Migration Agents Registration Authority v Shi

In the Tribunal 3 The Tribunal granted stays in respect of each of the Authority's decisions the subject of challenge, although the first refusal decision was only stayed by consent after the matter had been remitted from this Court to the Tribunal in Shi v The Migration Institute of Australia Ltd (2003) 134 FCR 326; and the cancellation decision was stayed subject to conditions that the respondent be supervised by another migration agent and that he undertake not to engage in any business relating to protection visas. 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'). 5 The Tribunal made the following findings of fact in the 6 April 2005 findings: (1) The Tribunal found that the respondent did not 'encourage' (in the sense of 'incite') any visa applicant to lodge a protection visa application. It was, therefore, unnecessary to decide whether the applications made were 'grossly unfounded' so as to breach cl 2.17 of the Code as it stood prior to 1 July 1999 (at [46]). However, it found that the respondent's handling of these applications was relevant to other alleged breaches of the Code and to a determination pursuant to s 303(1)(f). (2) The respondent was unaware of the requirement in cl 2.17 of the Code, introduced in 1999, that he obtain written acknowledgement of advice from his client where his advice had been that the visa application was grossly unfounded but the client, nevertheless, wished to lodge the application (at [67]). The Tribunal characterised this as a 'very serious breach' of cl 2.3 of the Code (concerning a sound working knowledge of the Act and Regulations) and a consequential breach of cl 2.1 of the Code (concerning a requirement to act in accordance with the law and competently and diligently) (at [68]). (3) The respondent did not have a sound working knowledge of the Act and Regulations and was not diligent if he was unaware of provisions of the Code so long after they came into force (until they were brought to his attention in the course of investigations as to whether his registration should be cancelled in 2002) (at [69]). (4) The respondent conceded that a number of the applications he had lodged had no hope of success (at [66], [84] and [106]). The Tribunal found that he had made one application that was grossly unfounded (at [107]). (5) The Tribunal found that the respondent had on many occasions breached cl 6.1 of the Code, which requires file notes to be taken of all substantive and material communications between client and agent (at [75], [79], [80], [92], [99], [108], [113], [116], [119] and [215]). The Tribunal considered the massive failure in this regard to be serious (at [130]). The respondent ultimately conceded that he had a systemic problem with keeping adequate file notes and that he had undoubtedly breached cl 6.1 (at [162]). (6) The Tribunal noted instances where the respondent altered his evidence as he became aware of material which contradicted what he had previously said (at [77], [87], [129] and [146]). (7) The Tribunal also criticised aspects of the respondent's evidence as being speculative and unconvincing explanations proffered when he simply did not know what had occurred in relation to particular clients (at [81], [82], [89], [108], [109] and [141]). It also found many instances where the respondent's evidence was designed to excuse his poor handling of an application or file-keeping (at [85], [88], [173] and [222]). These and other defects led to aspects of his evidence not being accepted by the Tribunal on the basis of his credit (at [90], [93], [97], [103], [120] and [167]). (8) Ultimately, the Tribunal 'did not find Mr Shi a reliable witness. His evidence changed on numerous occasions so as to reduce his responsibility for various breaches of the Code or other failures within his practice' (at [232]). (9) The Tribunal found that the respondent had failed to sufficiently address matters required by visa applications, which constituted a breach of cl 2.1 and 2.19 (at [78], [87], [96] and [113]). The Tribunal also noted that the respondent's applications under s 417 were defective in that they did not address the relevant criteria, which the Tribunal found as relevant to his fitness to be a migration agent (at [110]). (10) The Tribunal was critical of the respondent's approach that it was his job to state the facts and for the Department to link the facts to the law. It considered that it was part of his job to know the relevant criteria (at [88]). (11) The Tribunal found that the respondent had repeatedly breached cl 2.8 of the Code by failing to keep his clients informed of the progress of their matters and outcomes in writing (at [89], [92], [101], [137] and [215]). (12) The Tribunal found that the respondent had systemically failed to comply with Part 7 of the Code, which required documentation of amounts of money paid (at [111] and [168]). Moreover, it found that he had chosen not to comply with trust arrangements to save his own compliance costs (at [179]). (13) The Tribunal set out evidence about the respondent's inadequate supervision of his staff in relation to protection visa applications. He allowed cutting and pasting of personal claims (at [115], [118], [140], [142] and [193]). This constituted breaches of cl 8.1 and 8.2 of the Code (at [194]). (14) The respondent conceded and the Tribunal found that the respondent had repeatedly breached cl 5.2 of the Code, which required agents to obtain written acceptance of the terms of service as soon as possible after receiving instructions (at [159]). The Tribunal further found that his failure to comply with this requirement 'reinforce[ed] [its] view that he [had] paid scant attention to the Code at all. He ran his business in his own way. If a practice satisfied the Code, that was coincidental rather than intentional' (at [160]). (15) The respondent conceded that his lodging review applications for three clients in the Tribunal (which had no jurisdiction in relation to the relevant decision) constituted breaches of cl 2.1(b), 2.3, 2.5(a)(iii) and cl 4.1 of the Code (at [197]). (16) The Tribunal noted an instance where the respondent did not appreciate the appropriate procedure. What he had done was inappropriate. He had no idea what needed to be done (at [229]). Because what the respondent had done did not amount to the making of an 'application', it did not breach the Code but it was still relevant to his fitness. The Tribunal found that this case revealed that the respondent 'did not possess a sound knowledge of the Act and Regulations as they related to the circumstances of his client' (at [230]). 6 In the 2 September 2005 reasons the Tribunal concluded that it was not satisfied that the respondent was not a person of integrity or was not otherwise a fit and proper person to give immigration assistance (at [24]). The Tribunal made orders setting aside the four decisions under review (at [28] - [31]). The cancellation decision was substituted with a decision that the respondent be issued with a caution pursuant to s 303(1)(c), to be lifted after three years provided that the respondent be supervised and not provide immigration assistance with respect to protection visas (see s 304A). The first refusal decision was substituted with a decision that the respondent's repeat registration be approved. The suspension decision was substituted with a decision that the respondent's registration not be suspended. The second refusal decision was substituted with a decision to renew the respondent's repeat registration. 