Alexander, Leslie William v Chairperson, Migration Agents Registration Board

1/80 , 77

JUDGMENT No, ........ ........ .. ,..... D.a..

CATCHWORDS

MIGRRTrON - application for registration as a registered agent

pursuant to S. 288 Migration Act 1958 (as amended) - Board to consider whether applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance - whether Board failed to inform the applicant of reasons why the Board was considering refusal of applicant's registration application - whether applicant given a reasonable opportunity to answer allegations provided to him by the Board - whether Board misdirected itself - whether Board's actions beyond power.

DER V

CHAIRPERSON. THE MIGRATION

TION R

MIGRATION AGFNTS REGISTBBTION B O W

LOCKHART J.

28 APRIL 1995

SYDNEY

COURT OF AUSTRALIA )

)

NEW SOUTH W U S DISTRICT WGISTRY )

No. G 66 of 1995

BETWEEN :

Applicant

AND :

T H E

CHAIRPERSON.

THE

M I G R A T I O N

A G E N T S

GISTRATION BOARD AND AT,&

M I G R A T I O N

A G E N T S

Respondents

JUDGE MAKING ORDER:	LOCKHART J.
WHERE ORDER MADE:	SYDNEY
DATE ORDER MADE:	28 APRIL 1995

MINUTE OF ORDER

1. The application be dismissed with costs, including reserved costs, if any.

NOTE:

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

COURT OF A U S T W

)

NEW SOUTH WqLES DISTRICT REGISTRX )

No. G 66 of 1995

)

BETWEEN :

Applicant

AND :

THE

CHqLBPERSON,

THE

M I G R A T I O N	A G E N T S
M I G R A T I O N	A G E N T S

Respondents

28 April 1995

REASONS FOR JUDGMENT

Introduction grid Fact%

Leslie William Alexander (the applicant) carries on the

business of giving immigration assistance to people. In 1992

the Migration Act 1958 (the Act) was amended by the Migration Amendment Act, (No 3) No 85 of 1992, by introducing Part 2A: "Migration Agents and Immigration Assistance'. The legislation requires persons who wish to give immigration assistance to be registered as migration agents; and it prohibits persons who are not registered agents from giving such assistance ( S . 114F(1)). A penalty is provided for breach of that provision.

On 16 December 1992 the applicant applied in writing to the Department of Immigration Local Government and Ethnic ~ffairs (the Department) for registration as a registered agent (i.e. a person registered as a migration agent).

Until the respondent, the Migration Agents Registration Board (the Board), directs the applicant to cease to hold himself out as available to give immigration assistance or he becomes a registered agent, whichever is the earlier, the applicant is not prevented from giving immigration assistance. See the transitional provision (S. 5) of Act No 85 of 1992. The transitional provision was inserted to enable the Department to process applications of persons for registration as registered agents and in the meantime to allow persons who previously were giving immigration assistance to continue to do so.

The applicant's application was received by the Department on 18 December 1992 and receipt was formally acknowledged by letter from the Department to the applicant dated 8 January 1993. The Board has not finally determined the applicant's application for registration as a registered agent; but has informed him that it is considering refusing it.

On 7 Febru2_-y 1995 the applicant commenced this

proceeding under s . 39B of the Judiciary Act 1903 seeking

orders prohibiting the members of the Board from determining the applicant's application for registration as a migration agent until the determination of a Federal Court proceeding to which reference shall be made later; and seeking an order that the respondents provide the applicant with the reasons why the Board is considering refusal of his application, and orders granting the applicant reasonable access to certain complaints which have been made against him and evidence in support of them, and a reasonable opportunity to test the evidence adduced against him and a reasonable time to answer the allegations made against him.

The applicant has joined as respondents "The Chairperson", the Board and "All Other Members of the . .

Board". Counsel for the res~z~dents accepted that this was a correct joinder of parties because the Chairperson of the Board is its only permanent member and membership of the Board changes not infrequently, so that the convenient description of the members of the Board is as set out in the amended application. The parties nevertheless recognized that all members of the Board capable of making a decision should be

included as parties: Kerr v Commissioner of Police [l9771 2

NSWLR 721 and Hamblin v Duffy 37 ALR 308.

I have some misgivings about the failure to nominate the particular members of the Board who were- involved in the relevant decision; but as their composition has changed from

time to time I accepted the position as outlined by the

parties.

The facts consist mainly of correspondence between the applicant and his solicitors on the one hand and the Board on the other. They must be described in detail in order to deal with the issues.

On 2 August 1994 the applicant received a letter from the Board of that date, 10 pages in length, which referred to his application for registration as a migration agent, stated that the application was considered by the Board on 12 July 1994 and invited him to "provide comments" in relation to a number of matters referred to in the letter. These matters included coxplaints to the Board frori various Chinese nationals to whom the applicant had provided or was providing immigration assistance for remuneration. The complaints covered a variety

of matters, including: complaints that the applicant had

stated to the complainants that he could guarantee that permanent resident status would be granted to them; that the applicant's firm under which he practised (North West Immigration Services) had special connections with the Department; that the applicant refused to speak to certain of the complainants; that he had not lodged any documents with the Department to further the applications of persons for permanent resident status; that the fees charged by the applicant were unjustified, running into many thousands of

dollars; that the applicant failed to honour undertakings which it is alleged he gave to refund fees; and other matters of this kind.

