Hudson and Migration Agents Registration Authority
[2004] AATA 1007
•24 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1007
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/103
GENERAL ADMINISTRATIVE DIVISION ) Re RORY HUDSON Applicant
And
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Senior Member Dwyer Date24 September 2004
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and in substitution decides that Dr Hudson be cautioned in accordance with s 303(c) of the Migration Act 1958.
I reserve liberty to the parties to apply if any questions should arise as to the implementation of this decision.
[sgd] Joan Dwyer
Senior Member
MIGRATION AGENTS’ REGISTRATION – suspension of applicant’s registration as migration agent – applicant destroyed documents relating to person to whom he had given advice and on whose behalf he had lodged an appointment of agent form with Department of Immigration and Multicultural and Indigenous Affairs – did not advise client or Department he had ceased to act for client – whether applicant breached the Code of Conduct for migration agents prescribed under Migration Agents’ Regulations 1998 – meaning of “client” in Migration Act 1958 and Code of Conduct – “client” someone to whom agent gives “immigration assistance” – “client” given the same meaning as in s 306C Migration Act 1958 – finding that there was “immigration assistance” and “client” relationship – finding that Code of Conduct breached – no finding that applicant not a fit and proper person to give immigration assistance – purpose of scheme is to protect the public not to punish – no reason for suspension – reason to decide that agent be cautioned under s 303(c) – decision under review set aside.
LAW REFORM – amendments suggested to add definition of “client” to Migration Act 1958 and/or to Code of Conduct for migration agents authorised by s 314(1) of the Migration Act 1958.
Acts Interpretation Act 1901, s 46(1)
Migration Act 1958, ss 286, 303, 306, 306C
Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004.Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Re Griffiths and Migration Agents Registration Authority [2002] AATA 247
Re Hakaoro and Minister for Immigration and Multicultural Affairs (1998) 26 AAR 534
Hanna v Migration Agents Registration Authority (1999) 30 AAR 422
Hughes and Vale Pty Ltd v The State of New South Wales [N°2] (1955) 93 CLR 127Re Prasad and Migration Agents Registration Authority [2002] AATA 423
REASONS FOR DECISION
24 September 2004 Senior Member Dwyer 1. This is an application under s 306 of the Migration Act 1958 (“the Act”) for review of a decision of the Migration Agents Registration Authority (“MARA”) made on 2 February 2004, in which MARA decided to :
Suspend the Agent’s [Dr Hudson’s] registration for a period of twenty four months or until the following conditions have been satisfied:
(i)The Agent provides evidence to the Authority that he has successfully completed the MAPKEE [Migration Agents Professional Knowledge Entry Examination] examination after the commencement of his suspension; and
(ii)The Agent provides to the Authority a statutory declaration in Commonwealth form stating that he has not made immigration representations for a fee or given immigration assistance as defined in the Act while suspended.
as the Authority was satisfied that pursuant to section 303(h) of the Act, the Agent has not complied with the Code of Conduct prescribed under section 314 of the Act.
2. At the hearing, Dr Hudson appeared and gave evidence. Mr Wee, a Solicitor with the Australian Government Solicitor, appeared for MARA. Dr Hudson’s secretary Ms Djatmiko, and Ms Ross, both of whom are registered migration agents, gave evidence for Dr Hudson. The respondent called Ms Johnsons. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) together with exhibits tendered during the hearing. At the hearing, Dr Hudson provided the Tribunal and Mr Wee with a copy of his written statement of case, which included his summary of the relevant facts. He incorporated that statement into his evidence.
3. At the conclusion of the hearing, Dr Hudson was given leave to make further submissions on the meaning of the term “client” in the Act, and in the Code of Conduct for Migration Agents prescribed under s 314 of the Act (“the Code”). Those submissions were received the day after the hearing, and the respondent’s submissions in reply were received the following day. On 15 April 2004, Dr Hudson forwarded to the Tribunal a letter making a submission as to the meaning of “immigration assistance” based on the explanatory material provided with a new version of Form 956 “Appointment of Migration Agent,” issued by the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”). The respondent did not object to the Tribunal receiving that additional material and submission. The form and explanatory material were therefore taken into evidence (A6) and the submission has been considered by the Tribunal.
BACKGROUND
4. Dr Hudson is a registered migration agent, pursuant to s 286 of the Act. He is a director of, and conducts his business as, Immigration & Refugee Specialists Pty Ltd (“Immigration & Refugee Specialists”).
5. On 23 May 2002, MARA received a complaint against Dr Hudson made by Mr Vernal, through the Federal Member for Bruce, Mr Alan Griffin MP. The substance of Mr Vernal’s complaint was that Dr Hudson had acted with “incompetence” in relation to his dealings with Mr Vernal’s then de facto wife, Ms Johnsons. Mr Vernal wrote (T16, p59):
Romantha [Ms Johnsons] consulted Dr Hudson, in February 2001, to act on her behalf. In October 2001 Dr Hudson received notice from the immigration department that Romantha’s application was unsuccessful, but then failed to notify Romantha of this important decision, therefore removing her right to appeal.
On April 18th 2002, Romantha called Clara Tins regarding the progress of her application, but was told she must present herself and her children at the immigration office the next day… It was on this day that Romantha discovered that her application had been rejected. Romantha has never had any written notification refusing her visa application, or any reason why it was refused.
Romantha and I then went to Rory Hudson’s office on the 22nd of April. He told us there that he had thrown the refusal letter out as he had tried to contact us by phone and that he didn’t think we were at our address, so couldn’t contact us. We resided at 46 Laemmle St. until 15 November 2001, after which time we had mail re-direction for 3 months.
On the 9th May, Romantha contacted Rory Hudson asking that he send her a signed Statutory Declaration stating the fact that he had received the refusal letter and not forward it to Romantha. On the 10th we received a letter from him admitting that he had thrown out the refusal letter.
I am making a strong complaint against Dr. Rory Hudson and his incompetence in dealing with Romantha’s affairs. He has effectively removed Romantha’s right to appeal, and in doing so has caused my wife and myself considerable trauma. As an Australian citizen I find his handling of immigration affairs appalling.
…
6. The complaint was sent to Dr Hudson for his comments (T20). He replied by letter dated 21 June 2002 (T21). In his reply he wrote (T21, p68):
…
I was consulted by Romantha Johnsons in late 2000 or early 2001 concerning an immigration problem. As I recall, she wanted to know her entitlements to Medicare and to free education for her children. I gave her some advice but could not give her full advice because she herself was unclear about what her immigration status was and what had happened with the visa application she had previously made. I explained that I needed to know this before I could give her reliable advice. I suggested that I should find out her immigration status by means of an FOI request. Accordingly I lodged a request for her file. There was some delay in providing it, and I wrote a follow-up letter about this. This was the only correspondence I had with the Immigration Department about Romantha.
However, Ms Johnsons did not enter into any agency agreement with me. She did not appoint me as her agent, pay me for any services other than the consultation fees, which I reduced for her in consideration of the fact that she did not have much money. This is shown by the fact that the two receipts provided by Mr Vernal were for consultation fees only. These were the only fees ever I charged or paid in the case. There was no contract between us. Mr Vernal’s statement that Romantha consulted me “to act on her behalf’ is not correct. Mr Vernal was not present on any of the occasions when Romantha consulted me, until April 2002. Romantha’s visa application had already been lodged before she first consulted me and she did not ask me to do anything in connection with it. She merely sought some information.
I made a number of phone calls to the Health Department, the Education Department and others to find out the answers to Romantha’s questions, and made no charge for the time I spent doing so. When I had obtained a copy of her file through the FOI request and made the necessary contact with the appropriate bodies, I rang Romantha and gave her the answers to her questions. She did not ask me to do anything further. I kept the papers for a few months in case Romantha rang me back or wanted anything more from me. I then threw them out because I was not her agent, she had not contacted me again, I had given her the answers to her questions which was all she wanted, and I did not expect to hear anything more about her case.
I never established a file for Romantha because she was not a client and I was not her agent, as you may verify from the Departmental file on her case if you wish.
In about October 2001 I received a copy of the decision of the Immigration Department on her substantive application. I had not previously received any correspondence from Immigration about this. It was a mistake on the part of the Department to send me this decision, because I was not her agent. Nevertheless, when I received this correspondence, I attempted to contact Romantha to advise her about what she could do. However, I no longer had her address or contact details and could not find out a phone number for her. Therefore it was impossible for me to tell her of the decision. I assumed, however, that the decision would have been sent to her as well, in accordance with normal Departmental practice. I therefore assumed that if Romantha wanted me to do anything for her in connection with the decision, she would contact me. There was no such contact. After about four months, as the time for lodging an appeal had passed, I assumed that Romantha would not be wanting my assistance, and again I threw out the copy of the decision.
…
7. The evidence at the hearing established that two of the important points made by Dr Hudson in that letter were not correct. First, Ms Johnsons had entered into an agency agreement with Dr Hudson. At her second consultation with Dr Hudson on 6 February 2001, Dr Hudson prepared and Ms Johnsons signed the Department Form 956, which is an “Appointment of Person to Act as Agent” (T6). This form is wrongly dated 6 February 2000, but clearly was signed on 6 February 2001. It was lodged with the Department by Dr Hudson on 12 February 2001. Secondly, the form specified that all correspondence about Ms Johnsons was to be sent to Dr Hudson as her agent. Thus, it was not a mistake for the Department to send the decision on Ms Johnsons’ application to Dr Hudson.
8. On 16 July 2002, MARA sent Dr Hudson’s response to Mr Vernal, inviting him to comment by 6 August 2002. The letter also stated (T23, p.78):
Please note that if you do not respond, the Authority may conclude that you have accepted the Agent’s response to your complaint.
Mr Vernal did not respond to that letter. After MARA wrote to Mr Griffin on 29 November 2002 (T29), a letter dated 13 December was received from Mr Vernal stating that he withdrew his complaint against Dr Hudson.
9. However, MARA’s Conduct Advisory Panel recommended, in a report dated 6 August 2002 (T24), that Dr Hudson be interviewed about the complaint. At that stage, subject to the findings at interview, it was recommended that a letter under s 309 of the Act be sent to Dr Hudson, advising him that MARA was considering cautioning him and inviting him to make a submission on the matter.
10. Mr Thornton was appointed by MARA to interview both Dr Hudson and Ms Johnsons. He interviewed Dr Hudson on 29 October 2002 and Ms Johnsons on 25 June 2003. When Mr Vernal withdrew his complaint, MARA decided to proceed with the investigation as it “considered that the matters disclosed warranted further investigation” (T1, p7).
11. Some of the factual matters underlying MARA’s decision to suspend Dr Hudson remain in dispute. However, there was agreement as to many aspects of the evidence.
