Shi v Migration Agents Registration Authority

[2008] HCATrans 146

[2008] HCATrans 146

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S522 of 2007

B e t w e e n -

NELSON GUANG LAI SHI

Appellant

and

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 28 MARCH 2008, AT 11.29 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the appellant with MR N.C. POYNDER.  (instructed by KGA Lawyers)

MR S.J. GAGELER, SC:   If the Court pleases, I appear with MR S.B. LLOYD for the respondent.  (instructed by Australian Government Solicitor) 

KIRBY J:   Yes, Mr Game.

MR GAME:   If the Court pleases, the principal issue that was decided against us in the courts below can be seen in the decision of the Full Court.  It is reported at 158 FCR, but it is in the appeal book at page 401, an extract in Justice Nicholson’s judgment.  At page 401, or 530 of the report, paragraph 8, the point that was decided against us was that in effect Justice Davies’ judgment in Freeman and other cases presented a clear line of authority that the question – one sees towards the end of that passage that:

the question which the Tribunal had to ask itself was whether, as at that date –

that is to say, the date of the original decision –

the respondent was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance.

So the case was decided against us on the basis that the Tribunal had erred in exercising its review by having regard to evidence about events which had occurred since the original cancellation.  In Justice Nicholson’s judgment one can see – and it is at page 533 of the report or at page 405 of the appeal book, paragraph 16 – his Honour concluded that:

In my view the context in which s 303(1) appears shows a clear intent that conduct falling short of that required by the Act in relation to migration agents shall lead to the appropriate disciplinary result as at the date of the conduct being established.

Then the important words are:

There is nothing from which to infer that later evidence of a rehabilitative nature or other character evidence should be taken into account.  On the contrary . . . 

Applying the principles set out above from the authorities, I am unable to agree that it was open to the Tribunal to take into account evidence occurring after 14 July 2003, save as any such evidence may have cast light upon the decision as at that date.

Now, I will come to this in due course, but there is no doubt that the Tribunal had regard to what might be described as rehabilitative evidence of things that occurred after 14 July 2003.  Your Honours will appreciate that a stay was imposed – and I will come to that in due course – which had the effect that Mr Shi continued to practise from 14 July 2003 under conditions that he be under supervision and that he not give advice in relation to protection visas.

KIRBY J:   Who granted that stay?

MR GAME:   If your Honour goes to appeal book page 250, what happened was that a stay was obtained at first instance in the Federal Court before Justice Tamberlin on 14 July 2003.  That stay contained the two conditions, which I have just mentioned.  Then since that time ‑ ‑ ‑

KIRBY J:   Is that in the appeal book?

MR GAME:   Justice Tamberlin’s judgment is not, no.  The reference to Justice ‑ ‑ ‑

KIRBY J:   That was purely on the stay question, was it not?

MR GAME:   Yes. Sorry, I do have another page about that. The actual condition can be seen at page 328 in the decision of the Tribunal and the Federal Court decision of Justice Tamberlin. I will just give your Honours the decision reference. It is 134 FCR 326. So if you look at page 328 of the appeal book, you will see at line 20 that:

Since 31 July 2003, a stay has operated in relation to that decision and is subject to the condition that Mr Shi is supervised by another migration agent and his undertaking not to engage in any business relating to protection visas.

That is the situation that has pertained since that time. Now, if you go back to page 250, you will see that there were a number of, as it were, cascading decisions made in respect of the appellant. They also were all stayed either by the Federal Court or by the Tribunal under section 41(2) of the Administrative Appeals Tribunal Act.  So that is where the situation stood.  So Mr Shi continued to practise from 14 July 2003 and he continued to practise under supervision.

MR GAME:   No.  Justice Tamberlin’s decision came before the Tribunal made its determination.

KIRBY J:   So it was in protection of the appellant before the Tribunal.

MR GAME:   That is correct, yes.

KIRBY J:   It may not matter, but why would the Federal Court become involved to protect the jurisdiction of the Tribunal?

MR GAME:   Because of a perceived failure to properly exercise the powers that the Tribunal had under section 41(2) of the Administrative Appeals Tribunal Act.  That is how it came before the Federal Court.

KIRBY J:   All of this may be a bit of a red herring for the two issues we have to consider.

MR GAME:   Yes, it is, but it may not be a red herring in respect of the second issue but that is true, apart from that, your Honour.  Now, your Honours, our fundamental argument in this case ‑ ‑ ‑

KIRBY J:   It is very curious that this issue has not arisen for final determination before this, I mean, given that this is something that must have arisen on the very first day the AAT opened its doors.

MR GAME:   Your Honour, we would submit that it has been decided and decided many times that there is no, shall I say, default position which takes you back to the time at which the decision was made. There may be decisions, and there may be many decisions, in which that would be appropriate because of the nature of the decision under review. But there is no, as it were, prima facie position that you, as it were, exercise the powers under section 43 of the Administrative Appeals Tribunal Act by reference or constrained by, as it were, the date on which the original decision was made.

KIRBY J:   You contest the application in this context of this Tribunal of Justice McHugh’s presumption in Strange‑Muir?

MR GAME:   Yes, your Honour.  What Justice McHugh said ‑ ‑ ‑

KIRBY J:   Do not go off your track on that.

MR GAME:   No, that is fine, your Honour.  What I will say about that is that what Justice McHugh said in Strange‑Muir was, if one reads Strange‑Muir closely, not joined in by your Honour and not joined in by Justice Priestley.  You can see that in the decision.  Your Honour dissented on this question.  Section 20 of the Act under consideration can be seen at page 240 and the critical words there are “more entitled to be appointed”.  Then in Justice Priestley’s judgment at page 246, his Honour said:

I have reached the same conclusion as he has done –

that is Justice McHugh –

although for my part I am content to rest my opinion upon a reading of the words of the section in the context of that Act as a whole.

KIRBY J:   Justice McHugh founded his reasons on a general proposition that where you have administrative review by a Tribunal of an administrative decision, it is of the general character of that procedure that the review goes back to decide whether the original decision‑maker made the right decision on the material before him or her.  That was a general principle that he embraced.

MR GAME:   Yes.  We submit that there is no such general principle.  Before I go further, if I just take your Honours directly to re Coldham 170 CLR 267 because that is the passage where it is picked up, but it is by no means adopted. The relevant passage is at 273 where there is a reference to what his Honour Justice McHugh said in Strange‑Muir.

KIRBY J:   This is four years after His Honour wrote that decision.

MR GAME:   Yes, and His Honour was a member of the Full Court in this Court in Re Coldham.  At page 273, at about point 7:

Be that as it may, it is well settled that, when the legislature gives a court the power to review or hear an “appeal” against the decision of an administrative body, a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings –

Then it goes on to say, “Nevertheless” and then it speaks of a court or an administrative body “must ultimately depend on the terms of the statute”.  Then two things were seen as being of critical importance here, it would seem; 88F(3) “take further evidence”, 88F(4) “make such order as it thinks fit”, and we have both of those features present in the Administrative Appeals Tribunal Act. And then before departing with that case, about point 7 on page 274:

The effective administration of the Act made it a matter of importance that an association should not be registered if its members might conveniently belong –

et cetera.

KIRBY J:   So essentially the Court there came back to the language of the particular statute.

MR GAME:   Yes.

KIRBY J:   And that is what this Court has been saying in many contexts in recent years, so that ultimately we have to go to this statute and see how it operates in its purpose to achieve what it set out to do, which is a rather radical change of administrative law. 

MR GAME:   Yes.  We would say that Mr Gageler’s argument really wants the Court to turn the administrative law boat around and face it in a very different to which it has been travelling for some time.  But at point 4 on 274 there is the other bit which I meant to pick up, which is:

It seems most unlikely that the legislature intended that, on an appeal under s. 88F, the Commission had to register or confirm the registration of an association notwithstanding that, at the date of the appeal, the association no longer complied with the prescribed conditions.

We would submit that there are analogous considerations in a case such as this where a Tribunal exercises a review function operating upon section 303 of the Migration Act, which includes a determination as to whether or not a person is a fit and proper person.  I will come to section 303 shortly.  May I just refer to one other decision in this Court at this moment because it is convenient to do so in the context of referring to Re Coldham. 

In the fairly recent decision of this Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission 203 CLR 194 – these are well‑established principles set out at pages 203 to 204 – I just wanted to draw your Honours’ attention to what appears at paragraphs 15 and 16 because, we submit, that is the kind of review function that we are concerned with in respect of the Administrative Appeals Tribunal Act, coupled with sections 303 and 306 of the Migration Act.  So again this Court has emphasised in that case the two factors, the taking of evidence and making such order as it thinks fit.

Now, I propose to take your Honours, but briefly, I hope, through the relevant provisions of the Administrative Appeals Tribunal Act and then relate that to the provisions of the Migration Act to see how the review function operates.  Could I take your Honours to the Administrative Appeals Tribunal Act and to the extent that I am repeating matters that your Honours are already well and truly familiar with I apologise, but I will attempt to do so fairly briefly.

May I take your Honours first to this. Your Honours should have Reprint No 10. There is one amendment that I will refer to. We have provided your Honours with a bundle which there is no need to go to. Reprint No 10 is fine for this exercise but I will just point out any relevant changes. If I may take your Honours to section 25 first. Section 25 does not tell you what the nature of the review is but it is the provision which, coupled with the relevant provision of the Migration Act, provides the jurisdiction to review, if I could put it that way.

Section 25(4A) is worth noting, but it was brought in and there is no need to go to the amending legislation but that was brought in on 16 May 2005 before the Tribunal’s decision. That is to be found in No 38 of 2005. So that provision came in during the course of the Tribunal’s consideration of the case. Section 26 is a provision that might be noted. Section 26 provides that:

the decision may not be altered otherwise than by the Tribunal –

and then it goes on.  This contemplates the possibility that there will be proceedings before the Tribunal and there will be an ongoing process in which a decision is amended or changed.  That, we would say, is not a strong pointer but it points towards the idea which is reflected in the cases which is that the exercise of administrative power by the Tribunal relates to an ongoing or continuum of administrative function.

The next provision I wanted to take your Honours to is section 33.  Section 33, in effect, provides that the Tribunal may set the procedure by which it functions and:

is not bound by rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

Section 40 is a significant provision.  It is an evidence‑taking provision - may take evidence.  So there one has one of the indicators that we saw in Re Coldham of the kind of decision that we submit is the kind of jurisdiction and powers which are being exercised in this case.

Now, your Honours, 42D is a section which – before I go to 42D, 41(2) is a significant provision. Section 41(2) means that the Tribunal can stay the implementation of a decision, and there are words there:

of securing the effectiveness of the hearing and determination of the application for review.

Although 41(2) applies to many, many different circumstances, in the context of a case such as this, it would contemplate that insofar as section 306 of the Migration Act picks up the whole of the jurisdiction and powers of the Tribunal, it contemplates that a person in the appellant’s situation may in fact continue to practise during the course of the events leading to the ultimate review.

KIRBY J:   How does that touch on the first issue?

MR GAME:   We would say it touches on it this way because it contemplates that there may be a stay.  Of course there may not be, but if a stay is granted then a person might continue to practise.  A person might continue to practice subject to supervision so that it is not unexpected that when the Court ‑ ‑ ‑

KIRBY J:   You say might commit further defaults which should be taken into account in making the right or preferable decision?

MR GAME:   Yes, good or bad, when the Tribunal comes – you may recall that in Justice Nicholson’s judgment, the last of the list of propositions was that you can have regard to current material insofar as it touched on previous events, but when you were considering something like fitness to practise, it is quite unrealistic to break things up in respect of character or rehabilitation as to what might be retrospectively relevant or what might be presently relevant.  I have in mind also the decision of this Court in In re A Solicitor, the fact it has taken from Ziems the idea that in deciding fitness to practise of a solicitor, one has to look at the whole picture or the current picture.  That is the statutory context into which this case falls. 

Now, section 42D is another section that I wanted to refer your Honours to.  Section 42D(1) contemplates that a decision may be remitted to the primary decision‑maker and the primary decision‑maker may reconsider it.  But there is still a case on foot, as it were, in the Tribunal.  So this provision undermines, in our submission, the idea that there is a preliminary phase in which the Tribunal is required to, as it were, determine in some way the correctness or incorrectness of the original decision.  That might be the very last thing the Tribunal does, or in a situation such as this, it might never do that because it might remit the matter ‑ ‑ ‑

KIRBY J:   I am wondering about that.  Is the scheme of the Act that under section 42D if the evidence given before the Tribunal is not simply a repetition of the evidence that was given below, but contains some new, additional, fresh, different evidence that the correct way for the Tribunal to resolve that issue is then in every case to return the matter back to the decision‑maker or is this power in 42D ancillary to the remaining obligation which the Tribunal has to decide the matter for itself, reaching the correct or preferable decision.

MR GAME:   Yes, I am not suggesting that in every case where there is new material, or even in many cases, that it would be appropriate.  I am just saying that section 42D makes it clear that the power of remittal is not, as it were, some final post error establishing exercise.  The power of remittal contemplates both that there was an original decision.  That decision is the subject of review.  That decision may be changed in the light of further events if it goes back to the original decision-maker.  It is hardly likely that a different, shall I say, jurisdictional framework would apply to the Tribunal reviewing that decision.