7 The Tribunal's reasons for these decisions may be summarised as follows: (1) The Tribunal noted the extent and nature of the respondent's breaches of the Code (at [10]); in particular: (i) that 51 of the alleged 98 breaches had been upheld by the Tribunal; and (ii) that 47 of the 51 sustained breaches related to protection visa cases during the period from September 1998 to October 2001 and the other four related to subclass 457 visa applications filed between October 1997 and January 2000. (2) The Tribunal accepted the respondent's argument that there was no proven disadvantage to any of the respondent's clients because of his conduct (at [11]). (3) The breaches found by the Tribunal, considered as a whole, indicate that the respondent did not appreciate his obligation to know what the Code required and to comply with its terms as they existed from time to time (at [12]), and that if his practice satisfied the requirements of the Code, that was coincidental rather than intentional (at [13]). (4) The Tribunal noted the respondent's contention that 94 per cent of the breaches found related to protection visas (an area in which he had ceased to practise) and occurred over four years ago (at [14]). (5) The Tribunal noted the respondent's argument that his 'current practice' was most relevant when considering issues of public protection and maintenance of proper standards. The Tribunal characterised this factor as a relevant consideration (at [15] - [16]). (6) The respondent also sought to rely upon his 'current success rate', a factor which the Tribunal accepted to be relevant (at [17]). (7) The Tribunal found that, in relation to his making s 417 and review applications in the Tribunal, the respondent's actions reflected a lack of understanding of the relevant law and, more importantly, a lack of judgment on his part. 'He seemed to just keep doing something to seek review of a decision, whether or not there was any real chance of success' (at [19]). (8) The Tribunal gave some weight to its adverse findings on the respondent's credit (at [20]). (9) As mentioned above, having considered all the evidence, the Tribunal was not satisfied that the respondent was not a person of integrity or otherwise not a fit and proper person to give immigration assistance within the meaning of s 303(1)(f) (at [24]). (10) The Tribunal took into account that the respondent had had a supervising migration agent for over two years who was a knowledgeable and experienced migration agent and who held the respondent in high regard. It also gave weight to the fact that there had been no breaches since the cancellation decision was made and the respondent's rate of success had been very high in recent years (at [24]). (11) The Tribunal concluded that cancellation was not appropriate in relation to the respondent's breaches of the Code (s 303(1)(h)). It considered that the appropriate decision was to issue a caution subject to conditions (at [25] - [26]).

Relevant Legislation 8 The scheme for the registration of migration agents is set out in Part 3 of 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 Actrelevantly 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.'

The Submissions on the First Ground of Appeal 16 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 Authority's Submissions 17 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. 18 The Authority submitted that there is a clear line of authority that in cancellation cases, such as the present, a review Tribunal is required to have regard to the circumstances at the time of the decision and not those that followed it: Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; Hospital Benefit Fund of WA v Minister for Health, Housing and Community Services(1992) 39 FCR 225; Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257; Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513; and Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd (2004) 138 FCR 428. 19 This is not to suggest, the Authority submitted, that the Tribunal was limited to the material that was before the Authority when it made its decision. It could have regard to other material but the question to be addressed by the Tribunal was the same question in fact addressed by the Authority - was the respondent not a person of integrity or otherwise not a fit and proper person to give immigration assistance at that time. Any new material needed to be relevant to whether the decision made by the Authority was the correct or preferable decision. 20 The Authority submitted that a conclusion that the Tribunal did not ask itself the correct question is clear from the fact that the Tribunal had regard to, and took into account, matters that did not pertain to the relevant question. This was a course encouraged by the respondent and exhibited by his reliance upon his 'current practice' and his 'current success rate'. 21 In support of its submission that the Tribunal considered whether the respondent was not a person of integrity or was otherwise not a fit and proper person at the time of its decision rather than at the time of the Authority's decision, the Authority submitted that this is the only available inference in light of the following passages from the Tribunal's 2 September 2005 reasons: (a) '... 94% of the breaches found related to a class of visas which Mr Shi no longer handles and which took place four years ago' (at [14]). (b) '[Counsel for the respondent] emphasised that Mr Shi's current practice was most relevant ...' (at [15]). (c) '... he is now complying ...' (at [15]). (d) 'That Mr Shi is complying with requirements of the Code is … a relevant consideration' (at [16]). (e) '... success rate ... in the years 2003 and 2004' (at [17]). (f) 'I am not satisfied that Mr Shi is not a person of integrity or otherwise not a fit and proper person ...' (at [24]). (g) 'I take into account that he has had a supervising migration agent for over two years ...' (at [24]). (h) '... no evidence of breaches since the first decision was made in 2003' ( at [24]). 22 Moreover, it does seem to be common ground that the Tribunal did in fact answer the question as at the time of its decision. So much is implicit in the respondent's primary submission that: 'A proper interpretation of Part 3 of the Migration Act puts the "point in time" for a decision under s 303(1)(f) as the date of the Tribunal's decision'. 23 The Authority submitted that the decisions of the Tribunal in relation to the other matters is equally affected by this error. In addition, had the Tribunal addressed the correct question in relation to the cancellation and affirmed the decision, re-registration would not be permissible under s 292 of the Act. The question of suspension would be moot.

