Case: Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: referred to
an interpretation was, it was submitted, no more than an application of the 'general principle' referred to in Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40 ; (1986) 162 CLR 24, at 45 per Mason J (Gibbs CJ and Dawson J agreeing), that: '... an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made ... [which] is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.' As was said by Mason J in Peko-Wallsend (at 45): 'It would be a strange result indeed to hold that the ... [decision-maker] is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of ... [the case] , and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading.' It was further submitted that an interpretation of s 303(1)(f) which allows for the Tribunal to consider information up until the time of its decision is also consistent with the objects and purpose of the scheme for registration of migration agents. The Minister's Second Reading Speech described the scheme as 'a registration scheme for migration agents designed to improve standards of professional conduct and quality of service', reflecting: '... the Government's concern over the level and nature of complaints made against incompetent or unscrupulous agents, complaints which would be familiar to many members of this chamber. It also recognises the fact that many of those who are likely to seek the assistance of agents are among the most vulnerable in our society, sometimes having a poor grasp of English, fear of authority or meagre financial resources.' (G. Hand, Second Reading, Migration Amendment Bill (No. 3) 1992, House of Representatives Hansard, 27 May 1992, p. 2937.) The object of the disciplinary provisions in Part 3 , it was submitted, is to protect the public and to maintain proper standards in the migration profession rather than to take action by way of punishment. It would be inimical to this if the Tribunal was prevented from considering relevant information going to the issue of fitness to practice because the information had arisen after the decision under review. There was nothing, the respondent submitted, to suggest that the scheme would be promoted by restricting the Tribunal's consideration of an agent's integrity and fitness to practise to the earlier date of the decision under review, and to ignore the agent's current integrity and fitness to practise. In summary, the Authority submitted, by way of reply, that: (1) Applying the principles stated in Freeman , the review of a decision to cancel a migration agent's registration on a particular date involves a determination of whether that decision was the correct or preferable decision at that date. (2) Where a decision is made to cancel, say because an agent does not have the necessary ambit of knowledge of migration procedures at the time of the decision (as shown by a track record of failings in this regard), a review applicant cannot show that that was not the correct or preferable decision by acquiring the relevant knowledge thereafter. If the person has become eligible, he or she may then be able to apply for registration afresh. (3) Similarly, where a decision is made to cancel because of massive and serious violations of the Code of Conduct, it would be absurd if a review applicant could seek to rely upon compliance with the Code after the date of the decision. Compliance achieved by enforcement proceedings is not what the legislation is designed to achieve. Agents are required to comply with the legislation when registered. (4) For these reasons and the reasons outlined above, this Court should follow Freeman and the cases that have applied it and conclude that the question before the Tribunal, in relation to the cancellation decision, was whether the decision to cancel on 14 July 2003 was the correct or preferable decision having regard to the circumstances pertaining up to that time. (5) The respondent argued that it would be against the policy of the Act if the Tribunal were not permitted to have regard to events following the cancellation decision. He suggests there is no reason why the Tribunal should not find that it has become satisfied of s 303(1)(e) if an agent becomes bankrupt during the review processes. The Authority says that this reasoning is flawed and not necessary. A later bankruptcy does not indicate that any earlier decision to cancel because of lack of integrity was the correct or preferable decision. It is irrelevant to that question (or without more would be). The Authority could, of course, cancel the registration afresh on the basis of the bankruptcy when it becomes aware that that has happened. A person whose registration was wrongfully cancelled should not have it affirmed simply because a reason to cancel it subsequently arises. There is also a fresh power to cancel when a proper reason arises. Likewise, a person whose cancellation was correct or preferable should not be able to avoid that proper consequence because of actions taken after the decision to rectify perceived deficiencies. (6) Contrary to the respondent's submission, no part of the Authority's argument requires the notion of fitness or character to be narrowly construed. However, success rates in late 2003 and 2004 simply have no bearing on the respondent's fitness before that time; nor does any absence of subsequent breaches of the Code. (7) It may be accepted that evidence of 'character' after the date of the decision could be relevant because 'character' has been held to involve the enduring moral qualities of a person. So, for example, evidence that a person has lied or not been frank in their evidence after the date of the decision would be relevant not directly as breaches of a rule requiring honesty but as an indicia of a person's enduring moral qualities. An inference would be available that an adult prepared to lie to or mislead the Tribunal (or just not be frank) at its hearing had the same moral qualities at the time of the decision. However, this reasoning does not mean that evidence relating to every criteria post the cancellation decision is relevant. For example, evidence that an agent has knowledge in 2004 simply does not show that he had that knowledge in 2003. (8) The respondent's reliance upon Peko-Wallsend is misconceived. The Authority does not say that the Tribunal may not have regard to the most up to date evidence at hand. However, it has to be evidence that is relevant to the question at hand; the position in July 2003. (9) Contrary to the respondent's