De Los Santos-Aguilar and Migration Agents Registration Authority
[2016] AATA 295
•9 May 2016
De Los Santos-Aguilar and Migration Agents Registration Authority [2016] AATA 295 (9 May 2016)
Division
GENERAL DIVISION
File Number(s)
2013/0988
Re
Maria Luisa De Los Santos-Aguilar
APPLICANT
And
Migration Agents Registration Authority
RESPONDENT
DECISION
Tribunal Senior Member A C Cotter
Date 9 May 2016 Place Brisbane The decision under review is affirmed
.............................[sgd]................................
Senior Member A C Cotter
CATCHWORDS
MIGRATION AGENT REGISTRATION – Regulation of migration agents - Fit and proper person to provide immigration assistance – whether breaches of code of conduct – whether penalty excessive – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 278, 280, 287, 290, 303, 312, 314
Migration Agents Regulations 1998 (Cth) reg 3, sch 2
CASES
Allinson v General Council of Medical Education and Registration [1984] 1 QB 750
Cunliffe v Commonwealth (1994) 182 CLR 272
McBride v Walton [1994] NSWCA 199
Prothonotary of the Supreme Court of NSW v Da Rocha [2013] NSWCA 151Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12
SECONDARY MATERIALS
Macquarie Dictionary (rev 6th ed, Macquarie Dictionary Publishers Pty Ltd, 2013)
REASONS FOR DECISION
Senior Member A C Cotter
INTRODUCTION
Mrs Maria Luisa de Los Santos-Aguilar (“Mrs Aguilar”) was first registered as a migration agent on 9 October 2001. Her registration was renewed annually, with her most recent registration having commenced on 11 April 2012.[1]
[1] Exhibit 1, T Documents, T 2, page 5, Decision Record dated 28 February 2013, [2].
At all relevant times, Mrs Aguilar operated her business as a migration agent under the name “MLA Migration Consultancy” (“MLA”).
In April 2004, Mrs Aguilar’s husband, Martin, also became registered as a migration agent. When he first registered as a migration agent, Mr Aguilar disclosed that he proposed to give immigration assistance as an employee of another individual, nominating MLA as the business under which his employer’s business would be operating.[2] His notice of intention to register as a migration agent likewise indicated that he would be employed by MLA.[3] On renewing his registration the following year, Mr Aguilar indicated that he proposed to give immigration assistance as “an employee or consultant or independent contractor” of another individual, again nominating MLA as the relevant business name.[4] For his 2006 and 2007 repeat registrations,[5] he again described himself as an employee operating under the MLA name, while in 2008 he described himself as a “consultant” to MLA.[6] His 2009 Application for Repeat Registration stated that he proposed giving immigration assistance as an employee, consultant or independent contractor of another individual, again naming MLA.[7] Mr Aguilar did not apply for repeat registration in 2010 and was automatically deregistered as a migration agent on 28 May 2010.[8]
[2] Exhibit 1, T Documents, T 21, page 220, Mr Aguilar’s Application for Registration dated 15 December 2003.
[3] Exhibit 1, T Documents, T 21, page 227, Mr Aguilar’s Notice of Intent to Register as a Migration Agent.
[4] Exhibit 1, T Documents, T 22, page 231, Mr Aguilar’s Application for Repeat Registration dated 31 March 2005.
[5] Exhibit 1, T Documents, T 23, page 246, Mr Aguilar’s Application for Repeat Registration dated 26 April 2006 and T 24, page 253, Mr Aguilar’s Application for Repeat Registration dated 24 May 2007.
[6] Exhibit 1, T Documents, T 25, page 265, Mr Aguilar’s Application for Repeat Registration dated 5 May 2008.
[7] Exhibit 1, T Documents, T 26, page 276, Mr Aguilar’s Application for Repeat Registration dated 21 May 2009.
[8] Exhibit 1, T Documents, T 2, page 6, Decision Record dated 28 February 2013, [4c].
A Queensland Certificate of the Registration of a Business Name revealed that from 18 September 2008, Mr and Mrs Aguilar were proprietors of the MLA business name.[9] Ownership of the name reverted to Mrs Aguilar alone from 12 April 2010.[10]
[9] Exhibit 1, T Documents, T 9, page 123, Certificate of the Registration of a Business Name dated 18 September 2008.
[10] Ibid page 122, Certificate of the Registration of a Business Name dated 12 April 2010.
The background to this application concerns a complaint made to the Office of the Migration Agents Registration Authority (“Authority”) by a client of MLA. The facts, which are generally not in dispute,[11] are set out briefly below.
[11] See Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions dated 13 August 2015, [3].
On 22 January 2009, Ms Anacelia Egnalig, a Filipino then residing in Libya, entered into a Service Agreement with MLA, as agent, for the preparation and lodgement of an application for a Skilled Sponsored Visa SC 176. The agreement was signed by Mr Aguilar on behalf of MLA.[12] Ms Egnalig paid an initial amount of 63,633.50 Philippine Peso to Mr Aguilar, who issued her with a receipt from Urlink Australian Migration Consultancy (“Urlink”), a business operated by him in the Philippines.[13]
[12] Exhibit 1, T Documents, T 5, pages 87-91, Service Agreement between MLA and Ms Anacelia Egnalig dated 22 January 2009.
[13] Exhibit 1, T Documents, T 5, page 83, receipt from Urlink Australian Migration Consultancy dated 22 January 2009.
Mr Aguilar was instructed to lodge a subclass 176 visa application for Ms Egnalig, nominating her for the skilled occupation of “mid-wife” as per her skills and qualifications. It was alleged by Ms Egnalig, but denied by Mr Aguilar, that he did not provide a copy of the VETASSESS results to her when he received them. She claimed that when she finally received the results, she learnt that, contrary to her instructions, Mr Aguilar had nominated her occupation as “Residential Care Officer”.[14]
[14] Exhibit 1, T Documents, T 8, page 101, s 309(2) Notice to Mrs Aguilar dated 24 April 2012.
When Ms Egnalig failed to achieve the overall band score of 6 on her IELTS test, Mr Aguilar advised her that he would “temporarily hold” her visa application so that she would not have to pay the Department visa application fee.[15]
[15] Ibid.
