Haque and Migration Agents Registration Authority

Haque and Migration Agents Registration Authority [2016] AATA 186 (30 March 2016)

Division

GENERAL DIVISION

File Number(s)

2013/3423

Re

Zahidul Haque

APPLICANT

And

Migration Agents Registration Authority

RESPONDENT

DECISION

Tribunal
Egon Fice, Senior Member

Date 30 March 2016

Place Melbourne
The decision under review is affirmed

........................................................................
Egon Fice, Senior Member
MIGRATION AGENT REGISTRATION − Fit and proper person to provide immigration assistance − Relevant factors – Disclosure of criminal history - Convicted of the offence of Intentionally Cause Injury – Failure to disclose convictions - Psychological issues - Understanding of the English language – Decision affirmed
Legislation
Migration Act 1958 (Cth)
Crimes Act 1914 (Cth)
Crimes Act 1958 (Vic)
Sentencing Act 1991 (Vic)
Sentencing (Community Correction Reform) Act 2011
Cases
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Zahidul Haque v The Queen [2013] HCASL 156
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Hughes and Vale Pty Ltd v The State of New South Wales [No. 2] (1955) 93 CLR 127
Stasos v Tax Agents’ Board of New South Wales (1990) 21 ATR 974
Secondary Materials
Australian Concise Oxford Dictionary, Third Edition
REASONS FOR DECISION
Egon Fice, Senior Member
30 March 2016

On 27 July 2011 Dr Zahidul Haque lodged an application with the Migration Agents Registration Authority (MARA) for registration as a migration agent in accordance with

s. 288 of the Migration Act 1958 (the Migration Act). The application form required

Dr Haque to state whether there had ever been a finding of guilt against him for a criminal offence in Australia or another country (except a conviction that is spent under Part VIIC of the Crimes Act 1914 (Cth). In answer to that question, Dr Haque marked the No box. Another question required Dr Haque to state whether he was the subject of any criminal proceedings in any country. In answer to that question, Dr Haque marked the Yes box. Dr Haque signed his application form, which included a declaration that the information he provided on his application form, and any attachments, was complete, correct and up to date in every detail.
MARA obtained from the Australian Federal police (AFP) a certificate in which was set out criminal matters pending, convictions, and findings of guilt or pecuniary penalties before a court dealing with Dr Haque. That certificate recorded Dr Haque having been convicted of the offence of Intentionally Cause Injury for which he was sentenced to what appears to be a good behaviour bond for 12 months. In addition, there was a pending charge dated 24 March 2010 which listed the following offences:
Reckless Conduct Endanger Serious Injury
Reckless Conduct Endanger Life
Drive in a Manner Dangerous
Unlawful Assault
At the time of issue of the AFP Certificate, the pending charge relating to the offences referred to above had not been determined by a court.
In a letter dated 15 September 2011 MARA informed Dr Haque that there had been some delay in processing his application due to concerns regarding his English language proficiency, his prior convictions and charges currently pending. In a letter dated 21 September 2011 MARA requested further information regarding the concerns it had expressed in its previous letter.
In a letter dated 22 September 2011 Dr Haque explained that the conviction recorded on

9 March 2004 was not a criminal conviction but rather a family law violation. That statement was incorrect. As for the pending charges relating to the 2010 incident,

Dr Haque stated he had not at that time been convicted of any criminal offence in relation to that incident.
The Drive in a Manner Dangerous and Unlawful Assault charges did not proceed. However Dr Haque was tried in the County Court of Victoria on the remaining two charges. On 10 May 2012 a jury found Dr Haque not guilty of the charge of Reckless Conduct Endanger Life but guilty of the charge Reckless Conduct Endanger Serious Injury. On 30 August 2012 Dr Haque was sentenced and ordered to serve a Community Corrections Order for a period of 12 months commencing on 30 August 2012 and ending on 29 August 2013. In addition, the sentencing judge, Judge Hicks, ordered a special condition be attached to the Community Corrections order and that he undergo mental health assessment and treatment.
Dr Haque notified the Manager Registration at MARA of his conviction in a letter dated

3 September 2012. Dr Haque also said that he would appeal against his conviction to the Supreme Court.
Dr Haque lodged an application for leave to appeal against his conviction and sentence to the Supreme Court of Victoria. That application was dismissed by the Appeal Court on

6 May 2013. In other words, leave to appeal was refused. In fact Dr Haque appears to have become aware of his unsuccessful appeal prior to that decision having been handed down and on 2 May 2013 he notified MARA that his appeal to the Supreme Court was unsuccessful indicating he would lodge an appeal with the High Court. Dr Haque lodged an application for special leave to appeal to the High Court on 6 May 2013. On

9 October 2013, Hayne and Crennan JJ dismissed Dr Haque’s application for special leave to appeal (Zahidul Haque v The Queen [2013] HCASL 156).
On 17 May 2013 MARA wrote to Dr Haque indicating that, on the information it had available to it at that time, MARA was considering refusing his application for registration as a migration agent on the ground that he was not a fit and proper person to give immigration assistance. MARA referred to Dr Haque’s conviction in 2004, his conviction in 2012 and the fact that he was sentenced to complete a Community Corrections Order for a period of 12 months with conviction. MARA also expressed concern regarding

