FEDERAL COURT OF AUSTRALIA

Kolya v Tax Practitioners Board [2012] FCA 215

THE COURT ORDERS THAT:

1.    The Amended Notice of Appeal as filed on 7 February 2012 is dismissed.

2.    The Applicant is to pay the costs of the Respondents.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Two decisions adverse to the interests of the Applicant, Mr Peter Kolya, have been taken by the First Respondent, the Tax Practitioners Board. The first decision is that taken on 29 September 2010 to reject Mr Kolya’s application for transitional registration as a tax agent; the second decision is that taken on 24 November 2010 to terminate his registration as a BAS Agent.

2    Mr Kolya sought review of those decisions by the Administrative Appeals Tribunal. That Tribunal concluded that Mr Kolya was not a “fit and proper person” and affirmed the decisions which had been taken: Re Kolya and Tax Practitioners Board [2011] AATA 804.

3    Mr Kolya now appeals to this Court. A Notice of Appeal was filed on 30 November 2011. An Interlocutory Application was also filed on that date. The matter first came before the Court on 6 December 2011 when the Interlocutory Application was adjourned for mention or hearing on 13 February 2012. An Amended Notice of Appeal was filed on 7 February 2012 together with an Amended Interlocutory Application.

4    Neither the original Notice of Appeal nor the Amended Notice of Appeal clearly identify the “question of law” sought to be resolved on appeal. And both the Interlocutory Application and the Amended Interlocutory Application sought relief which was so generally expressed that relief in the form sought would have been refused.

5    The proceeding was mentioned on 13 February 2012. Mr Kolya then expressed his readiness to proceed with both his appeal and his Interlocutory Application. The Tax Practitioners Board was also prepared to accommodate an early hearing. The proceeding was stood over for hearing in Canberra on 16 February 2012 of the appeal itself together with such further applications as may be made.

The Amended Notice of Appeal

6    The need to clearly identify a “question of law” assumes importance because an appeal from a decision of the Administrative Appeals Tribunal to this Court is confined to “a question of law”: Administrative Appeals Tribunal Act 1975 (Cth) s 44(1). In Brown v Repatriation Commission (1985) 7 FCR 302 at 304, Bowen CJ, Fisher and Lockhart JJ observed that:

The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it.

See also: Kowalski v Military Rehabilitation and Compensation Commission [2010] FCAFC 10 at [38] to [39], 114 ALD 8 at 19 per Marshall, Tracey and Foster JJ.

7    The fundamental importance of identifying at the outset the “question of law” which founds the jurisdiction of the Court cannot thus be underestimated. The “question of law”, moreover, has to be identified with some precision and identified as a “pure question of law” rather than a mixed question of fact and law: Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, at [46] to [47] per Branson J and [107] per Jacobson and Bennett JJ, 133 FCR 290; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [11], 76 ALD 321 at 324 per Branson and Stone JJ.

8    In an appropriate case, the Court itself may be “prepared to frame questions in order to found its jurisdiction”: Secretary, Department of Education, Employment and Workplace Relations v Ergin [2010] FCA 1438 at [11], 119 ALD 155 at 159 per Tracey J; Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80 at [16], 55 AAR 300 at 303 per Marshall, Tracey and Flick JJ. See also: Goodricke v Comcare [2011] FCA 694 at [14] to [22], 122 ALD 546 at 549 to 550 per Flick J. An appropriate case may, for example, arise where an applicant is unrepresented and where it is possible to discern a question which – if properly framed – could found the jurisdiction of this Court. But the fact that an applicant may be unrepresented does not provide a reason why he should not comply with the rules of this Court. It may, however, provide a reason why the Court may itself attempt to formulate a question which does comply with s 44(1).

9    The manner in which Mr Kolya initially sought to identify the “question of law” was open to serious question. The Notice of Appeal as filed in November 2011 set forth the Questions of Law (without alteration) as follows:

Questions of law

1.    [specify the precise question or questions of law to be raised on the appeal]. WHETHER THE AAT DENIED PROCEDURAL FAIRNESS TO A PARTY I.E THE APPLICANT AND

2.    WHETHER THE AAT ASKED ITSELF THE WRONG QUESTION AND THEN CONSIDERED IRRELEVANT EVIDENCE AND WHETHER THE AAT INCORRECTLY INTERPRETED A STATUTE RELEVANT TO THE PROCEEDINGS.

