Bebawy and Migration Agents Registration Authority (Migration) - [2021] AATA 4632

Bebawy and Migration Agents Registration Authority (Migration) [2021] AATA 4632 (15 December 2021)

Division:GENERAL DIVISION
File Number(s): 2019/1486
Re:Mofid Bebawy
APPLICANT

AndMigration Agents Registration Authority
RESPONDENT

DECISION

Tribunal:Deputy President I R Molloy
Date:15 December 2021
Place:Brisbane

The Reviewable Decision dated 14 February 2019, in which the Applicant's registration was cancelled, is affirmed.

.........................[SGD]........................

Deputy President I R Molloy

Catchwords

MIGRATION AGENTS – migration agents registration – cancellation of migration agent registration – whether the agent is a person of integrity – whether the agent is a fit and proper person to provide immigration assistance – whether the agent is honest – whether the agent dealt with his or her clients competently, diligently and fairly – decision affirmed

Legislation

Migration Act1958 (Cth)

Migration Agents Regulations 1998 (Cth)

Cases

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Attorney-General v Bax [1999] 2 Qd R 9
Hughes and Vale Pty Ltd v State of NSW (1955) 93 CLR 127
Jones v Dunkel (1959) 101 CLR 298
Lilienthall v Migration Agents Registration Authority (2002) 117 FCR 558

Narayan and Migration Agents Registration Authority (2006) AAR 5

REASONS FOR DECISION

Deputy President I R Molloy

15 December 2021

On 24 August 2010 the Applicant, Mr. Bebawy, was registered as a migration agent.
On 14 February 2019 a delegate of the Authority made a decision cancelling his registration under s 303(1)(a) of the Migration Act 1958 (Cth) (“the Act”).
Under s 292 of the Act, a person whose registration is cancelled under s 303 must not be registered within 5 years of the cancellation.
This is a decision on a rehearing of the Applicant’s application for review following an appeal to the Federal Court.
Section 303 of the Act provides relevantly:
Disciplining registered migration agents
(1) The Migration Agents Registration Authority may:
(a) cancel the registration of a registered migration agent by removing his or her name from the register; or
(b)   suspend his or her registration; or
(c)   caution him or her;
if it becomes satisfied that:
(d) the agent's application for registration was known by the agent to be false or misleading in a material particular; or
(e)   the agent becomes bankrupt; or
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g) an individual related by employment to the agent is not a person of integrity; or

(h) the agent has not complied with the Code of Conduct prescribed under section 314.

The Authority was satisfied that the Applicant had not complied with various aspects of the Code of Conduct prescribed under s 314 of the Act and contained in Schedule 2 of the Migration Agents Regulations 1998 (Cth) (“the Code”). The Authority was also satisfied that the Applicant was not a person of integrity, or was otherwise not a fit and proper person to give immigration assistance.
The Authority maintains these grounds before the Tribunal, and contends that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Bebawy and Migration Agents Registration Authority (Migration) [2021] AATA 4632
Case: [2021] AATA 4632
Decision Date: 15 December 2021

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Bebawy against a decision by the Migration Agents Registration Authority (the Authority) to cancel his registration as a migration agent. The dispute centred on whether Mr. Bebawy had acted with integrity and was a fit and proper person to provide immigration assistance, as required by the *Migration Act 1958* (Cth) (the Act). The case was heard by Deputy President Molloy of the Administrative Appeals Tribunal.

The Tribunal was required to determine the extent to which Mr. Bebawy had failed to comply with the Code of Conduct prescribed under the Act. Crucially, the Tribunal had to assess whether Mr. Bebawy lacked integrity or was otherwise not a fit and proper person to provide immigration assistance. Finally, the Tribunal had to decide, in light of these findings, how the power under s 303(1) of the Act, which allows for the cancellation or suspension of a migration agent's registration, should be exercised.

The Tribunal found that Mr. Bebawy had not complied with the Code of Conduct and was not a person of integrity, nor a fit and proper person to provide immigration assistance. This conclusion was reached after considering evidence regarding Mr. Bebawy's conduct, including his handling of information requests from the Tribunal and his responses to complaints received by the Authority. The Tribunal was satisfied that Mr. Bebawy's accepted breaches of the Code of Conduct were sufficiently serious to warrant cancellation rather than a lesser sanction like suspension.

