B.2 Consideration as to whether Tribunal exceeded jurisdiction
26 The question raised by Ground 1 relates to the scope of the review conducted by the Tribunal. When reviewing the decision of the delegate, the task of the Tribunal was to stand in the shoes of the Minister (or delegate) and to make the correct or preferable decision on review: Frugtniet at [51]. The Tribunal was required to address the same statutory question as the delegate: Frugtniet at [51]. As was recently observed by the High Court in Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; (2024) 98 ALJR 623 at [14]-[15]:
The jurisdiction of the Tribunal, as is well settled, is in essence to remake the decision under review. The jurisdiction is "'to do over again' that which was done by the primary decision-maker": "to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review".
In the exercise of that jurisdiction, the Tribunal is obliged by s 2A(a) and (b) of the AAT Act to pursue the objective of providing a mechanism for review that is "accessible" and that is "fair, just, economical, informal and quick". Section 25(4A) empowers the Tribunal to "determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers".
(Emphasis added; footnotes omitted).
27 See also Shi at [100], Frugtniet at [51] and Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 270 CLR 430 at [50].
28 The starting point for an examination of the question raised by Ground 1 is the identification of the decision under review. Here, the Tribunal was conducting a review under s 500(1)(ba) of the Act of a decision made by a delegate of the Minister under s 501CA(4) of the Act. The decision being reviewed was the Non-Revocation Decision made under s 501CA(4). This was the decision that the Tribunal was being asked to remake. In doing so, the Tribunal was exercising all of the powers and discretions conferred on the delegate who made the Non-Revocation Decision: s 43(1) of the AAT Act. A relevant aspect of the decision under review was whether the applicant passed the character test: s 501CA(4)(b)(i) of the Act.
29 As a result, the Tribunal was standing in the shoes of the delegate to determine whether the applicant passed the character test as specified in s 501CA(4)(b)(i) (being the character test "as defined by section 501"). I do not consider that in undertaking that statutory task, the Tribunal was confined as to the scope of the review by the particular ground or criterion upon which the delegate had found that the applicant did not pass the character test (though, where the Tribunal relies upon different grounds, the Tribunal may be required to afford procedural fairness to the applicant as I set out below in my analysis of Ground 2). The applicant contended that I should reach the contrary conclusion on the basis of the reasons of Rares J in CPJ16. I am not persuaded that I should do so for the reasons that follow.
30 Both the applicant and the Minister agreed that the decision in CPJ16 did not strictly apply to the present case. That is because CPJ16 concerned a decision to refuse a visa under s 501(1) of the Act, whereas the present case concerns a decision not to revoke the mandatory cancellation of a visa under s 501CA(4). Nevertheless, the applicant contended that the reasons in CPJ16 have force by way of analogy. I see the force in that submission given that both provisions (s 501(1) and s 501CA(4)) ultimately lead to the exercise of a right of review before the Tribunal relating to the subject matter of whether, among other things, the applicant has failed to pass the character test.
31 As I have mentioned, the applicant's argument based on CPJ16 was raised by way of an analogy; it was not advanced as a decision that is strictly binding on me. In that sense, it is unnecessary for me to determine whether CPJ16 is plainly wrong as the Minister contended. However, as the applicant submitted that I should apply CPJ16 by way of analogy, I should explain the reasons why I am not persuaded that I should do so.
32 The position in CPJ16 was that the Minister's delegate had determined that the applicant had failed to pass the character test by virtue of s 501(6)(d)(i) of the Act: CPJ16 at [17]-[20]. On review, the Tribunal proceeded on the basis that its function was to decide the same questions in issue before the delegate, and no more: [40]. The Tribunal concluded that the applicant had not failed the character test by virtue of s 501(6)(d)(i) and rejected the Minister's application to include in the review the issue whether the applicant did not pass the character test on a different ground, being s 501(6)(c): [43]. It was the Minister that sought judicial review before this Court on the ground that the Tribunal had erred by failing to conduct the review according to law. Within that particular factual context, Rares J's reasons disclose concerns held by his Honour as to matters relating to procedural fairness. This is apparent from what Rares J said at [58]-[59]:
Here, the delegate confined the inquiry as to whether the applicant could satisfy him that she passed the character test, within the meaning of s 501(1), solely to the consideration of the criterion in s 501(6)(d)(i). I reject the Minister's argument that other criteria in s 501(6) remained open to consideration on a review of the delegate's decision. It is apparent from the terms of s 501(6) that the delegate had eliminated from the scope of his consideration any other potentially adverse criteria, because, it should be inferred, he had considered that they could not, or did not, arise.
