Issa and Migration Agents Registration Authority

[2017] AATA 1110

Issa and Migration Agents Registration Authority [2017] AATA 1110 (3 July 2017)

Division:GENERAL DIVISION

File Number:          2014/5298

Re:Issam Issa

APPLICANT

Migration Agents Registration AuthorityAnd  

RESPONDENT

Decision

Tribunal:Mr P W Taylor SC, Senior Member

Date:3 July 2017

Place:Sydney

The decision under review is affirmed.

..............................[sgd]..........................................

Mr P W Taylor SC, Senior Member

Catchwords

MIGRATION AGENTS REGISTRATION – cancellation of applicant’s registration as migration agent – breaches of the Code of Conduct for migration agents prescribed under Migration Agents Regulations 1998 – finding that Code of Conduct breached – applicant not a fit and proper person to give immigration assistance – MARA’s fraud allegations not sustained – decision under review affirmed

MIGRATION AGENTS REGISTRATION – breaches of the Code of Conduct for migration agents prescribed under Migration Agents Regulations 1998 – finding that Code of Conduct breached – failure to deal with clients competently, diligently and fairly – failure to have due regard to client’s dependence on agent’s knowledge and experience – failure to meet standards of frankness and candour about prospects of success when assessing a client’s request for assistance – failure to advise clients where, in agent’s opinion, application was vexatious or grossly unfounded – failure to meet duty to provide sufficient relevant information to Department or review authority to allow a full assessment of all the facts

Legislation

Migration Act 1958, ss 29, 30, 36(1B), (2), (2A), 40, 41, 46, 48, 48A, 48B, 52, 55, 56, 57, 58, 63, 64, 65A, 91R, 276, 277, 280, 303(1), 309, 313, 314, 316(1)(c), (e), 414A, 417, 423-426, 426A

Migration Agents Regulations 1998, r 9; Sch 2, cll 1.10, 1.11, 1.12, 2.1(a), (b), 2.3, 2.4, 2.6, 2.7, 2.8, 2.9, 2.9A, 2.17, 2.19, 2.21, 2.23, 5.2, 6.1

Migration Regulations 1994, rr 2.03(1), 2.04(1), 2.05, 2.07(1), 2.12; Sch 1 cl 1401; Sch 2 cll 801.221, 866.211

Cases

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bal v Minister for Immigration and Multicultural Affairs [2002] FCAFC 189; (2002) 189 ALR 566
Chang and Migration Agents Registration Authority [2014] AATA 235
Co-ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 1 ALR 201
Cunliffe v Commonwealth of Australia [1994] HCA 44; (1994) 182 CLR 272
Davies v Australian Securities Commission (1995) 59 FCR 221
Hanna v Migration Agents Registration Authority [1999] FCA 1657
Hartnett v Migration Agents Registration Authority [2004] FCAFC 269; (2004) 140 FCR 388
Kazi and Migration Agents Registration Authority [2006] AATA 42
Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486
Mohammad v Migration Agents Registration Authority [2004] AATA 1401
Mottaghi v Migration Agents Registration Authority [2007] AATA 60
Narayanan and Migration Agents Registration Authority [2006] AATA 353
Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12
Rozsy v Migration Agents Registration Authority [2008] AATA 434
Shi v Migration Agents Registration Authority [2005] AATA 904
Spellson v George (1992) 26 NSWLR 666
SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487

SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328

Secondary Materials

Ritchie A.V and Taylor P.W, Ritchie’s Uniform Civil Procedure (NSW) (LexisNexis, 2005)

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

3 July 2017

INDEX

Events leading to the cancellation decision

MARA’s formal action

Mr Issa’s March 2013 response

File examination

More complaints – by CID 58:-D_m & CID 22:-Elm_ma

Mara’s 10 October 2014 cancellation decision

The fraud allegations]

The “template” and “inadequate” applications allegations

The instruction / acknowledgement letters – MARA’s criticisms

Statutory provisions relating to protection visa applications

Statutory obligations relating to migration assistance

Code of conduct obligations

Code obligations – content and meaning]

Mr Issa’s evidence of his general practice]

Professor Millbank’s evidence

Mr Issa’s response to the Code breach allegations

Schedule 1 – the DIAC files[199]

Schedule 2.1- The sexual orientation protection visa claims

Schedule 2.2 - The religious persecution claims

Schedule 2.3 - The political opinion claims

Schedule 2.4 - The partner visa applications

Summary of Findings

Exercise of the Migration Act 1958 section 303 discretion]

Decision

introduction

1. Section 303(1) of the Migration Act 1958 (“MigAct1958”) gives the Migration Agents Registration Authority (“MARA”) a conditional discretion to cancel or suspend a migration agent’s registration. Three of the various alternative conditions enlivening the discretion are satisfaction that the agent either (i) is not a person of integrity, (ii) is not a “fit and proper” person to give immigration assistance; or (ii) has not complied with the Code of Conduct. (The Code is contemplated in MigAct1958 s 314, and actually set out in Schedule 2 of the Migration Agents Regulations 1998 (“MigAgntReg1998”)). 

2. On 10 October 2014 MARA declared its satisfaction that all three of those MigAct1958 s303(1) conditions had been satisfied. It decided to cancel Mr Issa’s registration as a migration agent. The two most significant practical consequences of the decision were that (i) Mr Issa was disqualified for five years from being registered, and (ii) could not lawfully continue to provide immigration assistance, other than legal assistance. (The expressions “immigration assistance” and “immigration legal assistance” are defined in MigAct1958 ss 276 & 277, and include assistance or advice relating to visa applications or decisions. As a broad generality, “immigration legal assistance” typically means assistance relating to court proceedings.)

   Events leading to the cancellation decision

3. MARA’s cancellation decision was the culmination of a series of events dating back to November 2011.  The more significant developments in that series can be briefly described.

4. 1 November 2011:  In November 2011 the Principal Member of the Migration Review Tribunal (“MRT”) and the Refugee Review Tribunal (“RRT”) wrote to MARA raising the question of Mr Issa’s possible breaches of Code obligations relating to the lawfulness, diligence and competence of his immigration assistance:-  Code cl 2.1(a), 2.1(b) & 2.3 – see paragraph 155 below.  (Any court or tribunal can complain to MARA about the conduct of a lawyer, or a registered migration agent, in relation to the provision of “immigration assistance”:  see MigAct1958 s 316(1)(c) & (e) & MigAgntReg1998 r 9.)  The Principal Member’s November 2011 letter raised the following matters:-

   (a)the high proportion of Tribunal hearings cancelled at Mr Issa’s request between January 2010 and October 2011 (almost 47% of 389 hearings involving his clients);

   (b)the similarities in four protection visa applications involving belated, and questionable, claims of conscientious objection to military service;

   (c)the similarities in five protection visa applications, involving “interfaith” relationship claims, where the client either did not attend relevant interviews, or withdrew the claim;

   (d)the similarities in about 10 protection visa applications, involving claims of homosexuality or bisexuality, where supporting evidence was either subsequently disavowed or was typically rejected because of adverse credibility findings about the visa applicant’s claims; and

   (e)one instance where Mr Issa had not included a client’s spouse as an applicant in RRT review proceedings.

   5.In the final two paragraphs of the November 2011 referral letter the Principal Member acknowledged there was no evidence that Mr Issa had fabricated claims.  But he went on to express concern about the appearance of similarities in aspects of the claims made in a number of cases.  The Tribunal’s concern was about the genuineness of the claims and about the quality of the advice Mr Issa gave to the particular clients.  The Tribunal observed that changing details in a visa applicant’s claims “does not reflect well on the credibility of the applicant”.

5. 5 March 2012:  The MRT/RRT Principal Member referred a further complaint to MARA (and to the Legal Services Commissioner).  This referral arose out of allegations by one of Mr Issa’s clients (CID 56:-Tbt_mh) at an RRT hearing on 18 January 2012.  The client’s protection visa application claimed he was homosexual and feared persecution in his country of origin.  The client withdrew his application at the RRT hearing.  He told the RRT he was not homosexual, and that Mr Issa had suggested the claim, and encouraged him to make the application on that false basis.  As a result of this 5 March 2012 referral, and Mr Issa’s status as a legal practitioner, the Legal Services Commissioner wrote to Mr Issa on 27 March 2012 formally notifying him of grounds of complaint relating to the client’s allegations.

6. 3 April 2012:  Mr Issa responded to the Legal Services Commissioner in a 3 April 2012 letter.  He said on 5 December 2011 he had first become aware that CID 56:-Tbt_mh’s homosexual persecution claim was fabricated, and had ceased to act for him on that date.  He produced apparently contemporaneous corroborative documents – specifically (i) a handwritten file note of 5 December 2011, (ii) a typewritten letter of 6 December 2011, and (iii) another letter of the same date to the RRT.  He also provided statutory declarations from two of his staff members.  They attested to the fact of the 5 December 2012 meeting, and Mr Issa’s refusal to continue to act for CID 56:-Tbt_mh.

7. 10 April 2012:  The MRT/RRT Principal Member referred a further complaint to MARA.  This referral involved an allegation that Mr Issa had advised a client (CID 57:-So_sa) to fabricate a claim of Evangelical Christianity, in order to enhance his prospect of succeeding in an application for a protection visa,  Although this complaint was also referred to him, the Legal Services Commissioner took no action to bring it to Mr Issa’s attention.  It appears not to have been conveyed to Mr Issa until MARA’s December 2012 notice.  (I refer to this in paragraph 11 below.)

8. 5 May 2012:  On 5 May 2012 the Department of Immigration and Citizenship (“DIAC”)[1] wrote to MARA setting out its own complaint about Mr Issa.  The DIAC email recited a 12 to 18 month history of intra-departmental concerns about Mr Issa’s services in connection with visa applications.  The more particular concerns it expressed involved:-

   (a)protection visa refusal rates of 44% (in 2009/2010), 65% (in 2010/2011) and 57% (in 2011/2012) which, although described as high, did not fall under the discretionary complaint referral provisions in Part 3 Division 3AA of MigAct1958;

   (b)the possible fabrication and recycling of protection visa applications involving religious and homosexual persecution claims; and

   (c)heterosexual partner visa applications being made by clients who had previously sought protection visas on the basis of homosexual persecution claims.

   [1]  I will refer to the Department as “DIAC” – despite its subsequent name changes.

9. 21 May 2012:  On 21 May 2012 the Legal Services Commissioner received, and shortly afterwards forwarded to MARA, a complaint letter from a solicitor for CID 35:-Nr_f – one of Mr Issa’s former protection visa applicant clients:- see paragraphs 54 to 88 below.  The letter offered the client’s assistance, and foreshadowed a request for a reciprocal immunity, in pursuing allegations that Mr Issa had encouraged the client to fabricate claims of homosexuality for his protection visa application.  The complaint letter included the April 2012 transcript of an interlocutory hearing in the Federal Magistrates Court (“FMC”).  The hearing related to the client’s incongruous (and subsequently abandoned) attempt to reinstate discontinued proceedings seeking judicial review of the RRT’s January 2011 refusal of the allegedly fabricated application.  The transcript recorded the former client making allegations that Mr Issa had (i) been responsible for the fabricated homosexuality claim, and (ii) had discontinued the judicial review proceedings without the client’s knowledge and instructions.

   MARA’s formal action

10. On 28 December 2012 MARA wrote to Mr Issa giving him a formal complaint notice under MigAct1958 s 309. The letter referred to the matters that had been the subject of the more general complaints by the MRT/RRT (the November 2011 referral) and DIAC (5 May 2012), the three specific client complaints that had been raised in the MRT/RRT correspondence referred to above (CID 56:-Tbt_mh, CID 57:-So_sa and CID 35:-Nr_f), and a further complaint from a client (CID 59:-M_a) that Mr Issa had sought to encourage him to submit a spurious protection visa claim.

11. The primary concern raised in MARA’s 28 December 2012 notice was that Mr Issa had advised and assisted clients to fabricate visa claims.  That was the concern implicit in the RRT/MRT’s November 2011 referral, and tentatively expressed in DIAC’s 5 May 2012 complaint.  It was the substance of the complaints made by each of the four clients referred to in paragraph 11 above. 

