Issa and Migration Agents Registration Authority

Case [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…

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Issa and Migration Agents Registration Authority [2017] AATA 1110
Case
[2017] AATA 1110
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Issa against a decision by the Migration Agents Registration Authority (MARA) to cancel his registration as a migration agent. The dispute arose from MARA's findings that Mr. Issa had breached the Code of Conduct for migration agents and was not a fit and proper person to provide immigration assistance. The decision was reviewed by the Administrative Appeals Tribunal.

The Administrative Appeals Tribunal was required to determine whether Mr. Issa had contravened the Code of Conduct for migration agents, specifically in relation to his handling of protection visa applications. This included assessing whether he had failed to deal with clients competently, diligently, and fairly, had not had due regard to his clients' dependence on his knowledge, and had not met standards of frankness and candour regarding the prospects of success for applications. The Tribunal also considered whether Mr. Issa had failed to advise clients on applications that were vexatious or grossly unfounded, and whether he had provided sufficient relevant information to the Department or review authorities.

The Tribunal rejected MARA's allegations of fraud against Mr. Issa. However, it found that MARA's underlying complaint, that Mr. Issa's conduct in handling protection visa applications was primarily aimed at prolonging his clients' presence in Australia rather than complying with his professional obligations, was substantiated in relation to some matters. The Tribunal noted that MARA's decision to cancel Mr. Issa's registration was influenced by its satisfaction that he had fabricated or assisted in fabricating claims, particularly concerning a breach of Code clause 2.23. As the fraud allegations were not sustained, the contention regarding breach of clause 2.23, to the extent it relied on those same factual matters, also fell away. Consequently, MARA's criticisms were reduced to Mr. Issa uncritically acting on client instructions, conveying misleading impressions about the merits of applications, and co-operating in the submission of applications he knew lacked merit.

On 10 October 2014, MARA had decided to cancel Mr. Issa's registration as a migration agent, disqualifying him for five years and preventing him from lawfully continuing to provide immigration assistance other than legal assistance. This decision followed concerns raised in November 2011 by the Principal Member of the Migration Review Tribunal and the Refugee Review Tribunal regarding Mr. Issa's possible breaches of Code obligations relating to lawfulness, diligence, and competence. These concerns included a high proportion of tribunal hearings cancelled at his request, similarities in protection visa applications with questionable claims, and issues with supporting evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. 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”.

Ratio Decidendi

Legal Principle Established

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 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. 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. 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.