Ms Egnalig claimed that Mr Aguilar subsequently advised her that the best way for her to enter Australia would be on a student visa. He then asked her to enter into another contract with MLA for a student visa, and to pay the remaining professional fees left to be paid on the contract for the subclass 176 visa application.[16]
[16] Ibid page 102.
Ms Egnalig paid the following additional amounts to clear the fees as requested:
(a)on 13 August 2009, she paid $AUD 1,201.63 to Mrs Aguilar;
(b)on 15 August 2009, she paid $AUD 1,200.00 to Mrs Aguilar; and
(c)on 20 August 2009, she paid $AUD 1,000.00 to Mrs Aguilar.[17]
[17] Ibid; Exhibit 1, T Documents, T 5, pages 84-86, Western Union transfer documents dated 13, 15 and 29 August 2009. I note that there is a discrepancy in some of the figures, but it is not material.
After paying the remaining fees to MLA, Ms Egnalig discovered that she did not have enough funds to continue with the student visa application, and advised Mr Aguilar accordingly. Since that time, she claimed that Mr Aguilar did not provide her with any update as to her subclass 176 visa application.[18] Mr Aguilar denies that he did not keep her informed as to the application’s progress.
[18] Exhibit 1, T Documents, T 8, page 102, s 309(2) Notice to Mrs Aguilar dated 24 April 2012.
In March 2011, Ms Egnalig, then back in the Philippines, went to see Mr Aguilar (who, by that time, was no longer a migration agent). As he was not there, Ms Egnalig said she spoke to Mrs Aguilar (who happened to be in the Philippines at the time) and asked her for a refund of the money paid in advance to MLA, due to the fact that she had not received a visa, and had not been advised of the progress of her visa application. Ms Egnalig said Mrs Aguilar refused a refund and advised her that all the monies had been used for her VETASSESS application.[19] Mrs Aguilar denies having had that discussion with Ms Egnalig. She has given at least two versions of that discussion. In her response to the complaint dated 15 June 2012, she said that she phoned Mr Aguilar (who was in Australia) and asked him for his side of the story, which she in turn conveyed to Ms Egnalig.[20] In her evidence at the hearing, she said that Ms Egnalig spoke directly with him.[21] Mrs Aguilar said that because Ms Egnalig had no money to pursue her application, she offered to help with the application at no cost,[22] but that offer was not taken up.
[19] Ibid.
[20] Exhibit 1, T Documents, T 9, page 119, Mrs Aguilar’s response to complaint dated 15 June 2012.
[21] Transcript of proceedings, pages 11 (lines 32-45) and 12 (lines 1-18).
[22] Ibid page 12, lines 22-26.
When Ms Engalig was unable to recover to recover the payments she had made, she submitted a complaint to the Authority. After an investigation, the Authority decided that Mrs Aguilar had engaged in conduct in breach of her obligations under various clauses of the Code of Conduct for migration agents, and that she was not a person of integrity or otherwise not a fit and proper person to give immigration assistance. It therefore decided to suspend her registration for a period of two years and imposed various conditions for the lifting of the suspension.[23]
[23] Exhibit 1, T Documents, T2, pages 5-34, Decision Record dated 28 February 2013.
Mrs Aguilar sought a review of the Authority’s decision by the Tribunal. Apart from clarifying some matters (mentioned above), she did not seek to challenge the material facts of the complaint. Rather, she contended that she was not involved in the dealings with Ms Egnalig, that the dealings were by her husband, and that she was not responsible for his conduct.
MRS AGUILAR’S CONTENTIONS
It was contended on behalf of Mrs Aguilar that her penalty should be set aside, that she be reinstated as a registered migration agent, and that she receive a caution as a penalty.
That contention was based on the following three submissions:
(a)That Mr Aguilar was not an employee of Mrs Aguilar, but rather a subcontractor to MLA or an independent migration agent. As such, Mrs Aguilar had no responsibility for his conduct and therefore all of the alleged breaches of the Code of Conduct must ”fall away”;[24]
(b)That Mr Aguilar did not provide advice on behalf of MLA;[25] and
(c)That Mrs Aguilar was a fit and proper person to provide immigration advice, the Authority having misapplied the relevant test.[26]
[24] Exhibit 4, Applicant’s Submissions dated 31 March 2016, [7].
[25] Ibid [8].
[26] Ibid [9].
I deal with each of those submissions below.
CONSIDERATION
Was Mrs Aguilar responsible for Mr Aguilar’s conduct?
The primary focus of Mrs Aguilar was establishing that, at the material time, her husband was not an employee of MLA and indeed, was an independent contractor over whom she had no control and for whose conduct she bore no responsibility. Notwithstanding that particular consideration, it is also important not to lose sight of the regulatory regime which governs the way migration agents operate, and the specific obligations cast upon them.
Was Mr Aguilar an employee?
In asserting that Mr Aguilar was not an employee of MLA but rather an independent contractor, Mrs Aguilar’s counsel undertook an analysis of the relationship using the online guide developed by the Australian Taxation Office (“ATO”) for determining whether workers are employees or contactors. Essentially, that guide sets out six indicia which, taken together, are used to determine whether a worker is an employee or a contractor for taxation purposes. They are: the worker’s ability to subcontract or delegate; the basis of payment; whether the worker uses their own equipment or tools or whether they are supplied for them; whether the worker assumes any commercial risk for the work undertaken; whether the principal has a right to direct the way in which the worker does their work; and, whether the worker operates independently of the business.
In asserting that Mr Aguilar was in fact an independent contractor and not an employee, Mrs Aguilar’s counsel highlighted the following matters:
(a)Mr Aguilar was able to conduct his own business on his own terms and was paid a fixed fee for his service. He operated as a subcontractor to MLA and also conducted his own business, Urlink, when based in the Philippines. It is said that Mrs Aguilar never delegated any of her work to him.
(b)Mr Aguilar’s fees were charged on a fixed rate for the work he performed on a subcontract basis for MLA; he was not paid on a time or on a commission basis.
(c)As they were husband and wife, it made sense for Mr and Mrs Aguilar to share resources, such as premises, systems, the MLA “business vehicle”, and their professional indemnity insurance.
(d)Mr and Mrs Aguilar were each responsible for their own commercial risks.
(e)Each of them had total control over their individual work; Mr Aguilar did not seek, nor was provided, direction from Mrs Aguilar, as he ran his own operation.