FACTS NOT IN DISPUTE
12. On 5 December 2000, Ms Johnsons lodged a Spouse Visa Application with the Department in Cairns, on the basis of a relationship with a Mr Sharpe. Shortly after the application was lodged, Ms Johnsons moved to Melbourne to live with Mr Vernal. She notified the Department of her change of address, but not of the breakdown of her relationship with Mr Sharpe, nor of the start of her relationship with Mr Vernal. On 31 January 2001, Mr Sharpe formally withdrew his sponsorship of Ms Johnsons’ application (T24, p80).
13. On 2 January 2001, Ms Johnsons visited Dr Hudson. She paid $50, and received a receipt from Immigration & Refugee Specialists, showing that the $50 was for her “first consultation” (T4).
14. On the 6 February 2001, Ms Johnson had a second consultation with Dr Hudson for which she paid and received a receipt for $80 (T4) as a second consultation fee. On that occasion she signed the “Appointment of Agent Form” which gave his firm as her agent and specified that all correspondence relating to her application was to be sent to her agent. Ms Johnsons also made a request for documents under the Freedom of Information Act 1982 (“the FOI request”), by signing a Departmental Form 424, “Request for Access to Documents” (T5). By signing that form, Ms Johnsons requested release of:
All documents on my DIMA file CLF 2000/57501.
15. Both Dr Hudson and Ms Johnson said the FOI request was completed so that Dr Hudson could obtain a copy of Ms Johnson’s Department file in order to advise her about her spouse visa application. The form again specified Dr Hudson as the person who was to receive the documents on Ms Johnson’s behalf.
16. The form requesting access to documents was sent by Dr Hudson to the Department, with a letter from Dr Hudson dated 19 February 2001 (T8). That letter reads:
Re: Ms Romantha JOHNSONS – File Ref. CLF2000/57501
On 6 February 2001 my assistant attended at the 23rd floor of your office in relation to a request by my client Ms Romantha Johnsons, an applicant for a spouse visa, for a letter to confirm that her dependant daughter Cassey is included in her application and is entitled to medicare and to attend school in Australia. An officer of your Permanent Residency section undertook that a letter would be sent in a couple of days. However, no letter has been received.
A letter of 17 January 2001 from Ms Johnsons (copy attached) has also received no reply.
This matter is becoming urgent and it would be appreciated if you could give it immediate attention.
Ms Johnson [sic] also lodges a request under the Freedom of Information Act 1982 for all papers on her file. I enclose Form 424 which she has completed [emphasis added].
17. On the same day, Dr Hudson wrote to Ms Johnsons, reporting on progress (T7):
…
I enclose the original and a certified copy of the receipt for your immigration application.
I have written to the Immigration Department asking them to send a letter concerning your daughter as a matter of urgency. I have also made a request under the Freedom of Information Act for all the papers on your file.
…
18. On 6 March 2001, Ms Johnsons sent an e-mail to Dr Hudson advising that she had not received any letter from the Department regarding her daughter being included in her application for permanent residence or regarding her problems with Medicare (T9, p46-7). Dr Hudson replied to that e-mail the same day (T9, p46):
…
I am sorry you have not heard from DIMA. I wrote to them about 2 weeks ago and told them it was urgent. I am not able to do any more for another 2 weeks or so as I am very busy with other cases and my assistant is on leave. When she returns I will immediately get her to go to DIMA and inquire again. In the meantime if you want you can go to DIMA at Casseldon Place, go to the 23rd floor and ask for Dee Ng. She is the person who promised you the letter about Medicare back in January. Tell her your file number, which is CLF2000/57501. Be firm and insist on the letter. If necessary, threaten that you will complain to the Ombudsman. That often works!
Otherwise wait for about 2 weeks.
…
19. The documents requested were released to Dr Hudson, pursuant to the Freedom of Information request on 18 April 2001. There is no evidence as to whether he sent those documents to Ms Johnsons.
20. It is not in dispute that Dr Hudson destroyed any papers he was holding in relation to Ms Johnsons in about July or August 2001, without making any attempt to contact her at that stage, and without notifying the Department that he did not regard himself as continuing to act on her behalf. Nor did he notify the Department that he no longer had contact details for Ms Johnsons. He gave no explanation for his conduct beyond saying that he thought his role in helping Ms Johnsons was over. The evidence is that, at that time, Ms Johnsons was still living at the address she had given Dr Hudson earlier that year (T16).
21. On 18 September 2001, an officer of the Department wrote to Ms Johnsons, care of Dr Hudson, advising (T12, 50):
Information provided to this office indicates that the spouse relationship upon which your application was based has ceased. This is likely to result in the refusal of your application. However, before the decision is made on your application, you have the opportunity to provide a response, explaining your current circumstances and the reason for the breakdown of your relationship.
22. It was Dr Hudson’s evidence that he did not recollect whether he received that letter. He said, in the interview conducted by Mr Thornton on behalf of MARA, that, if he had received it:
…
I would have assumed that it would have been sent to Romantha as well and that she would have contacted me if she needed my help in relation to it [T28 p117].
23. Dr Hudson did not dispute that, on or about 17 October 2001, he received a letter addressed to Ms Johnsons telling her that her application for a spouse visa had been refused. He said at the interview (T28, 113):
I kept that for a while in case she phoned me about it and wanted some help in relation to that, and then she didn’t and I threw that lot out in about February this year [2002].
Once again, if Dr Hudson had retained Ms Johnsons’ papers rather than throwing them out, and if he had tried to contact Ms Johnsons in October 2001, he would have been successful. She continued living at the address she had given him until 15 November 2001 (T16).
24. Ms Johnsons did not learn that her spouse visa had been refused until she contacted the Department on 18 April 2002, and was told to visit in person with her two children the next day. On 19 April 2002 she was told that her application had been refused and that a letter to that effect had been sent to Dr Hudson, as her migration agent, in October 2001. She was also told she had to leave Australia by 20 May 2002. By the time Ms Johnsons became aware of the refusal of her visa she was out of time to appeal to the Migration Review Tribunal (“MRT”) (T16, p 59). Both parties agree that she would have been unsuccessful on that appeal. However, she would then have been in a position to apply to the Minister for Immigration, Multicultural and Ethnic Affairs (“the Minister”) for intervention on humanitarian grounds under s 351 of the Act. It is a prerequisite to such Ministerial intervention that an application have been rejected by the MRT or the Refugee Review Tribunal (“RRT”).
25. On 22 April 2002, Ms Johnsons and Mr Vernal went to see Dr Hudson. He acknowledged that he had thrown out the refusal letter. Ms Johnsons was very upset in the interview.
26. On 8 May 2002, as agreed in the interview, Dr Hudson wrote a letter to Ms Johnsons setting out what had happened. It had been suggested to her that such a letter might help her obtain further time to lodge an appeal to the MRT, perhaps by her being notified again of the decision rejecting her application for a spouse visa. Dr Hudson wrote (T14, p.56):
I am writing at your request to confirm that in about October last year I received a copy of a negative decision on your case from the Immigration Department. At that time I did not have an address for you. I tried to contact you by telephone but was unable to make contact. I destroyed the papers relating to your case in about February this year as I had not heard from you by then and I assumed you had returned to Papua New Guinea.
The Department appears to have sent me your papers on the assumption that I was the migration agent acting on your case. This was incorrect, as the only matter which we agreed was that I should obtain the papers relating to you case through Freedom of Information. There was no agreement for me to represent you or act on your behalf in relation to any other application. If you wish me to assist you with any other matter in further, it will be necessary for you to come in and sign an agreement with me for me to represent you. Depending on the circumstances and what you wish me to do, it may be necessary for me to charge a fee to assist you. If you wish for assistance with a future application, I recommend you see me before you leave Australia.
27. On 15 May 2002, Mr Griffin M.P. wrote to the Minister, requesting his intervention to permit Ms Johnsons and her children to remain in Australia. He attached a copy of Dr Hudson’s letter of 8 May. The Minister did not intervene.
28. A migration agent with Legal Aid Victoria is now acting for Ms Johnsons and, at the time of the hearing, had lodged another application for permanent residence on her behalf.
THE RELEVANT LEGISLATION
29. Section 303 of the Act gives MARA power to cancel or suspend the registration of a Migration Agent, or to caution an agent. It provides:
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
(b) suspend his or her registration; or
(c) caution him or her;
if it becomes satisfied that:
(d) the agent's application for registration was known by the agent to be false or misleading in a material particular; or
(e) the agent becomes bankrupt; or
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or(g) an individual related by employment to the agent is not a person of integrity; or
(h) the agent has not complied with the Code of Conduct prescribed under section 314. [emphasis added]
30. MARA contended, at paragraph 8 of its Statement of Facts and Contentions that:
(a) At all relevant times, the applicant was a “registered agent”
(b)The Code of Conduct (the Code) applied to the applicant in respect of his dealings with Ms Johnsons because:
- Ms Johnsons was a “client” of the applicant for the purpose of the Code.
- Alternatively because the applicant provided “immigration assistance” to Ms Johnsons;
(c)The applicant failed to comply with the Code because he:
- did not properly seek and acknowledge his client’s instructions (cl. 2.8, 5.2(b) and 5.2(c);
- destroyed the material received from his client and on his client’s behalf (cl. 2.1(a), 2.1(b), 2.4, 6.1 and 6.2); and
- failed to inform Ms Johnsons about the refusal of her visa (cl. 2.18)
(d)In grossly failing to comply with the Code, the applicant demonstrated that he was “not a fit and proper person to give immigration advice”.
31. The Code is prescribed under s 314 of the Act. It is found in Schedule 2 of the Migration Agents Regulations 1998 (“the Regulations”). The version of the Code in the T documents (T3) was not in effect at the relevant time. It only came into effect from 1 November 2003. The earlier version, which was current from January 2001 to April 2002, was not produced at the hearing. I have referred to it and have found that it was identical in all relevant respects to the form of the Code included at T3. The only difference in the clauses relied on was that, until March 2003, clause 2.1(b) included an additional requirement as to conflict of interest, which is not relevant to this hearing.
32. The clauses of the Code relied on by MARA at paragraph 8 of its Statement of Facts and Contentions provide:
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, fairly and without any conflict of interest that would affect the legitimate interest of the client.
2.4A migration agent must have due regard to a client's dependence on the agent's knowledge and experience.
2.8A migration agent must:
(a) within a reasonable time after agreeing to represent a client, confirm the client's instructions in writing; and
(b) act in accordance with the client's instructions; and
(c) keep the client fully and regularly informed in writing of the progress of each case or application that the agent undertakes for the client; and
(d) within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client's case or application.
2.18A 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.
