Hanna and Migration Agents Registration Authority - [2000] AATA 821

DECISION AND REASONS FOR DECISION [2000] AATA 821

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1837

GENERAL ADMINISTRATIVE DIVISION          )
           Re      FAYEZ PHILIPPE HANNA
  Applicant
           And    MIGRATION AGENTS REGISTRATION AUTHORITY
  Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member

Date14 September 2000
PlaceSydney

Decision The Administrative Appeals Tribunal varies the decision under review of the former Migration Agents Registration Board of 13 February 1998, (now known as the Migration Agents Registration Authority), and in substitution therefor, finds that: (a) The Applicant Mr Fayez Philippe Hanna was in breach of Clause 5 of the Migration Agents Code of Conduct; and (b) The Applicant be issued with a caution pursuant to section 303(c) of the Migration Act 1958 when it is appropriate for MARA to do so.

..............................................
Ms G Ettinger
Senior Member
Catchwords
Migration agent – remittal from Federal Court - whether breach of Code of Conduct – whether new complaints can be included – decision varied - breach of clause 5 affirmed

Legislation
Migration Act 1958 ss 303 and 314
Migration Agents Regulations - Code of Conduct Clauses 5 and 17

Case Law
Briginshaw v Briginshaw (1938) 60 CLR 336
Haidar v Secretary, Department of Social Security (1998) 157 ALR 359
Hanna v Migration Agents Registration Authority (1999) 94 FCR 358
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374
Repatriation Commission v Nation (1995) 57 FCR 25
Sarkis v Migration Agents Registration Board (Federal Court, 15 June 1998, 719/98)

REASONS FOR DECISION

14 September 2000 Ms G Ettinger - Senior Member

This matter has come before the Administrative Appeals Tribunal ("the Tribunal") by way of remittal from his Honour Justice Tamberlin of the Federal Court of Australia ("Federal Court") following an appeal by the Applicant, Mr Fayez Philippe Hanna, from a decision made on 18 March 1999 by Senior Member Allen of this Tribunal (Hanna v Migration Agents Registration Authority (1999) 94 FCR 358).
At the original Tribunal hearing, Senior Member Allen, after hearing all of the evidence and submissions, gave an ex tempore decision and made the following findings:
"… whereas the applicant has had a proper knowledge of the law and procedures he has failed to act in a timely manner in that his follow up procedures are not what one would expect in a body which is charged with meeting deadlines. So far as the penalty is concerned I must first of all consider that I am reviewing a decision of a body which is peculiarly charged with the overseeing of migration agents. At one stage it would seem the body considered various options open to it including an option of an informal reprimand in the form of writing to the agent … spelling out the areas where he has allegedly been deficient. In my opinion, that course is not open to me under section 303 of the Act … the applicant has been in the … APEC matter – guilty of delay, and in that regard the penalty of caution is not excessive. I therefore, affirm the decision under review."

In his appeal to the Federal Court, the Applicant originally outlined the grounds of appeal as follows:
"The decision of the Administrative Appeals Tribunal was biased and is against the principals (sic) of Natural Justice.
Therefore, the applicant is aggrieved by the decision because
1.He is a registered migration agent who was formally cautioned by the predecessor of the respondent, the Migration Agents Registration Board.
2.If the decision is upheld he will suffer serious professional injury and potential loss of income as an (sic) registered migration agent performing duties in the consultancy of which he is the principal consultant, associated with a contract with the Department of Immigration and Multicultural Affairs to provide certain immigration advice and assistance services to disadvantaged persons."
However, at the time of the Federal Court hearing, the grounds for appeal which the Court dealt with, had been amended to:
"(1) The Tribunal erred in its interpretation of cause (sic) 17 of the Migration Agents Code of Conduct. The Tribunal interpreted the clause as applying to any case where an agent failed to act in a timely manner. The Tribunal should of (sic) interpreted the clause as only applying where there is a statutory deadline and where the client has provided the agent with all the documentation and information necessary to make the application.
(2)The Tribunal erred in failing to have regard to a relevant consideration in that it failed to have regard to whether the client had provided the Applicant with all the necessary information and documentation to apply for the Australian Pharmacy Examining Council examination. In particular, it failed to have regard to whether the client had provided him with the results of the Occupational English Test.
(3)The Tribunal erred by construing its powers as not permitting it to direct the Board to give the Applicant an informal caution."

