Kim v Minister for Immigration
[2008] FMCA 1553
•20 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KIM & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1553 |
| MIGRATION – VISA – Business Skills – Established Business (Residence) (Class BH) visa – Migration Review Tribunal – Migration agent – fraud – misrepresentation – credibility – where the applicants claim to have been advised by a migration agent not to attend the Tribunal hearing – authorised recipient – whether a migration agent whose registration should be suspended should remain the authorised recipient for correspondence for an applicant – certiorari and mandamus. |
| Migration Act 1958 (Cth) ss.281, 349, 379G, 426A Migration Regulations 1994 (Cth) cl.845.216 |
| SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; 81 ALJR 1401; [2007] HCA 35 SZKTM v Minister for Immigration & Anor [2008] FMCA 215 Minister for Immigration & Multicultural Affairs v SZFDE (2006) 154 FCR 365; [2006] FCAFC 142 SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152 SZHVM v Minister for Immigration and Citizenship [2008] FCA 600 SZFDE & Ors v Minister for Immigration & Anor [2005] FMCA 1979 |
| First Applicant: | AE SOOK KIM |
| Second Applicant: | TAE HYUNG KIM |
| Third Applicant: | SI AR KIM |
| Fourth Applicant (by her litigation guardian Ae Sook Kim): | SI ON KIM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 739 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 July 2008 |
| Date of Last Submission: | 4 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 November 2008 |
REPRESENTATION
| Counsel for the Applicants: | Mr Karp |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the First Respondent | Mr Kennett |
| Solicitors for the Respondents | Australian Government Solicitor |
ORDERS
That there be an order in the nature of certiorari quashing the decision of the Migration Review Tribunal signed on 12 February 2008 and handed down on 3 March 2008.
That there be an order in the nature of mandamus remitting the application of the Applicants for Business Skills – Established Business (Residence) (Class BH) visas to the Migration Review Tribunal for determination according to law.
That the First Respondent pay the Applicants’ costs fixed in the sum of $11,800.00.
That the Registrar of the Court forward a copy of this decision to the Director of Professional Conduct of the New South Wales Bar Association.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 739 of 2008
| AE SOOK KIM |
First Applicant
| TAE HYUNG KIM |
Second Applicant
| SI AR KIM |
Third Applicant
| SI ON KIM |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant asks the Court to review a decision of the Migration Review Tribunal signed on 12th February 2008 and handed down on 3rd March 2008. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant Business Skills – Established Business (Residence) (Class BH) visas.
By their amended application, filed in Court on 4th July 2008, the Applicants seek writs of certiorari and mandamus.
They rely on these grounds:
i)The Tribunal constructively failed to exercise its jurisdiction as a result of third party fraud on behalf of the Applicant’s migration agent;
ii)(Not pressed);
iii)(Not pressed); and
iv)The Tribunal misinterpreted the law or misapplied the law to the facts.
Particulars of Ground 1 are that:
a)The Applicants were advised by their then migration agent (whose registration was suspended) not to attend the hearing set down by the Migration Review Tribunal because:
i)He could not attend the hearing because of a personal problem;
ii)There was no utility in attending the Tribunal hearing, in that “most cases win anyway when people don’t go to a hearing”;
iii)If the Applicant gave certain information to the Tribunal she would win without a hearing; and
iv)The First Applicant did not speak English and she should not go to the hearing because an interpreter could not interpret her business situation properly.
Each of the above representations (was) known by the agent to be untrue.
b)The agent impliedly misrepresented that he was registered and thus legally entitled to give migration advice to the Applicant.
Particulars of Ground 4 are that the Tribunal erred in its interpretation of clause 845.216 of the Migration Regulations 1994 by requiring that the First Applicant’s involvement in the management in the business, and her involvement in making decisions that affected the overall direction and performance of the business, be exclusively conducted by her and not by other employees of the business, when no such dichotomy is prescribed by that clause.