The Respondent's Submissions 24 The respondent submitted that the 'clear line of authority' referred to by the Authority, beginning with the decision of Davies J in Freeman, in support of the submission that the correct point in time is the time of the decision under review, is not directly relevant to the present question and can be distinguished because those authorities relate to different legislative provisions. 25 The respondent analysed the reasoning of the Court in Freeman. That case, it was said, is commonly cited as authority for the proposition that the relevant point in time at which the Tribunal is to determine a person's entitlement will differ, depending upon whether the decision under review was a decision refusing to grant an entitlement or whether it was one cancelling an existing entitlement. Where the decision is to refuse an entitlement, the point in time is the date of the Tribunal's decision, and where the decision is to cancel an entitlement, the Tribunal is limited to considering the state of affairs as it existed on the date of the decision under review. 26 The respondent submitted that critical to the Court's reasoning in Freeman was that in that case the Tribunal had affirmed the decision under review to cancel the applicant's pension. This meant that 'no further matter [remained] for the Tribunal's consideration' (at 345) and any entitlement of the applicant for a further pension would only 'revive' when a fresh application for a pension had been made (at 345, 346). 27 The respondent submitted that Freeman should not be taken as authority for any general principle that administrative decisions may be categorized either as 'cancellation' decisions or 'refusal' decisions, to which vastly different regimes of review are applicable. If it does, then it was respectfully submitted that it was wrong and should not be followed. It was submitted that any attempt to apply such a universal categorisation to 'cancellations' and 'refusals' merely distracts from the primary question, which is to identify the issues required under the particular legislation. 28 The question here, according to the respondent, should therefore focus on whether s 303(1)(f)itself'fixes a point in time'. 29 The respondent submitted that there is nothing in s 303(1)(f) of the Act to suggest that the point in time for the determination of the fitness and integrity issue is to be limited to the date of the Authority's decision, and that the Tribunal is not entitled to take account of developments which have occurred up until the date of the Tribunal's decision. The respondent said: 'Indeed, a consideration of the provision suggests that the point in time should be the situation as it has developed by the time of the Tribunal's decision.' 30 Such an interpretation was, it was submitted, no more than an application ofthe 'general principle' referred to in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, at 45 per Mason J (Gibbs CJ and Dawson J agreeing), that: '… an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made … [which] is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.' 31 As was said by Mason J in Peko-Wallsend (at 45): 'It would be a strange result indeed to hold that the … [decision-maker] is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of … [the case], and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading.' 32 It was further submitted that an interpretation of s 303(1)(f) which allows for the Tribunal to consider information up until the time of its decision is also consistent with the objects and purpose of the scheme for registration of migration agents. The Minister's Second Reading Speech described the scheme as 'a registration scheme for migration agents designed to improve standards of professional conduct and quality of service', reflecting: '… the Government's concern over the level and nature of complaints made against incompetent or unscrupulous agents, complaints which would be familiar to many members of this chamber. It also recognises the fact that many of those who are likely to seek the assistance of agents are among the most vulnerable in our society, sometimes having a poor grasp of English, fear of authority or meagre financial resources.' (G. Hand, Second Reading, Migration Amendment Bill (No. 3) 1992, House of Representatives Hansard, 27 May 1992, p. 2937.) 33 The object of the disciplinary provisions in Part 3, it was submitted, is to protect the public and to maintain proper standards in the migration profession rather than to take action by way of punishment. It would be inimical to this if the Tribunal was prevented from considering relevant information going to the issue of fitness to practice because the information had arisen after the decision under review. There was nothing, the respondent submitted, to suggest that the scheme would be promoted by restricting the Tribunal's consideration of an agent's integrity and fitness to practise to the earlier date of the decision under review, and to ignore the agent's current integrity and fitness to practise. 34 The respondent pointed out that the present case was, of course, factually different from Freeman, in that here the Tribunal set aside the Authority's decision to cancel the respondent's registration and substituted it with a decision to caution the respondent subject to conditions, whereas in Freeman the Tribunal had affirmed the decision to cancel the applicant's pension, so that 'no further matter [remained] for the Tribunal's consideration'. In Freeman, therefore, any entitlement of the applicant for a further pension would 'revive' only when a fresh application for a pension had been made. Here the decision had been set aside ab initio, so that the parties were placed in the position that they would have occupied had the decision never been made, so that the respondent had the benefit of the extant decision granting him registration: See Secretary, Department of Social Security v O'Connell (1992) 38 FCR 540, 549 - 550. The Tribunal therefore remained a part of the 'continuum' of the administrative decision-making process, and there was no impediment to it determining what were the appropriate orders to be made, as at the date of the Tribunal's decision. 35 The respondent submitted that the only specific complaint made by the Authority as to 'irrelevant' evidence taken into account by the Tribunal, related to the respondent's 'current practice' and his 'current success rate'. When considered in the context of all the evidence before the Tribunal, both of these pieces of evidence were relevant either because they related to events that occurred before the cancellation decision, or they were after-acquired evidence. The respondent submitted that, on any view of s 303(1)(f), the Tribunal was therefore entitled to take account of the evidence referred to as the respondent's 'current practice' and his 'current success rate' in relation to the cancellation decision. 36 In addition, the respondent submitted that whether or not the Tribunal was entitled to take the after-acquired evidence into account in relation to the cancellation decision, it was undoubtedly required to take it into account in relation to the suspension decision and the two refusal decisions. On the Authority's case and the authority of Freeman, the point in time for those decisions would have been the date of the Tribunal's decision. Given that the Tribunal gave a joint decision on all four decisions under review, it was not possible for the Authority to establish with any degree of probability that the evidence of the respondent's 'current practice' and his 'current success rate' was necessarily taken into account in relation to the cancellation decision. 37 The respondent noted that at no time during the Tribunal's hearing did the Authority object to the reception of the evidence relating to respondent's 'current practice' and his 'current success rate'. It was put that this may be relevant to the issue of costs should the Authority succeed in this appeal.

