Howard and Migration Agents Registration Authority - [2002] AATA 1249

DECISION AND REASONS FOR DECISION [2002] AATA 1249

ADMINISTRATIVE APPEALS TRIBUNAL ) No N2001/1637; N2002/266

)

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MARGARET HOWARD
  Applicant
           And    MIGRATION AGENTS REGISTRATION AUTHORITY
  Respondent

DECISION

Tribunal Ms G Ettinger – Senior Member

Date5 December 2002
PlaceSydney

Decision      File N2002/266 The Tribunal affirms the decision under review being the decision made on 14 February 2002 by the Migration Agents Registration Authority to refuse the Applicant, Miss Margaret Howard's application for registration as a migration agent. File N2001/1637 It is noted that the decision of the Migration Agents Registration Authority of 23 October 2001 to cancel Miss Margaret Howard's registration as a migration agent lapsed on 26 October 2001. That application is dismissed. File N2001/1637; N2002/266 The application, (dealt with in a separate decision, Howard and Migration Agents Registration Authority [2002] AATA 1245 to have Miss Margaret Howard's identity made confidential for purposes of publication pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 is refused.
  [SGD] Ms G Ettinger
  Senior Member
CATCHWORDS
Migration agent – registration –– cancellation of registration – refusal to register Applicant as a migration agent – Applicant failed to comply with designated clauses of the relevant Codes of Conduct for migration agents – Applicant failed to comply, whether such failure is sufficient to warrant cancellation of registration – Applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance - decision affirmed.

Legislation
Migration Act 1958 – ss 4, 290, 303, 314
Migration Agents Regulations 1998 – Schedule 2 Code of Conduct (as at 1 August 1996, 1 April 1998 and 1 July 2000)

Case Law
Howard and Migration Agents Registration Authority [2002] AATA 1245
Howard v Migration Agents Registration Authority [2001] AATA 978
Briginshaw v Briginshaw (1938) 60 CLR 336
De Vere and Migration Agents Registration Board (AAT 13278, 11 September 1998)
Hakaoro and Minister for Immigration and Multicultural Affairs [1998] 26 AAR 534
Hughes and Vale Pty Ltd and Anor v State of New South Wales and Ors [No.2] (1955) 93 CLR 127
Sosrohadipoespito and Migration Agents Registration Authority [2001] AATA 293
Lilienthal and Migration Agents Registration Authority (2001) 66 ALD 249; (2002) 34 AAR 371
Griffiths and Migration Agents Registration Authority [2002] AATA 247
Story v National Companies & Securities Commission (1988) 13 NSWLR 661
Cunliffe and Anor v Commonwealth of Australia (1944) 182 CLR 272
Re Peng and Department of Immigration and Multicultural Affairs (AAT 12543, 19 January 1998)
ReLachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Hughes and Vale Pty Ltd and Anor v the State of New South Wales and Ors (No2) (1955) 93 CLR 127
Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321
Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 34 ALD 324

REASONS FOR DECISION

5 December 2002 Ms G Ettinger – Senior Member

BACKGROUND

The matters for review before the Administrative Appeals Tribunal ("the Tribunal") were:

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 Howard and Migration Agents Registration Authority

Details

AGLC: Howard and Migration Agents Registration Authority [2002] AATA 1249
Case: [2002] AATA 1249
Decision Date: 5 December 2002

CaseChat Overview and Summary

In the case of Howard and the Migration Agents Registration Authority, the primary issue before the court was whether the refusal to register the applicant, Miss Margaret Howard, as a migration agent should be affirmed. Miss Howard, a former solicitor, had applied for registration as a migration agent but faced allegations of unprofessional conduct, including a failure to comply with the Migration Agents Code of Conduct and the Migration Act. The central legal issue was whether Miss Howard's alleged breaches of conduct and integrity warranted the cancellation of her registration as a migration agent. The court needed to evaluate the credibility of the evidence and determine if her actions were sufficiently serious to justify such a severe penalty.

The court considered the evidence provided during the hearing, including oral testimonies from Miss Howard, the complainant Ms Roubina Tangherian, and other witnesses. The court scrutinised the nature and extent of Miss Howard's alleged breaches, her explanations for these actions, and the character references provided on her behalf. The court also examined the statutory requirements and the standards of conduct expected of registered migration agents. Ultimately, the court had to balance Miss Howard's long and otherwise unblemished career against the seriousness of the alleged breaches to determine whether her registration should be cancelled.

