High Court Takes A Broader And More Beneficial Approach To The Regulation Of Migration Agents
The High Court in Shi v MARA  HCA 31 (30.7.08) took a very common sense approach to the regulation of migration agents, finding against the restrictive approach urged by MARA. The High Court found that when the AAT reviews a matter it should look at the evidence in existence at time of decision and is NOT restricted to the evidence existing at time of the first instance and therefore earlier decision by MARA. It means that if an agent has done things to improve his or her position after the adverse decision by MARA then that evidence can be taken into account by the AAT. For example in the case of Shi the agent had agreed post the MARA decision not to do protection visa cases (which was one of the causes of the problem) and secondly among other things was working under the supervision of another agent. The AAT took both of those things into account in softening the decision of MARA.
Before going into the High Court decision it is necessary to look at what happened during the AAT hearing.
First up the AAT found that the rule in Jones v Dunkel applies in hearings involving accusations by MARA. At first instance in Shi v MARA  AATA 904 (6.4.05), the AAT concluded:
21. I accept that a Jones v Dunkel (1959) 101 CLR 298 inference may arise in some circumstances in this Tribunal. Some examples are where there is a failure to call a witness by the party whom the witness might be expected to favour (Re Perring v Aust Post..) (1993) 31 ALR 693 at 694); where there is a well-advised party with the resources of the Commonwealth (Re Rodger v Dept of Social Security) (1991) 24 ALD 720 at 721); and where there was a medical-legal consultant not called whose report presented some difficulties for the respondent (Re Bessey v Aust Post.. (2000) 60 ALD 529 at 537). In my view it depends on the circumstances of the case and that is how I have approached these matters.
In Jones v Dunkel, Wyndeyere J outlined the law as to what inferences can be drawn if a witness who ought to be called is not called:
“the general principles as stated in Wigmore on Evidence 3rd ed. (1940) vol. 2, s. 285, p. 162 [are] as follows: “The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted.” (at p321)
This is plain commonsense.”
This has an impact on AAT hearings. Sometimes clients may be willing to make unsubstantiated or incomplete accusations in private to MARA but will not be willing to give evidence before the AAT and be subject to cross-examination. The AAT above has indicated that an inference will be drawn against a client in circumstances where the client is not willing to give evidence in accordance with the principles outlined in Jones v Dunkel.
The AAT also endorsed that the rule in Brown v Dunn applies with qualifications to AAT hearings:
No findings unless put specifically to Mr Shi
23. Mr Poynder submitted that I should make no findings on matters not specifically put in issue in the proceedings, “that is, allegations that have not been put to Mr Shi in cross-examination to enable him to provide a response”. For example, Mr Poynder submits that I must accept what Mr Shi says about his file notes because it was not put to him that he did not do what he said he did. Although not referred to by Mr Poynder, I understand this to be a submission based on the principle in Browne v Dunn. I accept that the principle applies in the Tribunal as discussed by Mr Pearce in his book Administrative Appeals Tribunal, at 7.4 and in the cases referred to. In particular, I note the remarks of Beazley J in Marelic v Comcare 32 ALD 155 at 161:
“The rule in Browne v Dunn is a procedural rule grounded in fairness, and its application must depend upon the circumstances of each case. In TPC v Mobil Oil  FCA 238; (1984) 3 FCR 168; 55 ALR 527 Toohey J held (at FCR 181) that in the circumstances where the respondent’s legal advisers were fully alerted before and during the hearing to the allegations made against the company and the evidence upon which the Commission relied, it was unnecessary to consider the operation of the rule in Browne v Dunn. A similar approach was adopted by Spender J in Dolan v OTC  FCA 202; (1993) 114 ALR 231 where his Honour held (at 236) that in the circumstances of that case, the failure to put the contents of a video produced no unfairness to the applicant. …
24. The Tribunal is bound to observe the rules of procedural fairness and in that regard, the rule in Browne v Dunn, with the qualifications to which I have referred, is a convenient statement of the content of that aspect of procedural fairness which requires that a party be given adequate opportunity to meet the case which is put against him or her.
In a complex case worth reading in full for a detailed analysis of how individual breaches of the Code work, the AAT ultimately came to these conclusions [in Shi v MARA  AATA 851 (2.9.05) being the second part of the published decision made after submissions were made about what orders should be made after the AAT made its findings on breach of the Code.] :
What is the appropriate order to make?
24. Having considered all the evidence, I conclude that I am not satisfied that Mr Shi is not a person of integrity or otherwise not a fit and proper person to give immigration assistance within the meaning of s 303(f). My critical findings about his evidence were one factor to consider. However, there was no evidence that he had acted dishonestly in his practice and he has a number of very favourable references. His attitude to the Code and the consequential non-compliances are relevant is also of concern. However, I take into account that he has had a supervising migration agent for over two years who is a knowledgeable and experienced migration agent and who holds Mr Shi in high regard. There has been no evidence of breaches since the first decision was made in 2003 and his rate of success has been very high in recent years. Most of the non-compliances with the Code related to protection visas which he has not dealt with since early in 2003.
25. In my opinion, cancellation or suspension is not appropriate in this case in relation to s 303(h). I consider that there is another course which protects the public interest sufficiently but will allow Mr Shi to continue to practice as a migration agent with appropriate constraints. It is to issue a caution pursuant to s 303(c) subject to conditions imposed pursuant to s 304A. The caution will appear on the MARA web-site until it is lifted, pursuant to the Act.
