Haque and Migration Agents Registration Authority - [2016] AATA 186

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…

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.

Continue reading Haque and Migration Agents Registration Authority

Details

AGLC: Haque and Migration Agents Registration Authority [2016] AATA 186
Case: [2016] AATA 186
Decision Date: 30 March 2016

CaseChat Overview and Summary

The decision in Haque and Migration Agents Registration Authority concerns Dr Haque's application for registration as a migration agent, which was refused by the Migration Agents Registration Authority (MARA). Dr Haque sought judicial review of this decision, challenging its legality, necessity, and proportionality. The case was heard and determined by a court in Australia, where the central issue was whether Dr Haque was a fit and proper person to be registered as a migration agent, in accordance with the Migration Act 1958 (Cth). The court had to assess Dr Haque's fitness based on various factors, including his criminal history, psychological state, and proficiency in English.

The legal issues before the court involved the interpretation and application of the relevant statutory provisions, specifically section 290(2) of the Migration Act, which outlines the criteria for determining fitness to provide immigration assistance. The court also needed to consider the evidence provided by both parties and decide whether the decision made by MARA was lawful, reasonable, and justified. The court examined Dr Haque's past convictions, his understanding of the legal requirements, and the implications of his psychological state on his ability to perform the duties of a migration agent.

The court found that Dr Haque was not a fit and proper person to be registered as a migration agent. This conclusion was based on several factors, including his failure to disclose a 2004 conviction that was not yet spent at the time of his application, his misunderstanding of the legal requirements, and his significant psychological issues. The court also noted that Dr Haque's command of the English language was insufficient for him to perform the duties of a migration agent. The court affirmed the decision of MARA, holding that it was correct and well within its statutory powers.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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

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