The evidence before the Tribunal showed that the delegate's view was that the only matter in s 501(6) about which he required the applicant to satisfy him was that under s 501(6)(d)(i). In that factual context, the delegate had informed (at least by necessary implication) the applicant that she did not need to address specifically any criteria in the character test other than s 501(6)(d)(i), for the purposes of satisfying the delegate that she passed that test. It was obvious on the material before the delegate that there was no need to ask the applicant; eg whether she had a substantial criminal record as a result of being sentenced to imprisonment for more than 12 months, as provided in s 501(6)(a), because she had received only the one sentence of imprisonment of 28 days. Likewise, many of the other criteria in s 501(6) could not have applied to her on the facts; eg she had not been the subject of an adverse security assessment by the Australian Security Intelligence Organisation within the meaning of s 501(6)(g).
(Emphasis added).
33 These passages expose a concern as to the particular factual context and, specifically, as to the way the decision was made by the delegate and the evidence before the Tribunal about that decision-making. That his Honour was concerned about the apparent or actual denial of procedural fairness is writ large in his Honour's conclusion at [68]:
The delegate had invited the applicant to satisfy him, in accordance with the rules of procedural fairness, on that sole matter of concern, namely s 501(6)(d)(i). That confined the scope of the review under s 43(1) of the Administrative Appeals Tribunal Act to the question whether, first, the applicant had passed the character test in s 501(6)(d)(i) and, secondly, only if she did not, how the Tribunal should exercise its power under s 501(1). And because the failure of the applicant to satisfy the delegate about the criterion in s 501(6)(d)(i) was the ground of his decision in the exercise of the power under s 501(1), that ground confined the issues on the review.
(Emphasis added, and emphasis from original retained in underline).
34 It is by reference to this particular factual context that I consider that caution needs to be exercised in applying CPJ16 by way of analogy given that it appears that Rares J's conclusions were informed by the specific decision-making process in that case.
35 In any event, to the extent that CPJ16 has any application beyond its factual context, I am persuaded that I should not follow it even by way of analogy. Even though it is not strictly necessary for me to determine whether CPJ16 is "plainly wrong", I have had regard to authorities concerning that test in being persuaded that I should not follow CPJ16. In La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204, Burchett J cited Halsbury's Laws of England, 4th ed, vol 26, para [580] for the proposition that "a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong". In BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; (2020) 283 FCR 97 (Allsop CJ, Moshinsky and O'Callaghan JJ), the Full Court stated at [62] that, as a matter of comity, a single judge exercising the original jurisdiction of this Court should follow a decision of another single judge exercising the same jurisdiction unless persuaded that that decision is plainly wrong.
36 I am conscious of the matters raised by Allsop CJ in FAK19 at [21] and [30] as to the question of consistency and comity that should weigh upon a single judge's approach to the application of a decision of an earlier single judge's decision. That is all the more important and requires careful reflection when an argument is raised seeking to rely upon the earlier decision by way of analogy. Here, I have balanced the need to ensure that I do not decide more than is necessary as against the need to explain my reasons for not following, even by way of analogy, CPJ16. As a result, I have reflected carefully on whether I am persuaded that I should not follow CPJ16, especially as it was decided by an experienced former judge of this Court. I have come to the conclusion that I am so persuaded and it is necessary for me to explain why.
37 In my view, Rares J conflated the separate but related questions as to the scope of the review and a denial of procedural fairness, and drew more from Shi than that for which the decision stands. Insofar as the scope of the review was concerned, Rares J identified that the Minister had submitted that the Tribunal was to make the "correct and preferable decision" (at [51]), but does not appear, in the critical parts of his Honour's reasons at [56]-[71], to have dealt squarely with the proposition drawn from Frugtniet at [14]-[15] that the Tribunal was required to ask itself the same question raised by the statute that the delegate was required to address. The emphasis on answering the same question raised by the statute to which I have referred raises an important distinction between the Tribunal attending to its statutory task of answering that question, as opposed to answering that question in the way that the delegate has. In Frugtniet, Kiefel CJ, Keane and Nettle JJ stated at [15]:
As Kiefel J observed in Shi, identifying the question raised by the statute for consideration will usually determine the facts that may be taken into account in connection with the decision. The issue is one of relevance, to be determined by reference to the elements of the question necessary to be addressed in reaching a decision.