Tamberlin J found that the wording of Clause 17 was such that:
"… it will operate only in circumstances where all the necessary material has been provided and there is a relevant legislative deadline. Nevertheless as a matter of syntax the second clause in the sentence under consideration is directed to qualify the obligation of the agent to act in a timely manner by setting out the circumstances in which that obligation arises."
His Honour went on to say that:
"This conclusion does not mean that the narrow scope of cl 17 allows migration agents a charter to otherwise act in an untimely manner free from sanction. It is relevant to bear in mind the operation of cl 5 of the Code of Conduct which is in general terms and in my view is sufficiently wide to catch instances of untimely conduct which do not come within cl 17. Clause 17 identifies specific circumstances in which delay by an agent is likely to have a direct and severe consequences, and the provision aims to ensure that such delay does not occur … it seems to me that the notion underlying the expression "legitimate interests" includes the interests of clients in having their case progress with diligence, efficiency and timeliness. Accordingly, it is not the case that unless cl 17 applies the Code does not provide for the monitoring or sanctioning of untimely conduct by migration agents."
In reaching his decision, his Honour held that Clause 17, "on its true construction is not applicable in the present circumstances and the reasoning of the AAT discloses a reviewable error of law." On this basis, he made the following orders:
"1. The application is allowed with costs.
2. The decision of the Administrative Appeals Tribunal is set aside.
3.The matter is remitted to the Administrative Appeals Tribunal for determination in accordance with law."
The primary decision of the then Migration Agents Registration Board ("MARB"), (now known as the Migration Agents Registration Authority) ("MARA") dated 13 February 1998 (T1/6), found that Mr Hanna had breached Clauses 5 and 17 of the Migration Agents Code of Conduct ("Code of Conduct"), and "issue the Agent a caution on the record" pursuant to section 303(c) of the Migration Act on the basis that:
"(a)the Board finds that the Agent breached Clauses 5 and 17 of the Code of Conduct in that he failed to act in his client's interests by:

failing to submit material to an assessing authority in a timely manner; and
failing to act in a timely manner in submitting material forwarded to him by an assessing authority; and
(b) on balance the Board does not accept the Agent's explanation for the delays."

At the Tribunal hearing before me, following the remittal from the Federal Court, the Applicant was self-represented and the Respondent, MARA was represented by Mr R Bromwich of counsel who was instructed by Ms J Kapel of the Department of Immigration and Multicultural Affairs ("the Department").
ISSUES BEFORE THE TRIBUNAL
The issues before the Tribunal were:

(A) Whether the Applicant's conduct in dealing with arrangements in relation to the applications to participate in the Occupational English Test ("OET") an English language examination, and the Australian Pharmacy Examining Council Inc ("APEC"), of Mr Farug Kerim Hamad Amin ("Mr Amin") and Mrs Zainab Abdulamer Mansour Al Ammar ("Mrs Al Ammar"), sister of Mr Harith Abdul Amir Mansour Al Ammar, ("Mr Al Ammar"), the complainant to MARB, amounted to a breach of the Migration Agents Code of Conduct.

·In this respect I noted that the particular clauses considered by the former MARB, (now MARA) in its decision of 13 February 1998 (T1/6), were Clauses 5 and 17 of the Migration Agents Code of Conduct. Both Mr Allen at the previous Tribunal hearing, and his Honour Justice Tamberlin had considered Clauses 5 and 17 of the Code of Conduct. I was mindful that his Honour had found as follows with regard to Clause 17.
"… it will operate only in circumstances where all the necessary material has been provided and there is a relevant legislative deadline. Nevertheless as a matter of syntax the second clause in the sentence under consideration is directed to qualify the obligation of the agent to act in a timely manner by setting out the circumstances in which that obligation arises….
…cl 17 on its true construction is not applicable in the present circumstances.."

·I further noted Mr Bromwich's submissions on behalf of the Respondent that any delays with regard to organising the OET were not being pressed, but that the main breach of the Code of Conduct alleged concerned the arrangements for the APEC examination.

(B) If a breach of the Code of Conduct was found, what consequences that might have pursuant to section 303 of the Migration Act 1958, ("the Migration Act").
LEGISLATIVE CONTEXT

The relevant legislation in relation to this matter was the Migration Act, in particular sections 303 and 314. Section 303 provides:
"303     Discretionary Cancellation or Suspension of Registration etc
The Board may:
(a)cancel the registration of a registered 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 and 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 Migration Agents Code of Conduct is derived from section 314 of the Migration Act which provides:
"314 Code of Conduct for Migration Agents
(1)The regulations may prescribe a Code of Conduct for migration agents.
(2)A registered agent must conduct himself or herself in accordance with the prescribed Code of Conduct."
The relevant clauses of the Code of Conduct in issue in the instant case are clauses 5 and 17 which follow as relevant:
"5.On all occasions a migration agent must act in accordance with the law and in the legitimate interests of his or her client.
…
17.An agent must act in a timely manner where the client has provided all the necessary information and documentation in time for legislative deadlines. For example, in most circumstances, an application under the Migration Act or Migration Regulations must be submitted before a person's visa expires.
…"