The Amended Notice of Appeal as filed in February 2012 was expressed as follows (again without alteration):

Questions of law

1.    [specify the precise question or questions of law to be raised on the appeal]. WHETHER AN APPLICANT DEEMED REGISTERD AT THE PROMULGATION OF Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 (Cth) CAN BE REQUIRED TO MEET THE “RELEVANT EMPLOYMENT” QUALIFICATIONS OF REGULATION 156 OF THE OLD LAW – FIT AND PROPER PERSON?

2.    ALLEGED BREACH BY TRIBUNAL OF ITS OBLIGATIONS UNDER s 43(2B) OF THE ADMINISTRATIVE TRIBUNAL ACT 1975 (Cth) – WHETHER FAILED TO MAKE FINDINGS ON MATERIAL QUESTIONS OF FACT – ULTIMATE FINDINGS NEED TO CONSIDERED IN CONTEXT OF ENTIRE DECISION.

10    The Questions of Law as initially filed, and as subsequently amended, did not satisfy the requirements of either s 44(1) of the Administrative Appeals Tribunal Act or r 33.12(2)(b) of the Federal Court Rules 2011. Rule 33.12(2) provides as follows:

The notice of appeal must state:

(a)    the part of the decision the applicant appeals from or contends should be varied; and

(b)    the precise question or questions of law to be raised on the appeal; and

(c)    any findings of fact that the Court is asked to make; and

(d)    the relief sought instead of the decision appealed from, or the variation of the decision that is sought; and

(e)    briefly but specifically, the grounds relied on in support of the relief or variation sought.

This rule had as its counterpart O 53 r 3(2)(b) of the now-repealed Federal Court Rules. The long-established necessity to clearly identify with precision the “question of law” to be raised on appeal is made even more apparent in the current rules. Previously, O 53 r 3(2)(b) required an applicant to identify “the question or questions of law to be raised on the appeal”; r 33.12(2)(b) (it will be noted) now requires an applicant to state “the precise question or questions of law to be raised on the appeal”. The current requirement to state “the precise question” is to be understood as an express endorsement of the approach previously set forth in such authorities as Saxby Bridge and Birdseye.

11    Although it has sometimes been said that the Court has a power to dispense with compliance with the Rules, that power is confined to a power to dispense with compliance with the Rules of this Court. There is no power to dispense with the requirement to identify a “question of law” which satisfies s 44(1). In the absence of the formulation of a “question of law”, this Court has no jurisdiction.

12    Although the questions of law as set forth were inelegantly expressed, it is understood that Mr Kolya wished to have raised on appeal two questions, namely:

    whether the Tribunal applied to his application the correct law, namely the Tax Agent Services Act 2009 (Cth) and the Tax Agent Services (Transitional Provisions and Consequential Amendments) Act 2009 (Cth); and

    whether the Tribunal had complied with its statutory obligation to provide a statement in accordance with s 43(2B) of the Administrative Appeals Tribunal Act.

13    When the appeal proceeded to hearing in Canberra on 16 February 2012 Mr Kolya did not wish to further amend his Amended Notice of Appeal. He did not wish to again place reliance upon the question as first posed in his initial Notice of Appeal alleging a denial of procedural fairness; nor did he wish to further amend to directly challenge the Tribunal’s finding that he was not a “fit and proper person”.

14    Notwithstanding the fact that Mr Kolya did not wish to rely upon the questions formulated in his initial Notice of Appeal, the Amended Notice of Appeal set forth the “orders sought” as follows:

Orders sought

1.    [specify the relief sought instead of the decision appealed from or the variation of the decision that is sought] PROHIBITION AND CERTIORARI AS WELL A WRIT OF MANDAMUS AND THEN QUASH THE DECISION.

2.    SET ASIDE THE DECISION AND MAKE A DECLARATION THAT THERE HAS BEEN A BREACH OF NATURAL JUSTICE

The reference there to an alleged “breach of natural justice” could be construed as an attempt to contend that a third “question of law” to be resolved on appeal is whether or not the Tribunal proceeded in a procedurally unfair manner.

15    It was the first purported “question of law” which occupied the greater part of the hearing in Canberra. The second – and possibly third – “question of law” received but passing mention.