The letter set out the allegations made against the applicant by these various complainants with some degree of particularity and requested him to provide the Board with his "case files" for each of the complainants. It said that the files would be returned to him by overnight courier when the Board no longer required them. He was asked to provide comments on the matters mentioned in the letter within 21 days of its date; and it concluded by saying that, if the Board did not receive a response within that time, his application for registration would be reconsidered by the Board based on the information he had already submitted.

The applicant's solicitors wrote to the Board on 15 August 1994 saying that, due to unforeseen. circumstances involving litigation in this Court, the applicant would not be able to comply with the request to provide the particulars within 21 days and sought an extension of 60 days from 15 August in which to provide the particulars.

The other litigation in this Court was commenced by various Chinese nationals against the applicant making allegations generally of the same kind as most of the complaints made to the Department or the Board with which the

present case is concerned. The other litigation is now a representative proceeding. I shall refer to it as the representative proceeding.

The Board responded by letter addressed to the applicant dated 24 August 1994 which stated that none of the information requested in its earlier letter had been provided and that the Board had decided not to grant the extension sought by the applicant. The letter said that, in accordance with S. 114ZL of the Act, the Board invited the applicant to lodge a submission within 21 days of the date of the letter "detailing why the Board should not refuse your registration". It said that the Board was considering refusing his application under

S. 114V(2)(a) of the Act as "it is not satisfied from the

information before it, that you are a person of integrity or a

fit and proper person to give immigration assistance".

The Board then specified a number of matters which it said the applicant's submissions should deal with. These matters related in the main to the same complaints that had been the subject of the Board's earlier letter, but added an additional matter, namely, that the Board had become aware that the applicant had been convicted of the offence of imposing upon the Commonwealth, contrary to S. 29B of the Crimes Act 1914, and on 16 March 1994 had been sentenced to perform 100 hours community service and ordered to pay reparation of $75,000 to the Commonwealth.

The Board said that it "would appreciate your comments on this conviction". The letter also said:

" I n

a d d i t i o n

t h e

Board

n o t e d

t h a t

you

p r o v i d e d

l e t t e r

o f

c o n v i c t i o n s

w i t h

your

a p p l i c a t i o n

b u t

d i d

n o t

d i s c l o s e

t h a t

c r i m i n a l

proceed ings

a g a i n s t

you

were

b e f o r e

C o u r t .

The

Board

s e e k s

your

comments

why

t h e s e

p r o c e e d i n g s

were

n o t

d i s c l o s e d

w i t h your

a p p l i c a t i o n . "

The letter concluded with the statement that, if the Board did not receive a response from the applicant within 21 days, his application would be reconsidered by the Board based on the information he had already submitted.

The applicant's solicitors wrote to the Board on 26 August 1994 stating that the complainants nominated in the correspondence from the Board were members of a class of people who, pursuant to a grant of legal aid from the Legal Aid Commission of New South Wales, had commenced a class action against the applicant in this Court which had not concluded, nor had all the evidence been filed by the complainants or any evidence given orally. This is a reference to the representative proceeding. The letter said that, in order to answer fully the alleged complaints, the applicant would be obliged to provide information to the Board which could be obtained by the complainants and used in the representative proceeding, and that obliging the appllcsnt to comply with the Board's request:

"would lead to a grave disadvantage to Mr Alexander in the litigation and could be characterized as an abuse of process by

the complainants in so far as they purport

to make a genuine complaint to the Board, but in fact are using the Board to obtain evidence not otherwise available to them at this stage of the Federal Court litigation".

The letter said that the complaints were not made bona fide as they were "so close in time to the commencement of the litigation" and were made "merely to secure for litigious purposes an unfair advantage to the complainants". The letter said that it would be "unconscionable, harsh and depressing" for the applicant to be obliged to provide the information sought by the Board. It requested that no further action be taken on the complaints until the representative proceeding had concluded.

The Board responded by replying direct to the applicant by letter dated 28 September 1994 which said that the Board had considered the solicitor's letter at a meeting held on 12 September 1994 and again requested that the matters "put to" the applicant previously, being those matters not in issue before the Federal Court including the matter of the "no conviction" certificate, should be addressed by the applicant. It said that, of the complaints referred to in the letter of 24 August, certain of the complainants (six in number) were not involved in the representative proceeding and it mentioned the six persons concerned. The Board said that it therefore

sought the applicant's comments on the matters raised in its letter of 2 4 August 1994 in reference to those complaints. It asked the applicant to provide it with the applicant's "case files" for each of the complainants in respect of whom the Board now sought information. The Board also asked for comments from the applicant on his conviction to which reference was made earlier and the non-disclosure of criminal proceedings against him. The Board then set out a further complaint received from a Chinese national and asked for the applicant's comments on that. The applicant was asked to provide the information within 1 4 days of the date of the letter, and said that if the Board did not hear from him within that time his application would be reconsidered by the Board based on the information he had already submitted.

The applicant's solicitors replied by letter 1 4 October

1 9 9 4 giving a number of reasons why the information requested

by the Board relating to the six people nominated in the letter of 28 September could not be provided, and said that three of them were members of the representative proceeding. It also stated that the class of applicants in the representative proceeding was not closed and therefore there could be no confidence that the other members nominated by the Board in its letter were not going to join the class action or were not already members of that class action. The letter stated that it would be unfair and a denial of the applicant's "proper legal rights" to force him to respond to the

complaints until the completion of the representative proceeding, or at least until the applicants had closed their pleadings and defined the members of the class.