(f)They operated independently of each other, except on occasions when it was implausible and not commercially sensible to operate independently. Sometimes, they undertook work for each other’s clients when the other was unavailable.[27]
[27] Ibid [5].
Before proceeding further, I pause to reflect on that analysis.
First, despite the statement to the contrary, it seems apparent that there was at least some delegation of work from Mrs Aguilar to her husband. While Mr Aguilar may not normally have provided advice directly to Mrs Aguilar’s clients, it is clear that he nevertheless undertook “administrative, migration research and assistance in the submission and application preparation”.[28] In other words, he undertook some work for Mrs Aguilar, presumably at her direction and under her control.
[28] See Exhibit 1, T Documents, T 7, page 98, statutory declaration of Mrs Aguilar declared 5 August 2011.
Second, while I understand the desirability and convenience of sharing physical resources, such as premises and systems, I have difficulty with the concept of Mr Aguilar "sharing" the business established and operated by his wife in circumstances where he was not considered a co-owner (or at least not until September 2008). The vesting of a non-owner with authority to bind the business is fraught with risk for the owner. It raises its own peculiar set of issues for the owner in being held responsible for the actions of those whom he or she has effectively “held out” to third parties as having the requisite authority to bind the firm. That is to be contrasted with the situation which existed after Mrs Aguilar’s six month suspension as a migration agent commenced in August 2008, when Mr Aguilar became a proprietor of the business. At that time, they became partners and at law were jointly and severally responsible for the acts undertaken in MLA’s name.
Without the policy wording or proposal document, it is difficult to draw the conclusion that Mrs Aguilar’s counsel advanced, namely that the insureds’ risks were several and not joint. As I pointed out to Mrs Aguilar’s counsel, the policy for the 2009/2010 insurance year identified MLA as an insured and also named Mr and Mrs Aguilar separately.[29] On my reading, the notation concerning several liability related, not to the insureds, but to the subscribing underwriters who presumably sought to limit their exposure to the percentage of the risk they had respectively underwritten.
[29] Exhibit 1, T Documents, T 30, page 287, Lloyd’s Certificate of Insurance 2009/2010 dated 1 September 2008.
Fourth, I note that the contention that Mr Aguilar was not an employee but rather an independent contractor is at odds with his own descriptions of his relationship with MLA at the times of registration and repeat registration, as mentioned in paragraph [3] above. Those statements, as well as his original Notice of Intention to Register as a Migration Agent,[30] made at times long before the issue was contentious, are a strong and contemporaneous indication as to how Mr Aguilar perceived his relationship at the relevant times. Similarly, it is of significance that at least on the occasion of the 2005 renewal, Mr Aguilar’s registration fee was paid by a cheque drawn on MLA’s bank account styled “Maria Luisa Aguilar TA MLA Migration Consultancy”.[31] A receipt for payment of the 2009 renewal also indicates that payment came from the same account.[32] The fact that Mr Aguilar’s registration fee was paid by MLA is also a strong indicator that he was an employee of MLA rather than an independent contractor providing occasional services to it.
[30] Exhibit 1, T Documents, T 21, page 227, Mr Aguilar’s Notice of Intention to Register as a Migration Agent.
[31] Exhibit 1, T Documents, T 27, page 283, cheque dated 4 April 2005.
[32] Exhibit 1, T Documents, T 28, page 284, receipt dated 27 May 2009.
Finally, I also note the comment made by Mrs Aguilar early in the Authority’s investigation, to the effect that Mr Aguilar “is not employed any more” by MLA.[33] As such, it can be inferred that prior to that time, Mrs Aguilar considered her husband to be an employee of MLA.
[33] Exhibit 1, T documents, T 7, page 99, statutory declaration of Mrs Aguilar declared 5 August 2011, paragraph [9]; (emphasis added).
Having regard to those various matters, I maintain reservations as to whether Mr Aguilar would have been considered to be an independent contractor, rather than an employee, at the relevant times.
In any event, I have a more substantial reservation about relying on the ATO indicia without any reference to the legislative scheme of professional registration and governance of migration agents. Any consideration of issues as to professional obligations and responsibilities necessarily has to be viewed in the context of that professional scheme.
The regulation of migration agents
The provision of “immigration assistance” is regulated under Part 3 of the Migration Act 1958 (Cth) (“Act”). Section 280 of the Act provides that, apart from certain exceptions which are not presently relevant, immigration assistance must not be given by a person who is not a registered migration agent.
The registration of migration agents is dealt with in Division 3 of Part 3 of the Act. Section 287 provides for the keeping of a Register of Migration Agents (“Register”) listing individuals who are registered as migration agents. Besides information concerning the agent and their registration, the Register is also required to record “any business names of the agent or the agent’s employer”,[34] and “particulars of any other prescribed matter”.[35] Regulation 3V of the Migration Agents Regulations 1998 (Cth) (“Regulations”) lists a number of matters prescribed for s 287(2)(i), including, relevantly, “the registered migration agent’s association with the business shown on the Register”.[36]
[34] Migration Act 1958 (Cth) s 287(2)(b).
[35] Ibid s 287(2)(i).
[36] Migration Agents Regulations 1998 (Cth) reg 3V(da).
Section 278 of the Act outlines what is meant by the expression “related by employment”, which appears within the Division. It extends the traditional notion of “employment” to provide that an individual is “related by employment” to another individual if, for example, they are members of the same partnership (paragraph (1)(c)), or if one is an employee of a partnership and the other is an employee or member of the partnership (paragraph (1)(e)). Significantly, in the section, the term “employee” includes “a person engaged as a consultant or as an independent contractor”.[37] That expanded reach of the notion of employment is reflected in s 290(1) of the Act, which provides that an applicant must not be registered if the Authority is satisfied, among other matters, that the applicant is “related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship”.[38] Similarly, s 303(1) of the Act provides that the Authority may cancel or suspend the registration of an agent, or caution him or her if, among other things, “an individual related by employment to the agent is not a person of integrity”.[39]
[37] Migration Act 1958 (Cth) s 278(3).
[38] Ibid s 290(1)(c).
[39] Ibid s 303(1)(g).
The importance which is placed on the circumstances under which a person operates as a migration agent is highlighted by the fact that an agent is obliged to notify the Authority within 14 days if, among other things, he or she becomes an employee, or the employee of a new employer, and will give immigration assistance in that capacity, or if he or she becomes a member of a partnership and will give immigration assistance in that capacity.[40]
[40] Ibid s 312(1)(f), (fa) .
