Issam Issa and Migration Agents Registration Authority
[2014] AATA 870
•24 November 2014
[2014] AATA 870
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/5298
Re
Issam Issa
APPLICANT
And
Migration Agents Registration Authority
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 24 November 2014 Place Sydney The Tribunal refuses the Applicant’s request for a stay pursuant to section 41(2) of the Administrative Appeals Tribunal Act 1975.
............................[sgd]............................................
Ms G Ettinger, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – Application to stay decision of Office of Migration Agents Registration Authority – consideration of prospects of success at substantive hearing, public interest, disadvantages to the Applicant – procedural fairness – stay refused.
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 41(2)
Migration Act 1958 (Cth) ss 303, 306AA
Migration Agents Regulations 1998 reg 7B
CASES
Re Scott and ASIC [2009] AATA 789
Re Bundy v Australian Securities and Investments Commission [2013] AATA 59
Re Commonwealth of Australia v Quirke (1986) 9 ALD 92
Re Zarfati v Australian Securities and Investments Commission (2008) 106 ALD 225
Re Dekanic and Tax Agents’ Board of New South Wales (1982) 6 ALD 240
Re Tanari v Migration Agents Registration Authority [2005] AATA 419REASONS FOR DECISION
Ms G Ettinger, Senior Member
24 November 2014
The Migration Agents Registration Authority (MARA) made a decision on 10 October 2014, to cancel Mr Issam (Sam) Issa’s registration as a migration agent pursuant to section 303 of the Migration Act 1958 (Cth) (the Migration Act). The expiry date for Mr Issa’s registration would otherwise have been 6 February 2015.
Mr Issa filed an application for review with this Tribunal on 14 October 2014, which was accompanied by an application for a stay of the operation of the decision of MARA pursuant to section 41 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
His counsel, Mr M Robinson SC, argued extensively that Mr Issa had not been afforded procedural fairness by the Respondent, MARA, in that he had not been given the opportunity of replying to many of the findings which were made against him. He also argued, amongst other things, that Mr Issa, who has been practising as a solicitor and migration agent for over 19 years, was disadvantaged by the fact his ability to practise was ceased without notice on 10 October 2014. He was also, Mr Robinson submitted, further disadvantaged by the publication in full of the cancellation decision on the internet, and the ensuing publicity surrounding the cancellation decision.
Mr L Leerdam, solicitor of DLA Piper Australia, who represented the Respondent, opposed the stay on the basis of complaints made against Mr Issa which date back to 2011, and which had been made by the Refugee Review Tribunal, the NSW Legal Services Commissioner, the then Department of Immigration and Citizenship, and various individuals. The Respondent submitted that these complaints resulted in the findings against Mr Issa on 10 October 2014.
I have considered the evidence and submissions of the parties which I will discuss further in the paragraphs below, and the principles to be taken into account when considering whether to grant the application for a stay.
I have decided not to grant a stay in this case. My reasons follow. I have referred the file for the expedited listing of the substantive matter to the Registrar.
STAY APPLICATION
The legislation relevant to the granting of a stay is section 41(2) of the AAT Act provides as follows:
The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
Also relevant is section 306AA of the Migration Act, and regulation 7B of the Migration Agents Regulations 1998, (the Regulations), which deal with the prescribed supervisory requirements on any stay which is granted.
Section 306AA provides:
306AA Stay orders
If the Administrative Appeals Tribunal or a court orders a stay of a decision under section 303 to cancel or suspend a registered migration agent’s registration, it is taken to be a condition of the order that the prescribed supervisory requirements apply in relation to the agent during the period of the order.
Regulation 7B provides:
7B Stay orders—prescribed supervisory requirements
(1) For sections 306AA and 306AK of the Act, the supervisory requirements mentioned in subregulations (2), (2A), (3) and (4) are prescribed.
(2) The registered migration agent who benefits from the stay of a decision to either cancel or suspend his or her registration (the supervised agent) must be supervised by another registered migration agent (the supervising agent).
(2A) The supervising agent must have at least 5 years experience as a registered migration agent, being a period that does not include any time during which:
(a) the agent’s registration was suspended; or
(b) the agent was subject to a caution that was in effect.
