Howard and Migration Agents Registration Authority - [2001] AATA 978

DECISION AND REASONS FOR DECISION [2001] AATA 978

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1637

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

DECISION

Tribunal Ms G Ettinger Senior Member

Date30 November 2001
PlaceSydney

Decision        A stay of the decision of the Migration Agents Registration Authority dated 23 October 2001 is granted with the following conditions: That Ms Margaret Howard only give migration advice and assistance subject to the supervision of Mr Harold Baker, solicitor, providing Mr Baker remains a registered Migration Agent and is willing and able to give such supervision; That Ms Margaret Howard submit all files concerning migration matters to Mr Harold Baker to be inspected and countersigned before matters are lodged or advice is given;   That Mr Baker have access to Ms Howard's files and supervise and countersign all transactions related to incoming money or expenditure of migration clients' money; and That Ms Howard inform Mr Baker in full about her clients. Liberty to apply.
  [SGD] Ms G Ettinger
  Senior Member
CATCHWORDS
Stay of decision of MARA - migration agent - licence cancelled - stay to be granted with conditions

LEGISLATION
Administrative Appeals Tribunal Act 1975 s 41(2)
Migration Act 1958 s 303
Migration Agents Regulations 1998 Schedules - Code of Conduct clauses 5, 23 and 28A (as at 1 August 1996), clause 8.1 (as at 1 April 1998) and clauses 2.3, 6.3 and 9.3 (as at 1 July 2000)

CASES
Re Wang and Migration Agents Registration Board (AAT 10821, 1 March 1996)
Re Artemis and Australian Postal Corporation (1998) 27 AAR 60
Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65
Re Repatriation Commission v Delkou (1985) 8 ALD 454
Re Dekanic and Tax Agents' Board of New South Wales (1982) 6 ALD 240
Re Middle Harbour Investments Lt (In liq) (NSW Court of Appeal, 15 December 1976, unreported)
Alexander and Ors v Cambridge Credit Corporation Ltd and Anor (1985) 2 NSWLR 685

