Khan and Migration Agents Registration Authority

[2005] AATA 13

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 13

ADMINISTRATIVE APPEALS TRIBUNAL

GENERAL ADMINISTRATIVE DIVISION            N2003/2006

Re: Sher Afzal KHAN

Applicant

And: MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal:       P.J. Lindsay, Senior Member

Date:             7 January 2005

Place:            Sydney

Decision:      The decision under review is affirmed.

. . . . . . . . . . . . . . . . . . . . . . . .

P. J. Lindsay, Senior Member

©        Commonwealth of Australia          (2005)

CATCHWORDS

MIGRATION AGENT – cancellation of registration of registered migration agent – agent’s criminal convictions and bankruptcy not disclosed to registration Authority – false or misleading statement – false statutory declaration – applicant not a person of integrity or a fit and proper person to provide immigration assistance – cancellation decision affirmed

Migration Act 1958 ss.280,283, 290, 303, 306, 314

Migration Agents Regulations 1998, Schedule 2, Code of Conduct

Cunliffe v Commonwealth of Australia (1994) 182 CLR 272

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12

Re Griffiths and Migration Agents’ Registration Authority [2002] AATA 247

Briginshaw v Briginshaw (1938) 60 CLR 336

REASONS FOR DECISION

P.J. Lindsay, Senior Member

1.      Sher Afzal Khan has applied to the Administrative Appeals Tribunal for review of a decision made by the Migration Agents Registration Authority on 2 December 2003.  That decision was to cancel Mr Khan’s registration as a migration agent. 

2. The tribunal’s jurisdiction in this matter is found in s.306 of the Migration Act 1958 (the Act) :

Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division.

At the hearing, Mr Khan was self-represented. The tribunal heard evidence from him, as well as from his wife and a business associate, Mr Singh. The Authority was represented by Mr G Peek of the Australian Government Solicitor. The tribunal had before it the documents (T documents) lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and the exhibits tendered at the hearing.

background

3.      Mr Khan, who is 57, left his native Pakistan in 1972 and immigrated to Australia in 1974. He is a citizen of both Australia and New Zealand. He applied for registration as a migration agent on 3 September 2001. The application was successful and he was registered as a migration agent on 9 October 2001.

4.      Following a complaint by the Department of Immigration and Multicultural and Indigenous Affairs, the Authority contacted Mr Khan by letter dated 25 October 2002 (T10). The complaint related to a number of matters. Those relevant to the instant application were noted by the Authority as follows:

Information from the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) indicates that you were convicted of fraud in New Zealand in 1997 and you were sentenced to between 12 and 18 months gaol. You were interviewed at Sydney Airport on 7 September 1998. You are reported to have acknowledged the convictions when interviewed, but stated that you were appealing the convictions. It was also pointed out to you that you had ticked “No” to the question on the incoming passenger card “Do you have any criminal convictions”. On the Form M01 Application for Registration submitted to the Authority which you signed and dated on 3 September 2001 you answered Questions 12, 13 and 15 as follows:

Question 12“Are you the subject of any criminal proceedings or have you ever being found guilty of a criminal offence other than a conviction which is spent under Part VIIC Crimes Act 1914?”

You answered “no”

Question 13“Have you ever been the subject of an investigation or an inquiry? This includes by a professional association, corporate regulatory agency or consumer organisation”

You answered “no”

Question 15“Have you ever been the subject of an investigation by a Department or Agency of the Commonwealth or a State or Territory of Australia?”

You answered “no”

It is open to the Authority to be satisfied that your answer on the incoming passenger card was a false and misleading statement and your responses to questions on the Authority’s Form M01 Application for Registration were false.

The Authority invited Mr Khan’s response and in particular asked him to provide a police clearance certificate from New Zealand.

5.      In his application for original registration as a migration agent (form M01), Mr Khan had answered in the negative to a question “Have you ever been declared bankrupt?” (T2) This question, and the questions set out above in par 4, were also included in the application for repeat registration that Mr Khan completed and signed on 16 September 2002 (T6).  Mr Khan gave the same answers as in his original application.

