LAWS2201 Lecture Notes - Lecture 3: Migration Agents Registration Authority, Susan Kiefel, William Deane
Main Cases
Re Greenham
• AAT held that it was able to substitute its own valuation rather than being restricted to the terms of the case stated by
Dr Greenham (which it had rejected). It confirmed that it was reviewing the decision, rather than the reasons given for
that decision.
• It is not limited to the material which was before the decision-maker. This means that the AAT is not limited to
deciding cases as put by lawyers but can reach its own conclusion where a party is unable to express what is wrong
with a decision.
Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Facts
• The Collector of Customs revoked the warehouse licence of Brian Lawlor, which had been granted under the Customs
Act. On review, the AAT decided that the legislation did not confer the power on the Collector to revoke the licence.
The Collector then sought to use s 44 of the AAT Act to challenge the jurisdiction of the AAT to set aside the licence
revocation decision in the Federal Court.
• On review, the decision to revoke a license was challenged successfully on the basis that the Customs Act did not
confer the power to revoke the warehouse licence. The Collector objected to the AAT’s jurisdiction to set aside his
invalid decision on the basis that it was not a ‘decision’ for the purposes of s25 of the AAT Act but a nullity.
Findings
• Bowen CJ held that the word referred to a decision made in fact regardless of its legal effectiveness:
The difficulty lies in interpreting the words ‘made in the exercise of powers conferred by that enactment’. This may
mean that it must be shown there was a decision made: (a) in pursuance of a legally effective exercise of powers
conferred by the enactment; or (b) in the honest belief that it was in the exercise of powers conferred by the enactment;
or (c) in purported exercise of powers conferred by the enactment. …
… It is a feature of administrative decisions that once made, even if unlawful, they have consequences which may
adversely affect citizens, until such time as they are withdrawn due to a change of mind on the part of the
administrative official himself or are set aside by the determination of a court or tribunal. It appears to me that the Act
is designed to give a simple remedy in all such cases. I would reject interpretation (a). … There is nothing unusual in
holding that an administrative decision which is legally ineffective or void is susceptible of appeal. I would adopt
interpretation (c).
• Held that to find otherwise would remove most of AAT’s intended jurisdiction.
Shi v Migration Agents’ Registration Authority (2008) 235 CLR 286
Facts
• The AAT relied on new evidence (ie a de novo appeal) to issue a caution rather than deregister Mr Shi. This decision
was overturned by the Federal Court but reinstated by the HCA.
• The appellant's registration as a migration agent was cancelled by the Migration Agents Registration
Authority on 13 July 2003 on the basis that the appellant breached the Code of Conduct prescribed
under s 314 of the Migration Act, and that he was not a person of integrity, nor a fit and proper
person to give immigration assistance.
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