FEDERAL COURT OF AUSTRALIA
Nair v Minister for Immigration & Multicultural Affairs [2000] FCA 1305
migration – review of decision to deregister applicant as migration agent – whether applicant should have been afforded procedural fairness prior to deregistration – whether plain words of necessary intendment excluded requirement of procedural fairness – whether procedural fairness afforded – whether futile to grant applicant relief in any case – whether Migration Agents Registration Board “provide[d] with” required information when information posted to, but not received by, Board – whether renewal fee owing to Commonwealth “paid” when cheque posted to, but not received by, Board.
CRIMINAL LAW – whether breach of s 312(2) of Migration Act common law offence of contempt of statute.
PRACTICE & PROCEDURE – concession by party on matter of law – whether binding on Court.
ADMINISTRATIVE LAW – requirement of procedural fairness – when procedural fairness excluded.
REMEDIES – judicial review – discretion – futility.
WORDS & PHRASES – “provide with”, “paid”.
Migration Act 1958 (Cth), ss 276, 286, 288(1), 289(2), 290, 291(b), 292, 293, 294, 296, 297, 298, 299(1), 299(2), 300, 301(1), 302, 303, 305, 306, 309(1), 309(2), 312
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 11(1)(c), 11(3)
Judiciary Act 1903 (Cth), s 39B(1)
Migration Agents Registration (Renewal) Levy Act 1992 (Cth), ss 4, 5, 6, 7
Administrative Appeals Tribunal Act 1975 (Cth)
R v Horseferry Road Justices, ex p Independent Broadcasting Authority [1987] QB 54 referred to
Annetts v McCann (1990) 170 CLR 596 followed
Commissioner for Railways (Qld) v Peters (1991) 24 NSWLR 407 referred to
Stead v State Government Insurance Commission (1986) 161 CLR 141 followed
Abebe v The Commonwealth (1999) 197 CLR 510 followed
Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation (1990) 96 ALR 153 discussed
Hayman v Griffiths [1988] QB 97 discussed
Customs and Excise Commissioners v W Timms & Son (Builders) Ltd [1992] STC 374 referred to
R v Kern’s Motor Town Sales Ltd (1968) 68 DTC 5141 discussed
Oxford English Dictionary 2nd ed
NAIR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS,
MIGRATION AGENTS REGISTRATION AUTHORITY and SECRETARY OF THE DEPARTMENT OF IMMIGRATION & MULTICULTURAL AFFAIRS
N 137 of 1999
KATZ J
3 OCTOBER 2000
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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N 137 of 1999 |
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BETWEEN: |
MANI SUBRAMANIAM NAIR APPLICANT
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AND: |
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT
MIGRATION AGENTS REGISTRATION AUTHORITY SECOND RESPONDENT
SECRETARY OF THE DEPARTMENT OF IMMIGRATION & MULTICULTURAL AFFAIRS THIRD RESPONDENT
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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N 137 of 1999 |
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 The present proceeding involves, in substance, an application by Mr Mani Subramaniam Nair for review of a decision made by the Secretary to the Department of Immigration and Multicultural Affairs (“the Secretary” and “the Department” respectively). That decision was one made under subs 302(1) of the Migration Act 1958 (Cth) (“the Act”) to deregister Mr Nair, who was, at the relevant time, registered as a migration agent under s 286 of the Act. (When, in these reasons for judgment, I refer to various provisions of the Act, I do so in the form in which they were as of 31 January 1996, as appearing in Reprint No 6 of the Act. It was agreed by the parties during the hearing of the proceeding that for me to do so would be appropriate for present purposes.) It is convenient to mention now that, at the time of the making of the decision of which review is sought in the present proceeding, Mr Nair, as well as being a registered migration agent, was (and, I gather, still is) a practising solicitor.
2 According to the ultimate version of Mr Nair’s application to this Court (the “further amended application”), the Secretary’s deregistration decision was “made on or about 21 November 1996” and was “received” by Mr Nair “on 29 November 1996”. Although I do have evidence before me that the fact of the making of the deregistration decision was communicated to Mr Nair by letter dated 21 November 1996, I do not have evidence before me as to the date on which Mr Nair received that letter. I am, however, prepared, in reliance on what was asserted in his further amended application, to proceed on the basis that he received that letter on 29 November 1996. I note also that, on my reading of the 21 November 1996 letter (see [21] below), the deregistration decision was not made “on” that date, but was rather made “about” that date, namely, on 5 November 1996. (If my reading of the letter be correct and if the letter was intended to be of some assistance to Mr Nair, then there occurred between the making of the decision and the notification by letter of its making a lapse of time which was quite unsatisfactory, given the potentially serious consequences of acting as a migration agent when one was not registered: see Pt 3, Div 2 of the Act).
3 Mr Nair filed the application which began the present proceeding on 17 February 1999 and then filed an amended application on 25 June 1999. However, neither of those versions of the application sought review of the Secretary’s deregistration decision. It was not until Mr Nair’s further amended application, filed on 18 October 1999, that he first sought review of that decision. There was thus a delay of almost three years involved between the date on which (at least, according to his further amended application) Mr Nair received the letter of 21 November 1996 and the date on which he first sought review of the decision the making of which had been communicated by that letter. Since no point was taken by the respondents herein (effectively, the Secretary and the Minister for Immigration and Multicultural Affairs) in reliance on such delay, I proceed on the assumption that, to the extent to which Mr Nair requires an extension of time within which to lodge his application for review of the Secretary’s deregistration decision, then the respondents do not oppose my granting it. (Such an extension of time is required in so far as Mr Nair’s application seeks to invoke this Court’s jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the JRA”): see par 11(1)(c) and subs 11(3) of the JRA.) For more abundant caution, I therefore allow Mr Nair until 18 October 1999 to lodge his application, in so far as it seeks to invoke this Court’s jurisdiction under the JRA in respect of the Secretary’s deregistration decision. (I should, however, add that, since Mr Nair has also invoked in the present proceeding this Court’s jurisdiction under subs 39B(1) of the Judiciary Act 1903 (Cth) in respect of the Secretary’s deregistration decision, I am unable to see any benefit to him in his having invoked this Court’s jurisdiction under the JRA, nor was any suggested during the hearing of the proceeding.)