Background
The First Applicant is a business woman from Korea and the other three Applicants are her husband and daughters. The older daughter is now an adult. The Applicants applied for Business Skills – Established Business (Residence) (Class BH) visas on 25th September 2006. A delegate of the Minister for Immigration and Citizenship refused their applications on 24th April 2007.
Application to the Migration Review Tribunal
The Applicants applied to the Migration Review Tribunal for a review of the delegate’s decision on 23rd May 2007. They had appointed a Migration Agent to represent them, Mr Myong Hyun Chung. However, the Applicants changed their migration agent and appointed one John Eyeson-Annan to represent them. Mr Eyeson-Annan wrote to the Tribunal on 31st August 2007 to inform the Tribunal that he was now acting as the Applicants’ representative.
The Tribunal wrote to the Applicants, care of Mr Eyeson-Annan, on 13th December 2007, inviting them to attend a hearing on 11th January 2008.
The Tribunal noted that the First Applicant attended the Tribunal’s office on 10th January 2008 and handed in a letter advising that she no longer wished to attend the hearing the following day. The Applicant[1] also handed in a Response to Hearing Invitation indicating that she did not wish to take part in the Tribunal hearing. The Applicant also handed over a number of business and other documents for the Tribunal’s consideration.
[1] For convenience the first applicant will be referred to simply as “the applicant”.
The Tribunal proceeded with the review. The Tribunal signed its decision on 12th February 2008 and handed that decision down on 3rd March 2008. In its decision, the Tribunal affirmed the decision not to grant the visas to the Applicants.
Application for Judicial Review
The Applicants commenced proceedings in this Court on 28th March 2008. In their application, the First Applicant is the litigation guardian for the Fourth Applicant, Si On Kim, who is not yet an adult. On 4th July 2008 the Applicant’s counsel, Mr Karp, sought and obtained leave to file in Court an amended application. He informed the Court that only the first and fourth grounds would be relied upon.
The Applicants relied on the affidavits of the following persons:
(a)The First Applicant, filed on 11th June 2008;
(b)Denise Bataller, filed on 3rd July 2008;
(c)Christopher Levingston, Solicitor, filed in Court on 4th July 2008; and
(d)Gie Boon Sihn, filed on 11th June 2008.
Only the First Applicant was required for cross-examination on her affidavit. The other three Applicants did not give evidence.
The Applicant’s evidence
The Applicant deposed in her affidavit that she had employed two previous migration agents before she consulted Mr Eyeson-Annan, a barrister and migration agent, on 31st August 2007.
It was her evidence that she knew about the Tribunal hearing and told Mr Eyeson-Annan in December 2007 that she wanted to go to the hearing and wanted him to accompany her.
The Applicant deposed that Mr Eyeson-Annan said to her:
I cannot come with you because I have a personal problem. Most cases win anyway when people don’t go to a hearing.
The Applicant replied:
I need you to come as my agent.
Mr Eyeson-Annan said:
I can introduce you to someone else to go.
The Applicant replied:
If you can’t come, I need a Korean. What do you need to win my case. I still want to go and for you to come.
The Applicant claims that Mr Eyeson-Annan said to her:
Don’t worry. I’ll prepare the documents. You need to show your business activities, tax, employees. You have to show you are conducting a business. Get a medical certificate from a doctor to get an extension of time.
The Applicant said:
I am not sick so I can’t get one.[2]
[2] Affidavit of Ae Sook Kim filed 11 June 2008 at [4]
The Applicant deposed that she signed a letter requesting an extension of time and a Response to Hearing Invitation form saying she wished to attend the hearing and would need a Korean interpreter.[3]
[3] This document appears in the Court Book at pages 182-183.
The Applicant went to see Mr Eyeson-Annan again in January 2008 and she claims that this conversation took place:
APPLICANT: Here are documents. What do I need to do for the hearing? You are experienced. I need you to come.
Mr EYESON-ANNAN: I can’t come.
APPLICANT: I need you or a Korean.