REGISTRATION & Transitional Registration

16    Registration as a tax agent prior to 1 March 2010 was regulated by the Income Tax Assessment Act 1936 (Cth). Thereafter it was regulated by the Tax Agent Services Act 2009 (Cth). Transitional arrangements for registration were governed by the Tax Agent Services (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).

17    Prior to 1 March 2010 the regulatory bodies were the state Tax Agents Boards. These were created by Part VIIA, Division 2 of the Income Tax Assessment Act 1936 (Cth). Section 251K(2)(d) of that Act previously provided that a Tax Agents Board could suspend or cancel the registration of any tax agent if satisfied that “the tax agent is not a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers …”. After 1 March 2010 the regulatory body became the Tax Practitioners Board.

18    Common to the requirements for registration, both before and after 1 March 2010, is that a person be a “fit and proper person”.

19    That requirement is now set forth in s 20-5(1)(a) of the Tax Agent Services Act 2009 (Cth). That subsection provides as follows:

Eligibility for registration as registered tax agent or BAS agent

(1)    An individual, aged 18 years or more, is eligible for registration as a registered tax agent or BAS agent if the Board is satisfied that:

(a)    the individual is a fit and proper person; and

(b)    the individual meets the requirements prescribed by the regulations (including, but not limited to, requirements relating to qualifications and experience) in respect of registration as a registered tax agent or BAS agent.

Section 20-15, however, should be briefly mentioned. That section further sets forth some matters that “must” be taken into account when deciding whether a person is a “fit and proper person”. That section provides as follows:

Criteria for determining whether an individual is a fit and proper person

In deciding whether it is satisfied that an individual is a fit and proper person, the Board must have regard to:

(a)    whether the individual is of good fame, integrity and character; and

(b)    without limiting paragraph (a):

(i)    whether an event described in section 20-45 has occurred during the previous 5  years; and

(ii)    whether the individual had the status of an undischarged bankrupt at any time during the previous 5 years; and

(iii)    whether the individual served a term of imprisonment, in whole or in part, at any time during the previous 5 years.

20    Power to terminate the registration of a person’s status as a tax agent or as BAS agent if he ceases to be a “fit and proper person” is conferred by s 40-5 of the Tax Agent Services Act. That section provides as follows:

Termination of registration--individuals

(1)    If you are a registered tax agent or BAS agent and an individual, the Board may terminate your registration if:

(a)    an event affecting your continued registration, as described in section 20-45, occurs; or

(b)    you cease to meet one of the tax practitioner registration requirements; or

(c)    you breach a condition of your registration.

(2)    The Board must terminate your registration if:

(a)    you surrender your registration by notice in writing to the Board; or

(b)    you die.

The expression, a “tax practitioner registration requirement”, is defined in the Dictionary found in s 90(1) as meaning:

…the matters about which the Board must, under Subdivision 20-A, be satisfied before the Board is obliged to grant an application for registration under this Act.

Section 20-5 is a provision found within Subdivision 20-A.

21    Transitional arrangements for registration as a tax agent are for present purposes set forth in Item 13 within Schedule 2 to the Tax Agent Services (Transitional Provisions and Consequential Amendments) Act; transitional provisions for registration as a BAS agent were set forth in Item 5 within Schedule 2.

22    Item 13 provides as follows:

Special rule for applications for registration as a registered tax agent

(1)    If:

(a)    an entity applies for registration as a registered tax agent under section 20-20 of the new law before the end of the 6 month period beginning immediately after commencement; and

(b)    the entity would be eligible for registration but for the operation of:

(i)    paragraph 20-5(1)(b) of the new law (which requires the Board to be satisfied of requirements prescribed by regulations, including requirements in relation to qualifications and experience in respect of registration as a registered tax agent); or

(ii)    paragraph 20-5(2)(c) or (3)(d); and

(c)    immediately before commencement, the entity was providing a tax agent service within a particular area of the taxation laws; and

(d)    the Board is satisfied that the entity had been providing that tax agent service to a competent standard for a reasonable period before making the application;

then, despite paragraph 20-5(1)(b), (2)(c) or (3)(d) of the new law, the entity is eligible for registration.

These transitional arrangements, it will be noted, do not remove the requirement that a person be a “fit and proper person” within the meaning of and for the purposes of s 20-5(1)(a).