12. The December 2012 notice gave a breakdown of Mr Issa’s visa applications from August 1997 to November 2012.  It also reported on a more detailed analysis of a sample of 50 protection visa applications in that period.  The details of that analysis were set out at length in the notice.  Their more salient aspects are summarised in the following Table.

13. MARA noted that none of the files it had sampled, or the general matters raised by DIAC and the MRT/RRT, provided direct evidence of fabricated clams.  But MARA pointed to the content of the client complaints, and regarded those complaints as adding to an appearance of a consistent course of improper conduct.  The specific possible conclusions MARA identified in the December 2012 notice included the following propositions:-

    (a)various numbers of the 26 homosexual persecution applications contained similar features (eg., the partner’s first name (six matters), relationship with another of Mr Issa’s clients (six matters), age of awareness (14 matters) and venue attendance (nine matters)) whose frequency of occurrence was implausible, except as the result of deliberate and encouraged fabrication;

    (b)two disappointed homosexual protection visa applicants (CID 13:-Eld_k & CID 21:-Kr_b) had subsequently lodged heterosexual partner visa applications, an occurrence which questioned the veracity of their protection visa application;

    (c)most of the protection visa applications were unlikely to be genuine, and more likely to have been the result of encouraged fabrication, having regard to the fact that (i) 30 of the applicants had previously entered Australia on student visas, (ii) 14 of them had previously held partner related visas, and (iii) nine of the applicants who had previously held partner visas made domestic violence claims;

    (d)Mr Issa’s 3 April 2012 response to the Legal Services Commissioner in relation to the CID 56:-Tbt_mh complaint (see paragraph 7 above) was not credible, and the apparently corroborating documents he had provided (including the statutory declarations from two of his employees) were likely to have been fabricated; and

    (e)the frequency of unsuccessful initial protection visa applications, and the regularity with which they were the subject of subsequent applications, suggested a course of conduct designed to prolong clients’ Australian presence, despite their various applications having little merit and minimal prospects of success.

    Mr Issa’s March 2013 response

14. On 27 March 2013 Mr Issa provided a 41 page response to MARA’s December 2012 formal complaint notice.  His response contained the following contentions.

    (a)None of the analyses undertaken by the RRT/MRT, DIAC or MARA provided probative evidence of fabricated claims.

    (b)The RRT/MRT statistics on hearing cancellations (see paragraph 4(a) above) had misinterpreted the primary data, failed to distinguish between true “cancellations” and mere “postponements”, and failed to recognise that his clients’ hearing attendance rate was actually much greater than the overall average.

    (c)In the six year period from 2007 to 2012, he had been involved in about 1,850 substantive visa applications.  Consequently, criticism of his conduct, based on a selection of only 50 matters, was flawed.

    (d)Apparent similarities in protection visa applications were predictable and unexceptional where the applicants based their claims on membership of a particular social group (irrespective of whether the group identifier was religious, sexual, political or ethnic in character).

    (e)Many of the particular similarities remarked on in MARA’s December 2012 notice, in relation to claims concerning homosexual persecution, were typical features of such claims and that view was substantiated by expert scholarly opinion.

    (f)All of the protection visa claims were submitted on the basis of client instructions, and often supported by hand written statements and letters that were dated and signed.

    (g)None of the specific client complaints substantiated the observations MARA had made based on apparent similarities in applications and statistical analysis or file samples – for the following reasons:-

    (i)CID 35:-Nr_f:- had provided the RRT with “highly detailed fraudulent claims in addition to the material” in his original instructions, consented to the dismissal of the review proceedings in the Federal Magistrates Court, and then dishonestly sought to re-instate those proceedings and continue his fraudulent protection visa claim.

    (ii)CID 56:-Tbt_mh:- there was no adequate basis for imputing the reliability of the apparently corroborating documents Mr Issa had provided in response to the CID 56:-Tbt_mh complaint and, in particular, no basis for finding that CID 56:-Tbt_mh had terminated Mr Issa’s engagement before 5 December 2011.  (That is the date when Mr Issa says he became aware of the false basis of the protection visa claim)  Furthermore, CID 56:-Tbt_mh had pursued his fraudulent protection visa claim after dismissing Mr Issa as his migration agent.

    (iii)CID 59:-M_a:- whilst Mr Issa agreed suggesting to CID 59:-M_a that he might have grounds for making a protection visa claim, he denied that he had in any way encouraged him to make a false claim, and certainly did not “guarantee” its success.

    (iv)CID 57:-So_sa:- there was no evidence to justify any finding of fabrication in relation to the CID 57:-So_sa complaint, because his claim to have been an Evangelical Christian was recorded in the earliest of Mr Issa’s file notes, corroborated by a church pastor, endorsed in the completed application signed by the client and broadly consistent with the contents of the March 2012 complaint letter in any event.

    (v)Apart from the preceding four client matters, there was no instance in which MARA had identified “one solitary, specific representation that supposedly constitutes a part of the mass fraud asserted” in the December 2012 notice.

    (vi)The two instances where protection visa applicants had subsequently lodged heterosexual partner visa applications involved a person who was an acknowledged bisexual, and another person who had “formed a relationship with an understanding and caring Muslim woman aware of his past”.  Neither matter provided any evidence of fraud on the part of Mr Issa and neither client had made any complaint about his services.

    File examination

15. Following Mr Issa’s March 2013 response, and perhaps prompted by some of the criticisms he had made, on 19 April 2013 MARA formally requested him to provide the files of 50 nominated clients.  It seems likely, although the evidence did not specifically establish, that these requested files corresponded with those that had been the subject of the sample analysis referred to in MARA’s December 2012 notice:- see paragraph 13 above.  Mr Issa provided 27 of the requested files in July 2013, and a further seven files at a later stage.

    More complaints – by CID 58:-D_m & CID 22:-Elm_ma

1. On 14 January 2014 MARA informed Mr Issa of another complaint, and gave him a formal notice (under MigAct1958 s 308) requiring him to provide a statutory declaration answering specific questions about the complaint. The complaint was the converse of that previously made by CID 35:-Nr_f:- see paragraph 10 above.  It was that Mr Issa had refused to include in a protection visa application the instructions of a client (CID 58:-D_m) that he was homosexual.  The notice of complaint itself disclosed that Mr Issa had refused to include the allegation because he was not satisfied the client had any supporting evidence.  It also disclosed that, on 29 May 2013, months before both the client’s formal complaint and MARA’s January 2014 notice, Mr Issa had himself communicated with MARA and reported that he was ceasing to act for the client, because he doubted the veracity of the client’s claim.  In his specific response to the January 2014 notice, Mr Issa repeated the explanation that he was not satisfied the client’s claim was genuine.  He also pointed to the matters raised in MARA’s 28 December 2012 notice as supporting the view that his dissatisfaction precluded him from including such a claim in the client’s application.

2. Ten days later, on 24 January 2014, MARA gave Mr Issa another MigAct1958 s 308 notice relating to yet another client complaint. This involved CID 22:-Elm_ma, a client whom Mr Issa had assisted in making an unsuccessful protection visa application (on 23 November 2010) and a subsequent (also unsuccessful) partner visa application (on 5 December 2011). In relation to the protection visa application MARA’s notice queried the absence of information about the client’s claimed religious preaching activities. In relation to the partner visa application the notice conveyed the client’s complaints that Mr Issa (i) had not used the appropriate application forms, and (ii) had not submitted numerous photographs that the client said supported his partner status.

3. Mr Issa responded promptly to these notices in February 2014, and anticipated that a further formal notice under MigAct1958 s 309 would be issued in relation to them. In August 2014 MARA assured Mr Issa that the information on which it relied had been put to him in the notices it had already given.

   Mara’s 10 October 2014 cancellation decision

4. The 10 October 2014 cancellation decision followed consideration of Mr Issa’s responses to MARA’s statutory notices, an examination of 34 of Mr Issa’s client files, and examination of 39 DIAC files relating to matters concerning visa applicants for whom he had acted.  These files related mainly to protection visa applications (53 client matters) but also included several partner visa applications. 

5. In an attachment to the cancellation decision reasons, MARA made specific findings about particular client complaints.  Those findings were as follows:-

   (a)CID 22:-Elm_ma:-  Focussing on the content of Mr Issa’s acknowledgement letter to the client, rather than on the actual content of the client’s protection visa application, MARA concluded that Mr Issa had included unsubstantiated and inaccurate information about the client’s preaching activities.  However, MARA made no specific finding that Mr Issa had either promoted, or participated in, the client making a false claim to be a Korani.  MARA also addressed the short intervals between (i) Mr Issa’s 6 July 2011 letter notifying the client of the RRT refusal decision, (ii) the 25 July 2011 conference involving instructions to file FMC review proceedings, (iii) the 1 August 2011 commencement of those proceedings, and (iv) the 18 August 2011 withdrawal of those proceedings.  MARA observed that there was no record of the substance of any advice Mr Issa had given in relation to the FMC proceedings.  MARA concluded that Mr Issa had either (i) lodged a “vexatious and grossly unfounded” FMC application, or (ii) failed to give proper consideration to, and advice about, the client’s prospects of success in those proceedings. 

   (b)CID 59:-M_a:- MARA’s file examination established that Mr Issa had a practice of lodging protection visa applications with minimal and general information.  Consequently, the client was likely to be correct in his claim that Mr Issa had offered  to submit such an application on the basis of fabricated claims.

   (c)CID 35:-Nr_f:- Mr Issa had drafted CID 35:-Nr_f’s 21 June 2010 statutory declaration, and included in it information about the Lebanese gay venues and advocacy groups of which CID 35:-Nr_f had no knowledge.  In addition, Mr Issa had submitted the application, and subsequently pursued it, with little apparent attention to CID 35:-Nr_f’s personal circumstances, and a lack of diligence in attempting to substantiate, CID 35:-Nr_f’s claims.  MARA did not make a specific finding that Mr Issa either made or pursued CID 35:-Nr_f’s claim knowing that the client was not in fact homosexual.

   (d)CID 57:-So_sa:- Mr Issa had no file notes to justify a conclusion that he had obtained any significant details of CID 57:-So_sa’s activities as an “evangelical” Christian.  On that basis, having regard to the client’s complaint, and the generality of the information contained in the application form, it was likely Mr Issa had included in the protection visa application information that he knew was false.

   (e)CID 56:-Tbt_mh:- The client had nothing to gain by making a false complaint about Mr Issa, and because he had conceded his own dishonesty, he had acted contrary to his own interests.  Accordingly his evidence was to be preferred, and Mr Issa had assisted CID 56:-Tbt_mh to make false claims in his protection visa application.  In addition Mr Issa had acted without the client’s instructions after 3 November 2011, and had fabricated the notes of the 5 December 2011 meeting.

   (f)CID 58:-D_m:- MARA concluded that Mr Issa had been inconsistent in having lodged (at least prior to the December 2012 notice) homosexuality based protection visa claims without significant substantiating evidence, and having refused to include such a claim for the client in relation to a protection visa application he had lodged in January 2013.  MARA concluded that Mr Issa did not understand or appreciate his responsibilities under clauses 2.6, 2.7 and 2.17 of the Code.