Now, then one comes to section 43. Section 43 is obviously an important provision. It is not, as it were, the provision which grants the jurisdiction, it is the provision which, as it were, embraces all of the powers that the Tribunal may exercise. The idea, in our opponent’s submissions, that the word “may” somehow limits the exercise of those powers is not one that has been embraced by the cases. So one sees the words:

For purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred –

HAYNE J:   That is for the purpose of reviewing the decision, it is not for the purpose of making a fresh decision once the original decision has been set aside.  It is much broader than the latter.  It is for the purpose of reviewing.

MR GAME:   No, I am not arguing against that idea, your Honour.

HAYNE J:   I know you are not but it is important to identify the breadth of the expression which introduces the conferral of the powers and discretions otherwise associated with the decision‑maker.

MR GAME:   Yes, your Honour.  One sees in the cases that there are circumstances where exercising the powers and discretions might extend to things that could not themselves have been the subject of the review simply because of the very breadth of the words “powers and discretions”.  So, yes, I accept that entirely, your Honour. 

One comes then to the words in (i) “making a decision in substitution”.  That is the language of the broad notion of administrative review and we submit that in the Re Coldham sense one there has the two critical features which is supported, as we would put it, by the structure of the legislation.  Now, one goes from there to the Migration Act.

KIRBY J:   Is that neutral on the first issue, that is to say, the opening words of 43(1) are anchoring it in the original decision for the purpose of reviewing a decision and then when you looked at 43(1)(c)(i) it is making a decision in substitution for a decision so set aside.  So at least one could read those as being very much focused on the original decision and the argument would then be that that takes you back to reviewing and correcting that decision if it was wrong and it cannot be wrong on material that did not exist at the time it was made – that occurred later than when it was made.

MR GAME: Yes, your Honour, but it is, “For the purpose of reviewing a decision” that the Court “may exercise all the powers” so that our opponent’s argument, we would submit, is actually cut down by the opening words of section 43(1).

KIRBY J:   How do you advance that argument?

MR GAME:   Your Honour, you may not decide whether or not to substitute the decision with some other decision until the very last moment.  You review the decision.  Your review or the reviewing functions, shall I say, parameters or boundaries, are framed by the administrative context within which the decision was made and a whole lot of consequences may flow from that.  They may or they may not in the SZBEL sense define or limit what those issues are, but that is the context.  There is no step in the process where the Tribunal is required to embark upon an exercise of satisfying itself that some correct or preferable decision was not made and then, as it were, embarking on a second exercise, having been satisfied in some House v The King type of way of discretionary error.

HAYNE J:   The submission you are presently dealing with appears perhaps elsewhere but at least in paragraph 15 of the respondent’s outline, does it not?

MR GAME:   Yes, your Honour.

HAYNE J:   And it is a submission that is introduced by: “Where – but only where – the Tribunal is first satisfied that the primary decision” is in effect wrong, “not the correct or preferable”.  Is it open to re-exercise the powers and discretions?

MR GAME:   Yes, but your Honour  ‑ ‑ ‑

HAYNE J:   And the point I was seeking earlier to put to you was that the expression “For the purpose of reviewing a decision” seems, at least on its face, an unusual collocation of words to effect what is said in paragraph 15.

MR GAME:   Yes, your Honour.  Some words that you said to me alarmed me for a moment, but  ‑ ‑ ‑

KIRBY J:   Do not be so sensitive.

HAYNE J:   Give, take, life is like that, Mr Game.

CRENNAN J:   “Width” was the operative word.

MR GAME:   Whether or not there is room for paragraphs 15 and 16 in this exercise is the question which seems to remain in this case for determination.  Now, there is an aspect to this, and maybe it is buried to a little degree, where, say, in a case like this where there are many breaches of the code – there were lots – and then the Tribunal makes different findings about the breaches of the code, if this was to work in a practical way it would not just be a question of, as it were, identifying House v The King error, you would actually have to go further and be satisfied that the decision was not the correct one before you proceeded to this second stage. 

You would have to imply some very constraining words into section 43 which just are not there and it can be put in various ways. But our fundamental argument in this case is paragraphs 15 and 16 just do not reflect the natural meaning of the words in section 43 or how that provision has been applied in many different contexts.

KIRBY J:   In the end, we are going to have to look at the matter in its context and try to work out what was the purpose of Parliament, but it may be more helpful to us if you complete your examination of the statute and of the Migration Act so that we have got the whole statutory framework before us and, I might add, anything in the second reading speech, if there is anything, or anything in the Kerr Committee report or on the decisions or recommendations of the Administrative Review Council, if there have been any that might cast light on them.

MR GAME:   There are two reports and I think Mr Gageler is going to tell you about those, but I could do so also.  It is again, for the purposes of this exercise, the Court can use reprint No 10 of the Migration Act.

KIRBY J:   Nothing else in the Administrative Appeals Tribunal?

MR GAME:   No, your Honour, not for my purposes.  We have a bundle, which you do not need to use – I am getting “bundlitis”, I think – but I will tell your Honours where there have been relevant changes and it can be seen by going to the excerpts that we have made from the legislation.  May I take your Honours first, in the Migration Act, to section 309.

You will see in 309 we have a person then who is registered, and then under section 309(2), “If the Migration Agents Registration Authority is considering” making a decision under section 303 to cancel or suspend, et cetera, or to caution “it must inform the agent”.  So that is what starts this particular process.  We have a registered agent and we have section 309.  Your Honours may just note 311.  It is a provision that has been considered by this Court in another ‑ ‑ ‑

KIRBY J:   Where is the Authority established?

MR GAME:   If one goes back, your Honour, to section 303 you will see that, “The Migration Agents Registration Authority may” do a number of things, “if it becomes satisfied”.  You see (d):

the agent’s application for registration was known by the agent to be false or misleading –

Now, that is an instance of what was called “point of time”.  “Was known to be misleading” does relate to a particular point of time.  But the ones we are concerned with here are (f) and (h).

HEYDON J:   I think actually Justice Kirby wants to know how the Migration Agents Registration Authority is constituted.  The answer is it is either the institute under section 313 or the Minister.

MR GAME:   Sorry.  I misheard the last ‑ ‑ ‑

KIRBY J:   You know all about this Authority, but I have never met it before except in newspapers.

MR GAME:   Section 315.  There is, I think, one lawyer and – sorry, no.

HAYNE J:   Plus the definition in section 275, I think. 

KIRBY J:   That is probably enough for the present purposes.  It is relevant to tell us what their powers are because they are the powers into whose shoes the Administrative Appeals Tribunal steps.

MR GAME:   Yes.  Now, section 303, as you will see, uses the words “if it becomes satisfied”.  In that provision the words “if it becomes satisfied” were regarded as significant by – sorry.  I will just take your Honours to section 306 first.  Section 306 is the provision that gives the jurisdiction to review.

KIRBY J:   One factual matter to which that refers in paragraph (e) is that “the agent becomes bankrupt” so that there would at least be a possibility that between the time of the decision by the Authority and the time of the hearing by the Tribunal, the agent becomes bankrupt.  What would happen then?  I mean, surely that would not just be ignored.  Is that the sort of matter that the Tribunal would have to send back to the Authority?

MR GAME:   They might.  That is one of our points, which is that it is hardly likely that the extent of the powers which the Tribunal were limited in a way in respect of the same subject matter where it exercises a reviewing function in contrast with the original decision‑maker.  Now, this focuses on that word “it” in section 303.  That “it” becomes the Tribunal and the Tribunal exercises the powers.

So to use the kind of language used in the case, what – the powers of the Tribunal are marked out by the nature of the administrative function exercised by the Migration Agents Registration Authority, that is, in this case to cancel but in a broader sense it is the decision to discipline.  It is the decision to discipline a person under section 303 which marks out the boundaries of the administrative decision.  Just to take (d), for example, subsequent evidence would not – it might touch on what was known at the time and its falseness but that would be, as it were, caught in time.  Subsection (f):

the agent is not a person of integrity or is otherwise not a fit and proper ‑ ‑ ‑

HAYNE J:   Well, (d) might be caught in time in one sense in that the relevant criterion is “application” “known” presumably known at the time of submission of the application for registration, “to be false or misleading” but what of the case where, in the course of the AAT proceedings where cancellation has occurred because MARA concludes the agent is not a person of integrity, it emerges that the agent also submitted an application for registration which at the time of submission of that application was known by the agent to be false.  Is that something that the Tribunal may or not receive evidence about, may or may not consider?  Is it something that has to bounce down out of the Tribunal back to MARA and then back up or, for the purpose of reviewing the decision to cancel, may the Tribunal exercise, amongst others, the discretion of MARA to cancel because it, the Tribunal, is satisfied of the ground in (d) is part of the area for debate, is it not?

MR GAME:   Yes.  Subject to procedural fairness, there could be no jurisdictional objection to the Tribunal determining to take one of the steps, cancel, suspend or caution, for any of the other reasons in (d), (e), (f), (g) and (h).  That is reflected in the cases in other statutory contexts like the Tax Act and so forth.  We would say that the – as I said before, the boundaries of the administrative decision which is being reviewed are marked out by section 303 where section 309 has brought about section 303 being engaged, but the boundaries of that administrative decision are, as it were, all of the possibilities that may apply in respect of disciplining the agent under section 303.

May I say a thing there about the tense because the tense it becomes was relied on heavily by Justice Tracey in his judgement.  So, I may take your Honours back to section 290.  You will see that an agent “must not be registered” if “not a person of integrity” or not “fit and proper”.  So, section 290 is, as it were, present tense about a migration agent.

Section 292 might just be noted here, and I will come back to it in a moment because that is significant and it has also been used argumentatively against the case I am putting.  When one comes to section 303 the only significance of it becomes is that the becoming – I am not sure precisely what that tense is – is a state of affairs which has come about in the context of a person who has been a fit and proper person and may no longer be or may have committed breaches of the Code.  So there is no other significance to “it becomes” than as it were how you get there.

I was going to say a word about section 292.  Section 292 says that an applicant whose registration has been cancelled must not be registered within five years of the cancellation.  That cancellation is stayed.  So the cancellation does not have any effect.  What that means is that – and that cancellation continues to be stayed.  So if the applicant is unsuccessful he will be unable to be registered for five years into the future.  But if our opponents are correct, that will not be because when the Tribunal made a decision it was satisfied he was not a fit and proper person at that time ‑ ‑ ‑

KIRBY J:  Is that correct?  Does the stay have the operation of removing the cancellation order or simply suspending its effectiveness?

MR GAME:  It stays it. It is like a sentence that is not running so it is stayed. That cancellation is not – there is no cancellation in place, it has been stayed under section 41(2) of the Administrative Appeals Tribunal Act.  But my point is this.  You would end up in a position where – say the Tribunal determined to cancel or not to cancel against a question of fitness that had been determined in some retrospective sense with respect to much earlier events.  So it would not be striking at it in any – it would be not only inconvenient, it would really be contrary to the way in which this is intended to operate.

There are a couple of other provisions I want to refer your Honours to.  Section 304(1)(a) is a relevant provision.  There is no need to go to the amending legislation but that provision came in on 1 July 2004, that is to say after the primary decision and before the Tribunal’s decision, that is in Act 48 of 2004.  That is the provision upon which the condition was imposed which is the second part of this case, Section 306AA might also be noted in this context.  Section 306AA provides that, in effect, a person subject to a stay will be subject to supervision, so the supervision provisions are in the regulations.  Again that came in in 2004 in the same amending legislation.

So those, as we see it, are the relevant statutory provisions with respect to the first ground.  Now, to flesh out our argument I would like to take your Honours briefly to several decisions which are referred to in our reply.  You will see in our submissions in reply at paragraph 8 we refer to a decision of Justice Davies in Re Control Investments Pty Ltd. It is not on our list and I will not read from it, but I have copies of it and I will provide them to the associates. Section 43 is extending the authority of the Tribunal. So it is not seen as a limiting provision in the way that Justice Davies who of course was the president of ‑ ‑ ‑

KIRBY J:   Before you plunge into the cases, I think it would be helpful for you to tell us what your construction of the statute is, and then we can have a look at what judges have said that might help on that point.

MR GAME:   Certainly, your Honour. Our construction of the provisions is this. That when the Tribunal exercising jurisdiction under section 25 of the Administrative Appeals Tribunal Act and exercising the powers to which I have referred including section 43, when it comes to exercise the review function contemplated by section 303 of the Migration Agents Act, then it makes the decision afresh having regard to evidence which it considers and receives right up to the time at which it makes its substituted decision and not concerned to establish error at any stage in its exercise, but having regard to all events that may be relevant to the exercise of the reviewing function under section 43 as it applies to section 303.

That would mean that the Migration Agents Registration Authority has determined to proceed under section 303.  It is that function which the Tribunal now exercises granted all the powers and discretions.  So that means that subject to procedural fairness, it is not simply engaged to determine whether or not the Registration Authority’s decision to cancel was correct on the material before it.  That would be a mistaken question.  The question is whether or not the Tribunal, if it becomes satisfied of any of the matters in (d), (e), (f), (g) or (h), should do any of the things in (a), (b) or (c).

That means that subject to procedural fairness, the Tribunal could become satisfied about a matter under (d) even if that was not a matter determined by the Registration Authority.

KIRBY J:   This is (d) where?

MR GAME:   In 303.

KIRBY J:   Now, we would be entitled to know that the Administrative Appeals Tribunal has a very large jurisdiction covering a huge range of federal authorities and decision‑makers, officers of the Commonwealth, so they all come up to it and that, on one view, might be an argument that suggests that it was not intended that the Tribunal would suddenly become a substitute Migration Authority but on the other hand when Parliament enacted the powers of the Tribunal it had before it various models of how it could do this and it could have made it a correcting authority but instead it made it a reviewing authority with large powers of its own and it has operated that way for 22 years.