THE LAW WHICH WAS APPLIED

23    According to the documents filed with the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tax Practitioners Board:

    received an application from Mr Kolya seeking transitional registration as a tax agent on 3 March 2010; and

    received notification from Mr Kolya on 11 March 2010 that he was providing BAS services immediately prior to 1 March 2010.

24    It was on 6 October 2010 that the Tax Practitioners Board advised Mr Kolya of its decision to reject his application as a tax agent. The Board’s reasons record that it considered his application “under section 20-5 of the [Tax Agent Services Act 2009] and in accordance with Item 13 of Part 3 of Schedule 2 (special rule 13) of the [Tax Agent Services (Transitional Provisions and Consequential Amendments) Act 2009] …”. Those reasons also refer to s 20-25(1) and concluded that “the Board is not satisfied that you are a fit and proper person …”.

25    The Tax Practitioners Board also advised Mr Kolya on 20 December 2010 of its decision to terminate his registration as a BAS agent pursuant to s 40-5(1)(b) of the Tax Agent Services Act because he had “ceased to meet the tax practitioner registration requirement that you are a fit and proper person”.

26    The first Question of Law as advanced by Mr Kolya refers to the “Tax Agent Services (Transitional Provisions and Consequential Amendments) Bill 2009 (Cth)” and “REGULATION 156 OF THE OLD LAW”.

27    Counsel for the Tax Practitioners Board rightly accepted that this question could – if reframed – satisfy the requirements of s 44(1) of the Administrative Appeals Tribunal Act. It could be reframed to direct attention to whether or nor the Tribunal correctly applied the transitional provisions and the current legislation as opposed to the law that prevailed prior to 1 March 2010. It was understood that Mr Kolya sought to contend that the Tribunal had not applied the current legislation.

28    The statements filed with the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act, and the Tribunal’s reasons provided pursuant to s 43 of that Act, both clearly set forth the legislation that it applied. The Tribunal thus identified at the outset of its reasons the following:

Is Mr Kolya eligible for transitional registration as a tax agent?

[5] The Tax Agent Services Act 2009 (the Services Act) provides a national legislative scheme to regulate the provision of tax agent services that came into effect on 1 March 2010. This scheme replaces the previous legislative arrangements for the registration and regulation of tax agents by state-based Tax Agent Boards. Transitional arrangements from the old scheme to the new scheme are contained in the Tax Agent Services (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). The Transitional Act also amends the Income Tax Assessment Act 1936 (the Assessment Act) by repealing Pt VIIA relating to the registration of tax agents. It is necessary to refer to these enactments and related legislation in order to properly understand and determine Mr Kolya’s applications.

[6] Under the Services Act a person must be “a fit and proper person” in order to be eligible for registration as a tax agent. Eligibility requirements for the purposes of s 20-5(1)(b) of the Services Act, concerning qualifications and relevant experience, are prescribed in the Tax Agent Services Regulations 2009 (the Regulations). Special transitional arrangements apply in respect of these requirements. Under Item 13, Schedule 2 (special rule 13) of the Transitional Act, a person who was providing a ‘tax agent service within a particular area of the taxation laws’ ‘to a competent standard for a reasonable period’ may be eligible for registration as a tax agent if certain requirements are met. Those requirements include being a fit and proper person for registration.

[7] Thus, Mr Kolya will be eligible for registration as a tax agent if he is a ‘fit and proper person’ for that purpose and he complies with one of the prescribed requirements, or he was providing a ‘tax agent service to a competent standard for a reasonable period’ prior to making the application for registration. If he is found to be eligible for registration, the Board (and in those shoes this Tribunal) ‘must grant’ the application for registration under s 20-25 of the Services Act.

No error of the kind suggested by Mr Kolya is discernible. The subsequent reference by the Tribunal (at para [74] of its reasons) to reg 156 of the Income Tax Regulations 1936 does not evidence any application of the prior regulatory regime to Mr Kolya’s application.

29    Any suggestion that the Tribunal failed to apply the Tax Agent Services Act 2009 and the Tax Agent Services (Transitional Provisions and Consequential Amendments) Act 2009 is rejected.

An Insurmountable Obstacle?

30    Other than by contending that the Administrative Appeals Tribunal in reaching its conclusion had (for example):

    applied the wrong law or misconstrued the law that it did apply; or

    proceeded in a procedurally unfair manner; or

    failed to adequately explain the decision reached

an insurmountable obstacle to any success on the part of Mr Kolya was that:

    the Tribunal had found him not to be a fit and proper person.