EVIDENCE BEFORE THE TRIBUNAL

The T-documents lodged originally pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and the other documents and exhibits which had been before the Federal Court were admitted into evidence as Exhibit R1. Exhibit R2 was a copy of the Order from the Federal Court and Exhibit R3 was the amended Notice of Grounds of Appeal, which had been heard at the Federal Court.
THE COMPLAINTS
The complaints which were the subject of the first Tribunal hearing and its subsequent appeal to the Federal Court arose out of the engagement of the Applicant by Mr Harith Al Ammar to seek a review of the decision of the Department of Immigration and Multicultural Affairs to refuse the grant of a concessional and family visa (Migrant) (Class AJ) to Mr Al Ammar's sister, Mrs Al Ammar and her spouse, Mr Amin.
I was mindful that an error by officers at the Australian Embassy in Turkey revealed by Mr Hanna in the assessment of the qualifications of Mrs Al Ammar as a specialist, enabled Mrs Al Ammar and Mr Amin to be reconsidered for the concessional and family visa. In this respect I noted a letter of Mr Hanna to the Department dated 22 February 1996 (T21/185-187). I noted that the Migration Review Internal Office advised Mr Al Ammar through Mr Hanna, that for his sister and brother-in-law to be successful, they would be required to successfully complete the OET held by the National Languages and Literacy Institute of Australia ("NLLIA") and a professional examination conducted by APEC (T3/24).
The complainant, Mr Harith Al Ammar, alleged that the Applicant had not conducted the matter in a timely and proper fashion, and had failed to obtain and lodge the necessary documentation. He alleged that it was only through the intervention of his wife, Mrs Ilham Dawoud ("Mrs Dawoud") that Mrs Al Ammar and Mr Amin were able to undertake both examinations.
FURTHER COMPLAINTS
At the hearing before me, the Respondent sought to introduce two further complaints which had been before MARA, but where no finding had actually been made. The Conduct Advisory Panel of MARA had noted as follows on 23 July 1999:
"… that there exists significant concerns regarding Mr Hanna's being a person of integrity and a fit and proper person for registration as a migration agent. The panel notes that Mr Hanna's registration has lapsed. Except for this, the panel would have recommended that MARA write to him asking him to show cause under section 309 as to why action should not be taken against him under section 303. However as Mr Hanna's registration has lapsed, it is recommended that this report remain on Mr Hanna's file for consideration should he apply for registration as a migration agent at a future date."
.
Mr Bromwich argued that the Tribunal was able to include further evidence upon remittal from the Federal Court. He cited the decision of Black CJ, Burchett and Tamberlin JJ in Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 as authority for this proposition. I noted that in that case, the Court held that:
"The question which arises before this Court is whether the AAT was restricted by the order to reconsideration solely on the incitement ground …
If Sackville J had intended to limit the introduction of further evidence it would have been a simple matter for him to have specifically so directed, as provided for in s44(4) of the AAT Act. His Honour did not do so and he expressly declined to give a general direction that the AAT should not receive further evidence.
Accordingly, the intention and effect of the order, in our view, was that the whole matter was remitted to the AAT, without limitation as to the presentation of further evidence or as to the scope of the matter to be dealt with."

Mr Bromwich also directed my attention to the decision of Haidar v Secretary, Department of Social Security (1998) 157 ALR 359 and the statement of Hill J at 367-8 regarding the capacity of the Tribunal to examine further evidence. His Honour there said:
"It is clear enough that the tribunal sitting on appeal from a decision maker, be it the minister or another tribunal, must take into account the facts as they existed at the time the matter is heard by the Administrative Appeals Tribunal, to the extent those facts are relevant to the decision. It is not limited to taking into account events which occurred at the time the original decision was made, nor for that matter facts as they were known at that time, notwithstanding that later knowledge would lead to a revision of the earlier factual assessment."
I noted Mr Bromwich's reference also to Repatriation Commission v Nation (1995) 57 FCR 25, where reference was made to the earlier judgment of Northrop J at 31 as follows:
"Northrop J then addressed the first issue in the appeal, the nature of the Tribunal's powers when hearing a remitted matter. His Honour said:
'The order remitted 'the matter' to the Tribunal. The word 'matter' means all things in dispute between the parties. In the Federal Court, the things in dispute were limited to the issue of causation from the nasal operation to the existing disease of obsessive compulsory (sic) neurosis. That was the matter remitted to the Tribunal to be heard and determined. Nothing else was remitted. To use the terminology of Gray J [in Blackman v Commissioner of Taxation (Cth) (1993) 43 FCR 449 at 455-456], the order of the Court limited the ambit of the issues with which the Tribunal was to deal with upon the matter being remitted to the Tribunal.'"
I was mindful Beaumont J also stated at 34:
"In my opinion, the language of the order of the remitter was susceptible of more than one meaning. The word "matter" could have meant the whole question being the determination of the Respondent's claim for a further pension. But it could also have meant the specific dispute then agitated before the Court …"

I was mindful of the statements of their Honours in Morales (supra), Haidar (supra) and Nation (supra), and considered Mr Bromwich's submissions as to the later complaints. There is no doubt that the Tribunal can take further evidence into account as appropriate when reviewing the decision of an appropriate authority. In this respect, I note that subsection 44(5) of the Administrative Appeals Tribunal Act 1975 provides:
"44(5)Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court."