4 The sole ground of review of the Secretary’s deregistration decision on which Mr Nair ultimately relied before me was that a breach of the rules of natural justice had occurred in connection with the making of that decision. Before, however, coming to the facts relevant to that ground of review, it appears to me to be convenient to refer to the relevant provisions both of the Act and of certain associated legislation as they were at the relevant time.
5 Part 3, Div 2 of the Act imposed certain restrictions on the giving of “immigration assistance” (a term defined in s 276 of the Act) and the making of “immigration representations”. Those restrictions were backed by serious criminal sanctions, but, generally speaking, were inapplicable to persons who were registered as migration agents under s 286 of the Act.
6 Subsection 288(1) of the Act provided for applications by individuals to the Secretary to be registered as registered agents, which applications were to be dealt with by the Secretary (s 290 of the Act) or, in certain circumstances (ss 292 and 293 of the Act), by the Migration Agents Registration Board (“the Board”) (par 291(b) of the Act). Except in certain circumstances (subs 294(1) of the Act), the Secretary was obliged to register an applicant with whose application the Secretary dealt (s 296 of the Act). Also except in certain circumstances (s 294 of the Act), the Board was obliged to register an applicant with whose application the Board dealt, if satisfied of the applicant’s suitability as a registered agent (s 297 of the Act). If the Board was considering refusing a registration application with which it was dealing, it was expressly obliged (subs 309(1) of the Act) to “inform the applicant of that fact and the reasons for it and invite the applicant to make a further submission in support of his or her application”. There was no equivalent provision applicable if the Secretary was considering refusing a registration application with which he or she was dealing. If either the Secretary or the Board decided not to register an applicant for registration as a migration agent, then the decision-maker concerned was required to give to the applicant written notice of the decision and the reasons for it (s 298 of the Act).
7 It should be noted that subs 289(2) of the Act provided that a registration application was taken not to have been made unless any registration application fee payable by the applicant had been“paid to the Commonwealth”.
8 The registration of a registered agent lasted, generally speaking, for twelve months (subs 299(1) of the Act). If, at the end of that period, he or she was not about to be deregistered (s 302 of the Act), then the Board was required to renew his or her registration (s 300 of the Act), generally speaking, for twelve months (subs 299(2) of the Act). However, subs 301(1) of the Act imposed on the Board an anterior duty. That subsection provided:
“If, one month before the end of a period for which a registered agent is registered, he or she is not about to be deregistered, the Board must notify him or her that:
(a) his or her registration will be renewed under section 300 if he or she is not deregistered; and
(b) if a renewal fee is payable on renewal—that fee will be payable to the Commonwealth.”
9 Deregistration was dealt with in (relevantly) subs 302(1) of the Act. The function of deregistration was conferred on the Secretary and its exercise was mandatory if any of the circumstances set out in the subsection existed. The subsection provided:
“The Secretary must deregister a registered agent by removing his or her name from the Register if:
(a) he or she requests the Board, in writing, to do so;
(b) if a renewal fee was payable on the renewal of his or her registration—that fee is not paid to the Commonwealth within 2 months after the renewal; or
(c) he or she does not comply with subsection 312(2); or
(d) he or she dies.”
10 Subsection 312(2) of the Act, referred to in par 302(1)(c) of the Act, provided:
“A registered agent whose registration is renewed must, within 2 months of the renewal, provide the Board with:
(a) if section 5 of the Migration Agents Registration (Renewal) Levy Act 1992 applies to the renewal—particulars showing that the section applies; and
(b) if the applicant was, at the time of the renewal, a person who gave immigration assistance in the capacity of:
(i) an employee of an individual; or
(ii) an executive officer of a corporation; or
(iii) a member or employee of a partnership;
particulars of the individual, the corporation and its executive officers, or the partnership; and
(c) if the applicant proposes to give paid immigration assistance in no more than 5 immigration cases in the period of registration—an estimate of the extent of the applicant’s proposed immigration assistance.”
11 (I may point out now that subs 312(2) of the Act was only one of two subsections in s 312 of the Act, both of them dealing with what were described in the heading to the section as “notification obligations”. Failure on the part of a registered agent to comply with the notification obligations imposed by subs 312(1) of the Act was expressly made an offence, but no equivalent provision was made regarding failure on the part of a registered agent to comply with the notification obligations imposed by subs 312(2) of the Act. From that omission, I infer that it was the Parliament’s intention that failure to comply with subs 312(2) of the Act not be an offence (even at common law: see R v Horseferry Road Justices, ex p Independent Broadcasting Authority [1987] QB 54). The only “penalty” imposed for failure to comply with subs 312(2) of the Act was deregistration.)
12 Fees for registration renewals were dealt with in the Migration Agents Registration (Renewal) Levy Act 1992 (Cth) (“the Renewal Levy Act”). The Renewal Levy Act provided that levy was imposed on the renewal of an individual’s registration as a registered agent (s 4 of the Renewal Levy Act), which levy was payable by the individual whose registration was renewed (s 7 of the Renewal Levy Act). However, s 5 of the Renewal Levy Act provided for an exemption for an individual working only for a person or organisation giving certain immigration assistance voluntarily. For an individual who was not so exempted, s 6 of the Renewal Levy Act prescribed the amount of the renewal fee. Section 6 of the Renewal Levy Act divided registered agents whose registration was being renewed into two classes. First, there were those who proposed to give immigration assistance in the capacity of an employee of a registered agent, an employee of a partnership at least one of whose members was a registered agent or an employee of a corporation at least one of whose executive officers was a registered agent. Secondly, there were those who proposed to give immigration assistance otherwise than in any of the capacities mentioned in the first class. The renewal fee for those in the first class was about half that of the renewal fee for those in the second class. Further, within each of the two classes, there were two subclasses. First, there were those who proposed at the time of renewal to give during the period for which the registration was being renewed paid immigration assistance in no more than five cases. Secondly, there were those who proposed at the time of renewal to give during the period for which the registration was being renewed paid immigration assistance in more than five cases. The renewal fee for those in the first subclass within each class was about one tenth that of the renewal fee for those in the second subclass within each class.
