Kazi and Migration Agents Registration Authority
[2006] AATA 42
•20 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 42
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/337
GENERAL ADMINISTRATIVE DIVISION ) Re MOFAZZAL HAQUE KAZI Applicant
And
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Senior Member M D Allen Date20 January 2006
PlaceSydney
Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision namely, that the registration of Mofazzal Haque Kazi as a Migration Agent is suspended for a period of three years as and from 16 March 2005.
That suspension shall be lifted after 6 months from today’s date upon the said Mofazzal Haque Kazi giving to the Respondent an undertaking that he will cease to provide immigration assistance with respect to protection visas.(Sgd) M D ALLEN
..................................
Senior Member
CATCHWORDS
MIGRATION AGENT REGISTRATION - code of conduct – whether applicant not a person of integrity or not a fit and proper person to give immigration assistance – onus of proof in relation to breaches of the code of conduct – findings made in relation to various breaches – decision under review set aside and substituted with Tribunal’s decision that applicant’s registration be suspended for 3 years but lifted in 6 months time upon applicant giving an undertaking he will cease to provide immigration assistance with respect to protection visas.
Migration Act 1958 sections 303; 314
Migration Agents Regulations 1998 Schedule 2
Briginshaw v Briginshaw (1938) 60 CLR 336
Davies v Australian Securities Commission (1995) 131 ALR 295
Re Shi and Migration Agents Registration Authority [2005] AATA 904
Casarotto v Australian Postal Commission (1989) 86 ALR 399
Hanna v Migration Agents Registration Authority (1999) 94 FCR 358
Australian Securities and Investments Commission v Donald (2003) 203 ALR 566
NAFJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 91
REASONS FOR DECISION
20 January 2006 Senior Member M D Allen 1. By application made the 18th day of March 2005, the Applicant sought review of a decision of the Respondent made the 14th day of March 2005 cancelling his registration as a migration agent on the grounds that:
(1) He was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance; and
(2) He had not complied with the Code of Conduct described under section 314 of the Migration Act 1958.
2. The reasons for the decision are set out in document T2 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. This document must however be read together with the Respondent’s Statement of Facts and Contentions (Exhibit R1), together with the Respondent’s Statement of Particulars (Exhibit R2).
3. Subsection 303(1) of the Migration Act1958 reads inter alia:
(1) The Migration Agents Registration Authority may:
(a) cancel the registration of a registered migration agent by removing his or her name from the register; or
(b) suspend his or her registration; or
(c) caution him or her;
if it becomes satisfied that:
(d) …
(e)…
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g) …
(h) the agent has not complied with the Code of Conduct prescribed under section 314.
4. Section 314 of the Act reads:
(1) The regulations may prescribe a Code of Conduct for migration agents.
(2) A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.
5. The “Code” referred to in section 314 of the Migration Act is found at Schedule 2 of the Migration Agents Regulations 1988. The relevant clauses read :
“Clause 2.1
A registered migration agent must always:
(a)act in accordance with the law and the legitimate interests of his or her client; and
(b)deal with his or her client competently, diligently and fairly.
Clause 2.4
A registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.
Clause 2.9
While a registered migration agent cannot be responsible for misinformation provided by a client, a registered migration agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.
Clause 2.17
If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) a registered migration agent:
(a) must not encourage the client to lodge the application; and
(b) must advise the client that, in the agent’s opinion, the application is vexatious or grossly unfounded; and
(c) if the client still wishes to lodge the application – must obtain written acknowledgment from the client of the advice given under paragraph (b)
Clause 2.19
Subject to a client’s instructions, a registered migration agent has a duty to provide sufficient relevant information to the Department to allow a full assessment of all the facts against the relevant criteria. For example, a registered migration agent must avoid the submission of applications under the Migration Act or Migration Regulations in a form that does not fully reflect the circumstances of the individual and prejudices the prospect of approval.
Clause 2.23
A registered migration agent must take all reasonable steps to maintain the reputation and integrity of the migration industry.”