I was mindful, however, that the Conduct Advisory Panel of MARA had not made a finding with regard to the two further complaints to it, which were now held with investigations incomplete, because Mr Hanna's registration had lapsed and not been renewed. The Conduct Advisory Panel stated that it did not therefore recommend to MARA to write to Mr Hanna asking him to show cause pursuant to sections 309 and 310 of the Migration Act as to why action should not be taken against him under section 303 of the Migration Act.
In this connection I was mindful that the Tribunal derives jurisdiction to review decisions of MARA from section 306 of the Migration Act which states as relevant:
"Review by the Administrative Appeals Tribunal
306 Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Board [as it then was] made under this division."
Therefore, as there was no reviewable decision before me, this Tribunal had no jurisdiction to hear evidence or admit these further complaints into the evidence.
This was not simply a case of additional evidence that had arisen in regard to the existing complaints which had been dealt with by MARA, and which I was reviewing. These were new complaints which had not been determined by MARA. They may be dealt with by MARA if Mr Hanna applies for re-registration in the future, and may then be the basis of another appeal to the Tribunal if appropriate.
EVIDENCE OF THE APPLICANT MR FAYEZ PHILLIPPE HANNA

Mr Hanna, who was self-represented, gave oral evidence. He did so reluctantly, and was at times unwilling to continue, to the extent that I adjourned for him to consider his position and make a decision whether he wanted to proceed. On resuming, Mr Hanna indicated that he wished to proceed.
Mr Hanna referred in his evidence to new legislation effective March 1999 with respect to the registration of migration agents. He said that his registration had lapsed on 7 June 1999 and because he had been overseas, he had not been able to complete the now compulsory professional development requirements for re-registration.
Mr Hanna then gave his evidence with regard to the applications for the OET and APEC examinations for Mr Amin and Mrs Al Ammar, saying that he was still owed $2,500. for his services. He also appeared angered by the fact that Mr Al Ammar had waited some six to seven months before making a complaint. I noted in that regard that the work had been completed in December 1996 and the complaint made in June 1997.
He said he had done everything in his power to assist the clients, and that he was the best agent in Sydney. One of the main points of his defence was that Mrs Dawoud, Mr Harith Al Ammar's wife, had intervened several times during the process, saying the clients would take over the work remaining at that point in time themselves.
Mr Hanna told me about his membership of a number of professional associations, and that he was President of the Migration Consultants Association Inc.
As to the complaint; Mr Hanna said that Mr Harith Al Ammar had attended at his office on 1 July 1996 but that he had not returned the documents previously given to him for his sister, Mrs Al Ammar. He also said that his secretary had on 5 July 1996 booked places for the English examination.
I was mindful that Mr Bromwich submitted on behalf of the Respondent that any delays with regard to organising the OET were not being pressed but that the main complaint concerned the arrangements for the APEC. I thus turned my attention to the APEC issue.
Essentially the APEC complaint had been that Mr Hanna had not processed the applications for examination of Mr Amin and Mrs Al Ammar in good time, and carried through the necessary steps. When this was put to Mr Hanna, he said that any delays had been caused by the candidates themselves in that they had not provided him with the necessary documentation. I noted from Mr Hanna's replies that he understood at various times that Mrs Dawoud herself was intending to take certain steps and do certain things with regard to the APEC application.
Mr Hanna was cross-examined on the sequence of events relating to the APEC examination as detailed in the Respondent's Facts and Contentions. He said that he disagreed with the statements in paragraphs 16 and 17, which indicated Mr Al Ammar and Mrs Dawoud had obtained information from the Applicant regarding APEC enrolment dates and asked him to obtain APEC enrolment forms and prepare the necessary correspondence. He said that he recollected the clients had said they would write the letter to APEC themselves. In this respect, I noted that as late in the proceedings as 20 September 1996, Mr Hanna wrote a letter to APEC (T3/32) advising that he was acting on behalf of Mrs Al Ammar and Mr Amin.
He detailed the events leading to the APEC examination saying that he had written a letter for the complainant on 9 September 1996, and handed it to the client, but that no copy had been kept. He said that he had also written a letter on 20 September 1996, and that there had been no follow-up by Mr Amin and Mrs Al Ammar. Mr Hanna said that he understood Mrs Dawoud wanted to follow the matter through herself. I understood this was a crucial time because Mr Amin and Mrs Al Ammar needed the APEC documents to enrol for the examination by 1 January 1997.
I noted that APEC forwarded a letter to the Applicant on 14 October 1996 (T3/35). The complainant alleged that Mr Hanna had not done anything about this letter or the attached APEC forms until December 1996, after he and his wife had themselves made several approaches.However, Mr Hanna said that any delays had occurred because Mr Al Ammar had not provided the correct documents back to him, and that he had been in "constant contact".
Mr Hanna also said that he had travelled overseas from 6 October 1996 to 18 October 1996, but that his staff were in contact with the client and had handled the matter during his absence. Mr Hanna was adamant that Mrs Dawoud had told him in September 1996 that she wanted to handle things herself.
In defending what appeared to be a lack of documentation regarding his communications with the client, Mr Hanna emphasised cultural differences and said that in his culture people preferred to make telephone calls rather than write, and that he had thus spoken to Mr Al Ammar many times rather than writing letters.
When asked whether the account of Mr Harith Al Ammar in a letter of 16 June 1997 to the Department (T3/20-22), in which he reported the sequence of events with regard to the complaint, accurately reflected matters as they occurred, Mr Hanna disagreed.
The Applicant emphasised in his evidence that he had assisted Mr Amin and Mrs Al Ammar as well as the High Commission in Turkey as he had uncovered and remedied a mistake in the relevant applications. I was mindful that Senior Member Allen had found at page 2 of his decision of 18 March 1999:
"The applicant [Mr Hanna] certainly was of material assistance to Mr Al-Ammar and his relatives. He appears to have readily found that there had been a mistake made by migration authorities stationed in the Australian Embassy in Turkey and took the matter up with the Migration Internal Review Office in Sydney. In that regard I'd refer to the document which is at page 24 of the section 37 documents…"