The court concluded that Miss Howard's failure to comply with certain clauses of the Migration Agents Code of Conduct, as well as her lack of timely responses to inquiries from the Migration Agents Registration Authority (MARA) and the complainant, demonstrated a lack of integrity and unfitness to be a registered migration agent. The court found that the seriousness of these breaches, coupled with the statutory requirements for maintaining high standards of conduct, warranted the cancellation of her registration. The court affirmed the decision of MARA to refuse registration, emphasising the importance of maintaining public confidence in the migration agent profession.

The final orders of the court affirmed the decision of the Migration Agents Registration Authority to refuse registration to Miss Margaret Howard as a migration agent. The court found that the evidence supported the conclusion that Miss Howard's conduct was not in accordance with the standards required for registration, and thus upheld the decision to deny her application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Oral evidence was given at the Hearing by the Applicant Miss Howard, Mr Richard Fitzgerald, private investigator and friend of the Applicant, Ms Roubina Tangherian, the Complainant, and Ms Yolanda Sarkassian, solicitor, and sister of the Complainant.evidence of miss margaret howard – the applicant Miss Howard whose date of birth is 19 February 1931, and whose statutory declarations were before the Tribunal at T40 and PT47 (dated 11 December 2000), PT95 (3 October 2001), gave oral evidence before the Tribunal on oath. She has been a legal practitioner since 1964, and her Practising Certificate expired on 30 June 2001. Miss Howard told me in her evidence that she commenced doing migration work shortly after her marriage and the adoption of her two children from India in 1974 and 1978. She said that she obtained registration as a migration agent in 1992 or 1993 when it first became necessary to do so. Miss Howard told me that she first met the Complainant in this matter, Ms Roubina Tangherian before Christmas in December 1996 when Ms Tangherian was in Australia on a visit. I was mindful that the evidence regarding the introduction to Miss Howard was one of the many occasions during this Hearing where several versions of the same situation were given. As it happens nothing turns on whether Ms Tangherian saw notices regarding Miss Howard's practice at the Sydney Opera House where Miss Howard said that she put them, or whether she came to seek her advice as a result of some other source of information. Miss Howard's evidence was that she recollected that Ms Tangherian wanted to emigrate from England to Australia with her son because Ms Tangherian's mother had remarried, and now lived in Australia. Miss Howard recalled that Ms Tangherian attended at her office accompanied by another person whom she now knew to be the Complainant's sister. Miss Howard said that she advised Ms Tangherian that as a beautician, the way to gain entry to Australia would be by way of a sponsorship, because that occupation was not on the list of "skills" in which Australia otherwise required immigrants. Miss Howard said that she did not have any salon in particular in mind because she did not attend beauty salons. She said however that she would introduce Ms Tangherian to Mr Richard Fitzgerald as he had contacts, and indeed called him on his mobile telephone on that occasion. There was no dispute between the parties that Mr Fitzgerald was present at that first meeting between Miss Howard, the Complainant and her sister. Miss Howard denied categorically that Mr Haege (said to be a stockbroker and director of Fuss beauty salons), was present at that meeting, a stance she maintained right throughout the hearing. She said that after she had introduced Mr Fitzgerald, she had not taken part in further conversation, but thought that he would have told Ms Tangherian that he would assist with finding a sponsor. When asked whether that was the normal way of locating a sponsor, Miss Howard said that Ms Tangherian was her first client after being licensed, and that she had not done a job in this way before or since.