The Authority's Submissions in Reply 38 The Authority submitted that in Freeman the issue for determination by the Tribunal was whether the decision to cancel on the date of the original cancellation was the correct or preferable decision, not whether the applicant was entitled to a benefit at the time of the Tribunal's decision. The Authority submitted that that is the same in this case. The question for the Tribunal was whether its cancellation decision in July 2003 was the correct or preferable decision, not whether the respondent might be eligible to be registered in September 2005. 39 In Freeman, Davies J indicated that it is important to have regard to the nature of the decision. The distinction his Honour saw as critical was between: a decision to refuse to grant a pension or benefit where there was an ongoing entitlement, which can be seen as part of a continuum; and a decision to cancel a pension made on a particular date. A decision of this kind has no ongoing nature, once made it is spent. 40 Davies J noted that, under the Social Security Act 1947 (Cth), once a benefit is cancelled it may only be paid again following a fresh application. That is also the position in the present legislative context. Where a migration agent has had his registration cancelled, he would need to apply for registration afresh and cannot make such an application for five years (s 292). In this sense, the present case is even stronger than that considered by Davies J in Freeman. 41 Davies J noted that a further distinction between entitlement decisions and cancellation decisions is that in the former case but not the latter the Tribunal can decide entitlement throughout the relevant continuum up to its decision. This is not possible in cancellation cases because if the cancellation decision was correct or preferable, there is no further step. That is also the position here (and probably in all cancellation cases). 42 The Authority noted that the respondent had sought to distinguish this case on the basis that the legislation is different. However, the Authority argued, no material difference was identified. The only difference is the one noted above and it tends to show that this case is even more clear cut than that in Freeman. 43 It was also observed that the power to cancel pensions in the Social Security Act was not restricted to being exercised at some point in time. This, it was said, was not part of Davies J's analysis, contrary to the respondent's submissions. 44 The Authority noted that the Full Court in Hospital Benefit Fund of WA v Minister for Health, Housing and Community Affairs approved the analysis of Davies J in Freeman (at 234.5). In that case, the legislation tied the primary decision-maker to a small period of time after certain rule changes were notified. The Court found that the Tribunal faced the same question as the primary decision-maker, which required it to look at the time the original decision should have been made. The legislation in that case is different from that in the present. However, the Authority submitted, the core principle is that the Tribunal must answer the same question as was answered by the primary decision-maker. For the reasons given by Davies J in Freeman, in a cancellation case, that involves whether the decision to cancel on the actual date of the cancellation was the correct or preferable decision. 45 The Authority observed that this analysis was also endorsed and applied by Weinberg J in Sharma at 524 - 526 [61] - [63] and, in the context of review of a decision to cancel a visa under the Act, by Katz J in Nong (albeit through reference to Weinberg J in Sharma, who applied Freeman) at [29] - [31]: '[29] As I understood the submission, at least in the form in which it appeared in Mr Nong's written outline of submissions filed in advance of the hearing before me, it was that the MRT had erred in not concluding that, on 6 January 2000, the date of its decision, Mr Nong was in compliance with condition 8202. [30] That submission may be dealt with quite briefly. [31] The MRT was not concerned, in making its decision, with the issue whether Mr Nong was or was not in compliance with condition 8202 on 6 January 2000, the date of its own decision. Rather, it was concerned with the issue whether Mr Nong had or had not been in compliance with condition 8202 on 30 March 1999, the date of the delegate's decision: see, for example, the discussion of the nature of the review function of the MRT's predecessor in Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 at 524-526 [61]-[63] (Weinberg J). (Emphasis added.)' 46 The Authority observed that Katz J dealt with the matter briefly because the principle is now well-established and noted that the power of the Minister to cancel a visa under s 116 of the Act if he is satisfied of certain matters is not materially different from the present cancellation power in s 303. 47 The Authority observed that in Aged Care Standards and Accreditation Agency, Branson J considered that only limited assistance was gained from categorising decisions as cancellation decisions or entitlements decisions (at [26]). Her Honour considered that it was necessary to consider the nature of the decision involved. In that case, the Tribunal was to review a decision to vary the period of accreditation for an aged care provider (this decision did not fit readily into the cancellation entitlement dichotomy). Her Honour considered that, in the legislation before her, the fact that a decision could be made only after an audit report was obtained and only within 14 days of receipt of that report was important. However, her Honour also applied the reasoning of Davies J in Freeman in concluding that the decision was not part of an administrative continuum. Her Honour also observed at [30] - [31]: [30] … In my view, the Tribunal would be undertaking a quite different process from that which the Principles required the accreditation body to undertake were it to review a decision made under s 3.24 by reference to factual material remote in time from the review audit report. In particular, I consider that on review of