Dr Haque’s apparent failure to accept responsibility for his conduct and to provide a frank response about the convictions. MARA invited a response from Dr Haque by no later than 17 June 2013.
Dr Haque responded in a letter dated 6 June 2013 by first stating that the claimed conviction made on 9 March 2004 was not a criminal conviction but rather it was a family law violation. As for the 2012 conviction, Dr Haque said the matter had not been finalised at that stage because he had sought special leave to appeal to the High Court. Special leave was rejected by the High Court 9 October 2013. Dr Haque also raised the issue regarding his state of his mental health but said it would not affect his performance as a migration agent.
In a letter dated 27 June 2013 MARA advised Dr Haque that his application for registration as a migration agent was refused on the ground that he was not a fit and proper person to give migration assistance.
Dr Haque then lodged an application with the Tribunal on 16 July 2013 seeking review of the MARA decision to refuse registration. On 17 April 2014 Member Ermert delivered his decision affirming the decision made by MARA to refuse Dr Haque’s registration as a migration agent. Dr Haque sought review of that decision by the Federal Court.
On 6 February 2015 the Federal Court (Tracey J) ordered that the matter be remitted to the Tribunal for reconsideration according to law. His Honour noted that:
The Tribunal decision dated 17 April 2014 is affected by an error of law as the Tribunal erroneously found that the applicant’s conviction on 9 March 2004 was not a conviction that was spent under Part VIIC of the Crimes Act 1914 (Cth) contrary to section 290(2)(c)of the Migration Act 1958 (Cth).
I heard this matter on 5 November 2015 and allowed both parties to make further written submissions regarding the interpretation of s. 290(2)(h). MARA’s further submissions were lodged with the Tribunal on 19 November 2015. I did not receive any further submissions from Dr Haque.
As Mr J Carroll, solicitor for MARA, said in his further written submissions, the only issues before me are whether Dr Haque is a fit and proper person to give immigration assistance and whether he is a person of integrity for the purposes of s. 290 of the Migration Act. Section 290(1) relevantly provides:
An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:
(a)the applicant is not a fit and proper person to give immigration assistance; or
(b)the applicant is not a person of integrity; or
(c)…
MATTERS WHICH MUST BE TAKEN INTO ACCOUNT
Section 290(2) sets out those matters which must be taken into account when determining whether an applicant is a fit and proper person to give immigration assistance and in determining whether the applicant is a person of integrity. Relevantly, it provides:
(2) In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:
(d)…
(c)any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:
(i) a fit and proper person to give immigration assistance; or
(ii) a person of integrity;
(except a conviction that is spent under Part VIIC of the Crimes Act 1914); and
(d)any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and
(e)…
(h)any other matter relevant to the applicant’s fitness to give immigration assistance.
In its further submissions, MARA referred to the High Court of Australia decision in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 which dealt with the decision of MARA to cancel the registration of a migration agent. MARA submitted that the Tribunal must consider the facts and circumstances which exist at the time it makes its decision. Shi’s case was also concerned with whether Mr Shi was fit and proper person to provide migration assistance. While that case raised questions about whether the Tribunal should take into account information about events which occurred following cancellation of registration, the case before me does not have that complication. As Kirby J said at 299:
When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available.
Kiefel J, although dissenting, perhaps gave the most accurate statement of the Tribunal’s role in the course of a review. Although in the context of a cancellation of registration decision, Kiefel J’s decision regarding the role of the Tribunal is relevant to this matter. Her Honour said, at 330:
It does not limit an assessment of an agent’s integrity and fitness to what has been conveyed by any breaches. There is no reason why the Tribunal’s review should not extend to any information which sheds light upon the presence or absence of the necessary characteristics in the migration agent. The list in s. 290(2) is not exhaustive. There is good reason why the Tribunal should be in a position to consider the most recent material bearing upon the question of an agent’s integrity and their fitness to continue to provide immigration assistance. By this means facts such as the agent’s subsequent conviction for a serious offence could be taken into account. The relevance of such a factor, to the question of an agent’s integrity and fitness, is confirmed by specification in s. 290(2), as a matter which must be taken into account by the Authority in connection with their registration.
There can be no question about the fact that Dr Haque has been convicted of a criminal offence on two occasions. The first time was in March 2004 and the second occasion in August 2012. However, simply having convictions recorded against his name does not necessarily lead to the conclusion that he is not a fit and proper person to give immigration assistance. Clearly a question arises regarding the 2004 conviction and whether it was, at the time he lodged his application for registration as a migration agent, a spent conviction. If it was a spent conviction, the question is whether Dr Haque was required to disclose the circumstances of that conviction at the time he made his application.
Despite Dr Haque’s denials that he was ever convicted of a criminal offence in 2004, a certified extract from the Magistrates’ Court at Sunshine on 9 March 2004 records that

Dr Haque was convicted with Intentionally Cause Injury which occurred at Footscray on

