Hartnett v Migration Agents Registration Authority - [2004] FCA 50

FEDERAL COURT OF AUSTRALIA
Hartnett v Migration Agents Registration Authority [2004] FCA 50
PRACTICE AND PROCEDURE - appeal under s44 of the Administrative Appeals Tribunal Act 1975 (Cth) – Administrative Appeals Tribunal affirming decision of Migration Agents Registration Authority – whether notice of appeal complies with the requirements of Order 53 rule 3 of the Federal Court Rules – what constitutes a question of law
ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal - review of decision of Migration Agents Registration Authority – suspension of migration agent’s registration – breach of Code of Conduct – whether response to Notice of Intention to Cancel business visa is an “application” – whether alleged question of law assumed particular construction – relevance of alleged recommendation by conduct advisory panel – whether consideration of the recommendation a question of fact – whether adequate reasons given – whether the reasoning process for reaching conclusions and findings of material questions of fact was exposed – level of satisfaction required for finding breach of Code of Conduct
Migration Act 1958 (Cth) ss 303(h), 314
Administrative Appeals Tribunal Act 1975 (Cth) s44
Migration Regulations 1994
Migration Agents Regulations 1998
Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232, applied
Australian Securities and Investment Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244; (2003) 202 ALR 450, applied
Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143, referred to
Franks v Secretary, Department of Family and Community Services [2002] FCAFC 436; (2002) 125 FCR 212, applied
Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206, followed
Briginshaw v Briginshaw (1938) 60 CLR 336, referred to
BEAU TIMOTHY JOHN HARTNETT v MIGRATION AGENTS REGISTRATION AUTHORITY
Q130 OF 2003
MARSHALL J
16 FEBRUARY 2004
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 130 OF 2003

BETWEEN:

BEAU TIMOTHY JOHN HARTNETT
APPLICANT

AND:

MIGRATION AGENTS REGISTRATION AUTHORITY
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

16 FEBRUARY 2004

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.

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 130 OF 2003

BETWEEN:

BEAU TIMOTHY JOHN HARTNETT
APPLICANT

AND:

MIGRATION AGENTS REGISTRATION AUTHORITY
RESPONDENT

JUDGE:

MARSHALL J

DATE:

16 FEBRUARY 2004

PLACE:

BRISBANE

REASONS FOR JUDGMENT

The applicant, Mr Beau Hartnett, has appealed from a decision of the Administrative Appeals Tribunal (“the AAT”) made on 7 August 2003, affirming a decision of the respondent, the Migration Agents Registration Authority (“the Authority”) to suspend his registration as a migration agent for one year.
Factual background
The following factual background may be discerned from the findings of fact made by the AAT.
Mr Hartnett is a solicitor and a registered migration agent. One of his former clients was Mr Alain Ruthenberg. Mr Ruthenberg is a citizen of Brazil who retained Mr Hartnett’s services with respect to an application for a…

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.

Keep reading for free

Create a free CaseChat account to read Hartnett v Migration Agents Registration Authority and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] FCA 50
Decision Date: 16 FEBRUARY 2004

CaseChat Overview and Summary

In the case of Hartnett v Migration Agents Registration Authority, the applicant, Mr Beau Hartnett, sought to appeal a decision of the Administrative Appeals Tribunal affirming a decision of the Migration Agents Registration Authority to suspend his registration as a migration agent for one year. The suspension arose from his handling of a client's visa application and subsequent advice that may have breached the Code of Conduct for migration agents.

The primary legal issue before the court was whether the Authority's decision to suspend Mr Hartnett's registration was lawful and justified under the Migration Agents Regulations 1998. Specifically, the court needed to determine if Mr Hartnett had breached the Code of Conduct by acting in a manner that was not in the lawful interests of his client, Mr Alain Ruthenberg, and whether such a breach warranted the severe penalty of suspension.

The court examined the evidence and the AAT's findings, which included that Mr Hartnett had failed to advise his client of all viable options for obtaining a visa and had not acted diligently in ensuring that the client's visa application was processed within statutory deadlines. The court found that Mr Hartnett's conduct fell short of the expected professional standards, particularly in failing to act in the lawful interests of his client and not ensuring timely submission of the visa application. The court upheld the AAT's decision, affirming that the suspension was a proportionate response to the breaches identified.

The court dismissed the appeal and ordered that the appeal be dismissed with costs. This decision reinforces the importance of migration agents adhering to the Code of Conduct and acting in the best interests of their clients.