a decision made under s 3.24 it is not open to the approved provider to seek to undermine the significance of the review audit report, and the recommendations included in it, by calling evidence of improvements in its practice and procedure implemented after the date of the decision and in response to the review audit report and recommendations. [31] I conclude that the Tribunal would not be addressing the same questions as the applicant was required to address if it were to determine whether, at the time of the Tribunal's decision, the decision of the applicant under s 3.24 of the Principles can be seen to be the correct or preferable decision. This is not to say that the Tribunal cannot receive evidence of facts that occurred after the date of the decision under review. However, to be relevant to the Tribunal's decision, that evidence must, in my view, bear on the merits of the decision as at the time that it was required to be made.' 48 In summary, the Authority submitted, by way of reply, that: (1) Applying the principles stated in Freeman, the review of a decision to cancel a migration agent's registration on a particular date involves a determination of whether that decision was the correct or preferable decision at that date. (2) Where a decision is made to cancel, say because an agent does not have the necessary ambit of knowledge of migration procedures at the time of the decision (as shown by a track record of failings in this regard), a review applicant cannot show that that was not the correct or preferable decision by acquiring the relevant knowledge thereafter. If the person has become eligible, he or she may then be able to apply for registration afresh. (3) Similarly, where a decision is made to cancel because of massive and serious violations of the Code of Conduct, it would be absurd if a review applicant could seek to rely upon compliance with the Code after the date of the decision. Compliance achieved by enforcement proceedings is not what the legislation is designed to achieve. Agents are required to comply with the legislation when registered. (4) For these reasons and the reasons outlined above, this Court should follow Freemanand the cases that have applied it and conclude that the question before the Tribunal, in relation to the cancellation decision, was whether the decision to cancel on 14 July 2003 was the correct or preferable decision having regard to the circumstances pertaining up to that time. (5) The respondent argued that it would be against the policy of the Act if the Tribunal were not permitted to have regard to events following the cancellation decision. He suggests there is no reason why the Tribunal should not find that it has become satisfied of s 303(1)(e) if an agent becomes bankrupt during the review processes. The Authority says that this reasoning is flawed and not necessary. A later bankruptcy does not indicate that any earlier decision to cancel because of lack of integrity was the correct or preferable decision. It is irrelevant to that question (or without more would be). The Authority could, of course, cancel the registration afresh on the basis of the bankruptcy when it becomes aware that that has happened. A person whose registration was wrongfully cancelled should not have it affirmed simply because a reason to cancel it subsequently arises. There is also a fresh power to cancel when a proper reason arises. Likewise, a person whose cancellation was correct or preferable should not be able to avoid that proper consequence because of actions taken after the decision to rectify perceived deficiencies. (6) Contrary to the respondent's submission, no part of the Authority's argument requires the notion of fitness or character to be narrowly construed. However, success rates in late 2003 and 2004 simply have no bearing on the respondent's fitness before that time; nor does any absence of subsequent breaches of the Code. (7) It may be accepted that evidence of 'character' after the date of the decision could be relevant because 'character' has been held to involve the enduring moral qualities of a person. So, for example, evidence that a person has lied or not been frank in their evidence after the date of the decision would be relevant not directly as breaches of a rule requiring honesty but as an indicia of a person's enduring moral qualities. An inference would be available that an adult prepared to lie to or mislead the Tribunal (or just not be frank) at its hearing had the same moral qualities at the time of the decision. However, this reasoning does not mean that evidence relating to every criteria post the cancellation decision is relevant. For example, evidence that an agent has knowledge in 2004 simply does not show that he had that knowledge in 2003. (8) The respondent's reliance upon Peko-Wallsend is misconceived. The Authority does not say that the Tribunal may not have regard to the most up to date evidence at hand. However, it has to be evidence that is relevant to the question at hand; the position in July 2003. (9) Contrary to the respondent's submission, the absence of a time limit for the making of a decision to cancel does not have the result that the Tribunal is required to make its decision on the basis of all evidence up to the time of its decision: Freeman; Nong. (10) The respondent seeks to get some assistance from extrinsic materials. It is said that his construction is consistent with the object stated in the passage quoted. However, without conceding that this is a proper use of extrinsic materials, it may be answered by noting that the Authority's construction is also consistent with that object. (11) Contrary to the respondent's submission, it would not be inimical to the achievement of the objects of the provisions if the Tribunal could not have regard to adverse developments that happened after the making of the decision under review. The Authority would be having regard to such conduct and is ideally placed to take appropriate action even if a review is pending in relation to an earlier decision (indeed this happened in this very case, when the respondent's registration was