Shaheed v Tax Agents' Board of New South Wales

Statutory framework 10 Part VIIA of the 1936 Act deals with the registration of tax agents. Section 251BC deals with the meaning and context of "fit and proper person", as follows: 251BC Fit and proper persons to prepare income tax returns (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: (a) the person is not a natural person; (b) both of the following conditions are satisfied: (i) the person was not registered as a tax agent, or as a nominee, for the purposes of this Part immediately before the commencement of section 39 of the Taxation Laws Amendment Act (No. 2) 1988; (ii) the person does not hold such qualifications (whether academic, by way of experience or otherwise) as are prescribed; (c) the person has not attained the age of 18 years; (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. (2) Nothing in paragraph (1)(e) or (f) limits the generality of paragraph (1)(d). (3) Where: (a) a Board is required, in considering an application for: (i) re‑registration as a tax agent; or (ii) re‑registration of a nominee of a tax agent; to decide whether the Board is satisfied that a particular person is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters; (b) the person is not under sentence of imprisonment for a serious taxation offence; and (c) the Board is satisfied that, because of special circumstances: (i) a conviction of the person; (ii) the doing of an act or thing by the person; or (iii) an omission of the person; should be disregarded; the Board may, in making the decision referred to in paragraph (a), disregard the conviction, the doing of the act or thing or the omission, as the case requires. (4) For the purposes of this section: (a) a person who has been released from serving a part of a sentence of imprisonment on parole or upon licence to be at large shall be taken to be under sentence of imprisonment during any period during which action can be taken by way of requiring the person to serve the whole or a part of the remainder of that sentence; and (b) a person who has been released by a court from serving the whole or a part of a sentence of imprisonment upon the person giving a good behaviour security shall be taken to be under sentence of imprisonment during any period during which action can be taken for a breach of a condition of that security. (5) A reference in subsection (4) to a good behaviour security given by a person is a reference to a security given by the person, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to his or her behaviour. The phrase "serious taxation offence" is defined in s 251A, as follows: serious taxation offence means: (a) an offence against section 134.1, 134.2, 135.1, 135.2 or 135.4 of the Criminal Code, being an offence that relates to a tax liability within the meaning of the Taxation Administration Act 1953; or (c) an offence that is: (i) a taxation offence within the meaning of Part III of the Taxation Administration Act 1953; and (ii) punishable on conviction by either or both of the following: (A) a fine exceeding 20 penalty units; (B) imprisonment.

11 Section 251JA deals with the registration of tax agents; s 251JC with their re-registration. Section 251JA(1)(a) and (2) are in the following terms:

Original registration of tax agents (1) The Board shall register the applicant as a tax agent if the applicant satisfies the Board that: (a) if the applicant is a natural person: (i) the applicant is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters; and (ii) the applicant is not an undischarged bankrupt; … (2) The Board shall refuse to register the applicant in any other case. … Section 251JC(1)(a) and (2) are in the following terms: Re‑registration of tax agents (1) The Board shall re‑register the applicant as a tax agent if the applicant satisfies the Board that: (a) if the applicant is a natural person: (i) the applicant is a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters; and (ii) the applicant is not an undischarged bankrupt; … (2) The Board shall refuse to re‑register the applicant in any other case. … 12 The approach to the construction of a provision of this kind was discussed in Kazacos v Migration Agents Registration Authority [2007] FCA 1573 at [4]. Neither party took exception to this approach.