6.      On 2 November 2002 Mr Khan wrote to the Authority and admitted that he and his wife were convicted of fraud in New Zealand (T12).  His explanation for his answers on the incoming passenger card was that he thought the questions related only to convictions and investigations/inquiries in Australia, not elsewhere. He did not provide a police clearance certificate but said that he had applied for it. 

7.      While the Authority was investigating the complaint about Mr Khan, his application for repeat registration as a migration agent was granted. The Authority notified him of that by letter dated 12 November 2002 and he was re-registered for twelve months from 9 October 2002 (T13).

8.      By letter dated 11 December 2002 the Authority again requested the police clearance certificate.  Mr Khan’s response of 28 December 2002, was that, as he had been reregistered, he thought the Authority would no longer require the police clearance certificate (T15).  Due to his absence overseas in the following months, there was a considerable delay in his applying for the police clearance certificate.  The New Zealand Department of Courts noted that Mr Khan’s application for the police clearance certificate was received on 8 April 2003. They provided the following information: charged with one count of miscellaneous frauds and with two counts of taking/obtaining/using document for pecuniary advantage on 18 April 1996; convicted of the charges; and on 10 October 1997 sentenced to 6 months imprisonment on each charge (T21). 

9. Mr Khan gave the Authority the information about his convictions on 10 April 2003. The Authority then wrote to him on 17 July 2003 (T22) inviting him to make a submission to explain the answers he gave in his application for registration dated 3 September 2001 to questions concerning criminal offences and investigations. The Authority told him that, on the information available, it was open to find he had breached clause 2.23 of the Migration Agent’s Code of Conduct; that the particulars in form M01 were false or misleading and that he signed a false declaration in breach of s.303(d) of the Act; and that he was not a person of integrity or otherwise not a fit and proper person to give immigration assistance under s.303(f).

10.     By letter dated 27 July 2003 (T23) Mr Khan responded to the Authority’s letter of 17 July 2003. He reiterated his view that his re-registration by the Authority led him to believe that the matter had been concluded.  He noted that the Authority did not inform him that the matter was still pending or that his registration was subject to any condition.  He also claimed that he was being victimised by departmental officers in Pakistan who had made serious allegations about him and DIMIA was using the authority to get at him. 

11.     On 1 December 2003 the Authority stated its decision as follows:

Pursuant to section 303(a) of the Migration Act 1958 (the “Act”), Sherafzal Khan (“the Agent”) is advised that, following consideration of the facts before it, the Migration Agents Registration Authority (“the Authority”) on 1 December 2003 has determined to cancel the registration of the agent by removing his name from the Register kept by the Authority under section 287 (1) of the Act, as it was satisfied pursuant to section 303(h) of the Act that the agent has not complied with the Code of Conduct prescribed under s.314(1) of the Act as in force from time to time and, further, as it was satisfied under section 303(f) of the Act that the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance. The Authority was also satisfied that the agent’s application for registration was known by the agent to be false or misleading in a material particular pursuant to section 303(d) of the Act. (T36-217)

applicable legislation

12. Section 303 of the Act sets out the grounds on which the Authority must be satisfied before taking disciplinary action against a migration agent and the types of action that it can take:

(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) the agent's application for registration was known by the agent to be false       or misleading in a material particular; or

(e) the agent becomes bankrupt; or

(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or

(g) an individual related by employment to the agent is not a person of      integrity; or

(h) the agent has not complied with the Code of Conduct prescribed under          section 314.

Note 1: The Authority is required to caution a registered migration agent or cancel or suspend a registered migration agent's registration in certain circumstances: see Division 3AA.

Note 2: If the Authority is considering making a decision under this section, it must invite the registered migration agent to make a submission: see sections 309 and 310.

13. Section 314 of the Act provides for a Code of Conduct that applies to migration agents.

(1) The regulations may prescribe a Code of Conduct for migration agents.

(2) A registered agent must conduct himself or herself in accordance with the prescribed Code of Conduct.

