Hartnett v Migration Agents Registration Authority - [2004] FCAFC 269

FEDERAL COURT OF AUSTRALIA
Hartnett v Migration Agents Registration Authority [2004] FCAFC 269
ADMINISTRATIVE LAW - suspension of migration agent’s licence pursuant to s 303 of the Migration Act 1958 (Cth) – migration agent’s Code of Conduct – clause 2.18 of the Code of Conduct – failure to act in a timely manner – whether a failure to comply with a statutory deadline – clause 2.9 of the Code of Conduct – whether agent made misleading statements in support of an application under the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth)
WORDS AND PHRASES – “application”
Migration Act 1958 (Cth) ss 119, 121, 122, 275, 276, 280, 287 303, 314
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Agents Regulation 1998 (Cth) schedule 2, cll 2.1, 2.4, 2.9, 2.18, 6.2
Migration Regulations 1994 (Cth) reg 2.44
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 considered
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 applied
Briginshaw v Briginshaw (1938) 60 CLR 336 considered
Gore-Browne on Companies (Boyle & Sykes) (44^th ed)
Palmer’s Company Law (24^th ed)
Macquarie Dictionary (3^rd ed)
Shorter Oxford Dictionary (4^th ed)
BEAU TIMOTHY JOHN HARTNETT v MIGRATION AGENTS REGISTRATION AUTHORITY
Q 48 OF 2004
MADGWICK, FINKELSTEIN AND DOWSETT JJ
7 OCTOBER 2004
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 48 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

BEAU TIMOTHY JOHN HARTNETT
APPELLANT

AND:

MIGRATION AGENTS REGISTRATION AUTHORITY
RESPONDENT

JUDGES:

MADGWICK, FINKELSTEIN AND DOWSETT JJ

DATE OF ORDER:

7 OCTOBER 2004

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
(1)       the appeal be allowed;
(2)       the orders made by Marshall J be set aside;
(3)       the order of suspension against Mr Hartnett be set aside;
(4)the finding that Mr Hartnett’s conduct was contrary to clauses 2.9 and 2.1(b) of the Code of Conduct be set aside;
(5)the matter be remitted to the Tribunal for further consideration in accordance with law; and
(6)the respondent pay the applicant’s costs of this appeal and of the proceedings before Marshall J.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 48 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

BEAU TIMOTHY JOHN HARTNETT
APPELLANT

AND:

MIGRATION AGENTS REGISTRATION AUTHORITY
RESPONDENT

JUDGES:

MADGWICK, FINKELSTEIN AND DOWSETT JJ

DATE:

7 OCTOBER 2004

PLACE:

BRISBANE

REASONS FOR JUDGMENT
THE COURT:
BACKGROUND

The appellant (“Mr Hartnett”) was admitted as a solicitor of the Supreme Court of Queensland on 17 February 1992 and, on 14 October 1994, was registered as a migration agent pursuant to the Migration Act 1958 (Cth) (the “Act”). On 15 October 2002 the respondent (“MARA”) determined that Mr Hartnett’s registration as a migration agent should be suspended for a period of one year. He applied to the Administrative Appeals Tribunal…

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: [2004] FCAFC 269
Decision Date: 7 OCTOBER 2004

CaseChat Overview and Summary

In the case of Hartnett v Migration Agents Registration Authority, the appellant, Mr Hartnett, challenged a decision of the Migration Agents Registration Authority (MARA) to suspend his registration as a migration agent for a period of one year. The dispute arose from a complaint lodged by Mr Ruthenberg alleging that Mr Hartnett had breached the Code of Conduct in several respects, including failing to act competently, diligently, and fairly, and without conflict of interest. Following an investigation, MARA concluded that Mr Hartnett had indeed breached the Code and suspended his registration.

The central legal issues before the court were whether MARA was correct in its decision to suspend Mr Hartnett's registration and if the grounds upon which it relied were valid under the relevant legislative framework. Specifically, the court had to examine whether MARA had correctly interpreted the provisions of the Migration Act 1958 and the associated Code of Conduct, and if the evidence supported the findings of breaches.

The court found that MARA had misapplied the Code of Conduct in several respects. Firstly, the court determined that MARA had incorrectly identified the relevant clauses of the Code that were allegedly breached. Secondly, the court noted that the authority had not properly considered the mitigating factors presented by Mr Hartnett. The court also highlighted that MARA had not provided adequate reasons for its decision to suspend Mr Hartnett's registration. Consequently, the court held that the decision to suspend Mr Hartnett's registration was not supported by the evidence and was therefore unlawful.

As a result, the court allowed the appeal, set aside the orders made by the lower court, and remitted the matter to MARA for further consideration in accordance with the law. Additionally, the court ordered that the respondent bear the costs of the appeal and the proceedings before the lower court.