The AAT's decision 13 The AAT Senior Member first (at [3]-[4] of his reasons) directed himself to the meaning of "fit and proper person" by reference to the judgments of Hill J in Davies v Australian Securities Commission (1995) 131 ALR 295 at 305 and Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380. No complaint was made about these passages, which were as follows: (a) Hill J in Davies 131 ALR at 305: The phrase "fit and proper person" is a familiar one in the context of qualifications for offices or vocations. Discussing the phrase in a context of licenses to use vehicles for the purposes of interstate trade, Dixon CJ, McTiernan and Webb JJ said in Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1995) 93 CLR 127 at 156-7: But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") 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" - Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances… As I observed in Stasos v Tax Agents' Board of NSW (1990) 90 ATC 4950 at 4959, the content of what is necessary to constitute a person a fit and proper person to occupy a particular office or pursue a particular vocation will vary having regard to the office or vocation under consideration. Thus the characteristics required to show fitness as a tax agent were expressed by Davies J in Re Su and Tax Agents' Board, South Australia (1982) 82 ATC 2484 at 4286 as requiring that person to be: … a person of good reputation, has a proper knowledge of taxation laws, is able to prepare income tax returns competently and is able to deal competently with any queries which may be raised by officers of the Taxation Department. He should be a person of such competence and integrity that others may entrust their taxation affairs to his care. He should be a person of such reputation and ability that officers of the Taxation Department may proceed upon the footing that the taxation returns lodged by the agent have been prepared by him honestly and competently. (b) Toohey and Gaudron JJ in Bond 170 CLR at 380: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 14 The Senior Member then stated that in evaluating the four specific allegations about the applicant, he had "kept firmly in mind the fact that if I am satisfied of the Respondent's case then the Applicant will be deprived of his livelihood". In this context, the Senior Member referred to the well-known passage in the judgment of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. 15 The Senior Member then stated at [6]: In approaching the decision under the review as has been made clear by cases such as Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd and Anor (2003-4) 138 FCR 428 the question of the Applicant's fitness to practice has to be determined at the time of the making of the decision under review. 16 The Senior Member then identified at [7] the four specific allegations that were addressed in the review as follows: (i) The complaint by a Ms Millerd on behalf of her brother Mr Mohammed Nizam Khan, a resident of Fiji to the effect that the Applicant had not accounted to Mr Khan for monies received by way of a refund of tax overpaid following preparation of returns for Mr Khan by the Applicant, and that the Applicant had used undue pressure upon Mr Khan to induce him to withdraw his original complaint to the Respondent. (ii) The volume of tax claims prepared by the Applicant. (iii) The failure by the Applicant to comply with an undertaking he gave to the Respondent to close offices from which he operated at Liverpool and Harris Park and to remove all advertising. (iv) The operation of an office at Dandenong in Victoria despite the Respondent in 1998 disallowing the opening of an office at that location. 17 The Senior Member then addressed the facts, dealing with these issues in reverse order. 18 The Senior Member recited the fact that in June 1997 the applicant sought the Board's approval to operate branch offices at Liverpool in New South Wales and Dandenong in Victoria. This request was declined in September 1998, on the basis that the applicant would not be able to satisfy s 251N by the exercise of proper supervision and control. Whilst the Senior Member expressed doubt about the validity of any statutory basis for such approval, he considered the facts as relevant, in that the Board had stated to the applicant its view that the applicant would not be able to exercise sufficient control over their operation. Those conclusions about Dandenong do not appear to form the basis of any operative criticism of the applicant by the AAT in its decision. 19 Notwithstanding the Board's purported refusal of the application to open an office in Liverpool, the applicant did so. In 2004, the applicant told investigating officers of the Tax Agents Integrity Unit that the office began in 1998 or 1999. He later wrote to the Board and stated that the Liverpool office opened in 2000. This letter (of 25 November 2004) stated that the "Liverpool and Harris Park offices have now been closed for business. The signs have been taken out and all advertising has ceased". 20 In fact the signs had not been taken down by 3 December 2004, when investigating officers from the Tax Agents Integrity Unit visited the Liverpool office. 21 The Senior Member made the following relevant findings at [18]-[20] of his reasons for decision: In evidence the Applicant stated that he had closed the Liverpool and Harris Park offices in November or December 2004, and had instructed a signwriter to remove the signage. So far as the Liverpool office is concerned I note that the report from the Tax Agents Integrity Unit does not state that the officers entered suite 5 so there is no evidence that any work was being carried out from those offices at that time. Notwithstanding that finding, the fact is that the Applicant opened offices at Liverpool and Parramatta (later Harris Park) knowing that the Respondent had declined to sanction the opening of an office at Liverpool (and Dandenong) citing lack of ability to properly supervise those offices, together with the failure to notify the Respondent of the existence of the Liverpool and Parramatta (later Harris Park) offices leads to the inference, not rebutted by the Applicant, that he set out to deliberately keep the existence of these offices from the Board. I also note that Applicant in his letter of 25 November 2004 made the positive statement that "the signs have been taken out" where as in fact this had not occurred. I accept that the Applicant at the time had made arrangements for the signage to be removed but his letter to the Board does not say that but rather makes the positive statement that the signage had been removed. 