MR GAME:   Yes, your Honour.

KIRBY J:   So, the question is, how one balances out the fact that on your interpretation the Tribunal is, in effect, intruding into the relativity of the way the Authority deals with migration agents against the fact that Parliament has given it this very large series of powers and it has been said that it steps into the shoes of the decision‑maker and makes the correct or preferable decision on its behalf.

MR GAME: Yes, your Honour. I am putting the arguments about this provision to, as it were, seek to develop what are the outer limits of the exercise of the section 43 power. In this case, in a practical sense, what occurred was much narrower because what in this case occurred was that the Tribunal determined the issue of fitness ‑ ‑ ‑

KIRBY J:   Yes, you want to win this case but we have to construe the legislation because, as I have said to you, the Administrative Appeals Tribunal Act applies to a whole range of federal decisions.

MR GAME: I understand that, your Honour, but our construction of section 25 of the Administrative Appeals Tribunal Act coupled with this provision means that the Tribunal exercising this reviewing function is engaged upon the disciplining function that is bestowed by section 303.  It is not engaged upon the exercise of determining in some in limine way whether or not the Registration Authority’s decision was the correct one.  As I said, that may be the very last thing that the Tribunal does is come to a view about that question.

KIRBY J:   The words you latch on to in 43 are:

For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any –

other act on any person who makes the decision.

MR GAME:   Yes.  That is the construction that we contested for.  I was not going to hand your Honours Justice Davies’ decision but in the context of what has just occurred I would like to do so.  I have copies.  It is not on our list but I provide those copies to the Court.  The reason I do so is because it also gives some of the history and, of course, Justice Davies was, for a substantial time, the President of the ‑ ‑ ‑

KIRBY J:   Yes, he was the second president and the chair of the Administrative Review Council.

MR GAME:   Your Honours, may I take you to page 91 and then to page 92.  I will not read it out, but the whole of page 91 really addresses the argument that is put against us in its historical context.  So I will just pause there for a moment.

KIRBY J:   How are you going for time, Mr Game?  We might be persuaded against our better judgment to sit a bit longer, but we would not want a late session this afternoon.

MR GAME:   If Your Honours are sitting until 1.00, I would hope to finish this ground by 1.00, and I will only be 10 or 15 minutes on the other ground.  I would say another 40 to 45 minutes for my submissions.

KIRBY J:   How long do you think you are going to take, Mr Gageler?

MR GAGELER:   Your Honours, I will fit in with the time available, but I would like probably an hour.

KIRBY J:   We are going to sit until 1.00 and resume at 2.00 and we want to make sure you have sufficient time, Mr Gageler.  Yes, what were you going to refer to here?

MR GAME:   Page 91 puts the historical context.  Page 92 addresses, in a way, the argument that has been put against us and it is answered with the sentence, “But the provision” and the words are, “not to limit” – I have added the word “not” but it applies “not to limit its function but rather to confer upon it an amplitude of powers”.

KIRBY J:   Did the Kerr Committee consider a number of models, such as a corrective‑type tribunal?  There have been such tribunals in the past.  Have you studied the Kerr Committee or can you provide us with the materials from it?

MR GAME:   Yes, I can.

KIRBY J:   I think we would want to have those materials, if you would not mind.

MR GAME:   Yes, I have got them and I can provide them.

KIRBY J:   You could have them copied and handed up after lunch.

MR GAME:   I think my opponents have copies.

MR GAGELER:   Your Honours, we were planning to do that.

MR GAME:   I am content to leave Mr Gageler to take you to those.

KIRBY J:   All right.  You press on with the control investment.

MR GAME:   What I was saying is this, that  ‑ ‑ ‑

HEYDON J:   You are adopting Mr Morris’ argument which was rejected by Justice Davies.

MR GAME:   No, I am not adopting it.  I am disputing just Mr Morris’ submission.

HEYDON J:   Mr Morris submitted that the provision was not to limit the Tribunal’s function but to confer upon it an amplitude of powers.  You join issue with that?  Looking at page 92, about line 10, you quoted those words.

MR GAME:   Yes, but the Tribunal is speaking.  When the Tribunal says “is not concerned to confer upon the Tribunal authority to limit its function” I am relying on the words “but rather to confer upon it an amplitude of” ‑ ‑ ‑

HEYDON J:   That is Mr Morris’ submission, is it?

MR GAME:   No, that is his Honour’s decision.

HEYDON J:   I see.  That is Mr Justice Davies rejecting Mr Morris’ submission, yes.

MR GAME:   What I am saying is this; that Mr Gageler’s argument is a version of what Mr Morris put and Justice Davies has given a historical reason and a contextual analysis that rejects that proposition.  We say that this decision, as it were, neatly puts the position that we would advance.

CRENNAN J:   And that is the position that Justice Downes put in dissent in paragraph 46.

MR GAME:   Yes, your Honour.

KIRBY J:   Justice Downes is, is he not, the current president of the Tribunal?

MR GAME:   Yes, your Honour.  Our basic submission is that what Justice Downes said and every word of it is correct and is adopted by us.

KIRBY J:   Justice Downes recognises, as I read his reasons, that the matter is not completely black and white, that it is nuanced that there will be some decisions of which of their character require the Tribunal to look at a particular event or particular fact at a particular time and others which do not.  Is that not correct?

MR GAME:   Yes, your Honour. 

KIRBY J:   You, as I understand it, accept that it is nuanced?

MR GAME:   Yes.

KIRBY J:   Hence the importance to get into an examination of the interrelationship between the Tribunal Act and the Migration Act. 

MR GAME:   Yes. I may be wrong about this but my submission is for our opponents to get their foot in the door, there has to be, shall one say, a necessary implication in a reviewing provision such as section 43 that the necessary implication is that the issue is to be determined at the date at which the original decision‑maker’s decision was made. Our fundamental point is that there is no temporal implication to be made at all. There is no temporal implication to be made one way or the other. One simply exercises the reviewing function and the whole of it. There may be times at which, because of the context of the decision, there is a temporal aspect to it. Cancellation of a pension entitlement where there is no subsequent entitlement will be such a matter, which is Freeman.  That has got nothing to do with jurisdictional power.  That is just a proposition about what is the nature of the decision under review.

KIRBY J:   Is there anything else in Re Control Investment you want to take us to?

MR GAME:   There is one other thing that may be worth noting, your Honours, which is that the page 93, in particular, the second paragraph, “For these reasons” where his Honour says:

the Tribunal may have regard to the findings of fact and the reasons for decision of the decision‑maker for that is part of the material –

So again in a similar way to SZBEL, it is not as though the original decision‑maker’s decision has gone out of the window, but at the same time, the Tribunal may exercise all of the powers and discretions which were exercised by –and so in a case such as SZBEL ‑ ‑ ‑

KIRBY J:   You may carry SZBEL around with you all the time, but it is not known by that name.  What was the authority?  What is the citation?

MR GAME:   It is a decision of this Court 228 CLR 152. The relevant passages I wanted to refer to briefly are paragraphs 35 and 36.

There is just one small matter to note.  At paragraph 33 of the decision, in the current context there does not seem to be an equivalent of section 425(1).  Paragraph 35 encapsulates the way we would submit the matter is to be approached by the Tribunal – that is to say the Tribunal is not confined to whatever may have been the issues.  It did in this particular case confine itself to those, but it is not.  Then at paragraph 36 one can see a way in which, and an important way in which, the original decision‑makers’ decisions have a continuing relevance which is, in the absence of the Tribunal telling the applicant something, the applicant would be entitled to assume that the reasons given by the delegate will identify the issues that arise.  So again in that context it has a natural justice significance, which is that, if the applicant is not told otherwise, then the original decision marks the boundaries of the matter to be reviewed by the reviewing Tribunal.

Now, if I may refer your Honours to page 3 and following of our submissions in reply, I wanted to refer briefly to this group of cases.  In paragraph 9 we referred to Fletcher.  May I take your Honours to Fletcher 19 FCR 442 at 452 to 453. The significance of this case is that, in this case the Tribunal embarked upon an exercise as to whether or not the asserted tax deductions were a contravention of Part IVA of the Income Tax Assessment Act.  But that had been no part of the decision of the Commissioner.  The Court held in this case that, although it was within jurisdiction, there had been a denial of procedural fairness in giving the opportunity for the applicant to respond to it.  So shall we say the subject matter here is the question of assessable income.

An issue under Part IVA could have been brought into it, but there was a denial of procedural fairness because the first the applicant knew of that was when the Tribunal handed down its decision.  We see at page 452 an approval of that passage that I read to your Honours from Control Investment. That is at about points 5 and 6. In the significant passage on page 453 are the words “by force of section 43”. The final words before one comes to Drake:

The Tribunal was not confined either to the material which was before the Commissioner, as primary decision‑maker, or the events which had occurred up to that time -

That, we submit, would support the approach we have put to the Court.  The next case I wanted to refer to is Australian Securities and Investment Commission v Donald 136 FCR.  May I take your Honours to paragraphs 30 to 33 of that decision.  This is a case of the kind where the Tribunal, exercising its powers, was doing something which it could not in fact review because it was not a decision picked up.  The issue is considered at paragraphs 30 through to 33.

KIRBY J:   What is the principle that you derive from this case?

MR GAME:   The principle we derive from this case is the same as we saw in Fletcher but that the Tribunal exercising the powers given to it by section 43 could exercise a power in respect of a subject matter which could not have been reviewed by it. So, it is an example. It is a neat example of the very breadth of the powers that exist under section 43. That is all I wanted to extract from that case.

In this group of cases, there is no need to go to it, but Justice Downes’ judgment in Donald may be noted.  At paragraph 56 he says basically the same as he says in this case.  The last of this group of cases that I wanted to refer to is Ahmed.  Ahmed is first at paragraph 12 ‑ ‑ ‑

HAYNE J:   It is 143 FCR 314.

MR GAME: I am sorry, your Honour. The question that arose in this case was, could the reviewing function be performed even although the original decision‑maker’s decision was tainted by jurisdictional error? The answer that one finds in this decision in paragraphs 33 and following – and, again, we submit everything in this case supports the kind of arguments that we are putting – was that even although the decision was tainted by jurisdictional error, the original decision, that did not affect the reviewing function under section 43.

KIRBY J:   It is a bit like Ridge v Baldwin, is it not, that although the original decision was invalid, you could still get into the appellate court and the appellate court can perform its functions as it is authorised.

MR GAME:   Yes.  Now, if the argument put against us was right, it is difficult to see how the Tribunal – I will put that another way.  It is the very breadth of the powers that the Tribunal has that cures the issue of jurisdictional error and if circumstances were such as our opponents put them, it is difficult to see how one could get to first base before the Tribunal.

KIRBY J:   We would, of course, pay respect to the Federal Court’s decisions on these matters because it deals with appeals from the AAT many times but we are not bound by what the Federal Court has said and you have really to argue from a point of principle and from the language of the statute, its purpose, the novelty of this Tribunal, the objects that were in mind in the Kerr Committee, but most especially the very large grant of powers to the AAT which appear not to be a purely correcting power but a power to make the decision for itself in a context where it can receive fresh evidence which will necessarily mean the foundation for it making its decisions is going to be different.

MR GAME:   Yes, your Honour, but I suppose my point about this group of Federal Court decisions is that in an orderly way and with the full armoury of relief, such as denial of procedural fairness, these provisions have been construed in a particular way over a substantial period of time and worked out principles which have applied in a practical and sensible ‑ ‑ ‑

KIRBY J:   It would not be the first time that a matter comes up here for thorough examination and this Court takes a different view from the meaning of the statute.

MR GAME:   I agree entirely, your Honour, but it is not a question ‑ ‑ ‑

CRENNAN J:   It is fair to say, still, Mr Game, and I expect you will agree with this, that what the Tribunal must do is address the question which the original decision‑maker was addressing.

MR GAME:   Yes, but the question is the question about whether or not the person should be disciplined under section 303.  The decision‑maker decided to cancel, but it is not just to cancel or not to cancel, it is the full breadth of the section 303 exercise, which marks the boundaries, as it were, as it was put in Ahmed, of the reviewing function.  So, yes, I agree with your Honour, but it is slightly more nuanced or general than simply saying the question ‑ ‑ ‑

CRENNAN J:   Are you not saying, “Yes, have to address the same question but on the latest material”, insofar as you are relying on the way Justice Downes approached it.  He said that the prima facie position is on the latest material, addressing the same question, and then I think his next point was, but of course you always have to look at the legislation to see whether there is anything in the legislation to the contrary of deciding on the latest material that same question.

MR GAME:   Yes.  I agree, your Honour.  But when I first read out that passage from Justice Nicholson, it seemed as though the argument that was being advanced having regard to present material required some necessary implication in the provision.  It does not require any necessary implication.  The idea that the exercise is limited in a temporal sense is the one that one would have to find an implication in favour of, because temporal aspects are only defined by the day on which the Tribunal finally makes its decision.

