Federal Court of Australia

Migration Agents Registration Authority v Bebawy [2021] FCA 397

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Administrative Appeals Tribunal (the Tribunal) made on 9 October 2020 to vary a decision of the applicant (the Authority) made on 14 February 2019 with the respondent (the Agent) being barred from being a registered migration agent until 15 August 2021 be set aside.

3.    The Agent’s application to the Tribunal for review of the Authority’s decision be remitted to be heard and decided again by the Tribunal, constituted by a member other than the member who made the decision.

4.    There be no order as to costs.

5.    The Agent be granted a costs certificate under section 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the costs incurred by him in relation to the appeal.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    On 24 August 2010, the present respondent Mr Mofid Bebawy (the agent) was registered under the Migration Act 1958 (Cth) (the Act) as a migration agent. That registration subsisted with annual renewals until 14 February 2019. At that time, the present applicant, the Migration Agents Registration Authority (the Authority), acting under s 303(1)(a) of the Act cancelled the agent’s registration. The agent then sought the review by the Administrative Appeals Tribunal (Tribunal), pursuant to s 306 of the Act, of the Authority’s decision. On 9 October 2020, for reasons given in writing, the Tribunal decided, or at least purported to decide, as follows:

95.    The reviewable decision of 14 February 2019 is varied with the Applicant being barred from being a registered migration agent until 15 August 2021.

2    It is necessary to add the qualification ‘purported’ to the Tribunal’s decision, because the lawful authority of the Tribunal in the review it was undertaking to bar the agent from being a registered migration agent at all is contested by the Authority, and forms the first of three questions of law posed in the present statutory appeal to the Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

3    The Authority does have power, found in s 311A of the Act, to bar a former registered migration agent from being registered for up to five years. In turn, a person aggrieved by a decision under s 311A of the Act may seek the review of that decision by the Tribunal pursuant to s 311F of the Act.

4    The Tribunal’s role is to sit in place of the person who made the decision in respect of which a right of review is given by statute: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. For that purpose, and as s 43 of the AAT Act contemplates, the Tribunal is invested with all of the powers and discretions of the person who made the decision under review. It is quite plain in the circumstances of the present case, and having regard to the nature of the decision under review and the terms of s 306 of the Act, that the Tribunal had no power whatsoever to bar the agent from being registered as a migration agent. The Tribunal’s reasons for so doing are to be found at [94], in which the Tribunal states:

94.    The Applicant submits that the decision of 14 February 2019 should be set aside and that in substitution there should be a period of suspension of 18 months, with “the lifting of the suspension [being] conditional on any course the Tribunal might find appropriate, in the circumstances”. The Respondent submits that the decision to cancel the Applicant’s registration under paragraph 303(1)(a) of the Act be affirmed. There are multiple breaches of the Code of Conduct (clauses 2.1, 2.4, 2.23, 3.2A(b), 5.2(c), 5.5, 6.1, 6.1A and 7.1A) indicating systemic poor practices. There are findings as to serious, repeated breaches of the Code. There is a history of complaints against the Applicant, as particularised. Section 292 of the Act states that an applicant whose registration has been cancelled under section 303 must not be registered within 5 years of the cancellation. Where there is not ‘satisfaction’ that the Applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance, but where there are serious repeated breaches of the Code, a lengthy period of suspension will impress upon the Applicant the necessity to improve his conduct and practices as to compliance with the Code. As referred to above, the Applicant submits a suspension of 18 months from 14 February 2019 is appropriate. Having regard to the number of breaches of the Code it is found that a longer suspension than 18 months is appropriate. Section 311A of the Act states that the Respondent may decide to bar a former registered migration agent from being a registered migration agent for a period if, after investigating a complaint about him or her in relation to his or her provision of immigration assistance while he or she was a registered migration agent, it is satisfied that the subject matter of the complaint is made out, with the period not being more than 5 years starting on the day of the Respondent’s decision. Where there is no finding that the Applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance, the order as to cancellation (which has an equivalent statutory consequence of a 5 year suspension) will not be affirmed. Where there are serious repeated breaches of the Code, where cancellation results in a five-year period before further registration, in all the circumstances, there will be a bar from registration of the Applicant until 15 August 2021, that is no earlier than 2.5 years after 14 February 2019.