(Emphasis added).
38 It is the statutory question that determines the facts that may be taken into account in connection with the decision. That is so because the role of the Tribunal is to determine the correct or preferable decision that attends to the statutory question. As Bowen CJ and Deane J stated in Drake at 589:
The function of the Tribunal is, as we have said, an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has been lawfully made in pursuance of a permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal.
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.
(Emphasis added).
39 Thus, the decision under review is the one that the statute requires to be made. This is what Kiefel J made plain in Shi at [133] where her Honour stated that:
… it is not possible to apply s 43(1) to the facts of any case without determining, first of all, what is the decision under review. It may therefore be appreciated that the decision, and the statutory question it answers, should be identified with some precision, for it marks the boundaries of the review.
40 In the instant case, by dint of s 500(1)(ba), the decision under review was the decision made under s 501CA(4). Relevantly, by s 501CA(4)(b)(i), the statutory question that had to be remade was whether the Tribunal (standing in the shoes of the Minister) was satisfied that "the person passes the character test (as defined by section 501)". The statutory question to be answered was whether the applicant passed the character test as defined by s 501. It was not confined to the ground upon which the delegate had relied.
41 In CPJ16, Rares J appears to have conflated an examination of the statutory question under consideration, which is fundamental to the review before the Tribunal, with the separate but related question as to the way or manner in which the delegate determined that question. The way the delegate has attended or answered the question may well raise questions as to procedural fairness before the Tribunal if the Tribunal seeks to decide the matter on a different basis to the delegate but this does not alter the ambit or scope of the review - the review remains one where the Tribunal is tasked to remake the decision that is under review by attending to the statutory question at hand.
42 Further, in considering that the scope of the review before the Tribunal was limited to the ground upon which the delegate had determined the statutory question, Rares J relied upon Shi (as the applicant does in this case) in a way that, in my view, went beyond what that decision stands for. The facts in Shi involved a decision made by the Migration Agents Registration Authority (the Authority) to cancel the registration of Mr Shi as a migration agent registered under s 303(1) of the Act on the grounds that he had breached the relevant "Code of Conduct" and was not a person of integrity or a fit and proper person to give immigration assistance. Section 303(1) of the Act under consideration in Shi provided as follows:
(1) The Migration Agents Registration Authority may:
(a) cancel the registration of a registered migration 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.
43 In making its decision, the Authority found against Mr Shi on two, only, of the five criteria specified in s 303(1). The Authority was satisfied of the matters in s 303(1)(f) and (h). On Mr Shi's application for review, the Tribunal set aside the Authority's decision and substituted its own decision to the effect that Mr Shi be cautioned on certain terms and conditions that are not presently relevant. In doing so, the Tribunal had regard to the facts and circumstances as at the time of the review. On appeal to the Federal Court, at first instance it was found that the Tribunal was limited to taking into account the facts and circumstances as at the time of the decision made by the authority and not as at the time of the review (per Edmonds J), and that decision was upheld by a majority of the Full Court (per Nicholson and Tracey JJ; Downes J dissenting). The questions before the High Court were whether in the application for review the Tribunal was restricted to considering the facts and circumstances as they existed at the time of the Authority's decision and whether the Tribunal had the power to impose certain conditions in relation to Mr Shi's future conduct: Shi at [24] (Kirby J), at [81] (Hayne and Heydon JJ), at [116] (Crennan J) and at [119] (Kiefel J).
44 Kirby J did not consider that the language or purpose of s 303 supported a contention that "the review was limited to the particular time in the past when the decision was made" by the Authority: at [47], [49]-[50]. Hayne and Heydon JJ concluded that the provisions of the Act "contained no temporal element": at [101]. The reasons of Kirby J and of Hayne and Heydon JJ did not seek to distinguish between the different grounds contained in s 303 as to which were temporally limited or not (though Hayne and Heydon JJ at [101] focussed upon the ground in s 303(1)(f)).
