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01 Apr 2020

Administrative law mythbuster no 05: Shi v Migration Agents Registration Authority (2008) 235 CLR 286

By John Carroll, Neil Cuthbert and Lauren Hargrave

Merits reviewers can sometimes take into account material that was not before the original decision-maker, but only if there is no limitation in the underlying statutory scheme.

What people think Shi v Migration Agents Registration Authority means

When defending an administrative decision in merits review proceedings, it is important for decision-makers to understand the precise nature of the merits reviewer's task. The case of Shi v Migration Agents Registration Authority (2008) 235 CLR 286 clarified whether the Administrative Appeals Tribunal can take into account facts and circumstances that existed between the original decision and the Tribunal's decision.

The Migration Agents Registration Authority cancelled Mr Shi's registration as a migration agent. It set aside the cancellation on the basis of facts and circumstances as at the date of its decision, such as Mr Shi’s migration work under supervision since the cancellation, and not as at the date of the Authority’s decision. The Full Federal Court concluded that the Tribunal had asked itself the wrong question, and should have confined itself to the evidence available at the time of the Authority's decision.

The High Court allowed Mr Shi's appeal. It concluded that in determining whether a person is a fit and proper person to be a migration agent, the Tribunal's task is to assess the state of affairs that exist at the time the Tribunal makes its decision.

So that's not right anymore?

Shi is often cited for the proposition that merits reviewers should take account of all the facts and circumstances that exist up until the time the reviewer comes to make a decision. What is less often remembered is that this will usually be the case "unless there is some statutory basis for confining that further material" (per Justices Hayne and Heydon).

What you need to remember about Shi v Migration Agents Registration Authority

It is important to remember that statutory limitations on a merits reviewer's power may be found in the underlying legislation that empowers the original decision-maker to act.

For example, there are cases where the underlying legislation discloses an intention that the decision-maker must decide upon criteria at a particular point in time. In Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295, the legislation empowered the Pharmacy Board of Australia to take "immediate action" in relation to a registered health practitioner if the Board believed there was a risk because of the practitioner's health or conduct. The Court of Appeal considered that the phrase "immediate action" imposed some temporal limitation, namely that there must be a certain point in time at which the decision to act is ‘immediate’. Accordingly, a decision to take "immediate action" was to be reviewed as at the point in time that the decision was made.

Where the underlying legislation prohibits a decision-maker from considering particular evidence at any stage in the decision-making process, that limitation may also apply to a merits reviewer. In the recent decision of Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, the issue for the High Court was whether a spent conviction could be considered by the Tribunal on review, when the Australian Securities and Investments Commission was unable to take spent convictions into account at any time.

ASIC had made an order banning Mr Frugtniet from engaging in credit activities because it concluded that he was not a fit and proper person. The Tribunal affirmed the decision of ASIC, taking into account Mr Frugtniet's spent convictions. ASIC argued that only ASIC was prohibited from taking into account the spent convictions, but that the Tribunal was allowed to take those convictions into account. The Full Federal Court agreed, and reasoned that Shi makes it clear that, depending on the decision under review, the Tribunal may have regard to material that was not before the original decision-maker.

The High Court allowed Mr Frugtniet's appeal, and determined that the Tribunal was unable to take the spent convictions into account. Justices Bell, Gageler, Gordon and Edelman reasoned that the Tribunal had to address the same question as the primary decision-maker, and therefore a consideration that could never be considered by the primary decision-maker similarly could not be considered by the Tribunal on review. Applying Shi, they considered that to conclude otherwise would "distort the exercise of the power" conferred on the Tribunal:

"The AAT has no jurisdiction to make a decision on the material before it taking into account a consideration which could not have been taken into account by the primary decision-maker in making the decision under review and which could not be taken into account by the primary decision-maker were the AAT to remit the matter to the primary decision-maker for reconsideration."

Chief Justice Kiefel and Justices Keane and Nettle agreed, and observed:

"The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker."

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.