suspended while the cancellation review was pending). (12) It would, however, be inimical to the achievement of the objects if agents who have been cancelled for failing to comply with the Code of Conduct or failing to maintain necessary knowledge can avoid that legislated consequence by relying upon subsequent improved conduct and subsequent compliance. A system of this kind is less likely to be effective in ensuring that agents comply at all times if there is a perception that (the consequences of) breaches can be avoided. (13) The respondent's submissions at [34] supra misconceive Davies J's reasons in Freeman. They did not turn upon the fact that the Tribunal had affirmed the cancellation decision but upon the nature of the decision under review. The respondent's argument is some kind of bootstraps argument. The Tribunal's decision is being challenged because it failed to appreciate the nature of its task. That task does not have a different nature according to the conclusion it reaches at the end of the task. (14) The respondent submitted that all the evidence relied upon by the Tribunal in addressing the question it answered (as at September 2005) would have been available if it had asked itself the correct question (as at July 2003). This is said to support a futility argument. This Court should not accept the proposition that the Tribunal's error (it is implicitly admitted by the respondent that it did answer the question as at September 2005 and, on the Authority's submissions as to law this would be an error of law) could not have made a difference. (15) First, some of the evidence was not relevant to 14 July 2003: (a) 'Is this form of file note taking ... does this represent approximately what your current practice would be with taking files notes--- Yes … .' (AB 550) (b) 'Is that representative of your current practice in relation to client agreements?' (AB 551) (c) 'Mr Shi, do you now keep copies - or is it your practice to keep copies of letters on file to your clients? - Yes, yes.' (AB 555.3) (d) The evidence of his success rate from the beginning of 2003 until August 2004 presented in a form that did not disclose that rate as at July 2003. (AB 566 567, 575 - 576, 803, 775 - 776) (16) In any event, even if the evidence were all relevant it may have been weighted differently if the correct question were asked. The Court should remit the matter to the Tribunal if it finds that the Tribunal misunderstood its task. (17) As the Tribunal dealt with all four review decisions together, the Court cannot be sure that the Tribunal did not have regard to the later evidence only in relation to the decisions of later dates. The point is, however, that the Tribunal dealt with them all together when it needed to separate the decision according to their nature and the evidence that was relevant to each. The fact that it did not do this proves the Authority's case rather than the reverse.

The Authority's Submissions 49 In considering whether the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance, the Tribunal was bound to consider (at the relevant time) the extent of his knowledge of migration procedure (s 290(2)(a)). The Tribunal did not expressly mention this factor in its reasons and, in particular, in that part of its reasons where it makes a finding on the respondent's integrity and fitness (at [24]). The inference is that it did not consider this to be a material factor for this purpose. This reveals jurisdictional error. 50 The Tribunal apparently came to the view that the respondent's integrity and fitness were sufficiently lacking that his work needed to be supervised for a further period of three years and he may not undertake work relating to protection visas. The Tribunal's order or decision, which contains these conditions, clearly indicates that the Tribunal entertained serious concerns about the respondent's ability to carry on a practice as a migration agent. 51 The Authority submitted that if a person is unfit to give immigration assistance in relation to protection visas they are not fit to be migration agents. A migration agent needs to have the knowledge and ability to help clients whatever kind of immigration assistance is required. The Tribunal misconstrued the statutory notions of fitness in considering that it was sufficient that the respondent could be fit for part of the work done by migration agents. This is clearly a misconstruction of the Act and a jurisdictional error. 52 The Act requires that migration agents be persons of integrity and capable for the duties involved (s 290). There are mandatory periods of exclusion for persons shown not to be of integrity or not to be capable (s 291 and s 292). 53 In summary, the Tribunal found that: (a) The respondent did not know what the Code required or that he needed to comply with it; (b) certain dealings revealed that he lacked understanding of the relevant law and lacked judgment; (c) certain dealings showed that he had no idea of the Tribunal's jurisdiction; (d) the respondent was not a reliable witness (though it did not find dishonesty in his practice); and (e) the public interest requires that the respondent's practice as a migration agent for three years be supervised and that he be excluded from one area of immigration assistance. 54 In this context, on the balance of probabilities, the Authority submitted that the Court should draw either or both of the following inferences: (a) that the Tribunal must have failed properly to understand or apply the test for determining whether a person is not a person of integrity or is otherwise not a fit and proper person for the purposes of the Act; (b) that the Tribunal failed to appreciate that knowledge of migration procedure was a mandatory factor relevant to the respondent's fitness. 55 In either case, the Authority submitted that the Court should find that the Tribunal made a jurisdictional error. 56 Alternatively, the Authority observed that these negative factors were offset only by factors concerning the respondent's conduct after the cancellation, which as noted above, are not relevant considerations in the present context.