5.2 A migration agent must:
(a) before starting work for a client, give the client:
(i) an estimate of fees in the form of charges for each hour or each service, and disbursements that the agent is likely to incur as part of the work; and
(ii) an estimate of the time likely to be taken in performing a service; and
(b) as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of the terms of the work to be done; and
(c) give the client written confirmation of the terms of the service to be rendered; and
…
6.1A migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing:
(a) a copy of each client's application; and
(b) copies of each written communication between:
(i) the client and the agent; and
(ii) the agent and any relevant statutory authority; and
(c) file notes of every substantive or material oral communication between:
(i) the client and the agent; and
(ii) the agent and an official of any relevant statutory authority.
6.2A migration agent must keep all documents to which a client is entitled securely and in a way that will ensure confidentiality while the agent is giving services to the client and until the earlier of:
(a) 2 years after the date of the last action on the file for the client; or
(b) when the documents are given to the client or dealt with in accordance with the client's written instructions.
The Contentions of the Parties
33. MARA contends that it is an appropriate exercise of its discretion to decide to suspend Dr Hudson’s registration under s 303 of the Act for two years, or until he satisfies certain conditions, because he breached the Code, and those breaches establish that he is not “a fit and proper person to give immigration assistance” under s 303(f) of the Act.
34. Dr Hudson conceded that, if the Code applied to his dealings with Ms Johnsons, then he had failed to comply with the Code. But he contends that he has not breached any part of the Code because it did not apply to his dealings with Ms Johnson, as she was not a “client” within the meaning of that term in the Code. Dr Hudson denies that he agreed to assist Ms Johnsons with her spouse visa application, or that he gave or anticipated giving “immigration assistance” to her.
35. Dr Hudson submitted that the term “client” in the Code should be given the same meaning as in s 306C of the Act. Part 3 of the Act deals with “Migration agents and immigration assistance”. Section 306C is in Division 3A of Part 3 of the Act, which is headed “Documents relating to clients of inactive agents and deceased agents”. Section 306C, so far as relevant, reads:
306C Clients
For the purposes of this Division, if a registered agent gave, or anticipated giving, immigration assistance to another person who is:
(a) a visa applicant or potential visa applicant; …
then:
(e) the other person is a client of the registered agent and, if the registered agent
dies, the other person remains a client of the deceased registered agent; and
(f) if the registered agent becomes an inactive agent — the other person remains a
client of the inactive agent and, if the inactive agent dies, the other person remainsa client of the deceased inactive agent.
36. The phrase “immigration assistance” is defined in s 276 of the Act, which, so far as relevant, provides:
276 Immigration Assistance
(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 a uthority 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.
…
(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.
THE MEANING OF THE WORD “CLIENT” IN THE CODE
37. The first question for consideration is whether the Code applies to Dr Hudson’s dealings with Ms Johnson. That requires consideration of the meaning of the term “client” in the Code.
38. The Code states in clause 1.1 that it is intended to regulate the conduct of migration agents. Clause 1.4 explains that the Code applies to registered migration agents. Clause 1.10(b)(ii) provides that the minimum attributes and abilities that a person must demonstrate to perform as a migration agent under the Code include:
…
(ii)knowing the provisions of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, in sufficient depth to offer sound comprehensive advice to a client, including advice on completing and lodging applications forms; [emphasis added]
39. The term “client” is frequently used throughout the Code, but unfortunately it is not defined anywhere in the Code. Nor is there a general definition of the term “client” in the Act. The only definition is that in s 306C of the Act, as set out in paragraph 36 of these reasons. Dr Hudson submitted that definition should be applied to the whole of the Act and to the Code. He referred to s 46(1) of the Acts Interpretation Act 1901, which provides that, unless the contrary intention appears, expressions used in subordinate instruments shall have the same meaning as in the conferring Act.
40. In his Statement of Facts and Contentions, Dr Hudson asserted “the definition is not prefixed by words such as ‘in this Division’ or ‘for the purposes of this Division’ to limit its scope”. By the time of the hearing, he had realised that he had made a mistake, and that the definition is prefixed by the words “For the purposes of this Division”. That does appear to show a legislative intent that the definition applies for the purposes of Division 3A, which deals with documents in relation to inactive agents and deceased agents, and not for other purposes.
41. On the other hand there is no other definition suggested by the Act or the Code for purposes other than Division 3A.
42. The respondent submitted in paragraph 13 its Statement of Facts and Contentions, that the appropriate meaning of the word “client” for all purposes other than Division 3A of the Act is that in the Macquarie Dictionary:
One who employs or seeks advice from a professional adviser.
During the hearing, I put before the parties a definition from the Shorter Oxford Dictionary, which is as follows:
A person using the services of any professional: a customer… a person assisted by a Social Worker etc.
43. At the hearing, and in his written submissions, Dr Hudson submitted that the definition relied upon by the respondent would have “patently ridiculous consequences and would effectively force most migration agents to close business”. He went on to say “the result of adopting it would be that anybody who simply asked a migration agent a question … would become a client of the migration agent whether the migration agent wished it or not”. Dr Hudson submitted that a person does not become a “client” of the migration agent simply by asking the migration agent for some information. He submitted (Applicant’s submissions at hearing, p3),
A person becomes a client only when the person and the agent reach agreement for the agent to do some work on behalf of the person in the area in which the agent is skilled, namely, the giving of immigration assistance as defined in s 276 of the Migration Act…
44. It was Dr Hudson’s submission that the Code only applied in regard to the giving of “immigration assistance” by migration agents and that therefore the only people characterised as “clients” of a migration agent, for the purpose of the application of the Code, are people to whom the migration agent gives “immigration assistance” as defined in s 276 of the Act.
The Evidence
45. In order to understand the submissions as to the meaning of the word “client,” it is necessary to consider the evidence of Ms Johnsons and Dr Hudson as to the discussions that took place when she attended at his office, and paid the consultation fees.
46. Ms Johnsons said that, on 15 December 2000, after her application for a spouse visa had been lodged in Cairns, she had come to live in Victoria. She looked on the internet about immigration, and saw that it said that if you move interstate, or if your circumstances change, you should get advice from a migration agent and ask the agent to act on your behalf. She said that as she had moved interstate, and her circumstances had changed, in that she was in a new relationship, she realised that she should get advice from a migration agent in Victoria.
47. Ms Johnsons said that she looked in the telephone book and rang a number of agents, but, because it was over the Christmas holiday period, many were not answering their phones. She called Dr Hudson, and his secretary made an appointment for her to see him just after New Year.
48. Ms Johnsons said that, when she saw Dr Hudson, she brought with her a copy of the receipt for lodging her spouse visa application in Cairns and some other papers. She told Dr Hudson about her change of circumstances and her move interstate and asked him to help her with her migration problems. She said in evidence (trans, p72):
…I asked Dr Hudson to help me, to act on my behalf [because of the] advice to get a Migration Agent and to help me with my migration problems. I saw it as a problem and I asked him to help me sort it out.
[What advice did Dr Hudson give you?] --- Dr Hudson said to tell him what I just said, everything what happened and I started right from the beginning until the day I met him and I gave him all that had happened and he said that if he was going to act on my behalf as a Migration Agent, he gave me the price, how much it's going to cost. It cost me $80 first consultation fee. A second time would be $80 and as I continue on, I sign more papers or if there was any problem with immigration that he wanted to see me, I had to pay him $40 as it went along. I signed that first day I came. I told him what had happened, my circumstances and he said it will take a year to 2 years for a decision to be made. That's what he told me. He said not to worry about it. If any problems came about that he was able to sort it out for me because he was very experienced in that. He knew. He had helped a lot of people in the past.
49. Ms Johnsons said that Dr Hudson asked her to sign the appointment of agent form 956 (T6) and the FOI request 424 (T5). Both those forms are prepared by the Department and bear the Department’s heading. Ms Johnsons said that Dr Hudson explained that by signing the appointment to act as agent she gave him authority to act on her behalf (trans, p73). Ms Johnsons also said that she had signed a client contact details form, the same or similar to document T21.
50. Ms Johnsons said that she visited Dr Hudson three or four times in early 2001. It was only at the second or third visit, while discussing with him what action the Department might take about her spouse visa application, that she asked whether her child was entitled to go to school. Dr Hudson told her that he thought every child in Australia was entitled to an education, but he said he would check and let her know.
51. Ms Johnsons said that, at that same visit, she also questioned whether she and her daughter were entitled to Medicare benefits. She believed that she raised that issue in regard to her own pregnancy, but as she only found out in March 2001 that she was pregnant, and the baby was born on 1 November, that does not seem consistent with document T9, which includes a message from Ms Johnsons to Dr Hudson dated 6 March 2001 on the subject of Medicare which explains that she is still having difficulty with Medicare, “since we do not have bridging visas in our passports” (T9, p46).
52. In cross-examination, Dr Hudson put to Ms Johnsons that she had not asked him to assist her with her spouse visa application. She replied that she had visited him because her circumstances had changed in regard to that application, so she had two problems in regard to it. She said the two problems she raised with Dr Hudson were the move interstate, and the new de facto relationship, and he agreed to act on her behalf.
53. Ms Johnsons agreed with Dr Hudson that she knew she was not going to get the spouse visa, but she said she did not know what to do about the problem of the new relationship. She said it was his advice to do nothing. Dr Hudson did not disagree with that. He explained to the Tribunal that there was no point in advising Ms Johnsons to tell the Department of her new de facto relationship because, unless she was married or had been in that relationship for at least 12 months, it would not provide a basis for her to obtain a spouse visa (trans, p48).
54. Ms Johnsons agreed with Dr Hudson that he had not asked her to sign an Immigration and Refugee Specialists “Authority to Act” in the form or similar to that at T21, p71–72, nor had he given her a document in the form of his firm’s “Advice to Clients” or “Explanation of our charges” at T24 p73–74.
55. Dr Hudson said that Ms Johnsons did not seek advice about the spouse visa application which had been lodged on her behalf in Cairns before she came to Melbourne. He said she only asked him for advice as to her Medicare status and as to whether her daughter was entitled to education. He said she also asked him to confirm that her application had in fact been lodged, but he did not regard the provision of any of that information as providing “immigration assistance”. Dr Hudson made a declaration to that effect (T40, p193‑194).
56. At the hearing I asked Dr Hudson what he said was discussed in the consultations he had with Ms Johnsons, and for which she paid consultation fees. He said (at trans p. 44‑45):
Well, I have a vague recollection. Obviously I can't recall all the exact words. Romantha Johnsons came to me. She was very confused about her status and her visa situation. She was very confused about her rights and she wasn't even sure whether her daughter had been included in the application or not. She was very anxious for her daughter to have rights to Medicare, as I believe the daughter was ill at the time although I'm not sure of that. She wanted to send her daughter to school here in Australia.
Dr Hudson said that Ms Johnsons had also discussed her accommodation problems with him and had told him about her relationship with Mr Vernal. He said Ms Johnsons had asked him not to tell Mr Vernal that she had made a spouse visa application, based on a relationship with someone else.