The absence of any challenge to this conclusion was raised with Mr Kolya on a number of occasions – both prior to and during the hearing itself. In the absence of any challenge to this conclusion, Mr Kolya would not be eligible for registration – either pursuant to the former regulatory regime or that now in place. Even if some legal error may have been perceived, the absence of any challenge to this conclusion may well have provided a basis upon which any discretionary relief could have been refused.

31    Prior to the implementation of the amendments on 1 March 2010, many decisions of both the Administrative Appeals Tribunal and this Court thus canvassed the requirement that a tax agent be a “fit and proper person” and a person of “good fame, integrity and character”: e.g., Toohey v Tax Agents’ Board of Victoria [2007] FCA 431, 171 FCR 291; Pleno v Tax Practitioners Board [2010] FCA 1196, 80 ATR 689. The phrase “a fit and proper person” is, of course, a phrase not confined to the registration of tax agents. It is a phrase commonly employed in relation to persons holding offices or vocations: Hughes and Vale Proprietary Limited v State of New South Wales (No 2) (1955) 93 CLR 127 at 156. Dixon CJ, McTiernan and Webb JJ there observed:

… The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”—Coke.

In the context of the registration of tax agents, the requirement serves a number of purposes. Those purposes include ensuring that those who entrust their affairs to a tax agent can be assured of an agent’s competence and integrity and to also provide the Taxation Department with an assurance that it can “proceed upon the footing that the taxation returns lodged by the agent have been prepared by him honestly and competently”: Re Su and Tax Agents’ Board (SA) (1982) 82 ATC 4284 at 4286 per Davies J. See also: Stasos v Tax Agents’ Board (1990) 21 ALD 437 at 443 to 444 per Hill J.

32    The content of the phrase “a fit and proper person” has relevantly remained unchanged. The importance of the requirement transcends the legislative amendments.

33    The absence of any realistic prospect whereby Mr Kolya could impugn the conclusion of the Tribunal that he was not a “fit and proper person” may have been the reason why he did not attempt to do so.

34    In reaching this conclusion, it should nevertheless be noted that the reasons for decision of the Tribunal record that it posed for itself the need to resolve a series of questions. These questions were expressed in its reasons for decision as follows:

[13] In order to properly address these matters and determine whether Mr Kolya is a fit and proper person for registration as a tax agent, it is necessary to answer the following questions:

(a)    Did Mr Kolya provide false information in his application for registration?

(b)    Did Mr Kolya make false claims of relevant experience?

(c)    Did Mr Kolya fail to provide or provide false information about prior convictions?

(d)    Did Mr Kolya provide false information about his academic qualifications?

(e)    Is Mr Kolya’s conduct providing tax agent services consistent with applicable standards?

(f)    Is Mr Kolya of good fame, integrity and character?

The Tribunal thereafter went on to set forth the evidence given in relation to each of these matters and to express its conclusions in respect to each. In the course of doing so the Tribunal made adverse findings as to the credibility of Mr Kolya, finding him to have been “not truthful”.

35    Thus, and only by way of example, the Tribunal considered whether Mr Kolya had worked under the supervision and control of a tax agent. Mr Kolya claimed (in part) that he had been supervised by “Greg” or “Craig” in the Phillip office of H&R Block from 2001 to 2004. That was his evidence. Before the Tribunal the Tax Practitioners Board relied upon evidence (inter alia) from the Managing Director of H&R Block Limited (Mr Phillip Hunt) and other employees of H&R Block. The Tribunal set forth this evidence and its findings (again in part) as follows:

[43] Mr Hunt gave evidence that H&R Block Limited has no record of any such transactions and he comprehensively rejected Mr Kolya’s assertions. He adduced records of H&R Block employees from 2001 to 2004 and stated that no person by the name of ‘Craig’ was employed in the Phillip office of H&R Block during this period. This is consistent with the evidence of Elaine Slavik. It appears that one person with that name, Craig Thomas, was employed by H&R Block in the Tuggeranong Office for a short period in 2003, but Mr Thomas states that he did not work in the Phillip office and he did not know any person with the name Peter Kolya. I have examined the employee records in Exhibit R7 and I am satisfied that no person with the name ‘Craig’ or ‘Greg’ is recorded as an employee in the Phillip office of H&R Block from 2001 to 2004.