5    This paragraph is the culmination of the Tribunal’s reasons. The reference by the Tribunal in the middle of [94] to s 311A of the Act is, with respect, curious. Regard to that section had not been urged by either party to the review. It may very well be, in light of the Tribunal’s statement, “Having regard to the number of breaches of the Code it is found that a longer suspension than 18 months is appropriate,” that the reference to s 311A is an aberration and that what the Tribunal meant to do was to increase the period of suspension. But the reference to a bar is repeated at the conclusion of [94], and the error has translated into the formal decision of the Tribunal.

6    The parties were at one in submitting that the formal decision of the Tribunal entailed an error of law of the kind described. For the reasons just given, I agree with that submission. An error of law is clear. What divided the parties, understandably in my view, was what should be the fate of the appeal in light of the conceded error of law. The proceedings before the Tribunal entailed no less than seven days of hearing, followed by directions in respect of the filing and exchange of submissions in writing. There were no oral submissions to the Tribunal. That may perhaps be a consequence of the public health restrictions which came to prevail in this State as a result of the COVID-19 pandemic.

7    However that may be, the two further questions of law which are at large in the appeal are whether the Tribunal failed actively to engage with the submissions made to it by the Authority and, further, whether the Tribunal’s reasons were sufficient to discharge the obligation which fell on the Tribunal in respect of reasons by virtue of s 43(2) and s 43(2B) of the AAT Act.

8    The Authority gave comprehensive particularity to the alleged failure of engagement in its notice of appeal, as it did for that matter to the alleged inadequacy of the reasons.

9    In the course of oral submissions, the Authority adopted the commendably discriminating approach of identifying what it submitted to be the most stark examples of a failure to engage and, related to that, as it transpired, a failure to give adequate reasons. Again with commendable discrimination, the agent by his counsel accepted that if these particular examples were made out, then certain orders in relation to remittance would inevitably follow in any event, thus making it unnecessary to explore the merits of other alleged deficiencies in engagement and in the furnishing of reasons.

10    A useful starting point in relation to grounds 2 and 3 is a summary of principles recently offered by the Full Court, by emanating from the primary judge, in Meyrick v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2020] FCAFC 209, at [20], to which my attention was helpfully drawn by counsel:

20    The primary judge set out the principles relevant to determining whether the Tribunal failed to have regard to the effect of non-revocation on Ebony Bond in the following terms (Reasons [98]):

“(1)    A requirement, whether imposed by common law or by statute, to consider a matter involves a decision maker engaging in an ‘active intellectual process’ directed at that matter: Tickner v Chapman (1995) 57 FCR 451 at 462 (Black CJ); NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [46] (Hill J), [212] (Madgwick J); and Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45] (Griffiths, White and Bromwich JJ).

(2)    ‘What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put’: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ).

(3)    ‘… [W]here decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression’: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3] (Allsop CJ).

(4)    The degree of consideration which is necessary for the jurisdiction to have been exercised in a manner which is authorised is affected by the centrality to the issues of the matter in question, and the prominence the matter assumed: Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37(1)]. While this was not said in the context of a matter which was specifically and expressly made mandatory by statute (or a direction with statutory authority), it seems to me that it still applies, provided proper allowance is made for the fact that the mandatory nature of the specific consideration will itself affect its centrality and prominence. In the end it is, with respect, a dictate of common sense; if not much is said about a matter in the material before the Tribunal, passing reference to it in reasons will be less likely to support the inference that it was not given adequate consideration.

(5)    Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth), which requires the Tribunal to include in its reasons its findings on material questions of fact, only requires the Tribunal to set out the findings of fact which in its opinion are material: Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8] (Hill and Allsop JJ).

(6)    So if the Tribunal’s reasons do not mention a factor, the consideration of which is mandatory under Direction 65, it does not necessarily follow that it has failed to consider that factor. Section 43(2B) entitles the court to infer that any matter not mentioned in the Tribunal's reasons was considered by the Tribunal not to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ), a case about s 430 of the Migration Act, but s 43(2B) of the Administrative Appeals Tribunal Act is not materially different.