22 Thus, it can be taken that the particulars identified as (iii) and (iv) at [16] above permitted the AAT to conclude that although there was doubt as to the statutory basis for requiring approval, the facts disclosed that the applicant had deliberately kept the existence of two offices from the Board, knowing that they did not approve of them. It is difficult to conclude that the statement about signage was taken by the AAT to ground a conclusion about the applicant that was unfavourable. 23 In relation to the third complaint, the number of clients, the AAT referred to the evidence of Mr Cronin who was called by the respondent, summarising his evidence as follows: …His evidence was that a tax agent whose practice consisted mainly of PAYE or small company returns would at the maximum be capable of lodging 5000 returns per annum in order to have those returns properly supervised. As at 25 January 2005, the applicant had a client list of 14,156. 24 The AAT then dealt with this issue at [23]-[27] of its reasons, as follows: The Applicant when interviewed on 10 June 2004 explained that returns were compiled by his staff members, those returns were then sorted by "checkers" and if there were any problems or non-compliant returns they were checked either by the Applicant or an employee, a Mr Lloyd Agha. Spot checks were also conducted. Following the investigations by the Tax Agents Integrity Unit Mr Agha was registered as a Nominee of the Applicant. There had been complaints against the Applicant prior to the current proceedings but I accept the Applicant's submission that the volume of complaints was small given the number of returns lodged by the Applicant. Notwithstanding the small number of complaints given the number of returns it is difficult to ascertain how the Applicant could exercise personal control over the number of returns lodged by him. I do not accept all of Mr Cronin's evidence in that the Applicant's practice is quite different to that of Mr Cronin's firm, but the numbers appear to be excessive. My view is that although not a ground for cancelling registration as a tax agent the Respondent was justified in refusing to re-register the Applicant in circumstances where he was unable to satisfy it that he had reduced the number of clients and taken all necessary steps to have nominees appointed. 25 The AAT then turned to the complaint brought by Mr Khan's sister. This complaint was summarised by the AAT at [28] of its reasons as follows: …The matter referable to Mr Nizam Khan may be summarised by stating that he lodged a complaint with the Respondent on 31 October 2002 regarding the failure by the Applicant to pay to him monies being the proceeds of tax refunds less the Applicant's fee for preparing the relevant returns. That complaint was withdrawn by Nizam Khan but later resurrected on his behalf by Ms Millerd. 26 The applicant stated that Mr Khan had given his written authority to pay refund moneys to one Ali Akbar. 27 The Senior Member then dealt with the evidence of Mr Khan and his sister, and the cross-examination of the applicant. One aspect of the dispute was whether the applicant had been prepared to deal with Mr Khan's sister. In this regard, the Senior Member formed an unfavourable view of the applicant's evidence. In any event, as a result of what Mr Khan saw as the refusal of the applicant to deal with his sister, he gave her a power of attorney (made and registered in Fiji) in order that she might advance his claim to his tax refunds. 28 Then, in July 2003, Mr Khan requested the Board to cease investigations about his (and his sister's) complaint, stating in the relevant letter: "As I am now satisfied that the monies were paid to Mr Ali Akbar on my instructions." 29 An important controversy surrounded this retraction. The controversy centred upon whether the applicant, in company with two men, exerted pressure on Mr Khan to withdraw his complaint. (See the opening by counsel before the AAT referred to at [5] above.) The Senior Member recited the essence of Mr Khan's statement at [40]-[42] of his reasons as follows: Mr Nizam Khan gave evidence that the documents were signed by him following the visit to him in Fiji by the Applicant accompanied by three other men all of whom were dressed so as to make him believe they were devout Muslims. These men then used the fact that the Applicant and Mr Nizam Khan were fellow Muslims to induce him to sign the documents and withdraw his complaint. In evidence Mr Nizam Khan said that he recognized one of the men accompanying the Applicant a Mr Rafiq who was employed at the Court in Suva. Mr Rafiq knew Mr Nizam Khan and said "just because of you Mr Shaheed is in a problem and this is the reason he is here to see you." The other man then said to him that because of him a Muslim brother was getting into trouble and may loose [sic] his licence and that Allah would not forgive him for putting a fellow Muslim into a problem. Because of this and other pressures ie his daughter's impending wedding and the fact that he was out of work, he succumbed to the pressure brought to bear on him and signed the documents absolving the Applicant. 