Mr EYESON-ANNAN: There is no point in you going to the hearing because you can’t speak English. Come back and see me before 3 pm on 10 January and bring photos of your business operations.[4]
[4] Affidavit of Ae Sook Kim 11.6.2008 at [6]
The Applicant deposed that she went to see Mr Eyeson-Annan on 10th January 2008, where he gave her a letter with documents attached. There was an interpreter present. She claims that he said to her:
Sign this letter for the tribunal and take it there. You will need an interpreter if you go to a hearing. The interpreter can’t interpret your business situation properly so don’t go to the hearing. Just give this letter and documents and you will win without a hearing.[5]
[5] Affidavit of We Sook Kim at [7]
The Applicant deposed that the contents of the letter were not read to her by the interpreter. She went to the MRT by taxi and delivered the letter. She did not attend the hearing. She did not see a copy of the letter and have it translated to her until she saw her current lawyer in May 2008.
The Applicant deposed:
[12]I did not know that Mr Eyeson-Annan had been deregistered as a migration agent until I had the MRT’s decision read to me. I was shocked to learn he had been deregistered in November 2007, because he had been advising me on my case. I would have paid him the rest of the contracted amount if I had won.[6]
[6] Affidavit of Ae Sook Kim at [12]
The Applicant gave oral evidence. She said in her evidence in chief that when she went to see Mr Eyeson-Annan the same interpreter was present on each occasion; her name was Angela and she worked at Mr Eyeson-Annan’s office. There were other employees there on every occasion she went to his office. When she went to see him in December 2007 there were about six people working at his office, including Mr Eyeson-Annan. There were a similar number of employees there in January 2008 when she went there.
The Applicant was cross-examined by Mr Kennett, who appeared for the Minister. She said she had seen Mr Eyeson-Annan on many occasions and she had paid him for his services. She said she was told by Mr Eyeson-Annan to take the documents to the Migration Review Tribunal advising that she would not be attending the hearing.
The Applicant disagreed with the suggestion that Mr Eyeson-Annan never told her it was a bad idea to go to the hearing. She affirmed that he did say that.
Mr Eyeson-Annan attended Court in answer to a subpoena issued by the solicitors for the Minister. When he was sworn, he told the Court that he was now practising under a different name, John Ebow Annan. He said he was still practising as a barrister and had renewed his practising certificate only a few days before. Until late in 2007 he was practising as a migration agent.
Mr Ebow Annan, as he is now known, told the Court about his dealings with the Applicant. She had had a previous agent but changed to him:
…I asked her why and she blamed that agent for her failure to obtain the visa from DIAC and I asked her to explain and she said the agent just provided documents to the Department without approaching them to argue her case.[7]
[7] Transcript page 21
Mr Ebow Annan said that he recalled getting a letter from the Tribunal in December inviting the Applicant to attend a hearing. By that time he had been suspended by MARA.[8] Mr Kennett then asked him:
Do you remember discussing the letter inviting Ms Kim to a hearing with her?[9]
[8] The Migration Agents Registration Authority
[9] Transcript 22
He replied:
In a way, not a complete matter…
Yes I did. I had received a letter as her authorised recipient and so at that time I told her that I would not be able to represent her, that I would refer her to another agent…
…I said I had a problem that I had been suspended. I did not say a personal problem although I cannot vouch to that fact that I did not say personal. I may have said it that I have a personal problem. I do remember saying, “I have a problem. I cannot represent you. I have been suspended”. I did not say, “I have been suspended for two years”. I am 100 per cent certain about that. I didn’t go into it. I didn’t explain the circumstances that led to it. I just made a statement. I said I would have to refer you to another agent to assist you.[10]
[10] Transcript 22
Mr Ebow Annan denied giving the Applicant any advice in December about how she should deal with the invitation to attend the hearing, saying that she said she would go. He denied telling the Applicant that there was no point in going to the hearing. He said:
The only time we discussed her level of English and so on was the first time she came to see me. She was really frightened about going and displaying her poor English and I advised her to do an IELTS test and to continue with her English studies that she said she was doing. And it was at that point that I told her that it wasn’t compulsory to appear before the Tribunal, it was her choice, and if she didn’t want to go she could provide all the necessary documents about her case and her English competence and ask the Tribunal to make a decision on the papers on her file.[11]
[11] Transcript 23
He denied that in December he gave the Applicant the advice that she said he gave her. He said that he had presumed that she was getting a Korean agent to act for her, and when the Applicant came to his office on the day before the hearing, he said that he could not go to the Tribunal with her. He prepared a letter for her to say she was not going to attend the Tribunal hearing. He said that he did that as part of his “administrative work” as her authorised representative and not in his capacity as an immigration advisor.[12]
[12] Transcript 24
He claimed that the Applicant had said that she would not go to the Tribunal if he was not going to go. He told her to take her documents to the Tribunal. He denied giving her any advice on that day.