(3) The supervising agent must not:
(a) be the subject of a complaint in relation to which the Authority is considering the cancellation or suspension of the supervising agent’s registration, or cautioning the supervising agent, or refusing an application for registration by the supervising agent; or
(b) be subject to any disciplinary action; or
(c) be employed by the business or corporation that employs the supervised agent.
(4) The supervising agent must:
(a) meet with or telephone any new client of the supervised agent within 28 days of the supervised agent agreeing to represent the client, and explain the supervising agent’s role; and
(b) make file notes of all meetings with any new client of the supervised agent; and
(c) check any new visa or review application, and the client’s file, prior to lodging by the supervised agent; and
(d) check preparations for any Administrative Appeals Tribunal, Refugee Review Tribunal or Migration Review Tribunal hearing involving the supervised agent, and attend the hearing with the supervised agent; and
(e) work directly and regularly (at least once every 21 calendar days) with the supervised agent to ensure compliance with the Code of Conduct in Schedule 2; and
(f) notify the Authority in writing within 14 days after agreeing to supervise the supervised agent; and
(g) notify the Authority in writing within 14 days after ceasing to supervise the supervised agent.
In regard to the requirement in regulation 7B of the Migration Agents Regulations 1998 for a supervising agent, Mr Issa provided a Statutory Declaration of Mr Adrian Joel, (Exhibit A4) a migration agent, who in addition to offering to supervise Mr Issa should a stay of the operation of the decision of MARA be granted, also represented him at the hearing.
Mr Leerdam raised the issue of conflict of interest in Mr Joel acting as Mr Issa’s supervisor as well as legal representative in the case of a stay being granted. As I have decided not to grant a stay for the reasons which appear below, I do not need to make a decision about the issue of conflict which was raised.
PRINCIPLES TO BE CONSIDERED FOR A STAY APPLICATION
The Tribunal is often asked to consider a stay of the operation of a decision adverse to an Applicant. In that regard I note in particular that in Re Scott and ASIC [2009] AATA 789 at [4], Downes J identified that the following relevant factors should be taken into account for the purposes of a decision under section 41 of the AAT Act:
(a)The prospects of success of the application;
(b)The consequences for the Applicant of the refusal of the stay;
(c)The public interest;
(d)The consequences for the Respondent in carrying out its functions depending on whether a stay is granted or not;
(e)Whether the application for review would be rendered nugatory if a stay were not granted;
(f)Other matters relevant such as the length of the time the ban has already been in place and the time between the application and the hearing of the application.
Deputy President Tamberlin also noted in Bundy v Australian Securities and Investments Commission [2013] AATA 59, that the need to protect consumers and customers is a matter of particular importance when assessing the impact on the public interest.
I am also mindful that the procedural fairness issue was argued at length at the hearing of this stay application by Mr Robinson, and shall accordingly address that issue first.
Procedural Fairness
Mr Robinson submitted that Mr Issa had not had the opportunity of addressing the allegations and findings made against him in the Respondent’s decision of 10 October 2014 cancelling his migration agent’s licence. He submitted that MARA had issued two ‘section 308 notices’ requiring information from him, and one ‘section 309 notice’, giving Mr Issa an undertaking that if further issues were to be raised, he would be issued a second ‘section 309 notice’. Counsel submitted there had been no such further notice, and the decision of MARA was made without giving Mr Issa the opportunity to comment on further complaints, allegations and findings.
Mr Issa deposed in his Statutory Declaration dated 23 October 2014, (Exhibit A1), that MARA had notified him as follows:
3. In summary, the Notification indicated that OMARA has received six complaints where they decided to take actions.
4. At paragraph 10, page 2 of the Notification, OMARA indicated that they … ‘only considered and discussed the primary allegations in all of the complaints – that you have advised and assisted your clients to fabricate claims ….’
Paragraph 12 stated in part ‘… while the other allegations raised are not discussed in this Notice, the Authority may decide to consider them further at a later stage. If this occurs, you will be given a separate opportunity to respond to potential findings in relation to those allegations …’.
Mr Robinson accordingly submitted on behalf of Mr Issa that Mr Issa had not been afforded the opportunity of replying to complaints other than issues relating to fraud and fabrication. Mr Issa deposed at Exhibit A1, [17]:
As of 28 December 2012 and thereafter I had no doubt that the limited fraud/fabrication issues I was directed to address were presented in their totality in the Notification. Further, if any new allegations were to arise as a result of provision of the client files, [he had been directed to provide 50 designated files], a further 309 Notice would be issued providing opportunity for rebuttal.