6. In addition to those findings about particular client matters, MARA made adverse findings about Mr Issa’s general practice as a migration agent.  Those findings were expressed, with varying degrees of elaboration, in both the main part of MARA’s reasons and in the attachment to them.  In the main part of the reasons MARA concluded that Mr Issa had failed to provide the appropriate level of diligent service, and candid advice, to his clients.  That conclusion flowed from 13 detailed criticisms of his conduct.  Those criticisms were somewhat repetitive.  Their underlying substance was expressed in two dichotomies.  First, that Mr Issa had either deliberately followed his client’s instructions without question or willingly assisted his clients to lodge protection visa applications with false claims.  Second, that Mr Issa had either misled clients into thinking that their protection visa claims were meritorious, or both Mr Issa and the clients were aware that the applications lacked merit.  Those alternatives, which MARA’s reasons indicate it did not regard as mutually exclusive, emerged from an appearance that Mr Issa had conducted his practice “based on template applications”, and had consistently lodged protection visa applications that intentionally minimised the information they contained, did not sufficiently reflect the individual applicant’s personal circumstances, and were vexatious or grossly unfounded.  That appearance derived from the following matters:-

   (a)the typical absence of records of the client’s detailed instructions, and the absence of records of discussions with, or advice to clients, about the prospects of success of their particular application, including RRT review applications and Ministerial requests (there was said to be evidence in only one of the examined files);

   (b)the similar content of the acknowledgement / instruction summary letters sent to clients – and specifically:

   (i)the recurring claim to have conducted unspecified “research” or “extensive research”;

   (ii)recurrent references to clients having suffered trauma, despite the absence of evidence to substantiate the claim (in 15 out of the protection visa applications based on homosexuality); and

   (iii)recurrent references to “preaching”, despite the absence of evidence of preaching activities by the particular client applicants (in six of the nine protection visa applications based on claims of religious persecution);

   (c)(consistent with the similar content of the instruction letters) the reliance in visa applications on “general country information” – as distinct from emphasis on the individual applicant’s personal circumstances – evidenced by the absence of any record of the content of preliminary instructions from clients, and the absence of reference to specific client circumstances (in 36 of the files examined);

   (d)the standard form of cost agreements with clients (and in particular its formulaic admonition that clients had to accept full responsibility for the contents of all application documents); and

   (e)the number of instances where applications failed at the various stages of department interview (48 – as against one granted),  RRT decision (39 – as against 4 applications remitted), judicial review proceedings (7 – as against 2 successful applications), or Ministerial request (29 – as against 2 successful outcomes).

   The fraud allegations

7. In particulars dated 28 September 2015 MARA resolved the former of the dichotomies to which I referred in the previous paragraph and pursued specific fraud related allegations.  There was one matter where MARA asserted that, after neglecting aspects of a client’s failed partner visa application, Mr Issa offered to submit a false protection visa application.  There were six other matters where MARA alleged Mr Issa had submitted protection visa claims he knew were false.  Those client matters, the general nature of the protection visa claim, and the specific paragraphs of MARA’s particularised allegations, are set out in the following table:

ID	Name	PV Application		Alleged fabrication
Date	Ground	Type	Particulars
CID 46	Elc_a	29-Oct-09	Sexuality	homosexual orientation claim	7D
CID 35	Nr_f	23-Jun-10	Sexuality	homosexual orientation claim	63, 66
CID 22	Elm_ma	23-Nov-10	Religion	religious commitment claim	89, 90
CID 20	Mk_nn	20-Jan-11	Religion	lodgement date	36
CID 57	So_sa	23-May-11	Religion	religious commitment claim	86
CID 56	Tbt_mh	21-Jul-11	Sexuality	homosexual orientation claim	73, 78, 79

1. I deal with each of the seven fraud related matters, and reject MARA’s fraud allegations, in the following sections of these reasons:-

   (a)CID 20:-Mk_nn – paragraphs 25 to 29;

   (b)CID 22:-Elm_ma – paragraphs 90 to 110;

   (c)CID 35:-Nr_f – paragraphs 54 to 88;

   (d)CID 46:-Elc_a – paragraphs 30 to 33;

   (e)CID 57:-So_sa – paragraphs 111 to 123;

   (f)CID 56:-Tbt_mh – paragraphs 34 to 53; and

   (g)CID 59:-M_a – paragraphs 124 to 128.

   CID 20:-Mk_nn – the “false lodgement” statement

2. The basis of MARA’s allegation was a 10 January 2011 client letter in which Mr Issa stated “we confirm that your application has been lodged with the Department of Immigration”.  This statement was apparently contradicted by the fact that Mr Issa forwarded the protection visa application to the Department under the cover of a letter dated 12 January 2011, and the receipt of that letter was not acknowledged until 20 January 2011.  MARA contended that Mr Issa made the 10 January 2011 lodgement statement knowing that it was false.  MARA speculated that the statement could have misled the client into thinking his protection visa application had been lodged on about 30 September 2010 (the date of a statutory declaration accompanying the application), and further speculated that the misstatement deprived the client of the benefit of relevant favourable material. 

3. There is no credible basis for finding that the client misunderstood when his application had been lodged.  MARA’s contentions about the effect of the lodgement statement are mere speculation, and depict an improbable scenario.  They provide no substantial basis for relevant criticism of Mr Issa’s conduct.

4. MARA’s fraud allegation has to be evaluated against the background of the following relevant series of events:-

   (a)10 January 2011:- Mr Issa wrote to the client acknowledging his instructions and setting out a proposed costs agreement for preparing a protection visa application.  The letter outlined the work proposed to be done in connection with the client’s application.

   (b)10-12 January 2011:- The client signed the 10 January 2011 fee agreement letter, acknowledging the terms of the agreement. 

   (c)12 January 2011:- The client attended Mr Issa’s office and signed the completed “Part B” and “Part C” forms essential to his application.  Mr Issa certified a copy of the client’s passport, and prepared a file note recording the client’s attendance and completion of the forms.

   (d)18 January 2011:- Mr Issa wrote to DIAC again, and enclosed a copy of the Part C application form.  His letter stated that it had not been submitted with the original application.

   (e)20 January 2011:- DIAC wrote to Mr Issa acknowledging receipt of the client’s protection visa application.

5. MARA’s allegation of Mr Issa’s knowingly false statement rests on the proposition that the dates on the 10 and 12 January 2011 documents must be taken at face value and record the true sequence of events.  The chronology I have set out above suggests it would be unwise to act on that basis.  It is improbable that Mr Issa would simultaneously (ie., on the same day) have (i) sought the client’s formal acknowledgement of the terms on which he proposed to act, and (ii) reported to the client that he had actually lodged the very application to which his “terms” letter related.  On the contrary, there is a comfortable basis for doubting that the lodgement statement letter was actually sent on the 10 January 2011 date it bears.  The application had not even been completed at that time – a fact that must have been well known to both Mr Issa and to the client.  In addition, Mr Issa’s letter of 18 January 2011 (the letter providing the required Form 866C) bespeaks a degree of administrative inaccuracy in submitting the application.  In these circumstances, which include objective improbability, apparent immateriality (of the difference between the 10 and 20 January 2011 dates) and a degree of mishap in the process of submitting the application, the greater likelihood is that the lodgement statement letter was simply mis-dated (ie., not actually sent on the date it bears), and that Mr Issa is correct in his explanation that at the time he caused the letter to be sent he thought the application had in fact been lodged. 

6. I am not at all satisfied that Mr Issa caused the 10 January 2011 lodgement statement letter to be published to the client at a time when he knew the lodgement statement it contained was incorrect.  I reject MARA’s allegation.

   CID 46:-Elc_a – alleged misleading explanation

7. The RRT held two hearings on 31 May 2010 and 6 July 2010.  Four days after the first hearing, on 3 June 2010, a Mr Merhi attended the RRT on his own and recanted the evidence he had given at the first hearing.  The RRT put this evidence to the applicant at the second hearing, as well as in a subsequent letter dated 13 July 2010.

8. Not having received any response to its 13 July 2010 letter, on 24 August 2010 the RRT sent a second letter to Mr Issa.  He responded the following day.  In part of that response he reported his client’s instructions that (i) the client was disappointed, but not surprised, at Mr Merhi’s recantations, (ii) that Merhi may have been motivated by fear of “being put on public record that he is gay, and (iii) that Merhi’s overall judgment may have been clouded by his drug addiction.

9. MARA’s contention is that Mr Issa’s 25 August 2010 explanation letter was misleading because it neither referred to, nor attached, a July 2010 handwritten fax from CID 46:-Elc_a.  The date of the fax is not clear, and it is not possible to tell whether it was dated before or after the RRT’s resumed hearing on 6 July 2010.  The fax stated CID 46:-Elc_a had spoken to Mr Merhi “today”.  It went on to say Merhi had asked for money to buy drugs and that, when CID 46:-Elc_a had refused, Merhi had got angry and “went to the office and told everything is not true”.  MARA’s essential allegation was that this explanation could not have been true – because Mr Merhi had recanted his evidence on 3 June 2010 rather than “today” (ie., the July 2010 date of CID 46:-Elc_a’s fax to Mr Issa).  MARA’s implicit contention was that Mr Issa must have known that the explanation was spurious, and dishonestly conveyed the substance (but not the full detail) of it to the RRT. 

10. MARA’s contention about this matter is implausible.  There are five reasons why I do not accept it.  First of all, there is nothing to indicate that, prior to the resumed hearing on 6 July 2010, either Mr Issa or CID 46:-Elc_a was aware of either the fact or the timing of Mr Merhi’s recantation to the Tribunal.  Without evidence of his knowledge of that event there is no persuasive reason for CID 46:-Elc_a to have sought any explanation from Mr Merhi, and no reason to conclude that “today” referred to an event before the second hearing on 6 July 2010.  Secondly, although there is no specific evidence as to when CID 46:-Elc_a wrote (as distinct from sent) the contents of the fax, the RRT’s own decision attributes to him a statement, at the 6 July 2010 hearing, that he would speak to Mr Merhi to find out why he had recanted his evidence.  Thirdly, the reference to “today” in the July 2010 fax tends to convey that it was the day when CID 46:-Elc_a sought from Mr Merhi an explanation for his recantation.  It was not, or at least it was not demonstrably understood by Mr Issa to be, an assertion that Mr Merhi had only recanted his evidence on the date CID 46:-Elc_a sent his fax.  That former meaning is consistent with the wording of the fax itself – which suggest that Mr Merhi had given CID 46:-Elc_a an explanation for something he had previously done.  Fourthly, it is not reasonable to conclude that the cryptic handwritten fax, with its ambiguous use of the word “today”, was the totality of the information Mr Issa received from CID 46:-Elc_a before he wrote his 25 August 2010 letter.  Finally, it is not reasonable to conclude that there is any material inconsistency between the contents of CID 46:-Elc_a’s 1 July 2010 fax and the substance of Mr Issa’s 25 August 2010 letter to the RRT.

    CID 56:-Tbt_mh – fabricated homosexuality claim

11. At his RRT hearing on 18 January 2012 CID 56:-Tbt_mh said the basis of his 19 July 2011 protection visa application – that he was a homosexual and feared persecution if he returned to Jordan – was false.  He said they were claims Mr Issa had instigated.  CID 56:-Tbt_mh’s assertions led to the MRT/RRT Principal Member’s 5 March 2012 complaint referral to MARA (see paragraph 6 above) and to Mr Issa’s 3 April 2012 response (see paragraph 7 above).

12. MARA questioned the reliability of Mr Issa’s response for a number of reasons.  They were as follows:-

    (a)CID 56:-Tbt_mh’s 19 July 2011 handwritten statement was dated eight days after Mr Issa claimed to have received it, and four days after Mr Issa wrote to CID 56:-Tbt_mh stating that his application would be lodged.

    (b)The application forms were dated (Monday) 18 July 2011, whereas Mr Issa’s file notes recorded an instruction meeting on (Friday) 15 July 2011.

    (c)There was no evidence of the “extensive research” referred to in Mr Issa’s instruction letter of 15 July 2011.

    (d)The fees Mr Issa charged appeared disproportionate to the work he claimed to have performed.

    (e)The fact that CID 56:-Tbt_mh had provided a handwritten personal statement including the subsequently disavowed claims did not preclude the possibility that Mr Issa had indeed advised him to alter the original version of the handwritten statement and to include the fabricated claims.

    (f)It was more likely that CID 56:-Tbt_mh had terminated Mr Issa’s instructions on about 17 October 2011, and had lodged his own review application, than that Mr Issa had continued to act for him until the events of 5 December 2011.  Mr Issa’s 5 December 2011 file note recorded CID 56:-Tbt_mh’s attendance at 9:30 AM, and that timing was inconsistent with Mr Issa having contacted the RRT at 9:22 AM and informed it of the termination of his retainer.