Now, from there I wanted to take your Honours to what occurred briefly before Authority and then in the Tribunal to put it in the context of this case.  That would conclude what I have to say about this subject and then I will have the second ground to deal with.  May I take your Honours first of all to page 2 of the appeal book.  That was the decision which was first made.  The Registration Authority was satisfied both of breaches of the Code and it was further satisfied:

the agent is not a person of integrity –

That is 303(f).  May I take your Honours briefly ‑ ‑ ‑
5
HAYNE J:   What is the decision?  Why is the decision wider than the decision to cancel, suspend or caution?

MR GAME:   It is not, your Honour, but the ‑ ‑ ‑

HAYNE J:   Now, is that not a necessary step in your argument?

MR GAME:   Yes.

HAYNE J:   Indeed, is it not the critical step in your argument?  Now, whether that step is right or wrong is perhaps an area for debate, but is it not the necessary premise of your argument that the decision is cancel, suspend or vary?  What is reviewed is cancel, suspend or caution.

MR GAME:   Yes.

HAYNE J:   You do that on whatever is then available.

MR GAME:   Exactly.  Now, may I just briefly refer you to pages 43 and 44?  You will see at page 43, line 32 – I will not read it out, but those first two lines, one would describe them as the qualitative kind of things that were relevant to a determination of whether or not someone was a fit and proper person.  Then you see the conclusion on page 44 in the sentence that begins “Accordingly”.  So it is breaches of the Code and not a fit and proper person.

Now, Your Honours, one can move through to page 250.  There are other decisions.  I took your Honours to this before.  This is the preliminary findings made by the Tribunal and this is an example of the Tribunal determining its own procedures by which it will move forwards and the way it proceeded was to consider the code breaches and it decided that something like half, or a little over half, of the breaches were not made out and particularly ones concerned with more serious allegations – or a number of them were not made out.

But my point here, just to focus on what is on pages 250 and 251, is that because of the structure of the Act there were cascading decisions and determinations made by the Authority and ultimately by the time the Tribunal gets to decide the case, those are, shall I say, arbitrary past events or arbitrary past dates in terms of the history of whether or not the applicant was a person of integrity.  On page 252, paragraph 5, again briefly, we see the Tribunal said it is establishing its own procedure with the concurrence of the parties.  One then goes to what the Tribunal did in her decision and her decision appears at page 325 and following and we saw page 328 earlier. 

The Tribunal states the correct principles.  She sets out at page 330 what she found about the breaches and then at paragraph 12 she makes some further findings about them and then the aspects of her reasons that were seen as disclosing error both before the single judge and the Full Court are things that follow on pages 331 and following, namely, the appellant’s practices subsequently in respect of protection visas, and your Honours saw that was part of the terms of the stay, then next his current practice, next character references, top of 332 and then one sees for and against, that one see against are matters relating to credibility, and then her conclusions at the bottom of 333 to 334.

KIRBY J:  Justice Edmonds has summarised all of these matters on pages 355 to 361 of his reasons.  Have you any contest with the way his Honour ‑ ‑ ‑

MR GAME:  No, your Honour.

KIRBY J:  We can accept that that is an accurate summary?

MR GAME:  Yes; that is correct.  One of my points is that, if one is determining whether a person is a fit and proper person – and there is evidence of this kind – of course it would follow from our argument that it would be jurisdictional error not to have regard to this material.  But in the same way as in Re Coldham, it would hardly be consistent with the objects of the legislation that the question whether or not a person was a fit and proper person was conducted solely by reference to retrospective events.  It would not be consistent with the objects of the legislation.  I draw in that context from re A Solicitor.  I would just like to take your Honours to that briefly.  Again this is in a context of ‑ ‑ ‑

KIRBY J:  Is this the case in this Court?

MR GAME:  Yes, your Honour, 216 ‑ ‑ ‑

KIRBY J:  But that is in an absolutely different statutory context.

MR GAME:  No.  Quite, your Honour.  But my point is this, that the question about fitness – the passage is at ‑ ‑ ‑

KIRBY J:  It is (2003) 216 CLR 253.

MR GAME:  Yes.

KIRBY J:  What is the passage?

MR GAME:  It is paragraph 18 and paragraph 21.  My point about it is this.  The words in the statutory provision “fit and proper person” are well understood in a legal context.  They are words which bring into play, shall one say, every single aspect of one’s conduct that is relevant to one’s practice.

KIRBY J:  But were we not dealing there with the jurisdiction and powers of the Court of Appeal of New South Wales, which has all the powers that are required to dispense justice and to discipline the profession.

MR GAME:  Yes. The point I am trying to make is a slightly different one, which is that, when you have a section 43 exercise of power, it may exercise all the powers and discretions. Then, when you are engaged upon an exercise under section 303 and one of the aspects – in fact the most significant is to determine whether or not a person is a fit and proper person – then as a matter of both construction and practicality the question whether or not a person is a fit and proper person is a matter that touches every aspect of their professional life, the whole of their circumstances.

The last of Justice Nicholson’s propositions, which is that you can only have regard to later information to reflect on earlier information, is one that simply is unworkable when it comes to an exercise such as whether or not a person is a fit and proper person because you are making a determination about that person as they appear before you and give evidence.

KIRBY J:  You say it is incompatible with the power of the Tribunal to receive new evidence which might be subject to natural justice completely on new issues.

MR GAME:   No, what I say is it is incompatible to, as it were, whether it is as a final exercise or is an in limine exercise to determine fitness at a retrospective date.  Our opponents may concede that at some later point the material may come in, but it is a necessary part of the argument that there is, as it were, a retrospective exercise in respect of fitness.  We would submit that the only way you can determine that question is the way in which the Tribunal, apparently without opposition, did in this case, which is consider all of the person’s circumstances.  That is all I seek to draw from Re A Solicitor and that is all I wanted to say about the first ground.  So subject to any other matters I can deal with ‑ ‑ ‑

KIRBY J:   Yes, well, you are on track for the time estimate that you gave us, 2 o’clock?

MR GAME:   Thank you, your Honour.

KIRBY J:   We will keep you to that.  The Court will adjourn now and resume sitting at 2 o’clock.

AT 12.58 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM: 

KIRBY J:   Yes, Mr Game.

MR GAME:   Turning now to the second ground.  The second ground concerns the condition imposed by the Tribunal utilising section 304A of the Migration Act which, as we have seen, came in on 1 July 2004 in Act No 48 of 2004.  The actual condition appears at page 334 of the appeal book, or the imposition of the condition.

KIRBY J:   Yes.

MR GAME:   If your Honours go back to page 328, line 20 you will recall that there were multiple stays but since 31 July – and then there were subsequent stays – a stay had operated subject to the condition that the appellants be supervised by a migration agent and undertake not to engage in any business relating to protection visas.  So, the conditions imposed, broadly speaking, reflected that.  When Justice Edmonds decided the appeal – if you go to page 385 of the appeal book – he upheld the appeal and ordered under paragraph 3 that:

The matter be remitted to the Administrative Appeals Tribunal, as previously constituted –

So that the Tribunal’s orders have gone. There is a mistake in our submissions in reply about that. But, in effect, what has happened is that the appellant has been subject to – the stay has continued to operate. He continues to be registered. He is on the MARA website. He continues to be registered, subject to those conditions appearing at page 328. Presumably, that stay continues to operate under section 41(2) of the Administrative ‑ ‑ ‑

KIRBY J:   Why would that be so in light of order 2?

MR GAME:   Because the Administrative Appeals Tribunal decision is the decision that appears at page 334.  May I say, your Honour, if I am wrong about this, then all the parties have been mistaken for several years and so ‑ ‑ ‑

HEYDON J:   The point is if the remission stands, it is possible that your client may succeed the second time round in front of the AAT.

MR GAME:   Yes.

HEYDON J:   And that possibility is protected by the continuation of the stay?

MR GAME:   Yes, your Honour, that is all there is to it.

HEYDON J:   This is verging on almost an academic argument, is it not?

MR GAME:   Yes, your Honour.

HEYDON J:   If the judgment of the court were not delivered until after September, there would be no point in deciding the second ground.

MR GAME:   Yes, that is correct, except that precise order at 334 has been set aside but the stay has now been operating for five years, from 30 ‑ ‑ ‑

HEYDON J:   It is still academic, though.

MR GAME:   Yes, your Honour.  That is our point, in a way, which is that the whole of this case is really about ground 1, not ground 2, and I am just trying to explain why.

HEYDON J:   Yes, I see.  You do not have to bother about – no, if you win the condition will remain in place.  If you win before September the condition will remain in place.  If you lose before September the stay condition to the same effect will be in place.

MR GAME:   That is correct. Now, can I explain our argument about this by going to Justice Downes’ judgment at either appeal book 414 or reported decision in 158 FCR 539. What is put against us is that you cannot have, as it were, conditional registration. These provisions are provisions about people who have had registration under section 290 satisfying 290 conditions, but for one reason or another have fallen by the wayside. So what his Honour says at paragraph 50, the paragraph that begins:

The circumstances of a migration agent . . . warranting disciplinary action are very different to those of an agent applying for ordinary registration.  Given that cancellation precludes all activity . . . it seems to me that precluding some specific activity associated with the contravention for a limited time is a reasonable disciplinary alternative.

So that the point is that there is no necessary limitation where a limitation is a part of practice, so ‑ ‑ ‑

KIRBY J:   The argument against you is expressed by Justice Tracey at 419 where he says:

The notion of conditional registration is foreign to the Act –

and that this is a misuse of the power to impose conditions because that is not the scheme of the Act.  That is what is put against you.

MR GAME:   Yes, I understand that, your Honour, but my point is that it is not conditional registration.  It is registration that says you can do all kinds of migration assistance as defined by section 282 ‑ ‑ ‑

KIRBY J:   It is not conditional registration.  It is simply registration subject to conditions.

MR GAME:   Yes, your Honour, but that is the natural meaning of section 304A.  I mean, it is like saying to be a general practitioner you have to be able to do some minor surgery, but you could be a general practitioner and never do minor surgery and be quite unfit to do minor surgery but still practice as a general practitioner having passed such an exam at some earlier time.  It is no different than that.  If you look at the structure of the Act, section 36 is – there is no need to go to it now, but it is the section that relates to protection visas and if you couple that with section 276, you will see that it contemplates that you give assistance along a range of different areas.  The point about section 36 and the condition, presumably, is not simply that – it may be simply that this particular migration agent was inept in relation to those applications, but they had their own special difficulties about them.

May I make this point by reference to one other matter which is – if your Honours go to page 322 of the appeal book, you will see that aspects of the Code are extracted and clause 4.1 is an aspect of the Code.  Now, 4.1 contemplates that a counsel of perfection will not apply in every case, that it would be entirely appropriate, in fact required, for a migration agent to refer different types of work to other people who may be qualified or more ‑ ‑ ‑

KIRBY J:   The suggestion is that there is a difference between doing that, going down the corridor and asking somebody, as everyone does in every profession, and operating under a restricted or conditional entitlement to practise as an agent.

MR GAME:   Yes, your Honour, I understand, but my point is that you construe section 304A with section 303 but not by saying that in order for it to be a condition you must have satisfied all of the conditions of section 290.  Section 290 speaks about a person having a particular knowledge.  I think the word is in 290.

KIRBY J:   Is there anything in the second reading speech or the explanatory memorandum to explain what the purpose of 304A was thought to be?  Perhaps you can do that whilst Mr Gageler is speaking.

MR GAME:   We have looked at it and I think the answer is no, but I will just check on that.

HAYNE J:   Well, is it not to be explained by reference to 287?

MR GAME:   Yes, your Honour, exactly.

HAYNE J:   You have got a public register.  The public register records a caution.  Section 305A requires publication of disciplinary details and other like provisions.  Now, the question becomes whether the conditions of which 304A speaks are to be publicly recorded or publicly available.  Where do we find that in the Act?

CRENNAN J:   Section 287(2)(i) perhaps?

MR GAME:   But (h) speaks of the particulars of any caution.  Would not the particulars of any caution include that information, your Honour?

HAYNE J:   Is that what you say?  I do not know.

MR GAME:   That is what I do say.

HAYNE J:   That is what I am asking.

MR GAME:   I apologise.  The answer is I would say that is the source and that is what is required.

KIRBY J:   And you told us something about the register, that your client is still on the register.  Is it available to us to know whether or not he is on the register subject to these conditions?

MR GAME:   He is subject to the stay.  At the moment the caution has gone.  He is subject to the original stay.  So I am not ‑ ‑ ‑

CRENNAN J:   With the same effect?

MR GAME:   Yes, so I am not sure about the answer to that question.

CRENNAN J:   You are not sure about the state of the register?

MR GAME:   No.  I know his name is on it, that is all I know, but I will see if I can have some better information.

KIRBY J:   The question is not what has happened in fact but what the scheme of the Act envisages.

MR GAME:   Yes.  My point is that Justice Downes is correct.  There is no reason to read down section 304A.  A condition could be a condition that touches on the kind of work that you do.  The condition that our opponent suggested was that you do a particular course.  Well, doing a particular course might be one thing, but in doing a particular course you might need until a certain time that you both do the course in the subject and not give that type of advice.  That is all that point comes down to.

I have got the words of the explanatory memoranda and we will provide it to the Court, but it says this:

37.      New section 304A provides that the MARA may set one or more conditions for the lifting of a caution it gives to a registered migration agent.  New section 304A is similar to existing paragraph 304(1)(b) of the Act, which deals with setting conditions for the lifting of a suspension. 

38.      For example, the MARA may set a condition that the caution is to apply for a certain period of time or that an agent is to complete a particular course before the caution may be lifted.

