Shi v Migration Agents Registration Authority [2007] HCATrans 601 (5 October 2007)

Last Updated: 9 October 2007

[2007] HCATrans 601

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S230 of 2007

B e t w e e n -

NELSON GUANG LAI SHI

Applicant

and

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

Application for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 OCTOBER 2007, AT 12.24 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with my learned friend, MR N.C. POYNDER. (instructed by Kessels Goddard & Ajuria)

MR S.B LLOYD: I appear in this matter for the respondent. (instructed by Australian Government Solicitor)

HEYDON J: Mr Lloyd, it might be convenient if we heard from you first. The appeal is from the decision in which Justice Downes dissented. Apart from the fact that Justice Downes is the President of the Administrative Appeals Tribunal, there does seem some force in his reasoning. Is it not, in this division of opinion, a case which might attract special leave?

MR LLOYD: Your Honour, my submission is that in relation to what Justice Downes said, his Honour adopts the approach or perhaps my friends adopt the approach of his Honour in giving emphasis to the concept of administrative law being a continuum and advances the proposition. At page 155 in paragraph 41, two propositions there, one which we do not disagree with, which is that the Tribunal should, at least as a general principle, have regard to “the most up to date information” but that leaves aside the question of the nature of the question. We never disputed that the Tribunal should have regard to the most up-to-date information, but it has to be relevant to the issue. His Honour says at the end of that paragraph:

Suppose the Tribunal considered that the material before the Authority did not justify cancellation, but the agent had subsequently committed a serious criminal offence -

as if to say what the Tribunal should do in such a case is it should affirm the decision. We say that would be clearly wrong, that there is procedural fairness and other reasons why the Tribunal is not in a continuum of that kind.

Under section 309 of the Migration Act there is a provision for providing natural justice. The Migration Agents Registration Authority has to say “We are thinking of cancelling you and these are reasons why”, and then the applicant gets a chance to respond to that. That matter then goes for further reflection by the Migration Agents Registration Authority under section 303 and if the Migration Agents Registration Authority becomes satisfied on the basis of the things which the person has had an opportunity to respond to, then things may follow - - -

HEYDON J: What is there to stop the AAT adopting that course? I know that it is spelt out in terms in the Migration Act, but if you are going to decide a case against someone for something like a serious criminal offence, you would not do it without informing them of what it was you were going to do so that they could supply material about it and put arguments about it.

MR LLOYD: Certainly, your Honour, but of course the Administrative Appeals Tribunal is a review body. It has had to review the decision. One has to look at the ambit of the decision which is being reviewed. Its powers are limited to the ambit of that decision. In my summary of argument I referred the Court to a decision of the Full Court in Ahmed. On page 184 of the book there is a quote from that case. What their Honours say in that case is what the AAT have to do – and I do not think there is any dispute about this – is address the same question as was addressed by the Tribunal. Obviously it can answer that question differently. To that extent, the Tribunal does stand in the shoes of the primary decision-maker, but it does not have a wider substantive jurisdiction. It cannot go beyond the original ambit of what was the basis for the cancellation decision in this case.

That being so, in my submission, there is not the kind of continuum that there is in a lot of other areas. We do not dispute that the concept of a continuum – although we would say that to the extent that my friends and Justice Downes refer to administrative law as ordinarily being a continuum, the concept of it ordinarily being a continuum is, in a sense, with respect, unhelpful, because if “ordinarily” just means statistically more often than not, it does not tell you anything about the case. If it means there is some kind of presumption that there is a continuum, then we say that is wrong. There are no presumptions of that form. It is just a matter of looking at what the statute requires.

In my submission, in this case, what the statute requires is the same kind of thing as is discussed in Ahmed, which is to look at the boundaries of the administrative controversy. The boundaries of the administrative controversy was, “We have made certain allegations against you, you have commented upon them and we are satisfied that you did these things and we are satisfied that this is what should flow as a result of it at this particular point in time”. There is then a review. The applicant gets a stay and then seeks after that to sort of improve their position and say, “Well, sure we did do a lot of things bad in the past, but we are better now and you should have regard to the fact that we have done things that are better”.

We say, in the same way, that the Tribunal could not and should not have a look at new things that happened in the past. It should not have a look at new adverse things such as a new criminal offence or a bankruptcy or something that happened after the decision. In the same way the applicant who cannot just through the virtue of getting a stay say, “Well, I have improved my position now and I can show you that I really can do it okay”. These are all breaches of a code of conduct. Everyone could do it okay. There is no problem – it is not like it is an impossibility. This applicant chose not to do it and then seeks now to improve his position by conduct done after the decision, which we submit is outside the administrative controversy.

Your Honour asked why the AAT could not do it. In my submission, the AAT is undertaking a review. If, for example, the applicants are right and it is open to the AAT to, as it were – it is a continuum and it is open to my client to then go to the AAT and say, “Well, other things have happened. We have kept exploring and here are another 50 errors or another 50 mistakes with the applicant’s breaches of code of conduct”. Then the Tribunal will have to make findings of fact on that.

Now, that would be a fresh area, a primary decision in relation to those factual allegations, and there will then be no scope for review. The legislation, however, is premised upon the existence of a review right. So if the Tribunal stands so much in the shoes of MARA that it has this freestanding ability to just take into account anything up to the time of its decision, then, in my submission, at least in relation to everything after my client’s decision, it is making primary decisions in relation to all those factual matters and not undertaking a review of the kind envisaged by the legislation. The other matters - - -

HEYDON J: Can I just raise one other potential problem. Justice Nicholson seemed to analyse sections 303 and following as being disciplinary provisions which were intended to permit the exertion of effective discipline over migration agents and he seemed to see disqualification as a sort of punitive disciplinary result. Is that not rather questionable? I know this distinction has been criticised in another context, but is it not more a question of protection of the public, rather like a solicitor being struck off, if the need for protection seems to have changed with the passing of time. It is not a question of punishment for past contraventions, but simply an assessment of present fitness.