6 February 2004. The court order was as follows:
With conviction, Adjourned to SUNSHINE MAGISTRATES’ COURT on 08/03/2005 at 10:00am.
Accused released upon giving and Undertaking starting on 09/03/2004.
To appear before adjourned date if called upon during the period of adjournment.
Accused to be of good behaviour during the period of adjournment.
TO CONTINUE TO ATTEND DR CSIZMADIA OR HIS NOMINEE AT THE WERRIBEE MERCY HOSPITAL FOR COUNSELLING AND TREATMENT AND TO OBEY ALL HIS LAWFUL DIRECTIONS. TO COMPLY WITH ALL PRESCRIBED MEDICATIONS AS DIRECTED.
That extract also records that Dr Haque pleaded guilty and that he consented to a summary hearing. The Magistrates’ Court made a further order on 8 March 2005 whereby it dismissed the matter on the ground that there had been compliance with a bond/undertaking. The order made on 8 March 2005 also noted that he had pleaded guilty to the offence as charged and then recorded the words STRIKE OUT. As I understand what happened, a conviction was recorded against Dr Haque for the offence of intentionally causing injury. However sentencing was adjourned for a period of 12 months on an undertaking to be of good behaviour and to continue to receive medical treatment and counselling. Upon Dr Haque complying with that undertaking, the matter was then struck out. That simply means that no further sentence was to be imposed on him. The conviction, nevertheless, stands on his record.
The process I have referred to in the preceding paragraph is supported by the Sentencing Act 1991 (Vic) (Sentencing Act). Section 70(1) of the Sentencing Act relevantly provides:
(1) An order may be made under this Division –
(i)to provide for the rehabilitation of an offender by allowing the sentence to be served in the community unsupervised;…
(d)To allow for circumstances in which it is inappropriate to inflict any punishment other than a nominal punishment;….
Additionally, provision is made for release of the offender following conviction. Section 72 of this Sentencing Act relevantly provides:
(1) A Court, on convicting a person of an offence, may adjourn the proceedings for a period of up to 5 years and release the offender on the offender giving an undertaking with conditions attached.
(2) And undertaking under sub-section (1) must have as conditions –
(a)that the offender appears before the court if called on to do so during the period of the adjournment and, if the Court so specifies, at the time when the further hearing is adjourned; and
(b)that the offender is of good behaviour during the period of the adjournment; and
(c)that the offender observes any special conditions imposed by the court.
It should be apparent that Dr Haque was released in accordance with the conditions set out in s. 72(2) of the Sentencing Act. Nevertheless, the conviction remains.
Part VIIC of the Crimes Act 1914 deals with pardons, quashed convictions and spent convictions. Section 85ZL sets out a dictionary which includes:
spent, in relation to a conviction, has the meaning given it in section 85ZM.
Relevantly, s. 85ZM deals with the meaning of conviction and spent conviction in the following ways:
(1) For the purposes of this Part, a person shall be taken to have been convicted of an offence if:
(a)the person has been convicted, whether summarily or on indictment, of the offence;…
(2) For the purposes of this Part, a person’s conviction of an offence is spent if:
(a)the person has been granted a pardon for reasons other than the person was wrongly convicted of the offence; or
(b)the person was not sentenced to imprisonment for the offence, or was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended.
The expression, waiting period, is defined in s. 85ZL as follows:
waiting period, in relation to an offence, means:
(a)if the person convicted of the offence was dealt with as a minor in relation to the conviction – the period of 5 years beginning on the day on which the person was convicted of the offence; or
(b)in any other case – the period of 10 years beginning on the day on which the person was convicted of the offence.
Given that Dr Haque was not a minor, and he was not granted a pardon, his 2004 conviction should be treated as spent on 9 March 2014. Therefore, while his conviction was not spent at the time that he lodged his application for registration as a migration agent on 27 July 2011, it is now spent.
As for the conviction recorded by the County Court on 30 August 2012, Dr Haque’s appeal against that conviction was unsuccessful and special leave to appeal to the High Court was dismissed on 9 October 2013. Therefore, that conviction stands and is not spent at the time of making this decision.
In his further written submissions, Mr Carroll contended that Dr Haque’s subsequent conduct in relation to dealing with the offence was unsatisfactory and was an attempt to mislead MARA and to downplay the offence. He submitted that this was relevant to

Dr Haque’s fitness to give immigration assistance and should be taken into account.

Mr Carroll also submitted that MARA did not invite the Tribunal to consider Dr Haque’s spent conviction.
As for his 2012 conviction, quite plainly that conviction is not spent. I must take that into account in so far as it is relevant to the question of whether Dr Haque is a fit and proper person to provide immigration assistance and whether he is a person of integrity.
FAILURE TO DISCLOSE CONVICTIONS
Dealing first with the failure to disclose the 2004 conviction, Dr Haque’s response to that nondisclosure is cause for concern for at least two reasons. The first is that Dr Haque seems unable, even at the time of hearing this matter, to accept that he was convicted in 2004. While I accept that Dr Haque was admitted to the Werribee Mercy Hospital for treatment between 6 February 2004 and 17 March 2004 with a short break between 19 and 20 February 2004, and therefore it appears that the conviction may have been made in his absence, there can be no doubt that he was provided with a copy of the Court Order because it contained a good behaviour bond and also conditions regarding counselling and treatment.
Despite that, in his written response to MARA’s Statement of Facts and Contentions made on 17 February 2014, Dr Haque said he had no knowledge of his court conviction in March 2004. Furthermore, when first confronted with his conviction by MARA following the lodgement of his application for registration, Dr Haque said the conviction of 9 March 2004 was not a criminal conviction but rather was a matter of family law violation. He described it as a hot conversation between husband and wife which later turned into a small fight. In fact, his wife received a blow to her head which required hospital treatment. Dr Haque attempted to justify his claims stating that if there was a conviction, it was dismissed on 8 March 2005, and that family violence was a very common issue in Australia. In fact the order he produced which was made by the Magistrates’ Court at Sunshine noted that his case was dismissed following compliance with a bond/undertaking. It was not the conviction which was dismissed but rather Dr Haque was discharged from any further sentence. That document nevertheless notes that he pleaded guilty to the offence of intentionally causing injury. Dr Haque’s selective reading of the document is cause for concern.