Section 314(1) of the Act provides that the Regulations may prescribe a Code of Conduct for migration agents (“Code”). A registered migration agent is required to conduct himself or herself in accordance with the Code.[41]
[41] Ibid s 314(2).
The Code’s aims are broadly described and are not limited to matters directly relating to the giving of immigration assistance. Besides establishing a proper standard for the conduct of agents,[42] the Code aims to “set out the minimum attributes and abilities that a person must demonstrate to perform as a registered migration agent under the Code”. They include:
(a)being a person of integrity and good character;
(b)being able to perform diligently and honestly;
(c)having enough knowledge of business procedure to conduct business as a registered migration agent, including record keeping and file management; and
(d)properly managing and maintaining client records.[43]
Further, the Code aims; to set out the duties of agents to a client, an employee of the agent and the Commonwealth and its agencies;[44] to establish procedures for setting and charging fees by agents;[45] to establish a standard for a prudent system of office administration;[46] to require an agent to be accountable to the client;[47] and to help resolve disputes between a registered agent and a client.[48]
[42] Migration Agents Regulations 1998 (Cth) sch 2 cl 1.10(a).
[43] Ibid sch 2 cl 1.10 (b).
[44] Ibid sch 2 cl 1.10(c).
[45] Ibid sch 2 cl 1.10(e).
[46] Ibid sch 2cl 1.10(f).
[47] Ibid sch 2cl 1.10(g).
[48] Ibid sch 2cl 1.10(h).
Based on that analysis of the legislative scheme, it is clear that, regardless of Mr Aguilar’s strict legal classification as an employee, consultant or independent contractor, he was nonetheless considered to be related by employment to Mrs Aguilar and therefore, the business which she operated. It therefore follows that under the scheme, Mrs Aguilar was responsible, not only for the general operation of her business, but also the conduct of her husband, at least when he was acting under the MLA banner. Given that they shared various resources, it was incumbent upon her to ensure that he acted appropriately and in accordance with the obligations imposed by the Code. She had an overriding obligation to ensure that MLA operated and functioned appropriately and in compliance with the standards set by the Code.
For that reason, I do not accept the submission by Mrs Aguilar’s counsel that, because Mr Aguilar was said to be an independent contractor as opposed to an employee, the breaches of the Code found against Mrs Aguilar automatically “fall away”. On the contrary, because of her husband’s added involvement in MLA and his being “held out” as having authority to bind MLA, Mrs Aguilar’s responsibility was heightened, to ensure that he acted appropriately at all times.
Breaches of the Code
There was no direct challenge made to the Authority’s findings as to the breaches of various Code provisions, the challenge to their application having been on the generic basis that the grounds “fell away” if Mr Aguilar were found to be an independent contractor and not an employee of MLA. Nevertheless, for the sake of completeness, I briefly comment on each of those breaches.
Clause 2.9A
Clause 2.9A of the Code provides that, in communicating with, or otherwise providing information to, the Authority, a registered migration agent must not seek to mislead or deceive the Authority, whether directly or by withholding relevant information.
The delegate of the Authority found that Mrs Aguilar sought to either mislead or deceive the Authority in her responses to two investigation notices it issued to her under the Act, by withholding relevant information regarding Mr Aguilar’s employment arrangements with her.
In her statutory declaration of 5 August 2011, Mrs Aguilar stated that she maintained a separate business from her husband: “(h)e enters into contract and maintains his own clients”. She added that he also had a registered business, Urlink, in the Philippines and had set up an office there. She went on to say that she was the sole owner of MLA, and that she had an arrangement with Mr Aguilar “that he receives a set sum of remuneration in exchange for the administrative, migration research and assistance in the submission and application preparation only”. She said that he did not provide migration advice to her clients as she was a registered migration agent.[49] Later in the declaration she stated:
As mentioned earlier, the terms of engagements of Mr Martin Aguilar by MLA Migration Consultancy is only to provide administrative, migration research and assistance in the submission and application preparation only.
…Currently, Mr Aguilar is not employed any more by MLA Migration Consultancy.[50]
[49] Exhibit 1, T Documents, T 7, page 98, statutory declaration of Maria Luisa Aguilar declared 5 August 2011.
[50] Ibid page 99, [8] and [9]; (emphasis added).
Significantly, in that declaration, Mrs Aguilar failed to mention that for the period he was a registered migration agent, Mr Aguilar claimed an association with MLA, variously as an employee, consultant or independent contractor. She neglected to mention that his registration fees were paid by MLA and that he regularly used what was described as the “business vehicle” for undertaking his own business and contracting on MLA’s behalf. As such, she significantly downplayed Mr Aguilar’s involvement with MLA and the extent to which he conducted the business of migration agent under its banner.
In her subsequent response of 15 June 2012, Mrs Aguilar again denied that her husband was at any time an employee of MLA, although she did note:
When Mr Aguilar became a migration agent, he was added as a joint proprietor of MLA Migration Consultancy on 18 September 2008…
…This (Queensland Business Registration) Certificate clearly shows that Mr Aguilar has joint ownership of MLA Migration Consultancy until the expiry of his registration in 2010. This also proves that he is not my employee but a joint owner of the business and can independently act as a migration agent without my supervision”.[51]
[51] Exhibit 1, T Documents, T 9, page 116, Mrs Aguilar’s response to s 309(2) notice dated 15 June 2012.
It is curious that the question of joint ownership of MLA had not been previously mentioned in the statutory declaration, notwithstanding that it was an arrangement which subsisted at the time Ms Egnalig entered into the service agreement with MLA.
In response to the Authority’s direct question as to what was the scope of services for which Ms Egnalig entered into a service agreement “with your business”, Mrs Aguilar was evasive. She stated:
I am unable to answer these questions as the client contract was handled by Mr Aguilar. In fact, he has receipted the initial payment of Ms Egnalig under the business receipt of Urlink Australian Migration Consultancy.[52]
[52] Exhibit 1, T Documents, T 7, page 99, statutory declaration of Maria Luisa Aguilar declared 5 August 2011, [2].
From the above statements, it seems to me that Mrs Aguilar was less than candid in her description of the business arrangements between her and her husband, and indeed, how they operated together. Certainly, there was no acknowledgement at the time that Mr Aguilar had entered into the agreement with Ms Egnalig on behalf of MLA.