That is what it says.  In answer to a matter your Honour Justice Crennan raised, the caution is not referred to on the register at this time.

KIRBY J:   It does not answer the question behind the question which is whether the scheme of the Act envisages that it will be mentioned in the register.

MR GAME:   My submission is that the particulars of any caution when you read ‑ presumably that provision came well before section 304A, but the particulars of any caution as a matter of statutory construction would include conditions imposed under section 304A.  That is the submission I would put about that, whether or not that has been complied with in this case.  In my submission, that would be the natural way in which you would read section 287(2)(h) after July 2004.  If the Court pleases.

KIRBY J:   The orders that you are seeking are those at 427, are they?  Is there anything we need to do relevant to the stay, in your submission?

MR GAME:   No, your Honour.  If we succeed, then one simply goes back to what was done by the Tribunal.  If the Court pleases.

KIRBY J:   But that would not be enough, would it?  You have to allow the appeal, set aside the orders of Justice Edmonds and then make other orders of our own power to substitute for those of Justice Edmonds.  What are the orders that you are asking this Court to make?  Give a bit of thought to that, please, whilst Mr Gageler is addressing the Court.

MR GAME:   I will, your Honour.

KIRBY J:   Yes, thank you, Mr Game.  Yes, Mr Gageler.

MR GAGELER:   Your Honours, we accept that the particulars of any caution referred to in section 287(2)(h) include any conditions that might be imposed of a caution under section 304A. 

KIRBY J:   You say you accept that that would be ‑ ‑ ‑

MR GAGELER:   We say we accept that as a matter of construction. Your Honours, two preliminary matters. The first is an ultimately irrelevant point of chronology. If your Honours go to page 250 of the appeal book at lines 30 through to 50, there is a reference to the stay of the cancellation decision on 31 July 2003. That was a stay that was granted by the Tribunal under section 41 of the AAT Act. Then your Honours will see a reference to a subsequent stay granted following a decision by the Federal Court on 4 December 2003. That is a reference to a stay granted by the Tribunal again on 4 December 2003, again under section 41 of the AAT Act, this time a stay of the decision not to register. That was an order made by the Tribunal after Justice Tamberlin in November 2003, in a case reported at 134 FCR 326, determined that the Tribunal had power under section 41 to stay a decision not to register. That is how Justice Tamberlin’s decision creeps in.

KIRBY J:   Justice Tamberlin’s decision is probably not reported but there may be a median ‑ ‑ ‑

MR GAGELER:   No. It is reported at 134 FCR 326. It really does not impact on anything your Honours are concerned with. The other sort of preliminary matter is to come to the defence of my drafting of paragraph 15 of the respondent’s outline of submissions. There is nothing really wrong with it but if your Honours go to the second‑last word on the fourth line, your Honours really have to underline the word “and” and read it as “cumulative”. If your Honours do that it is all right.

HEYDON J:   At the end – “and, at its discretion”.

MR GAGELER:   Yes.  We do not say that it is only where the Tribunal sets aside a decision and substitutes its own decision or varies a decision that the Tribunal may exercise a power or discretion conferred on the primary decision‑maker.  We accept that the decision of the Full Court in Fletcher 19 FCR 442, to which your Honours were taken, was correctly decided. The point that was decided in that case was that the Tribunal, in reviewing an assessment issued by the Commissioner of Taxation, was entitled to exercise the discretion of the Commissioner under Part IVA of the Income Tax Assessment Act so as to affirm the decision to issue the assessment.  We accept that as correct.

What we do not accept as correct in Fletcher is the statement unnecessary for the decision in that case – the statement 19 FCR 442 at page 453 that the Tribunal was not confined to the events which had occurred up to the time of its own decision. That is where we take issue with what ‑ ‑ ‑

KIRBY J:   You say that the way matters ought to run in the AAT, whatever is the way they have, in fact, been running is that if any evidence is tendered that goes to matters after – that postdate the decision of the administrator that that ought to be excluded.

MR GAGELER:   Your Honours, we say that the first question for the Tribunal is whether the decision under review was correct at the time it was made.  If the answer to that question is yes, it was correct, then that is the end of the matter.  If the answer to that question is no, then the Tribunal can go on itself to make a substituted decision and in making that substituted decision it can, in an appropriate case, as a matter of discretion, make a decision from the time of its own decision, but the first question, in every case, is really the detection of error in the decision that was made.  By that I do not mean error in the reasons for the decision but the Tribunal determines first was the decision right or wrong when it was made.  That is the way in which we put it.

KIRBY J:   That is not spelt out in terms in the Administrative Appeals Tribunal Act, is it?  You have to read that into reviewing a decision.

MR GAGELER:   You have to read it into the structure of the Act and whatever view you take about the appropriate role of the Tribunal it is ultimately a question of construction.  I want to deal with that first.  I want to go first to the Act.  I then want to take your Honours very briefly to the extrinsic material which is really the Bland Committee Report and the Kerr Committee Report.  There is not much there but there is a little.  Then, I just wanted to take your Honours very briefly to some of the key cases and it is really for the concepts that they espouse rather than what they have decided.

We fully accept that one can find many statements in the cases in the Federal Court, particularly since 1986 when Justice Wilcox decided the Ford Case, to which I will come, which are to some extent inconsistent with the nature of the Tribunal’s function, as we say it exists.  But let me say that the two cases upon which our learned friends placed the weight of their oral argument this morning are not amongst them.  Can I deal with those immediately.

If your Honours go back to Control Investments, the decision of Justice Davies in 3 ALD 88. Your Honours were taken to the passage at the top of page 92. One has to read that in the context of the argument that was being rejected and the argument that was being rejected appears at the top of page 91 where it is said:

The first submission with which I should deal is that of Mr Morris . . . Mr Morris submitted that the Tribunal has a discretion conferred by s 43 of the Administrative Appeals Tribunal Act 1975 not to proceed to review the subject decision on its merits but to limit its review to justiciable issues with a view to determining whether the subject decision was wrong in law.
‘

Now, obviously, that submission is wrong.  It has really got nothing to do with the present case.  The other decision that was given some prominence is Australian Securities and Investments Commission v Donald 136 FCR 7. Without going into details, there is, we think, nothing in the result in that decision which is inconsistent with what we put and, indeed, the reasoning of Justice Kenny at paragraphs 30 through to 32 appears to be entirely supportive of our approach.

Your Honours, can I go first to the Act, as I have said, and then to the extrinsic materials and then to some of the other cases?

KIRBY J:   At some stage, accepting as you do that the Act does not spell out the answer to our problem in plain terms, we will have to come ultimately to which is the construction of the Act which fits most comfortably into the rather radical design of the Administrative Appeals Tribunal Act and the big change it introduced into merits review.

MR GAGELER:   Yes. We will do that, your Honour. If you have Reprint 10 to hand, you can go to page 44. As our learned friends said, the starting section is section 25 and within section 25(1)(a), read with subsection (3)(a) and the definition of “enactment” in section 3, says, so far as is relevant, that a Commonwealth Act:

may provide that applications may be made to the Tribunal:

(a)for review of decisions made –

by a specified person in the exercise of the powers conferred by that Commonwealth Act.  That is precisely what section 306 of the Migration Act does and it is all that section 306 of the Migration Act does in terms that are expressed in section 306 to be subject to the AAT Act. It is then section 25(4) of the AAT Act which confers the power, duty and jurisdiction of the Tribunal to review the decision that is the subject of the application. It is section 25(6) that really spells out that the conduct of that review by the Tribunal in the absence of any excluding or modifying provisions in the relevant Commonwealth Act, and here there are none, are governed by the provisions that are there enumerated.

Those provisions of the AAT Act are the generic provisions that define the nature of a review that flows from the making of an application under section 306 of the Migration Act. Within those generic provisions, the critical one, in our submission, is section 43(1), which cannot be read alone, but which must be read with section 43(6).

Now, in our submission – and we accept it is not crystal clear – those provisions cannot be explained simply in terms of the question for the Tribunal being, in every case, to ask for itself at the time of its own decision what is the correct or preferable decision then to be made in the exercise of the powers or discretions conferred on the person who made the decision under review. If one need for that purpose not look further than the opening words of section 43(1) and you see:

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 –

In contrast, that permissive language with the compulsive language that follows:

and shall make a decision in writing:

doing one of the things that are mentioned in paragraphs (a), (b) and (c).  It is simply not the case that the scheme of the Act is that for the purposes of every view, the Tribunal must be exercising powers and discretions conferred on a person who made the decision that is under review.  It can.  They are words of extension, as Justice Davies said, not words of limitation.

KIRBY J:   Mr Game says that it is on the contrary; it gives you the subject matter of the inquiry, namely, the review of the decision, and once you have that as the subject matter of your inquiry, you pick up all of the powers and discretions of the original decision-maker.

MR GAGELER:   Well, you have those tools, but the exercise of review may not involve the Tribunal re-exercising any power or discretion with the person who made the original decision.  What I am saying – I will show your Honours – is exactly what Sir Gerard Brennan said in the first year of his presidency of the AAT.  The Tribunal may in an appropriate case do that, but the Tribunal, in reviewing a decision, is not necessarily exercising any of the powers or discretions of the original decision-maker.

Your Honours, what we say – and I will spell it out and then seek to justify it – is that those provisions, sections 43(1) and 43(6), are best explained in terms of the question for the Tribunal in every case being to ask whether the decision under review was the correct or preferable decision at the time it was made. And then the course to be taken by the Tribunal is dependent on the answer to that fundamental question that arises necessarily in every case. If the Tribunal answers that question in the affirmative, then the Tribunal affirms the decision under review under section 43(1)(a) and that affirmation has been held, correctly in our submission, to involve no re-exercise of the power, or not necessarily in any event to involve a re-exercise of any power of the original decision-maker, and the original decision, the primary decision ‑ ‑ ‑

HAYNE J:   Which is why the introductory words are cast in the permissive way they exercise.

MR GAGELER:   Yes, need not, and may indeed affirm a decision without re-exercising any power. That means the primary decision remains undisturbed and it has been in those circumstances the operative decision from the time it was made. The cases in paragraph 11 of our written submissions spell that out and spell it out correctly. If the answer to the fundamental question is no, then the Tribunal has the choices as permitted by section 43(1)(b) and (c). It is only where the Tribunal varies the decision under review, under section 43(1)(b), or sets it aside and substitutes its own decision under section 43(1)(c)(i) that you get to the point of the Tribunal itself making an operative decision to which section 43(6) then applies, and section 43(6) makes it clear that that decision of the Tribunal is deemed to be the decision of the original decision‑maker.

KIRBY J:   No, it is “deemed to be a decision of that person”.  I wondered if there was any significance in the shift.  If it had said “is deemed to be the decision of the person” that would be of some strength to your argument, but it says “is deemed to be a decision”.

MR GAGELER:   Your Honour is right, “deemed to be a decision”.  That is enough for me because it goes on and says and is deemed to have come into effect on the date of the primary decision, that is, it substitutes for the primary decision on and from the date of the primary decision subject to a discretion on the part of the Tribunal to order that its decision will come into effect on some other and later date.

CRENNAN J:   Well, how do you fit in correct and preferable on the material which the original decision‑maker had?

MR GAGELER:   I do not.  I want to make it clear ‑ ‑ ‑

CRENNAN J:   And I was also going to say, and appearing no longer to be correct and preferable on the material which we now have, which was the kind of situation that Justice Downes was raising.

MR GAGELER:   Yes.

CRENNAN J:   Although he gave obvious examples.  I accept they were not examples that would be relevant to what you are saying at the moment.

MR GAGELER:   No.  Well, your Honour, it really gives me no difficulty at all.  The first question is, was the decision correct at the time it was made, and that is not necessarily on the material that was before the original decision‑maker, that is on any material that bears upon the circumstances as they existed ‑ ‑ ‑

CRENNAN J:   Yes, certainly, I accept that, yes.

MR GAGELER:   ‑ ‑ ‑ at the time that decision was made.  If the answer to that question is, yes, it was the correct or preferable decision at the time, then really that is the end of the Tribunal’s function.

HAYNE J:   That is simply an assertion, is it not?  I know that is the final assertion to which you get, but you are being asked how do you found that assertion that that is an end to the penny section.

MR GAGELER:   Perhaps I misunderstood, I thought I was being asked to illustrate it by reference to those circumstances. But, your Honours, we, I hope are not simply asserting that to be the case but rather that to be the consequence of the preferable construction of section 43(1). But really what I was saying is that in those circumstances the events that occurred subsequently to the original decision are neither here nor there, they are simply irrelevant to the function of the Tribunal.

If, on the other hand, the Tribunal were to find that the decision was wrong at the time it was made, then the Tribunal can substitute its own decision, and the way in which section 43(6) works is that the decision – so the Tribunal’s substituted decision can as a matter of discretion on the part of the Tribunal be couched to take effect at a later date than the original decision. So that if the Tribunal finds the original decision is wrong, the Tribunal can – and here it is a matter of discretion – which will depend upon the particular statutory regime, the Tribunal can substitute its own decision taking account of events which had occurred up until the time of the Tribunal’s own decision, but that is the way in which it works, in our submission.

KIRBY J:   Well, we are clutching at legislative straws in a sense here, and the legislature as usual has spoken with forked tongue.  On the one hand, it is a fair point that you make that those very last words “deemed to be” have effect on and from the day on which the decision has had effect.  That is a definite argument for your construction.  But as against that there is the fact that there is the power to otherwise order, which appears to contemplate that where it is appropriate they will date it from another date and the use of the word “a” rather than “the”.  If it had been deemed to be “the” decision, that would have been quite a strong point in your favour.