The Tribunal affirmed the Authority's decision to cancel Mr. Bebawy's registration as a migration agent. The Tribunal determined that the correct and preferable decision was to uphold the cancellation and not to impose a lesser sanction, such as suspension, for the period that had elapsed since the Authority's original decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 13 February 2017, the Tribunal exercised its power under s 359 of the Act to seek further information from Redback by issuing an invitation to the Applicant (as Redback’s authorised recipient).The invitation stated (emphasis in the original):If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement it might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments. Mr. Bebawy forwarded the invitation to Mr. Gohil on the same day. On 15 February 2017, the Applicant explained the documents that he would need: “[o]nce received I will prepare the rest of the document”. On 21 February 2017, and then again on 23 February 2017, Mr. Ormrod provided a range of material to the Applicant. In 27 February 2017 (being the last day on which the information could be provided without an extension), Mr. Ormrod sent an email to Mr. Bebawy, stating (emphasis added):[7] Hi MofidBoth Ritesh and myself are extremely concerned that you have not submitted the required information by the cut off timeline being today 27th Feb.If you felt that 27th would not be feasible, should an extension of time be requested?We have waited a long time for this matter to conclude with a great deal of stress & delay in moving forward.As our representative for Ritesh, can you confirm submitting the required information by tomorrow will be acceptable? And if not, I will contact them direct for extension?[7] Exhibit 1, T Documents, Email from Mr Ormrod, page 3319. In a statutory declaration given to the Authority in June 2018, the Applicant stated that Mr. Ormrod said in this email that “he would seek an extension of time [from the AAT directly].” According to the Authority that is a “mischaracterization” of Mr. Ormrod’s email. Strictly-speaking, and without qualification, that is correct. But it may have been how Mr. Bebawy read the email, or remembered it more than a year later. Mr. Bebawy gave evidence that Mr. Ormrod called him on the same day (27 February 2017) and “immediately after” the email said “Okay, if you’re not going to do it, I will do it myself and take it from here”.[8] The Applicant said: “I told him, we have not received the full documentation that’s required by the AAT, and he said he will deal with it himself thank you very much, and that was it. It was left at that point.”[9] [8] Transcript, 7 September 2021, page 154, lines 41 – 42.[9] Ibid, page 155, lines 1 – 2. The Applicant did not suggest in his June 2018 declaration that there had been any such conversation between himself and Mr. Ormrod after the email. It is not referred to in subsequent communications with Mr. Ormrod (or Mr. Gohil). Nor is there any reference to any such conversation in the Applicant’s file note referred to below. However, the Applicant gave evidence at the hearing that there was such a conversation.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 303 of the Act provides relevantly:Disciplining registered migration agents (1) The Migration Agents Registration Authority may:(a) cancel the registration of a registered migration agent by removing his or her name from the register; or(b) suspend his or her registration; or(c) caution him or her;if it becomes satisfied that:(d) the agent's application for registration was known by the agent to be false or misleading in a material particular; or(e) the agent becomes bankrupt; or(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or(g) an individual related by employment to the agent is not a person of integrity; or The Authority was satisfied that the Applicant had not complied with various aspects of the Code of Conduct prescribed under s 314 of the Act and contained in Schedule 2 of the Migration Agents Regulations 1998 (Cth) (“the Code”). The Authority was also satisfied that the Applicant was not a person of integrity, or was otherwise not a fit and proper person to give immigration assistance. The Authority maintains these grounds before the Tribunal, and contends that the decision to cancel the Applicant’s registration should be affirmed. Mr. Bebawy accepts that he has breached the Code of Conduct, but not to the extent alleged by the Authority. He disputes that he is not a person of integrity, or is otherwise not a fit and proper person to give immigration assistance. Mr. Bebawy submits that his accepted breaches of the Code are sufficiently serious to warrant a period of suspension but not cancellation of his registration. He contends that the decision dated 14 February 2019 should be set aside or varied, and in substitution or as varied, his registration should be suspended for the time which has elapsed since the Authority’s decision. The issues are:(a) the extent to which the Applicant has not complied with the Code of Conduct; (b) whether the Applicant is not a person of integrity, or is otherwise not a fit and proper person to give immigration assistance; and(c) in light of the above, how the power under s 303(1) of the Act inter alia to cancel or suspend the Applicant’s registration should be exercised. I am satisfied that Mr. Bebawy has not complied with the Code of Conduct as set out below. I am satisfied that he is not a person of integrity, and is not a fit and proper person to give immigration assistance. I am satisfied that the correct and preferable decision is to affirm the Authority’s decision cancelling Mr. Bebawy’s registration as a migration agent and not to impose some lesser sanction such as suspension. On 24 April 2018 the Authority provided notice to the Applicant under s 308 of the Act of six complaints that it had received between 26 September 2016 and 15 March 2017. On 3 May 2018 the Authority provided notice to the Applicant of three further complaints that it had received between 13 June 2017 and 16 April 2018. On each occasion the Applicant responded, including to notices from the Authority requiring that he provide specified documents or records, by providing what he said were client files.