Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: followed
Of course, the tribunal's 'satisfaction' as to Mr Seymour is not unexaminable, but its decision as to that matter is of a subjective nature: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-277 per Brennan CJ, Toohey, McHugh and Gummow JJ. And, in exercising its functions, the tribunal stood in the Authority's shoes and, pursuant to s 43(1) of the AAT Act that included the requirements in considering Mr Seymour's application, to act according to substantial justice and the merits of the case free from technicalities, legal forms or rules of evidence (see s 311 of the Act). Here, the question was the tribunal's personal satisfaction and it was free to attribute such weight to factors as it saw fit (185 CLR at 281). 137 I am of opinion, having regard to the reasons it gave, that when the tribunal made its evaluation of Mr Seymour at [37]-[38] it did so on a separate and independent basis from the vexed question of whether the contempt was a criminal offence. That is clear because the tribunal at [38] put the question of the nature of the contempt to one side and referred to the objective facts before Buddin J and the seriousness which his Honour attached to the conduct of Mr Seymour as reflected in the substantial sentence imposed. There is no error of law in what the tribunal did in this regard. 138 It was for the tribunal to form its own state of satisfaction under s 290(1) as to the fitness and propriety or integrity of Mr Seymour. In doing so, it took into account matters under s 290(2)(c) and (h) independently of one another; that is, first, it considered that the contempt was a criminal offence thus enlivening ss 290(2)(c) and 312(1)(e) but secondly, and separately, it considered the objective facts revealed by the judgment of Buddin J, thus acting under s 290(2)(h). 139 In the second of these approaches to forming an opinion under s 290(1) the tribunal was entitled to have regard to, and form its own view as to, Mr Seymour's behaviour, as revelatory of the issue under s 290(1). It considered how he submitted, as it suited his own apparent self interest, in the Court of Appeal that contempt of the injunction was a criminal offence thus having the benefit of the principle that there is no appeal against an acquittal and in the tribunal, that it was not a criminal offence and so avoiding ss 290(2)(c) and 312(1)(e). Of course, each of those stances may have been legally open. But it was for the tribunal to be satisfied that a person who could adopt such flexibility about the very serious matter affecting him in the different contexts of the Court of Appeal and the tribunal, where different and opposite characterizations suited his purpose, was a person of integrity or was fit and proper within the meaning of s 290(1). 140 There is no error of law in the evaluative process which the tribunal took. It had regard to both the unmeritorious and the meritorious factors under s 290. It referred to the fact that Mr Seymour's contemporaries regarded him as a person having real moral worth but it weighed that against his history of being struck off as a solicitor, the lack of explanation for and the fact of the consent injunction in 1994 and the conviction and sentence by Buddin J.