MR GAGELER:   Well, it would have been stronger, but can I come back to the penultimate point your Honour made, and that is the existence of the power to choose a date other than the date of the original decision.  That is a power that exists, as your Honour sees from the opening words of subsection (6), only where a decision is made by the Tribunal which varies the decision under review or substitutes its own decision for the decision under review which the Tribunal sets aside.  Subsection (6) really just has nothing to say about the case where the Tribunal affirms the decision under review.

HAYNE J:   Be it so, let us take that as given.  You accept, do you not, that the Tribunal is not limited to the record that was before the primary decision‑maker?

MR GAGELER:   Absolutely.

HAYNE J:   It follows inexorably, does it not, that cases can be readily imagined where the decision arrived at by the primary decision‑maker, on the record before him or her, was the preferable decision, but the decision on the record before the Tribunal would be to the opposite effect?

MR GAGELER:   Yes.

HAYNE J:   Now, you assert that in that latter case the Tribunal can do nothing?

MR GAGELER:   No.  All I am saying is that the Tribunal must consider the circumstances as appear from the record before it as they existed at the time of the decision under review.

KIRBY J:   If somebody wants to say, “Well, I have been made bankrupt in the meantime”, the hand has to go up, “You cannot tell us that.  We cannot receive that information though it is relevant to the very inquiry we are engaged in and the exercise of our powers as to whether you will be registered or continue to be registered as a migration agent”.  That is not my understanding of how the AAT has operated.

MR GAGELER:   It is certainly not rehearing de novo, your Honour.  I accept that.  It is not the understanding that some people have adopted since 1986.  I accept that as well.  The answer is, yes, the Tribunal does not, for the purpose of asking the fundamental question required of any review as to the correct or preferable decision, take into account events which have occurred since the date of the decision under review where those events are not probative of the circumstances as they existed at the time of the decision of review.  That is the proposition.

HAYNE J:   Is that a proposition which seeks to impose on the Tribunal some aspects of the curial paradigm?

MR GAGELER:   No, but it is ‑ ‑ ‑

HAYNE J:   It is not imposing on the Tribunal’s function notions drawn from the difficult subject of nature of appeal?

MR GAGELER:   We are, like it or not, engaged in the difficult subject of the nature of an appeal.

HAYNE J:   No, we are not.  We are concerned in the subject of an administrative review of administrative action and we are not in the curial paradigm, and that is the point that I think has to be grappled with.

MR GAGELER:   Your Honour, I fully appreciate that we are not in the curial paradigm.  There are some parallels, however, with the curial paradigm and what I am putting is analogous to curial review in this respect, that what I am putting is that the fundamental nature of review by the Tribunal is review for the correction of error.  I am not using that notion narrowly.  The Tribunal looks at the merits of the decision at the time it was made.  It does not confine itself, in the way that the court would, to the legal merits of the decision.

Your Honours, within the statute there is some support for that view in other provisions.  May I just mention them quickly.  There is support for that view in section 41(1) – and these may be nothing more than straws that get stacked up – which provides in effect that the mere making of an application has no effect on the operation of a decision under review.  There is some support in section 37 that requires the primary decision‑maker to lodge a statement of reasons, in section 31B, which makes the primary decision‑maker automatically a part to the proceedings, and in section 29(1B) which was inserted in ‑ ‑ ‑

KIRBY J:   Which is the reasons provision?

MR GAGELER:   The reasons are section 37.  Section 29(1B), which is at page 54 of the print, you will see empowers the Tribunal to request that the statement of reasons for an application which must be contained in every application by section 29(1C) be amended so that the statement is sufficient to enable the Tribunal to readily identify the respects in which the applicant believes the decision is not the correct or preferable decision.  Again, all I get out of that is a focus on the correctness or preferability, if that is a word, of the original decision.

Your Honours, within the extrinsic material you do not find very much, but you do find something in the Kerr Committee Report and the Bland Committee Report.  We have given your Honours some brief extracts.  We can provide the entirety if your Honours would be assisted by that. 

There is nothing in the second reading speeches which differ in the House of Representatives/Senate save that they refer you to these two reports.  The two reports themselves are diffusely written.  There was, I must say, much in both of them which was not accepted and there are some divergences between the two, but as to the fundamental nature of the review that was being contemplated for the Administrative Review Tribunal, one gets a fairly consistent view coming first from the Kerr Committee Report at paragraph 300 where - just picking it up in the second sentence.  This is page 90 of the Kerr Committee Report, paragraph 300, second sentence.  What was said was:

The jurisdiction should be to hear and determine an application by a person who is aggrieved or adversely affected by a decision on the ground that the decision was erroneous on the facts and merits of the case.

That seems to be spelt out a little bit more in the concluding observations, which begin at page 105.  At page 107, paragraph 363 where, talking generally about the system of administrative review that they were recommending, the Tribunal being a fundamental part - it said in the third sentence:

There must, however, as we see it, be a concomitant acceptance of responsibility to correct administrative error and the improper exercise of administrative power.  Just as the exercise of judicial power has, over the years, been recognised as requiring provision for correction of error so the exercise of administrative power affecting the citizen is recognised nowadays as needing corrective machinery.

In the Bland Committee Report there is ‑ if your Honours have the first pages, we have extracted page 15 – a statement at the beginning of paragraph 80:

We do not regard the present arrangements for questioning decisions as satisfactory.  It is our view that the citizen should not always have to go to the courts to establish that an administrative decision is wrong –

At page 31, paragraph 172, it is said at the beginning of the paragraph that:

we agree with the proposals in paragraphs 294 et seq of the Kerr Committee Report –

That includes paragraph 300 that I read, subject to some qualifications.  None of the qualifications that are then set out appear to qualify paragraph 300, which I read.

HEYDON J:   That is all rather a waste of time.  They did not have their minds on the present problem.  They are speaking in terms of the utmost generality.

MR GAGELER:   It is something, your Honours.  What one gets out of it is an idea of correction of administrative error, which has a curial analogue.  I accept that that does not disqualify it from being a correct construction of what emerged as a result of these reports.

KIRBY J:   I am trying to throw my mind back and remember those early days and the criticism of the earliest days of the AAT was that it was too much modelled after the curial procedure and that, I think, led in time to some modification that made the AAT more conscious of its role, as Justice Hayne has been putting to you, as an administrative tribunal with the greater degree of informality but with these very large powers that it was given.

MR GAGELER:   Your Honour is absolutely right, but the basic nature of review has not changed in the way in which the Act is structured.  At page 45, if your Honours just look at the recommendation contained in paragraph (x) and at page 47 the recommendation contained in paragraph (xxxiv), again it appears to be a basic endorsement of the approach that one finds in the committee report. 

Your Honours, can I then go to the case law here relatively briefly.  What it reveals, in our submission, is the difference and indeed probably a disconnect between the early and correct position that was stated by Sir Gerard Brennan in the first year or so of the operation of the Tribunal and it was stated by the Full Court of the Federal Court in Drake and the position that emerged from about 1986 with the decision of Justice Wilcox at first instance in the case of Ford.  The decision of the President Justice Brennan in Re Brian Lawlor Automotive Pty Ltd in 1 ALD 167 contains an informative passage at page 175 where the President said this at the bottom of the page:

The Tribunal is not a primary administrator. It is not the original repository of powers and discretions under an enactment. When it makes an order under s 43(1) to take effect under the “relevant enactment”, the grant to the Tribunal of the original repository’s powers and discretions makes its order effective under the enactment. Not all of the orders for which s 43(1) provides are orders which draw upon the original grant of powers and discretions. A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal’s order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise.

If your Honours then go to Drake 24 ALR 577 in the Full Court of the Federal Court, at page 589 there is a relevant passage that begins about line 6, but I will just pick up the often quoted sentence at about line 23. Chief Justice Bowen and Justice Deane said:

The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. 

To similar effect, one has the statement of Justice Smithers at page 599, line 19, where his Honour said:

The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made.

His Honour goes on to refer to the decision of Justice Sheppard in Horne v Locke.  Then if you go to Strange‑Muir (1986) 5 NSWLR 234 – and your Honours were asked to glance at Strange‑Muir this morning; I will not labour it, the relevant discussion in Justice McHugh’s judgment is at pages 249 through to 250.

KIRBY J:   Did the GREAT Tribunal provided for there have all of the powers and discretions of the original decision‑maker?

MR GAGELER:   I do not recall the precise structure of the GREAT Tribunal.  I will see if I can pick that out of the discussion.  It is really his Honour’s interpretation of Drake that I wanted to get to here.  He refers to Horne v Locke.  He refers then at the top of page 250 to Horne v Locke being referred to by Justice Smithers in Drake.  He then quotes the decision, the classic statement from Chief Justice Bowen and Justice Deane in Drake.  He goes on to say:

This passage brings out the point that, although the Administrative Appeals Tribunal may hear evidence which was not before the administrator, nevertheless it is the correctness of his decision which remains the focus of review.  That is to say, the Tribunal does not itself make a new decision but reviews the original decision of the administrator.

Picking up the discussion just below letter E:

Accordingly, I think that those two cases –

that is Horne v Locke and Drake –

should be taken as establishing that there is a presumptive rule that in an administrative appeal to an administrative body the issue is whether the decision was correct when it was made.  The hearing is not de novo.  This is so whether or not the tribunal is empowered to hear additional evidence.

Minds may differ as to whether two decisions give rise to a presumptive rule but, in our submission, there is no real doubt as to the correctness of Justice McHugh’s understanding of Drake v Minister for Immigration and Ethnic Affairs.  That was really what was being said in those passages in the judgments of Chief Justice Bowen and Justice Deane and of Justice Smithers.

HEYDON J:   Was the present problem argued in Drake?  Again, are we not just looking at general passages that happen to be consistent on one view with your argument, but they are not strictly authorities, are they?

MR GAGELER:   No.  I accept that, your Honour.  The point was not argued in Drake.  Yes, I accept that.  The point was argued in Coldham; Ex parte Brideson 170 CLR 267, although in a slightly different statutory context. That is where, at page 273, Strange‑Muir is referred to without criticism.  What was said in Strange‑Muir was held to be inapplicable – over the page at page 274 ‑ ‑ ‑

HEYDON J:   “Be that as it may” is not a warm embrace.  “Be that as it may” are chilly words.

MR GAGELER:   Yes, of course.  It is not a rejection – a noting, and not much more.  But importantly what their Honours placed emphasis on at page 274 were the broad terms of section 88F(4) which allowed the Full Bench to make such orders as it thinks fit and section 88F(4), which your Honours see set out at the top of page 272, was a provision that applied upon the determination of any appeal under section 88F.  So upon the determination of any appeal the function of the Commission was simply to make such order as it thinks fit.  That was what fundamentally gave rise to the de novo review as at the date of its own decision, according to the Court.

KIRBY J:   There is a slight difference here because the Commission, as you remember, grew out of the Court which had been established in 1904.

MR GAGELER:   Of course.

KIRBY J:   And it was a body made up of judges and it followed a judicial‑type procedure and it was very much locked into the curial mode, whereas the Administrative Appeals Tribunal has this huge range of decisions, big, very big and very small, and it has a far wider jurisdiction.  If I recollect it, there were very earnest debates at the beginning as to whether it should uniformly follow the curial mode but that battle was ultimately won by those who said, well, it’s an administrative tribunal by name and by function and it ought to adapt its procedures to that role.

MR GAGELER:   Indeed, your Honour.  Really, what I am putting is not inconsistent with the nature and administrative functionary, that is, that the administrative functionary should look over the shoulder of what another administrative functionary has done.

KIRBY J:   Just as your submission seems very much based on a judicial‑type paradigm.

MR GAGELER:   It is closer to the judicial paradigm than complete de novo review.

KIRBY J:   That is why ultimately when we come to the end we have got to try and work out which is going to work best in the context of this Tribunal, with its very large and varied jurisdiction, as an administrative tribunal.

MR GAGELER:   Indeed.

CRENNAN J:   The only real distinction from the curial paradigm is that you are saying this is a review, not a hearing de novo, not an appeal as in the curial paradigm, but the difference is really the narrow one, that the Tribunal can look at other evidence that was not part of the record but only for the purposes of checking whether the decision made by the original decision‑maker was the correct and preferable decision.

MR GAGELER:   Yes.

CRENNAN J:   That is the principle as you are putting it.

MR GAGELER:   Yes.

CRENNAN J:   In this case, then going back to the facts of this case, there is the evidence in relation to – I will call rehabilitation, but hat may be argumentative but there is the evidence in relation to differences between the conduct of Mr Shi prior to the first decision‑maker’s decision and his conduct post that decision, which the Tribunal has access to and gives some consideration to.  How would you say that should be treated in the context of what you are putting forward as the limitations on this review?

MR GAGELER:   It is irrelevant to the fundamental question on review, was the decision that was made the correct and preferable one at the time it was made?

HAYNE J:   Well, that depends upon the correctness of two propositions which are perhaps slides.  One, you seek to slide together or elide the decision, namely, cancellation, which is the subject matter of the review and the ground for decision, not fit and proper person?

MR GAGELER:   No.

HAYNE J:   No?  Because the next step you take is that the ground for the decision of cancellation, namely, not fit and proper person, is a ground, the validity of which is not illuminated by subsequent conduct of the person whose fitness is in issue.