(7)    It seems to me that the same can be said of the express qualification in Direction 65 that the mandatory factors for consideration are only mandatory ‘where relevant’. The Tribunal was required to form an opinion about the relevance or otherwise of each factor, but in this context relevance is not a jurisdictional fact that the court must determine for itself: SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34 at [20] (Perram J); and Minister For Home Affairs v HSKJ [2018] FCAFC 217; (2018) 363 ALR 325 at [44].

(8)    However the inference referred to in Yusuf is not mandatory. The manner in which a statement of reasons is drawn and its surrounding context may detract from or displace the inference; for example because there is material that is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it: SZTMD at [19].

(9)    It is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the relevant criteria and some contentions misconceived: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46] (French, Sackville and Hely JJ).

(10)    It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality: Applicant WAEE at [47].

(11)    It falls to the applicant to establish a basis for drawing the inference necessary to make out the alleged jurisdictional error: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67] (Gummow J).

(12)    The reasons should not be scrutinised minutely and finely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. A conclusion that the decision maker has not engaged in an active intellectual process ‘will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof’: Carrascalao at [48].

(13)    ‘Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision maker fall “on the wrong side of the line”, to quote Lafu at [49], will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision maker’s reasons’: Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89] (Middleton, Moshinsky and Anderson JJ).

(14)    Each case necessarily turns on its own particular facts and circumstances as established by the evidence: Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569 at [36(e)].”

11    Of the principles there summarised, it is impossible to overstate the importance of the exercise of a principled restraint in relation to the reading of reasons furnished by an administrator, as emphasised by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272. Absent such restraint, the task of administrative decision-making, which includes the task of administrative review, consigned to the Tribunal, would become impossible in practice. That conceded, s 43(2) and s 43(2B) of the AAT Act mean what they say. The consequence of lapses is that parties to the Tribunal are left in the position of not knowing why a particular decision was made.

12    For all their length, the operative part of the Tribunal’s reasons was, with respect, compressed. Succinctness can be both a virtue and a vice, depending upon the relevant circumstances. In this instance, the Tribunal stated under the heading “Section 303” at [75] and [76]:

75.    As referred to above, in conclusion the Applicant expressly acknowledged actions contrary to the Code:

“ …     over the relevant period, the applicant:

(a)    did not enter into service agreements with Café Kathmandu Pty Ltd or Dahab Group Pty Ltd contrary to clause 5.2(c) of the Code of Conduct;

(b)    did not issue statements of service, contrary to section 313 of the Act and clause 5.5 of the Code of Conduct;

(c)    did not keep adequate file notes of important conversations with his clients and of their receipt of the consumer guide, contrary to clauses 6.1 and 3.2A(b) of the Code of Conduct;

(d)    backdated service agreement, in circumstances and for the subjective reason explained … ”

76.    As to the service agreements, the Respondent submitted that the Applicant breached clauses 2.1, 2.4, 2.9A and 2.23 of the Code: act in accordance with the law and the legitimate interests of the client and deal with the client competently, diligently and fairly (clause 2.1); have due regard to the client’s dependence on the Applicant’s knowledge and experience (clause 2.4); not mislead or deceive the Respondent whether directly or by withholding relevant information (clause 2.9A); and take all reasonable steps to maintain the reputation and integrity of the migration advice profession (clause 2.23). Having regard to the evidence, as referred to above, as to the service agreements, it is found that the Applicant did breach clauses 2.1, 2.4, and 2.23 of the Code: that the Applicant did not deal with the clients competently and/or diligently and did not take all reasonable steps to maintain the reputation of the profession as to the back-dating of the service agreements, where the clients were dependent on the Applicant’s knowledge and experience as their agent. It is not found that the Applicant breached clause 2.9A of the Code, having regard to the evidence, as referred to above, where the Applicant’s evidence was that the backdating of the documents was to ‘correct errors that have been identified on other files by the Department as to service agreements’ and where the back-dating was explained in response to the section 309 notice dated 10 October 2018.