It is convenient here to set out the relevant clause in the Code of Conduct, which is found in Schedule 2 to the Migration Agents Regulations 1998:

Part 2 Standards of professional conduct

2.23 A registered migration agent must take all reasonable steps to maintain the reputation and integrity of the migration industry.

evidence

14.     Mr Khan said that he attended high school in Pakistan and matriculated. He was a registrar of a district court before he left Pakistan in 1972 to go the United States to live with relatives. He understands English well.  He explained that all the court hearings in Pakistan at that time were in English. He came to Australia in 1974 and then moved to New Zealand in 1978 where he began a business as an importer. He said that he been a businessman, importer and exporter for over thirty years. As a migration agent, he has opened offices in Pakistan and Turkey. He said that there has not been a single client complaint about him concerning either misconduct or deception. 

Bankruptcy

15.     Mr Khan acknowledged that he was made a bankrupt in New Zealand in 1995. A letter dated 7 September 1995 from the Department of Justice in New Zealand to the passport section of the Australian Consulate General stated (Tfolio222):

SHER AFZAL KHAN (A Bankrupt)

The abovenamed was adjudicated bankrupt on 21 June 1995 in the High Court at Auckland on the petition of ANZ Banking Group (NZ) Limited for a debt in excess of $100,000.

We understand that Mr Khan has Australian Citizenship and we have reason to believe that he may hold two Australian passports. He also holds a NZ passport and a Pakistani passport. Please confirm details of passports held by Mr Khan in order for us to be sure that he is presenting us with the correct documents.

As a bankrupt Mr Khan is unable to travel overseas.

16.     Contrary to the letter by the Department of Justice, Mr Khan said that he was able to travel overseas while a bankrupt, provided he had the Department’s approval, which he said was obtained as necessary. He said he was discharged from bankruptcy three years later, in 1998.

17.     In cross-examination Mr Khan was asked about question 11 in form M01, his application in September 2001 for original registration as a migration agent. The question and the answer he gave read (T2-8):

Question 11. Have you ever been declared bankrupt?

Answer: No

Indeed he gave the same answer to that question in his application in September 2002 for repeat registration (T6). Mr Khan’s explanation was that he thought the question referred to bankruptcy in Australia. He noted that the question did not mention a particular country, unlike other questions in the form such as those that asked whether an applicant had been awarded tertiary qualifications by an institution in Australia or New Zealand. He said question 11 was ambiguous, so he answered  ‘no’.  When asked why he did not approach the Authority for assistance in clarifying the ambiguity, Mr Khan’s response was that he did not think it related to New Zealand or any other country. 

18.     The application for repeat registration in September 2003 was in a different format to the applications completed in the previous two years. Rather than a ‘yes / no’, applicants were required to make a statutory declaration that the information they provided to the Authority was true (T35-203).  In relation to bankruptcy, the form required applicants to declare as follows:

23 The following statements relate to section 290 of the Migration Act 1958.

…

vi) I have not been declared bankrupt or applied to take the benefit of any law      for the relief of bankrupt or insolvent debtors, or compounded with my    creditors, or made an assignment of remuneration for the benefit of my     creditors that has not previously been declared to the Migration Agents           Registration Authority.

Mr Khan declared that this was a true statement.  His evidence was that he thought the form was ambiguous and his declaration was not false. Despite acknowledging that the declaration did not relate to any country in particular, Mr Khan said he thought the information sought was only in respect of Australia.

Convictions in New Zealand

19.     Mr Khan’s evidence was that he thought the Authority’s registration form questions concerning criminal convictions, such as question 12 in the application for original registration (see par 4 above) were ambiguous. He said the question did not ask ‘Have you been convicted of an offence in any country?”. Despite what he saw as ambiguity, he ticked ‘No’. Given his perception of ambiguity, Mr Peek put it to him that it would have been prudent to disclose the New Zealand convictions but Mr Khan said that as the question was not asked, why should he have declared or provided that information. Further, it was put to him that it appeared he was trying to find a way of justifying not declaring his convictions, but he denied that was his intention. He expanded by referring to the interview at Sydney Airport on 21 August 1998.  An immigration inspector had noted that the applicant’s incoming passenger card had been ticked ‘no’ to the question ’Do you have any criminal convictions?’, yet the officer was aware that he had criminal convictions.  Mr Khan told the tribunal that he told the officer that he did have convictions and had he intended to lie, he would have done so during the interview.