MR GAGELER:   No.

HAYNE J:   No?  You deny both of those steps, do you?

MR GAGELER:   Yes.

HAYNE J:   What is left of your argument if those two steps are taken out?

MR GAGELER:   Well, my argument is entirely intact.  I take the decision as the cancellation decision.  I do not take it as being reasons for decision or the grounds for decision.  I then say that the Tribunal is to ask, was cancellation the correct or preferable decision at the time it was made.  I say that in asking itself that question, the Tribunal can have regard to any evidence that is probative of the question, amongst others, of whether this person was a fit and proper person at that time.  Subsequent events may be probative of that question insofar as they bear upon his moral character.  So I do not have any difficulty with any of that.

What the Tribunal cannot take into account, in our respectful submission, in asking has there been compliance with the Code, as it did in the present case, has there been recent compliance with the Code after the decision under review and taking that into account as a reason for saying that the decision should be set aside.

KIEFEL J: If you accept, as you have obviously just done, that the decision referred in section 43(1) is the conclusion, why should the Tribunal be limited? Why, as a matter of construction and practical operation, should the Tribunal be limited to either the facts or the law as pertained at the time of the decision‑maker’s decision if it is only the conclusion? I mean, the nub of your argument, really, is decision and reasons, is it not, and you keep saying “I am not suggesting that the Tribunal is limited to finding error in the reasons”.

MR GAGELER:   Absolutely, I say that, yes.

KIEFEL J:   You are saying that, and you accept that the review is of the conclusion?

MR GAGELER:   The review is of the operative decision whether it be an order or ‑ ‑ ‑

KIEFEL J: I thought you had accepted that the decision referred to in section 43(1) is of the decision, namely, the conclusion reached.

MR GAGELER:   Yes, that is right.

KIEFEL J:   Because you have put aside the reasons.

MR GAGELER:   Well, it is, to be perfectly clear, not so much the conclusion as the exercise of power, here the exercise of power under section 303 to cancel, and the question is, was that the correct or preferable exercise of power at the time it was made, yes.

KIEFEL J:   But if the Tribunal is looking at that, I will call it the conclusion, arrived at by an exercise of power, why would the Tribunal have to be limited?  Why should the Tribunal be limited in its consideration as to how that conclusion – the same conclusion, or the exercise of power, whether that conclusion is correct?

MR GAGELER:   I cannot give your Honour any a priori reason for that.  I mean, one could construct a tribunal that in every case was to consider again at the time of its own decision the decision that was previously made.  I accept that.  But one could equally construct a tribunal, the function of which was to determine whether or not something had been done in the past was correctly done at that time, and the real question is, which paradigm better ‑ ‑ ‑

KIEFEL J:   But why does one operate better in the terms of reconsideration of an administrative decision?

MR GAGELER:   It best explains the structure of section 43(1) read with section 43(6), and it best conforms to the nature of review that one extracts from those few snippets in the Kerr Committee Report and in the Bland Committee Report. But I cannot say to your Honour, and I do not, that ‑ ‑ ‑

KIEFEL J:   There is a good reason otherwise.

MR GAGELER:   ‑ ‑ ‑ of the nature of administrative review one is necessarily better than the other.

KIEFEL J:   Just so I am clear on it, if there was a change in the law after the original decision‑maker’s decision but which nevertheless could have applied if it had been operative at that time would you say that is denied the Tribunal as well?

MR GAGELER:   Well, that in a sense was the question in Esber and the answer in Esber is probably but it depends upon the particular circumstances of the transitional divisions.

KIEFEL J:   No, no, assume in favour of the operation of the provision.  Are you saying that the review of the conclusion should or should not have regard to the alteration in the law?

MR GAGELER:   The default position would be that it should not, the correct question being whether the decision was right at the time.  If the answer to that question is no, then the Tribunal’s re-exercise of the discretion or power substituting its own decision may be pursuant to the current provisions.

KIEFEL J:   But if you are leaning in favour of saying that it should not alter a view of the correctness of the original decision, you are saying that there is - the prima facie viewpoint must be that there is something - the integrity of that decision should be preserved unless good reason is shown for an inherent error in that decision.  You are coming very close to saying that there is nothing wrong with the reasoning of the decision that can be the only basis, are you not?

MR GAGELER:   Well, I might be coming close to it but I am not saying it, your Honour.

KIEFEL J:   You do not say you are there.

MR GAGELER:   I am not saying it.  There can be circumstances that existed at the time of the decision that were unknown to the decision‑maker that can be taken into account by the Tribunal to say that the decision at the time was either right or wrong.

KIEFEL J:   You do not think good administrative decision making would think it was a good idea to correct that in light of the law as it came to be?

MR GAGELER:   In light of the law as it might change?

KIEFEL J:   Yes, as it came to be, but which operated on the original decision, because otherwise the effect you would have is that that decision would stand but would have to be set aside on another basis on an appeal to – on a review by the court ‑ ‑ ‑

MR GAGELER:   That is correct.

KIEFEL J:   ‑ ‑ ‑ for legal error, so you would have two processes.  You could not correct it as an administrative decision.

MR GAGELER:   In the light of a change in the law?

KIEFEL J:   Yes.

CRENNAN J:   The Tribunal could not correct.

MR GAGELER:   The Tribunal could not correct.

KIEFEL J:   No, the courts would have to.

MR GAGELER:   Well, I am not sure, your Honour, I think in the scenario your Honour is putting to me the decision was correct in law at the time it was made.  So the courts would ‑ ‑ ‑

KIEFEL J:   Yes, but the Tribunal would not be able to correct it, would not be able to say ‑ ‑ ‑

MR GAGELER:   No, but nor would a court, I think.  It would be different perhaps if it were a retrospective change in the law and then both could correct it.

KIEFEL J:   In any event, I understand what you are saying.

MR GAGELER:   Yes, your Honour.  Your Honours, I think, have been taken to Coal and Allied (2003) CLR 194, but what I say about Brideson and the explanation of Brideson is really taken up there in the joint judgment at paragraphs 15 through to 17. I ask your Honours to compare the terms of section 45 of the Commonwealth Act with section 43 of the – I am sorry, section 45 of the Act there under consideration with the terms of section 43 that we are now concerned with, and I do not waste time drawing the comparison on my feet.

Your Honours, can I come to the cases in the Federal Court that have taken a different view.  They really in our reading of them all start with the first instance decision of Justice Wilcox in Ford 65 ALR 323 in 1986. The relevant passage is at page 328. It is just before the reference to Drake at about point 3 of the page.  The sentence is that:

The tribunal was not confined either to the material which was before the Commissioner, as primary decision‑maker –

No problem with that proposition, but then he has –

or the events which had occurred up till that time –

and he cites Drake and Nevistic.  Now, Drake, in our submission, does not say that, nor does Nevistic.  I will not take your Honours to that.  It is a matter of assertion and it is not supported by the authorities to which his Honour refers.  Interestingly, this was in March 1986, just a couple of months before Justice McHugh said what he said in Strange-Muir, obviously without knowledge of what Justice Wilcox had said in this case.  But this is the beginning of the idea, as expressed in the Federal Court in any event, so far as we can see, that it is open to the Tribunal to be taking into account events which occurred up till the time of its own decision in determining whether the decision under review is to be taken as correct or preferable.  Then the next case is Jebb v The Repatriation Commission 80 ALR 329, a decision in 1988.

KIRBY J:   I have the AAR report.  What is the ALR report?

MR GAGELER:   The AAR report?

KIRBY J:   Yes.  This is Jebb.  What is the ALR you just gave?

MR GAGELER:   I am sorry, 80 ALR 329.

KIRBY J:   Thank you.

MR GAGELER:   The point about Jebb is that his Honour has often repeated reference to an administrative continuum which appears at page 333 of the ALR report.

HEYDON J:   How near is it the end or the beginning, or any heading?

MR GAGELER:   It is the paragraph that begins, “I turn to the matter that was the main ground of challenge by Mr Smith”.

KIRBY J:   That is page 288 of the ALR.

MR GAGELER:   Yes.  Over the page at 289 your Honours will see a reference to:

the general approach of the Administrative Appeals Tribunal has been to regard the administrative decision‑making process as a continuum and to look upon the Tribunal’s function as a part of that continuum –

KIRBY J:   What do you say in relation to that, because Justice Davies was pretty experienced in this area?

MR GAGELER:   He certainly was, your Honour.  What he was saying at this point was in the context of review of repatriation decisions, which were originally under the Repatriation Act by this time had become decisions under the Veterans’ Entitlements Act and what he is citing, with one exception, the case of Tiknaz, a social securities case, what he is citing is repatriation cases in the Tribunal.  He goes on, if I can pick up the relevant part of his discussion, at page 292 of the AARs and page 336 of the ALRs to make it clear that as he saw it there were provisions within the Veterans’ Entitlements Act which made it clear that the AAT’s decision was to be operative as for the future. 

So all I am saying about Jebb is that what his Honour was saying at that stage was said in the context of a particular decision‑making structure which, as his Honour saw it, contemplated the Tribunal’s standing in the position of remaking the decisions which were under review.  Where that then got generalised was in Freeman, which his Honour decided a little later in 1988. Your Honours see that in 19 FCR 342, a decision in August 1988.

KIEFEL J:   I am sorry, what was the name of the case?

MR GAGELER:   Sorry.  Freeman v Secretary, Department of Social Security.

KIEFEL J:   Yes, thank you.

MR GAGELER:   A decision in August 1988, and it was a case about a cancellation of a pension.  Your Honours will see at page 343 the argument of Mr Katz.  What Mr Katz was saying was that on the findings that were made by the Tribunal there were grounds for the cancellation of the pension that existed at the time of the original decision but those grounds had ceased to apply by the time of the Tribunal’s decision so that applying Ford the Tribunal was obliged in law to set the cancellation decision aside.  Now, his Honour rejected that submission.  It is very similar to the submission that is here put.  He rejected it, in our submission entirely correctly, at the bottom of page 344 in these words:

The jurisdiction of the Tribunal arose from the application made to it to review the decision of the delegate who, on 18 August 1987, affirmed the decision of the officer made on 19 May 1987.  The function of the Tribunal was therefore to reconsider the decision of 19 May 1987 and to determine whether the decision to cancel Mrs Freeman’s widow’s pension at that time was the correct or preferable decision to have been made.  In coming to its decision, the Tribunal was entitled to take into account all the facts proved before it.  But the issue was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision –

Now, in our submission, that is a correct understanding of the function of the Tribunal and his Honour made clear the irrelevance of later events at the bottom of page 345 in the last paragraph ‑ ‑ ‑

KIRBY J:   We will have to read this, but at page 343 his Honour cites what Justice Wilcox says in Ford and says that he could not have put it better and that includes the passage that you do not like.

MR GAGELER:   Yes, that is right.  What I am saying is that his Honour’s disposition in this case is absolutely correct.  What is wrong with this case, and this is really where the complication arises, is that his Honour really takes Ford as being correct and generalises his own discussion in Jebb and treats that as supporting a general proposition or a general principle that the function ‑ ‑ ‑

KIRBY J:   We are not bound by any of this, though I must say I would pay particular respect to what Justice Davies said because he was very experienced in the Tribunal.

KIEFEL J:   But in Freeman the nature of the decision required the evidence to be cut off at a point of time, did it not, because the evidence relevant to the cancellation was as to her living conditions and whether or not she was living in a de facto relationship.

MR GAGELER:   Yes.

KIEFEL J:   So it was absolutely confined necessarily to a point in time.  That is why his Honour said that although the Tribunal found facts which would have allowed her at a later time to have maintained the pension, at the time it was made it was correct.

MR GAGELER:   That is one explanation.

KIEFEL J:   The Tribunal itself said, “If she reapplies for the pension, we hope this is taken into account.”

MR GAGELER:   Yes.

KIEFEL J:   A lot of the pension cases are determined on the basis that their structure is cancellation, once that is made, you have to reapply.  So there is a cut‑off point.

MR GAGELER:   Yes, that is certainly one explanation of the case and that is the way it has been interpreted in subsequent decisions as turning on the precise nature of the decision under review.  Our primary submission is that it is better explained as a correct application of the general review function of the Tribunal and that the statement that it endorses from Ford is too widely stated.

CRENNAN J:   He also picks up on an idea you have advanced, that you need to distinguish between 43(1)(a) and the other possibilities in (b) and (c).

MR GAGELER:   Exactly, yes.  So correctly decided, the reasons given for the actual disposition of the case entirely consistent with our general submission as to the nature of review.  The only thing wrong is the endorsement of Ford and Jebb.  Then you see in the cases in the Federal Court – and I will just mention these, I will not take your Honours to them – that Ford then gets picked up in that passage in Fletcher 19 FCR 442 at 453 in a passage that I have already taken your Honours to where in language simply unnecessary for the decision in that case it is said by reference to Ford that it is permissible for the Tribunal to take into account events that have occurred since the decision under review and then that just flows on from there. 

Then Freeman gets accepted in 1992 in a case called Hospital Benefit Fund 39 FCR 225. I do not ask your Honours to turn it. There Freeman is explained in the terms your Honour Justice Kiefel has put to me as really turning upon a characterisation of the decision under review as one to be made by the original decision‑maker and then remade by the Tribunal at a particular point in time.  But that is really the way in which this distinction has emerged in the Federal Court between 1986 and 1988 and has just been continued since that time.