6. The test regarding whether a person can be seen to be regarded as “fit and proper” in a professional context was set out by Hill J in Davies v Australian Securities Commission (1995) 131 ALR 295. The same principles are applicable here. His Honour stated beginning at page 305 :
“The phrase’ fit and proper person’ is a familiar one in the context of qualifications for offices or vocations. Discussing the phrase in the context of licences to use vehicles for the purposes of interstate trade, Dixon CJ, McTiernan and Webb JJ said in Hughes and Vale Pty Ltd v New South Wales (No2) (1955) 93 CLR 127 at 156-7:
But their very purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things: honesty, knowledge and ability: ‘honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”. - Coke.
When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be enquired into; each case must depend upon its own circumstances…”
As I observed in Stasos v Tax Agents’ Board of New South Wales 90 ATC 4950 at 4959, the content of what is necessary to constitute a person a fit and proper person to occupy a particular office or pursue a particular vocation will vary having regard to the office or vocation under consideration. Thus the characteristics required to show fitness as a tax agent were expressed by Davies J in Re Su and Tax Agents’ Board, South Australia 82 ATC 4284 at 4286 as requiring that person to be:
…a person of good reputation, has a proper knowledge of taxation laws, is able to prepare income tax returns competently and is able to deal competently with any queries which may be raised by officers of the Taxation Department. He should be a person of such competence and integrity that others may entrust their taxation affairs to his care. He should be a person of such reputation and ability that officers of the Taxation Department may proceed upon the footing that the taxation returns lodged by the agent have been prepared by him honestly and competently….”
7. So far as any onus of proof is concerned, I adopt what was said by Senior Member Kelly in ReShi and Migration Agents Registration Authority [2005] AATA 904 at para 48 namely, that the standard of proof is that enunciated by Dixon CJ in the well known decision of Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363. Likewise as stated by the learned Senior Member, there is no onus of proof upon the Respondent but as stated at para 50 of Shi (supra):
…As a matter of practicality and common sense if MARA is seeking to have the Tribunal affirm its decisions it has to put before me the evidence to enable me to find that it is the correct or preferable decision.”
8. See also Hill J in CasarottovAustralian Postal Commission (1989) 86 ALR 399 at 412-413 where His Honour referred to the judgment of Beaumont J in Minister for Health v Thomson (1985) 60 ALR 701 at 712, namely:
“Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area (see McDonald v Director-General of Social Security (1984) 1 FCR 354). However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and WALL ER (ed) ‘Well and Truly Tried’, Monash Studies in Law (1982) at p 53:
‘There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate.’
…”
9. Likewise whereas I accept that a Jones v Dunkel inference maybe drawn in proceedings before this Tribunal, the Tribunal is not bound by the rules of evidence and different questions may arise as with this matter where witnesses are no longer in Australia and more to the point, likely not to favour either party.
10. Tamberlin J in Hanna v Migration Agents Registration Authorities (1999) 94 FCR 358 at para 20-32 especially at para 22 pointed out that in interpreting the Migration Agents Code of Conduct, the Tribunal must adopt a strict construction having regard to the “penal” nature of the provisions.
11. The complaints against the Applicant can be reduced to five, all being applications to the Refugee Review Tribunal:
(1) The application by Mohammed Wahed Chowdhury
(2) An application by Mohammad Islam
(3) A series of applications by four Bangladeshi namely Abu Sayem, Sultanual Shaid, Khaled Akand and Sheikh Islam.
(4) Applications by two Pakistanis namely Shamim Uddin and Syed Waheed
(5) An application by Amir Muhammad
12. The Applicant was first registered as a migration agent on 3 December 1999 after attending a short course at the University of Technology Sydney. The Applicant had arrived in Australia from Bangladesh in October 1995 and had an LLB and LLM from the University of Dhaka. On 7 April 2000 the Applicant was admitted to practice as a solicitor in NSW.
13. During the period May 2000 to sometime in 2005, the Applicant was an employed solicitor with a restricted practising certificate. In March 2005 he was granted an unrestricted practising certificate and now practices as a solicitor and migration agent under the firm name of Kazi and Associates.
14. It would appear from the evidence of Mr Ardino that whilst an employed solicitor, the Applicant conducted his practice as a migration agent from separate premises and independently from Mr Ardino’s firm.