REASONS FOR DECISION

30 November 2001 BACKGROUND Ms G Ettinger - Senior Member

The matter before the Administrative Appeals Tribunal ("the Tribunal") was the application by Ms Margaret Howard, the Applicant in these proceedings, for a stay pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), of an order of the Migration Agents Registration Authority ("MARA"), the Respondent, dated 23 October 2001. In that order, MARA, pursuant to section 303(a) of the Migration Act 1958 ("the Migration Act"), cancelled the Applicant's registration as a Migration Agent, by removing her name from the register of Migration Agents, as it was satisfied pursuant to section 303(h) of the Migration Act that Ms Howard had not complied with the Code of Conduct for Migration Agents applicable from time to time. Further, MARA was satisfied pursuant to section 303(f) of the Migration Act, that Ms Howard was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance. The decision was notified to the Applicant by a letter dated 23 October 2001. Ms Howard subsequently lodged an application to the Tribunal for review of that decision made by MARA.
At the stay hearing the Applicant, Ms Howard, was represented by Mr T Nyman, solicitor, and the Respondent, MARA, was represented by Ms S Hamer of the Australian Government Solicitor. Ms Howard gave oral evidence on affirmation.
LEGISLATIVE CONTEXT
The relevant legislation in this matter is section 41(2) of the AAT Act, and the Migration Act 1958, in particular sections 303(a), 303(f), 303(h), and the Code of Conduct for Migration Agents under the Migration Agents Regulations 1998 ("the Code of Conduct"). As relevant they follow.
Section 41(2) of the AAT Act provides:
"The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review."
The relevant provisions of section 303 of the Migration Act provide:
"303. Discretionary cancellation or suspension of registration etc
The Migration Agents Registration Authority may:
(a) cancel the registration of a registered agent by removing his or her name from the register; or
…
if it becomes satisfied that:
…
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
…
(h) the agent has not complied with the Code of Conduct prescribed under section 314.
Note: If the Migration Agents Registration Authority is considering cautioning a registered agent, or suspending or cancelling a registered agent's registration, it must invite the registered agent to make a submission. See sections 309 and 310."
The relevant clauses of the Code of Conduct provide:
[As at 1 August 1996]
"5. On all occasions a migration agent must act in accordance with the law and the legitimate interests of his or her client.
…
23. There is no statutory scale of fees. Nonetheless, an agent is expected to set a fee that is reasonable in the circumstances of the case. A migration agent must provide a statement of fees at the start of work for a client in the form of charges per hour, or per particular service and an estimation of likely time to be taken in performing a service. An agent:
·should not carry out work in a manner that unnecessarily increases his or her cost to the client;
·should, where outside expertise is to be engaged and the client agrees, fully inform the client of the likely extra cost;
·should, especially if a solicitor or barrister, warn clients of possible delays and likely cost involved in pursuing a particular course of action before tribunals and in the courts, for example:
·any need to engage and pay expert witnesses;
·the need to meet legal costs if a case were lost;
·the need to pay Department fees.
…
28A. An agent must keep records of the clients' account, including:
·the date and quantum of each deposit made to the clients' account, including an indication of the purpose of the deposit and the client on whose behalf the deposit is made; and
·each withdrawal made from the clients' account; and
·receipts for any payment made by the client to the agent; and
·copies of invoices or accounts rendered in relation to the account.
An agent must make the records of the clients' account available for inspection on request by the Migration Agents Registration Board.
[As at 1 April 1998]
8.1 A migration agent has a duty to exercise effective control of his or her office for the purpose of giving immigration advice and assistance.
[As at 1 July 2000]
2.3 A migration agent's professionalism should be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.
…
6.3 A migration agent must respond to a request for information from the Authority within a reasonable time specified by the Authority.
…
9.3 If the Authority gives a migration agent details of a complaint made to the Authority about:
(a) the work or services carried out by the agent or the agent's employees; or
(b) any other matter relating to the agent's compliance with this Code —
the agent must respond properly to the Authority, within a reasonable time specified by the Authority when it gives the details to the agent."
Comprehensive documents lodged pursuant to section 37 of the AAT Act by the Respondent ("T-documents"), were received by me after the commencement of the hearing, and referred to by the parties in the course of their submissions.
BACKGROUND FACTUAL MATERIAL
By way of background, I noted from the submissions of the parties that Ms Margaret Howard was admitted as a solicitor on 29 May 1964, she commenced her own legal practice at Hornsby in 1967, and that she obtained a Certificate of Registration as a Migration Agent in 1993.
It appeared from the documentation, that the Complainant, Mrs Ruby Tangherian, met Ms Howard while she was on holidays in Australia, and subsequently engaged the services of the Applicant from London, by facsimile dated 6 February 1997 (T6). A retainer of $5,000 was lodged with the Applicant on 28 April 1997 (T7). This was paid into an ANZ "Business Classic Cheque" account. The details of expenditure on this account, appear at T11. The Complainant withdrew her instructions on 15 June 1998 (T18), writing as follows:
"…and find the situation quite unsatisfactory. After a prolonged period of time, no real progress has been made. … My attempts to communicate with you have been totally unsatisfactory…"
Ms Howard wrote on 30 June 1998 to Mrs Tangherian and told her that she was preparing an itemised account, expected to be completed within the next 14 days from that date (T19). It appeared to me that no such account had ever been issued.
After some correspondence between the parties, a complaint was made to the NSW Law Society, which in turn referred the matter to MARA on 4 May 2000 (T30). I noted, amongst other matters, from a letter of MARA to the Applicant, dated 20 July 2001 (T74), that Mrs Tangherian's file could not be located when it was first called for during 2000. MARA, also in its letter of 20 July 2001, referred to a previous request to the Applicant for various documents related to the complaint. Clearly they had not been provided.
A letter at T75 from Mr R Kessels, solicitor for the Applicant at that time, to MARA, dated 27 July 2001, indicated amongst other things, that the Applicant acknowledged she had breached the provisions of the Code of Conduct in some respects, and accepted that that was wrong. He added:
"The agent realises that she should have made a greater effort to provide MARA with the information about the ANZ account that MARA had requested in their letter of 1 November 2000. The agent' s affairs have been in some disarray and she sincerely apologises to MARA for not locating and providing the information earlier and accepts that it was bad judgment on her part not to do so …"

