Hanna v Migration Agents Registration Authority - [1999] FCA 1657

FEDERAL COURT OF AUSTRALIA
Hanna v Migration Agents Registration Authority [1999] FCA 1657
MIGRATION – appeal from decision of Administration Appeals Tribunal affirming decision of Migration Agents Registration Board for error of law – where Board issued a caution to the applicant under s 303 of the Migration Act 1958 (Cth) for breach of cl 17 of the Code of Conduct for migration agents – statutory interpretation of cl 17 – regard to be had to penal nature of sanctions such that caution should be used before introducing language the legislature had not chosen to use – whether requirement to act in a timely manner limited to cases where client has provided necessary information and documentation in time for legislative deadlines
Migration Act 1958 (Cth) ss 303, 316(d)
Administrative Appeals Tribunal Act (1975) (Cth) s 44
Migration Agents Regulations, Schedule, Code of Conduct
Briginshaw v Briginshaw (1938) 60 CLR 336 followed
Marshall v Watson (1972) 124 CLR 640 cited
Austin v Federal Commissioner of Taxation [1932] VLR 335 cited
Davis Jenkins & Co Ltd v Davis (Inspector of Taxes) (1968) AC 1097 cited
Scott v Lowe (1981) Tas R 37 cited
Gifford Statutory Interpretation 1990
Pearce Statutory Interpretation in Australia 1996
Bennion Statutory Interpretation 3^rd ed. 1997
FAYEZ PHILIPPE HANNA v
MIGRATION AGENTS REGISTRATION AUTHORITY
N 502 OF 1999
TAMBERLIN J
SYDNEY
26 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 502 OF 1999

BETWEEN:

FAYEZ PHILIPPE HANNA
APPLICANT

AND:

MIGRATION AGENTS REGISTRATION AUTHORITY
RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

26 NOVEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
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.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 502 OF 1999

BETWEEN:

FAYEZ PHILIPPE HANNA
APPLICANT

AND:

MIGRATION AGENTS REGISTRATION AUTHORITY
RESPONDENT

JUDGE:

TAMBERLIN J

DATE:

26 NOVEMBER 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The applicant appeals from a decision of the Administrative Appeals Tribunal (“the AAT”) given on 18 March 1999 affirming the decision of the Migration Agents Registration Board (“MARB”) which issued a “caution” to the applicant under s 303 of the Migration Act 1958 (Cth) (“the Act”). MARB is the predecessor to the Migrations Agents Registration Authority (“MARA”), the respondent to this appeal. The appeal is brought on the basis that the AAT erred in law in making its determination: see s 44 of the Administrative Appeals Tribunal Act (1975) (Cth).
The caution was imposed pursuant to the Code of Conduct set out in the Schedule to the Migration Agents Regulations assented to on 17 September 1992. The Code is prescribed pursuant to s 314 of the Act which states that a registered agent must conduct himself or herself in accordance with the prescribed Code 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: [1999] FCA 1657
Decision Date: 26 NOVEMBER 1999

CaseChat Overview and Summary

In the Federal Court, Hanna sought to challenge a decision made by the Migration Agents Registration Authority (MARA) which had suspended her registration. The crux of the dispute was whether the Tribunal had correctly interpreted and applied clause 17 of the Code of Conduct. Hanna argued that the Tribunal's interpretation of this clause was erroneous, leading to an unjustifiable penalty. The legal issues before the court centred on the correct interpretation of clause 17 and whether the Tribunal had applied the appropriate legal standards in making its decision.

The court examined the interpretation of clause 17, which pertains to the efficiency and timeliness of follow-up procedures expected of registered agents. The Tribunal had found a breach of this clause, but Hanna contended that the evidence did not support such a finding. The court agreed that the Tribunal's interpretation of clause 17 was flawed. The Tribunal had applied a stringent standard of proof inconsistent with the Briginshaw principles, which require a balance between the seriousness of the allegation and the degree of proof necessary. The court found that the Tribunal had failed to appreciate the nuances of the Briginshaw principles, leading to an erroneous conclusion about Hanna's compliance with the Code of Conduct.