15. I note in passing that the alleged breaches by the Applicant have occurred in the period he was an employed solicitor carrying on his migration practice as an additional activity.
16. Dealing with the various complaints:
mohammad wahed chowdhury
17. The complaint regarding this visa Applicant arose following critical comments by His Honour Conti J in a decision following an appeal by Mr Chowdhury against an adverse RRT decision.
18. In his judgment (see [2003] FCA 91), Conti J was critical both of the current Applicant and the case presented by the protection visa Applicant Mr Chowdhury. His Honour said by way of conclusion in his judgment:
“…Migration agents are in my opinion subject to duties of and responsibilities as to candour in the presentation of applications for review to the RRT which they prepare, and purport to rely on, in the course of making submission to the RRT. I assume that the alleged conduct of Mr Kazi has been or will be considered by the appropriate authorities. “
19. The substantive complaint in relation to Mr Chowdhury’s proceedings is that the claim presented at the hearing by the RRT was radically different from the claim previously presented to the Department. In addition, the RRT member hearing the matter noted that evidence appeared to have been fabricated and that the current Applicant had lodged material with the RRT only days before the hearing, whereas he had been engaged by Mr Chowdhury a year earlier.
20. The complaint against the present Applicant was investigated by the Legal Services Commissioner of NSW. Unfortunately, the Legal Services Commissioner thought fit to resist production of his file alleging that subsection 602(1) of the Legal Profession Act 2004 (NSW) provided a reasonable excuse for the purposes of subsection 61(4) of the Administrative Appeals Tribunal Act. In the circumstances of this matter it was not thought to be of such forensic value that the issue of production of the file should be litigated further. That is not to say however that this Tribunal agrees with the reasoning proffered by the Legal Services Commissioner.
21. At attachments J, K, and L to the Applicant’s Statutory Declaration in these proceedings (Exhibit A6) are copies of letters purporting to have been written by the Applicant to Mr Chowdhury prior to his appearance before the RRT. In particular a letter dated 23 October 2001 states inter alia:
“…
1. The personal and other background information provided in your previous application form 866 (B and C) are completely different than those of your present statutory declaration.
2. …
3. …
4. …
In the above circumstances, first we need a clear instruction from you before producing your new statement to the RRT.
. ..”
22. The proceedings in relation to Mr Chowdhury’s claim for a protection visa clearly raise the issue of a migration agent’s duty to the RRT and the Courts vis a vis the duty to the client. There are numerous works stating the ethical obligations of legal practitioners and in particular, see the remarks of Dr Johnson quoted at 15 ALJ p169 or as Senior Member Kelly put it more succinctly in Shi (supra) at para 87:
“ … Unless the migration agent knew that the claim was factually baseless a determination whether a claim is well-founded is a merit assessment for the decision-maker.”
23. A question arose during these proceedings as to the authenticity of the documents that are attachments G, K and L to Exhibit A6. The Applicant conceded that they are recreated documents in the sense that they were printed out from his computer and then signed and a “copy” stamp placed upon them before transmission to the Legal Services Commissioner. At no time was there a “hard copy” file in relation to Mr Chowdhury with copies of the letters on the file.
24. Although he resiled from its full import, I clearly understood the Applicant to say when questioned by me that he had not informed the Legal Services Commissioner that the documents J, K and L were not original copies.
25. Whereas I have suspicions that the documents J, K and L were later creations by the Applicant, suspicion and conjecture do not permit the drawing of inferences: see Caswell v Powell DuffrynAssociated Collieries Ltd [1940] AC 152 at 169.
mohammad islam
26. The Respondent alleges that the Applicant played a role in presenting radically different claims to the RRT than had been originally advanced by the visa Applicant and that he inappropriately interfered in the proceedings of the RRT when the visa Applicant was questioned by the member.
27. The transcript of the proceedings before the RRT commences at page 193 of the section 37 documents. It is clear from that transcript that the Applicant did interrupt the questioning of his client by the member. That interruption came at a time when the visa Applicant was being pressed to explain inconsistencies in his evidence and was clearly designed to interrupt that examination. Likewise, the request to transfer the matter to another member was also designed to interfere with the orderly conduct of the proceedings and the fact that the visa Applicant had given inconsistent answers to questions put.