[footnote references omitted]

13    Of course, these paragraphs must be read in context, and that context includes a comprehensive summary of competing contentions. But one of the contentions made to the Tribunal was that, even accepting the agent’s account in relation to the entering into and modification of service agreements with clients, the backdating thereof was nonetheless extremely serious, for reasons given in the Queensland Court of Appeal by McPherson JA in Queensland Law Society v Bax [1998] QCA 089 (Bax).

14    It was also put that such backdating may constitute a contravention of each of the Criminal Code 1899 (Qld) and the Commonwealth Criminal Code. The detail of the submission is to be found in the following paragraphs of the Authority’s written submission before the Tribunal:

2.18    If the Applicant’s account of entering into and modification of service agreements is to be accepted, it must be concluded that he backdated documents and supplied those documents to the Department in the course of its monitoring activity. No effort was made to explain that the documents had been backdated until the Applicant was invited to respond to the section 309 notice. The Respondent submits that this is gravely serious conduct and constitutes a breach of clauses 2.1, 2.4, 2.9A and 2.23 of the Code. The seriousness of backdating documents is illustrated by the fact that it may constitute an offence against both the Schedule to the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code), and the Schedule to the Criminal Code Act 1899 (Qld) (QLD Criminal Code). The Commonwealth Criminal Code at s 137.2 provides that:

137.2    False or misleading documents

(1)    A person commits an offence if:

(a)     the person produces a document to another person; and

(b)    the person does so knowing that the document is false or misleading; and

(c)    the document is produced in compliance or purported compliance with a law of the Commonwealth

Penalty: Imprisonment for 12 months

2.19    The Commonwealth Criminal Code at s 143.2 defines a false document as a “document, or any part of the document, [which] purports to have been made or altered on a date on which, at a time at which, at a place at which, or otherwise in circumstances in which, it was no made or altered. [and] For the purposes of this Part, a person is taken to make a false document if the person alters a document so as to make it a false document (whether or not it was already a false document before the alteration).”

2.20    Section 430 of the QLD Criminal Code provides:

Any person who with intent to defraud-

(a)    makes a false entry in any record; or

(b)    omits to make any entry in any record; or

(c)    gives any certificate or information that is false in a material particular; or

(d)     in any way falsifies, destroys, alters or damages any record; or

(e)    produces or makes use of any record the person knows is false in a material particular;

commits a crime.

2.21    ‘Record’ is defined in s 1:

“record” means any thing or process –

(a)    on or by which information is recorded or stored; or

(b)    by means of which sounds, images, writings, messages or anything else having meaning can be conveyed in any way in a visible or recoverable form;

even if the use or assistance of some electronic, electrical, mechanical, chemical or other device or process is required to recover or convey the information or meaning.

2.22    In Queensland Law Society v Bax [1998] QCA 089, McPherson JA, in deciding that a solicitor’s name be struck from the roll of practitioners, made the following observations:

… the act of falsely “backdating” documents is plainly a serious matter. The ordinary presumption is that, unless there is affirmative evidence to the contrary, a document is taken to have been executed on the date it bears. Such evidence is often difficult to obtain particularly after a lapse of some time from the event. The presumption is therefore one on which business is habitually conducted and for that reason, among others, it is plainly important to maintain its integrity so far as possible.

…

The spectacle of a solicitor, who was chairman of the meeting, falsely asserting a date for the execution of an instrument is one that is not likely to be readily forgotten by the large number of business people who were present on that occasion. It conveys a very poor image of the honesty and integrity of solicitors and so tends to bring the whole profession and its standards into disrepute.

…

All of this tends to show, in my opinion, that counsel for the Attorney-General is correct in submitting that the solicitor here is not fit for practice. It was suggested on his behalf that, once his own explanation of his actions was rejected by the Statutory Committee, it was impossible to say what his real motivation was for backdating the instruments and misleading the creditors about the true date of mortgage. But the explanation or explanations he gave for it at various times at and before the hearing were thoroughly unconvincing and, in the absence of something more persuasive, the Statutory Committee were entitled if not bound to conclude that the solicitor’s motives were discreditable to him and to the profession as a whole.