1. MARA’s contention in the present proceedings was that Mr Issa had suggested, and encouraged CID 56:-Tbt_mh to base his protection visa application on his asserted homosexuality, and had submitted CID 56:-Tbt_mh’s application on that basis, contrary to CID 56:-Tbt_mh’s explicit instructions that he was not homosexual.  This contention really rested on the propositions that:-

   (a)Mr Issa had an initial meeting, or possibly a telephone conversation, with CID 56:-Tbt_mh in which he first suggested that CID 56:-Tbt_mh make his protection visa application based on homosexuality.

   (b)CID 56:-Tbt_mh drafted his 19 July 2011 handwritten statement following his first discussion with Mr Issa, with a friend who was a former successful client of Mr Issa and whose assistance Mr Issa had encouraged him to obtain.

   (c)CID 56:-Tbt_mh formally ended his relationship with Mr Issa in mid-October 2011 when he lodged his own review application with the RRT.

   (d)CID 56:-Tbt_mh’s undisputed attendance at Mr Issa’s office on 5 December 2012, was not for the purpose of asking Mr Issa to continue to act for him in his RRT review application.

   (e)Mr Issa’s apparently contemporaneous file note detailing CID 56:-Tbt_mh’s 5 December 2012 attendance, its purported record of CID 56:-Tbt_mh’s first disavowal of his homosexuality, and its record of Mr Issa’s refusal to continue to act for CID 56:-Tbt_mh, had been concocted.

   (f)Mr Issa’s conduct in refunding $3,000 to CID 56:-Tbt_mh in March 2012, was a probative acknowledgement of his dishonesty in suggesting and pursuing CID 56:-Tbt_mh’s false claim.

2. The initial meeting and suggestion issue:  Mr Issa’s file contains various notes and documents which record the following details.  CID 56:-Tbt_mh first attended Mr Issa’s office on 11 July 2011, with a handwritten statement.  The statement already contained a claim that CID 56:-Tbt_mh was homosexual.  The statement remained in the same form, during later meetings at Mr Issa’s office, including a meeting with Mr Issa’s clerk, Mr Kizana, on 15 July 2011.  It was subsequently signed and dated, by CID 56:-Tbt_mh on 19 July 2011.

3. CID 56:-Tbt_mh’s evidence to the RRT on 18 January 2012 seems to acknowledge, or claim, five significant matters:-

   (a)CID 56:-Tbt_mh approached and met Mr Issa as a result of conversations with, and indeed on the recommendation of, a homosexual friend who had previously engaged Mr Issa on a successful protection visa application.

   (b)With the aid of that friend, CID 56:-Tbt_mh fabricated a statement that he presented to Mr Issa (apparently, though perhaps not certainly) at their first meeting.

   (c)CID 56:-Tbt_mh claimed he did not understand what his protection visa application was about, despite (i) the fact of his friend’s advice and recommendation, and (ii) his claim that he refused to accept Mr Issa’s advice to include details of his immediate family in his statement, because he did not want to make “big trouble”.

   (d)CID 56:-Tbt_mh claimed he had intended to withdraw his application at the stage of the departmental interview, but missed the interview because Mr Issa did not tell him about it.

   (e)CID 56:-Tbt_mh lodged the review application with the RRT, on his own initiative and without Mr Issa’s advice.

4. These details suggest that, well before meeting Mr Issa, CID 56:-Tbt_mh had determined upon the course of asserting homosexuality as a basis for his claim, and had already enlisted the aid of his friend in preparing a specific handwritten claim to that effect.  That conduct is inconsistent with the proposition that Mr Issa suggested that course of action to him.  It also makes it difficult to accept the proposition that when CID 56:-Tbt_mh first met Mr Issa, and presented the statement he had fabricated with his friend, he also told Mr Issa that it was untrue and that his claimed homosexuality was a lie.

5. Mr Issa’s 11 July 2011 instruction letter and file note purport to state the actual date of his first meeting with CID 56:-Tbt_mh.  Consistent with that view, CID 56:-Tbt_mh’s signed costs agreement is also dated 11 July 2011.  Whilst it is conceivable that there may have been an earlier meeting, there is no evidentiary basis to make such a finding.  Indeed, CID 56:-Tbt_mh’s January 2012 disclosure to the RRT is quite unclear as to when he actually met Mr Issa.  More importantly, it certainly does not say (indeed it rejects the suggestion) that CID 56:-Tbt_mh made any changes to his handwritten statement after meeting Mr Issa, and as a result of suggestions he made.

6. CID 56:-Tbt_mh told the RRT that Mr Issa suggested including details about his father in the handwritten statement.  But CID 56:-Tbt_mh said he rejected this suggestion, because he thought the application was good enough and he did not want to make more trouble.  This explanation betrays his subjective awareness of both the nature of his application and the potential ramifications of his claimed homosexuality.  It tends, with other matters, to contribute to difficulty in accepting CID 56:-Tbt_mh’s claim that he lacked a real understanding of his protection visa application.  He had studied technical English at school in Jordan.  He undertook a further Certificate III English course after his arrival in Australia.  He had been studying accounting at TAFE in the first half of 2011.  He had discussed his statement with the friend who had already obtained a protection visa on the same basis.  He wrote his handwritten July statement in English.  He completed the various July 2011 protection application forms without the aid of an interpreter.  He must certainly have understood (i) that he was making a protection visa application, (ii) that his fear of homosexual persecution was the basis of his claim, and (iii) that he was being relied upon, and was claiming, to provide truthful and accurate and information.

7. These considerations provide good reason to find that CID 56:-Tbt_mh did indeed present to Mr Issa at their first meeting with his completed handwritten statement, and that it already contained his unequivocal assertion of homosexuality.  The inclination to make that finding, and to reject the proposition that Mr Issa suggested, encouraged and knowingly participated in the submission of CID 56:-Tbt_mh’s false application is only increased by knowledge of some of CID 56:-Tbt_mh’s subsequent claims.  These include an assertion, in a later 16 June 2014 protection visa application, that his aunty contrived his 2011 application and, in some kind of vindictive attempt to get back at CID 56:-Tbt_mh’s father, had convinced his Jordanian resident family and community that he was homosexual.

8. There is no evidence, beyond CID 56:-Tbt_mh’s assertion, to establish that his aunt played any part in his July 2011 protection visa application.  The assertion, that his aunty fabricated his false protection visa application, with the assistance of Mr Issa and a friend, is contradicted by Mr Issa’s evidence.  It is contradicted by his own explanation to the RRT in January 2011.  It is apparently contradicted by the fact of CID 56:-Tbt_mh’s repeated signature on the various application documents.  Even more importantly, it is contradicted by the DIAC note of an approach CID 56:-Tbt_mh’s aunty made to the Department on 7 September 2011.  In that note, CID 56:-Tbt_mh’s aunty is recorded as complaining that CID 56:-Tbt_mh’s protection visa application was false, and seeking permission to attend the interview in order to confront him.

9. There is a good basis for finding, as I do, that CID 56:-Tbt_mh was willing to say or do anything he regarded as advantageous to his prospect of being able to remain in Australia.  He is simply not a person whose assertions of dishonesty by Mr Issa could be regarded as credible to any extent, unless his assertions were either corroborated by objectively reliable information, or admitted.  There is no such information.  Mr Issa denies the assertions, and Mr Issa’s denials are, in relevant circumstantial respects corroborated by apparently contemporaneous records (and witnesses) whose accuracy (and reliability) has not been materially impugned.

10. I do not accept CID 56:-Tbt_mh’s claim that, at the outset of his dealings with Mr Issa he proffered his statement, with its unequivocal claim about his homosexual orientation, and at the same time told Mr Issa that his homosexuality claim was false.

11. Termination of Mr Issa’s engagement.  CID 56:-Tbt_mh told the RRT (at the January 2012 hearing) that he had sacked Mr Issa “whilst the matter was with the Department”.  He also told the RRT that he had intended to withdraw his claim at the interview stage.  His reason for not having done so was that, as he claimed, Mr Issa had not told him about the interview.  I do not accept any of these claims.

12. Mr Issa wrote to CID 56:-Tbt_mh on 2 September 2011, notifying him of the review application.  There is good reason to find that CID 56:-Tbt_mh received the letter, was aware of the scheduled interview date, and that his contrary claim to the RRT were wrong.  One such reason is that his aunty (with whom he lived) contacted DIAC on 7 September 2011 seeking permission to attend the interview, and confront him about what she claimed was the false basis of his application.  Another reason to reject his claim is that, when Mr Issa challenged him (in a telephone conversation on 12 November 2011) about his reason for not attending the interview, he made no complaint about not having been told about the interview.

13. The initial DIAC decision rejecting CID 56:-Tbt_mh’s protection visa application was contained in reasons dated 29 September 2011, and conveyed to him under cover of a 5 October 2011 letter from Mr Issa.  Almost two weeks later, on 17 and 18 October 2011, CID 56:-Tbt_mh lodged his own review application with the RRT.  He also completed a form notifying that Mr Issa’s engagement had been terminated.  It follows that, despite what CID 56:-Tbt_mh later told the RRT, he did not terminate Mr Issa’s appointment until weeks after DIAC’s refusal of his application.  Furthermore, far from withdrawing his protection visa application, because he conceded that it was false, he took the initiative of lodging his own review application.

14. Events after 18 October 2011 are even more inconsistent with CID 56:-Tbt_mh’s claim to have terminated Mr Issa’s services.  Mr Issa, unaware of the documents CID 56:-Tbt_mh had lodged on 17 and 18 October 2011, later filed another review application on CID 56:-Tbt_mh’s behalf.  When contacted by the RRT on 3 November 2011, Mr Issa indicated that he was unsure whether CID 56:-Tbt_mh wished to continue his representation, and would contact CID 56:-Tbt_mh to clarify the situation.  Mr Issa has a handwritten file note to that effect.

15. Mr Issa produced a handwritten file note of a telephone call from CID 56:-Tbt_mh on 12 November 2011.  In that conversation CID 56:-Tbt_mh said (i) he had received wrong advice from someone else, (ii) he wanted Mr Issa to continue to act for him, and (iii) when he met with Mr Issa, he would explain the reasons he did not attend the DIAC interview.

16. The 5 December 2011 meeting.  CID 56:-Tbt_mh said nothing to the RRT about having attended Mr Issa’s office on 5 December 2011.  In its October 2014 reasons, MARA dismissed Mr Issa’s apparently contemporaneous file notes of his attendance as fabrications.  In the present proceedings MARA neither disputed the fact of CID 56:-Tbt_mh’s attendance at Mr Issa’s office on 5 December 2011, nor required Messrs Kizana and Youssef (another one of Mr Issa’s employees) for cross examination on their statutory declarations about that attendance.  However MARA adhered to the view that Mr Issa’s reasonably detailed, and apparently contemporaneous, hand written file note was a fabrication.  The file note, if accepted as accurate, comprehensively contradicted CID 56:-Tbt_mh’s claims that Mr Issa dishonestly participated in the formulation of his application.  This was because the file note contained (i) CID 56:-Tbt_mh’s explicit admission that he was not homosexual and that his application was false, (ii) his request for Mr Issa to act for him in the RRT review, and (iii) Mr Issa’s refusal to continue to act for CID 56:-Tbt_mh in relation to a false claim.  In order to resist acceptance of Mr Issa’s file note, and the similar evidence Mr Issa gave at the hearing, MARA contended that CID 56:-Tbt_mh had only attended Mr Issa’s office to complain, and to demand a refund of the fees he had paid.  There was no evidence to support MARA’s contention, and I do not accept it.  On the contrary I do accept Mr Issa’s 5 December 2011 file note as a reasonably accurate contemporaneous account of the substance of what occurred at his meeting with CID 56:-Tbt_mh on that day.

17. 15 March 2012:- On 15 March 2012 CID 56:-Tbt_mh came to Mr Issa’s office and spoke to Mr Kizana.  After speaking to Mr Issa on the telephone, Mr Kizana paid CID 56:-Tbt_mh, $3,000 in partial repayment of the fees he had paid.  At the same time CID 56:-Tbt_mh signed a short acknowledgement that stated he “resolved the issue” with Mr Issa.  Mr Issa’s explanation for his decision to make this partial repayment, despite the events of 5 December 2012, was that it was something he did partly out of sympathy, after Mr Kizana reported to him CID 56:-Tbt_mh’s apology, and partly because he had not continued to act for CID 56:-Tbt_mh through to the conclusion of his application.  Mr Issa was cross examined about this repayment, and the note about the “issue” having been resolved.  Mr Issa said he was not aware of CID 56:-Tbt_mh’s January 2012 assertions at the RRT, and the cross examiner expressly accepted that evidence.  Mr Issa said that the “issue” as he had understood it at the time, was that CID 56:-Tbt_mh wanted him to continue to act for him but Mr Issa refused – because of the 5 December 2011 disclosure.  There was no significant challenge to this aspect of Mr Issa’s evidence.