28. The matter was ultimately adjourned to another day being a date the Applicant stated to the member was appropriate for him. He did not attend the RRT on the adjourned date and according to the transcript, his client did not know whether he was attending or not. This behaviour is both inimical to the client’s interests and discourteous to the Tribunal.
29. Whereas conflicting claims were presented by the visa Applicant to the RRT, I consider that this was more due to inexperience on the Applicant’s part in acquiescing in the visa Applicant’s failure to provide documents until shortly before the hearing and more importantly, in failing to take a robust attitude with his client to the extent, if necessary, of refusing to act further.
abu sayem, sultanual shaid, khaled akand, sheikh islam
30. These four matters can be grouped together. The gravamen of the Respondent’s complaint against the Applicant is that their claims were virtually identical.
31. The substance of the grounds of complaint is given in a finding by Tribunal Member Mr Whitlam who dealt with all four matters in his decision in the matter of Abu Sayem. The Tribunal Member said:
“… The fact that the pattern in the January 2001 claim is very similar to that in other cases involving the adviser who assisted the Applicant at that time.
I cannot over emphasise the extent to which the pattern of claims made by the Applicant in January 2001 overlaps in key particulars with claims lodged weeks earlier by the same adviser in other cases…
There are many passages in which it is only the dates and names of positions, places or persons which are different.”
In the matter of Sheikh Islam Mr Whitlam noted:
“At the RRT hearing the Applicant changed his pre-hearing claims on virtually every key front”.
having previously noted
“the pattern in the claims is very similar to that in other cases involving the same adviser.”
32. During submissions the Respondent’s solicitor took me to various similarities in the claims by the four visa Applicants. I do not intend to set out the similarities but I do find that the remarks by the RRT Member are quite accurate, in particular that the probability of the same or similar events occurring in the same sequence in four separate matters defies logic.
33. I also accept the Respondent’s submission that it was unfortunate for the Applicant that all four matters came before the same RRT Member. Had four different Tribunal Members dealt with the applications the similarities may have gone unnoticed.
34. The Applicant sought to explain the series of similar claims by stating that all four visa Applicants came from Bangladesh at much the same time and were involved with the same political party. This does not explain the same series of events in the same sequence.
35. The Applicant also conceded in his statutory declaration of 15 February 2005 :
“As a general concession, I accept that my method of preparing documents on the word processor may lead to similar words and phrases. It may be the fact that English is a second language and has contributed to me relying on stock words and phrases too.”
later he said:
“I am now very careful about cutting and pasting from different documents”.
but admitted at paragraph 31:
“However, later while his case was with RRT waiting for hearing, Mr Uddin pointed out that a few paragraphs of his statements didn’t belong to him and he though these paragraphs may be copied from someone else. Then I checked his declaration and found that a few paragraphs of his statutory declaration were copied from his friend, Mr Waheed’s declaration as both declarations were written at the same time and unfortunately a few paragraphs were pasted from one to another.”
36. At document T21 p21 and p23, there are statements by Messrs Shaid and Sheik Islam stating that the statements prepared for them were prepared from instructions they had given to the Applicant.
37. Interestingly, Mr Shaid says in his statutory declaration that:
“I can’t think of any reason why my claim would be similar to anyone else’s claim”.
I would have thought that if the experiences he details are common to Bangladeshi student leaders who support the Chattra DIL and BMP (as all four visa Applicants claim they did), then reasons would have been obvious.
38. When one reads the statutory declarations of all four visa Applicants together, the similarities are overwhelming. I can only draw one conclusion and that is that the Applicant was at the very least content to put forward to the RRT a series of claims from four different individuals which were obviously upon their face the same. Furthermore, he has conceded that he has, in preparing the claims, cut and pasted from standard documents.
39. Another result of this “cutting and pasting” process by the Applicant is that in the case of Khaled Akand, the claim was made relating to the visa Applicant’s “wife and kids” whereas at the RRT, the visa Applicant confirmed that he had never been married.