57. Dr Hudson, in his evidence, placed great weight on the fact that he had not asked Ms Johnsons to sign an “Authority to Act”. He acknowledged that he had asked her to sign the Departmental “Appointment of Person to Act as Agent” form, but he said that was simply an error of judgment on his part. He did so in order to obtain information as to whether or not Ms Johnsons’ daughter was included in the spouse visa application, and as to the nature of the bridging visa Ms Johnsons held. That was to see whether it gave her any entitlement to any Medicare benefits, and whether it gave her daughter an entitlement to education in Australia.
58. Dr Hudson also agreed that he had explained to Ms Johnsons that her application would be refused, which he said “she already knew” (trans, p159). He said that he had told her that, after it was refused, and after she had again failed at the Migration Review Tribunal, she could retain him to write a letter to the Minister seeking an exercise of the Minister’s discretion under s 351 of the Act on humanitarian grounds. He said (trans, p43):
…
The third step would be after the failure of the appeal to the Migration Review Tribunal, one would apply under section 351 of the Migration Act to the Minister for Immigration asking the Minister to exercise his or her discretion to grant a visa notwithstanding the negative decision of the Migration Review Tribunal. Now, I had mentioned to Romantha Johnsons that this was the appropriate thing for her to do. I had mentioned that her spouse visa application could not possibly succeed.I had mentioned that when it did not succeed, she would be able to apply to the Migration Review Tribunal for a review of that decision and that application would also necessarily not succeed, but I had pointed out that she would then be able to seek the intervention of the Minister under section 351 of the Act and I believe - although I won't swear to it absolutely – I believe that I had said to her something like: if you want me to, when it comes to that stage, I can help you with an appeal to the inister for humanitarian intervention.
59. The area of conflict in the evidence between Dr Hudson and Ms Johnsons was small. They both agreed that she attended Dr Hudson on three or more occasions and that she was charged a fee for the consultation on two occasions, and that she discussed her visa application with Dr Hudson, including the fact that it was based on a relationship which was no longer current. They agreed that Dr Hudson told her that it would fail (which he said she already knew) and that it would also fail at the MRT. Dr Hudson said he told her that she would almost certainly be successful in an application for an exercise of the Minister’s discretion under s 351 of the Act, after the MRT application was rejected. They also agreed that Ms Johnsons raised her problems about Medicare, and about education for her daughter, and asked him to find out whether her daughter was included on the visa application which had been lodged. There was no dispute about the fact that Dr Hudson agreed to have his secretary make enquiries at the Department, which she did, and that he lodged the notice of appointment of agent (Form 456) and the FOI request (Form 424) on Ms Johnsons’ behalf, and that both those forms asked that relevant documents be sent to Dr Hudson.
60. Dr Hudson relied on the fact that Ms Johnsons did not say that he had expressly agreed to assist her with her then current spouse visa application. Ms Johnsons insisted that she had asked him for assistance in dealing with the problems she had in regard to her spouse visa application, as a result of her move to Victoria, and her beginning a new relationship. It was also not in issue that Dr Hudson’s advice was that, apart from lodging the appointment of person to act as agent form, no further steps needed to be taken in regard to the current visa application, which was doomed to failure. Ms Johnsons said that Dr Hudson told her he might need another consultation if he received a letter from the Department requesting further information. Dr Hudson did not agree with that aspect of Ms Johnsons’ evidence.
61. Dr Hudson relied on the fact that Ms Johnsons did not say to him, “I wish you to help me with my spouse visa application.” During the hearing, I discussed with him what he meant by that (trans p49‑50):
…She says that she came to you because she thought having come to a different state, she needed somebody to act on her behalf and she was worried that her status had changed and you deny that she said that to you, do you, that she needed somebody as her agent in Victoria?
DR HUDSON: Well, she may have said that, I don't remember, but she did not ask me to act on her behalf and I did not agree to do so in relation to the spouse visa application.
MRS DWYER: Well, she might not have known the exact words to say but if she said she needed someone to act on her behalf in Victoria or something like that, isn't that really the same?
DR HUDSON: Well, I don't think saying I need someone to act on my behalf - - -
MRS DWYER: I've come to see you because I need someone to act on my behalf because I'm worried about the application that is being lodged, something like that, or because I've changed my state?
DR HUDSON: Yes. Well, she may have said something like that but what she did not say is: I wish you to help me with my spouse visa application or words to that effect.
62. It was Dr Hudson’s evidence that if he had seen himself as agreeing to act in regard to Ms Johnsons then current spouse visa application, he would have asked her to sign an Immigration and Refugee Specialists’ Authority to Act form (T21 p71-72), and have charged her a fee for her services rather than consultation fees.
63. Dr Hudson lodged a statutory declaration from his secretary Ms Djatmiko who also gave evidence, supporting his evidence. She stated in paragraphs 3-5 of her declaration (T40 p. 195‑197):
…
3.Romantha Johnsons asked Dr Hudson to inform her about her rights with respect to Medicare for herself and her children and with respect to free education for her children. As she was unable to tell Dr Hudson what her visa status was, he asked her to appoint him as her agent for purposes of an application under the Freedom of Information Act so that he could get papers from the DIMIA file and in that way find out the information for her. She agreed to this. The Freedom of Information request was made and Dr Hudson gave Romantha the information she had asked for.
4.Romantha Johnsons did not at any time ask Dr Hudson to advise her or assist her with any visa application and he did not agree undertake to do so. He never provided her with any advice or assistance as to her visa application.
5.When a person becomes a client of Dr Hudson, Dr Hudson always asks me to issue him or her with a receipt which explicitly states that the money is being paid as fee for assistance with a visa application (or review application, as the case may be). He also asks me to create a file for the client, which is then kept until two years after the last action on it. He also asks me to fill in a new page in the company’s account records referring to the client.
64. Ms Djatmiko gave evidence that she was present at the consultations between Ms Johnsons and Dr Hudson on 2 January 2001 and 6 February 2001. Ms Djatmiko issued receipts on those days for “First Consultation” and “Second Consultation Fee”. The receipts do not detail the nature of the consultations. Ms Djatmiko said she was present throughout most of the interviews as her table is in Dr Hudson’s room, but she did also have to attend to the phones during the interviews.
65. Ms Djatmiko acknowledged that she could not remember the whole of the conversations but said that essentially Ms Johnsons asked about her daughter’s eligibility for education and about Medicare.
66. Ms Djatmiko was of the impression that the consultation on 2 January 2001 was actually a second consultation and that there had been no charge for the first consultation. Both Dr Hudson and Ms Johnsons said that the consultation on 2 January 2001, for which a fee of $50.00 was paid, was the first consultation as described on the receipt. Ms Djatmiko said the $50.00 charge on that day was a reduced fee from the usual charge of $80.00 and was for a “substantial consultation” (trans, p21). Ms Djatmiko said the second consultation fee of $80.00 was also a reduction from the standard fee of $120.00.
67. Ms Djatmiko was asked about her understanding of the difference between a fee for a consultation, which she understands does not make the person a “client” of Immigration and Refugee Specialists, and the position where a client signs a fee agreement. She explained (trans, p23‑24):
…Is there usually a first consultation and then an agreement is signed up or are there usually a number of consultations before an agreement is made? --- Well, it's actually the person's discretion whether they would like to reach agreement with Immigration and Refugee Specialists after the first consultation or at the second consultation or when they initially come for the consultation itself.
I see. So in - once an agreement - my understanding is once an agreement is signed, then they pay a fixed fee and there is no further consultation fees? --- Exactly. Yes. Exactly.
What is the usual number of consultations before an agreement is made? --- Just two consultations.
Just two consultations? --- Yes. Well, that's - I mean, we can actually generalise in the situation because again it's the person's discretion whether they would like to reach an agreement after the first consultation at the next visit or immediately on the first consultation.
It is only after they signed the agreement that you consider them to be your clients? --- Well, it's usually - the practice in our office it's when they come in for a first consultation, they will actually ask several questions regarding that situation or obtaining information for their relative and then if they're quite happy with the advice what's given and then they believe that, you know, that's necessary to have a Migration Agent to act on their behalf, then that's when usually they would like - they ask Immigration and Refugee Specialists to assist them with their immigration application.
So on the first two consultations, how long is a usual consultation? Is there a usual time or? --- Well, roughly about half an hour to an hour at the most.
When there is two consultations, Dr Hudson will give them advice about their - the prospects of their - prospects of success, things like that? --- No. Well, what's happen is it's based on what actually what they want to know, basically what the person want to know about their situation. So usually it's the person who asks questions to us and then we'll try to actually do a bit of research, or Dr Hudson do a bit of research in that matter based on the Migration Act and ..... as well or, you know, the information and give the answer on that basis if necessary.
FINDINGS OF FACT
68. Dr Hudson submitted that the Tribunal should reject Ms Johnsons evidence because she was “a confused young woman” and because she had shown herself as ready to make false statements when it suited her to do so. The first instance of this, he said, was when she lodged the spouse visa application when she was no longer living with Mr Sharpe. Ms Johnsons’ evidence was that Mr Sharpe was at that stage endeavouring to persuade her to live to resume living with him as she had been doing for 4-5 years before she came to Australia in June 2000, and that he came from Papua New Guinea, where he was living, to visit her in Australia for that reason. She also said that he was supporting her and their daughter.
69. The second matter relied on by Dr Hudson was that a refugee application had recently been lodged on Ms Johnsons’ behalf, by a migration agent at Victoria Legal Aid. That had been lodged as a first step towards gaining standing to seek an exercise of discretion by the Minister as, due to Dr Hudson’s not advising of the rejection of the spouse visa application, Ms Johnsons had been out of time to seek review when she learned of that rejection.
70. I do not find those matters cause me to reject Ms Johnsons’ evidence as to the discussions she had with Dr Hudson. First, I accept her evidence that she signed the spouse visa application under pressure from Mr Sharpe, with whom she had been living in a de facto relationship, and who was the father of her daughter. He was hoping that she would resume that relationship. Mr Sharpe wanted her to sign the application so that he could look after her and their daughter in Australia, which he felt was a better country for them to live in than Papua New Guinea. I do not find the fact that Ms Johnsons signed that visa application casts doubt on her credibility in describing her discussions with Dr Hudson.
71. As to the recent lodging of the application for a refugee visa on grounds which it would seem cannot succeed, Ms Johnsons said that she did that on advice from a migration agent at Victoria Legal Aid. She said she was advised that it was the appropriate way to place her in the position where an application could be made to the Minister for an exercise of the Ministerial discretion.