The Respondent's Submissions 57 The respondent submitted that there was no basis for the Court to draw the inference that the Tribunal did not consider the respondent's knowledge of migration procedures to be a material factor in determining the respondent's integrity and fitness because it did not expressly mention this factor in its reasons, and that the Tribunal undoubtedly took the respondent's knowledge of migration procedures into account as required. 58 The respondent contended that there was no doubt that the Tribunal was aware that, in determining the respondent's integrity and fitness, it was required to consider his knowledge of migration procedures. The Tribunal, at [8] of its 2 September 2005 reasons, specifically adopted the principles set out in Lilienthal v Migration Agents Registration Authority (2001) 66 ALD 249 at [18] - [25], where Deputy President Purvis, citing Hughes and Vale Pty Ltd & Anor v the State of New South Wales & Ors (No. 2) (1955) 93 CLR 127 at 156, considered that fitness to practice: ' "… with respect to an office is said to involve three things, honesty, knowledge and ability; "honesty to execute it truly, without malice, affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it". …" ' 59 The Tribunal, at [9], also cited Griffiths v Migration Agents' Registration Authority [2002] AATA 247 at [28], where Senior Member Muller said: 'The Act requires a person who is registered as a migration agent to be a "fit and proper person to give immigration assistance" and to be "a person of integrity". The migration agent should therefore be a person who has a good knowledge of the migration laws, is able to prepare applications competently and should be a person of such reputation and ability that officers of the relevant Department may proceed upon the footing that the applications lodged by the agent have been prepared honestly and competently.' 60 In addition, a reading of the whole of the decision (not just the 2 September 2005 reasons) makes it clear that the Tribunal gave close consideration to the extent of the respondent's knowledge of migration procedure in at least two distinct ways. 61 First, the respondent's lack of knowledge of migration procedures was prominent in the 6 April 2005 findings, where he was found to have failed to comply with the Code. In the 2 September 2005 reasons, this was dealt with under the heading 'Finding relating to non-compliance with the Code' (at [12] - [13]). The most obvious instance of this was the Tribunal's numerous findings that the respondent had breached cl 2.3 of the Code, which expressly requires that an agent have a 'sound working knowledge' of the relevant legislation (at [67] - [69], [87], [94] - [96], [113], [197] - [198] of the 6 April 2005 findings). 62 Secondly, where the respondent's lack of knowledge of migration procedures did not amount to a breach of the Code, it was still expressly considered by the Tribunal in both the 6 April 2005 findings and the 2 September 2005 reasons. This can be seen particularly in the Tribunal's findings that the respondent did not have the requisite knowledge of the correct procedures for making a s 417 application (at [74], [103], [110], [112], [229] - [230]). This could not amount to a breach of the Code because such requests were found by the Tribunal to fall outside the definition of 'immigration assistance' in s 276 of the Act (at [29] - [37]). However the Tribunal still considered the respondent's conduct to be relevant to the issue of '…whether I am satisfied that pursuant to s 303(1)(f) of the Act [the respondent] is not a person of integrity or is otherwise not a fit or proper person to give immigration assistance …' (at [34]), and this was in turn expressly referred to in the 2 September 2005 reasons (at [19]). 63 The respondent observed that in relation to the Tribunal's order on the cancellation decision, that the respondent's caution be lifted after three years provided that he not give immigration assistance on protection visas, the Authority submitted that this 'view' of the Tribunal should inevitably have led to a finding that the respondent was unfit to practice as a migration agent. This, the respondent submitted, is really an invitation to the Court to undertake merits review of the Tribunal's decision. The Tribunal was entitled to take into account the respondent's poor performance on protection visas cases, and to weigh this with the other more favourable evidence before coming to a conclusion as to whether he was a fit and proper person. Moreover, the Tribunal's order did no more than to extend the terms of the stay order which had already been in effect for some two and a half years and had not been the subject of any objection, complaint or appeal by the Authority. And finally, the Code itself recognises and supports the reality that some agents may be competent in some areas and not in others. Clauses 4.1 and 4.2 of the Code provide: '4.1 Before accepting migration work, a registered migration agent must consider whether he or she is qualified to give the advice sought by the client. If the agent is unsure, he or she must seek the appropriate advice or assistance, or refer the matter to another registered migration agent. 4.2 A referral may be made, for example, if a registered migration agent is asked for advice on matters for which he or she does not regularly provide immigration assistance.' 64 The respondent argued that there is no suggestion in the Code or the legislation that an agent who decides to refer work to another agent because he or she is not competent in the relevant area is somehow not fit to be a migration agent. 65 Nowhere did the Tribunal say that it had 'serious concerns' about the respondent's ability to carry on a practice as a migration agent, as contended by the Authority. Having weighed the evidence for and against cancellation and suspension, the Tribunal considered that 'there is another course which protects the public interest sufficiently but will allow Mr Shi to continue to practice with appropriate constraints' (at [25]). The Tribunal was entitled by s 304A of the Actto impose such a constraint by applying conditions on the lifting of its caution. It understood what it was doing, and it did so in accordance with the legislation. 66 In this respect, the Authority's submissions are no more than a further invitation to the Court to reconsider the merits of the Tribunal's decision and should be rejected.