I am therefore satisfied that there was sufficient evidence on which to find that Mrs Aguilar was in breach of cl 2.9A of the Code.
Clause 2.23
Clause 2.23 requires a registered migration agent to take all reasonable steps to maintain the reputation and integrity of the migration advice profession.
Having regard to Mrs Aguilar’s lack of candour, discussed above, and the lack of control that she exercised over her business, I consider there was sufficient evidence to support a finding that this clause of the Code was breached by Mrs Aguilar. That is especially so when viewed in the light of Mrs Aguilar’s previous suspension, which was the result of two similar complaints.[53]
[53] Exhibit 1, T Documents, T 4, pages 59-73, Notice of Decision dated 13 August 2008.
Further, when faced with the complaint, Mrs Aguilar stated:
…I am not the employer nor exercise any control or supervision of Mr Aguilar. It is therefore unreasonable for the Authority to conclude that I am in possession of the client’s file nor possible for me to provide answers to the complaint investigation where I do not have any part of. There is also confidentiality law involved, even if we are husband and wife, as we have individual practice and individual responsibility under the code of conduct. Mr Aguilar is willing to submit Ms Egnalig’s file if requested by the authority (sic.).[54]
[54] Exhibit 1, T Documents, T 9, page 117, Mrs Aguilar’s response to complaint dated 15 June 2012.
The failure of Mrs Aguilar to adequately respond to Ms Egnalig’s concerns, or conduct her own proper enquiries as a proprietor of MLA, is also a relevant consideration to the question of whether she took reasonable steps to maintain the reputation and integrity of the profession.
I am therefore satisfied that this breach was made out.
Clause 5.5
Clause 5.5 of the Code requires a registered migration agent to be aware of the effect of s 313 of the Act, which provides that persons charged for services are to be given a detailed statement of each of the services performed and the charge made in respect of each service. The clause goes on to reiterate that requirement.
In finding that Mrs Aguilar breached this clause, the delegate of the Authority noted that she had not made any submissions or given the Authority any evidence of having provided a statement of services to Ms Egnalig, despite having received monies into her clients’ trust account.
Prior to the hearing, Mrs Aguilar’s then lawyers produced a series of invoices rendered by MLA to Ms Egnalig, as well as an extract of the bank statement for her clients’ trust account for the relevant period.[55]
[55] Exhibit 2, Attachments to Applicant’s Statement of Facts and Contentions dated 13 August 2015.
The bank statement confirmed that three cash deposits were made to Mrs Aguilar’s client trust account, corresponding with the transfers made by Ms Egnalig via Western Union transfers, namely: $1,201.65 on 14 August 2009; $1,200.00 on 18 August 2009; and $1,000.00 on 31 August 2009. The statement also shows the transfer of the first and last of those amounts from the account on 19 August and 31 August respectively, in respect of professional fees rendered to Ms Egnalig. There is no indication, on the face of the statement, as to whether the second amount, of $1,200.00, was transferred from the account (although the statement produced was incomplete and missing the last page).[56]
[56] Ibid Attachment 14, Commonwealth Bank of Australia cheque account statement for “Maria Luisa Aguilar trading as MLA Migration Consultancy – Clients Trust Account”, 7 July 2009 to 5 October 2009.
Further copies of MLA invoices were tendered at the hearing, together with a MYOB Customer Ledger for Ms Egnalig.[57] Among them were included: an invoice and statement of services dated 25 August 2009 in respect of the initial acceptance fee (of PHP 63,633.50) paid to Urlink on 22 January 2009;[58] an invoice dated 8 August 2009 in respect of the second instalment of professional fees payable under the MLA Service Agreement, containing a narrative of the services provided and showing a partial payment of $1,201.65 of that invoice;[59] and an invoice dated 29 August 2009 for $1,000.00, being for the initial payment of professional fees for assistance in the lodgement of the student visa (that being the subject of a separate agreement, which was not before the Tribunal).[60] Also produced was an email chain between Mr Aguilar and Ms Egnalig, which made reference to different invoices being attached (although I did not sight those actual attachments).[61]
[57] Exhibit 5, MYOB Customer Ledger and nine MLA invoices, various dates.
[58] Ibid page 117.
[59] Ibid page 116.
[60] Ibid page 111.
[61] Exhibit 2, Attachment 18 to Secretary’s Statement of Facts and Contentions dated 13 August 2015.
Both Mrs and Mr Aguilar gave evidence at the hearing. Mrs Aguilar told me that she and her husband operated a single, shared clients’ trust account for their clients.[62] She confirmed that when she received the money via Western Union, she immediately deposited it into the trust account.[63] With respect to the transfer of monies to Mr Aguilar’s own account, she told me that those transfers were effected, not by her, but by her husband, as she did not know how to do an electronic transfer.[64] I asked whether she recalled seeing the MLA invoices before the transfer to Mr Aguilar’s account. She was not sure, saying that she was not aware of what he had sent to his clients and that she was “just the recipient of that money”.[65]
[62] Transcript of proceedings, page 16, lines 26-46.
[63] Ibid page 7, lines 8-11.
[64] Ibid page 16, lines 12-24 and page 17, lines 12-13.
[65] Ibid page 18, lines 16-19.
Mr Aguilar also confirmed that he effected electronic transfers on behalf of his wife, but did so on her specific instructions.[66] Mrs Aguilar’s counsel informed me that individual client ledgers were kept using MYOB.[67] However, the MYOB records that were produced contained inconsistent dates; Mr Aguilar told me that later records would show the correct dates,[68] although they were not produced.
[66] Ibid page 32, lines 8-22.
[67] Ibid page 23, lines 38-46 and page 24, lines 1-8.
[68] Ibid page 28, lines 10-19.
While I have concerns about the shared clients’ trust account and its operation and the discrepancies between the bank statement and the individual customer’s ledger for Ms Egnalig on MYOB, those are matters that fall for consideration under other clauses of the Code. So far as clause 5.5 is concerned, I am satisfied, based on the material produced, that Mr Aguilar did provide a statement of services in respect of at least some of the services said to have been performed. I am therefore not satisfied, based on the material before me, that a breach of clause 5.5 could be established.
Clause 7.2
Under clause 7.2, a registered migration agent must hold, in the clients’ account, an amount paid by the client for an agreed block of work until the agent has completed the services that comprise that block of work and an invoice has been issued to the client for the services.