As to the applicant's conviction, the letter (14 October 1994) said that, pursuant to the directions of the sentencing

Judge in the District Court of New South Wales, the solicitor for the Commonwealth Director of Public c rose cut ions had written to the Board on 24 March 1994 "outlining the nature of the prosecution, the nature of the conviction and repeating his Honour's remarks in passing sentence" that he "would not hold the conviction . . . in any way [so as to] prevent Mr Alexander from practising as a migration agent and that if he had the power to do so, he would have so ordered." The letter said that the charge to which the applicant pleaded guilty was not a charge that had been preferred against him initially, in that the proceeding had been commenced by way of summons against the applicant and none of the matters the subject of any summons was proceeded with. Also, the letter continued, the charge to which the applicant pleaded guilty related to a business conducted by an incorporated body, and to matters which occurred about ten years before Mr Alexander commenced practising as a migration agent. The letter asked that the Board's investigation proceed after the determination of the representative proceeding.

The Board replied by letter directly to the applicant dated 21 October 1994, which said that the Board had considered his request at a meeting held on 19 October 1994 and decided that its inquiry into whether the applicant should be registered as a migration agent should continue. It mentioned that the Board had a duty under the Act (doubtless a reference to S. 291) to determine his application on the basis of all the evidence before it. It said that, while some of that evidence or allegations may be the subject of the representative proceeding, the Board was not prevented from continuing to investigate and determine the applicant's application on information before it. The letter said that the Board understood that the representative proceeding involved an action under the Trade Practices Act 1974 and that the inquiry by the Board concerning the applicant's application for registration was concerned with different issues and was independent of and unrelated to the representative proceeding. The letter continued that the Board therefore had decided to give the applicant a final opportunity to comment upon the matters raised in its earlier correspondence. It said that the letter from the applicant's solicitor of 14 October did not adequately address the Board's request for an explanation as to why the applicant did not disclose with his application that he was at that time subject to criminal proceedings. The letter said that the Board had been informed that the applicant was served with summonses on or about 30 November 1990 and first appeared in Court on 14

December 1990 and committed for trial on 2 July 1991. The Board noted the comments of the sentencing Judge but said that those comments must be considered in the context of the particular matter that was before his Honour. It asked the applicant to respond to the matters raised within 14 days of the letter and said that if the Board did not hear from him within that time his application would be reconsidered by the Board based on the information he had already submitted.

The applicant replied to the Board's letter by letter dated 27 October 1994 saying that the time within which the Board requested information was not sufficiently realistic and asked for an extension of time to respond beyond the time set by the Board.

The Board wrote to the applicant by letter of 31 October

1994 saying that, as most of the matters upon which the Board

had sought the applicant's comments were put to him under cover of the letters of 2 August, 24 August and 28 September

1994, it was considered that the applicant had been given

sufficient time to respond, but extended the deadline to

respond to 12 November 1994.

The applicant's solicitors wrote to the Board on 9 November 1994 saying that the writer assumed from the terms of the Board's letter of 21 October that the Board did not wish the applicant at that stage to deal with individual complaints

from applicants or potential applicants in the representative proceeding, again pointing out that the class was not closed for the purposes of that proceeding at the date of that letter, saying that the entire proceedings were sub judice and that it would be a denial of natural justice to the applicant to request him to respond to any individual complaints when the substance of those complaints reflected the very issue to be determined in the Federal Court, and asked the Board for certain particulars of some of the matters raised by the Board in earlier correspondence. Amongst other things the letter said that the applicant had "honestly advised" that he had never been arrested or convicted of a criminal offence at the date of the application and said that the relevant question in the form of application was "Are you the subject of any criminal charges or have you ever been the subject of a

conviction, f indinq guilt pecuniary penalty	before
Court that is not spent?". The letter said:

"Our client did not indicate yes or no to that question. Having taken legal advice being aware as he was that there were a number of summonses outstanding he was advised given the ambiguity in the question not to answer yes or no to confirm that there was no conviction and attach a letter from the New South Wales Commissioner of Police enclosing a certificate of No Recordings. In light of his legal advice, as a matter of law and as a matter of fact this was a truthful

and proper answer.

The letter said that proceedings by way of summons were an entirely separate and different procedure from that of criminal charges. The letter said that the "charge bargain" finally struck between the Commonwealth and the applicant in no way reflected any of the original matters particularized in the initiating summons. The writer of the letter said that he assumed that in all the circumstances the Board would not take any further action on the complaints other than such further or other investigations as it may require until the conclusion of the representative proceeding, short of obtaining information from the applicant.

The Board replied to the applicant by letter of 30 November 1994 and said that, as stated in the Board's letter of 21 October, the Board was of the view that the applicant was able to respond to all matters which were put to him in the letter of 2 August 1994 with respect to 11 complainants. It said that the Board did not accept the explanation and submission provided on his behalf in the letter from the applicant's solicitor of 9 November concerning the non- disclosure on the application form with respect to criminal proceedings. It said that the Board was of the opinion that the solicitor's submission that the "charge bargain" finally struck between the Commonwealth and the applicant in no way reflected that any of the original matters particularized in the initiating summons, was not correct. It said:

" T h e

Board

c a n

o n l y

r e f u s e

y o u r

a p p l i c a t i o n

for

r e g i s t r a t i o n

b y

f i n d i n g

t h a t you

a r e ,

i n the

words

o f

the A c t ,

' n o t

p e r s o n

o f

i n t e g r i t y or

other

w i s e

n o t

fit

and

p r o p e r

p e r s o n

t o

g i v e

i m m i g r a t i o n

a s s i s t a n c e ' .