The second cause for my concern is that Dr Haque maintained this position despite MARA providing him with a copy of an Australian Federal Police certificate which plainly states he was convicted of the offence on 9 March 2004 and that the matter was adjourned to 8 March 2005. Furthermore, I am concerned about Dr Haque’s ability to understand fully the English language. That may be in part why he has continued to maintain that there was no conviction in 2004. He had previously referred to it as a summary of offence. Plainly, the conviction was for a summary offence. That is to be distinguished from a conviction based on an indictment. Nevertheless, Dr Haque then claimed, in February 2014, that he only became aware of his February 2004 conviction in in the course of his trial and subsequent conviction in 2012 on the charge of reckless conduct endangering serious injury. He said that it was only at that time that he remembered he had assaulted his wife in February 2004 and claimed that was his explanation for not accurately providing an answer to question 28 on his initial registration application form.
Unfortunately, Dr Haque’s serious reluctance to accept that he has criminal convictions was once again prevalent following his conviction on 30 August 2012. While he disclosed that conviction to MARA in a letter dated 3 September 2012, he explained that he was appealing the conviction to the Supreme Court. He asked that the decision regarding his application for registration as a migration agent be deferred until the appeal was finalised. He also referred to his conviction as minor. In an email dated 2 May 2013 Dr Haque notified MARA that his appeal to the Supreme Court was unsuccessful but said he was about to appeal to the High Court. In fact, the Court of Appeal of the Supreme Court of Victoria (Priest JA) refused Dr Haque’s application for leave to appeal against his conviction and sentence.
In a letter dated 6 June 2013 to MARA, Dr Haque emphasised that he was convicted on only one of the four charges against him. He then emphasised that the matter had not yet been finalised as it was before the High Court. He then said:
The learned Judge in the Court of Appeal (Supreme Court) found that there was an error in justice due to jury verdict decision.
With respect to Dr Haque, the attachment to his letter to which he referred is a Supreme Court document produced by Judicial Registrar, Mr Mark Pedley. The notice states that the Court of Appeal considered his application for leave to appeal against conviction and sentence by County Court Judge Hicks and noted that his application stood dismissed. Furthermore, the reasons given by Priest JA noted Dr Haque submitted that the problem with the jury verdict was that it was bound to find five elements of the offence under s. 23 of the Crimes Act 1958 (Vic) but it only proved three. Priest J disagreed. He noted that an offence under s. 23 did not require an intention to injure.
Also, Dr Haque referred to Judge Hicks in his sentencing remarks as stating:
I cannot be satisfied beyond reasonable doubt in all the circumstances that it was your intention to injure Mr Alamgir, as distinct from just scaring him or indeed intimidating him.
With respect to Dr Haque, that is not the entire sentence. There is a comma after the word him and the sentence continues: I am satisfied beyond reasonable doubt that you foresaw that there was an appreciable risk of serious injury to Mr Alamgir by your conduct. That is, I am satisfied beyond reasonable doubt that you knew your actions would probably create a real risk of serious injury.
In his 6 June 2013 letter Dr Haque also said that the victim was unharmed and did not suffer any other damages. He seemed to believe that in some way ameliorated the actions he took when driving a car in a dangerous manner towards Mr Alamgir. It certainly does not and in any event, I am bound by the findings made by the various Courts in that matter. I cannot go behind their judgements.
On 27 June 2013 MARA informed Dr Haque that it was satisfied he was not a fit and proper person to provide immigration assistance. Although MARA at that time did not have the results of Dr Haque’s application for special leave to the High Court, special leave was refused 9 October 2013. Therefore, as at the date of hearing this matter,