As outlined in relation to clause 5.5 above, statements of services were provided in respect of at least some of the services said to have been performed for Ms Egnalig. However, there was insufficient evidence before me to determine whether those statements of services had been properly issued only after the relevant agreed blocks of work had been completed. I am therefore not satisfied that, based on the material before me, a breach of clause 7.2 could be established in this instance.
Clauses 8.1 and 8.2
Under clause 8.1, a registered migration agent has a duty to exercise effective control over his or her office for the purpose of giving immigration assistance. Clause 8.2 goes on to provide that a registered migration agent must properly supervise the work carried out by staff for the agent.
Whatever the strict legal nature of Mr Aguilar’s relationship with MLA at any given point in time, it is clear that Mrs Aguilar had an obligation under the Code to exercise appropriate controls in the way her practice operated.
At the bare minimum, it was conceded by Mrs Aguilar that her husband provided “administrative, migration research and assistance in the submission and application preparation only”. In that role, he did not advise her clients directly, but presumably undertook work on which Mrs Aguilar would rely and sign off on. Whether or not he was an employee in the strict legal sense of the word, he was “staff” in the sense that he was one of “a body of assistants to a manager, superintendent, or executive head” or one of “a body of persons charged with carrying out the work of an establishment or executing some undertaking”.[69] As such, under cl 8.2 Mrs Aguilar was responsible for the supervision of the work he undertook on her account, even though he might have been a registered migration agent himself.
[69] See Macquarie Dictionary (rev 6th ed, Macquarie Dictionary Publishers Pty Ltd, 2013).
Even before Mr Aguilar became a proprietor of MLA, he used the MLA “business vehicle” to service his own clients. He used MLA for all his clients and used the MLA Service Agreement.[70] Mrs Aguilar allowed him to be held out as having the necessary authority to act on behalf of, and bind, MLA. Simply because Mr Aguilar was a registered migration agent in his own right did not allow Mrs Aguilar to effectively absolve herself from any responsibility or liability for his conduct performed in MLA’s name. As the proprietor, or even co-proprietor, of the business, she had an obligation under cl 8.1 to exercise effective control over her office.
[70] Transcript of proceedings, page 30, lines 36-43.
Similar considerations arose with respect to the use of a shared clients’ trust account, with the funds of their respective clients mixed and no effective controls in place to ensure that funds were not misapplied. Admittedly, Mr Aguilar maintained a MYOB customer ledger which recorded transactions in respect of each client. However, the copy produced contained a number of errors and inconsistencies. Although Mr Aguilar said that any transfers effected by him on behalf of his wife were with her specific instruction,[71] she was unaware of Mr Aguilar’s arrangements with his clients. As the proprietor of the business, and the designated holder of the clients’ trust account, it was her responsibility to exercise effective control over the trust account.
[71] Transcript of proceedings, page 32, lines 18-22.
While Mrs and Mr Aguilar claimed that the sharing of business structures was convenient for them, what they ignored was the perception that outsiders, unaware of any “internal” understandings or arrangements between the Aguilars, might have of the joint arrangements; as far as they were aware, they were dealing with one and the same entity. For that reason, it was incumbent on Mrs Aguilar, and indeed, Mr Aguilar, to put in place effective controls for the operation of the office, and so avoid potential client confusion.
It is clear from the circumstances of the complaint by Ms Egnalig that they failed. The necessary processes and procedures were not present. I therefore consider that sufficient evidence exists to support a finding that clauses 8.1 and 8.2 were breached.
Clause 8.5
Under clause 8.5, a registered migration agent must ensure that his or her employees are of good character and act consistently with the Code in the course of their employment.
In considering the possible breach of this clause, the Authority’s delegate tended to focus on the way in which the complaint by Ms Egnalig was handled. While that is important, I am not certain as to how far that allegation advances a consideration of this clause, given that Mr Aguilar was no longer involved in the business, and indeed, by that stage, was no longer a registered migration agent. Rather, my attention was directed towards the steps that Mrs Aguilar could have taken earlier to ensure that proper procedures and processes were in place. I am also concerned by her disavowing any responsibility for the conduct of those with whom she was associated under the MLA banner, no matter how they might have described themselves, from time to time, in a strict legal sense. I am therefore satisfied that Mrs Aguilar breached this clause by failing to ensure that her employees (in the broader sense of the word, as used in the legislative scheme) acted consistently with the Code.
Clause 9.1
Clause 9.1 provides that a registered migration agent must respond properly to a complaint by a person (whether or not they are a client) about the work or services carried out by the agent or the agent’s employee.
Faced with Ms Egnalig’s complaint, Mrs Aguilar had an obligation to investigate and fully respond on behalf of MLA. Although she offered assistance to advance the visa application, she gave little or no comfort to Ms Egnalig in responding to her actual complaint and obtaining a refund. That was despite the fact that Ms Egnalig had an agreement with MLA. It was also unsatisfactory, in my opinion, for Mrs Aguilar to deny Ms Egnalig access to the relevant file. Mrs Aguilar and her husband could not have it both ways – using a joint business vehicle for entering into contracts and operating a shared trust account, but effectively hiding behind separate registrations when things went wrong and complaints emerged.
I therefore consider there is sufficient evidence to support a breach of clause 9.1 of the Code.
Breach of Code of Conduct – Conclusion
Having regard to the matters set out above, I consider there is sufficient evidence to establish that Mrs Aguilar breached the Code of Conduct in a number of respects.
Did Mr Aguilar provide advice on behalf of MLA?
In light of my comments above, it is clear that Mr Aguilar held himself out as acting on behalf of MLA and that he had the necessary authority to speak for, and bind, that firm. Mrs Aguilar was well aware that he was holding himself out and did nothing to discourage or dissuade him from doing so. Nor did she put in place any effective controls over his “use” of the structure. She was also well aware of his assuming the role as a partner from the commencement of her previous period of suspension; he was to effectively carry on the business as proprietor during her suspension.
It follows from what I have said that Mr Aguilar did provide advice on behalf of MLA. I therefore do not accept the second of Mrs Aguilar’s submissions.
Is Mrs Aguilar a person of integrity and a fit and proper person to give immigration advice?