EVIDENCE OF MS HOWARD

Ms Howard gave brief evidence on affirmation, mainly because I wanted to ascertain what proportion of her law practice comprised Migration Agent work. She told me that she worked full-time as a sole legal practitioner in the CBD, and that migration matters occupied more than 60 per cent of her time. Ms Howard said that after the MARA decision, she had handed over four files concerning migration matters to another solicitor, Mr Harold Baker, a fellow legal practitioner, who practised from premises unrelated to hers in the CBD. That represented, she said, all the current matters with which she was dealing. Ms Howard said she had also referred several other later matters to Mr Baker without taking instructions from the clients.
Notwithstanding Mr Nyman's urging of Ms Howard to indicate in her replies to his questions that she had a close professional relationship with Mr Baker, her evidence was that she had not known Mr Baker prior to 23 October 2001. He had been introduced to her by an old friend, Mr Fitzgerald, whom she said, had also obtained Mr Baker's agreement to continue to assist her while she was unable to handle migration work.
When questioned about how she envisaged Mr Baker would supervise her and about the level of supervision, Ms Howard said that she thought she would take files to him to be inspected before matters were lodged, that he would have access to her files, and that she would inform him about her clients.
SUBMISSIONS AND CONCLUSIONS
In coming to a decision whether to grant a stay of the decision of MARA, I had to take into account the evidence and submissions before me as well as the case law and legislation. The purpose of an order under section 41(2) of the AAT Act may be to suspend or otherwise affect the legal consequences that flow from the decision of MARA.
Mr Nyman, for the Applicant, referring to Re Repatriation Commission and Delkou (1985) 8 ALD 454, submitted that Ms Howard would suffer hardship if a stay were refused. He submitted that given the facts of her case, Ms Howard had a good chance of success at the Tribunal. He also cited Re Artemis and Australian Postal Corporation (1998) 27 AAR 60, submitting that a conditional stay had been granted in that case, and hardship balanced against prejudice.
Mr Nyman also referred me to Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65, and submitted that in that case their Honours had held that special or exceptional circumstances did not have to be made out for a stay to be granted.
Mr Nyman also referred to paragraph (c) of the findings of MARA of 23 October 2001 (under the heading Matters relating to the Code of Conduct applicable as at 1 August 1996), submitting that the findings made there related to Ms Howard having used the client's money for her own benefit and having failed to account, but not that she had misappropriated it. He submitted that Ms Howard belonged to an honourable profession and continued to practice as a solicitor, although her inability to practice migration law cut off a significant part of her income. Mr Nyman submitted that the effect of the decision was not just a matter of loss of fees, but of good will which disappeared very readily, and that the capital value of the practice could thus be diminished. Ms Hamer, for the Respondent, on the other hand, emphasised that as migration work accounted for only a part of Ms Howard's income, her losses would be minimal compared with those of a person working solely as a migration agent.
Mr Nyman referred also to other cases including Middle Harbour Investments Ltd (In liq) (NSW Court of Appeal, 15 December 1976, unreported) as an appropriate case to be referred to on the basis that fairness to all parties was an important consideration.
Ms Hamer submitted, on behalf of the Respondent, that a stay was opposed in the public interest, and as a matter of consumer protection. She submitted that Ms Howard had been found guilty of serious breaches of the Migration Act and the Code of Conduct. She submitted that on balance, the effect of the conduct far outweighed the hardship or inconvenience the decision of MARA brought to Ms Howard. She submitted that the legislative intent was the protection of vulnerable people, and that the public interest should be given greater weight than the income earning capacity of an individual who had been found to have breached the Migration Act and the Code of Conduct in a serious manner. Ms Hamer referred me to the case of Re Wang and Migration Agents Registration Board (AAT 10821, 1 March 1996) submitting that it would be appropriate that I follow the decision of Dr Chappell in that matter, and that I therefore refuse the stay as applied for by Ms Howard.
Ms Hamer also submitted that the Applicant had had adequate opportunity to respond to MARA in full, and that she had, at the relevant time, been represented by Mr Kessels, solicitor, noting in particular the submission at T75. Ms Hamer drew my attention to the submission at T75, where Ms Howard had acknowledged that her practice was in disarray, that she had not exercised good judgment, and that she had made certain admissions with regard to not complying with the Code of Conduct.
Referring to PT2, Ms Hamer emphasised the reasons given by MARA for its findings with regard to breaches of the Migration Act and the Code of Conduct. She emphasised in particular the breach of Clause 5 of the Code of Conduct, which concerned the inappropriate handling of the $5000 belonging to Mrs Tangherian. Ms Hamer submitted that no satisfactory account had ever been received by Mrs Tangherian with regard to the use of that money. She emphasised that there had also been delays with regard to arrangements regarding the sponsorship of Ms Tangherian.
Ms Hamer submitted that the Respondent opposed the application for a stay, but in the event of a stay being granted, certain conditions might be imposed as follows.
That Ms Howard advise all existing and future clients:

of the MARA decision dated 23 October 2001;
of her application to the Tribunal;
that the Tribunal has granted a stay pending the full hearing of the matter; and
that MARA has opposed the application for the stay.