submission, the absence of a time limit for the making of a decision to cancel does not have the result that the Tribunal is required to make its decision on the basis of all evidence up to the time of its decision: Freeman ; Nong . (10) The respondent seeks to get some assistance from extrinsic materials. It is said that his construction is consistent with the object stated in the passage quoted. However, without conceding that this is a proper use of extrinsic materials, it may be answered by noting that the Authority's construction is also consistent with that object. (11) Contrary to the respondent's submission, it would not be inimical to the achievement of the objects of the provisions if the Tribunal could not have regard to adverse developments that happened after the making of the decision under review. The Authority would be having regard to such conduct and is ideally placed to take appropriate action even if a review is pending in relation to an earlier decision (indeed this happened in this very case, when the respondent's registration was suspended while the cancellation review was pending). (12) It would, however, be inimical to the achievement of the objects if agents who have been cancelled for failing to comply with the Code of Conduct or failing to maintain necessary knowledge can avoid that legislated consequence by relying upon subsequent improved conduct and subsequent compliance. A system of this kind is less likely to be effective in ensuring that agents comply at all times if there is a perception that (the consequences of) breaches can be avoided. (13) The respondent's submissions at [34] supra misconceive Davies J's reasons in Freeman . They did not turn upon the fact that the Tribunal had affirmed the cancellation decision but upon the nature of the decision under review. The respondent's argument is some kind of bootstraps argument. The Tribunal's decision is being challenged because it failed to appreciate the nature of its task. That task does not have a different nature according to the conclusion it reaches at the end of the task. (14) The respondent submitted that all the evidence relied upon by the Tribunal in addressing the question it answered (as at September 2005) would have been available if it had asked itself the correct question (as at July 2003). This is said to support a futility argument. This Court should not accept the proposition that the Tribunal's error (it is implicitly admitted by the respondent that it did answer the question as at September 2005 and, on the Authority's submissions as to law this would be an error of law) could not have made a difference. (15) First, some of the evidence was not relevant to 14 July 2003: (a) 'Is this form of file note taking ... does this represent approximately what your current practice would be with taking files notes--- Yes ... .' (AB 550) (b) 'Is that representative of your current practice in relation to client agreements?' (AB 551) (c) 'Mr Shi, do you now keep copies or is it your practice to keep copies of letters on file to your clients? Yes, yes.' (AB 555.3) (d) The evidence of his success rate from the beginning of 2003 until August 2004 presented in a form that did not disclose that rate as at July 2003. (AB 566 567, 575 576, 803, 775 776) (16) In any event, even if the evidence were all relevant it may have been weighted differently if the correct question were asked. The Court should remit the matter to the Tribunal if it finds that the Tribunal misunderstood its task. (17) As the Tribunal dealt with all four review decisions together, the Court cannot be sure that the Tribunal did not have regard to the later evidence only in relation to the decisions of later dates. The point is, however, that the Tribunal dealt with them all together when it needed to separate the decision according to their nature and the evidence that was relevant to each. The fact that it did not do this proves the Authority's case rather than the reverse. Noting the respondent's submission that the Authority was seeking something in the nature of merits review in its second ground, the Authority submitted that this was not the case because, here, the facts have been fully found: See Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 355 356 per Mason CJ; Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7 8 per Mason J. The Authority's case was that it was not open on the facts found by the Tribunal (see the Authority's principal submissions at [53] supra) to conclude otherwise than that the respondent was not a fit and proper person. Another way of identifying the same error was said to be highlighted by the respondent's submissions. The respondent was made subject to a supervisory obligation during the stay orders. This required him not to do protection visa work and to be supervised by another migration agent. This order is appropriate in circumstances where the Authority considered that the person is not fit and should be cancelled or suspended but a stay is put in place while the correctness of that decision is being reviewed. If however the Authority's decision to cancel or suspend was not correct, this must be because the person was fit and proper. On this conclusion, it was argued, no further supervision or restrictions would be appropriate. The Authority submitted that the very fact that the Tribunal considered that the public interest required the respondent to be supervised and to have his areas of work limited reveals that the Tribunal did not yet think he was fit and proper to be a migration agent. That is how the Court can readily conclude that the Tribunal has erred in its application of the law to the facts in this case. The Authority then turned to address the respondent's submission that the Act and the Code envisage that an agent who is not competent in certain areas of practice as a migration agent can nevertheless be fit to be an agent. Support for that proposition was said to be found in cl 4.1 and 4.2 of the Code. The Authority submitted that neither of those aspects of the Code accept a lack of competence. It envisages that agents may choose not regularly to practice in certain areas, which may lead an agent to be 'unsure' of what is appropriate. Rather than spend time and money looking this up, an agent can refer the matter to another who does work regularly in the field. This does not warrant the notion that migration agents can be fit and proper if they cannot be trusted or are otherwise unable to work in certain areas of practice.