 1 to the Regulations. Shortly thereafter, he replied that he did. Further, by application received by the Authority on 5 December 2000, Mr Lilienthal applied for re-registration as a migration agent. 7 So far as concerns the three courses of which Mr Lilienthal was then the provider, by letter dated 20 December 2000, the Minister wrote to Mr Lilienthal, referring in effect to subcl 3A(1) of Sch 1 to the Regulations and continuing, "I am considering whether to approve … the activities that you provide. I note that you are a practising migration agent whose registration has been cancelled and that [that] cancellation is subject of a stay order from the Administrative Appeals Tribunal. I am writing to ask whether you have any matters that you wish me to consider in deciding whether or not the activities you provide should be approved for CPD purposes." The Minister sought any such submissions within seven days. (I note that since Mr Lilienthal's three courses were already approved activities, the Minister must be understood as having informed Mr Lilienthal that he (the Minister) was considering whether to withdraw his former specification of Mr Lilienthal's three courses as approved activities. Such withdrawal was a step impliedly authorised by cl 4 of Sch 1 to the Regulations.) 8 On 26 December 2000, Mr Lilienthal faxed the Minister, referring both to his (Mr Lilienthal's) earlier statement that he wished the three courses of which he was then the provider to remain approved activities for the purpose of Sch 1 to the Regulations and to the Minister's letter of 20 December 2000. Mr Lilienthal then continued (emphasis in original), "However, since then, I have determined that, due to numerous commitments of higher priority which I have made for the next year, I will be unable to allocate time to run these seminars. [I have decided] not to proceed with seeking approval … of the above seminars. As I am not now seeking approval … the Minister … is now not required to make a decision in respect to the matter." (I note that, in the circumstances, Mr Lilienthal must be understood as having invited the Minister to withdraw his (the Minister's) former specification of Mr Lilienthal's three courses as approved activities.) 9 So far as concerns Mr Lilienthal's application for re-registration, by letter dated 22 December 2000, but not received by Mr Lilienthal until 28 December 2000, the Authority informed him that it had considered his application for re-registration at its meeting on 19 December 2000. It then set out subss 290(1) and (2) of the Act, which provide: "(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) the applicant is related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship. (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; and (b) whether the applicant has a qualification prescribed by the regulations or a knowledge of migration procedure that the Authority considers to be sound; and (c) any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not: (i) a fit and proper person to give immigration assistance; or (ii) a person of integrity; (except a conviction that is spent under Part VIIC of the Crimes Act 1914); and (d) any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and (e) any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and (f) any disciplinary action that a professional association is taking, or has taken, against the applicant that the Authority considers relevant to the application; and (g) any bankruptcy (present or past) of the applicant; and (h) any other matter relevant to the applicant's fitness to give immigration assistance." It then advised Mr Lilienthal that it was considering refusing his application for re-registration and continued, "The reasons for this consideration are that on 2 May 2000 and 24 August 2000 the Authority made the decisions to cancel your registration. The materials from which the Authority based its decisions to cancel your registration were reviewed. Based on the evidence it is open for the Authority to be satisfied that you are not a fit and proper person to give immigration assistance and that you are not a person of integrity." The Authority then invited Mr Lilienthal, in accordance with subs 309(1) of the Act, to make a further submission in support of his application, the deadline for the making of which was said to be 8.30am on 16 January 2001. 10 It will be noticed that the Minister's letter to Mr Lilienthal of 20 December 2000 and the Authority's letter to Mr Lilienthal of 22 December 2000 had both referred to the earlier cancellation of Mr Lilienthal's registration as a migration agent, the Authority's letter referring to cancellation decisions having been made by it on 2 May 2000 and 24 August 2000. It will further be noticed that the Minister's letter to Mr Lilienthal had referred to a stay order from the Administrative Appeals Tribunal ("the AAT"). 11 It is the case that the Authority had decided, on 2 May 2000, to cancel Mr Lilienthal's current registration under s 303 of the Act, which section authorises the Authority to cancel the registration of a registered agent if, among other things, the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance. As provided for by s 306 of the Act, Mr Lilienthal had then applied to the AAT, on 12 May 2000, for review of that decision and had also applied under subs 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") for a stay order in respect of that decision. That application for a stay order had been granted by Deputy President Blow on 15 May 2000, it being ordered "THAT the operation and implementation of the decision under review be stayed until the determination of the application for review or further order". 