Brown and Migration Agents Registration Authority

[1997] AATA 508

Brown and Migration Agents Registration Authority [2015] AATA 693 (10 September 2015)

Division	GENERAL DIVISION
File Number	2014/6375
Re	Ellen Brown
APPLICANT
And	Migration Agents Registration Authority
RESPONDENT

DECISION

Tribunal	Dr Damien Cremean, Senior Member
Date	10 September 2015
Place	Melbourne

The Tribunal affirms the decision under review.

.............................[sgd]...........................................

Senior Member

MIGRATION AGENT REGISTRATION − Fit and proper person − Relevant factors − Criminal history − Decision affirmed

Legislation

Migration Act 1958 (Cth), section 290

Cases

Bie and Migration Agents Registration Board [1997] AATA 508
Council of the New South Wales Bar Association v Franklin (No 2) [2014] NSWCA 428
Ex parte Tziniolis; Re the Medical Practitioner’s Act (1966) 67 SR (NSW) 448
Hughes & Vale Pty Ltd v State of New South Wales(No 2) (1955) 93 CLR 127
Inglese v Estate Agents Board [1988] Vic SC 389

Nguyen and Migration Agents Registration Authority [2012] AATA 925

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

10 September 2015

1. The Applicant applies to review the Respondent’s decision made on 10 December 2014 declining to register her as a migration agent under the MigrationAct1958 (Cth) (the Act) on the ground that she does not meet the requirements of s 290(1) of the Act.

2. According to s 290(1)(a) of the Act, the Respondent must not register an applicant if it is satisfied that the applicant is not a fit and proper person to give immigration assistance. In considering whether it is satisfied that an applicant is not a fit and proper person, the Respondent must take into account any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not a fit and proper person to give immigration assistance as stipulated in s 290(2)(c)(i) of the Act. The Respondent must also take into account any other matter relevant to the applicant’s fitness to give immigration assistance (see s 290(2)(h) of the Act).

3. As the Tribunal stated in Nguyen and Migration Agents Registration Authority [2012] AATA 925 at [25], referring to Hughes & Vale Pty Ltd v State of New South Wales (No2)(1955) 93 CLR 127 at [156], fitness for office as a migration agent calls for an assessment of honesty, knowledge and ability. In this case, the Applicant’s knowledge and ability are not in issue. In issue is her honesty.

4. The question for the Tribunal is whether the Applicant is or is not a fit and proper person. Although this question is expressed in the present tense, it is relevant to look at past conviction(s) for criminal offences because the past is an important touchstone by reference to which an assessment of whether a person is fit and proper is to be made. (Nguyen and Migration Agents Registration Authority at [27]).

5. The Applicant has a criminal record from 2007 and 2010. In 2007 the Applicant was convicted in the Magistrates’ Court of Victoria of 14 charges of defrauding the Commonwealth and three charges of endeavouring to impose on the Commonwealth. She was sentenced to a six month term of imprisonment, wholly suspended upon her entering into a recognizance to be of good behaviour for 18 months. Then in 2010, in the County Court of Victoria, the Applicant was convicted of nine charges of obtaining financial advantage by deception and sentenced to a term of imprisonment of (effectively) three years.  Judge Campton fixed a non-parole period of 16 months. The judge commented in sentencing that, but for her guilty plea, the Applicant may have received a longer custodial sentence. I accept that the Applicant was a model prisoner.

6. The Applicant gave evidence under oath to the Tribunal and was cross-examined. She was able to explain in detail the facts and circumstances which gave rise to the various convictions. She swore that her Witness Statement was true and correct. There is no doubt in my mind, however, that in respect of each of her convictions she engaged in conscious wrongdoing at the time, no matter the explanation now given or justification sought to be advanced. Ms Paula Farrugia, a psychologist, travelled from New South Wales to give evidence on behalf of the Applicant. In addition, I received various written character references, all of which spoke very positively of the Applicant.

7. It is fair to say, I think, that the Applicant is genuinely remorseful about her past conduct. She wrote at the very beginning of her Witness Statement: I am truly remorseful and sincerely regret my past crimes. The evidence of Ms Farrugia was plainly also to this effect. In her report, Ms Farrugia referred to the Applicant, throughout the assessment interviews, repeatedly expressing personal shame regarding the crimes she committed. She emphasised that the Applicant continues to take ownership of her past criminal behaviour and records her as saying I accept total ownership of my mistakes and as referring to her shameful behaviour.

8. Also indicative of the Applicant’s remorse is the fact that, although not benefiting out of the offences leading to the 2007 charges, she arranged nonetheless to pay the sum of $22,500 in reparations. In addition, the Applicant made full restitution of $242,000, the sum involved in the 2010 charges.  She managed this by various loans and ultimately by selling her house.