18. The partial refund Mr Kizana made to CID 56:-Tbt_mh in March 2012, on Mr Issa’s instructions, is not probative, even indirectly, of MARA’s fraud allegation in relation to CID 56:-Tbt_mh’s protection visa application.  It provides no basis to alter the conclusion I expressed in paragraph 44 above.  My view is that MARA’s fraud allegation in relation to the CID 56:-Tbt_mh matter rests wholly on the unreliable assertions of CID 56:-Tbt_mh.  The unreliability of his claims results in my making the findings I foreshadowed in the first two sentences of paragraph 42 above.  As a consequence of those findings, I reject MARA’s fraud allegation.

    CID 35:-Nr_f – fabricated homosexuality claim

19. In paragraphs 10 and 15(g)(i) above I alluded to the general nature of CID 35:-Nr_f’s complaint, the circumstances in which he came to make it, and Mr Issa’s response.  MARA’s fraud allegations against Mr Issa, in relation to CID 35:-Nr_f’s 2010 protection visa application, need to be assessed against the background of the material events and documents.  The more relevant of those matters are summarised in the following paragraphs.

20. December 2005 to March 2010:- After a family visit in 2004, CID 35:-Nr_f returned to Australia on a 457 business visa.  In March 2008 his 457 visa was extended.  In May 2009 (according to the personal particulars form signed in June 2010) CID 35:-Nr_f became, and thereafter remained, unemployed.  In March 2010 his 457 business visa expired.

21. 9 June 2010:- In an RRT hearing on 9 June 2010 BEC, another of Mr Issa’s protection visa applicant clients, named CID 35:-Nr_f as a person with whom he had engaged in homosexual activity on several occasions in late May and early June.  On 9 June 2010 the RRT wrote to BEC and invited him to provide a statement from CID 35:-Nr_f in support of the application.

22. June 2010:- CID 35:-Nr_f signed the protection visa application forms, and Mr Issa lodged them the following day.  At the same time as he signed the application forms, CID 35:-Nr_f made two statutory declarations.  One of CID 35:-Nr_f’s 21 June 2010 statutory declarations was the “attached statement” referred to in his application forms.  It disclosed that CID 35:-Nr_f’s professed homosexual orientation was the basis for his application.  It contained claims that that he kept his homosexuality secret from both his Lebanon resident family, and the Australia resident brother with whom he lived.  (He described his brother as “very strict” and insistent that CID 35:-Nr_f continue to live with him until CID 35:-Nr_f got married.)  CID 35:-Nr_f said that, despite having kept his homosexual orientation as a “closely guarded secret” since he was 17, he had had a few “covert” relationships. He said he “often” attended gay brothels, but gave no details of place or time.  The declaration concluded with a short paragraph containing a general reference to a prohibition in the Lebanese penal code, and to a homosexual lobby group in Lebanon.  The second of CID 35:-Nr_f’s 21 June 2010 statutory declarations was a very short, four paragraph, document in which he attested to having engaged in causal homosexual sex with BEC.  Both those statutory declarations were sworn before Mr Issa.  But Mr Kizana provided a 20 March 2015 statutory declaration in which he stated that he had assisted CID 35:-Nr_f in completing the various application forms for the protection visa application.  (An apparently contemporaneous file note, identifying Mr Kizana as its author, tends to corroborate that claim.)  Mr Kizana said in his statutory declaration that CID 35:-Nr_f gave him instructions that he was a homosexual who had secret affairs with men.  (Mr Kizana also said that in the subsequent months CID 35:-Nr_f had attended the office on a number of occasions, and discussed the progress of his application.  Mr Kizana said that on many of these occasions CID 35:-Nr_f emphasised how important it was to him to keep his sexual orientation secret, especially from his brother.)  Mr Kizana, who became a registered migration agent in November 2011, was not cross examined on either this, or any of his other statutory declarations.

23. On 22 June 2010 Mr Issa submitted the second of CID 35:-Nr_f’s statutory declarations to the RRT, in response to the invitation referred to in paragraph 56 above.  (This statutory declaration was not included with CID 35:-Nr_f’s own protection visa application.)  CID 35:-Nr_f signed a costs agreement, setting out an estimated total cost of $8,000, on the same day.  On 24 June 2010 CID 35:-Nr_f obtained a class C bridging visa, which was subject to a standard “no work” condition.  On Tuesday 29 June 2010, the RRT published its decision on BEC’s protection visa application.  The RRT reasons for decision recorded much of BEC’s evidence, which included a long history of homosexual inclination and a failed heterosexual marriage.  The RRT recorded its view that BEC was a credible witness who had given his evidence in a straightforward manner. 

24. October 2010:- Mr Issa’s 15 October 2010 file note records CID 35:-Nr_f’s attendance, and Mr Issa’s enquiry about evidence of CID 35:-Nr_f’s social activities and attendance at gay venues.  Three days later, CID 35:-Nr_f attended a departmental interview on 18 October 2010, with Mr Issa.  Mr Issa’s handwritten note of that interview records CID 35:-Nr_f as expressing concern primarily about his Lebanon resident family refusing to accept his homosexuality.  It also records CID 35:-Nr_f saying that he visited homosexual brothels once or twice a month, but had not formed any significant relationship.  On 24 October 2010 CID 35:-Nr_f paid Mr Issa $4,000 for his work on the partner visa application.  On the following day, 25 October 2010, a ministerial delegate refused CID 35:-Nr_f’s protection visa application.  The decision reasons reflected the primary emphasis of Mr Issa’s file note – that CID 35:-Nr_f was concerned about the difficulty of having to continue to conceal his homosexuality from his Lebanon resident family, if he had to return there.  The reasons considered that CID 35:-Nr_f would face little risk of future homosexual persecution if he returned to Lebanon, because homosexual activity was not unlawful in Lebanon and was openly tolerated in Beirut.  Two days after this decision Mr Issa’s file notes record (i) his phone call to CID 35:-Nr_f, (ii) CID 35:-Nr_f’s, same day, attendance at Mr Issa’s office, (iii) CID 35:-Nr_f’s distress at the decision, and (iv) his instructions to lodge an RRT review application.  On the same day CID 35:-Nr_f signed, and Mr Issa lodged, that review application. 

1. December 2010:- On 9 December 2010 CID 35:-Nr_f had a conference with Mr Issa.  The brief file note of that meeting reveals that it was in preparation for the RRT review hearing, and addressed the reasons for the 25 October 2010 decision and the RRT procedures.  Mr Issa attended the RRT hearing on 13 December 2010 – at which CID 35:-Nr_f gave evidence with the assistance of an interpreter.  His evidence included details of three homosexual relationships he had in Egypt, and successfully concealed from his family.  Mr Issa’s handwritten notes attribute to CID 35:-Nr_f claims that he visited gay clubs about twice a month (most recently on the preceding Friday) and only engaged in “casual relationships / one off relationships”.  On 20 December 2010 Mr Issa wrote to the RRT – apparently in response to an invitation the RRT had made at the end of the hearing about the possibility of additional supporting evidence.  In that letter CID 35:-Nr_f referred to (i) the RRT decision record relating to BEC, and its reference to CID 35:-Nr_f as a casual sexual partner of BEC, (ii) a statutory declaration of BEC, described as containing the same claim, and (iii) “country information” and other RRT decisions referring to homosexual persecution in Lebanon.  On 23 December 2012, in a letter that was prompted by Mr Issa’s letter, the RRT invited written comments (by 6 January 2011) on what it perceived as (i) an inconsistency between evidence BEC had given at his 9 June 2010 RRT hearing, that he had many different sexual encounters with CID 35:-Nr_f in the preceding three weeks, and CID 35:-Nr_f’s evidence, at the 13 December 2010 hearing, that he only engaged in casual “one off” sexual encounters, and (ii) the absence of any significant evidence to substantiate CID 35:-Nr_f’s claimed homosexuality.

2. January & February 2011:- Despite being refused any extension of time, Mr Issa conferred with CID 35:-Nr_f, and then responded to the RRT, on 10 January 2011.  His letter (i) stated (arguably consistently with Mr Issa’s handwritten note) that CID 35:-Nr_f’s hearing evidence asserted mainly, rather than exclusively, “one off” sexual encounters, (ii) queried the accuracy of the interpreters translation of CID 35:-Nr_f’s evidence, and (iii) provided a copy of CID 35:-Nr_f’s short, four paragraph, 21 June 2010 statutory declaration supporting BEC’s protection visa application.  Just before mid-day on Friday 28 January 2011 the RRT emailed to Mr Issa notice of the rejection of CID 35:-Nr_f’s review application and a copy of the decision record.  The RRT’s essential reasons were (i) dis-satisfaction with the vagueness of CID 35:-Nr_f’s evidence of his homosexual relationships in Egypt, (ii) a view that, given his desire to conceal his homosexuality from his family, and his apparent success in so doing, he was unlikely to face any significant risk of persecution, as a result of participating in similar clandestine relationships if he returned to Lebanon, (iii) acceptance of “country information” contradicting CID 35:-Nr_f’s assertions about the extent of homosexual intolerance in Lebanon, (iv) concern about CID 35:-Nr_f’s unexplained delay in making his 2010 application, (v) concern about his failure to refer to BEC during either the BEC or RRT hearing, and (vi) mainly for the latter reasons, ultimate rejection of CID 35:-Nr_f’s claim.

3. Mr Issa’s file note records a meeting with CID 35:-Nr_f at 8:30am on the following Tuesday.  The “point form” note records (i) CID 35:-Nr_f being given a copy of the decision, and his visible upset about it, (ii) his instructions not to proceed with any appeal, and (ii) his desire to seek alternative legal advice.

4. May 2011:- Mr Issa’s file contains no record of any further contact with CID 35:-Nr_f, or activity on his behalf, until 3 May 2011. The file note of that day records (i) CID 35:-Nr_f’s attendance, without appointment, and (ii) his instructions to initiate an application for Ministerial intervention. In early May 2011 Mr Issa submitted a request for Ministerial intervention under MigAct1958 s 417. That request resulted in the grant of a bridging visa until 7 June 2011 and a requirement to attend his first, visa related, departmental interview on that day. Subsequently CID 35:-Nr_f, accompanied by Mr Kizana, reported to DIAC, and obtained further bridging visas on 8 June 2011 and 25 July 2011.

5. August and September 2011:- CID 35:-Nr_f’s Ministerial intervention request was refused on Friday 29 July 2011.  A week later, on 5 August 2011 CID 35:-Nr_f attended another conference with Mr Issa.  The conference file note attributes to CID 35:-Nr_f statements that he (i) wanted to obtain alternative legal opinion about the possibility of appeal proceedings in the FMC, (ii) was considering the possibility of lodging a partner application sponsored by one of his gay friends, and (iii) would let Mr Issa know when he had decided what to do.

6. On the same day, CID 35:-Nr_f signed documents supporting an application for a bridging visa.  He attended the DIAC office with Mr Issa and obtained a further bridging visa until 22 August 2011.  However that visa was, for the first time, subject to a condition requiring him to make arrangements to leave Australia, and to present a valid departure ticket at his next scheduled interview on 22 August 2011.  On that date CID 35:-Nr_f attended the Sydney DIAC office with Mr Kizana, but without a departure ticket.  On that occasion he was granted a further bridging visa, and required to report again on 30 August 2011.  He was warned that failure to present a valid ticket might result in his detention when he next reported.  On Friday 26 August 2011, following a further file noted discussion with CID 35:-Nr_f on 24 August 2011, Mr Issa commenced proceedings in the FMC.  The following Monday, 29 August 2011, CID 35:-Nr_f signed, and Mr Issa submitted, a further bridging visa application.  That visa appears to have been granted when CID 35:-Nr_f returned to the DIAC office on 30 August 2011. 