(emphasis added)

2.23    The Respondent contends that these observations are equally apt in this case, particularly in circumstances where the Code – and the broader statutory scheme for the regulation of migration agents – are enacted to support an overriding protective purpose. Backdating agreements undermines the integrity of the migration agent profession as a whole, particularly in circumstances where backdated documents were provided to the Department with no explanation of the fact that the agreements bore was not the date the agreement were claimed to have been executed.

[emphasis in original – footnote references omitted]

15    In the course of reciting, in its reasons, the submissions made to it by the Authority, the Tribunal does mention Bax, but, with respect, one will look in vain to the section of the Tribunal’s reasons headed “Section 303” and, in particular, [75] and [76] for any engagement with or understanding of the point sought to be developed by the Authority as to the gravity, in any event, of the backdating of documents by a professional person.

16    This particular lapse was at the forefront of the Authority’s contention that there had been a lack of engagement and a related deficiency in reasons.

17    A failure to engage with a particular submission, sometimes termed an integer, may amount to, or may be characterised as, a denial of procedural fairness or as a constructive failure to exercise jurisdiction: see Dennis Wilcox v Federal Commissioner of Taxation (1988) 14 ALD 794 and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, at [24] – [25].

18    Understandably, with respect, an endeavour was made for the agent to submit that, read in context, the reasons did engage with this alternative case put by the Authority. But the nature of that case required at least a revelation that the vice for which the Authority contended was appreciated by the Tribunal, even if on particular facts, which the Tribunal found, it was regarded as not applicable.

19    The other particular alleged egregious lack of engagement and related failure to give reasons put forward by the Authority concerned the alleged charging of unreasonable and therefore excessive fees on numerous occasions by the agent. The occasions of alleged excessive fee charging were particularised in detail in the written submissions of the Authority to the Tribunal. That submission is, with respect, given but cursory acknowledgement of its making in the Tribunal’s reasons at [36]:

36. The Respondent submits that the Applicant received fees for providing immigration services to which he was not entitled, in that the Applicant did not give the respective clients a statement of service as required by section 313 of the Act and clause 5.5 of the Code. The Respondent states that the Applicant did not give the clients statement of services specifying the particulars of each service to be performed and the charge in respect of each service as respectively required by clause 5.5 of the Code.

[footnote references omitted]

The Tribunal then states at [39]:

39.    The Respondent submits further that the evidence identifies that the Applicant does not have a “sound working knowledge of the Act and Regulations in relation to his fees for providing immigration assistance and the legal effect of a Form 956 as required by clause 2.3” of the Code. The Respondent states that the Applicant’s client files did not contain statements of service which detail the services performed and the hours of work undertaken. The Respondent submits that there should be satisfaction that particular fees were unreasonable, including because total fixed payments were received on the date the agreements were said to be executed, which was not the case, and where the breakdown of the hours worked, on the basis of an eight hour day, would have the Applicant charging at $1,250 per hour for services. The Respondent submits that the fees are unreasonable also in that they did not vary from case to case, with limited exceptions and prior to starting work the Applicant failed to provide an estimate of fees.

[footnote references omitted

A response given by the applicant is recited at [40] in the following terms:

40.    The Applicant states:

“There is no statutory scale of fees for migration agents. By paragraph 5.1 of the Code of Conduct, the only requirement is that those fees are “reasonable in the circumstances of the case.”

The only evidence before the Tribunal concerning the reasonableness of the applicant’s fees comes from the applicant himself.

In cross-examination, the applicant denied that his fees for work carried out for Mrs Kaur amounted to an “unreasonable charge.” In his evidence, he explained that an application required a whole day to complete, which included two hours of his time with the client and required the client to separately complete “the other paper work” with the applicant’s assistant, and the fee charged varied taking into account the “complexity of the case”.”

[footnote references omitted]

20    One will, however, look in vain to that part of the Tribunal’s reasons under the heading “Section 303” for any engagement at all with a breach of s 5.1 of the Code, as alleged (being sch 2 to Migration Agents Regulations 1998 (Cth), made under s 314 of the Act). The only reference to this part of the Code is to the different aspect of the provision of a fee estimate (see [77] of the Tribunal’s reasons). Understandably in the circumstances, the agent did not endeavour to do other than submit on the appeal that the Tribunal must not have considered this important or at least that it was unsupported by an evidentiary case to ground a conclusion as to the reasonableness of fees.