As a result, the court allowed Hanna's application, set aside the Tribunal's decision, and remitted the matter back to the Tribunal for reconsideration in light of the court's reasons. The court's order mandated that the Tribunal reassess the evidence and apply the correct legal standards when determining whether Hanna had breached clause 17 of the Code of Conduct.

Orders

Orders of the court

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.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

TAMBERLIN J

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.Conclusion In my view, The AAT has erred in law in the interpretation of cl 17 of the Code of Conduct and the appropriate order is that the application is allowed with costs and the matter is remitted to the AAT for determination in accordance with these reasons.

Ratio Decidendi

Legal Principle Established

Established by: TAMBERLIN J

Section 303 of the Migration Act provides as follows:“303 Discretionary cancellation or suspension of registration etc.The Migrations Agents Registration Authority 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 or misleading in a material particular; or(e)the agent becomes bankrupt; or(f)the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or(g)an individual related by employment to the agent is not a person of integrity; or(h)the agent has not complied with the Code of Conduct prescribed under section 314.Note:If the Migration Agents Registration Authority is considering cautioning a registered agent, or suspending or cancelling a registered agents’ registration, it must invite the registered agent to make a submission. See sections 309 and 310.”The conduct which was found to have breached cl 17 The Senior Member who heard the application in the AAT, found that there had been a breach of the standards prescribed by cl 17 above but there had been no breach of those contained in cl 5. The essential reasoning and basis for this conclusion are set out in the following extract.“As to the so-called APEC test, that is the Australian Pharmacy Examining Council Test, exhibit A2, at page 73 is a letter forwarded by Ms Ishac to that body which clearly asks that the body forward to AMI Migration Consultants any materials relating to the APEC examination. That letter appears to have been replied to relatively swiftly because in the section 37 documents at page 35 there is a copy of a letter from the executive office of the Australian Pharmacy Examining Council dated 14 October 1996 which encloses certain material to be completed by Ms Al-Ammar and Mr Amin in order that they could sit for the examination held in March 1997. What then seems to be clear is that no further action was taken until 3 December 1996 when the applicant’s firm made contact with the Australian Pharmacy Examining Council and asked what was happening regarding the said applications.I refer in this regard to the documents at page 62 of the section 37 documents. It would also seem clear from the evidence that the inquiry was no doubt occasioned by agitation on behalf of the complainant’s wife asking just what had happened. The applicant claimed both in evidence today and exhibit A2, page 8 thereof, that the letter from APEC confirming eligibility for the examination and which was dated 14 October 1996 was not received in his office until 2 December 1996. That particular paragraph contrasts somewhat with the letter from the Australian Pharmacy Examining Council to the Migrant Agent’s Registration Board which is dated 17 October ’97 which states that the applicant’s firm rang that body on 3 December seeking progress.It seems to me strange why they would ring on 3 December if they received a letter on 2 December. Either way what it does reveal is that, having written a letter to the Pharmacy Examining Council which was received by them on 20 September 1997 [sic], there was no follow up until on or about 2 December 1996. In other words, it seems to me a lack of efficient follow up led to delays. In all of these, with delays there would also seem somehow a failure to keep the complainant as client informed of just what was happening. 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. As to standards of proof I would simply say, refer to the well-known principles in Briginshaw and Briginshaw.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. So far as 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, as they put it, spelling out the areas where he had allegedly been deficient. In my opinion, that course is not open to me under section 303 of the Act.Although in many ways it may be an appropriate course in these proceedings. I have of course to make my own mind up. But I should be guided by the findings of the appropriate registration authority. As I have said earlier, it seems to me that the applicant has been, in the second matter – 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 THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 502 OF 1999

BETWEEN:	FAYEZ PHILIPPE HANNA APPLICANT
AND:	MIGRATION AGENTS REGISTRATION AUTHORITY RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	26 NOVEMBER 1999
WHERE MADE:	SYDNEY

JUDGE:	TAMBERLIN J
DATE:	26 NOVEMBER 1999
PLACE:	SYDNEY