The

Board

i s

c o n s i d e r i n g

r e f u s i n g

y o u r

a p p l i c a t i o n

p u r s u a n t

t o S .

2 9 4 ( 2 ) ( a ) o f the A c t

a s ,

i t

i s

not

s a t i s f i e d

from

the

i n f o r m a t i o n

before

i t ,

t h a t

you

a r e

per son

o f

i n t e g r i t y or

fit

and

p r o p e r

p e r s o n

t o

g i v e

i m m i g r a t i o n

a s s i s t a n c e .

Before

mak ing

f i n a l

d e c i s i o n

y o u r

a p p l i c a t i o n

the

Board

would

l i k e

t o g i v e

you

the

o p p o r t u n i t y

t o mee t

w i t h

t h e m

and

d i s c u s s

the

m a t t e r s

w h i c h

you

h a v e

been

a s k e d

t o

a d d r e s s ,

b u t

h a v e

n o t

done

so.

The

m e e t i n g

i s proposed

t o t a k e p l a c e

a t

9.30am

o n

December

1994 ,

I m m i g r a t i o n

R e v i e w

T r i b u n a l ,

Roden

C u t l e r

House,

2 4

Campbel l

Street ,

Haymarket .

T h e

Board

a g a i n

r e q u e s t s

t h a t

you

r e s p o n d

t o

the

m a t t e r s

wh ich

you

h a v e

b e e n

a s k e d

t o comment

upon w i t h i n

d a y s and

c o n f i r m

w h e t h e r

you

w i l l

a v a i l a b l e t o mee t

w i t h

the Board on 15 December."

The Board wrote to the applicant by letter dated 8 December 1994 asking him to confirm whether he would be attending the meeting of the Board on 15 December and saying that, if he did decide to attend, the meeting had been rescheduled for llam.

The solicitors for the applicant responded by letter of 9 December 1994, reciting much of what had been said in earlier correspondence by the solicitor to the Board as to the inappropriateness of the Board proceeding with the matter at that stage. As to the suggestion of the holding of a meeting, the writer of the letter said the suggestion was "welcomed but

it is premature and inappropriate at this stage for the reasons mentioned previously and above." Also, the letter continued, both the solicitor and the applicant had prior engagements which would make 15 December "an inappropriate time". The letter then proceeded to ask the Board to supply certain particulars to the solicitors for the applicant which it is unnecessary to recite.

The Board responded to the applicant by letter dated 21 December 1994 saying that the Board had considered the contents of the solicitor's letter of 9 December at a meeting held on 15 December and that the Board was of the view that:

"it can determine your application on the basis of the matters before it and put to you by the Board to comment upon.

The reasons put forward in your solicitors letter for delaying consideration of your application do not prevent the Board from making a decision on your application.

The Board has determined that it will decide your application at its next meeting on 7 February 1995.

The Board again invites you to address the matters which you have been asked to comment upon in correspondence . . . you are also invited to meet with the Board on 6/7 February 1995. Please respond by 24 January 1995 and also indicate whether you intend to meet with the Board on 7 February 1995.

The solicitors for the applicant responded to the Board

by letter of 25 January 1995 saying, amongst other things,

that it was unfair and inappropriate that the Board sit on the applicant's application prior to the resolution of the representative proceeding, and that the applicant did not intend to meet with the Board on 7 February.

The applicant's solicitor wrote again to the Board on 1 February 1995 saying that, unless the Board informed the applicant's solicitor by 5pm on 2 February 1995 that the Board would not determine the application until the conclusion of the representative proceeding, injunctions would be sought from the Court to restrain the Board from proceeding with the matter.

The Board responded by letter of 2 February 1995, addressed to the solicitors for the applicant, confirming that the Board would consider the application of the applicant at its meeting on 7 February 1995 on the basis of evidence before it.

The solicitors for the applicant wrote to the Board on 3 February 1995 saying that they would attempt to obtain an injunction on 6 February 1995 to restrain the Board from determining the applicant's application.

The Board responded by letter of 6 February 1995 and

confiri-ed again that it would consider the applicant's

application on 7 February on the basis of all the evidence

before it, not just those matters which did not involve any of

the applicants in the representative proceeding.

The solicitors for the applicant wrote again to the Board on 2 March 1995 asking for "further and better particulars" of "the facts provided by the complainants ... (and) exactly what is his breach or failing in his practiceu. The Board was also asked to specify "exactly which act, regulation or official code of conduct that Mr Alexander is alleged to have breached".

The Board replied by letter of 16 March 1995 saying that the previous correspondence from the Board clearly indicated the allegations and issues that the applicant had been asked to address.

The AcG

It is necessary to refer to the relevant provisions of the Act. I shall refer to sections of the Act by the numbers which they presently bear. Section numbers in the Act were renumbered by the Migration Legislation Amendment A c t 1994, S .

83. The renumbering took effect from 1 September 1994.

The applicant's application for registration as a migration agenc of 16 December 1992 was made pursuant to c , 288.