[44] Mr Kolya was given a reasonable opportunity to respond to this evidence. He informed me that he did not want to cross-examine Ms Slavik or Mr Thomas, and he did not want to recall Mr Hunt. On resumption of the hearing Mr Kolya indicated that he may have further questions for Mr Hunt, but he informed me that he would not press the matter or request that Mr Hunt be recalled. Considering this, as Mr Kolya expressly did not seek to put further questions to Mr Hunt, there was no utility in recalling him. The hearing proceeded on that basis.

[45] As can be seen, Mr Kolya’s evidence is not consistent with or supported by the evidence of Mr Hunt, Ms Slavik and Mr Thomas, or any other evidence for that matter. I prefer Mr Hunt’s detailed and well-supported evidence to the unsupported evidence of Mr Kolya.

The Tribunal dealt with each of the other questions it had posed for resolution in a similar manner.

36    The Tribunal’s ultimate conclusions in respect to whether or not Mr Kolya was of “good fame, integrity and character” were expressed as follows:

[93] In sum on this point, there are serious doubts about Mr Kolya’s good fame, integrity and character. The evidence supporting Mr Kolya’s claims to good fame, integrity and character rises, in part at least, on false assumptions. There is powerful evidence that he has misled clients about his tax agent registration. He has provided incorrect information to the Board about his previous tax agent registration, and about his previous relevant experience and his qualifications. And I am satisfied that he knew, or had good reason to know, that this information was incorrect at the time he provided it to the Board. He has misrepresented the affiliate program that was approved by HRB Innovations as an authority to prepare tax returns and to use a tax agent number registered to the Belconnen office franchise of H&R Block Limited when no such authority was conferred by that program.

[94] Considering the relevant factors and the evidence which I have addressed in some detail, on balance, I am reasonably satisfied that Mr Kolya is not a person of good fame, integrity and character for the purposes of sections 20–5 and 20–15 of the Services Act. Furthermore, I am reasonably satisfied that Mr Kolya’s conduct in respect of tax agent services is not consistent with the applicable standards.

The Tribunal finished its reasons for decision as follows:

Conclusion

[108] Mr Kolya is not a fit and proper person for registrations as a tax agent or as a BAS agent. For this reason his application for registration as a tax agent is not made out, and the reviewable decision refusing his application for registration must be affirmed. Similarly, his challenge to the Board’s reviewable decision to terminate his registration as a BAS agent is not made out. He is not a fit and proper person for registration as a BAS agent and, in all the circumstances, it is appropriate to exercise the discretion to terminate his registration. Accordingly, that decision must be affirmed.

37    Each of the findings of fact made by the Tribunal was open to it on the evidence. Those findings were founded upon – in varying degrees:

    an assessment as to the credibility of Mr Kolya;

    contrary evidence of other persons;

    an inability on Mr Kolya’s part to corroborate his evidence; and

    objective evidence contrary to Mr Kolya’s assertions and supportive of the findings in fact made.

The findings set forth in paras [93] and [94] of the Tribunal’s reasons for decision were soundly made.

38    In the absence of any successful challenge being mounted to those findings, Mr Kolya’s applications were doomed to failure. It mattered not whether his application was considered in accordance with the law prior to its amendment or subsequent to those amendments. Being a “fit and proper” person was central to his eligibility for registration as a BAS agent and a tax agent. He was found not to be a “fit and proper” person.

39    The first Question of Law, no matter how it may have been better expressed, is without substance. It is rejected.

The Reasoning of the Tribunal & Section 43(2b)

40    The second of the two Questions of Law as advanced by Mr Kolya questioned whether the Tribunal had adequately explained the conclusions in fact reached. It was asserted that the Tribunal had failed to comply with the obligations imposed upon it by s 43(2B) of the Administrative Appeals Tribunal Act.

41    This was an issue which received but little attention during the course of the hearing in Canberra on 16 February 2012. It was an issue, however, which Mr Kolya pressed as an issue in need of resolution.

42    Section 43(2B) provides as follows:

Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

Section 43(2B), it will be noted, refers to “reasons” for a decision and imposes a requirement to set forth “findings on material questions of fact” and a further requirement to make a “reference to the evidence or other material on which those findings were based”.