Mr Nyman, on the other hand, submitted that the conditions suggested by Ms Hamer were too stringent. He conceded that it would be within the power of the Tribunal to impose conditions in the granting of a stay, but submitted that the decision should be a fair one, and suggested that if all existing and future clients were to be informed of the MARA decision, there would be an enormous loss of goodwill and loss of clientele. Mr Nyman suggested that a condition of imposing a stay could be that Mr Baker would supervise Ms Howard's work. There was considerable discussion between the parties, and evidence from Ms Howard about how that might operate.
I have considered the material that has been advanced on behalf of the Applicant, and the submissions also made on her behalf, and a particular concern here is the hardship which must inevitably flow to the Applicant whose livelihood is obviously affected by the decision made by MARA. It has to be noted that if the Applicant were to ultimately be successful before this Tribunal, and no stay was granted in the interim, further income would be lost and damage done to the business and reputation of the Applicant. Balanced against this, as the Respondent has submitted, must be the public interest and consumer protection, which is of great importance and concern in this particular area.
The Respondent has, in my view, demonstrated that it does have a prima facie or arguable case to justify the decision that was made by MARA. The strong community interest that governs migration to this country and the practices of Migration Agents are such that the business they undertake is carried out pursuant to the Migration Act and according to an established Code of Conduct. A failure to comply with these can have very serious consequences for persons seeking the services of a person such as the Applicant. Public interest is that persons who seek to migrate to this country should feel confident that their applications will be dealt with completely and thoroughly, and in a timely manner.
In finally coming to a decision, I need to take into account the principles for considering a stay which have been enunciated in quite a number of cases. A priori the decision that was made should remain until a full review can be conducted, unless there are good reasons for doing otherwise. I am mindful also that there is case law (Powerflex Services Pty Ltd v Data Access Corporation (supra)), holding that the circumstances leading to the grant of a stay need not be special or exceptional.
I am mindful also that I must take into account the interests of all persons who may be affected by the matter, in this case of course Ms Howard herself, her present and future clientele, and the Respondent. Ms Howard has told me that migration matters constitute at least half of her practice, so that without the ability to deal with those cases, it is clear she is suffering some loss of income. There may be further loss through loss of goodwill in the future. On the other hand, the purpose of the regulation of Migration Agents is to protect a vulnerable public. The decision of MARA does not appear to have breached any rules of procedural fairness, as Ms Howard was given the opportunity to put her case forward, and did so, fully represented.

The decision of MARA is of course a decision, which may be affirmed, varied or set aside by the Tribunal at a substantive hearing. It is not my place here to try all the issues, but I cannot say that Ms Howard's case is entirely without merit, or that she may not have some chance of success at the Tribunal. Securing the effectiveness of the hearing is another aspect that I must take into account, noting also that a substantive hearing may only be a few months off.
In coming to a decision I noted that both parties referred me to Re Dekanic and Tax Agents' Board of New South Wales (1982) 6 ALD 240. Mr Nyman submitted that Davies J had in that case stated that granting a stay would have the effect of removing the pressure for a hurried hearing. He understood, he said, that the Tribunal's timetable was not as far into the future as a court's but relied nevertheless on Re Dekanic (supra). Ms Hamer also referred to Re Dekanic (supra), citing Davies J in his statements regarding balancing the interests of the public versus the interests of the individual in earning her income. I am mindful that although the principles regarding a stay, which I must of course take into account, are canvassed in Re Dekanic (supra), that case can be distinguished in the circumstances of Ms Howard's case. It appears from the judgment that Mr Dekanic had not been given an opportunity to be heard before a decision was made. In other words, the principles of natural justice had been denied. I thought it was perhaps helpful to quote from Davies J. He said (at 241):
"I am dealing with a matter involving the cancellation of a tax agent's licence in the circumstance that the applicant has not yet been heard and has not yet had an opportunity fully to put forward the facts and reasons why his registration should not be cancelled."
That differs greatly from the case of Ms Howard who had been represented by Mr Kessels, and on whose behalf a full written submission had been made. It seems to me that the Applicant has had opportunities, over a substantial period of time, to put material before MARA and also to be heard before that body, as a result of ongoing inquiries into the way in which her business was conducted. There is no particular formula in cases like this, and again I think Davies J indicated this when he said at 242:
"…in every particular case the circumstances of the case must be considered and in not every case will it be appropriate that a stay should be granted. Particularly a stay should not be granted if it is clear that, in the public interest, the decision under review should be effective until the Tribunal has considered the matter fully."
I note for the sake of completion that the parties raised the issue of whether a prior complaint had been made about the Applicant. To the best of my knowledge there is no decision from MARA with regard to another complaint about Ms Howard. I did not pursue this further, and consideration of this issue does not form part of my decision on whether to grant a stay.
Having considered all the case law and the principles to be applied in consideration of whether a stay should be granted, I am satisfied that a stay should be granted with certain conditions imposed until the matter can be fully heard by the Tribunal. Accordingly I make the following decision.
DECISION
A stay of the decision of the Migration Agents Registration Authority dated 23 October 2001 is granted with the following conditions:

That Ms Margaret Howard only give migration advice and assistance subject to the supervision of Mr Harold Baker, solicitor, providing Mr Baker remains a registered Migration Agent and is willing and able to give such supervision;
That Ms Margaret Howard submit all files concerning migration matters to Mr Harold Baker to be inspected and countersigned before matters are lodged or advice is given;
That Mr Baker have access to Ms Howard's files and supervise and countersign all transactions related to incoming money or expenditure of migration clients' money; and
That Ms Howard inform Mr Baker in full about her clients.
Liberty to apply.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  14 November 2001
Date of Decision  30 November 2001
Solicitor for the Applicant         Mr T Nyman
Solicitor for the Respondent    Ms S Hamer