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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2000] AATA 821
Decision Date: 14 September 2000

CaseChat Overview and Summary

Fayez Phillippe Hanna sought judicial review of a decision by the Migration Agents Registration Authority (MARA) which found him in breach of the Migration Agents Code of Conduct and which was affirmed on appeal by the Federal Court. The Tribunal was required to determine whether the decision was lawful, just and reasonable. The Tribunal found that the decision was valid, and affirmed the finding that the Applicant had breached the Code of Conduct. The Tribunal also found that the new complaints could be considered, as they were not simply additional evidence in relation to the existing complaints. The Tribunal varied the decision under review and found that the Applicant was in breach of the Code of Conduct.

The Tribunal noted that the Applicant had been found in breach of the Code of Conduct in that he had not acted in a timely manner. The Tribunal held that the Applicant had not demonstrated that he had acted in a timely manner where the clients had provided all the necessary information and documentation in time for legislative deadlines. The Tribunal also found that the new complaints could be considered, as they were not simply additional evidence in relation to the existing complaints, but rather were new complaints which had not been determined by MARA. The Tribunal held that the new complaints could be considered as they may be dealt with by MARA if the Applicant applies for re-registration in the future, and may then be the basis of another appeal to the Tribunal if appropriate. The Tribunal varied the decision under review and found that the Applicant was in breach of the Code of Conduct. The Tribunal also held that the caution may not be able to be exercised until the Applicant applies for re-registration or is registered.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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:

Ratio Decidendi

Legal Principle Established

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.…" 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.".