43    The requirement to furnish reasons, it has long been recognised, is “a very important obligation” and is “a pillar of the system of administrative decision-making by the tribunal”: Dodds v Comcare Australia (1993) 31 ALD 690 at 691 per Burchett J. It has also long been said that whether the reasons which have been provided fall short of the requirements imposed by s 43(2B) “is a question of degree”: Commissioner of Taxation v Osborne (1990) 26 FCR 63 at 65 per Pincus J (Spender and French JJ agreeing).

44    With specific reference to the requirement to set forth “findings on material questions of fact”, it is also now well established that the Tribunal need not set forth its findings on every question of fact that may arise; the requirement is to set forth its findings on “material questions of fact”: cf. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323. McHugh, Gummow and Hayne JJ made the following observations regarding a comparable requirement imposed by s 430 of the Migration Act 1958 (Cth):

[68] Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word “material” in s 430(1)(c). It was said that “material” in the expression “material questions of fact” must mean “objectively material”. Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.

[69] It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.

This analysis of the requirements imposed by s 430 of the Migration Act applies equally to the like requirement imposed by s 43(2B): e.g., Dean v Australian Postal Corporation [2010] FCA 680 at [43], 52 AAR 54 at 61-62 per Perram J; Cameron v Commissioner of Taxation [2011] FCA 1378 at [41] per Edmonds J.

45    Mr Kolya only briefly sought to develop his argument that there had been non-compliance with s 43(2B). He was, however, unable to point to any additional or further “finding of fact” or any “reason” which he contended should have been made – but was not made – by the Tribunal.

46    The second of the two arguments sought to be raised by Mr Kolya is also rejected. Contrary to the submission of Mr Kolya that the Tribunal has failed to comply with s 43(2B), its reasons for decision comprehensively set forth the basis upon which it proceeded.

Procedural Unfairness

47    To the extent that Mr Kolya sought to contend that the Tribunal had denied him procedural fairness – or had possibly denied him a reasonable opportunity to be heard – the argument is rejected.

48    For present purposes it may be readily accepted that the Tribunal is bound to comply with the common law rules of procedural fairness. Reference should also be made to s 39 of the Administrative Appeals Tribunal Act which relevantly provides as follows:

Opportunity to make submissions concerning evidence

(1)    Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

(2)    …

The obligation imposed by s 39 is to ensure that every party “is given a reasonable opportunity to present his or her case”; it does not mean that the Tribunal has to ensure that a party takes the “best advantage” of that opportunity: Secretary, Department of Family and Community Services v Verney [2000] FCA 570 at [45], 60 ALD 737 at 748. See also: Sullivan v Department of Transport (1978) 20 ALR 323 at 343; 1 ALD 383. Deane J (with whom Fisher J agreed) there observed at 403 that “[n]either the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled”: De Simone v Federal Commissioner of Taxation [2009] FCAFC 181 at [15], 51 AAR 161 at 167 per Sundberg, Stone and Edmonds JJ; Kenso Marketing (M) SDN BHD v Chief Executive Officer of Customs [2011] FCAFC 26 at [45] per Keane CJ, Downes and Gordon JJ; Caporale v Commissioner of Taxation [2012] FCA 86 at [45] per Robertson J.

49    The argument as to procedural unfairness was not developed by Mr Kolya other than to contend that the Tribunal was biased against him.

50    Brief reference was made as to the availability of the transcript of the proceeding before the Tribunal. But it was not tendered and Mr Kolya made no reference to it in submissions. Given that Mr Kolya, however, is unrepresented, it was reviewed subsequent to the hearing to see if there was any basis for Mr Kolya’s contention. Had such a basis emerged it would, of course, have been necessary to thereafter provide the Tax Practitioners Board an opportunity to respond. But no basis emerged.

51    The argument is without substance.

THE FINDINGS OF ADDITIONAL FACTS

52    The rejection of both of the Questions of Law relied upon by Mr Kolya probably makes it unnecessary to address that part of the Amended Notice of Appeal which invites the Court to make two additional findings of fact as sought by Mr Kolya.

53    The Amended Notice of Appeal set forth as follows (again without alteration) the findings of fact which he invited this Court to make:

Findings of fact that the Court is asked to make

1.    [specify each finding]. INTEREST TO THE INDUSTRY, GOVERNMENT AND THE PUBLIC.