21    Perhaps that was so, but it was for the Tribunal to record that in its reasons. The Tribunal regarded itself as desirably confined just to the reception of written submissions. There was benefit and burden in this in the same way as there can be in the exercise of judicial power in that the opportunity for focused, Socratic dialogue was lost. Equally, in this instance, burden was to be found in the sheer length of the written submissions.

22    It is possible to find other instances where at least arguably the reasons do not expose an engagement with submissions made by the Authority. However, the conclusions already reached in that regard have a particular consequence, in my view, in light of the observation made by Kiefel J, as her Honour then was, with respect to s 303(1)(f) of the Act. In Shi v Migration Agents Registration Authority (2008) 235 CLR 286, at [149], her Honour stated:

149.    … The topic with which s 303(1)(f) is concerned is not, however, one which identifies particular conduct, as is the case with respect to breaches of the Code of Conduct. The inquiry posed by the paragraph is a general one, and it may be considered by the Tribunal in that way. It does not limit an assessment of an agent’s integrity and fitness to what has been conveyed by any breaches. There is no reason why the Tribunal’s review should not extend to any information which sheds light upon the presence or absence of the necessary characteristics in the migration agent. The list in s 290(2) is not exhaustive. …

In short, the Tribunal was obliged to make a holistic, multifactorial assessment as to whether or not cancellation, suspension, or no particular disciplinary outcome was the correct or preferable decision in all of the circumstances revealed on the material before it, having regard to the particular submissions of the parties. The particular lapses of engagement and related reasoning exposed mean that the case must go back to the Tribunal for just such a comprehensive engagement.

23    As to that, the Authority submitted by reference to an observation made by Body Corporate Strata Plan No 4166 v Stirling Properties Ltd (No 2) [1984] VR 903 (Body Corporate Strata Plan No 4166), at 912, that it would not be apt for the matter to be remitted to the Tribunal member who decided the review. In that case, his Honour stated:

[W]here the reasons are partly defective, in the sense that not all issues have been dealt with, then an order compelling delivery of further or better reasons would have an air of unreality about it. Such an order would merely give a tribunal an opportunity to patch up what has been shown to be defective in circumstances where it is more than likely that the tribunal overlooked the issue altogether.

It was, with respect, correctly conceded on behalf of the agent that if the questions of law posed in questions 2 and 3 were, as they have been, resolved in the Authority’s favour, then for the reasons given in the passage from Body Corporate Strata Plan No 4166 just quoted, it would not be apt for the case to be heard again by the same member of the Tribunal.

24    There is another reason why, in my view, that would not be apt. It was necessary for the Tribunal to reach conclusions as to credit, particularly of the agent. Such conclusions were reached, and they are, with respect, baldly stated indeed, given that there were six days of cross-examination. It would not be procedurally fair, given that the case must be remitted, for the same member to hear the case again in light of creditability positions reached. Ordinarily, of course, the Court is not prescriptive in relation to remission as to who ought to constitute the Tribunal on that occasion, instead leaving that decision to the Tribunal’s President or his delegate in the course of the management of the Tribunal.

25    The Court’s powers under s 44 of the AAT Act are, by s 44(4), broad in relation to any remission. The parties were, with respect, sensibly in agreement that the Court should not, however, go further and make any prescriptive order in relation to the reception of other evidence by the Tribunal on the remittance or indeed as to how the proceedings on review ought to be conducted. I am emphatically in agreement with that position. It would be a rare case indeed where it would be appropriate for the Court to endeavour to micromanage a remitted proceeding. It is therefore no part of my intention to either encourage or discourage whoever comes to rehear this case as to courses to adopt in relation to the reception of evidence, be that either by a consensual tender of the record to date or by supplementation in such manner as commends itself to the Tribunal as a matter of procedural fairness.