72. Although Dr Hudson was very critical of that step in his cross-examination of Ms Johnsons, it transpired later that his advice to Mr Vernal and Ms Johnsons when they came to see him in April 2002, had been to the same effect. They came to ask what steps to take about the difficult position in which his actions had placed Ms Johnsons. He said that he would also have asked her to sign a visa application which was without foundation. He explained that he would have lodged an application for a child visa on her behalf, but that he would have noted on it that it was without foundation, and was being lodged in order to provide a basis for Tribunal rejection, so that Ministerial intervention could be sought.
73. Dr Hudson’s evidence was as follows (trans, p101‑102):
Well, if I may explain what I was proposing to do? My proposal was that Romantha should put in an application for another kind of visa and I would have thought perhaps - this is going to sound silly, but – a child visa. Now, obviously she was not eligible for a child visa because she was not a child, citizen or anything like that. But the technique I was – or the tactic I was going to suggest which I have used successfully with other clients, is you put in an application for something like child visa. You state frankly and honestly in that application that the applicant is not entitled to a child visa because he is not a child, and you state frankly and honestly this is being done only as a way of accessing the Minister's discretion under section 351.
Then of course, the application for a child visa gets refused. You make an appeal to the Migration Review Tribunal. Again you state honestly in the appeal papers that this application is only being put in for the sake of accessing the Minister's intervention. That also gets naturally refused by the Migration Review Tribunal. Furthermore, all these things can happen very quickly if you just admit up front that this is the purpose of the application. It is not really to secure a child visa, or to win the appeal.
In my experience, it can be done in a couple of weeks with the Department and another couple of weeks with the Tribunal. The Migration Review Tribunal then refuses the child visa and then you make an application to the Minister for humanitarian consideration under section 351, pointing out – in this case – pointing out that Romantha Johnsons has a child who is an Australian citizen which is the main - one of the main criteria used by the Minister for granting humanitarian intervention which would have made her almost certain to succeed. So that is what I would have done.
74. There is no evidence as to whether the Legal Aid migration agent has adopted a similar “up front” approach to the refugee application. In any event, I find Ms Johnsons was acting on advice in signing the recently lodged refugee application. I do not find it affects her credibility as a witness in this matter.
75. Dr Hudson further submitted that I should find that Mr Vernal had withdrawn his complaint, because he had subsequently learned that Ms Johnsons had not asked him to act on her behalf in regard to the visa application. There was no evidence from Mr Vernal, although his original complaint was in the T Documents (T16, p59). There was evidence that the de facto relationship between Ms Johnsons and Mr Vernal was no longer in existence (T35 p141‑142). Dr Hudson invited the Tribunal to make the inference that Mr Vernal withdrew his complaint because Dr Hudson, in his response to Mr Vernal’s complaint, had written that Ms Johnsons was not a client of his. I think it is unlikely that a lay person would appreciate the distinction that Dr Hudson was making between Ms Johnsons asking him to act on her behalf in the spouse visa application, and Ms Johnsons asking him to help her with the problems she had in relation to the visa application. There are many other reasons why Mr Vernal may have withdrawn his complaint. I do not make the inference requested by Dr Hudson.
76. I found Ms Johnsons to be a credible witness. I find she had a more accurate recollection of her consultation with Dr Hudson than he did. I find that, at her first consultation, Ms Johnsons did ask Dr Hudson for advice about what to do regarding her spouse visa application because it was not based on her current relationship, but on an earlier relationship which had finished. I do not accept Dr Hudson’s evidence that the only matters raised by Ms Johnsons in her first interview were questions about entitlement to Medicare benefits and her child’s educational entitlements.
77. I prefer Ms Johnsons evidence on this issue for a number of reasons. First, it sounded very credible that she got in touch with Dr Hudson because of her concern, in regard to her visa application, about the change in her relationship status and because she knew from the internet that she needed a migration agent or representative in Victoria in respect of that application.
78. Secondly, Dr Hudson did prepare and obtain Ms Johnsons’ signature on a Form 956 appointing him her agent, in dealing with the Department, in relation to her application. I find it unlikely that Dr Hudson would have lodged that form, unless he was agreeing to be Ms Johnsons’ agent, for the purpose of any steps which might arise in regard to the visa application. He said he did so in order to obtain the documents requested in the FOI request, but that was not necessary. The FOI request form 424 (T5) itself contains a section headed “Consent for agent to act (if you want someone to receive documents on your behalf)”. That would have rendered Dr Hudson Ms Johnsons’ agent for the limited purpose of receiving the FOI documents. He may have obtained the signature to the appointment of agent form primarily in order to obtain the letter about the type of visa for which Ms Johnsons had applied, and its effect on Medicare and education entitlements. I find another reason was to provide an address to which other correspondence from the Department could be sent, so that he could advise Ms Johnsons about responding to such correspondence. I find he did discuss that possibility with Ms Johnsons at her consultations and that he told her that could lead to further fees becoming payable.
79. Thirdly, Dr Hudson said that when Ms Johnsons raised with him her concern about the issue of Medicare, he needed to know what kind of visa she held in order to advise her on that matter. He said he decided to find out the type of visa by lodging an FOI application, which was prepared and signed on 6 February 2001. If the matters as to Medicare and schooling had arisen in the first interview on 2 January 2001, I consider it probable that Dr Hudson would have arranged for the signing of the FOI application at that first consultation and for enquiries to be made by his secretary prior to 6 February 2001. I find that those issues arose in the second consultation on 6 February 2001, and that the first consultation was more in the nature of general enquiries by Ms Johnsons about the two problems with her visa application, which she identified in her evidence. They were the move to Victoria, and the new de facto relationship. I find that the first consultation was substantial, as Ms Djatmiko said, and that it covered the whole of Ms Johnsons’ concerns about her visa application, including the issue of her new defacto relationship.
80. Another matter which leads me to prefer Ms Johnsons’ evidence on the issue of what was said in her consultations with Dr Hudson, is that, on his own account, Dr Hudson’s recollection of the interviews was no longer clear, as early as July or August 2001. As set out in paragraph 6 of these reasons, Dr Hudson wrote, in his reply to the complaint, dated 21 June 2002 (T21):
Ms Johnsons did not enter into any agency agreement with me. …
I kept the papers for a few months in case Romantha rang me back or wanted anything more from me. I then threw them out because I was not her agent, she had not contacted me again, I had given her the answers to her questions which was all she wanted, and I did not expect to hear anything more about her case.
I never established a file for Romantha because she was not a client and I was not her agent, as you may verify from the Departmental file on her case if you wish.
81. In his evidence, Dr Hudson said that he had destroyed Ms Johnsons’ papers in July/August 2001 (trans, p36). It is clear from the documents before the Tribunal (T6) that Dr Hudson had lodged an appointment to act as agent form with the Department on 12 February 2001. He must have forgotten by July/August 2001, not only that he had obtained Ms Johnsons’ signature to the form, but also that he had filled it in to provide that correspondence be sent to him and had then lodged it with the Department. Had he remembered in July/August 2001 that he had lodged the form appointing himself Ms Johnsons’ agent for the purpose of her visa application, and indicating that future correspondence was to be sent to him, he would surely not have destroyed Ms Johnsons’ papers in July/August 2001 without notice to her or the Department.
82. In his letter of 21 June 2002, Dr Hudson also wrote, mistakenly, that it was a mistake for the Department to send Ms Johnsons’ rejection decision to him. Either Dr Hudson at that time was intentionally misrepresenting the true situation, or he had still not remembered that he had obtained Ms Johnson’s signature to the Appointment of agent Form 656, and that he had filled in the Appointment of Agent form by indicating that all correspondence was to be sent to him. I find that Dr Hudson’s recollection of his first two consultations with Ms Johnsons was unreliable.
83. I find that Ms Johnsons did discuss in some detail with Dr Hudson the fact that she had lodged a spouse visa application based on a former relationship, and that she was now in a new relationship. Dr Hudson agreed that such discussion occurred. I find that Dr Hudson did not advise Ms Johnsons to withdraw the earlier application because, as he explained, in answer to a question from the Tribunal, at that stage Ms Johnsons would not have been able to lodge a new spouse visa application based on her relationship with Mr Vernal. He said a spouse visa application cannot be lodged unless a person has been living with the other person in a defacto relationship for at least twelve months (trans, p48):
Now, I understand that you say that the first application lodged was fraudulent because Johnsons wasn't living with the man at the time the application was lodged. Is that right?
DR HUDSON: That's right. Yes. That's what she, in fact, told me.
MRS DWYER: Right, but … would it not then have been possible to ask to withdraw that application and lodge another one on the basis of living with Mr Vernal or was she not living with Mr Vernal at that stage?
DR HUDSON: I'm not sure whether she was living with Mr Vernal or not at that stage. If she was, it still wouldn't have been possible to succeed in a spouse visa application because she certainly was not married to him and I believe she's never been married to him and to apply for a spouse visa application on the basis of living with someone in a defacto relationship, that relationship must have continued for at least 12 months, which is certainly hadn't been.
84. I accept Ms Johnsons’ evidence and find further that Dr Hudson gave her an estimate of the fees she would have to pay if additional consultations in respect of the spouse visa application became necessary, because of a request by the Department for further information.
the meaning of the word “client”
85. As I have explained earlier, neither the Act nor the Code contain a definition of the word “client”, other than the definition in s 306C which is said to be for the purposes of Division 3A only.
86. I put to the parties during the hearing my preliminary view, that Ms Johnsons was a client of Dr Hudson and of Immigration and Refugee Specialists, because she paid the firm two consultation fees, and also because Dr Hudson obtained her signature on the Appointment of Agent Form 456, lodged that form, described her as his client and had taken action on her behalf.
87. Dr Hudson acknowledged in paragraph 54 of his Statement of Contentions, lodged on 3 March 2004, that he had referred to Ms Johnsons as his “client” in a letter he wrote to the Department on 19 February 2001 (T8). He contended, as to that letter:
It is true that I carelessly used the word “client” in that letter. Again I concede, with hindsight, that this was unwise. I was not considering the section 306C definition of “client” at the time, but was using the word in a loose colloquial sense, having in the front of my mind that I was actin on behalf of Romantha in trying to obtain the letter for her. There is no other English word that covers this kind of relationship. The word “client” is used by many people in a loose sense like this that does not correspond to the definition that applies in the Code of Conduct.
88. I raised with the parties the possibility that where a registered migration agent, or his firm charges a fee for a consultation, that fee is paid because the registered migration agent uses, or purports to use, his knowledge of migration law or his experience in migration procedure, to answer enquiries or to consider matters raised by the person who the person who pays the fee. I suggested that the name “Immigration and Refugee Specialists” indicated that any fees paid to that firm would be paid for obtaining advice or services reflecting the knowledge and experience of the firm in the field in which it specialises.