20.     He was cross-examined about the interview that occurred after he and Mrs Khan arrived from New Zealand. They were coming to this country for a three day stay to attend a funeral Mass for his wife’s brother. Mr Khan travelled on a New Zealand passport. When questioned by the officer about the ‘no’ answer, Mr Khan admitted his convictions but explained that he was in the process of appealing to the Governor-General to overturn the convictions. His appeal in court against the convictions was unsuccessful. His evidence was that his wife had to complete the incoming passenger card for him because at the time he was suffering from a cataract of the right eye. He tendered a letter from Dr B Adams of 10 March 2004 that stated that the applicant had a right cataract extraction on 27 October 1999 (exhibit A1). He said he had also taken two tablets for his depression before his departure from New Zealand. He said he informed the immigration officer that his wife had filled out the card and it was a mistake. The statement dated 20 July 2004 by his wife, Youmna Khan, notes that she completed the passenger card for her husband while he was asleep and he had a cataract so he could not read it when he signed it (exhibit A4).

21.     Mr Khan was asked to explain why the report prepared by the immigration inspector at Sydney Airport on 21 August 1998 (T fols 226-230) did not include any reference to his wife’s completing the card. Mr Khan’s explanation was that he had told another officer, who was not the author of the report. He later said that he also told the author of the report but she had left it out and the report is incomplete. He was asked to reconcile that evidence with the words used in the report:

… I asked pax [Mr Khan] why he answered no when he himself now admits he does have criminal convictions. Pax replied ‘I was not sure, I was going to ask the immigration officer at the counter (the primary officer at the ECP), but I didn’t have time’. I asked pax why he would be unsure as the question is quite simply stated. He replied that he was told by friends that if you had a conviction less than twelve months it would not matter. I put it to pax that the question is straight forward and does not stipulate a time frame. He again replied ‘I was going to ask but I didn’t have time’. (T fol 227-228)

It was put to him that it was not until his letter of 29 August 2003 (T32) that he first informed the Authority about his cataract and his wife having to fill in the passenger card. His reason was that he had waited for DIMIA to provide him with a copy of the card to make sure he was referring to the correct card.

22. Mr Khan asked the immigration officer why the convictions were relevant because he is an Australian citizen. It was pointed out to him that he had lost his Australian citizenship on taking up New Zealand citizenship. According to the report, the immigration officer informed him that non citizens who do not correctly answer questions on incoming passenger cards fail to comply with s.102 of the Act and this can lead to cancellation of the visa. The officer noted that Mr Khan asked what all the fuss was about and that it was a trivial matter. The report refers to deliberations involving senior officers and other officers in Canberra regarding Mr Khan’s entry into the country. It was reported that Mr Khan apologised for providing incorrect information and said his lawyer in New Zealand was fighting the conviction. In the event, it was decided to grant him a special category visa in recognition of his onward travel arrangements, being the spouse of an Australian citizen and his purpose being to attend a funeral.

23.     In response to Mr Peek, the applicant explained his comment about being in the process of appealing to have his convictions overturned. Mr Khan said this was action taken in the District Court and, after seven years, was pleased with the successful outcome. He tendered a copy of the judgment dated 10 March 2004 (exhibit A3).  Further questioning, however, revealed that the judgment was in favour of Mrs Khan in relation to a compensation action she had taken. Although the facts surrounding her claim may relate to the applicant’s conviction for fraud, he informed the tribunal the judgment did affect his convictions. Pressed to explain, Mr Khan said that the judgment will be relied on by him in an application to have his convictions overturned. He did not offer a reason for the delay in his following up with such action other than to say he had been talking regularly with his lawyer about seeking to have the convictions quashed.

