Issam Issa and Migration Agents Registration Authority
[2015] AATA 451
•26 June 2015
[2015] AATA 451
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/5298
Re
Issam Issa
APPLICANT
And
Migration Agents Registration Authority
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin QC, Deputy President
Date 26 June 2015 Place Sydney I am satisfied that the Tribunal has jurisdiction to proceed with the hearing of the substantive application in this matter.
..................................[sgd]......................................
The Hon. Brian Tamberlin QC, Deputy President
CATCHWORDS
INTERLOCUTORY DECISON - whether the Tribunal has jurisdiction to hear the matter - whether Tribunal can review an invalid decision – preliminary questions of law - clarifying issues before the Tribunal - whether a referral was made under section 319 of the Migration Act – referral of the conduct of a migration agent to an authority responsible for disciplining lawyers – the Tribunal has jurisdiction to hear the substantive matter
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 25, 43
Migration Act 1958 ss 303, 306, 306AC, 306AE, 309, 319, 321, 336A, 336C, 336D
Migration Legislation Amendment (Identification and Authentication) Act 2004
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Lansen v Minister for Environment and Heritage [2008] FCAFC 189
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390
Yango Pastoral Co Pty Ltd v First Chicago Australia Pty Ltd (1978) 21 ALR 585Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248
REASONS FOR DECISION
The Hon. Brian Tamberlin QC, Deputy President
26 June 2015
On 14 October 2014 the Applicant lodged an application with this Tribunal for review of the Respondent’s decision dated 10 October 2014 to cancel his registration as a migration agent under s 303 of the Migration Act 1958 (the Act).
On 11 December 2014 the Council of the Law Society of New South Wales suspended the practising certificate of the Applicant after being directed to do so by the Legal Services Commissioner of New South Wales pursuant to s 548(2) of the Legal Profession Act 2004 (the Legal Profession Act).
The matter has a long and complex history and there is a very large amount of documentary material. In the course of preparing the matter for hearing, the Applicant sought a preliminary hearing to determine certain questions of law concerning the jurisdiction of this Tribunal to review the substantive application in this matter, on the ground that they would either finally determine the matter or would significantly reduce the time and expense involved in the substantive hearing. These reasons address the preliminary issues raised by the Applicant.
The contention of the Applicant is that there were legal defects in the decision of the Respondent that is under review, which have the effect of rendering that decision void for all purposes, and that those defects cannot be cured by a hearing before this Tribunal by way of review on the merits.
The application is based on arguments as to the effect of several provisions of the Act. The sections in question are s 319(2), s 309(2), s 306AC and s 336D of the Act. The Applicant also seeks some clarification as to the rules of evidence and the standard of proof that would apply in relation to the final hearing and also as to the question of onus.
Specific questions of law which have been raised by the Applicant are as follows.
ISSUE 1 SECTION 319
Section 319 of the Act is concerned with the power of the Respondent to refer to a lawyer’s disciplinary authority the conduct of a registered migration agent. It reads as follows:
(1)The Migration Agents Registration Authority may refer to an authority responsible for disciplining lawyers the conduct of a registered migration agent, or a former registered migration agent who holds a practicing certificate … entitling him or her to practice as a lawyer.
(2)If the Migration Agents Registration Authority refers the conduct of a registered migration agent, it may not take action against the agent under section 303 on the basis of that conduct.” (Emphasis added)
Under s 303 of the Act the Respondent may cancel the registration of a registered migration agent by removing his or her name from the register, or otherwise discipline the agent by way of suspension or caution if satisfied of certain matters as set out in that section.
The purpose of s 319 is to avoid duplicate enquiries which may lead to incompetent findings.
Under s 25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) an enactment may provide that an application may be made to the Tribunal for the review of decisions made in the exercise of powers conferred by that enactment. The Tribunal has power to review any decision in respect of which application is made to it under any enactment: see s 25(4) of the AAT Act. In this case the application for review is brought under s 306 of the Act which provides jurisdiction to the Tribunal to review decisions made under Division 3AAA of the Act.