13 It will be apparent that the particulars and estimate referred to in subs 312(2) of the Act ([10] above) were relevant to the question of the renewal fee, if any, payable under the Renewal Levy Act.
14 (Given that renewal fees could be based in part on a registered agent’s intention at the time of renewal to give paid immigration assistance in the succeeding renewal period in no more than five cases, it was necessary to deal in the Act with the situation in which, in spite of having had (or, at least, having professed to have) that intention at the time of renewal, the agent did, during the succeeding renewal period, give paid immigration assistance in more than five cases. That situation was dealt with in subs 302(2) of the Act, by providing for automatic deregistration by the Secretary of a registered agent who, having paid a concessional fee for renewal, did not pay the difference between that and the relevant normal fee once he or she had given paid immigration assistance in a sixth case. Of course, such deregistration by the Secretary could only occur if the Secretary became aware that the registered agent had given paid immigration assistance a sixth time. Surprisingly, I find in s 312 of the Act no duty imposed on a registered agent to notify the Board once he or she had given paid immigration assistance a sixth time during the relevant period.)
15 Section 303 of the Act conferred on the Board discretionary powers to cancel or suspend the registration of registered agents or to caution them in certain circumstances. Subsection 309(2) of the Act provided that if the Board was considering the cancellation or suspension of a registered agent’s registration or the cautioning of the agent, then it was required to “inform the agent of that fact and the reasons for it and invite the agent to make a submission on the matter”. There was no equivalent provision applicable if the Secretary was considering deregistering a registered agent.
16 Section 306 of the Act provided that, subject to the Administrative Appeals Tribunal Act 1975 (Cth), application could be made to the Administrative Appeals Tribunal for review of a decision by the Board under Pt 3, Div 3 of the Act. There was no equivalent provision applicable to decisions by the Secretary under those provisions.
17 Section 305 of the Act provided that, if the Board cancelled or suspended the registration of a registered agent and it was no longer possible for the cancellation or registration to be set aside on appeal, then the Board was required to publish a statement: setting out its decision, the reasons therefor and its findings on any material questions of fact; and, as well, referring to the material on which the findings of fact were based. There was no equivalent provision applicable if the Secretary had deregistered a registered agent.
18 Having now referred to the relevant provisions both of the Act and of the Renewal Levy Act as they were at the relevant time, I turn to the facts of the present matter.
19 On 19 July 1996, Mr Nair was a registered agent and had been so, I assume, since (at least) 5 September 1995. On the former date, the Board wrote to him, giving him the notification which it was required by subs 301(1) of the Act to give to him (see [8] above). It also alerted him to his obligations under subs 312(2) of the Act (see [10] above). The letter said,
“[I]t is now time for your registration as a migration agent to be renewed. On 5 September 1996 your registration will be automatically renewed under s300 of the Act if you are not deregistered. Although this renewal is automatic, you MUST tell the Board which of the following matters apply to you by 5 November 1996, or YOUR REGISTRATION WILL BE CANCELLED ON THAT DATE.
1. If you still provide paid immigration assistance, you must pay a renewal fee. Note that you can only be exempt from paying a fee if you work for an organisation that does not charge for its services. If you work for such an organisation, you will need to give us the details requested in 3. below.
2. If you still provide paid immigration assistance and you intend to deal with 5 or fewer cases in the coming year, you must provide an estimate of the number of cases you intend to deal with.
3. If you now intend to provide immigration assistance as a voluntary worker or employee of an organisation that does not charge entrance applicants a fee, please provide details of that organisation.
4. If you give immigration assistance as an employee of an individual, corporation or partnership or as a partner or executive officer of a corporation or partnership, you must provide details of that individual, corporation or partnership.
Remember: you must tell the Board which of these matters apply to you by 5 November 1996 or your registration will be automatically cancelled on that date. Similarly, if you intend to continue charging for your services, your renewal fee must be paid to the Commonwealth by 5 November 1996 or your registration will be cancelled…. The attached information sheet gives more details[.]”
20 The information sheet attached to the letter was headed “IMPORTANT NOTICE TO REGISTERED MIGRATION AGENTS”. Beneath those words appeared the following words in type of at least sixteen points: “FIRST AND FINAL NOTICE FOR RENEWAL OF REGISTRATION”. Beneath those words appeared the following:
“The information requested of you in the attached letter is required under the provisions of the Migration Act 1958 and MUST be received by the Migration Agents Registration Board by the due date in order to keep your registration current.
FAILURE TO PROVIDE THE REQUIRED INFORMATION, INCLUDING THE CORRECT RENEWAL FEE IF APPLICABLE, BY THE DUE DATE WILL RESULT IN YOUR REGISTRATION BEING AUTOMATICALLY CANCELLED. THERE IS NO DISCRETION IN THIS MATTER REGARDLESS OF THE CIRCUMSTANCES.”
21 It is convenient next to deal with the letter of 21 November 1996 to which I referred earlier in these reasons for judgment (see [2] above). That letter began by referring to the letter of 19 July 1996 to which I have referred in the next preceding paragraph of these reasons for judgment and to Mr Nair’s “obligation to contact the Migration Agents Registration Board by Tuesday, 5 November 1996 if you did not want your registration automatically cancelled”. It then asserted, “To date the Board has received no correspondence from you”, and continued,
“According to section 312(2) of the Migration Act 1958, all registered agents are obliged to provide the Board with certain information within 2 months of the renewal of their registration. Your registration was renewed on Thursday, 5 September 1996 and you were obliged to provide the information by Tuesday, 5 November 1996.