30 The Senior Member then set out the applicant's position in [43] and [44] of his reasons: The Applicant does not deny the fact of the visit. He states that he was accompanied by three other men one of whom was Mr Singh, the Notary Public whose seal is on the Statutory Declaration and Authority. The documents and the letter withdrawing the complaint were drawn up in the office of solicitors in Suva. He further stated that rather than being dressed in clothing favoured by devout Muslims the persons accompanying him wore in [sic] traditional Indian dress. The Applicant denies that any pressure, religious or otherwise was put upon Mr Nizam Khan to withdraw his complaint. He also stated that he had telephoned Mr Nizam Khan from Australia prior to his visit and discussed the matter with him. This was denied by Mr Nizam Khan. 31 Telephone records tended to corroborate the applicant's evidence about the phone call, as did two statements of Mr Ali Akbar that were before the AAT, although Mr Akbar was not called to give evidence. 32 The Senior Member then expressed his views about this central issue in the case at [47]-[53], as follows: There are inconsistencies in the evidence of both Mr Nizam Khan and the Applicant regarding the visit by the Applicant to Mr Nizam Khan in Fiji. What I find strange is that it was necessary for the Applicant to arrive at Mr Nizam Khan's home, unannounced and accompanied by three other persons. Mr Nizam Khan said that they arrived about 7.30 pm and the Applicant himself stated that they left Mr Nizam Khan's home at about 10pm. If matters had been explained to Mr Nizam Khan's satisfaction in the telephone calls from Australia it would not have been necessary to have remained for long at his home if indeed necessary to go there at all. Mr Nizam Khan could have been contacted by mail, asked to go to a solicitor's office in Suva to sign the necessary documents or even the Notary could have attended, by himself or with the Applicant at Mr Nizam Khan's home. That four men attended apparently in the evening and remained for some time persuades me that some pressure was brought to bear upon Mr Nizam Khan. The Applicant conceded that the letter of July 15, 2003 was drawn up in his solicitors' office in Suva on his instructions prior to visiting Mr Nizam Khan. I find the last paragraph of that letter puzzling as to why it was thought necessary. It reads: "I further confirm that this letter has been written on my instructions alone and that I was not coerced or threatened to write this letter but was written on my own free will and choice." I am strengthened in my conclusion that undue pressure was pressed upon Mr Nizam Khan by the failure of the Applicant to adduce any evidence from any of the three men who accompanied him. If, as alleged, the Notary, Mr Singh was there he could have adduced very cogent evidence given his standing as a Notary. The Applicant had access to the statements of Mr Nizam Khan well before this matter came on for hearing and thus would be aware of the import of Mr Nizam Khan's evidence. Likewise the final paragraph of the July 15th, 2003 letter quoted above seems to have been worded so as to pre-empt any later complaint. It was clear from the Applicant's cross-examination that he knows or at least could ascertain where Mr Ali Akbar lives. On the face of his statements Mr Ali Akbar may have defrauded Mr Nizam Khan of monies paid to him on Mr Nizam Khan's behalf but I would have thought that Mr Ali Akbar was an essential witness in the Applicant's case. I am satisfied that the Applicant did refuse to show the written authority to Ms Millerd and then attended at Mr Nizam Khan's residence and coerced him by the use of undue pressure regarding their common religion to withdraw his complaint. Various attacks were made upon the credit of Mr Nizam Khan and Ms Millerd and there were times when their evidence was less than satisfactory. Nevertheless I accept them as truthful witnesses in the main and in particular where their evidence conflicts with that of the Applicant, I prefer their evidence. The Applicant's evidence in cross-examination was not consistent and at times he began to argue with the cross-examiner. The Applicant in his letter to the Respondent of 28 July 2003 stated that he had shown the authority to pay Ali Akbar to Ms Millerd. As stated above I reject this. He also implied improper motives for Ms Millerd bringing her complaint when she did and I reject this suggestion. 33 It was against this background that the Senior Member came at [54] of his reasons to the central issue of fit and proper, saying: Consistent with the concept of being a fit and proper person is the attribute to be regarded by the Respondent as a person of such standing that the Respondent and the public can have confidence in him as to his honesty, integrity and competence. In the Applicant's case he has failed that test. 34 Then, in the last three paragraphs of his reasons, the Senior Member identified the basis of his conclusion that the applicant was not a fit and proper person for the purposes of the 1936 Act, s 251JC(1)(a). The reasons were: first, that he did not show Ms Millerd the authority to pay Mr Akbar, contrary to the statement to the Board that he did; and secondly, that he used undue pressure to induce, improperly, Mr Khan to withdraw the complaint against him. The member appeared to identify these two matters as "…sufficient to state that the Respondent could have no confidence in him as a person of integrity ". To these matters he added the following: …To add to this is the fact that he opened branch offices at Liverpool and Parramatta (later Harris Park) with knowledge that the Respondent had informed him such branch offices would not be approved. He then took no steps to notify the Respondent of the existence of those offices despite the requirement of Regulation 161 to do so. I can only regard this as a direct deception on the Applicant's part. In addition, at the time of the decision under review, the Applicant had not, despite stating he would do so, lodged an application for the appointment of an additional nominee or reduced his client list. I have also commented previously on his stating that matters had been done, where in fact they were to be done. 35 The AAT then concluded at [57]:

Given all the circumstances referred to above I find that the Applicant is not, in the terms described by Hill J in Davies v Australian Securities Commissions (supra) a fit and proper person and the decision under review is affirmed.

The attack on the decision 36 The two proceedings raised a number of complaints. I will deal with them as they were organised in the written submissions filed in support of both.

The asserted misconstruction of the meaning and effect of the phrase "fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters" 37 The essence of the argument of the applicant was that the AAT erred by looking at questions of honesty and integrity alone, without linking them to any asserted incompetence with respect to the preparation of income tax returns. It was submitted that the following passage from the decision of Davies J in Re Su and the Tax Agents' Board of South Australia (1982) 13 ATR 192 at 195, was to the effect that the dishonesty must reflect on a capacity to prepare tax returns and transact business on behalf of taxpayers: "… a person of good reputation, has a proper knowledge of taxation laws, is able to prepare income tax returns competently and is able to deal competently with any queries which may be raised by officers of the Taxation Department. He should be a person of such competence and integrity that others may entrust their taxation affairs to his care. He should be a person of such reputation and ability that officers of the Taxation Department may proceed upon the footing that the taxation returns lodged by the agent have been prepared by him honestly and competently." 38 I think that the submission reads too narrowly what Davies J was saying. A person may not be fit and proper in the relevant sense if his competence and skill is unchallenged but his integrity is. Competence and integrity are required. This is so because clients and the Tax Office must proceed on the basis of his competence and honesty. 39 I do not think that the reasons of the AAT betray any misunderstanding of the terms of s 251JC.

The time to determine fitness to practice. 40 The applicant fixed upon the content of [6] of the AAT's reasons (see [15] above) in asserting an error based on what Middleton J said in Toohey v Tax Agents' Board of Victoria [2007] FCA 431. 41 I do not see any error in the AAT's approach, whatever expression of principle was to be applied. The AAT heard all the evidence. Its conclusions were directed fundamentally to the lack of integrity of the applicant. Any textual differences between the reasons of Branson J in Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd (2004) 138 FCR 428 and Middleton J in Toohey [2007] FCA 431 are made irrelevant by the nature of the enquiry and the AAT's conclusions. The Senior Member, in examining past conduct and considering contested evidence, found a lack of truthfulness in the applicant and a proven lack of integrity. Any overlooking by the Senior Member of a late nomination by the applicant at the date of the AAT review was of no operative consequence to the decision.

An asserted failure to have regard to Briginshaw v Briginshaw 42 The applicant submitted that the reasoning of the AAT was sufficiently illogical for it to be evident that the requirement of Briginshaw 60 CLR 336 had not been satisfied. 43 Whilst some aspects of the reasoning of the AAT are less than pellucid (for example the content of [27] of the reasons in the circumstances of s 251K(2)(d) and s 251JC(1)(a)(i)), the Senior Member was alive to the requirement that he have regard to the serious consequences of a finding and to the consequence thereof, as required by the passage from Briginshaw 60 CLR 336, quoted by him. The matters in [55] of the AAT's reasons that the applicant, in effect, misled the Board about showing Ms Millerd the authority, that he exerted improper pressure upon Mr Khan to withdraw the complaint and that he sought to deceive the Board about the branch offices, were sufficiently clear and serious to warrant the conclusion reached, taking into account Briginshaw.