26    I reach these conclusions with a degree of regret in that a good deal of public money, both in terms of the investment of Tribunal time, as well as expenditure on representation for the Authority and also, as I am so very conscious of, expenditure by the agent on legal representation, has at least to some extent been thrown away. However, the error of law in relation to the absence of an authority to bar an agent in this particular review cannot be dismissed as immaterial. Instead, the absence of engagement in terms of findings with the particular detail of the case made for the Authority as exposed by the absence of adequate reasons means that remission is the only order open.

27    For these reasons, there will be orders in the terms indicated.

28    It is now necessary to hear the parties as to costs.

29    An application has been made on behalf of the Authority for an order for costs. For his part, the agent, in any event, seeks an order that he be granted a costs certificate under s 6(3)(a) of the Federal Proceedings (Costs) Act 1981 (Cth) ((Costs) Act). The agent further seeks, in the event that a costs order is made against him, that the certificate extend to any costs incurred by him in relation to the present appeal that he is required to pay the Authority by order of the Court.

30    The definition of “federal appeal” in the (Costs) Act is such that s 6 is applicable to the present proceeding (see s 3, definition of “federal appeal”, paragraph (g)).

31    Trite though it may be, it is worth recalling that the discretion in relation to the awarding of costs conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) is materially at large. It is therefore not in any way appropriate to approach the question of costs other than on a case-specific basis, although it must be said that ordinarily, there is a general disposition that costs ought to follow the event. That general disposition is evident enough from the approach of Davies J in Collector of Customs (Qld) v Times Consultants Pty Ltd (1986) 13 FCR 190 (Times Consultants), at 198.

32    Times Consultants is but an example on particular facts of the exercise of a costs discretion. I was referred in the course of submissions to other cases, but when all is said and done, the question is factually idiosyncratic. In this case, none of the errors of law revealed in the appeal were, in any way, the subject of a submission to the Tribunal on behalf of the agent. The particular errors were entirely those made by the Tribunal on the Tribunal's own motion.

33    Exhibit 2, which is an exchange of correspondence between the parties, discloses that there was an early identification of an absence of lawful authority in the circumstances of the review for the Tribunal to make an order barring the agent from registration, and that this absence of lawful authority was or at least came to be consensual.

34    That left for assessment by the agent the Authority’s further contention as to an absence of engagement and adequate reasons on the part of the Tribunal. The detail of that particular case as promoted for the Authority, in my view, only became apparent not from the exchange of correspondence between solicitors, but rather only upon the filing and service of the Authority’s written submission in this court last month. That then left the agent with something of a choice, which it must be said was promoted in further correspondence from the Authority’s solicitors. That choice was, in effect, to promote consensually and, by way of joint written submission, the making of orders setting aside the Tribunal’s decision and remitting the matter to the Tribunal on the one hand or, on the other, appearing today after filing a written submission and contesting orally the second and third questions of law.

35    For a person in the agent’s position, the saving as between the assessment by counsel and solicitor of a draft written submission and appearing must, in my view, have been marginal. The Authority did not, as well it might, submit in conjunction with its filed written submission, and in support of a promoted application for a consensual disposition draft orders and a related draft written submission for consideration by the agent. Had the Authority done this, in my view, the case for an awarding of costs in the ordinary course to follow the event would have been compelling.

36    As it is, and given that the errors were wholly those of the Tribunal, my view is that it was not unreasonable in the circumstances for the agent to appear today to make submissions in relation to the appeal. As it transpired, those submissions were candid and focused in terms of acknowledging particular outcomes would have to follow if an equally-focused exemplification of the strongest aspects of the Authority’s case were accepted. There was much saving of judicial time, both in hearing, as well as in terms of dealing with issues for judgment by the adoption of that course, not just by the Authority, but also by the agent.

37    The view I have in relation to costs for the reasons given is that each party should bear their own costs. What follows from that is that the making of an order for a certificate under s 6(3)(b) of the (Costs) Act is unnecessary. The agent is, however, in my view, entitled to an order granting him a certificate under s 6(3)(a) of the (Costs) Act. Truly, this is a case where the agent, as a result of particular errors of law made by the Tribunal, has been put to quite unnecessary expense, as for that matter has been the Authority, but the certificate is one only for the awarding to the agent in terms of the (Costs) Act.

Associate:        

Dated:    29 April 2021