Pursuant to section 302 of the Migration Act 1958, you have been automatically deregistered as a migration agent because you have not provided the Board with the information by the required date. Your deregistration was effective from Tuesday, 5 November 1996.”
22 It is apparent from the terms of the letter to which I have just referred that the deregistration decision in Mr Nair’s case was said to have been based on par 302(1)(c) of the Act, namely, non-compliance by Mr Nair with subs 312(2) of the Act; it was not said to have been based additionally or alternatively on par 302(1)(b) of the Act, namely, non-payment to the Commonwealth by Mr Nair within two months after the renewal of his registration of a renewal fee that was payable on the renewal of his registration.
23 It is appropriate to mention at this point two particular matters: first, it was conceded before me by the respondents that no communication on behalf of either the Board or the Secretary had passed to Mr Nair between the letters to him of 19 July 1996 and 21 November 1996 which I have been discussing above; and, secondly, those two letters were tendered before me by Mr Nair as part of his case.
24 Next, I turn to an affidavit sworn by Mr Jeffrey Alan Davidson and read before me by the respondents. Between (relevantly) 19 July 1996 and 21 November 1996 (the dates of the two letters to Mr Nair which I have been discussing above), Mr Davidson was employed in the migration agents registration scheme section of the Department at Belconnen, Australian Capital Territory. Mr Davidson deposed in his affidavit to the existence within the section both of a system of recording in writing the receipt of cheques for registration application and renewal fees and of the prompt banking of those cheques when received. He also annexed a copy of that portion of the record of received cheques which covered the period 23 August 1996 to 1 October 1996. (Why the period covered ended on 1 October 1996 was not explained.) There was no record of the section’s having received during that period any cheque from Mr Nair.
25 Having now dealt with the two Departmental letters and the evidence of a Departmental officer, I turn to the remaining evidence.
26 It is convenient to mention immediately that I was not favoured with any affidavit or oral evidence by Mr Nair himself. There was, however, an affidavit sworn by Mr Nair’s son, John, which was read by Mr Nair as part of his case. In his affidavit, the son gave the following account of relevant events: in September 1996, he was working for his father in the latter’s legal practice. Among his duties was the typing and posting of documents. On 19 September 1996, his father had given him a draft letter to type. He had typed the letter and given it to his father to sign. His father had signed it and returned it to him, together with a completed form and a cheque. He had then placed the three documents in an envelope addressed to the Board and had placed the envelope in a letter box at the corner of Park and Castlereagh Streets, Sydney.
27 Annexed to the son’s affidavit were copies of the three documents referred to in his affidavit.
28 The first was a letter dated 19 September 1996 addressed by Mr Nair to the Board at PO Box 25, Belconnen ACT. (Incidentally, although the son gave no evidence on the point, I infer that the envelope which he asserted he had posted would have borne the same address as that on the letter.) The letter said, “We refer to your letter dated 19 July 1996 and accordingly enclose herewith a duly completed Renewal of Registration as a Migration Agent form and our cheque for $110.00”. (That sum, I interpolate, was the renewal fee appropriate only in the case of a self-employed agent who proposed to give paid immigration assistance in no more than five cases during the succeeding registration renewal period.)
29 The second copy document annexed to the son’s affidavit was a form headed “RENEWAL OF REGISTRATION AS A MIGRATION AGENT” completed by Mr Nair and dated 19 September 1996. The form had obviously been sent to Mr Nair together with the 19 July 1996 letter. The form contained four questions to be answered “yes” or “no” and required that, if any of the last three questions was answered “yes”, details be provided. The first question was, “Do you provide paid immigration assistance?”, to which Mr Nair answered “yes”. The second question was, “If you provide paid immigration assistance, do you intend to deal with 5 or fewer cases in the coming year?”, to which Mr Nair answered “yes”. In light of that answer, he was then required to provide an estimate of the number of cases with which he intended to deal, the estimate supplied being “five”. The third question was, “Do you give immigration assistance as an employee of an individual, corporation or partnership, or as a partner or executive officer of a corporation or partnership?”, to which Mr Nair answered “yes”. In light of that answer, he was then required to provide details of that individual, corporation or partnership, the details supplied being “Mani Subramaniam Nair t/a MS Nair & Co (Solicitors)”. (It is apparent, incidentally, that Mr Nair’s answer to the third question was incorrect. However, as I have already mentioned, the sum of $110, referred to in the letter annexed to the son’s affidavit, was the renewal fee applicable only to an individual who (among other things) did not give immigration assistance as an employee of an individual, corporation or partnership, or as a partner or an executive officer of a corporation.) The fourth question was, “Do you intend to provide immigration assistance as a voluntary worker or employee of an organisation that does not charge entrance applicants a fee for immigration assistance?”, to which Mr Nair answered “no”. At the bottom of the form appeared the following:
“REMEMBER - THIS INFORMATION MUST BE RECEIVED BY THE MIGRATION AGENTS REGISTRATION BOARD BY THE DATE SHOWN IN THE ATTACHED LETTER OR YOUR REGISTRATION WILL BE AUTOMATICALLY CANCELLED.”
30 The third copy document annexed to the son’s affidavit was a cheque. It was pre-printed “MS NAIR T/A MS NAIR & CO”, numbered 1566 and dated 19 September 1996. It appears from the document that the cheque had originally been made payable to the Department for $560, but that the relevant information had been struck through and replaced respectively by the Board and $110.
31 Thus far, I have been referring to the son’s affidavit and the documents annexed thereto. I turn now to his cross-examination. In substance, his evidence in cross-examination was as follows: as of September 1996, he worked for his father intermittently on a part-time basis; he had no regular hours. He performed his duties on an “as requested” basis and, if they were not performed by him, then they were performed by his father personally. His father had composed his affidavit for him and, for its purpose, had supplied him with the copy documents annexed to it. His father had a practice of photocopying for record purposes outgoing correspondence, including cheques. He had no specific recollection of typing on that day the 19 September 1996 letter or seeing on that day the 19 September 1996 cheque, but he did have a specific recollection of posting the envelope, because his father had drawn a deal of attention to it at the time.