On 9 November 1993 the Secretary to the Board referred the applicant's application to the Board pursuant to S . 291(a) on the basis that S. 292(1)(b) and S. 292(3)(a) applied. Section 291 provides:

"If S. 292 or 293 applies to a

registration application:

(a)	the Secretary must refer it to the Board; and
(b)	the Board must consider and dispose of it as soon as practicable."

Section 292 applies to an application for registration if the applicant is, or has been, bankrupt (S. 292(1)(b)). The applicant had been a bankrupt. It applies also to an application for registration if the Secretary is satisfied that there is evidence tbat: "the applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance." (S. 292(3)(a)).

Section 297 provides that, subject to S. 294, if the Board is satisfied that an applicant is a suitable person to be a registered agent, it must register the applicant by entering the name of the applicant in a register. Section 294(2)(a) provides that an applicant for registration must not be registered if the application is dealt with by the Board and the Board is satisfied that:

"(a) the applicant is not a person of

integrity or is otherwise not a fit

and proper person to give immigration

assistance.

The Board, when it is considering a registration

application, must take into account the matters specified in

S. 295 which includes any matter relevant to the applicant's

fitness to give immigration advice.

Section 309 provides that, if the Board is considering refusing a registration application, the Board must inform the applicant of that fact and the reasons for it and invite the applicant to make a further submission in support of his or her application (S. 309(1)). If the Board has invited a submission under S. 309(1), but has not received a submission, the Board may decide the matter on the information before it

(S. 310(2)). An applicant is not compelled to make a

submission.

Section 311 provides that the Board, in considering a registration application, is not bound by technicalities, legal forms or rules of evidence, and must act according to substantial justice and the merits of the case.

Section 331 empowers the Board to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.

Application may be made to the Administrative Appeals Tribunal for a review of a decision by the Board made under Division 111 of Part 3 of the Act (S. 306).

It was not disputed by the respondents that the Board is bound by the rules of natural justice when considering and dealing with the applicant's application.

Counsel for the applicant based his attack on the Board's

decisions and conduct on various grounds which it is

convenient to state and deal with separately.

DSS

a ons W

the Board was considerlna refusal of his reaistration

As mentioned earlier, if the Board is considering refusing a registration application it must inform the applicant of that fact and the reasons for it and invite the applicant to make a further submission in support of the application: S. 309(1).

It was submitted by counsel for the applicant that all the Board did in this case was to provide the applicant with a statement of a series of allegations made against him and requested him to provide particular information concerning them. It was argued that this did not provide the reasons as

required by S. 309(1). The requirement of the section was, so it was argued, that the Board must identify the allegations which it believes warrant consideration of refusal of registration, and why in the opinion of the Board they do warrant that consideration. It was submitted that there was a clear and sharp distinction between grounds for considering refusal of an application and the reasons which led the Board to consider refusing the registration. Reliance was placed

upon R v MacKellar; Ex parte Ratu (1977) 137 CLR 461 at 479

and Algoni Pty Limited v Department of ~ndustrial ~elations

(NSW) [l9851 3 NSWLR 515 at 523-526.

The requirement to give reasons is the statutory enactment of the duty of the Board to ensure that the applicant is made aware of the material which is before the Board and which is relevant to the exercise of its power in a manner adverse to the applicant 'S interests, so that the applicant has a full opportunity to put to ,-the Board any additional material by way of submission which he may think desirable in order to persuade the Board against the exercise of its power to refuse a registration application: for a

useful analogy see Bond v Australian Broadcasting Tribunal

(1988) 19 FCR 494 per Wilcox J. at 510.

What was the Board to do? It had before it a number of

statements and complaints from Chinese nationals directly or

indirectly, who had consulted the applicant for migration

assistance which, if true, might lead the Board to think that it constituted grave misconduct by the applicant and cast considerable doubt on his integrity and fitness to be a registered agent. It was suggested by the solicitor for the applicant in correspondence to the Board that the complaints were so "close in time" to the commencement of the representative proceeding that they were not made in good faith "but merely to secure for litigious purposes an unfair advantage to the complainants".

Whatever may be the motive of the complainants, not a matter examined in this proceeding (there is no material before the Court to suggest absence of good faith on the part of the applicants), it could not be suggested that the Board was a party to any conduct which could be described as absence of good faith. Nor could ~t be suggested that the Board was seeking to aid the complainants in obtaining any advantage in the representative proceeding. Plainly the Board was seeking to discharge the duty which S. 291 of the Act imposes upon it of considering and disposing of the application for registration as soon as practicable.

Faced with these complaints, the Board drew the details of them to the attention of the applicant and asked him to address specifically certain points which appeared to the Board to be important in considering his rsgistration application. The Board has repeatedly invited the applicant

to make submissions to it with respect to those matters, but the applicant has declined to do so. It is plain from the correspondence that the Board has taken the view that, in the absence of material from the applicant rebutting the complaints and of submissions from the applicant with respect to them, as there is nothing to suggest on the face of the complaints that they lack credibility or are exaggerated or demonstrably untenable, they raise matters which prima facie call for a response from the applicant. In the absence of such a response from the applicant it is clear that the Board will conclude that it is entitled to rely upon the allegations in the complaints, or some of them, and reach the conclusion that the applicant is not a person of integrity and not a fit and proper person to give immigration assistance. What the Board has done is in substance to provide the reasons to the applicant for the Boardf S considering the refusal of his registration application.