MR LLOYD: Yes, your Honour. But the way that the public is protected is by having a disciplinary regime that, as it were, has teeth and one where there are sanctions is something that sends messages to migration agents which says, “You are expected to comply with the code of conduct and, if you do not, something will flow as a consequence of that and, not that you can rely upon a stay to then say, ‘I did not comply with it then but now I have and I can do it’”. Obviously all the things that he did not do, he could have done.

In my submission, his Honour in discussing the fact that it is a disciplinary regime is not suggesting that there is any sort of Chapter III punishment issue, but it is commonplace in all these registration regimes if somebody breaches codes of conduct that sanctions can happen. That is for the purposes of having an effect upon the general body of registered people so as to protect the community in that way. In my submission, it is not inconsistent with referring to it as being a disciplinary regime for it to have the purpose which your Honour mentions.

HEYDON J: I interrupted some further points you were going to make.

MR LLOYD: I think, your Honour, I was going to say something about my friends in their summary of argument place some emphasis upon section 43 of the AAT Act and the fact that there is a remitter to my client - there is a possibility anyway of a remitter to my client - and suggesting that my client would be able to have regard to a broader range of matters and that would be unusual.

In my submission, there are two answers to that point, which is the answer I gave in my summary of argument, which is at least where the remitter is under section 43 and it is, in effect, fairly open - the original decision is set aside and it is remitted back with just some directions, then that has, as it were, dissolved the administrative controversy because some findings have been made which my client might be fixed with, but there is no decision any more because it has been set aside. So my client is then open to take other things into account. That is one point of distinction.

The other is that, at least as I understand my friend’s submissions, they accept that there are a number of cases, like the Aged Care v Kenna Case, the Akai Case where decisions in the AAT are limited to time. Now, they were also decisions where section 43 and the power to remit applied. So there is nothing, in my submission, that arises from section 43 that would lead to the result that the Tribunal has to have regard, has to be able to have regard to more recent events, because in those cases, which are not said to be wrong, although section 43 applied, that did not happen.

The other matter is there is a second ground which, in our submission, is sufficient to support the orders of Justice Edmonds. The applicants, although they challenge it, do not advance it as having a special leave point and we say it is not one. There was discussion before the Tribunal as to whether or not it could make a decision which restricted, as it were, the registration of the applicant. That is at page 83 in paragraph 14.

It was accepted by the parties that they could not do it, at least not in that guise, and the Tribunal has gone away and in the guise of a power to make conditions for lifting a caution, they say that they can, in effect, achieve the same result. Both Justice Downes and my friends say that is right. They do not walk away from the fact that it is a form of conditional registration, but they say that it is okay. In my submission, that is not. The Tribunal had to make a finding in this case, is this person fit and proper to be a migration agent? They found that the person was.

Migration agents are allowed to do certain things. In my submission, it is inconsistent with that finding and with an Act which says that you cannot be registered unless you are fit and proper to then say, “Well, though you are fit and proper, I do not really want you to do protection visa cases because you muck them up a lot, at least not for three years and in relation to all your other cases, although you are fit and proper, I want you to be supervised”. It is our contention that conditions in those terms are inherently inconsistent with the notion that you are fit and proper to be registered to do all these things.

So there is nothing that actually stops Mr Shi from in fact doing all these things. It is just a condition for whether or not the caution will be lifted, by which the legislation means removed from my client’s website and the register. In my submission, the power to have conditions for lifting caution does not extend to a power that conditions, in fact, your rights to be a migration agent and to do what migration agents are allowed to do. An example would be if you were found, for example, not to have a trust account, which is in breach of the code of conduct, there might then be a caution which says until you have a trust account there is a caution on the thing saying, “This person does not have a trust account”, and it is lifted when you do it, or if you do not have the requisite library, it is lifted when you get it, or if you have not done the training, there are CPD type requirements. If you have not done the training, then it is lifted when you do it.

That, in my submission, is the ambit of it, not to have conditions which seek to undercut the idea that you are a fit and proper person to do the whole things which the right of registration gives you. Now, if that ground is not laid out, that is, in itself, enough to sustain Justice Edmonds’ orders, although I accept the other ground has consequences still. The only other point I make, your Honours, is that in relation to Justice Nicholson’s decision, his Honour sets out at paragraph 10 a summary of a number of cases. In my submission, those principles are well established, primarily by the authority of the Federal Court, but I think upon occasion possibly from this Court. There is no real dispute about those principles.

It is just a question of the application of them in the circumstances of this legislation. Justices Nicholson and Tracy, in my submission, applied them correctly. It is correct to think that where someone could only make a decision after a process of procedural fairness and notifying what the ambit of the facts are in dispute that the administrative controversies limited to those matters and in those circumstances to find that there is not the continuum that my friends rely upon and that your Honours should not find
that this is a matter which warrants a grant of special leave as not being a matter of general application. May it please the Court.

HEYDON J: We need not trouble you, Mr Game. There will be a grant of special leave. How long is it anticipated the appeal will take, Mr Game?

MR GAME: About half to two thirds of a - not a full day, I would not have thought.

HEYDON J: A Thursday case? Yes, very well. Thank you, gentlemen.

AT 12.43 PM THE MATTER WAS CONCLUDED