Section 43(1) of the AAT Act provides that, for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision. Under s 43(6) a decision of a person as made by this Tribunal shall for all purposes to be deemed to be a decision of the decision-maker whose decision is under review.
On the basis that there was a referral of the Applicant’s conduct by the Respondent to an authority responsible for disciplining lawyers, the Applicant submits that any power to take action under s 303 of the Act was not available to the Respondent and is not available to this Tribunal, having regard to the express language of s 319(2) which the Applicant says amounts to an express statutory prohibition upon taking action on the basis of the conduct referred by the Respondent. As this Tribunal stands in the shoes of the Respondent, the Applicant says that upon referral of the conduct by the Respondent, this Tribunal is prohibited from taking any action under s 303. Therefore, it is contended that there has never been any valid cancellation of registration and it is not open to this Tribunal to proceed to review the matter because it has no power to do so.
It is common ground between the parties that having regard to the Federal Court decision in relation to the decision in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, and cases following it, that it is open to this Tribunal to review a decision under the AAT Act, notwithstanding that the primary decision may have been legally void or voidable. The Applicant says however that in this case, because this Tribunal is bound by the requirement of s 319(2) which is binding both on the Tribunal and the Respondent, then the Tribunal is deprived of jurisdiction or power to review the cancellation decision of the Respondent in this case.
The principal difficulty with this submission is that the factual basis for it has not been established by the Applicant. I am not persuaded that, on the evidence, the Respondent was prohibited from deciding to cancel the registration because at the time the registration was cancelled there had been no referral by the Respondent to any authority responsible for disciplining lawyers. The position which emerges from the evidence is that there was in fact a referral by the Respondent to the Legal Services Commissioner, but this occurred after the cancellation decision had been made, and therefore at the time of making of the decision to cancel there had been no referral by the Respondent. Accordingly, the statutory prohibition has no application or relevance.
The evidence is that on 10 October 2014 the Respondent sent to the Applicant a letter informing the Applicant of the Respondent’s decision to cancel his registration as a migration agent, with the effect that the Applicant could not be registered as a migration agent for a period of 5 years pursuant to s 292 of the Act. This cancellation was expressed to be in accordance with s 303(1)(a) of the Act.
The 10 October letter from the Respondent also stated:
“I also inform you of my intention to refer this decision record to the Office of the NSW Legal Services Commissioner as your conduct also raises issue in relation to your ability to practice as a legal practitioner.” (Emphasis added)
The significant wording in this letter is the reference to “my intention to refer”. This indicates that there had not yet been a referral and shows that it was simply an indication that at a subsequent time there would be a referral. If foreshadows a future referral.
Section 319(2) operates to prevent the Respondent from making a decision to cancel a registration under s 303 being made only in circumstances where there had been an actual referral. That is not this case.
In this case there was a later referral of the conduct but this was made by email dated 13 October 2014, three days after the cancellation decision had already been made.
The relevant evidence in the T-documents is that on 5 March 2012 the Principal Member of the Refugee Review Tribunal (RRT) wrote to the Director of the Professional Standards and Integrity Officer of the Respondent, stating that on 1 November 2011 he had drawn to her attention concerns in relation to the conduct of the Applicant. The letter also drew attention to additional concerns in relation to the Applicant’s conduct as summarised in an attachment. The letter stated that the Principal Member of the RRT had also written to the Office of the Legal Services Commissioner of NSW to express the tribunal’s concerns about the conduct of the Applicant as a solicitor. This letter is not a referral by the Respondent.
On 27 March 2012 the Office of the Legal Services Commissioner wrote to the Applicant stating that the Office was established to deal with complaints about solicitors and barristers in New South Wales, and advised that his conduct had been brought to the Commissioner’s attention by the Principal Member of the RRT. The letter indicated that the Commissioner had initiated a complaint in his own name under s 504 of the Legal Profession Act 2004.