One of the matters which the Board has brought to the attention of the applicant concerns the fact that he was convicted of imposing upon the Commonwealth contrary to S. 29B of the Crimes A c t , and on 16 March 1994 sentenced to perform

L O O hours community service and to pay reparation of $75,000

to the Commonwealth. The Board asked the applicant for his comments on that conviction. In addition the Board noted that the applicant in his initial application did not disclose those proceedings which at that time were pending against him

and indeed provided "a letter of no convictions" accompanying	.	.+
his application. The solicitor for the applicant drew the attention of the Board to the fact that the sentencing Judge in relation to the Commonwealth offence specifically stated that the conviction should in his opinion not prevent the applicant from practising as a migration agent. The applicant's solicitor mentioned also that the conduct involved in the charge related to a matter which occurred some 10 years before the applicant commenced practising as a migration agent.
The Board's response to the solicitor (in its letter directed to the applicant himself dated 21 October 1994, but not to his solicitor) said that the Board noted the comments of the sentencing Judge, but those comments had to be considered in the context of the particular matter with which his Honour was dealing, and the Board had to have regard to all the matters before it in determining the applicant's application. The Board in that letter also stated that summonses were served upon the applicant on or about 30 November 1990, that he first appeared in Court on 14 December 1990 and was committed for trial on 2 July 1991, and that the solicitor's letter of 14 October 1994 did not adequately address the Board's request for an explanation as to why the applicant did not disclose with his application that he was at that time "subject to criminal proceedings".

By letter of 9 November 1994 from the applicant's solicitor to the Board the writer drew a distinction between "criminal charges" which were the subject of the question in the application form and proceedings by way of summons, which the writer said were not criminal charges and were "entirely separate and different procedure".

I set out earlier the question appearing in the application form asking whether the applicant was "the subject

01 .

of any criminal charges ... , the applicant's reply was to attach a certificate from the Commissioner of Police of New South Wales stating that there were no convictions recorded against the applicant but left the squares "No" and "Yes" blank. It appears from the solicitor's letter of 9 November 1994 that this was done on legal advice "given the ambiguity in the question".

The Board appears to have taken the view that one of the matters which it was entitled to take into account in determining the registration application (and therefore the fitness of the applicant to be a registered agent) was the non-disclosure of the pending proceedings against S. 29B of the Crimes A c t .

The Board obviously took the view that the applicant

should have disclosed the charge agail~st him in response to

the question in the application form. In my opinion it has

not been established that the Board erred in this respect. There was a duty of frank disclosure on the part of the applicant to the Board which called for no narrow interpretation of the expression "criminal charges". The Board is entitled, in my opinion, to conclude that that duty was not fulfilled in the response that was given by the applicant. However, this is but one matter in a considerable number of matters brought to the attention of the applicant by the Board and in respect of which he was asked to make submissions.

The applicant was given by the Board a detailed statement of the matters on the basis of which the Board is considering a refusal of his application. No greater specificity is

required. See Bond v Australian Broadcasting Tribunal ( 1988)

19 FCR 494 at 509-510; Romeo v Asher (1991) 29 FCR 343 at 349-

350.

In my opinion it has not been established that the Board failed to provide to the applicant the reasons for the Board considering refusal of his registration application. This ground of attack on the Board's conduct fails.

Was the a~~licant

uiven a reasonable o~~ortunitv

to answer the

alleaations ~rovided

to him bv the Board?

It was submitted by counsel for the applicant that he was

not given a reasonable opportunity by the Board to answer the allegations contained in the correspondence from the Board. It was said that the Board requested the applicant to provide access to his files with respect to the complainants in answer to their allegations; but that it was impossible for the applicant to obtain lawful access to those files due to the representative proceeding. It was submitted also that the Board provided unreasonable time constraints within which the applicant could provide the requisite information, that the Board continually changed the scope of the inquiry by raising additional matters in letter after letter, and that in all the circumstances no reasonable opportunity was given to the applicant to explain his conduct.

The details of the substance of the complaints were given to the applicant by letter irom the Eoard of 2 August 1994 and he was asked to provide comments within 21 days from the date of that letter. However, the Board did not say in that letter that it was considering refusing his registration application. Nevertheless, the requisite complaints were brought to the applicant's attention at that time. By letter of 24 August 1994 the Board added the non-disclosure of the offence against

S. 29B of the Crimes A c t as a matter which concerned it and

provided a period of 21 days from the date of that letter in

which the applicant could make appropriate submissions.

By letter dated 28 September 1994 the Board added one further complaint from a Mr Ip Seng On which was set out in detail, and allowed 14 days from the date of that letter for the applicant to provide the relevant information. Thus all but two of the complaints had been known to the applicant since 2 August 1994: one relating to the offence against Commonwealth law was drawn to his attention on or about 24 August 1994 and Mr Ip's complaint was drawn to his attention by letter of 28 September 1994. The time within which the submission was to be received was extended by the Board by letter of 31 October 1994 to 12 November 1994 and finally was extended by letter of 21 December to 7 February 1995, the date when the Board also asked the applicant to meet with the Board face to face.

In my opinion it has not been established that the time allowed by the Board for compliance with its request that the applicant make submissions to the Board with respect to the complaints was unreasonable.

So far as the submission by the applicant to the Board of the relevant files of his clients is concerned, the correspondence from the applicant's solicitors to the Board said more than once that the applicant could not make the files available to the Board because they were before the Federal Court in the representative proceeding, and were in effect being used to prepare his defence to the allegations

made in that proceeding, and that the files were the subject of subpoenas and they would be produced by the Board to the Court.