SUBMISSIONS AND CONCLUSIONS

The issue to be decided was whether Mr Hanna in his conduct of affairs on instructions from Mr Al Ammar, in relation to applications for Mr Amin and Mrs Al Ammar had breached any provisions of the Code of Conduct, and if so, what consequences that breach might have pursuant to section 303 of the Migration Act. To make the correct and preferable decision, I had to take into account the written and oral evidence before me as well as the submissions, legislation, Code of Conduct and case law which guide me and by which I am bound, as appropriate.
I make note here that some two weeks after the hearing, and more precisely on 15 August 2000, I received from Ms Kapel of the Department, a copy of the decision Sarkis v Migration Agents Registration Board (Federal Court, 15 June 1998, 719/98), with a note indicating the Respondent considered it may have some bearing on the instant case. Ms Kapel indicated that she had also sent a copy to Mr Hanna. Neither party sought to make any submissions about the case in relation to the instant case. I was mindful of his Honour's findings and further comment with regard to Mr Sarkis.
I noted that Mr Hanna was registered as a migration agent on 9 June 1994, and that the complaint subject of this hearing was originally made in June 1997. I noted further that Mr Hanna's registration had lapsed on 7 June 1999, and that he was not a registered migration agent at the time of the hearing.
I was mindful that migration agents are bound by the Code of Conduct made pursuant to section 314 of the Migration Act. The relevant provisions here under the heading "OBJECTIVES" were that the aims of the Code of Conduct are (amongst other things), to establish a proper standard for the conduct of business as a migration agent, and particularly:
Clause 3:
"The Code is not intended to list exhaustively the acts and omissions that may fall short of what is expected of a competent and responsible migration agent."
Clause 4:
"However the Code imposes on a registered agent the overriding duty to act at all times in the lawful interests of the agent's client and any conduct falling short of that requirement may render the agent liable to deregistration."
I was mindful that Mr Bromwich submitted on behalf of the Respondent that any delays with regard to organising the OET were not being pressed, but that the main complaint concerned the arrangements for Mr Amin and Mrs Al Ammar to undertake the APEC examination in March 1997.
I was mindful of the error of law found by his Honour in the previous Tribunal's reasoning in relation to Clause 17 of the Code of Conduct, and I was bound by the finding of Tamberlin J that "cl 17 on its true construction is not applicable in the present circumstance." I therefore understood my task to be to consider whether the actions of Mr Hanna had breached Clause 5 of the Code of Conduct in relation to the applications for OET and APEC of Mr Amin and Mrs Al Ammar. I was mindful of the statements of his Honour with regard to the OET, and Mr Bromwich's submission that the Respondent did not press the complaint regarding the OET arrangements. I therefore concentrated my inquiry on the conduct of the APEC matter by Mr Hanna, and considered whether any breach of Clause 5 of the Code of Conduct had occurred in that regard.
I was mindful that Mr Hanna appeared in person unrepresented, and that the act of appearing in a Tribunal and distinguishing between giving evidence and making submissions is not easy. However, I found him quite discourteous and unwilling to give evidence, refusing at times to answer questions at all. I was fortunate therefore to have very detailed written documentation from both from the Applicant and the Respondent relating to the matter before me.
I noted also that in making his oral submissions, Mr Hanna commented adversely on Members of MARA, submitting that the Members themselves were migration agents, and that many were lawyers. He implied their self-interestedness. Mr Bromwich on behalf of the Respondent, rejected the attack on the integrity of MARA Members. I did not consider that Mr Hanna's submissions in this regard were at all researched and he did not provide any factual basis with regard to his statements. I gave them no weight in coming to my decision.
Mr Hanna also complained that MARA did not protect agents, but only existed to penalise them. In reply, Mr Bromwich submitted, correctly, that MARA was the regulator and that the intent of the Code of Conduct was to protect the public interest.
I moved then to consider the complaint lodged by Mr Al Ammar regarding the conduct of the matters related to Mr Amin and Mrs Al Ammar, and to assess whether the conduct of their case by Mr Hanna amounted to a breach of any clause of the Code of Conduct, and if so, what consequences that might have pursuant to section 303 of the Migration Act.