CRENNAN J:   Of course, this particular case is not a 43(1)(a) case – that is to say, a particular tribunal decided to do something different.

MR GAGELER:   That is right, but this particular tribunal did not ask itself the first fundamental question:  was the decision right at the time it was made?  That is the problem.  That is why we say and it is really the first way which we deal with ground one, that the Freeman distinction based upon an acceptance of the correctness of Ford is rather an elusive distinction.  The correct position is that the Tribunal asks in every case whether the decision under review was correct or preferable at the time it was made and the Full Court was correct here to hold that the Tribunal erred because it did not ask that fundamental question. Your Honours, that is our first way of dealing with the first ground.

The second point we make about the first ground is that if that is incorrect, if Freeman is to be looked at in the way that the Full Court said in Hospital Benefit Fund it was to be looked at, then the majority here in the Full Court was correct in saying that the decision to be made under section 303(1) was properly a decision to be made and remade by the Tribunal at a particular point in time and to make that good, can I say this.  The context for the decision under section 303(1) is ‑ ‑ ‑

HAYNE J:   The notion of a decision at a particular point in time, how is that divorced from the grounds, as you say it must be?  Are you not again eliding decision and grounds by this injection of time?

MR GAGELER:   No, but I am taking the need for there to be some grounds and the nature of the grounds that need to exist as part of the context within which I seek to say that the decision in section 303 is to be anchored at a particular point in time.  Can I deal with it this way?  The migration agent has been registered under section 289.  That is part of the context.  The migration agent has been registered for a limited time – that is referred to in section 299 – which can get extended or renewed under section 300, all of that in circumstances where, under section 290, the agent could not have been registered if MARA, as the primary decision‑maker, had been satisfied at any earlier time that the agent was not fit and proper and in circumstances where registration brings with it, under section 314, an immediate and continuing obligation to comply with the code of conduct.  

Now, the power to make a decision under section 303(1) in that context is then triggered by MARA becoming satisfied of one of the grounds that I referred to in section 303(1)(d) through to (h), becoming satisfied necessarily within the confined period of registration.

Then the exercise of power under section 303, upon MARA becoming so satisfied within that confined period, has consequences which in the terms of the Act are direct and pretty immediate temporal consequences.  The cancellation brings the end to registration, obviously.  It prevents re‑registration then for a period of five years – that is referred to in section 292 – and it immediately removes the exception to the prohibition in section 280.  That is the prohibition against giving immigration assistance.  There is also a requirement that your Honours may have seen under section 305A for publication of the decision, it is said, as soon as possible and the notification of clients under section 305B.  All of those are pretty immediate temporal consequences.

Accepting fully the basic point that our learned friends make, that the exercise of power under section 303(1) is protective and not punitive, the question remains, in our submission, whether a particular migration agent ought still be registered from the particular point in time of MARA becoming satisfied in terms of section 303.  The scheme of protection, in our submission, is really one that is best characterised as giving to an agent a privilege flowing from registration which is inherently defeasible.  It is inherently defeasible on and from the Authority becoming satisfied in terms of (d) through to (h) in section 303(1).

If one is to, as our learned friends would put it, substitute upon review the Tribunal for the Authority and have the Tribunal re‑exercise the power conferred by section 303(1) at the time of the Tribunal’s decision, then what you are really doing, in our submission, is changing the nature of the right that flows from registration, and you are also changing the nature of the protection of the public for which the division provides.  For those reasons and also for the reasons of the majority, we say that the first ground of appeal should not prevail.

Can I move to the second ground, which I will deal with extremely quickly.  Your Honours have noted, I think, that the condition for the lifting of a caution was originally the condition which was imposed by the Tribunal under section 41 as a condition of the stay of the cancellation decision.  That is what you see at page 250, line 35.  It re‑emerged in the final decision of the Tribunal at page 325, purportedly as a condition for the lifting of the caution, relying upon section 304A, but for the express purpose that you see in the Tribunal’s reasons at page 334, about line 28 – maybe line 25 – being to allow Mr Shi to continue to practise as a migration agent with appropriate constraints.

Now, the argument, which is really quite short, is that you cannot properly describe a condition of the nature that was imposed as a condition for the lifting of a caution within the language of section 304A where the condition has as its purpose and has as its design to enlarge the statutory consequences of a caution and to limit the privileges that flow from registration, privileges which a caution simply leaves undisturbed.

If you look at section 303(1), there is a specific and limited range of options that are given to the Authority in the orders that it can make.  It can cancel, it can suspend, and it can caution.  There is no provision for conditional registration, and there is no provision for partial suspension, and one way or another, the condition that had been purportedly imposed in the present case as a condition for lifting of a caution really amounts to conditional registration or partial suspension.

KIRBY J:   That would be a pretty overwhelming argument if Parliament had not inserted this special provision for conditions.

MR GAGELER:   Well, it is a special provision for conditions for the lifting of a caution, and nothing more.  This is 304A.  It is about the circumstances in which a caution that gets recorded on the register will be taken off the register and nothing more.  In our submission, it has nothing to do with limiting the consequences that flow from registration.

HAYNE J:   Well, what are the kinds of condition that can properly be imposed under 304A?

MR GAGELER:   I am reminded in our submissions in paragraph 35 we have given an extract from an explanatory memorandum where in paragraph 38 of ‑ ‑ ‑

HAYNE J:   So, for example, completion of a course?

MR GAGELER:   Yes.

HAYNE J:   What is the difference between requiring an agent to complete a course and requiring an agent to act only as employee under supervision?

MR GAGELER:   It is not a very big difference between those two things, your Honour, but there is a big difference if one goes to the other condition that was imposed between requiring an agent to take certain steps for a caution to be lifted and requiring an agent within the period in which caution operates not to undertake certain forms of immigration assistance which the agent would otherwise be entitled to undertake as a consequence of registration.  So it is really fundamentally in respect of the second of the conditions that the point is best made.

KIEFEL J:   Are you saying that the conditions in that sense suggest a lack of entitlement to registration?

MR GAGELER:   Well, a lack of entitlement to undertake the activities that flow from registration.

KIEFEL J:   Yes, in that sense.

MR GAGELER:   Yes, that is really the basic point.  If you look at the nature of a caution under section 303, all that it is is a public admonition.  It is something that gets noted on the register.  Your Honours have already seen section 287(2)(h).  It can then be removed under section 287(5)(b) if the caution is no longer in effect, unless of course there is a public register.

Then notice of the decision to impose the caution also has to be published under section 305A and that is by prescribed means and if you look at the regulations the prescribed means are to publish it on the MARA website.  That publication then has to be removed under section 332C(1)(b) in prescribed circumstances which are fulfilled when the caution ceases to be in effect.

So all you have with a caution is a public admonition that is noted on the register and published on the website and when you lift the caution, all you are doing is taking it off the register and removing it from the website.  But the statutory premise of a caution is that the person continues to be registered and continues to have the privileges that flow from registration and that is what is sought to be undermined by what is said to be simply a condition for the lifting of a caution.  If the Court pleases, those are our submissions.

CRENNAN J:   I have just got a question, if I may.  I do not want to detain you too long, Mr Gageler, but this does trouble me so I will ask you.  Why was not a finding by the Tribunal that out of 98 particulars of delinquencies, they are only persuaded as to 50 of them, or whatever it was, why is that not tantamount to a finding that the original conclusion is not correct?  Forget preferable because we are not talking about discretions here.  Do you follow what I am saying?

MR GAGELER:   Yes, I follow what you are saying.

CRENNAN J:   I mean, really, as I understand it, one of your arguments is, well, they have not gone through the hurdle of saying, “Well, it was not the correct and preferable decision, therefore, we will not affirm, therefore, we will now have a look at the evidence before us and do something different under 43(1)(c)(i)”, I think it turned out to be.  But my question really is, why is not a finding in relation to the 98 delinquencies that only about half of them were – the Tribunal was only satisfied with approximately half of them and in relation to the half they were satisfied about that could be dealt with in some way.  They were the protection visa ones as distinct from other ones.  Why is it not tantamount to a finding the original decision‑maker’s decision is not correct, therefore it is appropriate to move on to looking at the evidence before the Tribunal in terms of the possibility of making orders  under 43(1)(b) or (c)?

MR GAGELER:   Yes, it could have been approached that way and I am certainly not suggesting that on the material which on our argument was legitimately before the Tribunal and properly taken into account, that the Tribunal could ‑ ‑ ‑

CRENNAN J:   Because your client did not press every one of the 98 delinquencies before the Tribunal, as I understand it.

MR GAGELER:   No, that is right.  I am not saying that the Tribunal could not have taken the view that the decision under review was not the correct or preferable decision at the time it was made.  But it is very clear that the Tribunal in taking the view that the decision under review should be set aside placed weight on events that have occurred since that decision.

CRENNAN J:   I suppose I am saying to you why does it have to use a particular form of words?  Why is not a finding that they are not satisfied about half of those delinquencies is implicitly, even expressly to some extent, a finding that the original decision‑maker’s decision was not correct, because it is a decision about fitness for practice and proper purpose based on 98 delinquencies?

MR GAGELER:   You need to look at what the Tribunal actually did.  If you look at page 331, paragraphs 15 through to 17, it is very clear that the Tribunal was taking into account recent events in determining whether the decision made by MARA should be treated as correct or preferable.  That is very clear.  Indeed, it has been common ground by reference to those paragraphs that really other things that the Tribunal said that that is what it was doing.  If the Court pleases.

KIRBY J:   You are content with the orders that Justice Edmonds made, are you?

MR GAGELER:   Yes.

KIRBY J:   You say they are the correct orders in the circumstances?

MR GAGELER:   Yes.

KIRBY J:   Yes, Mr Game.

MR GAME:   If the Court pleases, I just want to make a few points in reply. First, if Mr Gageler is correct in taking a matter that your Honour Justice Hayne raised with him, one might find oneself in the position where the primary decision was correct on the material before it, but the Tribunal would come to a different conclusion on the material before it, yet the application for review would be dismissed. What that would mean is that section 43 would have contained within it a fetter which does not exist. In practical terms, what that would mean is that a person in this appellant’s situation would either have to prove that he was a fit and proper person twice, ie, then and now, or if you do not get to the second phase then the whole thing collapses if it is correct or if it is wrong. So you never get to the second phase. Either he would have to prove that he was fit and proper twice or one would be inexorably bound in every case in the wrongness or rightness of the decision at the time it was made. None of that is mandated by section 43.

Equally to the point – nothing in Re Lawlor or Drake or Strange‑Muir supports such a construction of the provisions and the heresy that is said to have sprung up in Ford is a fictional heresy because the cases really speak with one voice about this subject.

May I take up a matter that your Honour Justice Kiefel raised.  In this particular case the law did change so section 304A is a reasonable example.  If we just put aside the particular conditions in this case to pare down the example, if the Tribunal thought that if it was possible to caution with a condition it would impose a caution.  According to the opponents, the respondent’s argument, it could not do so, because it was bound by the circumstances as they existed.  Yet the transitional provisions make section 304A applicable to any extant applications.

May I take up the question raised by Justice Crennan.  If one were talking, shall I say, House v The King error, then discretion would be engaged once you had come to a different number of breaches of the Code.  In a House v the King exercise you very rarely actually get to the point of saying whether the decision was a correct decision or incorrect decision, because often enough you do not get to that position because you are not in a position to make that assessment.  The point about this is to show, in a sense, how inapt it is to embark upon this preliminary exercise about whether or not the decision was correct at the time it was made.

Finally, in the respondent’s submissions, both here and in both courts below, it was said that on the authority of Freeman we must lose and that is why we lost before Justice Edmonds and it is a big part of why we lost in the Full Court, yet a proper examination of Freeman makes it plain that we must succeed.  Freeman was a case about an entitlement to a person who was a widow but not married and the pensioner in that case was in a de facto relationship which was deemed to be marriage.  She was in that de facto relationship at the time of the claim; she was not later.  The fact that she was not later had no significance in respect of the earlier period of the claim and there was no continuing application.

So the proper application of Freeman actually produces a result in favour of the appellant.  As I say, that really has been the foundation of the case against us until, as it were, the new argument has emerged in the respondent’s submissions in this Court.  Now, in respect of the orders sought ‑ ‑ ‑

KIRBY J:   What you need is to add an application that in view of the orders of Justice Edmonds there be an order that the appeal to the Federal Court of Australia be dismissed.

MR GAME:   Yes, that is correct.

KIRBY J:   That is on page 427.

MR GAME:   In substitution for the orders of Justice Edmonds, the appeals be dismissed.

KIRBY J:   Would you be normally entitled to the costs in the Federal Court if it were dismissed?

MR GAME:   Yes.

KIRBY J:   Dismissed with costs.

MR GAME:   We should have costs in the courts below, yes.

KIRBY J:   Were there any special orders in relation to costs?  You are the appellant so I do not imagine there were, the special leave hearing.

MR GAME:   No, there are no – we were the appellant.

KIRBY J:   If you lose, you have to pay the costs.

MR GAME:   Yes, we put an argument in our submissions in reply as to why we should have costs if we succeed on ground 1 and not ground 2 and we maintain that submission, if not all of our costs, a substantial proportion thereof because this case is really about ground 1.  If the Court pleases.

KIRBY J:   Yes.  The Court is indebted to both of you for your assistance and it will reserve its decision.  Adjourn the Court now until Tuesday, 15 April 2008 at 10.15 am in Canberra.

AT 3.47 PM THE MATTER WAS ADJOURNED