7. In early September Mr Issa sought advice from two barristers about CID 35:-Nr_f’s prospects of success in the FMC proceedings.   One of the barristers suggested (probably as a result of Mr Issa’s doubts about the accuracy of the English interpretation of CID 35:-Nr_f’s evidence – see paragraph 61 above) obtaining a copy of the recording of the December 2010 RRT hearing.  Mr Issa made that request on 9 September 2010.  On 10 September 2011, Mr Issa had a further conference with CID 35:-Nr_f.  His file note records reporting the advice that the proceedings had little prospect, CID 35:-Nr_f’s instruction to withdraw the application, discussion about the possibility of a Ministerial intervention request, and CID 35:-Nr_f being given a copy of the RRT decision and a CD of the RRT hearing.  CID 35:-Nr_f’s withdrawal instruction was set out in a typewritten instruction, which CID 35:-Nr_f signed.  On the same day Mr Issa wrote to CID 35:-Nr_f, confirming the instruction to withdraw the FMC application, and informing CID 35:-Nr_f that (i) the withdrawal would be filed on Monday 12 September 2011, and (ii) his bridging visa would expire 28 days after the withdrawal was filed.  Mr Issa filed the notice of discontinuance on 12 September 2011.  CID 35:-Nr_f’s visa consequently expired on 10 October 2011.

8. Given that discontinuance it is curious that on 21 September 2011 CID 35:-Nr_f signed a further appointment of Mr Issa as his migration agent, and that Mr Issa submitted it to the RRT.  It is also curious that on 10 October 2011, Mr Issa repeated his request.  But the former event is probative of ongoing communications between CID 35:-Nr_f and Mr Issa, and the curiosity about both events is perhaps satisfied by the 10 September 2011 report of discussion about the possibility of a ministerial request, the subsequent bridging visa application, and the fact of the later Ministerial request.

9. 13 December 2011:- On 13 December 2011, CID 35:-Nr_f again attended Mr Issa’s office.  On that occasion he signed a signed a further bridging visa application and, according to Mr Issa’s file note, gave instructions to make an application for Ministerial permission to lodge a further protection visa application.  On 14 December 2011 Mr Issa submitted that application.  It was based on CID 35:-Nr_f’s professed homosexuality.  It complained about the RRT’s rejection of his evidence.  In particular, but with questionable accuracy (perhaps dependent on the contents of the hearing CD rather than the decision reasons), it suggested that the RRT had disregarded CID 35:-Nr_f’s evidence of his homosexual activity in Australia because it was not satisfied that it was genuine, rather than undertaken for the purpose of assisting his visa application.  Early on the following morning, 15 December 2011, Mr Issa left for an overseas trip, and did not return until 10 January 2012.

10. 21 December 2011:- Part of the statements CID 35:-Nr_f had made in his June 2010 statutory declaration, his departmental interview, and at the RRT hearing, was that he had concealed his homosexuality from his family, and that they were pressuring him to commit to a heterosexual marriage.  Those claims are relevant background to CID 35:-Nr_f’s brother’s late afternoon telephone call to Mr Issa’s office on 21 December 2011.  That phone call, which was taken by Mr Kizana and is briefly recorded in a file note he prepared, involved CID 35:-Nr_f’s brother (i) demanding repayment of $24,000, being the fees Mr Issa was said to have been paid, and (ii) threatening he would tell the Migration authorities that Mr Issa had manufactured CID 35:-Nr_f’s homosexuality claims, unless Mr Issa repaid him. 

11. 22 December 2011:- The following day, CID 35:-Nr_f and his brother reported to the Sydney DIAC office.  At that interview CID 35:-Nr_f was told that he had been unlawful since 10 October 2011 – as a result of the withdrawal of the FMC proceedings, and precisely as Mr Issa’s 10 September 2011 letter had indicated.  CID 35:-Nr_f was told that he had no further options to obtain an onshore visa.  Nevertheless he was granted a further visa subject to conditions requiring him to report to DIAC on 23 January 2012, and either present a valid passport, or demonstrate having made satisfactory arrangements to obtain one.  (According to both his June 2010 protection visa application, and his 13 December 2010 bridging visa application, CID 35:-Nr_f’s passport had expired in February 2006.  However, the passport had been stamped in July 2011 with an extension to July 2012.)  CID 35:-Nr_f signed a notice acknowledging the grant of a further bridging visa, and the conditions to which it was subject.

12. January to July 2012:- CID 35:-Nr_f telephoned Mr Issa on several occasions in about mid-January 2012.  He told Mr Issa that he had borrowed money for the application from his brother, who was very angry, and asked Mr Issa to refund the money.  Mr Issa agreed.  On 23 January 2012 CID 35:-Nr_f reported to the DIAC office in accordance with his visa conditions.  He was given a one week visa extension, and required to report again on 31 January 2012.  The following day, he went to Mr Issa’s office and collected a cheque for $4,000, refunding the payment he had made in October 2011.  When he reported to DIAC on 31 January 2012 he was told that the 14 December 2012 application to the Minister had been refused, that he had no current applications.  Consequently he had to leave Australia by 11 March 2012, and was liable to be detained if he failed to leave.  He was required to report again on 7 February 2012.  He reported as required, and presented a ticket for his departure from Australia on 11 March 2012.

13. However, CID 35:-Nr_f also attended Mr Issa’s office on 7 February 2012, and again on 9 February.  File notes of the events record him demanding further payment – an amount of $18,000 – and threatening that he would otherwise take Mr Issa to court and make trouble for him.  One aspect of the trouble was that he would tell people Mr Issa was a liar, fraud and a bad lawyer. 

14. CID 35:-Nr_f reported to DIAC again on both 7 and 21 February 2012.  On the latter occasion he presented his valid passport, a travel itinerary, and stated that he would leave on 11 March 2012.  Consequently his visa was extended, subject to a specific condition that he leave Australia on that date.  However on 26 February 2012, CID 35:-Nr_f, who had told DIAC he had enlisted the assistance of a migration adviser who was not registered, prepared an application to re-instate the discontinued FMC proceedings, and swore a supporting affidavit.  He attached a copy of the January 2011 RRT decision to his affidavit and claimed that he had neither instructed, nor was even aware of, the September 2011 discontinuance.  He complained that Mr Issa had acted contrary to his instructions, put him into serious trouble with DIAC, and caused him to have to leave Australia.  That application was heard on 21 March 2012.  CID 35:-Nr_f failed to appear at the appointed time and, because of his initial absence, the application was initially dismissed.  But he did attend court that day – despite having breached the departure condition in his visa – and promptly lodged another application to set aside that dismissal.  Armed with both the original and the new application, CID 35:-Nr_f then presented himself at the DIAC office, and relied upon his attempt to resurrect the FMC proceedings as an explanation for having remained in Australia in breach of his visa condition, and contrary to his repeated past assurances of his departure.

15. That new application came before the court on 4 April 2012.  When CID 35:-Nr_f attended that day he repeated his complaint that Mr Issa had discontinued the FMC proceedings without either his knowledge or consent, and said he wanted to continue them, and to “tell the truth”.  But, contradicting the substance of the application, he told the Court that he had lied about being homosexual.  He said the claim had been suggested to him by Mr Issa, as the only way that CID 35:-Nr_f could remain in Australia.  In response to that development the Court (i) directed the Registrar to refer CID 35:-Nr_f to a lawyer on the Court’s legal advice panel and provide a copy of the transcript of the day’s proceedings, (ii) directed CID 35:-Nr_f to file any evidence by 11 May 2012, and (iii) fixed the application for hearing on 1 June 2012.  It was that lawyer who later made the 21 May 2012 complaint to the Legal Services Commissioner:-  see paragraph 10 above.  (In their letter the lawyers indicated that CID 35:-Nr_f had discontinued the FMC proceedings.)   On 18 July 2012 CID 35:-Nr_f acknowledged the Legal Services Commissioner’s referral as, in effect, his own complaint to MARA.  Just before doing so he had sworn the statutory declaration referred to in paragraph 76 below.

16. December 2012:- Two MARA officers interviewed CID 35:-Nr_f about his complaint.  Their two notes differ marginally in their account of the details of the conversation,  But the material substance of what CID 35:-Nr_f said in the course of this interview can be derived by combining their two accounts.  It is summarised as follows:-

    (a)CID 35:-Nr_f’s brother knew Mr Issa, and engaged him to advise on, and ultimately obtain, CID 35:-Nr_f’s 457 visa in 2005.  CID 35:-Nr_f’s brother paid the whole of Mr Issa’s $7,000 fee for that work.

    (b)Two years later Mr Issa told CID 35:-Nr_f that he had renewed his visa.  He paid Mr Issa $2,000 for that renewal. 

    (c)Sometime later, but apparently still in about 2008, he approached Mr Issa about obtaining permanent residency.  Mr Issa told him he would have to cancel his 457 visa and could apply for a protection visa.  He paid Mr Issa $6,000 for a protection visa application.  He made many enquiries of Mr Issa in the following two years, but either did not hear from him, or was just told there was no news about the application.  After two years, Mr Issa told him that he could not do anything about it because the application was not going to work.

    (d)Then Mr Issa advised him to apply for a protection visa on the basis that he was gay.  He said he would charge $10,000 for the application, and refund it in full if the application was not successful.  CID 35:-Nr_f paid Mr Issa $4,000 in cash plus, possibly, another $1,800 for a doctor’s report to support his application.  The doctor happened to be attending Mr Issa’s office when this discussion occurred, but the doctor had said he only wanted $1,200 for his report.

    (e)Mr Issa advised him that he needed to fabricate a homosexual relationship with BEC, and coached him to (i) fabricate information about the details and frequency of their relationship and (ii) claim that he kept the relationship secret from his family.

    (f)Mr Issa advised him, after BEC had obtained his protection visa, that CID 35:-Nr_f could now lodge his own application.  He had no knowledge of what was included in his application.  Later Mr Issa told him the application had been lodged and refused, but they could make a tribunal application.

    (g)The day before the RRT hearing, which was on Monday 13 December 2010, Mr Issa had taken him to a gay venue in Oxford Street, and obtained for him information, and literature, about the venue’s facilities and charges.  After the RRT hearing Mr Issa assured him that the RRT was certain to accept his application. 

    (h)After the following Christmas CID 35:-Nr_f’s brother told him about the unsuccessful RRT outcome.  When he contacted Mr Issa he said he had not received anything.  When CID 35:-Nr_f told him that his brother had received the outcome notification, Mr Issa said he would appeal and fix it.

    (i)Subsequently Mr Issa told him that he would lodge another application for a partner visa.  He told CID 35:-Nr_f that he had a client who had already obtained his protection visa.  Mr Issa introduced CID 35:-Nr_f to this other client, whom he asked to act as CID 35:-Nr_f’s sponsor.  Mr Issa gave CID 35:-Nr_f the client’s name (it was not BEC) and address.

    (j)Sometime later CID 35:-Nr_f was contacted by his sister in law and told that immigration officials were looking for him.  When he contacted DIAC he was told that he was unlawful.  After getting that news, he contacted Mr Issa’s office, and obtained a further two month visa, but in circumstances that he could not recall.

    (k)Apparently after the expiry of that visa, DIAC contacted CID 35:-Nr_f and told him that he no longer had a valid visa.  He tried to contact Mr Issa, but he was overseas.  Shortly afterwards Mr Issa called him from overseas, and told him he would fix things up when he got back to Sydney.  He also told CID 35:-Nr_f not to attend the DIAC offices, because he would be arrested if he did.

    (l)CID 35:-Nr_f deliberately did not attend DIAC (apparently as he had been required or requested).   Later CID 35:-Nr_f’s brother telephoned DIAC and arranged another meeting.  At that meeting CID 35:-Nr_f “told the whole story” and said he would stop dealing with Mr Issa once he came back from overseas.