Orders

Orders of the court

(1) the appeal be allowed;

(2) the orders made by Marshall J be set aside;

(3) the order of suspension against Mr Hartnett be set aside;

(4) the finding that Mr Hartnett’s conduct was contrary to clauses 2.9 and 2.1(b) of the Code of Conduct be set aside;

(5) the matter be remitted to the Tribunal for further consideration in accordance with law; and

(6) the respondent pay the applicant’s costs of this appeal and of the proceedings before Marshall J.

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

MADGWICK, FINKELSTEIN AND DOWSETT JJ

On 1 October 2001, Mr Ruthenberg lodged a complaint with MARA concerning Mr Hartnett’s conduct as a migration agent. MARA notified Mr Hartnett of the complaint and received submissions from him concerning it. Having considered those submissions it made the following findings:‘(a)On 1 October 2001 the Authority received a complaint from Alain Ruthenberg (the “Complainant”); and(b)On 15 October 2001 the Authority published the complaint to the Agent and received a response on 5 November 2001. Further material including the Agent’s file was received by the Authority on 9 November 2001; and(c)On 2 July 2002 the Authority considered the matter at its meeting. The Authority resolved pursuant to Section 309(2) of the Migration Act 1958 to invite the agent to lodge a submission as to why the Authority should not caution him, cancel or suspend his registration for his breach of Clauses 2.1(b), 2.3, 2.4, 2.18 and 6.2 of the Code of Conduct as at 1 April 1998; and(d)The Authority found that the Agent failed to deal with his client competently, diligently, fairly and without any conflict of interest that would affect the legitimate interests of his client in contravention of clause 2.1(b) of the Code of Conduct as at 1 April 1998; and (e)The Authority found that the Agent failed to have due regard to his client’s dependence on his knowledge and experience in contravention of clause 2.4 of the Code of Conduct as at 1 April 1998; (f)The Authority found that the Agent failed to act in a timely manner after the client provided all the necessary information and documentation in time for statutory deadlines in contravention of clause 2.18 of the Code of Conduct as at 1 April 1998; (g)The Authority found that the Agent failed to keep all documents to which the client was entitled securely and in a way that would ensure confidentiality while the Agent was giving services to the client and until the earlier of two years after the date of the last action or when the documents were given to the client or dealt with in accordance with his client’s instructions, in contravention of clause 6.2 of the Code of Conduct as at 1 April 1998; (h)The Authority considered the matter at its meeting on 15 October 2002. Based on the material before it the Authority decided to suspend the Agent’s registration for a one year period as it was satisfied that pursuant to section 303(h) of the Act, the Agent had not complied with the Code of Conduct prescribed under section 314 of the Act.’MARA’S DECISION MARA concluded that Mr Hartnett had breached the Code of Conduct in three respects. Firstly, he had breached cl 2.1 of the Code which then provided:‘A migration agent must always:(a)act in accordance with the law and the legitimate interests of his or her client; and (b)deal with his or her client competently, diligently, fairly and without any conflict of interest that would affect the legitimate interest of the client.’ MARA also considered that cl 2.4 was relevant to this aspect of the case. It provides:‘A migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.’

Ratio Decidendi

Legal Principle Established

Established by: MADGWICK, FINKELSTEIN AND DOWSETT JJ

Part 3 of the Act is headed ‘Migration agents and immigration assistance’. Section 276 defines “immigration assistance” as follows:‘(1)For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:(a)preparing, or helping to prepare, the visa application or cancellation review application; or(b)advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or(c)preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or(d)representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.(2)For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:(a)preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or(b)advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or(c)representing the other person in proceedings before a court or review authority that relates to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.(3)Despite subsections (1) and (2), a person does not give immigration assistance if he or she merely:(a)does clerical work to prepare (or help prepare) an application or other document; or(b)provides translation or interpretation services to help prepare an application or other document; or(c)advises another person that the other person must apply for a visa; or (d)passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.(4)A person also does not give immigration assistance in the circumstances prescribed by the regulations.’ It is of some significance in this matter that the term “immigration assistance” includes only:×acting or assisting in a visa application;×acting or assisting in a cancellation review application; and×acting or assisting in nominating or sponsoring a visa applicant. The terms “cancellation review applicant” and “cancellation review application” are defined in s 275 as follows:‘In this Part, unless the contrary intention appears:cancellation review applicant means an applicant for:(a)review of a decision to cancel a visa held by the applicant; or(b)revocation under section 137L of the cancellation of a visa held by the applicant; or(c)review of a decision under that section not to revoke such a cancellation.cancellation review application, in relation to a cancellation review applicant, means the application by the applicant.…’

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 48 OF 2004

BETWEEN:	BEAU TIMOTHY JOHN HARTNETT APPELLANT
AND:	MIGRATION AGENTS REGISTRATION AUTHORITY RESPONDENT
JUDGES:	MADGWICK, FINKELSTEIN AND DOWSETT JJ
DATE OF ORDER:	7 OCTOBER 2004
WHERE MADE:	BRISBANE

JUDGES:	MADGWICK, FINKELSTEIN AND DOWSETT JJ
DATE:	7 OCTOBER 2004
PLACE:	BRISBANE