Mr Bromwich relying on the authority of Morales (supra), Nation (supra) and Haidar (supra) submitted that I should take two further complaints to MARA against Mr Hanna into account. I have already noted that findings about these complaints have not been made by MARA, and as there was therefore no reviewable decision regarding these before the Tribunal, I had no jurisdiction with regard to them. The reasons for excluding the evidence regarding further complaints against Mr Hanna which the Respondent sought to include are in a section above entitled "FURTHER COMPLAINTS". I therefore proceeded only with regard to the complaint concerning Mr Amin and Mrs Al Ammar.
For the sake of completeness, I have noted that Senior Member Allen in affirming the decision under review, found as follows with regard to the conduct of Mr Hanna:
"Looking at the Code of Conduct again, in my opinion, any breach of clause 5 does not, on the standards of proof which would need to be shown in order to make a finding which would affect a person's practice of his livelihood – to have been made out….
So far as clause 17 is concerned it seems to me that whereas the applicant has had a proper knowledge of the law and procedures he has failed to act in a timely manner in that his follow up procedures are not what one would expect in a body which is charged with meeting deadlines."
On appeal to the Federal Court, Tamberlin J had found as follows:
"24 On a natural and ordinary interpretation of the language used, clause 17 is directed at an obligation to act in a timely manner in specific circumstances where the agent has received all necessary information and documentation within times prescribed by legislative guidelines. The example given supports this view because it instances a situation in which the deadline is the expiry of a visa and this time is prescribed by legislation. There is no reason shown for ignoring the terms of the qualification to the obligation, or for including words which are not used.
25 It seems to me that the meaning and operation of cl 17 can be made more clear if the clause "where the client has provided" etc. is placed at the beginning of the sentence. This makes it evident that cl 17 envisages that it will operate only in circumstances where all the necessary material has been provided and there is a relevant legislative deadline. Nevertheless as a matter of syntax the second clause in the sentence under consideration is directed to qualify the obligation of the agent to act in a timely manner by setting out the circumstances in which that obligation arises.
26 This conclusion does not mean that the narrow scope of cl 17 allows migration agents a charter to otherwise act in an untimely manner free from sanctions. It is relevant to bear in mind the operation of cl 5 of the Code of Conduct which is in general terms and in my view is sufficiently wide to catch instances of untimely conduct which do not come within cl 17. Clause 17 identifies specific circumstances in which delay by an agent is likely to have a direct and severe consequences, and the provision aims to ensure that such delay does not occur. I do not accept the submission of the respondent that in order to come within cl 5 it is necessary that the interests of the client must in fact have been prejudiced. It seems to me that the notion underlying the expression "legitimate interests" includes the interests of clients in having their case progress with diligence, efficiency and timeliness. Accordingly, it is not the case that unless cl 17 applies the Code does not provide for the monitoring or sanctioning of untimely conduct by migration agents.
27 … The true meaning of cl 17 must be derived from the context in which it occurs having regard to the objectives and the other provisions of the Code.
28 Accordingly, for the above reasons cl 17 on its true construction is not applicable in the present circumstances and the reasoning of the AAT discloses a reviewable error of law in relation to this aspect."
Mr Hanna submitted that the Federal Court had found for him, and that there was nothing further to pursue. That was, of course, not correct at law. He submitted that the Federal Court had not found that he had breached Clause 5 of the Code of Conduct.
I noted that Mr Bromwich correctly submitted that the Federal Court dealt only with points of law, that his Honour had remitted the matter for a purpose. I agreed that for me to consider whether a breach of Clause 5 of the Code of Conduct had occurred, was quite appropriate.
I was mindful that his Honour said of Clause 17 that it was envisaged "that it will operate only in circumstances where all the necessary material has been provided and there is a relevant legislative deadline." He did not accept the submission of the respondent with regard to Clause 5, that in order to come within it, it was necessary that the interests of the client must in fact have been prejudiced. He held that the notion underlying the expression "legitimate interests" included the interests of clients in having their case progress with diligence, efficiency and timeliness. His Honour further held that the operation of Clause 5 of the Code of Conduct was sufficiently wide to catch instances of untimely conduct which did not come within Clause 17.