    (m)After Mr Issa returned from overseas CID 35:-Nr_f went to see him, on several occasions.  On one visit he said he complained that Mr Issa had withdrawn the FMC application.  Mr Issa supposedly denied that he had done any such thing.  CID 35:-Nr_f said he returned about a week later, ended Mr Issa’s engagement, took his file and asked for a refund of the fees he had paid.  Mr Issa repaid him only the $4,000 he had been paid for the 2010 protection visa application.  On that occasion Mr Issa again told him that he would fully refund his money “if the application was not successful”.

    (n)Later he went to the FMC and “told the whole story”.

17. In July 2012 CID 35:-Nr_f had sworn an earlier statutory declaration detailing his dealings with Mr Issa.  Parts of that statutory declaration assist in obtaining a more accurate understanding of the timing of events, at least according to CID 35:-Nr_f’s 2012 recollections.  That timing seems to be as follows:-

    (a)Early April 2008:- Mr Issa told CID 35:-Nr_f about the extension of his 457 visa.  Shortly afterwards CID 35:-Nr_f met Mr Issa in his office and discussed a protection visa application, as a means of obtaining permanent residency.

    (b)May 2008:- CID 35:-Nr_f cannot remember whether he signed any forms for his protection visa application.  But he paid Mr Issa for the application.  At about the same time, Mr Issa told him that he did not need to keep working.

    (c)May 2009:- Mr Issa telephoned CID 35:-Nr_f and told him that his protection visa application had been refused.  At a meeting in Mr Issa’s office towards the end of the month, Mr Issa suggested a protection visa application, on the grounds that CID 35:-Nr_f was a homosexual.  It was on that occasion Mr Issa promised to refund the application fee in full, if the application did not proceed.

    (d)May 2009 to June 2010:- At some (unspecified) time in this period CID 35:-Nr_f had a further meeting with Mr Issa.  It was at this meeting that he saw the doctor who was to provide a report for his application.  Mr Issa said he would make the application immediately.

    (e)June 2010:- Mr Issa lodged the protection visa application.

    (f)June to December 2010:- Sometime in this period Mr Issa told him that he would make CID 35:-Nr_f and BEC partners.

    (g)January 2011:- CID 35:-Nr_f was told about the RRT decision rejecting his application.

    (h)About February 2011:- Mr Issa suggested CID 35:-Nr_f make a partner visa application with another of his clients.

    (i)December 2011:- A DIAC officer contacted CID 35:-Nr_f and told him that he was illegal.  CID 35:-Nr_f volunteered to go to the DIAC office.  He received Mr Issa’s overseas telephone call later the same day.  CID 35:-Nr_f told his brother he had a problem with his visa.  His brother called DIAC.  Two days later he went to the DIAC office and was given a visa.

    (j)16 to 24 January 2012:- In this period of about a week CID 35:-Nr_f went to Mr Issa’s office on about three separate occasions.  He complained about the withdrawal of the FMC proceedings, told Mr Issa was not acting for him anymore, collected his file, and was given a $4,000 refund.

1. CID 22:-Elm_ma’s complaint about Mr Issa’s handling of his partner visa application lacks evidentiary support.  Indeed the delegate’s decision record, with its specific detailed discussion of various evidence submitted to support the application, tends to contradict the generality of his complaint.  In the light of the details of the delegate’s analysis, the contentious photographs, even if they existed, would have been a weightless consideration.  I consider that objective analysis of the available material requires the conclusion that CID 22:-Elm_ma’s complaint was not based on any reliable recollection or understanding of the issues involved in his partnership application, of the scope of the work that had been undertaken in relation to it, or of the information he had in fact provided.  His assertions about the handling of the partnership application are unreliable and I reject the complaint.

   CID 27:-Elr_ge

2. This applicant was the subject of particularised allegations concerning his October 2010 protection visa application. I addressed that matter earlier in these reasons:- see paragraphs 234 to 239 above.  The parties spreadsheet included the homosexual partner application CID 27:-Elr_ge lodged on 29 February 2012.  That was about four months after the RRT’s rejection of his protection visa application and, possibly, took up a suggested “alternative pathway” that had been suggested in the 6 January 2012 letter acknowledging receipt of the Ministerial intervention submission Mr Issa had made on 23 December 2011.

3. I remarked (in paragraph 237 above) on the fact that the 2010 protection visa application made no mention of the homosexual relationship which was the basis of the 2012 partnership application, despite the fact that the relationship was said to have begun in May 2009.  I also drew attention to the fact that, in the 17 May 2011 application, he had apparently claimed that his only sexual relationships in Australia had been with female prostitutes.  These inconsistencies give rise to curiosity about the reliability of the claims made in the 2012 partner visa application.  But neither MARA’s 28 September 2015 particulars, nor the spreadsheet file list, contained any specific complaint or allegation relating to that application.  Nor did the evidence include details of the progress and result of the partner visa application.  In those circumstances, it is neither possible nor appropriate to express any conclusion about that application.

4. The limited information about the initial partner visa application, and the steps taken to pursue it, is nevertheless relevant to take into account.  This is because it appears to contrast with the inadequacy of the steps taken in relation to the protection visa application.  That contrast emerges directly from the content of the partner visa application, and the material submitted either with the application, or shortly after it had been lodged.  That material included apparently corroborating statutory declarations from (i) the applicant, (ii) his asserted partner, and (iii) two of their associates.  It also included objective evidence said to be probative of their cohabitation.  The contrast reinforces the conclusions I previously expressed about Mr Issa’s handling of CID 27:-Elr_ge’s protection visa application:- see paragraphs 239 and 240 above.

   CID 13:-Eld_k

5. This was one of the two matters referred to in paragraph 14(b) above.  The applicant’s 18 March 2011 protection visa application was the subject of the MARA allegation identified in Schedule 2.1 and which I addressed earlier in these reasons:- see paragraphs 207 to 209.  There I noted the applicant’s claims that he had formed a heterosexual relationship before lodging his protection visa application, had become engaged in June 2011, withdrawn his protection visa application in July 2011, and lodged a heterosexual partner visa application in November 2011.

6. MARA made no allegation (in either the 28 September 2015 particulars, or the spreadsheet) about the November 2011 partner visa application.  But the evidence included the application, and additional material provided subsequently to support the application.  The material submitted with the application included statutory declarations from the applicant, his wife, and both of his wife’s parents.  The application is a relevant matter to take into account, because of the contrast between the content of the material proffered to support the application, and the frequently evident scantiness of the material submitted in connection with the many protection visa applications I have considered.

   Summary of Findings

7. The Code breach findings I have made are summarily indicated in the “Code Breach Contentions” columns in Schedules 2.1, 2.2 and 2.3. Those findings derive from numerous instances, involving three different categories of protection visa applications, over a period from 2008 to 2012, where Mr Issa failed to comply with his Code obligations. There were five principal aspects of his conduct. First, Mr Issa adopted a practice which involved the formulaic acknowledgement of the client’s instructions and lodgement of applications. The principal deficiencies in that practice were a lack of emphasis on the individual circumstances of the particular applicants, a questionable reliance on unspecified “country information”, and a failure to give candid advice about the success prospects of the applications. Second, Mr Issa consistently and deliberately employed a strategy of limited initial presentation, where the application documents had limited evidentiary content and he intentionally allowed applications to proceed to the stage of DIAC interview without attempting to provide any additional evidence. Third, Mr Issa adopted a practice of routinely requesting instructions to initiate RRT review proceedings, without any evident regard to the basis of the adverse findings made by DIAC in rejecting the application, and without recorded advice to clients about their prospects of success in the RRT review proceedings. Fourth, in many instances Mr Issa adopted a formulaic practice in making submissions for Ministerial intervention under MigAct1958 s 417, and made no attempt to (i) address the individual circumstances of the particular applicant, (ii) address the relevant Ministerial guidelines, or (iii) provide frank and candid advice to the applicant clients. Fifth, in many instances he knowingly encouraged, at least by the preliminary advice in his acknowledgement letters, applications that lacked merit and whose dominant purpose was merely to prolong the applicant’s Australian residence. (I include in this proposition (i) two of the Schedule 2.1 applications:- see paragraphs  215 and 249 above, (ii) three of the Schedule 2.2 applications:-  see paragraphs 305, 358 and 376 above, (iii) six of the Schedule 2.3 applications:-  see paragraphs 380 to 427 above, and (iv) all of the Ministerial requests listed in Schedules 2.1, 2.2 and 2.3 where the column headed “Minister / Grounds” contains the entry “same”.  That entry indicates that the Ministerial submission made no attempt to address the substance of the adverse findings that had been made in rejecting the application, or to address the Ministerial discretion guidelines.)

8. Mr Issa’s questionable, misplaced, and poorly articulated, reliance on “country information” as a justification for all the protection visa applications he lodged was evident in three respects.  First, there was the vagueness with which he referred to “research” in his client instruction acknowledgement letters.  Second, there was the fact that he rarely submitted any particular “research” (or specific proposition derived from it) in support of any particular application.  Third was the way in which, in these proceedings, he submitted hundreds of pages of disorganised material, with no attempt to correlate it to any particular propositions relevant to specific applications:-  see paragraph 185 above.)

9. Mr Issa’s use of a limited presentation strategy was concededly deliberate, at least in relation to some matters:-  see paragraphs 177 and 192 above.  My impression, derived from the details in Schedule 1, my reading of each of the available protection visa client files, the typical absence of meaningful file notes, the appearance of inconsistency between the claims in Mr Issa’s “steps” documents and the file contents, and the apparent contrast with the content of various partner file applications, is that it was a strategy Mr Issa used more widely than he explicitly conceded.  Its more widespread use is evident from the findings I have made.  Such a strategy was not justified by Mr Issa’s assertion that it was a way of protecting applicants from the “culture of disbelief” (which Professor Millbank acknowledged was a relevant consideration:- see paragraph 183 above.)  It was a strategy that was contrary to Mr Issa’s Code obligations – for the reasons I have explained:-  see paragraphs 160 to 164 above. 

10. The RRT/ MRT, DIAC and MARA complaints and allegations I summarised earlier in these reasons (see paragraphs 4 to 14 and 20 to 22 above) culminated in positive assertions of fraud in relation to particular applications. I have rejected each of those allegations.  But MARA’s underlying complaint was that Mr Issa had adopted a course of conduct, in his handling of protection visa applications, whose primary objective was to permit his clients to prolong their Australian presence, rather than to comply with his obligations of diligence, under the Code:-  see paragraph 14(e) above.  The findings I have made substantiate that complaint – at least in relation to some matters:-  see paragraph 442 above.

    Exercise of the MIGRATION ACT 1958 sECTION 303 discretion

11. MARA’s October 2014 cancellation decision was based on findings that Mr Issa (i) was not a person of integrity, (ii) was not otherwise a fit and proper person to give immigration assistance, and (iii) had contravened the Code.  MARA’s findings were significantly influenced by its apparent satisfaction that Mr Issa had fabricated or assisted in the fabrication of specific claims.  This was particularly evident in relation to MARA’s finding that Mr Issa had contravened Code cl 2.23 (which imposes an obligation to take all reasonable steps to maintain the reputation and integrity of the migration advice profession).  In the spreadsheet particulars MARA confined its cl 2.23 breach allegation to those matters where it had also alleged fraud.

12. Those fraud allegations were confined, in the present proceedings, to seven matters:-  see paragraph 24 above.  Because of my findings rejecting those fraud allegations, the contention about breach of cl 2.23, to the extent that it involved the same factual matters, also falls away.  (And to the extent that it arguably involved consideration of the other Code breaches, it has not been shown to involve any additional factual matter and is, therefore, not itself a material consideration.)  Consequently, MARA’s criticism of Mr Issa’s conduct reduces to a combination of the alternative (and partly overlapping) propositions that Mr Issa variously (i) uncritically acted upon client’s instructions, (ii) conveyed to clients a misleading impression about the merits of their applications, and (iii) co-operated in the submission and pursuit of applications he knew lacked merit:-  see paragraph 22 above.