The Authority’s findings
The Authority’s delegate concluded, having regard to the totality of Mrs Aguilar’s conduct, that she was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance. In particular, the delegate was satisfied that Mrs Aguilar:
(a)failed to have due regard to Ms Egnalig’s dependence on her knowledge as a registered migration agent by failing to adequately respond to Ms Egnalig despite being made aware of the subject matter of the allegations against Mr Aguilar (which resulted in substantial financial loss, emotional distress and no visa outcome);
(b)provided inconsistent and contradictory information to the Authority about her employment arrangements with Mr Aguilar in order to distance herself from her responsibilities in relation to the matter the subject of the complaint;
(c)failed to respond to the Authority’s requests for information and to provide documents, hindering the Authority’s investigations of the complaint in a timely manner;
(d)put customers at risk by failing to exercise effective control over her migration practice by not implementing a proper accounting system in relation to the management of client monies and a file management system;
(e)engaged in a pattern of conduct over a lengthy period of time, particularly in relation to record-keeping and account-keeping deficiencies in her practice;
(f)acted in a manner, both towards Mrs Egnalig and the Authority, which other registered migration agents of good repute and competency would regard as disgraceful or dishonourable, and in so doing, displayed a disregard or indifference to the regulatory framework; and
(g)acted in a manner which damaged the reputation and integrity of the profession.[72]
[72] Exhibit 1, T Documents, T 2, pages 31-32, Decision Record dated 28 February 2013, [137]-[138].
In coming to that conclusion, the Authority relied on the long established common law test, the Allinson test, for determining whether a person is “fit and proper” to practise their profession. In short, a person is not considered fit and proper if their conduct would be “reasonably regarded as disgraceful or dishonourable by his professional colleagues of good repute and competency”.[73]
[73] See Allinson v General Council of Medical Education and Registration [1894] 1 QB 750, 761 (Lord Esher M.R.)
As to “integrity”, the Authority relied on an earlier decision of the Tribunal to conclude that it means “soundness of moral principle and character; uprightness; honesty”.[74]
[74] See Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12, [26] (Deputy President McMahon).
Both formulae, “fit and proper person” and “person of integrity”, are to be construed in light of the particular legislative context.[75]
[75] See, eg, Cunliffe v Commonwealth (1994) 182 CLR 272.
Mrs Aguilar’s contentions
It was submitted on behalf of Mrs Aguilar that the Authority “misapplied” the Allinson test, although the basis for that submission was not clear. I was referred to the decision of the New South Wales Court of Appeal in Prothonotary of the Supreme Court of New South Wales v Da Rocha,[76] which in turn referred to the decision of the same court in McBride v Walton.[77] Mrs Aguilar’s counsel described the latter decision as the “leading decision” on the question of whether a person is to be considered “fit and proper”. However, I note that it was cited in Da Rocha, not in the context of a consideration of that test, but rather in relation to the separate question of “good fame and character”.[78] Moreover, the passage in McBride to which counsel referred seemed to be concerned with a somewhat different issue to that with which I am concerned here, namely the matters to be considered in determining whether a finding of proven misconduct (such as the misappropriation of trust monies as in Da Rocha) should be followed by a consequential finding that the practitioner was not of good character (in the context of fitness to practise).[79]
[76] [2013] NSWCA 151.
[77] [1994] NSWCA 199.
[78] See Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151, [17]-[19].
[79] [2013] NSWCA 151, [19].
Although counsel denied that there was any proven misconduct in the present instance, he nevertheless took me to the matters outlined in McBride, as representing a modern version of the Allinson test.[80] He submitted that, by reference to what he described as that “exhaustive and very analytical” test, it could be established that Mrs Aguilar was a fit and proper person to provide immigration advice.[81] While I have reservations as to the application of this test in the present circumstances, I nevertheless summarise those submissions below, for completeness.
[80] Exhibit 4, Applicant’s Submissions dated 31 March 2016, [23].
[81] Ibid [19].
The first matter to be considered is whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character. It was conceded on behalf of Mrs Aguilar that, in hindsight, the sharing of the MLA “business vehicle” for convenience and to save costs may have been an error of judgment, but was not indicative of a defect of character. Rather, it was said to be “a result of the husband and wife relationship”.[82]
[82] Ibid [13].
The second of the matters looks at the intrinsic seriousness of the misconduct qua fitness to practise. It was conceded that while Mrs Aguilar’s conduct might deserve a minor type of censure, as in a caution, it did not deserve suspension.[83]
[83] Ibid [14].
As to the question of whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the agent’s normal qualities of character, reference was made to: the fact that Mrs Aguilar had been in practice for over 10 years; and the fact that the Business Intelligence Reports demonstrated that she had made a number of successful applications on behalf of clients over that time.[84]
[84] See Exhibit 1, T Documents, T 31, pages 288-289, Business Intelligence Reports for Mrs Aguilar; Exhibit 4, Applicant’s Submissions dated 31 March 2016, [15].
With respect to the “motivation” for the episode of proven misconduct, it was said that the matter arose largely because of the husband /wife relationship.[85]
[85] Ibid [16].
The fifth mater for consideration concerns the underlying qualities of character shown by previous and other misconduct. While acknowledging that Mrs Aguilar’s registration had previously been suspended for six months, her counsel submitted that “indiscretion” needed to be viewed in the context of the excellent service she had otherwise provided to the migration advice industry generally over the years. It was said that in those circumstances, the penalty in this instance was manifestly excessive.[86]
[86] Ibid [17].
The final test is whether the practitioner’s conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in her to uphold and observe the high standard of moral rectitude required of a registered migration agent. Mrs Aguilar’s counsel submitted that her conduct after the episode “has been exemplary, even with this matter that is presently being dealt with”. It was said that she was being blamed for the conduct or misconduct of her husband over whom she had no control.[87]
[87] Ibid [18].
Is Mrs Aguilar a person of integrity and a fit and proper person to provide immigration assistance?
While it is now conceded that the sharing of the MLA “business vehicle” may have been an error of judgment and that a caution was an appropriate sanction, the submissions on behalf of Mrs Aguilar, even now, demonstrate a marked lack of insight into, or appreciation of, the seriousness of this issue. Although the sharing arrangements may have been convenient and economical for Mr and Mrs Aguilar, it had the potential to generate confusion or uncertainty in the minds of those third parties with whom they dealt.