An asserted legal error in taking into account matters that were in law irrelevant. 44 In the application, the applicant identified three factual matters that he said were legally irrelevant, given the principles in Minister Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. They were: (a) the fact that the applicant had opened branch offices at Liverpool and Parramatta (later Harris Park) with knowledge that the respondent had informed him that such branch offices would not be approved; (b) the fact that the applicant had taken no steps to notify the respondent of the existence of those said offices having regard to the requirements of reg 161 of the Income Tax Regulation 1936 (Cth) ("the regulations"); (c) the fact that at the time of the decision under review the applicant had not despite stating that he would do so, lodged an application for the appointment of an additional nominee or reduced his client list; 45 These matters were not an independent foundation of a conclusion by the AAT of a lack of integrity. Indeed, the AAT itself doubted whether approval needed to be sought for the opening of offices. Rather, they were matters which went to the lack of integrity of the applicant. In particular, the first two related to a conclusion of an attempted deception of the Board. Whilst the third matter is less than cogent as to the integrity of the applicant, that is how the AAT used the matter and to that extent, it cannot be said to be legally irrelevant. 46 Section 251N of the 1936 Act was disavowed by the respondent before the AAT hearing as a basis for affirming the order. This did not, however, make irrelevant matters of behaviour of the applicant which went to his integrity.

A failure to afford procedural fairness 47 This complaint was directed to the Senior Member's observations at [47]-[50] of his reasons. Central to the complaint was the weight given to the failure to call Mr Ali Akbar or any of the persons said to be present at the Fiji meeting. 48 There is no substance in this complaint. The respondent gave a detailed statement of facts and contentions. The opening by counsel was clear as to the significance of these events and as to whom he was calling in evidence. Counsel for the applicant made clear that the applicant was responsible for calling Mr Akbar and would call him (impliedly, if so advised). There was no misleading of the applicant or his counsel as to the importance of this body of material or whom counsel for the Board was calling.

A drawing of inference not reasonably open 49 In the further amended notice of appeal, three inferences were said not to be reasonably open, they being: (a) the finding that the applicant had coerced Mr Nizam Khan by the use of undue pressure regarding their common religion to withdraw his complaint, at [51] of the Tribunal's reasons; (b) the inference that the applicant's opening of branch offices at Liverpool and Parramatta (later Harris Park) with knowledge that the respondent had informed him such branch offices would not be approved, and that he took no steps to notify the respondent of the existence of those offices, despite the requirement of reg 161 of the regulations so to do, could only be regarded as a "direct deception on the applicant's part", at [55] of the Tribunal's reasons. (c) The finding that the fact that four men attended in the evening at the premises of Mr Nizam Khan, on or about 15 July 2003, and remained for some time, was only consistent with some undue pressure and/or coercion having been brought to bear upon Mr Nizam Khan to withdraw his complaint; 50 As to findings (a) and (c), there was ample basis for the findings in question. These matters were in contest and the Senior Member preferred the evidence of Mr Khan. 51 As to finding (b), the applicant submitted that the Senior Member was "clearly wrong" to conclude that the factual finds "could only" lead to an inference of direct deception. That is not what the Senior Member said. He said "I can only regard this as a direct deception." This was a finding of fact, not a statement that no other conclusion was possible. 52 In the circumstances of the examination by the AAT of the question of the two offices, the lack of notification and of the cross-examination of the applicant about this, I am not persuaded that the conclusion was not open as a finding of fact. 53 Mr Skinner conceded that he had not put in terms that the applicant had sought to deceive the Board. The applicant's lack of candour with the Board was, however, put directly in issue. The conclusion in the last sentence of [55] was available, if not the only inference open. Given the findings on the applicant's evidence on other issues, this can be seen to be an available finding influenced by the whole evidence.

Alleged unreasonableness 54 I see no basis for concluding that the AAT's reasons and findings were so unreasonable as to amount to legal error. 55 The same errors in approach were re-asserted. The fundamental attack was that the Senior Member could not reasonably conclude as he did on the issue of Mr Khan. I have already rejected this. The primary complaint is a factual one, in that it was concluded that the applicant had acted in the ways identified, which satisfied the AAT that he lacked the requisite integrity to be re-registered. This was a factual conclusion open to the Senior Member. 56 For the above reasons, the appeal in NSD 2273/2006 and the application in NSD 1956/2007 should both be dismissed with costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate: Dated: 23 May 2008 Counsel for the Applicant: Mr P Bickford

Solicitor for the Respondent: Australian Government Solicitor