Mr Hanna then submitted he had done everything possible with regard to arrangements for Mr Amin and Mrs Al Ammar to take the APEC examinations. He said that Mrs Dawoud had wanted to deal with everything herself, and that she only came back to him when things did not work out. He submitted that he had done everything necessary for the clients up until the point when they had dismissed him. He submitted that there was no basis for a caution for him as the candidates had passed their OET examination and undertaken APEC as scheduled.
I was mindful that Tamberlin J had stated at paragraph 33 of his decision:
"As a final matter, the applicant submitted that not only should the decision of the AAT be set aside, but the matter should not be remitted for further consideration. Counsel said that the evidence before the AAT did not permit a finding that the applicant had failed to comply with his obligations under cl 17. In the circumstances of this case I do not consider that this is an appropriate course to take. The matter should be remitted to the AAT for reconsideration in accordance with law having regard to these reasons for judgment."
I preferred the submission of Mr Bromwich, and was mindful the matter had been remitted from the Federal Court for determination in accordance with the law, by this Tribunal, and to consider in particular whether any breach of Clause 5 of the Code of Conduct had occurred with regard to arrangements undertaken to provide services for Mr Amin and Mrs Al Ammar.
Mr Hanna's submissions consisted mainly of telling me that Mr Al Ammar owed him $2,500., and assuring me of his (Mr Hanna's) integrity and professionalism. I noted also that he named a number of associations of which he is an office holder or member, including his appointment as President of the Migration Consultants Association Inc. I was fortunate to have before me all the evidence which had been before the previous decision makers, and in particular with regard to Mr Hanna, his extensive Affidavit of 28 July 1999 tendered at the Federal Court hearing (T25/264-283).
Mr Bromwich drew my attention to paragraph 26 of the decision of Tamberlin J. He submitted that I should consider whether what had occurred in the conduct of the applications for Mr Amin and Mrs Al Ammar could be characterised as being in the mode of diligence, efficiency and timeliness, or whether it amounted to a lack of diligence, efficiency and timeliness. He submitted that Mr Hanna was aware of the need for the documents related to the APEC examinations in March 1997 to be obtained, then sent overseas and returned in time for the 1 January 1997 deadline for applications. The Respondent's submission was that Mr Hanna's conduct had imperilled the legitimate interests of his clients, with serious consequences to the parties involved, and that this constituted a breach of Clause 5 of the Code of Conduct.
I noted that the matter had commenced by an attendance at Mr Hanna's office by Mr Harith Al Ammar in 1996 on behalf of his sister Mrs Al Ammar and her husband Mr Amin. He was charged with arranging for the latter two people to sit OET and APEC examinations. It seems that because the parties had not heard from Mr Hanna regarding the APEC examination, Mrs Dawoud contacted APEC on 6 September 1996. There was evidence that Mr Harith Al Ammar and Mrs Dawoud attended at Mr Hanna's office on 9 September 1996 with regard to the application forms for the APEC examination as these had to be sent to the candidates in Turkey and returned in time for lodging by 1 January 1997. Mr Hanna's evidence was that he had written a letter on the spot and handed it to the parties. Mr Harith Al Ammar in his letter of complaint to the Department (T3/21), did not make reference to any such letter and Mr Hanna said that he did not keep a copy.
Mr Hanna did however write a letter to APEC dated 20 September 1996, (T3/32), and a reply to it was made by APEC dated 14 October 1996 (T3/35). I accepted from the evidence before me that the application forms which were included with the letter of APEC were not passed on to the clients, and that no action with regard to the applications took place until after Mrs Dawoud had been in touch again with Mr Hanna in late November 1996. The evidence of the complainant was that nothing happened until Mrs Dawoud again contacted APEC in early December and received the application forms directly from APEC. She then dispatched them directly to the candidates in Turkey by courier. It appeared that Mrs Dawoud then enrolled the candidates for the APEC examination on 23 December 1996.