24.     Given he was not an Australian citizen in August 1998, Mr Peek asked the applicant to explain what he meant by the statement to the Authority in his letter dated 2 November 2002 (T12) that “About statement at Sydney Airport the Australian citizen do not have to answer about the convictions in arrival immigration card so I did not answer”. Remarkably, he said that he was unaware that his Australian citizenship had been cancelled when he took out New Zealand citizenship. This is even more remarkable as the immigration officer’s report of the interview at Sydney Airport on 21 August 1998 informed him that he had lost his Australian citizenship (T fol 227).  

consideration and findings

25.     In Cunliffe v Commonwealth of Australia (1994) 182 CLR 272 Mason CJ observed that the aim of the legislation that governs the provision of immigration assistance and representation was to improve professional conduct and standards of service by migration agents, and said:

…[it] seeks to achieve that object by protecting aliens from incompetent and unscrupulous advisers through the introduction of a regulatory regime which is designed to ensure that those who advise and represent aliens are competent and are persons of integrity.(at 294)

26.     

At the centre of the statutory regime applying to migration agents is the privilege conferred by registration pursuant to s.280 of the Act, which broadly provides that only registered migration agents may give immigration assistance for reward. Under s.283 it is an offence to make a false representation that a person is a registered migration agent. Section 290 provides that an applicant must not be registered if the applicant is not a person of integrity or is

not a fit and proper person to give immigration assistance. But of more relevance to this application is s.303 because it deals with the cancellation of the registration of a registered migration agent. Many professions and other callings, for example, insist on an applicant for registration as a practitioner to be a ‘fit and proper person’. The meaning to be given to that expression will depend to some extent on the context, but regardless of the particular calling involved, the quality of fitness and propriety is connected with an assessment of character as the following passage from Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, makes clear:

The expression "fit and proper person", standing alone, carries no precise meaning.  It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.(per Toohey and Gaudron JJ at 380)

27.     One of the aims of the Code of Conduct (in schedule to the Migration Agents Regulations 1998) is to set out the duties that a registered migration agent has to, among others, a client and to the Commonwealth and its agencies (cl. 1.10(c)). Related to that aim and to the object of the Act described by Mason CJ in the passage quoted from Cunliffe above is the purpose of ensuring the due administration of the Act. In that regard Deputy President McMahon in Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12 said that DIMIA is entitled to rely on the honesty of registered migration agents in representing their clients’ interests, in a similar way to the Australian Taxation Office’s relying on the honesty of registered tax agents and the Australian Customs Service’s relying on customs agents. The tribunal agrees and respectfully adopts Deputy President McMahon’s conclusion.

28.     The Oxford English Dictionary Online gives the definition of ‘integrity’ in the moral sense as “Soundness of moral principle; the character of uncorrupted virtue, esp. in relation to truth and fair dealing; uprightness, honesty, sincerity.” In the context of migration agents, the tribunal agrees with Deputy President McMahon’s comments from Re Peng:

[26] … The requirement to display integrity and fitness in order to qualify for registration as a migration agent, has an element of mutuality. The need for probity is not only for the protection of clients, but also for the open, honest and efficient administration of immigration matters in which the agent is involved.

To be a fit and proper migration agent, a person should be someone “ … who has a good knowledge of the migration laws, is able to prepare applications competently and should be a person of such reputation and ability that officers of the relevant Department may proceed upon the footing that the applications lodged by the agent have been prepared honestly and competently.” (Re Griffiths and Migration Agents’ Registration Authority [2002] AATA 247 at [28]).

29.     Mr Peek submitted that the tribunal should be satisfied that Mr Khan is not a person of integrity and/or not a fit and proper person to give immigration assistance.  He cited the following conduct:

– Mr Khan’s convictions for crimes involving fraud and dishonesty in New Zealand in 1996;

– his failure to disclose those convictions on the inwards passenger card that he completed and signed on 21 August 1998.

– providing false or misleading information when interviewed by an airport inspector on 21 August 1998;

– failure to disclose those convictions in his applications for registration and re-registration as a migration agent on 3 September 2001 and 16 September 2002.