Dr Haque’s 2012 conviction remained.
FIT AND PROPER PERSON AND PERSON OF INTEGRITY
As I have indicated above, I must take into account Dr Haque’s conviction for a criminal offence if it is relevant to the question whether he is a fit and proper person to give immigration assistance or a person of integrity. While his 2004 conviction is now spent, Mr Carroll submitted I should nevertheless take into account his nondisclosure of that conviction but not anything else to do with the substance of the conviction. On the other hand, I need to examine his 2012 conviction to see whether it becomes relevant in respect of the questions which are raised by s. 290(2)(c) and (h).
The expression fit and proper person encompasses not only a range of matters to be considered, but also the activities to which the expression has been applied. This was explained by the High Court of Australia (Mason CJ, Brennan, Deane, Toohey and Gaudron JJ) in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Toohey and Gaudron JJ said, at 380:
The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
The High Court of Australia (Dixon CJ, McTiernan and Webb JJ) in Hughes and Vale Pty Ltd v The State of New South Wales [No. 2] (1955) 93 CLR 127 said, at 156:
“Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it” – Coke.
Hill J in Stasos v Tax Agents’ Board of New South Wales (1990) 21 ATR 974 dealt with the fit and proper person concept in the context of registration as a tax agent. His Honour made the following relevant statement, at 985:
However, a person who has been shown to be other than a fit and proper person to be registered must satisfy the Tribunal considering his re-registration or cancellation of this registration as the case may be, that he appreciates the significance of his wrongdoing, that he regrets it and that he has rehabilitated himself such that it is truly unlikely that there will be any lapse in the future of the standards which are required of him. The more serious his dereliction from duty the longer may be the time necessary to show this. It will not be sufficient for him merely to express his contrition. The Tribunal must be satisfied on the balance of probabilities that not only is that contrition actually felt, but that he will not again deviate from the high standards required of him as a registered tax agent.
Alternatively, s. 290(1)(b) may be applied. That is, if Dr Haque cannot be described as a person of integrity, he must not be registered as a migration agent. The word integrity is not defined in the Migration Act. Accordingly, it must be given its ordinary meaning in the context in which it appears in that Act. Integrity is defined in the Australian Concise Oxford Dictionary, Third Edition, as: 1 moral uprightness; honesty. 2 wholeness; soundness.
I agree with the submission made by Mr Carroll that I cannot take into account, for the purposes of determining whether Dr Haque is a fit and proper person to give immigration assistance, his spent conviction in 2004. However, I also agree that his failure to disclose that conviction on his application for registration as a migration agent at a time when the conviction was not spent should be considered. Essentially, Dr Haque’s explanation for not disclosing that conviction was that he believed that he had not been convicted.
In fact, Dr Haque’s explanation given prior to August 2015 was that the incident resulted from a domestic argument and that: It was a conviction in relation to Summary of Offence. It was a matter of family law violation. He explained that he was extremely remorseful after the incident and as a result became ill and was admitted to the Western Hospital after which he was transferred to Werribee Mercy Hospital. Dr Haque also referred to an intervention order which was made on 9 March 2004 and concluded that it is unlikely the court would make two separate orders in the same day.
However, in his statement made on 26 August 2015 Dr Haque contended that the charge relating to the assault perpetrated on his former wife was dismissed on 5 April 2005 and therefore the conviction recorded in March 2004 was not effective.
In my opinion, both of the explanations provided by Dr Haque to which I have referred in the preceding two paragraphs are based on a misunderstanding or selective reading of Court Orders. In fact I suspect a misreading rather than a selective reading. I will explain why presently. The Order made on 9 March 2004 plainly states with conviction. That of course is based on a guilty plea which is also stated in the Order. The Order then goes on to state that the matter was adjourned to 8 March 2005 at 10 a.m. and Dr Haque released upon giving to the Court an undertaking to be of good behaviour for the 12 month period of the adjournment. There was a further condition that he attend the Werribee Mercy Hospital for counselling and treatment. In other words, his sentencing was adjourned subject to Dr Haque complying with the conditions set out in the Order. Then, on 8 March 2005, that is 12 months following his conviction, Dr Haque having complied with his good behaviour undertaking and having attended the Werribee Mercy Hospital for counselling and treatment, the adjourned sentencing hearing was struck out. That is set out in the Court Order made on 8 March 2005. It plainly does not set aside the conviction.
I note that in the Respondent’s further submissions dated 19 November 2015, Mr Carroll stated:… the Court appears to have “dismissed” his offence but we contended a finding of guilt remained. Respectfully, this is also a misunderstanding of the effect of the Court Order made on 8 March 2005. The adjourned sentence hearing was dismissed, not the offence. Dr Haque pleaded guilty to the offence and was convicted. I accept that the standard form of Court Order is not particularly enlightening and one needs to read s. 72 of the Sentencing Act in order to fully comprehend the process undertaken.
Although I accept that Dr Haque initially attempted to excuse his failure to record on his application for registration as a migration agent his 2004 conviction on a misguided belief that he had not been convicted, his subsequent error in referring to the Court Order made on 9 March 2004 as being no longer effective due to the dismissal made on 5 April 2005 (sic – 8 March 2005), may be understandable. Mr Carroll, a solicitor, made a similar error. I do not find that Dr Haque intended to mislead MARA in respect of that conviction. He did not consider the matter to be significant and in any event, believed, erroneously, that his conviction had been dismissed or set aside. Nevertheless, I have no doubt that his misunderstanding was strongly influenced by his desire to paint the best possible position to MARA. It also appeared that he was suffering from significant psychological distress at that time and, at least in part, it may have contributed to his confusion.
However, no such confusion arises from Dr Haque’s conviction on the charge of reckless conduct endangering serious injury made on 30 August 2012. In his application for registration as a migration agent lodged on 27 April 2011, Dr Haque accurately recorded that he was the subject of criminal proceedings at that time. In fact, in a letter dated