45 The decision of Kiefel J (with whom Crennan J agreed) identified a distinction between the ground in s 303(1)(f) and that in s 303(1)(h). In relation to the question of whether, for the purpose of s 303(1)(h), Mr Shi had complied with the Code of Conduct, Kiefel J held at [146] that the nature of this finding was confined to conduct that had occurred to a point in time, because the language of s 303(1)(h) was whether the relevant migration agent "had not complied with the Code of Conduct", and noted that the Mr Shi had "accepted as much" in his submissions. This led her Honour to conclude that the question before the Tribunal in relation to s 303(1)(h) was not whether the applicant had breached the Code of Conduct "in any respect, but whether those identified by the Authority" were established: at [147]. However, in relation to s 303(1)(f), Kiefel J reasoned at [148]-[149] that the question of whether the relevant agent was not a person of integrity or not otherwise a fit and proper person was not temporally limited to a point in time.
46 In the proceedings before me, the applicant contended that Kiefel J's reasoning at [147] in relation to the operation of s 303(1)(h) - that the review was confined to those identified by the Authority - applied, and that Rares J was correct in CPJ16 to have relied upon it to conclude that the review was confined to the character grounds found by the delegate. The Minister contended that Kiefel J's reasons as to s 303(1)(h) were the minority view as the judgment of Kirby J and the joint judgment of Hayne and Heydon JJ did not come to that conclusion. For my part, I read Kiefel J's reasons as expressing the minority view in relation to s 303(1)(h) in the result, but it does not matter. That is because I do not consider that Shi decided questions that are relevant to the disposition of the matter before me. The High Court was relevantly dealing with a question as to whether, on the proper construction of s 303, the Tribunal was confined to considering the facts and circumstances that prevailed as at the time of the decision as opposed to those that prevailed at the time of the review.
47 Despite this, in CPJ16, Rares J relied upon passages from Shi in support of the conclusions reached by his Honour. In particular, at [62], Rares J extracted the following passages from the decision of Hayne and Heydon JJ in Shi at [95]-[96]:
The decision which was the subject of the Tribunal's review, and which is at the centre of the present proceedings, was a decision of the kind identified in s 303(1)(a) of the Migration Act - a decision to "cancel the registration of a registered migration agent by removing his … name from the register". The grounds on which MARA acted in exercising that power were those identified in s 303(1)(f) and (h) - that MARA was satisfied that the appellant "is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance" (para (f)) and that "the agent has not complied with the Code of Conduct prescribed under section 314" (para (h)).
The Tribunal's task
In reviewing MARA's decision to cancel the appellant's registration, the Tribunal was empowered (by s 43(1) of the AAT Act) to exercise all the powers and discretions conferred by the Migration Act on MARA. The questions for the Tribunal in reviewing the cancellation decision were first, whether the Tribunal was satisfied that either of the s 303(1) grounds said to be engaged in this case was made out, and secondly, whether the Tribunal should exercise the powers given by s 303(1) to cancel or suspend the appellant's registration or to caution him. That is, the first questions for the Tribunal were whether it was satisfied that the appellant "is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance" and whether it was satisfied that the appellant had not complied with the Code of Conduct.
(Emphasis in original).
48 Rares J then extracted in CPJ16 at [63] and [65] the following passages from the decision of Kiefel J (with whom Crennan J agreed on this issue) in Shi at [142], [146]-[147]:
In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address [Hospital Benefit Fund (1992) 39 FCR 225 at 234]. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunals general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.
[…]
The question which here arose for the Authority under s 303(1), which it answered, was whether it should exercise its powers, under paras (a) to (c) of the sub-section, because the grounds in paras (h) and (f) were established, in particular because the appellant had breached the Code of Conduct. That part of the decision which comprises the finding, that the ground in para (h) had been made out, was referable to conduct which had occurred to a point in time. That is the nature of the finding required by the provision. It follows that the Tribunal was restricted to a consideration of events to that point and not those occurring later, in determining for itself whether there had been non-compliance with the Code. The appellant accepted as much in his submissions.
The question for the Tribunal is not whether there has been a breach by the appellant of the Code in any respect, but whether those identified by the Authority are established. It may use its own evidence-gathering powers to further inform itself about those matters, but those powers do not translate to general investigatory powers and cannot be used to ascertain other, inculpatory, conduct.
(Emphasis in original).