It is not clear if the Board's earlier requirement that the files be submitted to it was maintained by the Board; it does not seem to have been abandoned. However, this does not appear to me to have been a matter which loomed large in the deliberations of the Board. The primary concern of the Board appears to have been the failure of the applicant to respond to the complaints made against the applicant. In any event it is well known that where files are required for court proceedings as well as proceedings elsewhere, arrangements can be made, and often are made, between courts and tribunals to enable proper examination of files to be carried out. There is no suggestion in the correspondence on the part of the applicant that any attempt of this kind was made, so I fail to see how the Board's attitudes with respect to the request that files be provided to it can be said to be unreasonable.

For reasons which will emerge more fully when I consider the next ground of attack on the Board's conduct, I am not persuaded that the contemporaniety of the proceeding before the Board and the representative proceeding justified the applicant in declining to assist the Board until the determination of the representative proceeding.

Pid the Board mlsdlrect

with res~ect to the

consldera tjons a~~licable t o the exercise of its discretion to proceed wj th its inuuirv des~ite the representative proceeding?

Counsel for the applicant submitted that the Board failed to realize the effect on the matter before the Board of the representative proceeding, involving as it did many of the same issues that were involved in the complaints raised before the Board; failed to understand that the issues of fact were identical in both proceedings, notwithstanding that the issues of law were different; and failed to give proper weight to the fact that the representative proceeding should in all the circumstances have been determined before the Board continued its consideration of the reqistration application.

This argument of the applicant is misconceived. The Board has a statutory duty to consider and dispose of the applicant's registration application as soon as practicable: S. 291.

The circumstances in which a civil proceeding should be stayed when there are pending criminal charges against a party to the civil proceeding involving substantially the same issues have been the subject of many reported decisions. The authorities include Rochfort v John Fairfax & Sons Limited [l9721 1 NSWLR 16; McMahon V Gould (1982) 7 ACLR 202;

Cameron's Unit Services Pty Limited v Kevin R Whelpton & Associates (Australia) Pty Limited (1984) 4 FCR 428 at 432-

432; Halarbi v Westpac Banking Corporation [l9891 17 NSWLR 26;

Yuill v Spedley Securities Limited (In Liq) [l9921 8 ACSR 272;

Hurley v Commissioner of Taxation (1992) 37 FCR 11 and Weston

v Beaufils (1993) 43 FCR 292.

The present case is different because the question here is whether pending civil proceeding in this Court (the representative proceeding) involving many common issues of fact should lead the Board, when exercising its statutory powers of considering a registration application, to stay its own proceeding pending the determination of the representative proceeding.

The question is whether there is a likelihood of injustice being caused to the applicant if the Board continues to deal with his registration application when the representative proceeding is still pending,

Many of the complaints made against the applicant by Chinese nationals, which are the subject of the Board's letters to the applicant, are also involved in the representative proceeding. There is a substantial overlap between the representative proceeding and the registration application on questions of fact. The representative proceeding is brought pursuant to Part IVA of the Federal

t 7 $ ;

Court of Australia Act 1976 and 0 73 of this Court's Rules. The proceeding is still in its early stages and it is unclear when it will come on for hearing. 1t does not lack complexity.

The Board is not equipped with powers to require the attendance of witnesses by the issue and service of summonses, to administer oaths or declarations, to require the production of documents before it and to require the attendance of persons, enforceable by sanctions. The Board is an administrative body. Upon reference of a registration application to it by the Secretary to the Board, it may decide the matter on the information before it if it does not receive a submission from the applicant (S. 114ZM(2)); and if it does receive a submission, it may decide the matter or give the person who made the submission the opportunity to appear before it and then decide the matter (S. 1142M(3)). The Board, in considering a registration application, is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case (S. 1142N). One of the functions of the Board is to deal with registration applications in accordance with the Act (S. 1142T(a)) and the Board is empowered to do all things necessary or convenient to be done for, or in connection with, the performance of its functions (S. 114225).

When dealing with a series of complaints such as the Board presently has before it with respect to the applicant's registration application, the Board must do the best it can in fulfilment of its duties to consider and dispose of the registration application as soon as practicable (S. 114S(b)).

In doing so the Board must act so as to accord substantial justice without being bound by technicalities, legal forms or rules of evidence. In an appropriate case the Board may, when it has before it complaints against an applicant for registration, ask the complainants to make submissions to it or to appear before it and afford a like opportunity to the applicant for registration. Certainly the Board is handicapped in its inquisitorial capacity when it lacks the usual machinery of courts or some administrative bodies to enforce the attendance of persons to require the giving of evidence. But it must do the best it can in all the circumstances to ensure that justice is done.

There may be cases where it would be appropriate for the Board to refrain from considering an application for registration until court proceedings are determined; but the Board's attitude in the present case is that it proposes to continue to deal with the application notwithstanding the pendency of the representative proceeding. This is not a stance which, in my opinion, can be said to constitute an injustice to the applicant. It means that the applicant may have to fight certain of the issues on two fronts at or about

the same time; and that is a relevant consideration, but it is not necessarily determinative of the question whether the Board is acting unjustly towards the applicant.

I am not persuaded that there is any injustice to the applicant constituting sufficient prejudice to him to require the Board to stay its hand until the representative proceeding has been determined. This ground of attack fails.

Did the Board misdirect itself as to the onus of roof of unfjtness for reaistratios?