On 26 April 2012 the Legal Services Commissioner wrote to the Respondent referring to the letter from the RRT, informing the Respondent of the grounds of the complaint that the Legal Services Commissioner had initiated. The writer also stated:
“I shall suspend my investigation pending the outcome of your investigation into both matters. I also confirm that, at this stage, I will not communicate further with Mr Issa but I ask that you kindly advise me once you have contacted him so as a matter of courtesy I can update him as to the Commissioner’s position.” (Emphasis added)
On 5 October 2012 Mr Wood for the Respondent sent to the Legal Services Commissioner an email stating:
“I refer to these complaints and to your letter dated 20 September 2012.”
In my view this letter was simply providing an update and does not indicate any referral by the Respondent.
None of the correspondence in evidence prior to 13 October 2012 supports a conclusion that there had been a referral of the Applicant’s conduct by the Respondent to the Legal Services Commissioner prior to the making of the decision to cancel. The indication that a referral was intended is not a referral.
The position on the available evidence is that the Legal Services Commissioner, having notified the Respondent of some complaints, elected to suspend his investigation pending the outcome of the investigation by the Respondent.
The Commissioner was content to await the findings of the Respondent before taking any action.
As noted earlier, on 11 December 2014 the Council of the Law Society of New South Wales suspended the practising certificate of the Applicant, after having been directed to do so by the Legal Services Commissioner, on the basis of the conduct as found by the Respondent in the decision under review.
Having regard to the above matters, the Applicant’s submission as to the operation and effect of s 319(2) is not accepted, because at the time of the decision to cancel there was no referral of the conduct in question.
The Applicant also submits, in the alternative, that even if there had not been any referral prior to the decision of the Respondent, nevertheless the fact that a referral had been made, on or after that date, operates as of now to prevent this Tribunal from taking any action under s 303.
I do not accept this further submission because under s 43(6) of the AAT Act a decision made by this Tribunal has effect on the day on which a decision of the Respondent had effect. In this case the date is 10 October 2014 and since as at that date, there had been no referral this submission cannot advance the Applicant’s case to the effect that this Tribunal has no jurisdiction or cannot make any decision under s 303 in relation to the matter.
ISSUE 2 SECTION 309 – INVITATION TO MAKE SUBMISSIONS
Section 309 of the Act provides that where the Respondent is considering refusing a registration application, it must inform the applicant of that fact and the reasons for it, and invite the applicant to make a further submission in support of his or her application. Similarly, if the Respondent is considering making a decision under s 303 to cancel or suspend or caution, it must inform the agent and the reasons for it, and invite the agent to make a submission on the matter. The expression “submission” is defined to mean a statutory declaration or written argument.
The Applicant submits that in this case the Respondent was clearly considering making a decision under s 303 to cancel or suspend or to caution the applicant and therefore was obliged to inform the Applicant of that fact and the reasons and invite a submission but in fact it did not do so.
The Applicant further says that there has therefore been a denial of procedural fairness as required by s 309(2). As a result of this breach, the decision made by the Respondent was therefore void ab initio and has no legal effect. Accordingly, the Applicant says the Tribunal is obliged to remit the matter to the Respondent for reconsideration together with a direction that the Respondent complies with the s 309 notice. However, the Applicant says that if there was a referral back then, the Respondent, by reason of the prohibition in s 319(2) of the Act, may not take any action which could result in a decision under s 303 to cancel or otherwise discipline the Applicant. The Applicant contends that because at the present time there has been a referral by the Respondent, at least by 13 October 2012, it is prevented from taking any such action under s 303.
There is no need to consider on the facts whether there has been a failure by the Respondent to comply with s 309. The answer to the submission is that if the consequence of non-compliance with s 309(2) is that the decision is void, this does not mean that this Tribunal cannot proceed to hear and consider the review of that decision. This is a consequence of the Brian Lawlor decision as previously discussed. I am not persuaded that there is any obligation on this Tribunal to remit the matter back to the Respondent even if there has been non-compliance with s 309(2).
Where there has been non-compliance with s 309(2), this Tribunal can still proceed to hear the matter and its decision will stand in place of the decision of the Respondent. There will be no breach of procedural fairness if the matter is considered by this Tribunal because the review process provides for a full merits review, and a full opportunity is given on review to satisfy the requirements of natural justice in the course of the Tribunal hearing.