49 Rares J observed at [64] that none of the justices in Shi "suggested that the Tribunal was at large to consider, on the review, the grounds that the decision-maker could have, but did not, determine adversely to the person seeking the review" and acknowledged that this was not in issue before the High Court, stating that "this possibility did not appear to have been expressly in issue before the High Court". Despite acknowledging these matters, Rares J concluded as follows at [66]:
I am of opinion that the Tribunal's task in determining, on a review, what is the correct or preferable decision must be connected to the grounds of the decision to exercise the statutory power the subject of the review, as exposed in the statement of the delegate's findings and reasons, so that the character of the review can be shaped by that consideration. Once the challenged ground for the decision-maker's exercise of his or her power is identified, the Tribunal must make its decision having regard to the evidence, submissions and factual context at the time of its decision: Shi 235 CLR at 329-330 [146]-[149].
50 It appears that Rares J relied upon Shi in support of the conclusion in the first sentence of the extracted paragraph. However, as his Honour acknowledged at [64], this was not a matter that was addressed by the High Court in Shi. The High Court was not determining the question of whether the scope of the review was confined to the two grounds upon which the Authority had been satisfied that Mr Shi's registration should be cancelled - that question did not arise because the Tribunal did not make findings outside the two grounds that the Authority had relied upon. Further, it is also evident that to the extent that Kiefel J reasoned in Shi at [147] (being a passage relied upon by Rares J in CPJ16 and the applicant in this case before me), that the "question for the tribunal is not whether there has been a breach by the appellant of the Code in any respect, but whether those identified by the authority are established", her Honour was addressing the question as to the temporal limitation arising from s 303(1)(h) and which was a minority view in the result. To the extent that it was not the minority view, it was at best obiter given that her Honour proceeded on the basis as expressed in Shi at [146] that the applicant, Mr Shi, had accepted that point.
51 For these reasons, I am persuaded that I should not follow CPJ16.
52 Returning to the present case, as I have already mentioned, the decision under review here was that made under s 501CA(4) not to revoke the original decision to cancel the applicant's visa. The text of s 501CA(4)(b)(i) makes it plain that critical to that decision was whether the Minister or the delegate was satisfied that the applicant passed the character test as defined by s 501. Section 501(6) contains a definition of the character test, which enumerates several different circumstances where an applicant may, or will, fail the character test. In respect of this aspect of the decision, the Tribunal was to stand in the shoes of the delegate to remake that decision, which necessarily involved an examination of whether the applicant had failed the character test. As was recognised in HZCP at [58], it is possible that the Tribunal may come to a different view to the delegate as to whether the applicant failed to pass the character tests on different grounds to those found by the delegate, if at all. It may be that (as discussed further in my consideration of Ground 2), to the extent that the Tribunal made an adverse finding to the applicant that he failed the character test on separate or additional grounds, this was a matter which the Tribunal was obliged, as a matter of procedural fairness, to draw to the applicant's attention. However, for the reasons stated above, I consider that the question of procedural fairness is distinct in this case to the question of the scope of the review.
53 Nor do I consider that the scheme of the Act which enables the applicant to make representations under s 501CA(3) alters the result. As the Minister submitted, the appellant was entitled to make those representations to the delegate as to why the Original Cancellation Decision should be revoked. Those representations formed part of the material before the Tribunal, but there was additional material before the Tribunal including the parties' respective SFICs and evidence called by or on behalf of the applicant. The Tribunal had to make the statutory decision by reference to all of this material. It was the Tribunal's statutory function to form its own view as to the correct or preferable decision and, in undertaking that task, it was legitimate for the Tribunal to be guided by the parties as to the salient issues and to accept relevant admissions: Perpetual Trustee Company (Canberra) Ltd v Commissioner for Australian Capital Territory Revenue (1994) 50 FCR 405 at 418-419.
54 I also do not regard ss 501(6H) and (6J) as operating in a way so as to limit the scope of the review to the matters determined by the delegate. As the High Court made clear in Uelese at [57], s 500(6H) should not be construed to restrict the flexibility of the Tribunal to ensure procedural fairness to the parties to a review beyond what is required by its terms. The provision does not fetter the power of the Tribunal to adjourn a review, so as to ensure that the review is conducted thoroughly and fairly. Sections 500(6H) and (6J) do not restrict the operation of the AAT Act in respect of the obligations imposed on the Tribunal to ensure that every party to a proceeding is given a reasonable opportunity to present their case, to adjourn proceedings, or to require any party to provide further information in relation to a proceeding: Uelese at [57], [70], [77]; and DOM19 at [17] and [32].
55 For the above reasons, the Tribunal did not exceed its jurisdiction by asking itself the "wider question" of whether the applicant failed the character test on grounds other than those on which the delegate had relied. Accordingly, Ground 1 fails.