40. The Applicant’s explanation for these events is set out above but that explanation does not deal with the reasons why he permitted the admittedly similarly worded documents to go before the RRT.
41. In cross-examination when asked how the similar statutory declarations were prepared, the Applicant said that he had taken a statement from the visa Applicants and then handed his notes to a typist. He then checked the prepared documents against his notes but added:
“…I made a short cut and then, and then I was very rush and then this all happened…”
42. This statement does not accord with the Applicant’s earlier statutory declaration in which he refers to:
“…My method of preparing documents on the Word processor….I am now very careful about ‘cutting and pasting’ from different documents.”
43. The Applicant also conceded in cross-examination that his work had been faulty. He stated:
“I did everything on good faith and then, and everything was messed up. I was doing so many things at that time”.
44. All in all, I find the Applicant’s evidence on how the documents were produced to be confused. At one stage being in his statutory declaration of 15 February 2005, I gathered the work could be done on a word processor but in his evidence before me, I understood that the responsibility for preparing the statutory declarations had been handed to a fellow Bangladeshi who was completing a PhD at the time and who did the typing.
45. The bottom line is that I am satisfied the Applicant was willing to prepare and place before the RRT documents in support of Bangladeshi visa Applicants that obviously upon their face contained the same or very similar stories. He contributed to this by using, on his own admission, similar words and phrases and by cutting and pasting on his word processor.
shamim uddin and syed adnan waheed
46. Both of these Applicants were Pakistani and both made the same claims in support of their application for protection visas.
47. In the matter of Shamim Uddin the RRT Member said in her decision:
“The Applicant stated that some of the details in his application and in his Statement of Claims were not correct. The Applicant stated that he thought that his application had been mixed up with another Applicant and that his adviser had pasted and mixed his Statement of Claims with that of another Applicant.
The Applicant was asked how his application was prepared. He stated that he told everything to the adviser who then wrote it down and told him not to worry. The Applicant stated that the application was sent off.
The Applicant stated that on rereading the statement he discovered that some of the statements were not applicable to him and other things pertaining to his application were not entered.
The Applicant was asked if he could be more precise about what was in the Statement of Claims that he was now claiming to be incorrect. The Applicant stated there was a mix up of the dates and that other things were not true.
The Applicant was asked about how much of the Statement of Claims that he had sent to the Department were in fact true. The Applicant stated that he considered it to be about half true but his adviser had added bits from other Applicants.
The Tribunal put to the Applicant that he had signed each page of the Statement of Claims and that in signing it this was taken to mean that he had read and agreed that everything was correct. The Applicant stated that at the time he was under mental stress and therefore everything was done in a rush and that he had signed it in a rush.”
48. Later in the same decision, the RRT Member mentioned that she did not accept the visa Applicant’s claims that he was under stress and that he trusted his lawyer.
49. The matters of Messrs Uddin and Waheed must also be compared to that of Amir Muhammad. In all three matters there are striking similarities in the claims made by the visa Applicants.
50. These similarities go beyond near similar words and phrases and it is quite clear that the same passages of evidence have been relied upon.
51. The Applicant’s explanation for the similarities between Messrs Uddin and Waheed is that Mr Waheed had read Mr Uddin’s statement before making his claim for refugee status. He recognised the claims were similar but felt that he had a moral duty to put his client’s case before the RRT. He had no reason to doubt his client’s claim and that he indeed may have had the problems in Pakistan to which he deposed.
52. The Applicant further stated that he had pointed out to Messrs Uddin and Waheed the similarities of their respective claims and that that fact may undermine their credibility. Despite this warning, they had instructed him to go ahead and lodge their applications with the similar claims.
amir muhammad
53. Following the hearing of this visa Applicant’s claim before the RRT on 23 January 2004, the Member dealing with the application was moved to state in his reasons for decision:
“A word about the Applicant’s adviser (Mr Kazi): his work in the present matter, which is built on obvious untruths, is of a very poor standard.”
54. The RRT Member was also moved to state in his decision regarding the claim:
“More importantly, the Applicant has clearly lied about what he was doing and what happened to him in 1999. He has either invented his claims from scratch or lifted them from someone else, but whatever the case, his claims cannot possibly be truthful claims about himself. He was here in Australia the whole time.”