Mr Issa further deposed that he had no opportunity of replying to the adverse view of the client files he was directed to provide to the Respondent, neither did he have the opportunity of answering the alleged violations of the Migration Agents Code of Conduct (the Code).
Mr Leerdam submitted by reference to Exhibit A4, and the attachments to the ‘section 309 notice’, that Mr Issa was informed about a number of allegations made about him in his practice as a migration agent, and was provided with the opportunity of addressing the allegations, some of which were not dealt with in the cancellation decision of 10 October 2014.
I am mindful that the principles to be taken into account in deciding whether to grant a stay have been considered by the Tribunal many times, and that the principles were restated by Justice Downes in Re Scott v ASIC.
I am mindful of Mr Robinson’s submissions on behalf of Mr Issa, that if procedural fairness was not provided by the decision maker, as alleged by the Applicant in this case, then that is a significant factor to be considered in granting a stay. Counsel for the Applicant also cited Davies J in Re Dekanic and Tax Agents’ Board of New South Wales (1982) 6 ALD 240 where His Honour noted that the ordinary practice of the Tribunal in the review of a cancellation of a tax agent’s registration was to grant a stay if that was requested.
I am also mindful of the Respondent’s position that Mr Issa was afforded the opportunity in the ‘section 308 and 309 notices’ of answering allegations made, and that the Respondent’s consideration of Mr Issa’s client files was undertaken because of his claim that they would support his position. Mr Leerdam submitted that they did not provide support and that: It is well established that this does not require an opportunity to be given to the Applicant to comment. (Exhibit R1 at [20.3]).
My decision in considering the application for a stay takes the above submissions into account, and procedural fairness is but one of the indicia I have considered. Whilst I am not required to make a decision regarding whether Mr Issa was provided with the full opportunity of replying to all allegations before the decision to cancel his registration as a migration agent was made, it seems to me from the extensive submissions he had the opportunity to make, and did in fact make to MARA in response to the ‘section 308 and 309 notices’, that he had a fair opportunity of doing so.
Prospects of Success
Mr Robinson submitted that any breaches of the Code were simply technical, and should be viewed in that way.
Mr Leerdam submitted that unlike the applicant in Tanari v Migration Agents Registration Authority [2005] AATA 419, who acknowledged his wrong doing, and where the Tribunal granted a stay in recognition that the applicant had reformed, Mr Issa did not acknowledge that he breached the Code, and did not demonstrate that he has reformed.
In support of this submission, Mr Leerdam relied on an article posted on the Migration Alliance website on 5 November 2014 (Exhibit R2). As part of the article Mr Issa authorised the publication of his Statutory Declaration, attached to which were confidential lists of client names. Mr Robinson informed me that following that submission, and before the end of the hearing, the list of names had been removed. Mr Issa sought to excuse the publication of sensitive information identifying his clients by indicating that he had been very distressed at all the action taken against him by MARA.
The parties are aware that it is not my role to conduct a preliminary hearing of the issues to be raised at the substantive hearing of the application when making an assessment of its prospects of success. The task of the Tribunal is to consider whether there exist facts and circumstances which would provide some basis for success: see Re Commonwealth of Australia v Quirke (1986) 9 ALD 92 at [95].
Before granting a stay, the Tribunal must be satisfied that the considerations for the granting of a stay have been established: see Re Zarfati v Australian Securities and Investments Commission (2008) 106 ALD 225.
At this stage of the review proceedings, it is not possible to make any precise assessment as to the prospects of success. However, having regard to the submissions made on behalf of Mr Issa, which were not extensive as to prospects of success at hearing, I am not persuaded that there are no prospects of success in his review application.
Consequences for Applicant of refusal of stay
Mr Robinson emphasised on behalf of Mr Issa the consequences of the cancellation of his registration. He submitted that the cancellation of Mr Issa’s licence without notice on 10 October 2014 meant that his practice was effectively closed. This disadvantaged Mr Issa financially, as he has large financial commitments, and approximately 350 clients on his books. He also emphasised the damage already done by the online publication in full of the MARA decision, as well as newspaper publicity which had taken place.