32 I turn now to the two final items of evidence which were before me in the proceeding, both of which were tendered by the respondents.
33 The first was a statement of account for the account on which the cheque to which I referred in [30] above had been drawn. That statement covered the period 30 August to 30 September 1996. (Why no statement for any subsequent period was tendered was not explained.) That statement did not show cheque 1566 as having been honoured.
34 The second item of evidence was a chequebook for the relevant account, which had a number of pages at the front described as a transaction record. Each such page was divided into columns, as follows: “Date 19….”, “Cheque/Withdrawal No.”, “Details of Transaction”, “Amount Withdrawn”, “Amount Deposited”, “Balance” and “DR/CR”.
35 On one of the pages of the transaction record, the first two rows had been completed as follows: under “Date 19….”, each row said “19/9/96”; under “Cheque/Withdrawal No.”, the rows said respectively “001566” and “001567”; under “Details of Transaction”, each row appears at first to have named the Department; under “Amount Withdrawn”, each row appears at first to have said “$560.00”. Finally, the headings “Amount Deposited”, “Balance” and “DR/CR” had not been completed for either row, but it appears that a notation had instead been entered in each row in the space which would otherwise have been devoted to information under the three uncompleted headings, showing that the cheque concerned represented a filing fee for a person (the two persons concerned each had the same surname).
36 Further, it would appear that, subsequently, all information for each entry after the cheque number had been struck through. As to the entries under the heading of the cheque number, it appears that in the case of cheque 1567 an “x” was inserted after the number, which “x” was related to an “x” written in the top margin of the page, followed by the word “cancelled”. It appears further that, in the case of cheque number 1566, there was inserted above the two entries following the entry of the cheque number, a reference to the Board and to $110.
37 I have deliberately expressed myself in a tentative way in the preceding two paragraphs when describing certain relevant entries in the transaction record, since I find those entries rather difficult to interpret. Of course, the person best able to assist me with their interpretation would have been Mr Nair himself, but, as I have already mentioned, he chose (somewhat surprisingly to me) not to give evidence before me. However, I am prepared to proceed herein on the basis that, on 19 September 1996, Mr Nair did cause to be posted to the Board at the address shown on his letter to it of that date and in the same envelope both his completed registration renewal form and a cheque for $110.
38 At the same time, however, I am satisfied that the Board had not received that form and cheque by 5 November 1996. I act in that respect on the Board’s assertion in its letter of 21 November 1996 (tendered by Mr Nair as part of his case) that it had received no correspondence from Mr Nair since its letter to him of 19 July 1996, as well as on the facts that the Board had a system of recording and promptly banking cheques received for renewal fees, but that Mr Nair’s cheque (which had, of course, travelled in the same envelope as the form) had not been recorded as received by the Board by 1 October 1996 and that that cheque had not been recorded as honoured by Mr Nair’s bank by 30 September 1996. I am further comforted in my conclusion regarding the cheque by my knowledge that, if Mr Nair’s cheque to the Board had been honoured by his bank at any time after 30 September 1996, but before 5 November 1996, it would have been a simple matter for him to establish that fact before me and he would most certainly have done so, given the way in which he chose to conduct his case.
39 I turn now to the legal consequences of the factual conclusions which I have expressed above.
40 As I mentioned at the outset of these reasons, Mr Nair’s sole attack before me on the Secretary’s deregistration decision was that the Secretary had been under a duty to give to him an opportunity to be heard before deciding to deregister him and that the Secretary had given him no such opportunity. Thus, the question with which I must now deal is whether it was a condition of the lawfulness of the purported performance of the function conferred by subs 302(1) of the Act that the Secretary give Mr Nair an opportunity to be heard before performing that function.
41 In submitting that such a condition existed, at least when deregistration was being contemplated on the basis of the apparent failure of a registered agent to comply with subs 312(2) of the Act (which, it will be recalled, had been the basis of the decision in his case), Mr Nair relied in essence on the circumstance that a deregistration decision destroyed a registered agent’s existing privilege of engaging in a certain activity which, in the ordinary course, was engaged in for profit.
42 At the same time, however, he made a concession which I should mention now.
43 It will be recalled (see [9] above) that subs 302(1) of the Act identified four circumstances in which the Secretary was obliged to deregister a registered agent: on written request by the agent (par (a)); on non-payment by the agent of the renewal fee (par (b)); on non-compliance by the agent with subs 312(2) of the Act (par (c)); and on the agent’s death (par (d)).
44 Mr Nair conceded that a deregistration decision was not required to be attended by procedural fairness if the deregistration decision had been contemplated on the basis that the circumstance listed in either par (a) or (d) existed.
45 Thus, it was Mr Nair’s position that procedural fairness was required if deregistration was proposed on the basis of the third of the four circumstances listed in subs 302(1) of the Act (and, I should add here, also if it was proposed on the basis of the second of the four circumstances listed), but that procedural fairness was not required if deregistration was proposed on the basis of the first or fourth of the four circumstances listed.
46 In resisting Mr Nair’s submission that there was a duty to accord procedural fairness before deregistering a registered agent on the basis of the third (or second) of the four circumstances listed in subs 302(1) of the Act, the respondents relied on two matters: first, there was Mr Nair’s concession regarding the first and fourth of the circumstances listed. In effect, the respondents’ submission was that the position so far as subs 302(1) of the Act and procedural fairness was concerned must be “all or nothing” (so far as I can recall, the phrase is mine, not theirs), that Mr Nair’s concession had been correct and that I was therefore obliged to conclude that, so far as subs 302(1) of the Act and procedural fairness was concerned, the position was “nothing”. The second matter on which the respondents relied was what they described as the narrowness of the factual inquiry involved when the Secretary was considering whether to deregister on the basis of the third (or second) of the circumstances listed.
47 Resolution of the parties’ competing submissions on the question presently under discussion must begin with the well known statement of the High Court of Australia in Annetts v McCann (1990) 170 CLR 596. In that case, Mason CJ and Deane and McHugh JJ said (at 598),
“It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment….”