Counsel for the applicant submitted that in its letter of 16 March 1995 the Board stated a requirement of registration

that it be satisfied of the applicant's fitness under S.

2 9 4 ( 2 ) . This was contrasted with the Board's attitude

mentioned in its letter of 30 November 1 9 9 4 in which the Board said to the applicant that it could only refuse his application for registration by finding that he is "not a person of integrity or otherwise not a fit and proper person to give immigration assistance" within the meaning of S. 2 9 4 ( 2 ) of the Act. The letter continued by saying that the Board was considering refusing the application pursuant to S .

2 9 4 ( 2 ) (a) as it was not satisfied from the information before

it that the applicant was a person of integrity or a fit and proper person to give immigration assistance. Whether this states the Board's powers too narrowly so as to exclude from

them the capacity of the Board to refuse registration in circumstances other than those stipulated in S. 924(2), is perhaps a matter of debate; but it does not matter for present purposes because the Board in its letter of 30 November 1994 took a narrower view, namely, that the only circumstances in which it could refuse application are those referred to in S. 294(2)(a) (I leave aside S. 294(2)(b) because it is not relevant for present purposes).

In its later letter of 16 March 1995, the ~oard

put the

matter differently as indicated above. Whether the Board has a positive obligation to be satisfied in each case that an applicant for registration is a person of integrity, or is otherwise a fit and proper person to give immigration assistance, is perhaps an arguable question. My present view is that the Board does not have this obligation imposed upon it. But when the statement in the letter of 16 March 1995 is read together with the earlier statement in the letter of 30 November 1994, I think it is plain enough that what the Board said to the applicant is that the integrity of the applicant, and whether he is a fit and proper person to give immigration assistance, are critical matters for it to consider. The Board has not in fact reached a conclusion with respect to the application for registration of the applicant. Doubtless when it does so it will apply the test prescribed by S. 294(2) (a), namely, that if it is satisfied that t l - 5 applicant is not a person of integrity or is otherwise not a fit and proper

person to give immigration assistance, it will decline his application as it is bound to do by that statutory provision. It puts the matter far too high to say that the Board has misdirected itself as to the onus of proof of unfitness for registration; but even if it had, it does not seem to me that anything flows from it in this case.

It was submitted by counsel for the applicant that in requiring the production of files and other evidence and submissions at a time when the Board knew of the equivalent issues being raised in the representative proceeding, the Board acted beyond its power and was in contempt of court.

It was also submitted that what the Board was doing was really to determine for itself the issues raised in the representative proceeding; and that this, too, was beyond power and constituted contempt of court. Reliance was placed upon Brambles v Trade Practices Commission (1980) 44 FLR 182; Victoria v Builders Labourers Federation (1982) 152 CLR 25; Hammond v The Commonwealth (1982) 152 CLR 188; Pioneer Concrete Pty Limited v Trade Practices Commission (1982) 152 CLR 460; Herron v McGregor [l9861 6 NSWLR 246; and Edelstein v Richmond [l9871 11 NSWLR 51.

The first point to make is that the Board's powers conferred by S. 309 and S. 310 are not exhaustive of its powers in considering a registration application. As mentioned earlier, the Board is empowered by S. 331 to do all things necessary or convenient to be done for, or in connection with, the performance of its functions, and it is required by S. 311(b) to act according to substantial justice and the merits of the case. It is true that there is no specific power conferred upon the Board to require the production of documents, but for the Board to function properly it obviously must be able to request applicants for registration to present documents to it if they are relevant to the matter before the Board. The fact that it lacks a specific power to do so, or to enforce any failure to produce the documents, is not to the point. If the Board in the exercise of its power thinks that not only a submission from the applicant would be helpful, but that the Board would be aided by the production of documents, it seems to me that it can certainly request production of documents, based upon its general powers to do everything necessary or convenient to be done for or in connection with the performance of its functions. One such function is the function for which S. 316(a) makes provision, namely, to deal with registration applications in accordance with Part 3 of the Act.

An inquiry by an administrative tribunal into facts which

are the subject of pending judicial proceedings is not

necessarily beyond the power of the administrative body and does not necessarily constitute contempt of court. It had not been shown that the Board has any intention of interfering with the course of justice in the Federal Court proceeding, nor had it been shown that there is a real risk that the exercise by the Board of its powers under the Act would in the circumstances have that effect. There is no reason to suppose that the Board is seeking information from the applicant for other than a legitimate reason, namely, to perform its functions under the Act. The question of the fitness of the applicant to be a registered agent is central to the exercise by the Board of its powers under the Act. It is a question which it has a statutory obligation to investigate. Calling upon the applicant to make a submission of the kind which the Board has sought is a direct exercise by the Board of its powers conferred by S. 209. I: canriot see how the Board's actions are for purposes foreign to its functions or are otherwise beyond power or a contempt of court.

Conclusioq

The application is dismissed with costs including reserved costs, if any.

I certify that this and the preceding

thirty-eight (38) pages are a true copy of the reasons for judgment herein of the Honouxable Justi-ce Lockhart.

Associate

Counsel for the Applicant	Mr S Burchett
Solicitors for the Applicant :	Andrews, Solicitors

Counsel for the Respondent

Mr S Gageler

Solicitors for the Respondent :

Australian Government

Solicitor

Date of Hearing

28, 29 March 1995

Date of Judgment

28 April 1995

[1995] FCA 1180

28 Apr 1995