3 September 2012, Dr Haque wrote to MARA admitting that on 30 August 2012 he had been convicted on one charge and that his sentence was a 12 month community corrections order. He also stated his intention to appeal the conviction to the Supreme Court. Leave to appeal to the Supreme Court was refused on 6 May 2013.
In a letter dated 6 June 2013 Dr Haque informed MARA that: the matter is now at High Court. The learned Judge in the Court of Appeal (Supreme Court) found that there was an error in justice due to jury verdict decision. Although it is true that Dr Haque sought special leave to appeal to the High Court, his understanding of the basis upon which leave to appeal to the Supreme Court was refused is either confused or misleading. His Honour, Priest JA, referred to the stated problem with the jury verdict as being a submission made by Dr Haque. It is not, as Dr Haque said it was, a finding made by Priest JA. Furthermore, his Honour went on to say: This was, in effect, another way of contending that it was reasonably arguable that the verdict is unsafe and unsatisfactory, a proposition with which I cannot agree (Court of Appeal reasons for decision at paragraph 25).
The circumstances of Dr Haque’s offending are set out in the reasons for sentence given by his Honour Judge Hicks. I also had in evidence a statement from the victim of

Dr Haque’s offending, Mr Alamgir. Mr Alamgir and Dr Haque shared a house in 2005. According to Dr Haque, he had lent Mr Alamgir $3000 to assist him to establish a grocery business. Apparently Mr Alamgir left Dr Haque’s house at the end of 2005, taking up his own residence. Mr Alamgir’s wife came from Bangladesh and joined him. According to Dr Haque, they continued their friendship until about 2007 when Mr Alamgir became angry with him for contacting his wife by telephone. He claimed Mr Alamgir punched him in the face after an argument.
However, according to Mr Alamgir, Dr Haque telephoned Mr Alamgir’s wife daily for about a month in 2007. It caused him to have his telephone number changed. After that, according to Mr Alamgir, Dr Haque began to stalk his wife. Dr Haque would appear at playgrounds or parks which she attended and would sit in his car beeping the horn at her but not speaking to her. Mr Alamgir said he spoke with the Footscray police about this but decided not to make a statement hoping that Dr Haque’s behaviour would cease. He said the behaviour did stop in 2007 and, in any event, he and his wife moved to another house and Dr Haque did not know where that was located. However, Dr Haque was aware that Mr Alamgir was studying at Victoria University and was there most days. He had seen

Dr Haque on three or four occasions at the University but was not aware that he was studying at that institution.
On 5 November 2009 Mr Alamgir had parked his car in a slip lane off Geelong Road in Footscray and went to the university. On returning to his car he was about to open the driver’s door when he heard the sound of an oncoming car which he claimed was picking up speed and accelerating towards him. He recognised the car and the driver, Dr Haque. Mr Alamgir thought the car was going to hit him and he jumped back in front of his car’s bonnet to avoid being struck. He was not hit and did not suffer any injuries. Mr Alamgir reported the incident to police. There were two witnesses who gave evidence at his trial, both supporting Mr Alamgir’s account of the incident.
While Judge Hicks in his sentencing remarks accepted that the speed of his car was relatively low and that no one was physically injured by Dr Haque’s actions, nevertheless, they created a risk of serious injury. He noted that conduct endangering a person carries a maximum penalty of five years imprisonment. Nevertheless, his Honour noted that

Dr Haque’s prospects of rehabilitation were reasonably good. Prior to sentencing, Judge Hicks obtained a psychiatric report from Dr Kevin Ong, a consultant psychiatrist. I had a copy of that report in evidence. Relevantly, Dr Ong said:
Rather, it would appear that Mr Haque is a man with obsessional and paranoid traits that have been exacerbated by several events in his life, including the end of his marriage and inability to find work commensurate with his qualifications. This has inflamed a sense of injustice, worsened by what he claims to be a wrongful arrest by police, and the result of embarrassment that this is causing continues to be a source of distress.
Dr Ong also described Dr Haque as having had episodes of depression and that he would benefit from ongoing treatment with an antidepressant.
Dr Haque was sentenced to a Community Corrections Order for a period of 12 months with conviction. In addition to conditions set out under s. 45 of Sentencing (Community Correction Reform) Act 2011, Judge Hicks ordered that a special condition be attached which required Dr Haque to undergo mental health assessment and treatment.
I had in evidence a lengthy and detailed statement made by Dr Haque which is dated

26 August 2015. There were numerous attachments to that statement including what is described as an affidavit of Dr Haque. The content of those documents raises very serious concerns about Dr Haque’s understanding of the basis on which his conviction is founded. Furthermore, his distortion of what was said at his sentencing hearing and his subsequent applications to the Supreme Court and the High Court for leave to appeal either disclose a very serious lack of understanding of the English language or perhaps serious cognitive deficits. No purpose is served in reciting every matter raised by

Dr Haque but some examples need to be put for the sake of understanding my finding.
In his statement of 26 August 2015 Dr Haque said that despite having lodged an appeal to the High Court against the decision of the Supreme Court refusing leave to appeal to that court, and providing to the Tribunal evidence of the appeal to the High Court which he described as the matter is still under judgement at High Court, MARA nevertheless proceeded to make a determination regarding his application for registration as a migration agent on 27 June 2013.
The problem with these statements is that first, the application to the Supreme Court was an application for leave to appeal the County Court decision. Leave was refused and the application dismissed on 6 May 2013. The reasons given by Priest JA make it clear that the submissions made by Dr Haque in the course of the leave to appeal application were not reasonably arguable. That included Dr Haque’s claims that the verdict was unsafe and unsatisfactory; there was procedural unfairness and that the sentence was manifestly excessive. In essence, the reason for refusal of leave was that there were no reasonable prospects of success. On that basis, a special leave application to appeal to the High Court was doomed to fail. The second point is that the application to the High Court was for special leave to be granted which is necessary for an appeal to be lodged. It was not, as Dr Haque said in his statement, that the matter was under judgement by the High Court. The third point is that until such time as an appeal is successful and the judgement or conviction in this case overturned, it stands. Even if an appeal were on foot, that would remain the case.