Their Honours then referred with approval to an earlier judicial statement to the effect that “an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from ‘indirect references, uncertain inferences or equivocal considerations’” and continued, “Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice”.
48 I find in the Act no such plain words of necessary intendment as alone could have excluded the conditioning of the lawful performance of the Secretary’s deregistration function by the rules of procedural fairness, at least when, as in the present case, the Secretary proposed to deregister a registered agent on the basis that that agent had not complied with subs 312(2) of the Act. In particular, I do not regard the two matters relied on by the respondents as satisfying that requirement.
49 First, even if the concession made by Mr Nair regarding pars 302(1)(a) and (d) of the Act and natural justice be correct, it appears to me that the reasoning of the High Court in Annetts compels me to reject an “all or nothing” approach to subs 302(1) of the Act. In those circumstances, I need not express a view on the correctness of that concession, by which I do not, incidentally, consider myself bound for the purpose of the present proceeding: compare Commissioner for Railways (Qld) v Peters (1991) 24 NSWLR 407 at 444-45 (Priestley JA).
50 Secondly, even if it be correct to characterise the factual inquiry involved under par 302(1)(c) (and (b)) of the Act as “narrow”, I am unable to see how that circumstance could satisfy the requirement for “plain words of necessary intendment”.
51 I therefore conclude that the lawful performance of the Secretary’s deregistration function under subs 302(1) of the Act on the basis that the registered agent concerned had not complied with subs 312(2) of the Act was conditioned on the Secretary’s giving the agent an opportunity to be heard before performing that function.
52 Against the prospect that I might reach such a conclusion, it was further submitted by the respondents that, nonetheless though there had been no communication to Mr Nair either by the Board or by the Secretary between the two letters to him of 19 July 1996 and 21 November 1996, Mr Nair had been given, by the first of those two letters, an opportunity to be heard before the Secretary performed the deregistration function.
53 I regard that submission as quite untenable. It could not be said that the Secretary had given Mr Nair an opportunity to be heard on the question whether or not he had complied with subs 312(2) of the Act until the Secretary had formed the view that Mr Nair had not complied with that provision, had informed Mr Nair of the holding of that view and had invited Mr Nair to make submissions on the question.
54 I therefore conclude in the present circumstances that a breach of the rules of natural justice did occur in connection with the making of the Secretary’s decision.
55 However, such a conclusion is by no means the end of the present proceeding, because, on the assumption that I might hold as I have just done, the respondents further submitted that, in the exercise of my discretion, I would not grant Mr Nair any relief. That submission was based on what I may call the “futility” ground.
56 It is convenient to introduce my discussion of that ground by referring to the decision of the High Court of Australia in Stead v State Government Insurance Commission (1986) 161 CLR 141.
57 In Stead, it was accepted that a South Australian trial judge had denied natural justice to a party before him and the question was whether, in consequence, a new trial should have been ordered by the Full Court of the Supreme Court of that State. In unanimous reasons for judgment, the Court (Mason, Wilson, Brennan, Deane and Dawson JJ) said (at 145-46),
“The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board …, in these terms:
‘There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.’
That general principle is, however, subject to an important qualification…. That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact…. However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.”
58 In Stead, the High Court was, of course, exercising an appellate, rather than a judicial review, jurisdiction, but, in my view, the Court’s approach in Stead is as applicable to the exercise of the latter jurisdiction as it is to the former.
59 That was certainly the view taken recently by Gaudron J in Abebe v The Commonwealth (1999) 197 CLR 510 at 554, [113]. There, her Honour said,
“Consistency with th[e] rules [of natural justice] requires that it be accepted that, where a decision-maker is required to accord procedural fairness, that requirement is an essential condition of the exercise of the decision-making power. Thus, subject to the operation of discretionary factors, breach of those rules is a jurisdictional error which will ground prerogative relief. Discretionary factors which will militate against the grant of prerogative relief include situations … where the breach had no effect on the decision in question.”
Her Honour then footnoted her reference to the discretionary factor mentioned by saying, “See, as to this aspect of the rules of natural justice in their application to judicial proceedings, Stead … at 145”. (Although her Honour was in dissent in Abebe, I do not consider that that casts doubt on the correctness of her Honour’s view to which I am presently referring.)
60 A similar view had earlier been taken by Gummow J when a member of this Court in Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation (1990) 96 ALR 153. That case concerned a challenge to the lawfulness of a decision made by the respondent’s managing director (Dr Standen) on 17 April 1990 to rescind an approval earlier given to the applicant to export in a single shipment a certain quantity of live sheep to Dammam, Saudi Arabia. Among the submissions made by the applicant was that that rescission decision had been unlawful because it had been required to be attended by natural justice to the applicant, but had not been. Gummow J discussed (in obiter, because he set aside the decision on other grounds), not only that submission and the respondent’s contrary submission, but also a further alternative submission made on the respondent’s behalf (see at 170) that “on the evidence, this [that is, any response by the applicant to a hypothetical invitation to make submissions on the matter] would have made no difference to the decision”. That discussion occurred in the context of the applicant’s having complained before the Court in particular (see at 170),
“… that the decision to withdraw the approval had been made in circumstances where the decision-maker had an inadequate understanding both of the adverse commercial consequences for the applicant of such a decision, and of the existence of alternative port facilities for the shipment if there was a rejection at Dammam.”
61 His Honour said (at 171),
“In the course of his re-examination, Dr Standen expressed in the following terms his expectation as at 17 April 1990 of the commercial consequences [to the applicant] of withdrawing the approval: ‘That the shipper [would] be obliged to put the sheep into an alternative port, probably Fujairah, [United Arab Emirates,] but I could not be certain of that, that was the nominated alternative port, that there would probably be some drop in value of these sheep in these other markets compared with Saudi Arabia but ... it would depend ... on the circumstances at the time and the number of ships arriving at the relative [sic] markets. I know that the company had been a very astute trader over the years and that they would certainly endeavour to minimise that loss.’