55. Perusing this statement by Amir Muhhamad and comparing it to the statements by Messrs Uddin and Waheed the similarities between them are obvious.
56. The Applicant has stated regarding these similarities in relation to Mr Muhhamad:
“When he provided his written statement I pointed out some similarities of his statements with some of my existing clients. But he claimed that his statement was prepared by him based on his fear of persecutions in Pakistan.”
and later stated:
“…Upon his instructions, I lodged his protection visa application with that statement. I didn’t modify anything in his statement. I understood later that some of the wordings in his statement are similar to my other clients’ as because his statement was drawn from the Statutory Declaration of his friend who was also my client.”
57. Other complaints regarding the Applicant have referred to his incompetence and discourtesy to the RRT. At T documents page 247 the allegation is:
“It is open to the Authority to note that in the cases of Mohammad Monirul Islam, Khaled Siddiq Akand, Shiekh Shamimul Islam, Syed Adnan Waheed, and Amir Yassen Muhhammad the relevant RRT Members found it necessary to comment unfavourably on the Agent’s interactions with the RRT over a range of matters such as failing to keep the RRT informed of his clients intentions to appear at hearing, late submission of lengthy and often irrelevant material and a last minute request for an interpreter. It is open to the Authority to find that these together with the RRT Members’ comments in relation to the aforementioned cases of Mohammad Wahed Chowdhury and Mohammad Monirul Islam establish a pattern of behaviour in relation to his interactions with the RRT that reflect poorly on his professionalism and do little to contribute to the maintenance of the reputation and integrity of the migration industry.”
58. Examples of the Applicants’ failings are:
(I) That in the matter of Mr Mohhammad Islam, despite the application being lodged two years previously, a submission and material in support of claim was only lodged on the morning of the hearing before the RRT.
(II) In the matter of Mr Chowdhury, new markedly different claims were submitted on the morning of the RRT hearing and when asked to provide further explanation for inconsistencies in the visa Applicant’s claims, the present Applicant submitted a “huge amount of country information… not directly relevant to the Applicant’s claim.”
(III) In the RRT decision regarding Mr Sayem, the following passage occurs:
“In the April 2001 RRT application the current adviser claimed the applicant was an active member of the Freedom Party. At the hearing the applicant was astonished at that claim and his current adviser pleaded guilty to making a mistake.”
(IV) In the matter of Mr Shaid the RRT decision noted:
“I simply note that key parts of the claims made on the Applicant’s behalf before the hearing were unfamiliar to the Applicant at the hearing and the fact that the pattern in the claims is very similar to the other claims made by the same adviser”.
“At the RRT hearing the applicant retreated from his pre-hearing claims on virtually every key front.”
(V) In the matter of Sheik Islam, the RRT decision reads at page 12 thereof:
“When I read paras 10A and 10C to him, he said that the adviser had spiced things up”.
The above comments were made by experienced members of the RRT.
59. In response, the Applicant stated that at the time of the RRT hearing Mr Sayem was no longer his client, Messrs Sheikh, Akand, Islam, Waheed and Muhammad did not require him to attend in order to save paying his fee for attendance and that in relation to Messrs Waheed, Shaid and Akand the response to hearing forms sent to the Tribunal had indicated he would not be attending. Similarly Mr Uddin had withdrawn his instructions.
breaches of a code of conduct
60. The Respondent has alleged the Applicant has failed to comply with six clauses of the Code of Conduct. So far as those alleged breaches of conduct are concerned, I find:
Clause 2.1
I do not find any breach of this clause. The Applicant’s practice has not been ideal and no doubt part of the difficulties were that for some time, until granted an unrestricted practising certificate by the New South Wales Law Society, he was working as an employed solicitor and attempting to conduct the migration agent’s practice at the same time with very limited capital.
Clause 2.4
I find that the Applicant at all times had due regard to his client’s dependence upon his knowledge and experience. A large part of these difficulties arose from a too ready acceptance of his clients’ instructions without proper testing of the veracity of their claims.