13. In the October 2014 decision reasons, MARA expressed its findings about Mr Issa’s Code breaches as an overview.  Attachment B to those reasons included 33 tables summarising findings MARA had made as a result of its examination of the various client and DIAC files.  All but one of those tables addressed various aspects of the application process (eg., the content of the original application, interview or hearing attendances and outcomes) and quantified the number (and the percentage of the examined files) which exhibited (or lacked) the particular aspect.  One table listed 36 matters where the application, when lodged, only contained general information.  (Those 36 matters included 13 of those listed in Schedule 1, nine of those in Schedule 2.1, eight of those in Schedule 2.2 and six of those in Schedule 2.3.)  The overview suggested the propositions referred to in the preceding paragraph.  But, because of its limited reference to individual files, and apparent emphasis on the content of applications when lodged, was not reliably probative.

14. It is because of the opacity of the Attachment B information, and the substance of Mr Issa’s complaints (see paragraph 15 above) about the questionable significance of the kind of overview findings the attachment reflects, that I required MARA to particularise its allegations in relation to individual applications.  I have, in turn, read every one of Mr Issa’s available client files, and made specific findings in relation to each of MARA’s allegations.  That file examination has led me to make the principal findings I summarised in paragraph 442, and additional conclusions – to substantially the same effect as those expressed by MARA in its October 2014 reasons.  Those additional conclusions are that Mr Issa:-

    (a)consistently provided limited actual assistance to his protection visa clients.  That limited assistance was apparent from the content of the application, the template acknowledgment letters, the absence of records of advice, the absence of meaningful file notes, and the absence of evidence and submissions being provided to complement applications:- see MARA Decision Reasons paragraphs 102, 103; and

    (b)in undertaking such a practice of limited assistance and advice, Mr Issa significantly, and repeatedly failed to comply with the standards of competence, diligence and fairness required by the Code.  His conduct was relevantly unfair because (i) he did not bring to bear the knowledge and experience his clients were entitled to depend on, and (ii) it deprived them of the competent and diligent assistance that was essential to his role:-  see MARA Decision Reasons paragraphs 106, 107, 116.

15. I do not accept Mr Issa’s claim that the “limited initial presentation” strategy he propounded in these proceedings was one that he employed in the belief that it was actually in the applicant client’s best interests.  By the time of the various applications relevant to these proceedings, Mr Issa had been a registered migration agent for many years.  He was well familiar with both the DIAC decision making process, and the RRT procedures.  He was just as familiar with, and had his own views about, the adequacy and consistency of the reasons expressed in both DIAC and RRT decisions.  He claimed that experience had sensitised him to the “culture of disbelief” and the risk of inconsistency in decision making:-  see paragraph 189 above.  That sensitivity could provide some justification for caution in the content of the material initially provided with an application.  But Mr Issa’s practice, as evidenced by the files I have examined, went beyond appropriate caution as a means of addressing those risks.  And by the time of the applications involved in these proceedings, he would also have had ample opportunity to appreciate (from the decisions involved in various applications) that the “limited presentation strategy” – as he was purportedly implementing it, – was both contrary to his Code obligations, and positively adverse to his various client’s best interests.

16. The findings I have made, do not warrant a positive conclusion that Mr Issa has been dishonest (in the sense of knowingly advancing matters that involved false claims).  On the other hand, they do involve him in knowingly assisting in many applications, and Ministerial requests, that were specious, and involved no attempt at a conscientious discharge of his Code obligations.  In addition, his adoption of a “limited presentation strategy” was deliberate, and much more widespread than he expressly acknowledged.  It was also a strategy which I find he did not adopt because of a positive view that it advantaged, or potentially advantaged, his client applicants.  Rather it was a strategy that was a consequence of his failure to appreciate, and conscientiously attempt to discharge, his Code obligations.  I do not accept Mr Issa’s contrary assertion.  That assertion was, in my view, a merely retrospective rationalisation.

17. The MigAct1958 s 303(1)(f) criterion uses the partly disjunctive expression that the agent “agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance”. The criterion assumes a lack of integrity will preclude satisfaction of the agent’s relevant fitness. It does not assume the necessary accuracy of the converse proposition – that a person who is not “fit and proper’ is necessarily lacking in integrity: see Davies v Australian Securities Commission (1995) 59 FCR 221 per Hill J at 233. The concepts of integrity and fitness are, however, closely related. Honesty, character and uprightness are relevant to both characterisations:- Peng at [26].

18. The characterisation of fitness and propriety depends on the person’s character, reputation and the quality of the contentious conduct.  The characterisation may be informed by impressions about the hypothesised evaluation of the person’s conduct “by professional colleagues of good repute and competency”:  Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. The characterisation may also depend on impressions about the degree of probability that the contentious conduct will be repeated, or the degree of confidence with which its repetition can be discounted as improbable:- Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380. An additional relevant consideration, material to the present matter, is the particular purpose for which the characterisation is sought to be made. In the context of the statutory scheme regulating the conduct of migration agents, one purposive consideration is the “fitness” of the person to attract the confidence of not only clients but also of decision makers administering the MigAct1958 and MigReg1994:- see Kazi and Migration Agents Registration Authority [2006] AATA 42 at [76].

    MARA’s decision is affirmed

19. The findings I have made about Mr Issa’s numerous and repeated Code breaches demonstrate that he is not a person who is currently fit and proper to give immigration assistance. That finding triggers the ability to exercise the MigAct1958 s 303 discretion. The discretion has an essentially protective purpose. The relevant objects of protection are not only the interests of an agent’s prospective clients, but also the repute of the migration advice profession (see Code cl 2.23) and the informed and principled administration of the MigAct1958 (see eg., Code 2.1, 2.18 and 2.19).

20. In the exercise of such a protective discretion the matters that influence the characterisation of “fitness” and “integrity” are again important considerations.  Just as in the characterisation of the person’s “fitness”, the apparent appropriateness of any particular sanction will require regard to the quality of the contentious conduct, its duration, the degree of culpability it involved, and the degree of confidence in the improbability of its re-occurrence.  An additional relevant consideration is the possible utility of the sanction in tending to promote proper standards of conduct, and in deterring departure from them:- Narayanan and Migration Agents Registration Authority [2006] AATA 353 at [132]; Chang and Migration Agents Registration Authority [2014] AATA 235 at [52]. Impressions about the improbability of reoccurrence of the contentious conduct will be influenced by the recency of the conduct, and the formal and informal sanctions (including personal distress notoriety, and financial loss) to which an agent has already been exposed:- see Story v National Companies & Securities Commission (1988) 13 NSWLR 661 at 685.

1. Mr Issa included in his various affidavits and submissions a range of attestations to his good character and repute  These included the following:-

   (a)A February 2015 letter from a former president of the Australian Jordanian Society.   The Society is a non-profit organisation devoted to assisting immigrants and refugees.  He said he had known Mr Issa for 20 years, and that his daughter, who had since become a qualified solicitor and registered migration agent, had previously worked for Mr Issa as a migration agent.  He described Mr Issa as very honest and professional in his work, greatly concerned for the plight of refugees and generous in assistance he has been willing to offer the Society. 

   (b)A March 2015 statutory declaration from one of the founding members of Helem Victoria, a non-profit organisation involved with the Arabic LGBT community.  He said he did not know Mr Issa personally, but had heard of him from a social worker (Mr El Debal), and was aware that Mr Issa had acted for a number of Helem Victoria’s members.  He asserted their reports to him that Mr Issa was professional, honest and displayed the highest integrity.

   (c)In his February 2015 statutory declaration Mr El Debal was a social worker who said he had known Mr Issa for 17 years.  For the last 14 years Mr El Debal had been working with the Al Iman Islamic Society.  In that capacity he had been involved with a large number of Lebanese migrants and had often referred them to Mr Issa for assistance and immigration advice.  Mr El Debal said he had always found Mr Issa to be of the highest integrity and professionalism.  He said that many of his clients were young homosexual men, and that they had typically reported to him being particularly appreciative of the sensitive way in which Mr Issa dealt with them.

   (d)Mr Talchi was an employee of Mr Issa’s, between 2003 and 2006, before he became a registered migration agent and established his own practice in 2007.  In a March 2015 statutory declaration he said that during the period of his employment Mr Issa had demonstrated the highest integrity and professionalism.  He regarded Mr Issa as a mentor, and held Mr Issa’s views and professionalism in the highest regard.

   (e)I have previously referred to Mr Kizana, his status as an employee of Mr Issa, and as a registered migration agent since November 2011:-  see paragraph 57 above.  In his March 2015 statutory declaration he stated that, about two years after becoming a registered migration agent, he had entered into partnership with Mr Issa.  At that time, July 2013, he was aware of MARA’s concerns about Mr Issa’s conduct he had entered into partnership.  He said that he would not have entered into partnership with Mr Issa unless he thought highly of his professionalism and legal ethics.  He positively asserted that Mr Issa had always demonstrated a high level of professionalism, competence and ethics.

   (f)Ms Katrina Feghali is another of Mr Issa’s former employees, and said she had known him for 15 years.  She was a practising solicitor who occasionally acted as an agent for Mr Issa on some immigration matters.  She also gave her opinion that Mr Issa was possessed of the highest integrity and professionalism.

   (g)Dr Ron Witton was an RRT member from 1997 to 2007.  He said that Mr Issa had represented applicants on many review applications he had decided.  Dr Witton described Mr Issa as very professional in his conduct, and that he had never had any reason to question his role as a migration agent.

2. The commendations referred to in the preceding paragraph are significant.  In addition, none of the people who provided the commendations in the preceding paragraph was required for cross examination.  Their consistently stated views are impressive.  Together with my rejection of MARA’s fraud allegations, they have influenced me to recognise the distinction to which I referred in paragraph 452, and to stop short of making a positive finding that Mr Issa is not a person of integrity.  But few of the commenders displayed any real knowledge of MARA’s specific allegations against Mr Issa, and the few others (most specifically Mr Kizana) concentrated on the “fraud” complaints and allegations that I have rejected.  None of the commenders displayed awareness of Mr Issa’s use of the “limited preparation strategy” or the substance of the other particularised allegations that I have addressed. 

3. Whilst I have endeavoured to take fully into account the positive views the various commenders expressed about Mr Issa’s integrity, they in no sense contradict the findings I have made in relation to Mr Issa’s numerous Code breaches.  Those breaches were sustained and serious.  They reflected, in my view, a grave disregard of the Code obligations. 

4. I am conscious that the matters I have addressed in this review involve applications that were finalised in 2012 or earlier.  I also appreciate that MARA’s decision, based significantly on fraud allegations which I have rejected, has resulted in considerable personal hardship, and some degree of notoriety, for Mr Issa.  Those matters together with the enormous effort he has devoted to the conduct of these proceedings, indicate the practical sanctions which his conduct has already attracted.   Nevertheless, the findings I have made do indicate a sustained course of conduct involving serious breaches.  Moreover, Mr Issa’s defence of the Code breach allegations involved adherence to the propriety of his “limited presentation strategy” and, in general, to the totality of his conduct – despite the (in my view) justified controversy it has generated.  I am not satisfied that Mr Issa has a sufficient insight into the full extent of his Code obligations, to confidently conclude that his contentious conduct would not be repeated. 

   decision

5. I consider that the cancellation of Mr Issa’s registration was, and is, the appropriate decision.  The decision under review is affirmed.

I certify that the preceding 260 (four hundred and sixty) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member

...............................[sgd].........................................

Associate

Dated: 3 July 2017

Schedules to Decision

Schedule 1 – Applicant Files (DIAC only) considered by MARA

Schedule 2.1 – Protection visa applications – sexual orientation claims – Files (Agent & DIAC) requested / examined by MARA

Schedule 2.2 – Protection visa applications – religious persecution claims – files (Agent & DIAC) requested / examined by MARA

Schedule 2.3 – Protection visa applications – political opinion claims – files (Agent & DIAC) requested / examined by MARA

Schedule 2.4 – Partner visa applications – files (Agent & DIAC) requested / examined by MARA

Schedule 3 – Matters claimed as subject to limited instruction and presentation

Date(s) of hearing:	26 - 30 October 2015; 8-12 & 15-19 February 2016; 5 May 2017
Applicant:	In person
Solicitors for the Respondent:	Mr L Leerdam, DLA Piper Australia