In making the decision in question, Dr Standen came strongly to hold the view that considerations relevant to the export trade as a whole necessarily outweighed the commercial interests of the applicant in the particular shipment in question. The full revelation of the extent of those commercial interests and the likely prejudice involved would not, I conclude, have shaken Dr Standen in that view. Even if there were a denial of natural justice in this particular aspect of the matter, I would not, as a matter of discretion, have granted relief in respect of it.”
62 The “futility” submission made by the respondents in the present matter was similar to that which was made by the respondent in the Fares Rural case and which found favour with Gummow J in that case. The submission before me was that any submission which might have been made to the decision-maker by Mr Nair on the question whether he had complied with subs 312(2) of the Act would not have persuaded the decision-maker not to deregister him.
63 In order to deal with that submission, it is convenient first to return to the terms of subs 312(2) of the Act (see [10] above). That provision required a registered agent, within two months of the renewal of his or her registration, to “provide the Board with” information of three different types; however, that obligation was, in the case of each of the three different types of information, a conditional one only.
64 First, if s 5 of the Renewal Levy Act applied to the renewal, then the registered agent was required to provide the Board with particulars showing that the section applied. Section 5 of the Renewal Levy Act, it will be recalled (see [12] above), provided for an exemption from the obligation to pay renewal levy for an individual working only for a person or organisation giving certain immigration assistance voluntarily. Since there is no suggestion in the present case that s 5 of the Renewal Levy Act applied to Mr Nair’s renewal, he could not have failed to comply with par 312(2)(a) of the Act.
65 Secondly, if the applicant was, at the time of the renewal, a person who gave immigration assistance in the capacity of an employee of an individual, corporation or partnership, an executive officer of a corporation or a member of a partnership, then he or she was required to provide the Board with particulars of the individual, the corporation and its executive officers or the partnership. Since there is no suggestion in the present case that Mr Nair, at the time of renewal, gave immigration assistance in any of the named capacities, he could not have failed to comply with par 312(2)(b) of the Act.
66 Thirdly, if the applicant proposed to give immigration assistance in no more than five immigration cases in the period of renewal of registration, then he or she was obliged to provide the Board with an estimate of the extent of his or her proposed immigration assistance. Since (as was conceded by him before me) Mr Nair did propose to give immigration assistance in no more than five immigration cases in the period of renewal of registration, as appears from his renewal of registration form completed on 19 September 1996, he was obliged, by reason of par 312(2)(c) of the Act, to provide the Board with an estimate of the extent of his proposed immigration assistance.
67 A question immediately arises as to what was involved in an obligation to provide the Board with such an estimate. Did one provide the Board with such an estimate merely by posting it to the Board or was it necessary that the Board receive such posted estimate before the Board could be said to have been provided with it within the meaning of subs 312(2) of the Act?
68 On that question, the respective sides of the record made the predictable submissions, although in a bald way, without reference to any authorities on the question, whether judicial or otherwise.
69 In my view, the latter construction appears to be the correct one of the notion of providing the Board with certain information.
70 Beginning first with a consideration of the dictionary definition, the most relevant definition for present purposes in the Oxford English Dictionary (2nd ed) of the notion of “provide with” is that which appears in the definition of “provide” as follows: “8. To furnish or supply (a person, etc.) with something. Often in indirect passive. a. Const. with”. Thus, it seems appropriate, as a matter of ordinary English language, to treat the notion of providing the Board with certain information as synonymous with the notions of furnishing the Board with that information and supplying the Board with it.
71 While I have been unable to find any cases which appear to me to assist in the construction of the notion of providing someone with information, I have found some cases relating to the notion of furnishing someone with information. The most helpful of those cases appears to be a decision of a Divisional Court of the English Queen’s Bench Division, Hayman v Griffiths [1988] QB 97. That case concerned reg 58(1) of the Value Added Tax (General) Regulations 1985, which required a person who was registered for value added tax to “furnish the controller … with a return on the form numbered 4 in the Schedule to these Regulations”. Criminal sanctions were imposed for non-compliance with that requirement. The form numbered 4 in the Schedule to the Regulations, expressly referred to in reg 58(1), contained an instruction to the person completing it to: “Return it, with any VAT due, in the enclosed envelope to the Controller” at a specified street address. Mann J, with whom Watkins LJ concurred, referred first (at 104) to the definition of “furnish” in the Shorter Oxford English Dictionary, which definition included, among other things, “provide” and “supply”. Mann J then said,
“I would not dissent from the proposition that this is the ordinary English meaning which is appropriate to that word as it is used in regulation 58(1) of the Regulations of 1985. The meaning involves a receipt of a thing before it can be said that the thing has been furnished”.
Such a construction of the word “furnish” as appearing in reg 58(1) would, of course, have meant that a person who had, as instructed by the legislatively prescribed return form, posted a return to the street address shown on that form would have committed an offence if the return form was not received by the controller. However, Mann J did not adopt that construction of the word, expressly influenced by an earlier Scottish case dealing with similar statutory provisions (and, I assume, impliedly influenced by the fact that non-compliance with reg 58(1) was an offence: see Customs and Excise Commissioners v W Timms & Son (Builders) Ltd [1992] STC 374 at 378e (QBD: MacPherson J)). The essence of his reasoning (as expressed at 106 in reliance on the Scottish case) was as follows: “Regulation 58(1) of the Regulations of 1985 by its own adoption of form 4 has effected a refined meaning of furnish”, as opposed to the ordinary English meaning of that word. That “refined” meaning included the notion of merely posting the return to the legislatively prescribed address.
72 As Mann J and Watkins LJ did with the ordinary English meaning of the notion of furnishing a person with information, I take the view that the ordinary English meaning of the notion of providing a person (or body) with information involves a receipt of that information by that person (or body) before it can be said that that person (or body) has been provided with the information. However, unlike the situation regarding reg 58(1) of the Value Added Tax (General) Regulations 1985, there was nothing in the language of subs 312(2) of the Act which would cause me to give to the notion of providing the Board with information, as appearing in that subsection, a ‘refined”, as opposed to its ordinary English, meaning. (Nor, I repeat (see [11] above), was breach of subs 312(2) of the Act an offence, as was breach of reg 58(1).)