2.    THAT IT WAS ONLY APPROPRIATE FOR THE COURT, RATHER THAN THE TRIBUNAL TO MAKE THE FINDINGS OF FACT GIVEN THE PRECEDENTIAL VALUE AND NATURE OF THE MATTER.

54    The ability to identify in a Notice of Appeal any additional findings of fact which an applicant seeks the Court to make is an innovation effected by Rule 33.12(2)(c) of the Federal Court Rules 2011. It had no counterpart in the now repealed O 53 r 3 of the now-repealed Rules. The form of a Notice of Appeal prescribed in Form 75 accommodates this innovation. The ability to now expressly identify proposed additional findings of fact, however, should not be seen by applicants – especially unrepresented applicants – as a “box” that necessarily needs to be “filled in”.

55    It is constantly to be recalled that the jurisdiction of this Court when entertaining an “appeal” pursuant to s 44 of the Administrative Appeals Tribunal Act is confined to the resolution of the questions of law which have been identified. The Court has no general jurisdiction to thereafter proceed to make additional findings of fact which it or another Tribunal differently constituted may have made.

56    The only power that this Court has to make additional findings of fact when entertaining an appeal is that conferred by s 44(7) of the Administrative Appeals Tribunal Act. That subsection provides as follows:

If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if:

(a)    the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and

(b)    it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to:

(i)    the extent (if any) to which it is necessary for facts to be found; and

(ii)    the means by which those facts might be established; and

(iii)    the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and

(iv)    the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(v)    the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(vi)    whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and

(vii)    such other matters (if any) as the Court considers relevant.

Section 44(7) is not to be understood as enabling this Court on appeal “to exercise the discretion of the decision-maker” (Selway v Minister for Infrastructure, Transport, Regional Development and Local Government [2011] FCA 43 at [46], 120 ALD 40 at 50 per Mansfield J) and cannot be relied upon to “alter the jurisdiction of the Court or widen the issues to be decided” (Condell v Commissioner of Taxation [2007] FCAFC 44 at [14] [2007] ATC 4404 at 4408 per Gyles J, with whom Kenny and Allsop JJ agreed). Where credibility findings have been made, the Court has previously considered it not appropriate to itself make factual findings pursuant to s 44(7): Repatriation Commission v Cotton [2006] FCA 1523 at [35], 93 ALD 118 at 126 per Rares J.

57    It is the prospect that s 44(7) may be apposite – in an appropriate case – that r 33.12(2)(c) and Form 75 of the Federal Court Rules 2011 seek to address.

58    It is within the limited constraints imposed by s 44(7) that Mr Kolya’s application for the Court to make additional findings should be considered.

59    The first of the two “findings of fact” set forth in the Amended Notice of Appeal is devoid of content. It fails to identify the precise finding which is sought. At most, it identifies a topic in respect to which a specific finding may be made. Given the findings of fact which have been made by the Tribunal, if any additional finding of fact were to be made it would be a finding that registration of Mr Kolya would be contrary to the interests of “the industry, government and the public”. Indeed, such a finding has already been implicitly – if not expressly – made by the Tribunal.

60    The second of the two “findings of fact” sought by Mr Kolya proceeds from a misconception. Whatever “precedential value” a decision peculiar to the factual circumstances of Mr Kolya may have, may be left to one side. The task of making findings of fact has been expressly entrusted by the Legislature to the Tribunal – and not this Court. The only jurisdiction of this Court is that confined to a “question of law” and the only power it has to make additional findings of fact is the limited power conferred by s 44(7).

61    No matter how important any individual claimant may perceive his claim to be, the forum in which evidence is to be adduced and findings of fact are to be made is the Tribunal.

62    Neither of the two purported further “findings of fact” identified by Mr Kolya can be – or should be – made.

Conclusions

63    Each of the two Questions of Law, however they may have been better expressed, is to be resolved against Mr Kolya. Nor has there been any denial of procedural fairness or denial of the opportunity set forth in s 39 of the Administrative Appeals Tribunal Act. His appeal is to be dismissed.

64    It is unnecessary to resolve the Amended Interlocutory Application as filed in February 2012.

65    There is no reason why Mr Kolya should not pay the costs of the Respondents.

ORDERS

The Orders of the Court are:

1.    The Amended Notice of Appeal as filed on 7 February 2012 is dismissed.

2.    The Applicant is to pay the costs of the Respondents.

Associate:

Dated:    13 March 2012