Orders

Orders of the court

1. The appeal be dismissed with costs.

Background

Background to the litigation

The applicant, Mr Beau Hartnett, has appealed from a decision of the Administrative Appeals Tribunal (“the AAT”) made on 7 August 2003, affirming a decision of the respondent, the Migration Agents Registration Authority (“the Authority”) to suspend his registration as a migration agent for one year.Factual background The following factual background may be discerned from the findings of fact made by the AAT. Mr Hartnett is a solicitor and a registered migration agent. One of his former clients was Mr Alain Ruthenberg. Mr Ruthenberg is a citizen of Brazil who retained Mr Hartnett’s services with respect to an application for a temporary business entry long stay visa (“the business visa”). The application was approved on 1 June 1999, on the basis that Mr Ruthenberg’s employer, Saxby Bridge, was approved as his business sponsor. Ms Buttigieg-Pocock, at all material times, was a law clerk employed by Mr Hartnett’s firm. She became a registered migration agent on 5 March 2001. She worked under the supervision of Mr Hartnett during the period January 2000 to 3 September 2001. In a proposal dated 10 January 2000, provided by Mr Ruthenberg to Mr Hartnett, a joint venture was suggested between Mr Ruthenberg and Mr Hartnett’s firm, Haynes Hartnett. Concerning that proposal, the AAT said that:“That document refers to Mr Ruthenberg entering into agency agreements with schools and universities and the fact that Mr Ruthenberg would be entitled to earn commission from the university in which the student was enrolled.” As at 10 February 2000, Mr Hartnett was aware that Mr Ruthenberg held agency agreements with Bond University and Gold Coast Institute of Technology, with respect to the recruitment of international students. On 17 February 2000, Ms Buttigieg-Pocock met with Mr Ruthenberg and gave him a letter dated that day, which Mr Ruthenberg had requested, to assist his endeavours in locating another employer to take over his sponsorship for the purposes of his business visa. On 18 February 2000, Mr Hartnett and Ms Buttigieg-Pocock attended a meeting with Mr Ruthenberg. At that point in time, both Ms Buttigieg-Pocock and Mr Hartnett were aware that Mr Ruthenberg had established a business as an education agent and that he wished to apply for a skilled independent visa. They spoke with Mr Ruthenberg about his intention to leave his employment with Saxby Bridge. They also discussed the option of transferring his sponsorship to another approved employer or enrolling at university to procure qualifications to enable him to apply to remain permanently in Australia. On 7 March 2000, Ms Buttigieg-Pocock had a telephone conversation with Mr Ruthenberg in which she referred to the possibility of him applying for a student visa to enable him to leave Saxby Bridge and resuming studies. On 13 March 2000, Mr Ruthenberg telephoned Ms Buttigieg-Pocock. He told her that he had not worked for Saxby Bridge since 9 March 2000 and that Saxby Bridge wanted a formal letter of resignation from him. He was advised to defer his resignation as long as possible to find a new sponsor or apply for a temporary student visa.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MARSHALL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

Section 314 of the Act provided that:“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 Code of Conduct is found in Sch 2 to the Migration Agents Regulations 1998. So far as is material, it provides as follows:“Part 1 Introduction 1.1The Code is intended to regulate the conduct of migration agents. 1.2 The Migration Agents Registration Authority (the Authority) is responsible for administering the Code.1.3 A person who wants to operate as a migration agent must register with the Authority. 1.4 The Code applies to an individual who is listed in the Register of Migration Agents kept by the Authority under section 287 of the Migration Act 1958 (the Migration Act ).1.5 To ensure compliance with the Code, the Authority may impose an administrative sanction if a breach of the Code is found to have occurred.1.6 An administrative sanction may range from a warning through to suspension of registration or the ultimate sanction of cancellation of registration.1.7 Accordingly, the Code does not impose criminal sanctions.1.8 However, there are a number of offences under the Migration Act and the Migration Regulations 1994 (the Migration Regulations) that also deal with the kind of activity covered by the Code. These activities include misleading statements and advertising, practising when unregistered and misrepresenting a matter. Provisions of the Crimes Act 1914 and the Trade Practices Act 1975 may also apply to these activities.1.9 The Code is not intended to displace any duty or liability that a migration agent may have under the common law, or the statute law of the Commonwealth, a State or a Territory, in relation to a matter covered by the Code. The provisions of the Code should be read in the light of this principle.1.10 The aims of the Code are:(a) to establish a proper standard for the conduct of business as a migration agent;(b) to set out the minimum attributes and abilities that a person must demonstrate to perform as a migration agent under the Code, including:(i)being of good character; (ii)knowing the provisions of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, in sufficient depth to offer sound and comprehensive advice to a client, including advice on completing and lodging application forms; (iii)completing continuing professional development as required by the Migration Agents Regulations 1998; (iv) being able to perform diligently and honestly; (v)being able and willing to deal fairly with clients; (vi)having enough knowledge of business procedure to conduct business as a migration agent, including record keeping and file management;(vii)properly managing and maintaining client records; (c) to set out the duties of a migration agent to a client, an employee of the agent, and the Commonwealth and its agencies; (d) to set out requirements for relations between agents; (e) to establish procedures for setting and charging fees by migration agents; (f) to establish a standard for a prudent system of office administration; (g) to require a migration agent to be accountable to the client; (h) to help resolve disputes between a migration agent and a client.1.11 The Code does not list exhaustively the acts and omissions that may fall short of what is expected of a competent and responsible migration agent. 1.12 However, the Code imposes on a migration agent the overriding duty to act at all times in the lawful interests of the agent's client. Any conduct falling short of that requirement may make the agent liable to cancellation of registration. 1.13 If a migration agent has a contract in force with a client that complies with this Code, but the Code is amended in a way that relates to the content of the contract:(a) the agent is not in breach of this Code solely because the contract does not comply with the amended Code; but (b) the agent must do everything practicable to vary the contract to ensure that it complies with the amended Code. Part 2 Standards of professional conduct 2.1 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 and fairly.…2.4 A migration agent must have due regard to a client's dependence on the agent's knowledge and experience.…2.9 While a migration agent cannot be responsible for misinformation provided by a client, an agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.…2.18 A migration agent must act in a timely manner if the client has provided all the necessary information and documentation in time for statutory deadlines. For example, in most circumstances an application under the Migration Act or Migration Regulations must be submitted before a person's visa ceases to be in effect.”The conduct

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 130 OF 2003

BETWEEN:	BEAU TIMOTHY JOHN HARTNETT APPLICANT
AND:	MIGRATION AGENTS REGISTRATION AUTHORITY RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	16 FEBRUARY 2004
WHERE MADE:	BRISBANE

JUDGE:	MARSHALL J
DATE:	16 FEBRUARY 2004
PLACE:	BRISBANE