Decision

Reasons for decision

In summary, the character references were all obtained in connection with the Tribunal Hearing, and dated in 2002. They predictably spoke well of Miss Howard. Some of the persons had had professional contact with Miss Howard, and the majority of those who mentioned her work stated that the actions complained of were out of character with what they knew of Miss Howard, and her integrity and professionalism. They can be given certain weight, but I was mindful of my duty to consider the totality of the evidence, and consider whether Miss Howard had breached the Migration Agents Code of Conduct and the Act.SUBMISSIONS AND CONCLUSIONS I must take into account all the evidence, submissions, relevant legislation, the Migration Agents Code of Conduct and relevant case law to make the correct and preferable decision regarding whether the refusal of Miss Howard's registration as a migration agent should be affirmed, set aside or varied. In considering the parties' closing submissions, I was mindful that the representatives for both parties submitted, and it was clear that the evidence before me, consisted of very different versions of events relating to the complaints of Ms Tangherian. I moved then to consider the general submissions made on behalf of the parties before moving to specific points which I have dealt with under separate headings. Ms Tzannes submitted that Miss Howard had been a solicitor for more than thirty years with an unblemished record, and that should she be found not to be a fit and proper person for purposes of registration as a migration agent, then the Law Society would also be dealing with her registration as a legal practitioner. I was mindful in considering that submission, that I was charged with considering alleged breaches of the Migration Act and Migration Agents Code of Conduct, and that any dealings with the Law Society were a separate issue, and are conducted in a different forum. However Ms Tzannes undertook during the Hearing, to contact the New South Wales Law Society to ascertain the current status of Miss Howard's registration with that body. I was then informed that payment of the registration which had lapsed on 30 June 2001, was to be made by a third party, a finance provider, and that on payment of that fee, a renewed Practising Certificate would issue. Ms Tzannes conceded that Miss Howard's conduct in relation to Ms Tangherian in not replying to Ms Tangherian had been less than perfect, and at best a misunderstanding, but not warranting a cancellation of her registration as a migration agent, which had effectively occurred after October 2001. Ms Tzannes submitted on behalf of Miss Howard that her lack of timely responses to MARA and to solicitors for Ms Tangherian "would not win a best practice award", but that it was not without explanation: Ms Tzannes submitted that at worst it might have been a "head in the sand" attitude in a long and unblemished career. To delay was not a hanging offence, and at worst, a caution or suspension might be the appropriate penalty she submitted. Ms Tzannes submitted that Miss Howard had been truthful and had admitted her mistakes. She submitted that it would be a personal tragedy if at the end of a long and unblemished career, Miss Howard was unable to be registered as a migration agent. She submitted that Miss Howard had suffered considerably, including by way of loss of reputation and loss of income since the decision of MARA in October 2001.

Ratio Decidendi

Legal Principle Established

When asked at what date she considered she had been instructed to act for Ms Tangherian, Miss Howard said that it was after the letter dated 2 July 1997 from Fuss Salons. It was pointed out that this contradicted the contents of the letter at T6/80 dated 12 March 1997 in which Miss Howard had written as follows to Ms Tangherian: "Dear Madam.Re Immigration to Australia – yourself and your son.The writer is in receipt of your fax dated 6 February 1997.We have spoken to your Sponsors at great length and they are prepared to sponsor you to come to Australia and obtain residency for your son and yourself.The writer has been in touch with the relevant Immigration sources and has received directions.Kindly remit your cheque for $A5,000 that represents our fee. Further fees are payable to the Immigration Department with your application and that or your son.We will advise the amount required by the Department when all the information is to hand to enable the application forms to be completed and forwarded to your for signature.Yours faithfully,M.E. Howard & Co" Miss Howard told me that the $5,000 referred to in the letter at T6 was probably the fee for Mr Fitzgerald as she would not normally have charged that amount, rather approximately $2,000 or $2,500. Miss Howard said that she did not consider herself instructed by Ms Tangherian by way of the letter of 12 March 1997, because she said the client had first to agree. In that regard, I noted that there was at T9/84, a letter of authority for Miss Howard to act which was signed by Ms Tangherian, but not dated. When questioned in cross-examination by Ms Hamer why Mr Fitzgerald had not been mentioned in the correspondence to Ms Tangherian of 12 March 1997, Miss Howard replied that Mr Fitzgerald ran his own business and that he would not have been involved until the letter from Fuss Salons issued on 2 July 1997. When questioned about her migration practice and its reference resources, Miss Howard replied that she had Butterworths Service from 1993-1996 or possibly 1997/98, and that the Law Book Company ("LBC") had since become available in the past 12 months, [electronically], but that she had not yet used it. She said that she had not yet had instruction about how to use it. Miss Howard also said that she had the Ministerial Services Instructions ("MSI") but had not bought the Procedures Advice Manual ("PAMS"). Miss Howard told me that from 1998, the departmental website was her main resource for the migration practice. Ms Howard was aware that MARA had instructed migration agents in early 2002 that they were required to have the MSI and PAMS. When questioned regarding her knowledge of the Migration Agents Code of Conduct, Miss Howard said that she kept it in her office reception as required, and notwithstanding it changed annually, she read it from time to time, and was required to keep up to date because to maintain her Practising Certificate as a solicitor, she had to complete 10 Mandatory Continuing Legal Education ("MCLE") points a year, and a further 10 points for her registration as a migration agent. Miss Howard also told me that she done a University of New South Wales Continuing Legal Education course "Australian Immigration Law and Practice" in March 1997 and received a distinction (Exhibit A1). She had undertaken the examination at the end of the course even though it had not been mandatory as part of completing the course she said.