89. Dr Hudson submitted that my preliminary view was incorrect. He was given leave to address the issue of the meaning of the word “client,” in submissions after the close of the hearing. He did so on 25 March 2004. He relied on Hanna v Migration Agents Registration Authority (1999) 30 AAR 422 as authority for the proposition that the Tribunal should be slow to impose sanctions under a law which is unclear in meaning. In Hanna, Tamberlin J noted at paragraphs 20-23:
… exposure to these sanctions under s 303 as a result of failure to comply with the professional standards may be severe and this indicates that caution should be exercised before introducing language which the legislature has not chosen to use. See Marshall v Watson (1972) 124 CLR 640 at 649 per Stephen J…
In addition, where a provision is directed to the prescription of standards of conduct, which, if breached, may be visited with severe consequences, the duty should be clearly spelt out. The necessity to add any words or qualification to the language used may well produce uncertainty as to the circumstances in which the clause operates.
This approach is encapsulated by Bennion, Statutory Interpretation 3rd ed. 1997 at p 637 as the principle against doubtful “penalisation” which the learned author describes in the following terms:
“It is a principle of legal policy that a person should not be penalised except under clear law (in this Code called the principle against doubtful penalisation). The court … should therefore strive to avoid adopting a construction which penalises a person where the legislator’s intention to do so is doubtful, or penalises him or her in a way which was not made clear”.
Although the present Code of Conduct is in the nature of delegated legislation, the above principles, in my view are apposite. Bennion points out at the foot of that page that the expression “penal” need not be given a strictly criminal meaning, but that a law which inflicts severe detriment, hardship or deprivation of any kind is in essence penal. He also later notes that the principle against doubtful penalisation applies where there is statutory interference with economic interests or with status or reputation: see p652, p657. In the present case, the exposure of an agent, as a consequence of breach, may affect him significantly in the practice of his profession, the gaining of his livelihood and in his reputation.
90. Dr Hudson set out seven points in his submissions delivered on 25 March 2004, as to the meaning of the word “client”: He continued:
Even if every one of the seven points above is incorrect it must be conceded that … a migration agent might reasonably take the view that a client is a person who comes within the section 306C definition, which, as the respondent has conceded is a “common sense” definition. … Therefore, in accordance with the rule against doubtful penalisation mandated in relation to the Code of Conduct by Hanna, and bearing in mind the consequences for a migration agent which can follow from a breach of the Code, the proposed account should not be followed, but rather the strict interpretation found in section 306C should be firmly adhered to.
91. It is not helpful that the only definition of the word “client” in the Act or the Code is that in s 306C, and that it is expressed to apply for the purposes of Division 3A of Part 3 of the Act only. That division does not have a wide application. It deals with clients of inactive or deceased agents. It would be of assistance to “clients” and migration agents if the Act were amended to provide a definition which would make it clear what “clients” are entitled to the benefit of Parts 2 and 3 of the Code. Those parts are headed “Standards of Professional Conduct” and “Obligations to Clients”.
92. I accept that a person does not become a client of a professional adviser simply by making an enquiry or seeking information. It is necessary for the professional, in this case a migration agent, to agree to give some advice or to perform some work within the person’s area of expertise. For a person to become a client, usually, except in cases of a free consultation or work being done “pro-bono”, there will be a fee paid or an agreement or understanding that a fee will be paid.
93. In this matter, there is no dispute about the fact that Ms Johnsons attended Dr Hudson’s office, that she was seeking information or advice from him which was in some way connected with her immigration status, that he arranged for her to sign an appointment of agent form appointing him her agent, that he arranged for it and a Freedom of Information (“FOI”) request to be lodged with the Department, and that he charged fees for consultations on two occasions. Further, Dr Hudson, in a letter he wrote to the Department on 19 February 2000 (T8) referred to Ms Johnsons as “my client Ms Romantha Johnsons, an applicant for a spouse visa”. In addition, in his letter of 21 June 2002 (T21), Dr Hudson wrote that Ms Johnsons had consulted him about an “immigration problem” and that he had given her “some advice”.
94. Dr Hudson submitted that there is a difference between charging a fee for a consultation, which is simply a fee for time spent with a person, and charging a fee for provision of services such as lodging visa applications, or a Freedom of Information application. He said that Ms Johnsons had not been charged a fee specifically for lodging the Freedom of Information application. She had simply paid a consultation fee covering the consultation at which the form was filled in. He did not explain why a fee was payable, if it was not for advice as to an immigration problem. In paragraph 60 of his Statement of Contentions, Dr Hudson contended that Ms Johnsons was “only an inquirer, not a client”.
95. The respondent, in response to Dr Hudson’s submission of 25 March 2004, did not press its submission that the Tribunal should adopt either the Macquarie dictionary definition on which the respondent had relied in paragraph 13 of its Statement of Facts and Contentions lodged on 22 March 2004. Instead, the respondent impliedly accepted Dr Hudson’s submission that the definition in s 306C of the Act should be applied, and submitted that, applying that definition, Ms Johnsons was a “client” of Dr Hudson.
96. Although I have serious concerns about the concept that a person can pay a fee, for advice about migration law or practice, to a migration agent, and be “only an inquirer, not a client’, I have decided to adopt the s 306C meaning of the word “client”, even though it is not expressed to apply generally to the Act, or even to Part 3 of the Act. That interpretation was contended for by Dr Hudson. The respondent did not submit that it did not apply.
97. The appropriate meaning of the word “client” in the Code is its “ordinary meaning” bearing in mind the context of the Act, which provides, in s 314, for the Code. Part 3 of the Act, which covers “migration agents and immigration assistance” includes s 280 which prohibits a person who is not a registered agent from giving “immigration assistance.” The following sections include restrictions on the charging of fees for the provision of immigration assistance and provision for the registration of migration agents. Section 316(b) of the Act provides that the functions of MARA include the monitoring of the conduct of migration agents “in their provision of immigration assistance”. Thus I accept that the term “client”, as used in the Code, refers to a person who uses the services of a migration agent to obtain “immigration assistance”. That is also the effect of the s 306C definition.
98. The respondent in its submission lodged on 26 March 2004, submitted that Dr Hudson had given Ms Johnson “immigration assistance” in advising her of her prospects of success in her spouse visa application, whether or not he was confirming her pre‑existing view. The respondent also submitted that advice about review prospects and prospects on appeal, after the spouse visa application was rejected, involved immigration knowledge and experience and had sufficient nexus with the current visa application to be considered “advice about the visa application”. Similarly, the respondent submitted that advice about Medicare and education benefits, following the receipt of the FOI documents, required migration knowledge, as Ms Johnsons’ rights depended on the nature of the visa application. The respondent submitted that those enquiries sought “advice about a visa application”. The respondent submitted that in each respect Dr Hudson had given or anticipated giving Ms Johnsons “immigration assistance.”
99. The definition of “client” in s 306C of the Act, and the relevant parts of the definition of “immigration assistance” in s 276 of the Act are set out in paragraph 35 of these reasons. An additional subsection 276(2A) was added by the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004, and came into effect on 1 July 2004. No submissions were made about that proposed amendment and it did not apply during the relevant period. Sections 306C and 276 of the Act, so far as relevant, provide:
306C Clients
For the purposes of this Division, if a registered agent gave, or anticipated giving, immigration assistance to another person who is:
(a) a visa applicant or potential visa applicant; …
then:
(e) the other person is a client of the registered agent and, if the registered agent
dies, the other person remains a client of the deceased registered agent; and
(f) if the registered agent becomes an inactive agent — the other person remains a
client of the inactive agent and, if the inactive agent dies, the other person remainsa client of the deceased inactive agent.
276 Immigration Assistance
(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.
…
(3)Despite subsections (1), (2) and (2A), 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.
FINDING AS TO THE GIVING OF “IMMIGRATION ASSISTANCE”
100. I consider that Dr Hudson was relying on a semantic distinction without any substantial difference in meaning and effect, in the emphasis he placed on the fact that Ms Johnsons did not specifically say to him “I wish you to help me with the spouse visa application”. I find that she did use words to that effect when she asked Dr Hudson to advise her about, and act on her behalf in regard to her migration problems. I find that she did ask Dr Hudson to advise her about the visa application and that he did so, or anticipated doing so at the time of the consultations.
101. As submitted by the respondent, I find that Dr Hudson did give "immigration assistance" to Ms Johnsons. I find that he used, or purported to use, or anticipated using, “knowledge of, or experience in, migration procedure to assist a visa applicant by … advising the visa applicant about the visa application.” He did so by:
i)Lodging the appointment of agent form (T6) appointing him Ms Johnsons’ agent and requesting that all correspondence relating to the application be sent to him;
ii)Agreeing to act on her behalf, for a further fee, in responding to any future requests the Department might have made;
iii)Agreeing to find out the nature of her visa and what conditions it had and advising her about the effect of those conditions on her daughter’s entitlement to Medicare and her daughter’s educational eligibility;
iv)Advising her to wait until the application was rejected rather than advising her to withdraw or amend it, because her current relationship was not the same as the one specified in the application;
v)Advising her that her application would be rejected;
vi)Advising her what the consequences of that rejection would be; and
vii)Advising that the rejected application would be the first step towards ultimately being able to seek an exercise of ministerial discretion under s 351 of the Act.
102. In making finding (i), I rely on document T6. I find that, when he obtained Ms Johnsons’ signature to that document, and lodged it, Dr Hudson anticipated using “knowledge of, or experience in, migration procedure to assist” Ms Johnsons, by advising her about any correspondence he might receive in the future from the Department about the visa application.
103. As to finding (ii), I accept Ms Johnsons’ evidence, as set out in paragraph 60 of these reasons, that Dr Hudson told her he might need another consultation, if he received a letter form the Department requesting further information. I find that he anticipated using “knowledge of, or experience in, migration procedure” to assist Ms Johnsons in preparing any such response.
104. As to finding (iii), Dr Hudson said that he did not know, when he saw Ms Johnsons, whether or not she was entitled to Medicare, or how that was related to whether she had work rights on her bridging visa. He explained (trans, p46):
I knew that it depended in some way on what application had been made and whether a decision had been taken, whether the child was included. I knew that in a general way and so I needed to find out whether the child had been included. I needed to find out whether a decision had been taken and then I thought well, this is not really my area of expertise. The thing I'd better do is get a letter from the Immigration Department which will set it out.
105. Dr Hudson noted, in his submissions handed to the Tribunal at the hearing, that the answers to Ms Johnsons’ questions of him, “depended in part on what visa she had applied for and whether a decision had been made. As she was not sure about this, it was necessary for me to obtain her file through a request under the Freedom of Information Act”. I find that, in agreeing to obtain the file, and to find out the nature of Ms Johnsons’ visa application and of her bridging visa, and whether a decision had been made, and to advise her as to the effect the type of visa had on her Medicare rights, Dr Hudson was agreeing to “use his knowledge of and experience in migration procedure” to advise Ms Johnsons “about” the visa application.