As for MARA’s decision which is dated 27 June 2013, MARA acknowledged Dr Haque’s claim that the matter was before the High Court at that time. MARA also acknowledged Dr Haque’s claims that the conviction was not justified and that Priest JA found that was an error in justice due to the jury verdict decision. Priest JA referred to that statement which was in fact a submission made by Dr Haque and stated he did not agree with that proposition. His Honour said: For these reasons, it is not reasonably arguable that the verdict is unsafe and unsatisfactory. I would thus refuse leave on grounds 1, 2 and 3.
MARA also took into account Dr Haque’s contention that he did not commit a crime or offence because he had no intention to kill or seriously injure the victim and that such an intention was an essential element of the criminal conviction against him. Priest JA dealt with that contention as there is a heading in his reasons which states: An offence under s. 23 of the Crimes Act 1958 does not require an intention to injure. His Honour said, at [28]:
Indeed, he [Dr Haque] orally submitted on the hearing of this application that the case had not been proved against him because the ‘victim was unharmed’. Plainly, however, actual injury or harm is not an element of the offence.
In his sentencing remarks, Judge Hicks said:
Whilst I cannot be satisfied beyond reasonable doubt in all the circumstances that it was your intention to injure Mr Alamgir, as distinct from just scaring him or indeed intimidating him, I am satisfied beyond reasonable doubt that you foresaw that there was an appreciable risk of serious injury to Mr Alamgir by your conduct. That is, I am satisfied beyond reasonable doubt that you knew your actions would probably create a real risk of serious injury.
Section 23 of the Crimes Act 1958 provides:
A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of serious injury is guilty of an indictable offence.
Penalty: Level 6 imprisonment (5 years maximum).
I have no reason to doubt that Judge Hicks stated the position in the way that he did for the reason that s. 23 of the Crimes Act 1958 simply requires knowledge that a person’s actions would probably create a serious risk of injury. Recklessness simply indicates indifference as to whether conduct would have the consequence described. Intention to injure is clearly not an element of the offence with which he was charged.
Dr Haque also contended that the conduct which led to his conviction was not a crime because the victim was unharmed. Simple logic seems to have evaded Dr Haque. An attempt to kill another person is plainly a crime whether or not the attempt is successful. So too is an attempt to cause serious injury.
Dr Haque then reasoned that because he lodged his application on 27 July 2011 and it was normal practice for MARA to make its decision within four weeks (although he stated no basis or evidence regarding the so-called normal practice), at the time he lodged his application, he had no criminal conviction. While it is correct to say that at the time he lodged his application for registration as a migration agent on 27 July 2011, he had not been convicted of the offence against Mr Alamgir, that is not to the point. MARA, as does the Tribunal, must take into account the circumstances as they exist at the time the decision is made, not at the time the application is lodged.
Dr Haque then made the following statement, which makes no sense whatsoever: The sentencing Judge had accepted the accused person’s pardon and has mentioned that…. Dr Haque went on to quote from the sentencing statement made by Judge Hicks about him being repentant and having apologised to the court. This was in the course of sentencing which is an event that clearly takes place after conviction. Dr Haque then concluded:
Crime Act 1914 section 85ZM(2) states that: (2) For the purpose of this Part, a person’s conviction of an offence is spend if: (a) the person has been granted a pardon for the reason other than that the person wrongly convicted of the offence; or (b) the person was not sentenced to imprisonment for the offence, or… [Errors in original]
Once again, it is difficult to understand the rationale and why Dr Haque has made the statement above regarding the Crimes Act 1914, a Commonwealth statute dealing with the meaning of conviction and spent conviction. Subparagraph (1) deals with the meaning of the word conviction. Subparagraph (2) deals with when a person’s conviction for an offence which is spent. That is what Dr Haque has referred to in the quote set out above. It is, unfortunately, typical of the way in which Dr Haque misstates or misidentifies concepts which he then claims support his position. Not only that, he does not state the provisions in s. 85ZM of the Crimes Act 1914 accurately in any event. For example, subparagraph (2)(b) refers to a person who was not sentenced to imprisonment for the offence for more than 30 months and the waiting period for the offence has ended. It does not state, as Dr Haque claims, simply that the person was not sentenced to imprisonment for the offence. It is difficult for me to determine just why he does so. Whatever the reason, it causes me great concern about his fitness to do the work of a registered migration agent.
In his statement Dr Haque referred to the character test set out in s. 501 of the Migration Act. He pointed out that in order to pass the character test for the purposes of s. 501, the Minister may cancel a visa granted to a person if the person did not pass the character test which is set out in subsection (6). A person does not pass the character test if the person has a substantial criminal record and that includes, in subsection (7), if the person has been sentenced to a term of imprisonment of 12 months or more. While that is undoubtedly correct, the fit and proper person test and whether a person is a person of integrity has no such test. However, a person who has been convicted of a criminal offence is required to disclose that conviction, provided that it is not spent conviction, and the circumstances which gave rise to the conviction may then be examined in order to determine whether that person is a fit and proper person or a person of integrity such that they should be permitted registration as a migration agent.
While Dr Haque submitted that a person who has not been sentenced to a term of imprisonment but rather a community corrections order must necessarily have committed a minor offence, that is incorrect. The reasons for imposing on Dr Haque a community corrections order was clearly stated by Judge Hicks in his sentencing remarks. In particular, Judge Hicks took into account an assessment that he was suitable for such an order and that he had mental health issues. It did not detract from his opinion that