73 Proceeding on the construction of subs 312(2) of the Act which I have outlined above, I am satisfied that no submission which might have been made to the decision-maker by Mr Nair on the question whether he had complied with par 312(2)(c) of the Act would have persuaded the decision-maker not to deregister him. In order so to persuade the decision-maker, Mr Nair would have had to persuade the decision-maker that the Board had received, within two months of his renewal, his estimate of the extent of his proposed immigration assistance in the period of renewal of registration. As I have already stated (see [38] above), I am satisfied that the Board had not received that estimate. Furthermore, I am satisfied, on the evidence before me, that the most Mr Nair could have said to the decision-maker on the question of the Board’s receipt of his estimate was that he had caused that estimate to be posted to the Board by ordinary post (nor, I add, was it suggested in submissions before me that there was anything else Mr Nair could have said). I find it impossible to conceive of that persuading the decision-maker that the Board had received the estimate in the face of the Board’s denial of having received it.
74 Having reached the conclusion which I have just expressed on the respondents’ “futility” ground, I will obviously dismiss Mr Nair’s application for review. However, before concluding these reasons, I wish to make some brief comments about a matter which was debated at some length in the hearing before me, namely, whether Mr Nair had failed to pay to the Commonwealth within two months after the renewal of his registration the renewal fee that was payable on the renewal of his registration.
75 As to that matter, just as he submitted before me that, on the proper construction of subs 312(2) of the Act, he had provided the Board with his estimate by posting it to the Board, Mr Nair submitted before me that, on the proper construction of par 302(1)(b) of the Act, he had paid his required renewal fee to the Commonwealth by posting a cheque for that fee to the Board.
76 In support of the latter submission, Mr Nair relied on a decision of the British Columbia Court of Appeal, R v Kern’s Motor Town Sales Ltd (1968) 68 DTC 5141.
77 Section 47(1) of the Canadian Income Tax Act relevantly provided (emphasis added),
“Every person paying salary, etc., shall deduct or withhold therefrom such amount as may be prescribed and shall, at such time as may be prescribed, remit that amount to the Receiver General of Canada on account of the payee’s tax for the year under this Part.”
In purported prescription of the time of remitting the deducted or withheld amount, reg 108(1) of the Canadian Income Tax Regulations provided (emphasis added),
“Amounts deducted or withheld under the provisions of subsection (1) of section 47 of the Act shall be paid to the Receiver General of Canada on or before the fifteenth day of the month next succeeding the month in which the employer paid the remuneration.”
Kern’s Motor Town Sales Ltd was charged with breaching s 47(1) of the Income Tax Act. Its defence to the charge was that no time had in truth been prescribed for the purpose of s 47(1), so that it could have committed no offence under that provision. No time had in truth been prescribed, so the argument went, because reg 108(1) of the Income Tax Regulations was invalid. Rather than prescribing a time of “remit[ting]” the relevant amount, as contemplated by s 47(1) of the Income Tax Act, it had purported to prescribe a time of “pa[ying]” that amount. As an amount owing would be remitted to the Receiver General immediately on its posting to the Receiver General, if an employer chose to post it, but would not be paid to the Receiver General until the Receiver General received it, it followed that “the regulation has imposed upon the employer an obligation which is not prescribed by section 47 of the Act” (see at 5142).
78 The Court rejected that argument of invalidity of reg 108(1). Davey CJBC, with whom MacLean and Bull JJA concurred, first accepted that, as used in s 47(1), “remit” did mean, among other things, “post”. However, as to “pay”, as used in reg 108(1), he said (at 5142; emphasis added),
“‘Pay’ may mean many things. Usually money is not paid until the debtor seeks out his creditor and puts it in the hands of the creditor, but it does not necessarily mean that…. That being so, [the meaning of ‘pay’] … must be determined … in the context.
Now [reg] 108(1) refers specifically to the provisions of subsection (1) of section 47 of the Act and purports to state when the amounts deducted or withheld under the provisions of subsection (1) of section 47 of the Act shall be paid to the Receiver General. It seems to be clear that [reg] 108 as drafted is intended to be a regulation prescribed by section 47(1). Since that is obviously the intention of the framers of the regulation, I think it is also clear that ‘pay’ in [reg] 108(1) is used in exactly the same sense as ‘remit’ in section 47, and means no more. In my opinion, the obligation under [reg] 108(1) is performed as soon as the employer remits the money in the sense in which I have said it is used in section 47.”
79 It appears to me that, far from assisting Mr Nair on the construction of par 302(1)(b) of the Act, the British Columbia case on which he relied was actually adverse to his position. I say that because the court there appears to me to have made it sufficiently plain that, in usual circumstances, it would have construed the notion of paying the Receiver General as involving receipt by the Receiver General of the amount owing, but then went on to find unusual circumstances in that case which led it to construe the notion of paying differently. Since I can find no unusual circumstances which surrounded par 302(1)(b) of the Act like those which surrounded reg 108(1) of the Canadian Income Tax Regulations, the British Columbia case would support the use in connection with the notion of payment as appearing in the former provision of a meaning which involved receipt by the Commonwealth of the amount owing. (I may add that the same comment is equally applicable to subs 289(2) of the Act (see [7] above).)
80 However, in view of the conclusion regarding the present application for review which I have already reached (see [73] above), I need say nothing further than I have already said of the matter which I have just been discussing.
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I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz. |
Associate:
Dated: 3 October 2000
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Counsel for the Applicant: |
Mr N Williams |
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Solicitor for the Applicant: |
Ron Kessels Solicitors |
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Counsel for the Respondent: |
Mr S Gageler |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
17 April 2000 |
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Date of Judgment: |
3 October 2000 |