This is made clear by the decision Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 where the Full Federal Court said at [28]:
“… there is nothing Pt 5 of the Act which would suggest that the Tribunal does not have the power or obligation to review a decision properly brought before it … where the delegate of the respondent may, or may arguably, have failed to comply with a procedural requirement imposed by the Act, or in some other way may … have committed an error of law either in determining the applicable law or in applying the law. There is no reason why the Act which provides for a full merits review by the tribunal of decisions which may be brought to it, should impose upon the tribunal the task of culling out those decisions which may involve jurisdictional error on the part of the original decision maker. … the review process applicable to the tribunal is a full merits review … in that context it has been held that the review by the AAT is available even though the decision maker at first instance may have made a decision which is legally ineffective …” (Emphasis added)
For the above reasons I reject the Applicant’s submission based on s 309.
ISSUE 3 SECTION 306AC – REFERRAL BY THE MINISTER
Section 306AC of the Act empowers the Minister to refer a registered migration agent to the Respondent if the agent has a high refusal rate in relation to a visa of a particular class. Under s 306AE if the Minister is considering doing so he must give the agent a written notice, invite the agent to make a submission on the matter, and consider any submission that is made. The authority must then consider whether to discipline the agent. The Minister’s decision and any decision of the authority to discipline the agent, are reviewable by the AAT.
Section 306AC provides a method of working out if the agent has a high visa refusal rate in relation to a visa of a particular class.
In the present case the Applicant contends that the Minister has referred the Respondent to the authority on the ground that there is a high visa refusal rate, but has not invited the Applicant to make a submission on the matter, with the consequence that there has been no consideration of any submission, therefore there has been a breach of s 306AE. The Applicant contends that he did not have a high refusal rate.
The Applicant therefore says that because the decision to cancel the Applicant’s registration was made in breach of s 306AE and is also a denial of the principles of natural justice and procedural fairness, it is void ab initio and therefore the decision to cancel the Applicant’s registration should be set aside and there must be a remittal to the Respondent for reconsideration. If any such referral is made the Respondent cannot make any decision because there has already been a referral of the matter by the Respondent to the Legal Services Commissioner which serves to enliven the statutory prohibition in s 319(2) and prevents review by this Tribunal.
There are several difficulties with this submission.
The first is that it has not been established that the Minister has referred the Applicant to the Respondent on the basis of having a high visa refusal rate in relation to a visa of a particular class or otherwise. Accordingly, there has been no breach of the Minister’s obligation under s 306AE or s 306AG of the Act. I am not satisfied that the decision of the Respondent is void or void ab initio on the basis that there has been any relevant breach.
The second difficulty is that the obligation rests on the Minister and it does not follow, even if the Minister has breached any obligations under s 306AC, s 306AE or s 306AG that any decision by the Respondent is void or voidable. Merely because a decision does not comply with a statutory requirement does not mean that it is void or voidable: see Yango Pastoral Co Pty Ltd v First Chicago Australia Pty Ltd (1978) 21 ALR 585; Lansen v Minister for Environment and Heritage [2008] FCAFC 189 at [34]; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390.
The third difficulty is that the appeal presently before this Tribunal is brought under s 306 of the Act, which is contained in Part 3, Division 3 of the Act. Any right of review in relation to the Minister’s referral obligations is provided for in s 306AJ of the Act and there is no such application presently before this Tribunal. The latter section is in a different division of the Act and is subject to separate review provisions. This Tribunal has no authority in the present appeal to make binding decisions as to whether the Minister was entitled to refer the matter.
A fourth difficulty is that a question whether the Minister should have or was entitled to refer the agent is a theoretical question and not relevant to the present proceedings. The task of this Tribunal is to review the decision made by the decision maker of the reviewable decision. In this matter, the decision under review is that of the Respondent, to cancel the Applicant’s registration as a migration agent under s 303 of the Act.
The fifth problem is that the Minister is not a party to the proceedings presently before this Tribunal. Any findings should not be made against his decision an opportunity to be heard.
For these reasons I do not accept the submission that the decision of the Respondent is void or must be remitted to the Respondent on the basis of any breach of the sections relied on.
