Kishore v Tax Practitioners Board

The case of Kishore v Tax Practitioners Board involved an appeal to the Federal Court of Australia against a decision of the Administrative Appeals Tribunal (AAT). Kishore, a tax agent, appealed the AAT's decision concerning his registration as a tax agent. The appeal focused on the AAT's response to threshold questions regarding whether certain conduct breached the Tax Agent Services Act 2009 (Cth). Specifically, the AAT determined whether the conduct in question could breach section 30-10(1) of the Act, which pertains to the Code of Professional Conduct for tax agents.

The primary legal issue before the court was whether an appeal lay to the Federal Court from the AAT's answer to a threshold question, specifically whether such an answer constituted an effective decision or determination of the application for review. This issue hinged on interpreting the scope of section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and distinguishing it from the decision in Director-General of Social Services v Chaney [1980] FCA 87; 47 FLR 80. The court had to determine if the AAT's answer to a threshold question was a final decision that could be appealed under section 44, or if it was an intermediate step that did not yet constitute a final decision.

The court held that the AAT's answer to the threshold question did not constitute an effective decision or determination of the application for review. The tribunal had not yet completed its review of the decision under appeal, nor had it affirmed, varied, or set aside the decision in question. The court applied the decision in Chaney, which established that appeals should not be made from non-determinative steps or intermediate directions, determinations, or decisions of the AAT. Therefore, the appeal was deemed incompetent as the tribunal had not yet concluded its review process. The distinction between answers to preliminary questions and threshold questions was considered nominal rather than substantive.