12 It is also the case that the Authority had again decided, on 24 August 2000, to cancel Mr Lilienthal's current registration under s 303 of the Act, relying, however, on different matters from those on which it had relied when making its cancellation decision of 2 May 2000. Mr Lilienthal had then applied to the AAT for review of that second decision as well and had also applied for, and obtained from Deputy President McMahon on or about 11 September 2000, a stay order in respect of that second cancellation decision. 13 No date has yet been fixed for the hearing of either of Mr Lilienthal's two applications to the AAT, but I should add that there has been no suggestion made by either side of the record before me that there has occurred any undue delay in the progress of those applications. 14 There is before me a copy of the written orders and reasons for decision of Deputy President Blow. Although I do not have a written version of the orders and reasons for decision of Deputy President McMahon, it is not in dispute before me that they did not differ significantly for present purposes from those of Deputy President Blow. 15 In his reasons for decision (at [8]), Deputy President Blow referred to earlier AAT authority in which it had been held that, in deciding whether to grant a stay of a decision under review, it was appropriate to take into account whether the decision-maker concerned had denied natural justice in making that decision. Deputy President Blow had already pointed out in his reasons for decision (at [4] and [6]) that, in making its cancellation decision, the Authority had made unfavourable findings as to the credibility of Mr Lilienthal, although it had not conducted any oral hearing before doing so. Deputy President Blow held (at [11]; emphasis added) that, "By making unfavourable findings as to the applicant's credibility in relation to both the complaints against him without first giving him the benefit of a full oral hearing, the respondent was not conducting itself in accordance with the ordinary rules of natural justice or procedural fairness." A question arose, however, whether "the ordinary rules of natural justice or procedural fairness" were applicable to the Authority's decision-making under s 303 of the Act. Deputy President Blow thought it arguable (see at [10] and [12]) that they were not. However, he said (at [13]), "I do not think I need to decide whether the Act impliedly modifies the prima facie duty to abide by the rules of natural justice or procedural fairness. What is significant is that the respondent made the decision under review upon the basis of findings as to the credibility of individuals without giving the applicant the benefit of an oral hearing. The correctness of the respondent's findings, and the appropriateness of its decision, must therefore be regarded as doubtful. Those matters should be taken into account in the applicant's favour, just as a denial of natural justice by a decision-maker bound by the rules of natural justice should be taken into account. When a migration agent has been disbelieved without the benefit of an oral hearing, I do not think it would ordinarily be appropriate to refuse a stay order unless there is very strong evidence of very serious misconduct on the part of the agent. This is not such a case." 16 Having now related those circumstances relevant to the present proceeding, I mention that it was because Mr Lilienthal's current registration as a migration agent expires on Sunday, 7 January 2001, just two days hence, that, at his request, I yesterday heard the present proceeding urgently on a final basis. My doing so was not opposed by the respondents. The urgency of the matter has also caused me to prepare these reasons for judgment more quickly than I would have wished to do. However, it is apparent that the urgency of the matter requires a speedy judgment and reasons for judgment, as well as a speedy hearing, so that the relative brevity of these reasons for judgment must be regarded as the price to be paid for their being available speedily. 17 In his application for review, Mr Lilienthal complained in substance of the threatened decision by the Authority not to re-register him as a migration agent and of the threatened decision by the Minister to withdraw his (the Minister's) former specification of Mr Lilienthal's three courses as approved activities. From written submissions which Mr Lilienthal provided to me at the hearing and on which he did not greatly elaborate orally, it is apparent that the essence of his complaint in the case of both threatened decisions is that it would not be open in law to either of the two decision-makers to act, in making the relevant decision, on that decision-maker's belief or suspicion that Mr Lilienthal had engaged in some wrongdoing in the transactions consideration of which had earlier led the Authority to cancel his current registration on two occasions. Yet, submitted Mr Lilienthal, it is apparent that each of the decision-makers threatens to act, in making the relevant decision, on that very belief or suspicion. The reason why it would not be open in law to either of the two decision-makers to act on that belief or suspicion is the existence of the stay decisions of Deputy Presidents Blow and McMahon and, in particular, the existence of the expression of view by Deputy President Blow set out above (which view was presumably expressed by Deputy President McMahon as well) that the correctness of the Authority's findings when making its cancellation decision must be regarded as doubtful. 