26. The conditions I impose will have the effect:
(a) That Mr Shi continues to be supervised by a registered migration agent for a further period of 3 years from the date of this decision.
(b) That Mr Shi does not provide immigration assistance with respect to protection visas for a period of three years from the date of this decision.
MARA argued that the AAT could not take into account evidence or matters occurring after the date of the original decision by MARA to cancel the registration of the migration agent. But this approach was soundly rejected by the High Court. Hayne & Heydon JJ pointed out that the role of the AAT was to consider the whole matter afresh. Here is what they said:
96. In reviewing MARA’s decision to cancel the appellant’s registration, the Tribunal was empowered (by s 43(1) of the AAT Act) to exercise all the powers and discretions conferred by the Migration Act on MARA. The questions for the Tribunal in reviewing the cancellation decision were first, whether the Tribunal was satisfied that either of the s 303(1) grounds said to be engaged in this case was made out, and secondly, whether the Tribunal should exercise the powers given by s 303(1) to cancel or suspend the appellant’s registration or to caution him. That is, the first questions for the Tribunal were whether it was satisfied that the appellant “is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance” and whether it was satisfied that the appellant had not complied with the Code of Conduct.
•97. MARA’s contention, in this Court and in the courts below, that the question for the Tribunal was whether the correct or preferable decision when MARA made its decision was to cancel the appellant’s registration, should be rejected. It finds no footing in the relevant provisions. To frame the relevant question in the manner urged by MARA would treat the Tribunal’s task as confined to the correction of demonstrated error in administrative decision-making in a manner analogous to a form of strict appeal in judicial proceedings. But that is not the Tribunal’s task.
•98. It has long been established [in Drake (1979) 24 ALR 577 at 589 per Bowen CJ & Deane J] that:
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.” (emphasis added)
And MARA accepted in argument in this Court that in conducting its review the Tribunal was not limited to the record that was before MARA. It submitted… that the Tribunal had to consider the circumstances “as appear from the record before it as they existed at the time of the decision under review”.
•99. Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.
This has significant implications for migration agents appealing to the AAT. After a MARA decision an agent can do a lot to try and recover his or her position – things like accepting supervision of practice can be useful recovery tools.
Conditions can be imposed on continued registration of a migration agent
Hayne & Heydon JJ in Shi also found that the AAT could impose conditions on continued registration:
•111. Any condition imposed as a condition for lifting a caution could be described as providing a form of “qualified registration” of a migration agent. The agent would be registered but the agent’s registration would be “qualified” for so long as the condition applied. The qualification to the registration would be that the agent concerned was under caution until the condition was met. The power given by s 304A is not limited in the manner alleged by MARA.
•112. MARA accepted, correctly, that a caution could be administered to a migration agent on condition that the agent undertake a prescribed course of training. The Explanatory Memorandum for the 2004 Amendment Act had expressly given that as an example of the operation of the new s 304A. But no relevant distinction can be drawn between a condition that required an agent to undertake a course of instruction, and a condition that required an agent to work subject to supervision. No relevant distinction can be drawn because both are conditions that relate to the subject-matter, scope and purpose of the relevant provisions of the Migration Act and fall within the otherwise general words of s 304A. Likewise, a condition that a migration agent not undertake certain kinds of work relates to the subject-matter, scope and purpose of the relevant provision and falls within the words of s 304A.
•113. Contrary to MARA’s submission, the provisions of the Migration Act which provide for and regulate the registration of migration agents are not to be read as if registration as an agent confers on the person registered an unfettered capacity to give migration assistance. The relevant provisions must be read together. The powers and duties of a migration agent are to be identified from the combined operation of all of those provisions. S. 280(1) of the Migration Act provides that a person who is not a registered migration agent must not give immigration assistance. But what a registered migration agent may do in giving immigration assistance is regulated by other applicable provisions of the Migration Act, including s 304A.
•114. A failure to abide by the conditions for lifting a caution may well be a matter relevant to the annual exercise of the power to re-register an agent. Failure to abide by such conditions may also be relevant to whether an agent is a fit and proper person to give immigration assistance. But a migration agent subject to a caution of the kind now in issue may continue to act as a migration agent. Imposition of conditions of the kind imposed in this case as conditions for the lifting of the caution administered to the appellant was not inconsistent with the scheme for which the relevant provisions of the Migration Act provided.
Kirby J was perhaps more direct:
•71 In the context of professional discipline in other fields, it is not unusual for conditional orders to practise, or to return to practise, to be made, fashioned so as to take into account particular impediments, arising from the evidence, to a full, immediate return to the entire range of professional duties.
•72 Whilst it is true that the Migration Act does not comprehend qualified rights to practise as such, neither do the laws providing for the registration of medical practitioners or dentists, or the admission of legal practitioners. Yet in particular circumstances, the imposition of temporary conditions following disciplinary proceedings, here as an adjunct to a caution, might well be an entirely appropriate disciplinary response, protective of the public. In such cases, it would represent the “correct or preferable decision” on the merits of the case. Clearly, the Tribunal considered a decision of such a nature to be appropriate to its ultimate factual findings. This Court is not concerned with the factual merits of that conclusion. A decision that the Tribunal lacked the jurisdiction and power to fashion the order that it did is not required by the language, still less the purpose, of the Migration Act. It does not represent the better view of the meaning of the amended provisions of that Act.