61. That having been said, I do not regard it as proper for a migration agent to act as a de facto Tribunal. The analogy with a solicitor’s duty to his client is inescapable and as the learned Senior Member pointed out in Re Shi (supra) at para 87, the determination of whether a claim is well founded or not is a merit assessment for the decision-maker.
Clause 2.9
This clause is more specific and positively requires that a migration agent:
1. must not make statements in support of an application… which he or she knows to be false and
2. must not encourage the making of statements which he or she knows to be false.
62. There is no evidence that the Applicant made any statements in support of an application that he knew to be false. I am satisfied that he put forward statements by his clients that he must have suspected on very strong grounds were false but I cannot find any evidence to justify finding that he encouraged them to make the said statements as opposed to acquiescing in the making and putting forward of the said statements.
Clause 2.17
The test of what is a vexatious or grossly unfounded application was set out in Re Shi (supra) commencing at para 84. In particular, I refer to point 3 of the summary of the meaning of vexatious by Roden J in Attorney General v Wentworth (1988) 14 NSWLR 481 at 491 (cited in Shi at para 84) namely:
“…if, irrespective of the motive of the litigant, they are obviously untenable or manifestly groundless as to be utterly hopeless.”
63. As pointed out in Re Shi (supra) at para 85, the real test is whether “on its face” the application satisfied the criteria for the visa class.
64. As I understand the submissions of the Respondent, it is not that in the particular visa applications referred to the said applications were on their face untenable but rather it was apparent on the face of the supporting statements that the facts allegedly giving rise to the claim were concocted.
65. Again I find that the Applicant did not breach this particular clause of the Code of Conduct. What he seems to have done is acquiesce to his clients’ instructions to put a certain fact scenario before the RRT when he knew, or ought to have known, that the alleged facts were most likely concocted as they were very similar to the alleged facts in other claims.
Clause 2.19
The Applicant has breached this clause. In the matter of Mr Akand there was reference to a non-existent wife and child. In Mr Uddin’s case there was material which was transposed from the statement by Mr Waheed. In Mr Shaid’s matter parts of the claims made were apparently unfamiliar to the visa Applicant.
66. Further I see no reason to doubt that in the matter of Mr Sheik Islam, the visa Applicant said that the advisor had “spiced things up”. Although not called, I accept that allegation as true as the visa Applicant obviously made it against his own interests.
67. Clause 2.23A is a catch all phrase somewhat similar to the general article offence in military law. As to what are reasonable steps I do not know and no doubt each case depends upon its own circumstances. Obviously this clause acts in tandem with an agent’s duty to his own client, in the same way as a solicitor owes both a duty to his client but with an overriding duty to the court .
68. Having regard to the penal nature of the clause, I am not prepared to find, on the material before me, that the Applicant has breached its provisions.
69. Different considerations apply when considering whether the Applicant is a fit and proper person to give immigration assistance. As pointed out in Davis v Hill (supra), one of the tests is that officers of the Department of Immigration can proceed upon the footing that the applications lodged by the Applicant have been prepared by him honestly and competently.
70. The Applicant has conceded that some of the material prepared by him use similar words and phrases and he had a practice of cutting and pasting from different documents. This led to error before the RRT in the case of Mr Uddin.
71. Although in the case of Mr Chowdhury the Legal Services Commissioner declined to proceed further, the fact remains that the Federal Court Judge was moved to refer the conduct of the Applicant in that case for investigation.
72. Having read the transcript in the matter of an application to the RRT by Mr Mohammad Islam, I am satisfied that the Applicant did intervene to prevent examination of the visa Applicant when it was clear that Mr Islam was in difficulty in providing acceptable answers to the questions asked by the RRT Member.
73. In the case of Mr Chowdhury there is also a suggestion that the Applicant had instructed his client to speak in a fashion that would be hard to understand and to pretend not to understand the interpreter. Those allegations were not taken further as the interpreter refused to put them in the writing. However I see no reason not to accept the statement by the RRT Member of what was said to him after the hearing by the interpreter. Whether the interpreter was telling the truth or not, the allegations are serious and must raise a question mark as to the ethics of the Applicant.