– failure to disclose that he had been declared bankrupt in New Zealand in 1995 in his application for registration and re-registration as a migration agent on 3 September 2001, 16 September 2002 and 3 October 2003. 

30.     The tribunal finds Mr Khan to be a witness who did not genuinely attempt to answer simple questions and at times he gave answers that sought to avoid the matter being put to him. His evidence should be treated with caution.  

31.     Based on the material in the T documents and the evidence of the applicant, his wife and Inderjit Singh, whose statement dated 20 July 2004 was admitted in evidence (exhibit A5) and his oral evidence, the tribunal makes the following findings of fact:

·on 10 October 1997 the applicant was convicted in New Zealand of a charge of miscellaneous frauds and two charges of using a document for pecuniary advantage. He was sentenced to six months imprisonment but served only three months in custody.

·the applicant did not disclose his convictions on the incoming passenger card when travelling to Australia on 21 August 1998.

·the tribunal does not accept the evidence of the applicant or Mrs Khan that he did not complete the card or that he did not tick ‘no’ to the question asking if he had any criminal convictions. The comprehensive contemporaneous record of events (T fols 226-230) contains no reference to the card having been completed by Mrs Khan, whether because the applicant was asleep at the stage of the flight when the card was completed or due to a problem with his sight from a cataract of the right eye. Quite the contrary, the immigration officer conducting the interview records the applicant as having given thought to the answer and was unsure about it, yet he did not pursue the issue at the immigration counter since he did not have time. The tribunal is satisfied that if Mr Khan had not completed the card he would have raised the matter with the interviewing officer and it would have been noted in the record, given the gravity of the situation he faced. He had been warned that he may not be allowed to enter Australian and his visa cancelled depending on discussions the officer was having with other officers at Sydney Airport and more senior officers in Canberra.

·Additionally, the tribunal notes that during his correspondence with the Authority, initiated by the Authority’s letter on 25 October 2002, he did not refer to Mrs Khan having completed the passenger card for him until his letter of 29 August 2003 despite his providing a lengthy explanation of the event in his letter dated 2 November 2002 and again writing to the Authority on 6 August 2003 about the complaint regarding an incorrect arrival card.  It is inferred that the reference to the cataract at that stage was an excuse that the applicant sought to rely on for the purpose of exculpation.  

·The tribunal does  not accept that Mr Khan believed he did not have to give details of his convictions on the arrivals card because he was an Australian citizen. The tribunal does not accept that he honestly believed he was an Australian citizen on 21 August 1998. It is implausible for him not to know he was not an Australian citizen. His assertion is inconsistent with his reply to the immigration officer and inconsistent with the card itself, given he completed a question which asked ”If you are NOT an Australian citizen, do you have any criminal convictions?” (T fol 225). He in fact was not then an Australian citizen and did not become a citizen again until 9 September 1999 (T2-13).

32.     While it is the case that the applicant did disclose the convictions to the interviewing officer, it is inferred that his disclosure was the direct result of his being taken aside to an interview room where he was cautioned and then asked whether he had any criminal convictions. The tribunal finds that he knowingly failed to disclose his convictions in the arrivals card. In addition, the tribunal finds that he gave misleading information at the interview as to having sought intercession by the Governor-General or having an intention to do so, depending on the outcome of his appeal. His evidence at the hearing was that he had still to make such an application despite having lost his appeal against the convictions.  

33.     In relation to the omission of his convictions from the form M01 and the application for repeat registration in September 2002, the tribunal is satisfied that there was no ambiguity in the questions. The tribunal finds some support for this finding by noting that had he genuinely considered the question to be ambiguous, it would be reasonable to expect that he would have asked the Authority for help in clarifying it. The tribunal finds he provided incorrect information to the Authority by not disclosing the convictions. In this regard, the tribunal is satisfied that in some of his dealings with the Authority since 25 October 2002 he has not been truthful. He informed the Authority on 2 November 2002 that he had requested the police clearance certificate from New Zealand. In attempting to reconcile that letter with the statement by the New Zealand Department of Justice that they received his request on 8 April 2003, he gave a vague and evasive response that the tribunal does not accept. The tribunal finds that he misled the Authority in his letter of 2 November 2002.