I noted that the involvement of Mrs Dawoud was clear from the handwritten letter of APEC to her dated 3 December 1996 (T3/34). In it the Executive Officer of APEC referred to APEC's letters to Mr Hanna, Mr Amin and Mrs Al Ammar and to dates by which applications were required in order for the candidates to participate in the OPEC examination. She wrote:
"As requested I enclose copies of my letters to Ms Al Ammar and Mr Amin, together with a copy of my letter to AMI Migration Consultants (Mr Hanna's firm).
I also enclose application forms for the Stage I Examination for both candidates, together with a set of competency statements which the exams are based upon, plus updated copies of the Candidates Information Handbook."
The submission of the Respondent was that Mr Hanna had not taken action as required between 20 September 1996 until December 1996 to progress the applications. Mr Bromwich submitted that neither Mr Harith Al Ammar nor Mr Amin nor Mrs Al Ammar had received correspondence from Mr Hanna in that period, and but for the action of Mrs Dawoud, the parties may have missed the examination deadline of 1 January 1997.
Mr Bromwich submitted that the telephone call of the complainant to Mr Hanna of 23 December 1996 be accepted as an indication of the concern of the parties regarding the impending registration deadline for APEC, and the fact that the parties still relied on his participation in the matter.
Mr Hanna however indicated that he and his staff had been in "continuous contact" with the parties and that even though there was not always a written record, it was because culturally, telephone, that is personal contact, was preferred. I noted that Mr Hanna's reply to the above complaints of delays was Mrs Dawoud had informed him she was handling the matter herself.
Mr Bromwich submitted that I should accept the sequence of events as outlined in the letter of complaint to MARB of Mr Harith Al Ammar of 16 January 1997 (T3/20-22).
Mr Hanna on the other hand submitted that he had done nothing wrong and worked in the best interests of his clients until they dismissed his services.
Mr Bromwich made reference to the standard of proof in Briginshaw v Briginshaw (1938) 60 CLR 336 and submitted I could be reasonably satisfied on the evidence that Mr Hanna's conduct had caused the imperilment of legitimate interests of his client. He submitted that Clause 5 had been breached by the actions of Mr Hanna in relation to Mr Amin and Mrs Al Ammar. He submitted that a caution as imposed by MARB originally was therefore reasonable and appropriate. He referred me to T1/6-9 in which the complaints of Mr Harith Al Ammar were detailed.
Having noted the evidence before MARB and before me, I did not accept Mr Hanna's submission that he had worked diligently and correctly on the matter until he had been dismissed in September or October 1996. I accepted from the evidence before me that he was not dismissed at all. He had himself outlined in his own evidence, reports of an angry telephone call he received from Mrs Dawoud on 23 December 1996 regarding the applications, an indication to me he had not been dismissed at all.
I was satisfied from the evidence before me to the requisite Briginshaw and Briginshaw (supra) standard that although Mr Hanna undertook to arrange for Mr Amin and Mrs Al Ammar to undertake the APEC examinations, he did not conduct himself with diligence, efficiency and timeliness in relation to submitting applications by 1 January 1997. I accepted from the evidence and submissions before me that had Mrs Dawoud not been in touch with Mr Hanna, gone to his office and indeed made contact with APEC and the candidates, the examination deadline would not have been met by Mrs Al Ammar and Mr Amin. This was not a legislative deadline as envisaged by Tamberlin J for a breach of Clause 17 to be established, but it was a deadline important to the candidates who would have incurred further expense and delay if they had not been able to undergo the examinations in March 1997.
Before making this decision I considered the undisputed fact that Mr Hanna discovered an error with regard to the situation of Mr Amin and Mrs Al Ammar by officers at the Australian Embassy in Turkey, and that he rectified the situation to their advantage. That does not impact on the later actions when he was arranging their examinations with APEC.
I noted section 314(2) of the Migration Act provides that:
"(2) A registered agent must conduct himself or herself in accordance with the prescribed Code of Conduct."
I noted further that in the Code of Conduct;
"5. On all occasions a migration agent must act in accordance with the law and in the legitimate interests of his or her client."
I found that given Mr Hanna's lack of attention in relation to the assignment to arrange the candidature for the APEC examinations for Mr Amin and Mrs Al Ammar, he did not work in their legitimate interests, and jeopardised their chances of candidature on that occasion. Had Mrs Dawoud not assisted and communicated with both her relatives and APEC on their behalf, I am satisfied the couple would not have been able to submit their applications for the APEC examination by 1 January 1997 as required for the 1 March 1997 examination. Standing in the shoes of the decision maker, I found that by failing to communicate with APEC and with his clients in a timely manner in order to submit material to APEC as required, Mr Hanna breached Clause 5 of the Code of Conduct.
I therefore turned to consider section 303 of the Migration Act and the consequences of breaching Clause 5 of the Code of Conduct. Section 303 of the Migration Act gives various options in regard to breaches of the Code of Conduct.
The consequences of not acting in accordance with the law and in the legitimate interests of the client (Clause 5 of the Code of Conduct), may lead to:
"303     Discretionary Cancellation or Suspension of Registration etc
The Board may:
(a)cancel the registration of a registered agent by removing his or her name from the register; or
(b)       suspend his or her registration; or
(c)       caution him or her …"

I considered the gravity of the breach of Clause 5 of the Code of Conduct in this case, and decided that neither cancellation nor suspension was appropriate, and that a caution pursuant to section 303(c) of the Migration Act would be the correct and preferable penalty to be imposed. I have therefore decided to vary the decision under review to reflect my finding.
I have noted further that Mr Hanna is currently not a registered migration agent, and that the caution may not be able to be exercised until he applies for reregistration or is registered.
DECISION
The Tribunal varies the decision under review of the former Migration Agents Registration Board of 13 February 1998, (now known as the Migration Agents Registration Authority), and in substitution therefor, finds that:

(a)The Applicant Mr Fayez Philippe Hanna was in breach of Clause 5 of the Migration Agents Code of Conduct; and
(b)The Applicant be issued with a caution pursuant to section 303(c) of the Migration Act 1958 when it is appropriate for MARA to do so.
I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member
Signed:         .....................................................................................            Associate
Date/s of Hearing  1 August 2000
Date of Decision  14 September 2000
Counsel for the Applicant        N/A
Solicitor for the Applicant         Self-Represented
Counsel for the Respondent    Mr R Bromwich
Solicitor for the Respondent    Ms J Kapel