106. As to my findings in sub‑paragraph (iv), Dr Hudson did not expressly say that he told Ms Johnsons to leave her current application on foot, rather than withdraw or amend it, but I find that is what he did.
107. I make that finding first, because after Ms Johnsons had been to see Dr Hudson about her immigration problems the application was not withdrawn or amended. It was his evidence, as well as that of Ms Johnsons, that she told him about the application for a spouse visa being lodged on the basis of a relationship which was over, and also that when she visited him she was in a different relationship and that she was worried about the change in her status. There is no evidence that he told her to withdraw or amend the application already lodged, and he explained that he did not give her that advice, because the new relationship had not lasted 12 months (trans, p48).
108. There is no evidence that Dr Hudson gave Ms Johnsons any advice as to any alternative course she should adopt, although he agreed that she fully discussed her circumstances with him, including the fact that she was now in a different relationship to that relied on in the spouse visa application. He said (at trans, p45):
…
She was very anxious that Mark Vernal should not know anything about it at the time. So she discussed her relationship with Mark Vernal with me. She didn't like to explain why he didn't - or why he shouldn't be told anything about this but I did agree that I wouldn't tell him anything about it and I didn't.
[Tell anything about the consultation with you?]
Yes. She didn't want him to know anything about the fact that she had made a spouse visa application, in fact, as I understand it and I presumed that's because it was based on a relationship with somebody else but I don't know…
109. Secondly, Ms Johnsons said that Dr Hudson told her it would take one or two years for a decision to be made, and that he would help her sort out any problems. He did not deny that he had given advice along those lines. He confirmed that evidence, saying that he told Ms Johnsons that when the time came she could engage him to write the letter seeking the exercise of the Ministerial discretion (trans, p43):
…There's an application for a visa to the Immigration Department and that's the one that Romantha Johnsons had made and that she claims that I agreed to assist her with which I, in fact, did not. Then there would be a second step after the failure of that, which would be the appeal to the Migration Review Tribunal which could also -
would also definitely fail. I did not agree to help with that either but it hadn't even been made.
The third step would be after the failure of the appeal to the Migration Review Tribunal, one would apply under section 351 of the Migration Act to the Minister for Immigration asking the Minister to exercise his or her discretion to grant a visa notwithstanding the negative decision of the Migration Review Tribunal. Now, I had mentioned to Romantha Johnsons that this was the appropriate thing for her to do. I had mentioned that her spouse visa application could not possibly succeed.
I had mentioned that when it did not succeed, she would be able to apply to the Migration Review Tribunal for a review of that decision and that application would also necessarily not succeed, but I had pointed out that she would then be able to seek the intervention of the Minister under section 351 of the Act and I believe - although I won't swear to it absolutely – I believe that I had said to her something like: if you want me to, when it comes to that stage, I can help you with an appeal to the minister for humanitarian intervention.
[So in fact you did advise her about - you concede that you advised her about these complex matters in the initial three interviews?]
I told her what I have just said.
110. I find that constitutes advice, using knowledge of and experience in migration procedure, about the current visa application, and also advice about future steps in order to gain a visa. It also makes it clear that Dr Hudson advised Ms Johnsons to leave the current application on foot, rather than withdraw or amend it.
111. As to finding (v), although Dr Hudson said he did not advise Ms Johnsons that she had no hope of success in the spouse visa application because “she already knew” that, I accept MARA’s submission that it is a different matter for a registered migration agent to confirm a visa applicant’s view as to the prospects of success in an application, than for the visa applicant to form her own belief as to the prospects of success. I find Dr Hudson did give Ms Johnsons advice about her prospects of success in her spouse visa application.
112. As to findings (vi) and (vii), I accept the respondent’s submission that advice about review prospects and prospects of an application to the Minister involves immigration knowledge and experience, and has sufficient nexus to the visa application which was current when Ms Johnsons saw Dr Hudson, to be described as advice “about the visa application”.
113. Dr Hudson, in his submission of 15 April 2004, relied on an explanatory note on a new version of Form 956, which he submitted made it clear that the Commonwealth correctly understands that “immigration assistance” refers to assistance with a particular application that has been made or is about to be made. That alleged Commonwealth “understanding” was not consistent with the respondent’s submission in this matter.
114. I do not accept Dr Hudson’s submission that the definition of “immigration assistance” in the Act should be read down by reference to the description of that term in explanatory material issued by the Department subsequent to the hearing. The Tribunal must apply the Act, rather than a Departmental guide or explanation of the Act.
115. As to finding (vii), Dr Hudson did not deny that he gave Ms Johnsons advice that the rejected application would be a step towards applying for Ministerial intervention (trans, p43), but he submitted that it was not within the definition of “immigration advice”, because it was about a future application, not the current application. He again relied on the explanatory note in the new version of Form 956, the form he lodged on behalf of Ms Johnsons. His submission of 15 April 2004 described it as the “standard form used for appointment of a migration agent”. I consider that advice can be characterised as advice about the significance or effect of the current application, namely that it was a step towards a future application to the Minister.
116. I find that the advice Dr Hudson gave to Ms Johnsons was not excluded from the definition of “immigration assistance” under s 276(3)(d) which provides:
276. (3) Despite subsections (1), (2) and (2A), a person does not give immigration assistance if he or she merely:
(a) …; or
(b) …; or
(c) …; or
(d)passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.
117. I find Dr Hudson did not merely pass on or anticipate passing on to Ms Johnsons information produced by a third person, without giving substantial comment on or explanation of the information. He said that was what he intended doing about the issue of entitlement to Medicare and education. I find that the letter he anticipated getting from the Department may well have required explanation from Dr Hudson. I find he must have anticipated that it could have required substantial comment or explanation.
118. In any event, the other matters set out as findings (i) – (vii) in paragraph 101 above were not within the exclusion in s 276(3)(d) of the Act.
119. I find that Dr Hudson gave Ms Johnsons “immigration assistance” within the meaning of that term in s 276(1)(b) of the Act and that she was a “client” of his within the meaning of that term in the Code.
120. I suggest that consideration be given to amending the Act to provide a general definition of the word “client”. That definition might make it clear that the s 306C definition of “client” applies to the whole of the Act, rather than being restricted to Division 3A, or it might provide a different definition.
Finding AS TO Breaches of the Code
121. Dr Hudson did not dispute that if Ms Johnsons were a “client” of his, he had failed to comply with the Code in regard to her (trans, p145). It is necessary to look at the particular breaches relied on in considering the appropriate sanction, if any, to be applied in this matter. Mr Wee also asked the Tribunal to make a finding as to whether those particular failures to comply with the code indicate that Dr Hudson is “not a fit and proper person to be a migration agent” under s 303(f) of the Act (trans, pp130 and 155). He explained that the Tribunal’s finding could be of assistance in regard to a separate matter concerning Dr Hudson’s application for re-registration as a migration agent.
122. I find that Dr Hudson breached cl 2.1(a) and (b), 2.4, 2.8(a), (b), (c) and (d), 5.2(c), 6.1(c)(i) and (ii) and 6.2 of the Code. Those clauses are as follows:
2.1 A registered 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 registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.
…
2.8 A registered migration agent must:
(a)within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing; and
(b)act in accordance with the client’s instructions; and
(c)keep the client fully and regularly informed in writing of the progress of each case or application that the agent undertakes for the client; and
(d)within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client’s case or application.
…
5.2 A registered migration agent must:
…
(c) give the client written confirmation of the terms of the service to be rendered;
…
6.1 A registered migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing:
…
(c) file notes of every substantive or material oral communication between:
(i)the client and the agent; and
(ii)the agent and an official of any relevant statutory authority.
6.2 A registered migration agent must keep all documents to which a client is entitled securely and in a way that will ensure confidentiality while the agent is giving services to the client and until the earlier of:
(a) 2 years after the date of the last action on the file for the client; or
(b)when the documents are given to the client or dealt with in accordance with the client’s written instructions.
APPLICATION OF S 303 OF THE ACT
123. There is no suggestion in the evidence that Dr Hudson has neglected the interests of any clients other than Ms Johnsons. He appeared to have a good knowledge of migration law and procedure. In his correspondence and submissions, he made assertions which are not correct, for example saying that Ms Johnsons had not appointed him her agent, and that it was a “mistake” for the Department to send Ms Johnson’s decision to him (T21) and that he helped her “for no charge” (submission of 3 March 2004). He also asserted incorrectly that s 306C does not contain any indication of an intention contrary to the definition applying to the whole of the Act. Dr Hudson had, by the time of the hearing, acknowledged that those statements were errors.
124. I was troubled by the emphatic way in which Dr Hudson asserted facts which on close examination turned out to be incorrect, but I accept his evidence that it was done by mistake and not with the intention of misleading MARA or the Tribunal. I was also very troubled about assertions Dr Hudson made against Ms Johnsons, in his Statement of Case produced at the hearing, in particular, in response to paragraph 26.4 of the respondent’s Statement of Facts and Contentions. Dr Hudson withdrew a part of that paragraph, at my suggestion, at the hearing.
125. There is impressive evidence that Dr Hudson has given very satisfactory service to other clients, and that he is held in high regard by other migration agents. Ms Ross made a statutory declaration and gave telephone evidence to that effect. She is a migration agent and spoke very highly of Dr Hudson’s integrity and professional reputation. She also provided a long list of names of people in Sydney who, she said, were prepared to vouch for Dr Hudson’s reputation as a professional person.
126. An issue arises under s 303(f) of the Act as to whether Dr Hudson “is a fit and proper person to give immigration assistance.” As Mr Wee pointed out, the same issue arises under s 290 of the Act in respect of the registration of migration agents (trans, p129).
127. The respondent’s Statement of Facts and Contentions lodged on 22 March 2004 made no submissions as to whether or not the evidence established that Dr Hudson was not a "fit and proper person to give immigration assistance". In his submissions at the hearing, Mr Wee said that the respondent did not dispute that Dr Hudson was a person of integrity, and relied only on his failures to comply with the Code, as evidence that Dr Hudson was not a "fit and proper person to give immigration assistance". He did not refer to any authorities on the meaning of the concept of being a "fit and proper person".
128. The meaning of the concept of a “fit and proper person” in the context of a migration agent, was considered in Re Hakaoro and Minister for Immigration and Multicultural Affairs (1998) 26 AAR 534. That matter was a review of a decision of the Migration Agents’ Registration Board, to refuse Mr Hakaoro’s application for registration on the ground that he was not a fit and proper person to give immigration assistance, in that he did not possess a sound knowledge of migration procedure. Deputy President Forgie, in considering the meaning of the term “fit and proper person” referred to Hughes and Vale Pty Ltd and Anor v State of New South Wales and Ors [No. 2] (1955) 93 CLR 127, where the High Court said, at 156:
The expression `fit and proper person’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things, honesty knowledge and ability: ‘honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it.