18 I am unable to attribute the significance which Mr Lilienthal seeks to have me attribute to the AAT's two stay decisions and, in particular, to the expression of view by Deputy President Blow (and presumably by Deputy President McMahon as well) that the correctness of the Authority's findings when making its cancellation decision must be regarded as doubtful. 19 Mr Lilienthal's argument is, in substance, one of issue estoppel arising by reason of the AAT's two stay decisions. However, that argument must fail for a number of reasons. I will focus first on those reasons applicable to the Authority's threatened decision. 20 First, even findings of fact contained in a final decision of the AAT cannot create issue estoppels as between the parties to the proceeding before it: see, for example, Midland Metals Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87 (Hill J), especially at 96-98 and 99, a case referred to with approval in this Court on a number of occasions subsequently. Secondly, the decisions of the AAT in the present matter were in any event interlocutory, not final. Thirdly, the AAT did not, in its two stay decisions, make findings of fact that Mr Lilienthal had not engaged in any wrongdoing in the transactions consideration of which had led to the Authority's two cancellation decisions. All that the AAT said was that it regarded as "doubtful", because it considered itself obliged to do so, the Authority's findings as to the credibility of various individuals, including Mr Lilienthal, because those findings had been made without giving Mr Lilienthal the benefit of an oral hearing. 21 Although he did not deal before me with the second and third of the three reasons which I have just set out, Mr Lilienthal did deal with the first of them. He did so by submitting that I should reject the authority of the Midland Metals case. According to him, it followed from the decision of the High Court of Australia in Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 that, contrary to the view of Hill J in Midland Metals, decisions of the AAT could create issue estoppels. 22 However, in Midland Metals (at 98), Hill J specifically denied that Daera Guba required him to reach such a conclusion and I do not consider that Hill J was plainly wrong in his approach to Daera Guba. I will therefore follow Hill J in Midland Metals and necessarily reject Mr Lilienthal's submission about the effect of Daera Guba. 23 Mr Lilienthal's issue estoppel argument, so far as it concerns the Minister's, as opposed to the Authority's, threatened decision, must fail, not only for the three reasons which I have set out above, but also for one further reason, namely, that the Minister was not a party to the proceedings before the AAT which resulted in the making of the two stay decisions. 24 There is, however, another reason why any complaint by Mr Lilienthal concerning the Minister's threatened decision must fail. I have already drawn attention to the fact that, when first confronted with the Minister's threatened decision to withdraw his (the Minister's) former specification of Mr Lilienthal's three courses as approved activities, Mr Lilienthal, on 26 December 2000, invited the Minister to take that very step, on the basis that pressure of time meant that he (Mr Lilienthal) would be unable in the future to provide those courses. In those circumstances, I am unable to see how, on 29 December 2000, the date on which Mr Lilienthal began the present proceeding, he could be said to be a person who would be aggrieved if the Minister were to make his threatened decision: see par 3(4)(b) and subs 6(1) of the JRA. 25 In addition to the issue estoppel argument which Mr Lilienthal placed at the forefront of his submissions, he made one further argument before me, which argument had not been foreshadowed in his written submissions. That argument was applicable only to the Authority's threatened decision and depended, not on the existence of the AAT's two stay decisions, but merely on the existence of Mr Lilienthal's two applications to the AAT. As I understood that argument, it was, in substance, that, by reason of s 43 of the AAT Act, the mere existence of Mr Lilienthal's two applications to the AAT had deprived the Authority of any power to decide to refuse to re-register him at the end of his current registration as a migration agent. 26 While I accept that the mere existence of Mr Lilienthal's two applications to the AAT has deprived the Authority of decision-making power in certain respects: see, for instance, s 26 of the AAT Act; I am unable to accept that their existence has had any effect on the power of the Authority to make a decision as to Mr Lilienthal's re-registration at the end of his current registration, whether by reason of s 43 of the AAT Act or otherwise. I add that if their existence had such an effect, there would, of course, be no reason to limit that effect, as Mr Lilienthal's argument necessarily seeks to do, to a decision to refuse to re-register him at the end of his current registration as a migration agent; that effect would extend as well to a decision to re-register him at the end of his current registration as a migration agent. Thus, acceptance of the argument which I am currently discussing would be of no assistance to Mr Lilienthal in any event. 27 For the reasons given above, Mr Lilienthal's application for review must be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.