ISSUE 4 SECTION 336D – NO PERMISSION TO ACCESS
Section 336C of the Act provides that a person commits an offence if a person accesses “identifying information”, and is not authorised under s 336D to access the identifying information for the purpose for which the person accessed it.
Section 336D contains provisions whereby the Secretary may give written authorisation to a specified person or class to access identifying information of the kind specified in the authorisation for specific purposes enumerated in the section.
The Applicant contends that there have been breaches of s 336C in respect of major complaints, in that he says files were made available without the permission of the Applicant’s clients and without a single complaint being made by the clients. As a consequence the decision of the Tribunal in relation to those matters must be to set aside and remit the matter.
It does not follow that even if there has been an access to “identifying information” that the decision of the Respondent is void or ineffective. The section provides the elements of an offence under the Act and does not purport to invalidate decisions of any kind. See the cases cited above at [46].
Moreover, s 321 of the Act expressly authorises certain disclosures of personal information for the purpose of facilitating or expediting the exercise of the powers or performance of the functions of the Respondent, and permits the Department to make disclosures to the Respondent.
Further, the legislative background makes it clear that s 336C was enacted as part of the Migration Legislation Amendment (Identification and Authentication) Act 2004 which was designed to enable the Government, through the use of identifying information, to accurately identifying or authentic the identity of non-citizens who seek to enter Australia, whether with or without identity information. It defines the term “personal identifiers” in limited terms and the purposes for which they may be used in relation to border control functions and related agencies and legislation. Its purpose is to regulate the disclosure of information collected by the Department for the purpose of identifying non-citizens seeking to enter Australia. It does not purport nor was it intended to regulate or invalidate the information provided by the Department to the Respondent.
The expression “identifying information” is narrowly defined in s 336A of the Act to include any personal identifier or identifier derived from such personal identifier. The expression “personal identifier” is defined to mean fingerprints, handprints, height or weight, photograph, audio video recording of a person, an iris scan, a person’s signature or any other prescribed identifier. It is evident from this narrow definition that it is intended to cover matters other than those in issue in the present case.
In addition, I am not satisfied that a question whether any offence under s 336C has any relevance to the present proceedings before this Tribunal, or whether this Tribunal has any jurisdiction in relation to such matters, requiring as they do a finding that there have been offences under the Act, and the absence of any review provisions specifically relating to this issue. It is important to bear in mind in this proceeding that the review presently before the Tribunal is specifically under s 306 of the Act in relation to the question whether action should be taken under s 303 of the Act concerning the disciplining of registered migration agents. There is no jurisdiction in the Tribunal to make any binding decision as to whether there has been a breach of the Act by any specific person.
ISSUE 5 – EVIDENCE
The Applicant seeks a determination as to the way in which and what evidence is to be or can be led and considered in the course of the hearing.
In my opinion it is neither desirable nor appropriate at this stage to express any view in the abstract as to whether evidence is required or is admissible in relation to any particular issue. The question of the admissibility and weight to be given to any evidence is a matter for determination during the course of the hearing of the substantive application by the member constituted to hear that application, having regard to any specific submissions made by the parties in relation to particular evidence. In general, it can be said that the Tribunal will take into account the guidance principles in Briginshaw v Briginshaw (1938) 60 CLR 336. On the other hand the Tribunal will not require strict adherence to the rules considered in the case of Browne v Dunn (1893) 6 R 67 but will of course be bound to act in accordance with procedural fairness.
CONCLUSION
In the light of the above determinations I am satisfied that the Tribunal has jurisdiction to proceed with the hearing of the substantive application in this matter.
I direct the parties to confer and prepare a timetable for the filing of any further material, by 17 July 2015, to enable the substantive application to be heard.
I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President .............................[sgd]...........................................
Associate
Dated 26 June 2015
Date(s) of hearing 13, 14, 16, 17 April 2015 Date final submissions received 27 April 2015 Counsel for the Applicant Mr J Williams Solicitors for the Applicant Mr Joel, Adrian Joel & Co Solicitors for the Respondent Mr Leerdam, DLA Piper
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