129. The Tribunal in Hakaoro also referred to the High Court decision of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, and in particular to the reasons for decision of Toohey and Gaudron JJ at 380. Their Honours said:
The expression `fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of `fit and proper' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
130. Dr Hudson also referred to the decision of Deputy President Handley in Re Prasad and Migration Agents Registration Authority [2002] AATA 423. In that matter, Deputy President Handley, said, at paragraphs 39 and 40:
39. The obligation placed upon the Respondent by the relevant provisions of the Act is to be “satisfied”. The Tribunal reiterates the reference it made in the previous decision in this matter to the High Court decision in Briginshaw v Briginshaw (1938) 44 ALR 334, where Rich J, at 350, said of the obligation placed upon a court or tribunal to satisfy itself:
The phrase “satisfy itself” so far as it reasonably can obviously reflects the influence of the common expression “reasonable satisfaction”… The nature of the allegation requires as a matter of commonsense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the Tribunal has reached both a correct and just conclusion.
40. In its previous decision in this matter, the Tribunal also referred to the meaning of the phrases “person of integrity” and “fit and proper person”. The Tribunal cited the discussion by Deputy President Purvis in Re SRH and Controller-General of Customs (1995) 21 AAR 401, at 405, when he adopted the ordinary meaning of the word “integrity” as indicating “soundness of moral principle and character; uprightness; honesty”. He then went on to discuss the meaning of “fit and proper” in the context of the Income Tax Assessment Act, which he said encompasses integrity, honesty, diligence and professionalism; these are the qualities relevant to integrity. The Tribunal then cited Deputy President Forgie in Hakaoro and Minister for Immigration and Multicultural Affairs (1998) 26 AAR 534, and her discussion of the need for a migration agent giving competent migration assistance to have a knowledge of migration procedure. While knowledge may not reflect on a person’s integrity, it may mean that a person is not otherwise a fit and proper person to give immigration assistance.
131. I adopt those passages as a helpful discussion of the relevant standard of proof, and also of the meaning of the phrase “fit and proper person”. I suggest that perhaps some concept of good judgement, and respect for one’s clients would also be appropriate qualities to expect of a fit and proper person to give immigration assistance.
132. I have found that Dr Hudson breached clauses 2.1(a) and (b), 2.4, 2.8(a), (b), (c) and (d), 5.2(c), 6.1(c)(i) and (ii) and 6.2 of the Code. The breaches of clauses 6.1 and 6.2 do not in this matter have any bearing on issues of “honesty, knowledge and ability”. The breaches of clauses 2.8 and 5.2 may have led to the problems, in that if Dr Hudson had confirmed Ms Johnsons’ instructions in writing, and given her written confirmation of the terms of the service to be rendered, the position would have been much clearer to him and to Ms Johnsons. The unfortunate situation of Dr Hudson throwing out Ms Johnsons’ papers, while remaining her migration agent on the Department’s records and in her mind, should then not have arisen.
133. I consider the position to be less clear in regard to Dr Hudson’s breaches of clause 2.1(b). I find that Dr Hudson failed to deal with Ms Johnsons competently, diligently and fairly when he failed to open a client file for her, when he destroyed her papers without advising her that he was doing so, when he probably received the Department’s letter of 18 September 2002 (T12) on her behalf, and when he did not take substantial steps to try and locate her when he received the rejection decision. He also failed to deal with her competently, diligently and fairly when he failed to advise the Department that he had not advised Ms Johnsons of the decision rejecting her application.
134. I find there were serious breaches of clause 2.1and 2.4 and the other clauses specified earlier. But I am not “comfortably satisfied” that those breaches establish the Dr Hudson is not a "fit and proper person to give immigration assistance". I find that they are not typical of the way Dr Hudson deals with clients.
135. Dr Hudson’s breaches of the Code all relate to one particular client and to an unusual situation, in that the client came to see Dr Hudson about a spouse visa application which had already been lodged. At the first consultation she came to seek advice about her status and the consequences of the relationship described in the application no longer being current. I find that Dr Hudson was wrong in deciding not to open a client file for Ms Johnsons, and in not accepting that she was a “client” to whom the Code applied. Those errors led to other serious mistakes which disadvantaged Ms Johnsons. They also caused Dr Hudson to fail to comply with the Code.
136. I do not find that the breaches of the Code in respect of Ms Johnsons establish that Dr Hudson is not “a fit and proper person to give immigration assistance”. Bearing in mind the circumstances in which they arose, they are evidence that Dr Hudson made a number of mistakes, but they do not make me comfortably satisfied that Dr Hudson is not a person of honesty, knowledge and ability. They do demonstrate poor judgment, but are not such that I feel persuaded that I should give a wider meaning to the concept of "fit and proper person" than the authorities have so far given.
SANCTIONS
137. I find under s 303(h) of the Act, that Dr Hudson did not comply with the Code. Thus, I have a discretion to cancel or suspend Dr Hudson’s registration or to decide that he be cautioned.
138. Mr Wee said that he had no instructions to make submissions about what sort of penalty was appropriate, and that he left that to the Tribunal. I consider it is necessary when deciding to impose a sanction under s 303 of the Act, to provide reasons for the choice of sanction, and, if conditions are imposed during a suspension, for the imposition of those conditions. Unfortunately, the MARA decision under review did not do so, and neither did Mr Wee in his submissions, other than in a very general way.
139. There was no submission as to cancellation and I find a cancellation of registration would not be appropriate.
140. MARA suspended Dr Hudson’s registration for two years or until two conditions were satisfied. The first condition was that Dr Hudson sit the Migration Agents’ Professional Knowledge Entry Examination (“the entry exam”). I was surprised at that condition, as the evidence did not suggest that there are any significant gaps in Dr Hudson’s professional knowledge. He overlooked the fact that the definition in s 306C is expressed to be for a limited purpose only, but that is a technical error, which as I have found, has no practical effect because the definition of “client” in s 306C is apt for the rest of the Act, as well as for the purposes of Division 3A.
141. Bearing in mind the point made by the Tribunal, in Re Griffiths and Migration Agents‘ Registration Authority [2002] AATA 247, that the object of s 303 of the Act is to “protect and maintain proper standards in the relevant profession and not to take action by way of punishment”, I asked Mr Wee if he could explain why MARA had imposed that condition (trans, p137). Mr Wee could only submit that perhaps it was considered that the entry exam would cover the Code, and that Dr Hudson might require a refresher course on the Code.
142. In considering what sanction, if any, is necessary to protect the public, it is relevant that Dr Hudson gave evidence that he had changed his office procedures. He addressed the changes he has made in his Statement of Facts and Contentions, at para 75:
I now realize that to lodge a Form 956 in order to get a letter from the Department is inappropriate and the way to do it would be to ask the visa applicant to sign a letter of authority in relation to that specific matter; and I no longer assume that Department correspondence is always sent to the visa applicant. Furthermore, I now make it a point to establish files for every person on whose behalf I undertake any kind of work, even if they are not clients as defined in the legislation. Therefore there is no way that the same consequences would ever recur.
143. Dr Hudson also said (trans, p135):
I have put in place procedures which will ensure that no such mistakes could occur again. This was an isolated and most unusual set of circumstances which has never been repeated and there has never been any other complaint against me. Therefore, there is no danger that the public needs to be protected against. On the contrary, the evidence clearly shows the enormous services I have rendered in immigration matters to so many people over 5 years. These services would have to come to an end if I were suspended or my re-registration were refused.
There would, I believe, be an outcry from the many clients I have helped and whom I am helping at the moment, many of whom tell me that they would not go to any other migration agent because there is nobody else they trust. The public interest is therefore, overwhelmingly on the side of allowing me to continue as a registered migration agent.
144. There is no evidence of Dr Hudson neglecting the interests of other clients. In view of his evidence as to the changes in procedure he has adopted to ensure that a similar situation does not develop in future in regard to any person to whom he gives advice in a consultation, I do not see that there would be any gain in suspending Dr Hudson’s registration. It would not benefit Ms Johnsons and there is no evidence that other current or future “clients” are at risk.
145. Thus, the only remaining options are to take no action under s 303 of the Act or to decide that Dr Hudson be cautioned in accordance with s 303(c). For a registered migration agent to throw away a client’s papers without reading them, when that would have revealed that an appointment of agent form had been lodged with the Department, was careless and incompetent. To throw those papers out, without advising either the client or the Department that he had done so, was again careless and incompetent. It resulted in Ms Johnsons’ not being made aware of the fact that her visa had been rejected. That meant that she could not seek review by the MRT and thus she could not take the further step of applying for an exercise of Ministerial discretion. She has had to lodge a further application for a visa in order to get back to the position where she can go to the MRT or RRT to qualify to apply for an exercise of a Ministerial discretion. Under the Act, such an application can only be made by a person whose application to the MRT or RRT has been rejected.
146. Further, as I said at the hearing, the tone of Dr Hudson’s correspondence with MARA, and of some parts of his submissions to the Tribunal, lacks a proper appreciation of how his errors of judgment and of recollection caused him to be subject to an adverse decision by MARA.
147. In his letter of response to the complaint forwarded to him by MARA (T21), Dr Hudson emphatically made a number of assertions which were incorrect. Further, I consider Dr Hudson adopted an inappropriate tone in parts of his written submissions delivered on the day of the hearing, for example in paragraphs 35 and 78, and in his letter to MARA of 17 October 2002 (T26 p89). Those matters, in my view, indicate poor judgement and a lack of contrition. They also indicate a lack of respect for MARA’s responsibility to investigate complaints about migration agents. Taking those matters into account, I consider this is a situation where it is appropriate to caution Dr Hudson.
148. I commend to Dr Hudson his own advice to clients, “be polite and respectful in all your dealings with Australian Government Officials” (T21 p73). If Dr Hudson had been more polite and respectful when interviewed on behalf of MARA, and had been apologetic when he was reminded that he had in fact lodged a Form 956 appointing himself as Ms Johnson’s agent, and requesting that Departmental correspondence be sent to him, the Conduct Advisory Panel’s recommendation that he be cautioned (T24 p86) may have been adopted, rather than the more serious penalty of suspension.
149. I have decided that the appropriate decision is that Dr Hudson be cautioned under s 303(c) of the Act. I will set aside the decision under review and will decide in substitution that Dr Hudson be cautioned under s 303(c) of the Act. I will also reserve liberty to the parties to apply if any questions should arise as to the implementation of this decision.
I certify that the 149 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dwyer
Signed: Josephine McKay
Associate
Date/s of Hearing 24 March 2004
Date of Decision 24 September 2004
Representative of Applicant Self-represented
Solicitor for the Respondent Mr Wee, Australian Government Solicitor
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