34.     The tribunal finds that Mr Khan was made a bankrupt in New Zealand in June 1995. The tribunal does not accept that the questions in the form M01 and the application for repeat registration that he completed in September 2002 posed ambiguous questions regarding bankruptcy. The applicant’s evidence was that he understands English and that is the impression formed by the tribunal in observing  his oral evidence. There is no warrant for implying that the questions referred only to Australia. His evidence was that he turned his mind to the scope of the question and considered it ambiguous. Yet he made no enquiry and simply proceeded to complete the form stating that he had not been a bankrupt. I do not accept his evidence. The tribunal finds that he knowingly provided false or misleading information to the Authority in those forms. In relation to his application for repeat registration in September 2003 the tribunal finds that he made a false statutory declaration by stating that he had not been declared bankrupt.  Again there is no reasonable basis for viewing the enquiry as relating only to bankruptcy in Australia and no justification for not enquiring about the matter. I do not accept that he thought the question was ambiguous.  

35. What then are the implications of these findings in respect of the Act and the Code of Conduct. Before considering these matters it should be noted that the tribunal must be satisfied that Mr Khan’s behaviour constitutes the type of conduct referred to in s.303(1) of the Act upon which a decision may be made to cancel or suspend his registration, or to caution him. In determining whether the tribunal is satisfied, the test to be applied is that established by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336. Dixon J said:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. … The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. (at 361-362)

Rich J said:

The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion. (at 350)

36. Mr Khan’s application for original registration has been found to have been knowingly false or misleading in two respects. As well his application for repeat registration in 2002 was false because he did not refer to his bankruptcy or to the convictions. In relation to the bankruptcy, he made a false statutory declaration in his 2003 repeat application. The tribunal is satisfied that s.303(d) applies to each of the three applications. Mr Khan’s pattern of behaviour demonstrates a consistent lack of truthfulness on his part.

37.     In determining whether Mr Khan is a person of integrity, the tribunal notes that he did not complete the arrivals card truthfully, claiming his wife completed it for him. He also led the Authority to believe that he had applied for his police clearance certificate at a time when he had not. These instances should be assessed in combination with the false answers he gave in his applications for registration as a migration agent. There needs to be some mention also of Mr Khan’s attitude to the crucial requirement that agents provide correct information to DIMIA. The tribunal considers his comment during the Sydney Airport interview that he regarded the matter as “trivial” exemplifies his failure to appreciate the importance of honest dealings with MIMIA, whether as a migration agent or in his personal affairs. His comment during the hearing that “what’s the big deal of you know reinstating a migration agent who wants to contribute in Australian economy” (transcript page 38) again is indicative of a way of behaving that does not take seriously the need for rules and for compliance with those rules, in a regime for registration of migration agents. The tribunal is satisfied that Mr Khan is not a person of integrity and not a fit and proper person to participate as an agent acting in administering the nation’s migration laws through giving immigration assistance. It is noted that Mr Singh’s character evidence in support of the applicant must be substantially discounted since he was unaware of the basis on which the Authority had cancelled the applicant’s registration.  Mr Khan’s comments and conduct over a number of years have fallen short of the standard required of registered agents. They are sufficient to warrant a finding that he has breached clause 2.23 of the Code of Conduct in that he has not taken all reasonable steps to maintain the reputation and integrity of the migration industry.

38.     After taking account of the evidence, Mr Khan’s submissions and those by the respondent, the tribunal is satisfied that the respondent’s cancellation of Mr Khan’s registration on the bases that his applications for registration and repeat registration were false or misleading in material particulars (his criminal record and bankruptcy), that he is not a person of integrity, that he is not a fit and proper person to give immigration assistance, and that he has not complied with the Code of Conduct, was the correct and preferable decision.  It should therefore be affirmed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member:

Signed:         .....................................................................................
  Associate

Hearing  6 August 2004
Decision  7 January 2005
Applicant  Self represented

Respondent’s representative  Australian Government Solicitor