9. The provisions in the Act, in common with many Commonwealth, State and Territory laws (see Inglese v Estate Agents Board [1988] Vic SC 389) have the protection of the public as their underlying objective. An applicant’s remorse is only one factor to be taken into account. Protection of the public is the paramount concern.

10. I consider that if the decision under review was to be set aside and the Applicant was to be registered as a migration agent there would be a significant risk to the public of her engaging in dishonest or fraudulent conduct again. Based on her antecedents in 2007 and 2010, I am simply unable to be comfortably satisfied that the Applicant is a fit and proper person to be registered (see Bie and Migration Agents Registration Board [1997] AATA 508). Expressed another way, I am comfortably satisfied on the same basis that the Applicant is not a fit and proper person to provide immigration assistance. Either way, I am satisfied the decision under review must be affirmed.

11. The Applicant’s criminal record is of a most serious kind and extends over some years. It is serious enough to have warranted a suspended term of imprisonment in 2007 and then an actual term of imprisonment of significant length in 2010. Her record stands as one of serious dishonesty, fraud and conscious wrongdoing.

12. It was submitted on behalf of the Applicant that she has committed no offences since 2010 and also that the 2007 charges and the 2010 charges related to conduct occurring much earlier in time, nearly 14 years ago, and that there was a delay − particularly in relation to the 2010 charges − brought about by various factors outside or largely outside the Applicant’s control, including doubtful legal advice or doubtful activities by a lawyer. It was apparent that only at a very late stage did that the Applicant plead guilty. However, she said in evidence that was due to the legal advice she obtained to say no comment.

13. Against this, the Respondent pointed out that the Applicant’s term of imprisonment only expired in 2013.  I agree that this is relatively recent. The Respondent also submitted that the Applicant had the opportunity well before 2006 to confess her guilt. However, she chose not to do so for four years after being interviewed, following search warrants executed in 2002. She admits now that she made the wrong choice in that regard and refers once more to the legal advice she was given.

14. I consider that the Applicant’s convictions display a pattern of dishonest conduct over some years.  This conduct includes forging entries in documents, presenting false claims and abusing a position of trust.

15. It is true that the Applicant’s conduct occurred some years ago; and that the Applicant is now most regretful.  I consider, however,  that a rebuttal to her  submissions lies in what was said by Walsh JA in Ex parte Tziniolis; Re the MedicalPractitioner’s Act (1966) 67 SR (NSW) 448 at [460]-[461]. His Honour was quoted by Meagher JA (with whom Beazley P and Leeming JA agreed) in Council of the New South WalesBar Association v Franklin (No 2) [2014] NSWCA 428 at [40]:

    Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man. The position is somewhat similar to that which exists when application is made by a barrister or a solicitor who has been found guilty of serious misconduct exhibiting a lack of proper standards, seeking reinstatement on the ground that, after a lapse of time, he has become a fit and proper person to be a member of a profession which requires qualities and standards in which he has known to have been deficient. In such cases, it has been frequently said that a heavy onus lies on the applicant.

16. The conduct that led to the Applicant’s convictions is, in my view, such that the risk to the public of its reoccurrence is too great to warrant setting aside the decision under review. The role of a migration agent is an important one in the community and calls for honesty and trustworthiness. I am unable to be satisfied that there is no risk in the Applicant’s case that she would not engage in dishonest or untrustworthy conduct as a migration agent.

17. I have so far confined myself to the Applicant’s criminal wrongdoing. I have not taken into account her bankruptcy, from which she was discharged in February this year. I note in that regard that the Respondent accorded no weight to her bankruptcy in making the decision under review. I shall therefore make no further comment about it.

18. As regards the honesty required to be considered a fit and proper person, I am concerned also at the Applicant’s preparedness to sign a document in October 2010 designed to deceive or mislead the Australian Taxation Office (ATO). In an email she sent on 22 January 2012 she wrote: He [her ex-employer] had me sign a piece of paper in October 2010 stating that I agreed the loan [in question] was still standing. I was very surprised with this request and consequently questioned him about this, he promised that he would never hold me to it and that he was merely using it as a ‘write off to ATO’. 

19. This is an additional reason to question the Applicant’s honesty. I reject her explanation that she did not believe she was doing anything wrong in agreeing to sign the document; or that she did not believe her former employer was advancing a position to the ATO that may have been false. Her actions in signing such a document indicate to me that the Applicant is prepared to assist in the commission of a deception or possible deception upon a government agency readily enough (see s 290(2)(h) of the Act).

20. For the reasons I have given, I am not satisfied that the Applicant is a fit and proper person.

21. Therefore, the Tribunal affirms the decision under review.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

............................[sgd]............................................

Dated 10 September 2015

Date of hearing	3 August 2015
Solicitors for the Applicant	Mr M Gerkens, FCG Legal Pty Ltd
Counsel for the Respondent	Mr S Rebikoff
Solicitors for the Respondent	Sparke Helmore