Ms Egnalig entered into her contract with MLA. She sent several instalments of funds to MLA. Although Mr Aguilar was the agent providing the service to her, there was no suggestion, until the complaint arose, that he was acting independently of MLA.
Instead of addressing Ms Egnalig’s complaint directly, Mrs Aguilar disavowed any knowledge of the matter and instead, effectively hid behind her husband, who was no longer a registered migration agent and beyond the Authority’s reach. As the principal of MLA and a registered migration agent herself, Mrs Aguilar was obliged to deal with the complaint and help resolve it. Although she offered to undertake some additional work at no charge, she failed to properly investigate the complaint, or indeed, ensure access to the file or secure Ms Egnalig a refund.
The same approach was adopted in response to the Authority’s request for information, which was marked by a distinct lack of candour.
It is also significant that the submissions on behalf of Mrs Aguilar simply note in passing the earlier disciplinary action, without any acknowledgement that the suspension on that occasion arose from complaints which were not dissimilar to what is the subject of the present matter. Instead, that period is glossed over by referring to the number of successful applications lodged, without any reported issue. Whether that is the result of good management, or simple good fortune, will never be known.
I am unconvinced by the submission made on behalf of Mrs Aguilar that she is a person of integrity and a fit and proper person to provide immigration assistance. Her evasiveness in dealing with the complaint and the Authority’s investigation, her continued denial of responsibility and deflection of blame to her husband, and her discounting of her past conduct which itself resulted in disciplinary action, along with her lack of contrition, remain unaddressed.
Having considered the material before me, I accept the findings of the Authority set out in paragraph 77 above. Based on those findings and the matters I have outlined earlier, I am satisfied that Mrs Aguilar’s conduct would be reasonably regarded as disgraceful or dishonourable by her professional colleagues of good repute and competency. I therefore find that Mrs Aguilar is not a person of integrity and is not a fit and proper person to give immigration assistance.
Penalty
Mrs Aguilar’s counsel submitted that the penalty imposed by the Authority was manifestly excessive and that the most appropriate penalty in the circumstances should be a caution. It is said that the caution would be that “the Applicant may have cooperated with OMARA in a more ready manner”. It is also said that Mr and Mrs Aguilar were not experienced business people and had no legal knowledge. Further, it is submitted that if the penalty were allowed to stand, it will “discourage husbands and wives to go into business together either as registered migration agents, or in any field which is regulated”.[88]
[88] Ibid [24].
I am not persuaded by those submissions.
The acknowledgement that Mrs Aguilar may have cooperated in a “more ready manner” is, I think, a small concession which comes too late. Confronted with a complaint from a vulnerable client overseas, it was incumbent upon Mrs Aguilar to address it expeditiously and to be fully frank with the Authority. She failed on both counts.
I do not accept the submission that Mr and Mrs Aguilar were not experienced business people. Mrs Aguilar’s own Statement of Facts, Issues and Contentions summarises her and her husband’s respective work histories since they migrated to Australia in 1989. Mrs Aguilar worked for MLC as an insurance agent/financial planner for about four years before establishing and operating her own food business in Canberra for six years. As mentioned earlier, she became a registered migration agent in 2001 and practised on her own account (or with her husband) for over 10 years. Elsewhere in her counsel’s submissions, it was submitted that MLA had provided an excellent service to prospective Filipino immigrants and had lodged many successful applications on behalf of its clients.[89] Mr Aguilar was a Commonwealth public servant between 1989 and 2001. For eight of those years, he also operated a publishing/distributorship servicing Australasia and the Pacific. He subsequently went into property development.[90] With that combined work history, it is implausible to suggest that Mr and Mrs Aguilar were inexperienced business people who had no knowledge of legal matters. By the time Ms Egnalig first retained MLA, Mr and Mrs Aguilar had been working in Australia for some 20 years. Having regard to the jobs they worked in and the businesses they conducted over that time, it is inconceivable that they had not at least become familiar with basic business concepts and principles. If Mrs Aguilar maintains that she did not have those basic skills, that raises its own serious issues of compliance with the Code.
[89] Ibid [15] and [18].
[90] Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions dated 13 August 2015, [6] to [9].
Further, I do not think the penalty has any implications for husbands and wives in this profession or business generally. The issue has nothing to do with whether couples go into business together; rather, it concerns the issue of how they choose to conduct their business and in particular, how they portray themselves to, and deal with, third parties and the wider public.
I have read the Authority’s discussion and reasoning as to its consideration of the appropriate disciplinary action.[91] Having considered that in detail, and having heard the evidence of Mrs and Mr Aguilar at the hearing and the submissions made by Mrs Aguilar’s counsel, I am satisfied that the penalty imposed was reasonable in the circumstances. In particular, I am satisfied as to the following matters:
(a)the matters complained of by Ms Egnalig caused her both financial and non-financial loss;
(b)although it was within her power to take appropriate action to resolve Ms Egnalig’s complaint, Mrs Aguilar failed to take any, or any reasonable, action to do so;
(c)in her dealings with the Authority, Mrs Aguilar was both non-cooperative and evasive in her responses;
(d)the fact that Mrs Aguilar had been the subject of previous serious disciplinary action which also arose out of not dissimilar issues concerning her record-keeping and financial duties to her clients;
(e)Mrs Aguilar’s lack of insight or appreciation as to the seriousness of the issues raised, even as late as the hearing before the Tribunal; and
(f)that there is a continuing risk to consumers of repeat conduct unless Mrs Aguilar receives further education and training on her professional responsibilities.
[91] Exhibit 1, T Documents, T 2, pages 30-34, Decision Record dated 28 February 2013, [143] –[160].
CONCLUSION
For the reasons set out above, I am satisfied that Mrs Aguilar engaged in conduct in breach of her obligations under clauses 2.9A, 2.23, 8.1, 8.2, 8.5 and 9.1 of the Code of Conduct.
I am also satisfied, having regard to the totality of her conduct, that she is neither a person of integrity nor a fit and proper person to give immigration assistance.
Based on those matters and having regard to other relevant factors concerning penalty, I am satisfied that the penalty imposed on Mrs Aguilar by the Authority was appropriate.
The decision under review is therefore affirmed.
I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter .............................[sgd]...........................................
Associate
Dated 9 May 2016
Date of hearing 1 April 2016 Counsel for the Applicant William J Markwell Solicitors for the Applicant Alexander Law Solicitors for the Respondent Sparke Helmore
4
2