Mr Issa deposed at [23] of Exhibit A1:
The effect of the Decision, apart from financial loss, has served to irrevocably destroy my life particularly since publication of the Decision and a defamatory news story presented in the Daily Telegraph published on 21 October 2014 in addition to numerous other media outlets with a support of a Government Minister and the director or OMARA ….
Mr Leerdam on the other hand, submitted that the ‘section 309 notice’, a 34 page letter with 10 attachments relating to each complaint, and alleging numerous breaches of the (Code), were raised with the Applicant. He was given the opportunity of making a reply, and did so in detail on 12 January 2013, 27 March 2013, and 2 April 2013. I note that there was further correspondence between the parties, and that the Respondent submits that Mr Issa was asked, on the basis of his assertions in his letter of 12 January 2013, to provide 50 client files.
Mr Leerdam also raised the fact that Mr Issa has a business partner Mr Kizana, (a former employee) who is a migration agent, and that Exhibits R5, R6, and R7, three of the Applicant’s case management spreadsheets, indicate that Mr Kizana was handling a number of files. I am mindful also that Mr Issa holds an unrestricted practising certificate as a solicitor, and can continue legal practice.
I find from the evidence that Mr Kizana, who is not a solicitor, but rather a migration agent, can continue to operate in regard to migration matters. In saying that, I am mindful of Mr Issa’s statement that Mr Kizana is not experienced in refugee law.
I accept that it is inconvenient for Mr Issa that his migration agent’s licence has been cancelled. However, I note that he holds an unrestricted practising certificate as a solicitor, and that he has a business partner who can continue to manage the migration business. The cancellation no doubt has financial implications for Mr Issa, and I accept that having the decision of MARA published on the internet is uncomfortable for him. However, I am also mindful that he has had since 2011 to consider and take appropriate action in relation to complaints which have arisen against him.
Public Interest
Mr Robinson submitted that Mr Issa had been a solicitor and migration agent for in excess of 19 years. He accepted that there is a need to protect consumers and customers. However he also emphasised that the matters complained of by the Respondent dated back to 2011, that the ‘section 309 notice’ dates back to 28 December 2012, and that it is anticipated this matter will be listed for an expedited substantive hearing. He submitted that as a consequence of these factors, the granting of a stay should not impact upon the requirement to maintain the protection of consumers. He submitted that a stay should therefore be granted.
Mr Leerdam on the other hand, submitted that this was a protective jurisdiction, and that given Mr Issa’s attitude that he had not had the opportunity of responding to allegations, and that any breaches of the Code were technical, it was contrary to the public interest to grant a stay. He submitted that unlike the Applicant in Tanari, Mr Issa had not shown that he had reformed.
Mr Leerdam indicated from the cross-examination of Mr Issa at the hearing, that as recently as the day of the hearing, Mr Issa had no regard for the privacy of his clients in that he had authorised publication of his Statutory Declaration on the internet with the list of clients attached. I noted Mr Issa’s evidence that the oversight had occurred because he was devastated about what had occurred to him … he was very upset, he said. In that regard, Mr Robinson told me that by lunchtime on the hearing day, the list of clients had been taken down.
I have taken the above into account in coming to a decision. However, I am satisfied that the public interest in having Mr Issa’s registration as a migration agent cancelled outweighs his private interest in continuing to operate under a stay.
CONCLUSION
I have considered the issues discussed above, and the indicia to be taken into account in matters relating to stays of the operation of decisions such as Mr Issa’s cancellation of his registration as a migration agent. I am satisfied, and I have come to the conclusion that pursuant to section 41(2) of the Act, it is not desirable to grant a stay of the decision to cancel Mr Issa’s registration as a migration agent.
DECISION
The Tribunal refuses the Applicant’s request for a stay pursuant to s 41(2) of the Act.
I have referred this matter for expedited hearing of the substantive application.
I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of .............................[sgd]...........................................
Associate
Dated 24 November 2014
Dates of hearing 5 November 2014 Counsel for the Applicant Mr M Robinson Solicitors for the Applicant Mr Adrian Joel, of Adrian Joel & Co Solicitors for the Respondent Mr L Leerdam, of DLA Piper
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