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…

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 [2001] AATA 978
Case: [2001] AATA 978
Decision Date: 30 November 2001

CaseChat Overview and Summary

In the case of Howard and Migration Agents Registration Authority, the applicant, Ms Margaret Howard, sought a stay of the decision made by the Migration Agents Registration Authority (MARA) to cancel her registration as a migration agent. The dispute involved allegations of serious breaches of the Code of Conduct and the Migration Act, including using client funds for personal benefit and failing to maintain proper records. The central legal issues were whether the court should grant a stay of the MARA decision and, if so, under what conditions. Ms Howard argued that she had a good chance of success on the merits and that the refusal of a stay would cause her hardship. The Respondent contended that a stay should be refused as it was in the public interest and for reasons of consumer protection.

The court considered the relevant provisions of the Migration Act and the Code of Conduct, which emphasised the importance of integrity, proper conduct, and client record-keeping for migration agents. The court also reviewed case law on the principles guiding the granting of a stay, including the balance between hardship to the applicant and prejudice to the respondent. The court noted Ms Howard's admission of certain breaches and her acknowledgment of shortcomings in her professional conduct. Despite these admissions, the court acknowledged the potential hardship to Ms Howard if the stay was refused, given that migration work constituted a significant portion of her income. However, the court also weighed the public interest in upholding the integrity of the migration agent profession and protecting vulnerable clients. Ultimately, the court decided to grant the stay with specific conditions to mitigate the risk of prejudice to the public interest during the pendency of the appeal. These conditions included that Ms Howard would not engage in migration agent work without supervision and would provide regular updates to the court on her compliance with the stay conditions.

Orders

Orders of the court

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Background

Background to the litigation

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 …" 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

The relevant provisions of section 303 of the Migration Act provide:"303. Discretionary cancellation or suspension of registration etcThe 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."