74. When considering the cases of Messrs Waheed and Uddin together, it is clear that the claimant was aware that they were submitting identical statements yet went ahead with that version of events.
75. In his decision in the matter of Mr Akand, the Tribunal Member Mr Whitlam said of the Applicant:
“I simply note the fact that key parts of the claims made on the applicant’s behalf before the hearing were very different from what was admitted or apparent at the hearing and the fact that the pattern in the claims is very similar to that in other cases involving the same adviser. The matter of the ‘typographical error’ (see para 33) is revealing. In any event, the dramatic contrast between pre-hearing claims and hearing claims speaks for itself.”
and he continued to state:
“The adviser has explained the reference to wife and children as a ‘typographical error’. I do not believe that explanation because the pattern of claims put forward in this case and other cases handled by this adviser leads me to conclude that this instance is merely one of many ‘typographical errors’… “
The above comments can be compared to the comments of Member Mr Hardy in the matter of Amir Muhammad namely:
“A word about the applicant’s adviser (a Mr Kazi): his work in the present matter, which is built on obvious untruths, is of a very poor standard.”
76. The above events of themselves lead to a conclusion that the Applicant cannot be said to be a fit and proper person on the grounds that he is a person in whom the Department of Immigration and the Refugee Review Tribunal can have no or very little confidence, both as to his competence and to his integrity.
77. Character evidence was called on behalf of the Applicant. The general thrust of this evidence was that the Applicant had a good reputation in the expatriate Bangladeshi community and as a legal practitioner. The persons who provided character evidence had been made aware of the allegations against the Applicant.
78. This evidence of character must be weighed against the complaints regarding the manner in which the Applicant carried on his practice as a migration agent. The references are not such that they make me doubt that the Applicant did carry out the impugned behavior.
79. As I am of the view that the Applicant is not a fit and proper person to give immigration assistance, the matter of penalty must be considered. In this regard I possess all the powers and discretions available to the Respondent: see Australian Securities and Investments Commission v Donald (2003) 203 ALR 566. In assessing penalty I intend to have regard only to the Applicant’s migration practice and not to the fact that as a solicitor holding a current practising certificate he is entitled to give immigration legal assistance as of right.
80. The Applicant states that he has now restricted his immigration agent’s practice in that he does not act for persons seeking protection visas. Further the Applicant points out that the impugned behavior occurred when he had little experience in migration matters and tended to accept his clients’ stories at face value. This however does not explain his behavior at the RRT nor his incompetence in the late lodgment of documents. I also doubt this explanation as the Applicant at the time was a man of mature years and had completed his legal qualifications in 1989. He has not given any details of his legal practice in Bangladesh before coming to Australia but he was, at the time he acted for the visa applicants, far from being an ingénue fresh from University.
81. All in all I can consider that the Applicant is highly deserving of censure for the way in which he conducted his practice. I believe that this censure is best manifested by a period of suspension from practice with hope of rehabilitation rather than the more severe penalty of cancellation.
82. The cancellation of the Applicant’s migration agent’s registration took effect from 16 March 2005. On 22 April 2005, the AAT stayed the implementation of that decision. However on 2 December 2005, the Applicant’s registration as a migration agent expired and pursuant to subsections 300(2) and (3) of the Migration Act the Applicant’s registration has now ceased.
83. As I understand the matter, the Applicant will now have to reapply for registration as a migration agent and whether that application is granted or not, or is granted with conditions, is a matter for the Respondent.
84. The decision below is the decision of the Tribunal referable to the decision under review.
85. The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision namely that the registration of the Applicant as a migration agent is suspended for a period of three years as and from 16 March 2005. That suspension shall be lifted after six months from today’s date upon the Applicant giving to the Respondent an undertaking that he will cease to provide immigration assistance with respect to protection visas.
I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: (E.Pope) .....................................................................................
Associate
Date of Decision 20 January 2006
Counsel for the Applicant Mr M Robinson with Mr C Jackson
Solicitor for the Applicant Mr R Kessels, Kessels, Goddard & Ajuria
Solicitor for the Respondent Mr L Leerdam, Phillips Fox
7
16
0