The Authority's Submissions in Reply 67 Noting the respondent's submission that the Authority was seeking something in the nature of merits review in its second ground, the Authority submitted that this was not the case because, here, the facts have been fully found: See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 - 356 per Mason CJ; Hope v Bathurst City Council (1980) 144 CLR 1 at 7 - 8 per Mason J. 68 The Authority's case was that it was not open on the facts found by the Tribunal (see the Authority's principal submissions at [53] supra) to conclude otherwise than that the respondent was not a fit and proper person. 69 Another way of identifying the same error was said to be highlighted by the respondent's submissions. The respondent was made subject to a supervisory obligation during the stay orders. This required him not to do protection visa work and to be supervised by another migration agent. This order is appropriate in circumstances where the Authority considered that the person is not fit and should be cancelled or suspended but a stay is put in place while the correctness of that decision is being reviewed. If however the Authority's decision to cancel or suspend was not correct, this must be because the person was fit and proper. On this conclusion, it was argued, no further supervision or restrictions would be appropriate. 70 The Authority submitted that the very fact that the Tribunal considered that the public interest required the respondent to be supervised and to have his areas of work limited reveals that the Tribunal did not yet think he was fit and proper to be a migration agent. That is how the Court can readily conclude that the Tribunal has erred in its application of the law to the facts in this case. 71 The Authority then turned to address the respondent's submission that the Act and the Code envisage that an agent who is not competent in certain areas of practice as a migration agent can nevertheless be fit to be an agent. Support for that proposition was said to be found in cl 4.1 and 4.2 of the Code. 72 The Authority submitted that neither of those aspects of the Code accept a lack of competence. It envisages that agents may choose not regularly to practice in certain areas, which may lead an agent to be 'unsure' of what is appropriate. Rather than spend time and money looking this up, an agent can refer the matter to another who does work regularly in the field. This does not warrant the notion that migration agents can be fit and proper if they cannot be trusted or are otherwise unable to work in certain areas of practice.

The First Ground 73 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. 74 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. 75 I am impelled to the view that the Tribunal asked itself the wrong question by reference to the Tribunal's 2 September 2005 reasons, in particular at [14], [15] - [17] and [24]: See the particular passages at [21] supra. 76 Not only did the Tribunal ask itself the wrong question, not surprisingly it seems to be common ground that, as noted at [22] supra, it answered that question. 77 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. 78 The respondent submitted that, notwithstanding these findings, the Court should exercise its discretion to decline to grant the appeal because it would be futile to remit the matter for re-determination. The basis for this submission was that all of the matters taken into account by the Tribunal were open for it to consider, either because they pre-dated the decision under review or because they were after-acquired evidence. As such, any technical error in identifying the correct point in time would not have materially affected the Tribunal's decision: Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346 at [62] - [64] per Sackville J. 79 I cannot agree with this submission. First, I do not accept that all the evidence relied upon by the Tribunal in addressing the question it answered (as at September 2005) would have been available if it had asked the correct question (as at July 2003). Some of the evidence was not relevant to 14 July 2003. Examples of that are to be found at [47(15)] supra. In any event, as the Authority submitted ([47(16)] supra), even if the evidence was all relevant, it may have been weighted differently if the correct question were asked. 80 Second, as Sackville J observed in Lu (at [64]), the correct approach is that stated in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147 and adopted in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 - the test is whether the applicant could have been deprived of the possibility of a successful outcome by the decision-maker's failure to observe the requirements of the statute: 'If so, the jurisdictional error could have had a bearing on the outcome and the applicant is not to be denied relief on the basis that the error was insignificant … The question is not whether the decision-maker would probably have realised the same result even if the … consideration had [not] been taken into account'.

The Second Ground 81 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. 82 First, the Tribunal did not expressly mention this factor - the extent of the respondent's knowledge of migration procedure - in its reasons and, in particular, in that part of its reasons where it makes a finding on the respondent's integrity and fitness (at [14] of the 2 September 2005 reasons). The inference, the Authority submitted, is that the Tribunal did not consider this to be a material factor for this purpose but, because it is mandated to be taken into account (s 290(2)(a)), this reveals jurisdictional error. 83 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. 84 I am not persuaded that the first of these streams of contention is made out for the reasons advanced by the respondent and referred to at [57] to [66] supra. 85 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 [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. 86 Division 3 of Part 3 of the Act does not contemplate registration of an individual as a migration agent on a conditional basis - for example, on condition that the work is supervised by a third party or that he not provide immigration assistance with respect to particular kinds of visas. Indeed, the Tribunal recognised as much at [14] when it said: 'The difficulty I had with that submission was an implication that I could impose a condition on [the respondent's] registration such that he could not undertake such work [dealing with protection visas]. Following discussion, both parties accepted that this is not the case, and in my opinion that is quite clear on the face of s 303.' 87 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. 88 Such a view does not render s 304A nugatory. Conditions, having nothing to do with a migration agent's registration, can be set for the lifting of a caution such as effluxion of time, compliance with the Code of Conduct prescribed under s 314, indeed any condition which does not impose on the agent a condition which impacts his entitlement to provide immigration assistance by reason of his registration as a migration agent - s 280(1). 89 In my view, s 304A did not entitle the Tribunal to set the conditions it set for the lifting of the caution and this involves jurisdictional error. The fact that a caution, devoid of such conditions, with or without permissible conditions may not be seen as an appropriate penalty, is a matter for the determination of the Tribunal on remitter.

COnclusion 90 In each of the appeals, the orders of the Court will be:

1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal be set aside.
3. The matter be remitted to the Administrative Appeals Tribunal, as previously constituted, to be determined according to law. 91 The respondent intimated that he may wish to be heard on costs if the Authority was successful in its appeals and the Authority indicated that it was, in those circumstances, content that costs be addressed after the Court handed down its reasons. I will hear the parties on the matter of costs. I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Solicitor for the Applicant: Australian Government Solicitor

Solicitor for the Respondent: KesselsGoddard + Ajuria