Dr Haque had committed a serious crime. His Honour also took into account the fact that he was not likely to reoffend because the victim had moved to Canada.
I have not taken into account any of the circumstances dealing with Dr Haque’s 2004 conviction because that conviction is now spent. However, I must take into account any other matter relevant to Dr Haque’s fitness to give immigration assistance (s. 290(2) of the Migration Act).
OTHER MATTERS GOING TO FITNESS TO GIVE IMMIGRATION ASSISTANCE
Dr Haque’s psychological state remains of considerable concern to me. It should be apparent from the way which Dr Haque conducted his defence and appeals following the 2012 conviction; and his significant misstatements of the relevant legislation, that he appears to read the legislation only in a manner which supports his case. As a migration agent, he would be required to be able to fully understand the legislation with which he is dealing and to provide accurate and objective advice to clients. The evidence before me certainly does not indicate that Dr Haque is capable of doing so. In fact the psychiatric report to the court provided by Dr Ong refers to Dr Haque as an obsessional individual with paranoid traits tending to hold grudges for perceived slights. In addition to that,

Dr Haque has had episodes of depression and quite possibly needs ongoing treatment. Under those circumstances, serious question are raised about whether Dr Haque is capable of properly performing the functions of a migration agent.
There is one further factor which goes to whether Dr Haque is a fit and proper person to perform the duties of a registered migration agent. That is whether Dr Haque has a sufficient command of the English language to properly perform the duties of a registered migration agent. This concern was raised early in the investigation of Dr Haque’s application for registration by a Case Management Officer and Dr Haque was informed of this concern by letter dated 21 September 2011. The Case Management Officer noted that Dr Haque had not produced evidence of a pass in English at matriculation level where English was the language of instruction at school. The Case Management Officer concluded that Dr Haque had not satisfied the requirement that his English proficiency was equivalent to International English Language Testing System (IELTS) level 7. She suggested that Dr Haque undergo that test or the Internet based Test of English as a Foreign Language (TOEFL).
Based on the voluminous documents Dr Haque has produced for the purposes of his review application, and in particular his reading and apparent misunderstanding of various legislative provisions, I am not satisfied that Dr Haque has sufficient command of the English language to perform the functions of a registered migration agent. Therefore, even if I am wrong about the other concerns I have raised about Dr Haque’s fitness to perform the duties of a registered migration agent, he would nevertheless need to demonstrate a far greater proficiency in use of the English language before his application could be accepted.
The evidence to which I have referred above leads to me to find that Dr Haque is not fit and proper person to be registered as a migration agent.
CONCLUSION
While I have not taken into account the circumstances of Dr Haque’s 2004 conviction, I have found that at the time he lodged his application for registration as a migration agent, that conviction was not spent. Therefore, he was required to disclose the fact of the conviction on his application form. He did not do so. Furthermore, I have found his explanations for not doing so difficult to understand. In attempting to justify not declaring that conviction, Dr Haque’s explanation disclosed a significant lack of understanding of the English language.
As for his conviction in 2012, Dr Haque again misstated the factors he said should be taken into account in ameliorating his conduct. Although he disclosed that conviction to MARA, he attempted to maintain that substantive appeals were on foot to both the Supreme Court of Victoria and the High Court. In fact no substantive appeal proceeded in either court as leave and special leave to appeal were refused. He also sought to claim that his conviction was not for a serious offence, although the penalty for that offence was a maximum of five years imprisonment. Dr Haque attempted to convince me that he had been pardoned by Judge Hicks when, in reality, he merely indicated to his Honour that he was repentant.
I have also taken into account the fact that Dr Haque does have a significant psychological problem. I am not aware if he continues to receive treatment but it seems to me that he probably should. Additionally, it is very clear that Dr Haque does not have a sound grasp of the English language.
I have found that Dr Haque is not a fit and proper person to provide immigration advice. Whether he is a person of integrity also remains questionable. It follows that I find the decision made by MARA on 27 June 2013 refusing Dr Haque’s application for registration as a migration agent was the correct decision. I affirm that decision.

83.

84.

85.

86.

87.

88.

89.     I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

[sgd].......................................................................
Associate
Dated   30 March 2016

Date of hearing 5 November 2015

Date final submissions received 19 November 2015

Applicant In person

Solicitor for the Respondent Ken Powell

Solicitors for the Respondent Clayton Utz

[2016] AATA 186

30 March 2016

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Remedies

Division	GENERAL DIVISION
File Number(s)	2013/3423
Re	Zahidul Haque
APPLICANT
And	Migration Agents Registration Authority
RESPONDENT

Tribunal	Egon Fice, Senior Member
Date	30 March 2016
Place	Melbourne

Date of hearing	5 November 2015
Date final submissions received	19 November 2015
Applicant	In person
Solicitor for the Respondent	Ken Powell
Solicitors for the Respondent	Clayton Utz