Mr Ebow Annan confirmed that he was suspended by the Migration Agents Registration Authority. The MARA decision, dated 12th November 2007, was admitted into evidence. Mr Ebow Annan said he thought he received a copy of the decision on 14th November. He did not appeal.
After Mr Kennett asked Mr Annan questions, Mr Annan made a statement from the witness box. He denied that he had ever told the Applicant that most people win if they do not attend the Tribunal. He said that he had prepared the letter to the Tribunal for her but said that he did not do that in his capacity as an advisor, “and she knew what she was signing”.[13]He reiterated his claim that he had not given the Applicant migration advice after he was suspended.
[13] Transcript 29
In cross-examination, Mr Ebow Annan said that he had set himself up as a migration agent in 1994 on the basis of his legal qualifications. He denied that his practice was lucrative. He went to the NSW Bar in 1998. He agreed that he had appeared in the Federal Magistrates Court no more than three times and only about two or three times in the Federal Court. He had appeared at the Administrative Appeals Tribunal in migration matters, once in the Supreme Court on a bail matter and two or three times in District Court.
Mr Karp asked Mr Ebow Annan how many staff he had working for him in November 2007, and he replied:
I had two law students doing work experience with me and they turned up once a week each. I had one person who was doing interpreting for me in Korean who turned up once a week also because she is a student and I had another girl who is a Japanese girl who does part-time as well. I don’t have a full-time staffer. But during the applicant’s interview she said I had six all the time. I might tell you sharing my office with someone else. That person has about four or five staff members there.[14]
[14] Transcript 33
Mr Ebow Annan was not able to say what his monthly average income was. He claimed that his taxable income for the year ended 30th June 2007 was “almost nil”.[15] When asked how he bought food on the necessities of life he said:
Well, as I said, I spent the income I got on those things. That is how I supported myself. Whatever income I got I had to spend and the expenses were too much.[16]
[15] Transcript 34
[16] Transcript 35
When asked about the MARA decision that led to his suspension, Mr Ebow Annan said that he did not appeal for health reasons. He agreed that a finding of fraudulent conduct (by MARA) was a serious matter, but said:
It is serious, but the fact that MARA has made the decision doesn’t mean that they’re right.[17]
[17] Transcript 40
Mr Ebow Annan agreed that he did not write to the Applicant telling her that had been suspended as a migration agent. He only told her that he was unable to act for her when she went to see him December. He agreed that he remained as the applicant’s authorised recipient after he was suspended on 12th November 2007. The only reason he was her authorised recipient was because he was her migration agent. He said:
…In my – the reason I continued to be her authorised agent was that in my contact with MARA after the suspension they told me even though you are suspended you can continue to be the authorised recipient for your clients. And I think that is why I didn’t make the effort to write to all of them and I would inform them as and when it became necessary.[18]
[18] Transcript 42
Mr Ebow Annan agreed that the Tribunal had written to him on 13th February 2008 to advise that the Tribunal would be handing down its decision in the Applicant’s case[19] and that he did not tell the Tribunal that he was no longer acting for the Applicant as a migration consultant. He said that he did not do so because the Tribunal was aware of his suspension.
[19] A copy of the letter is at pages 187 and 188 of the Court Book
Mr Ebow Annan agreed that he did not tell the Bar Association of New South Wales about the MARA decision when he applied to renew his practising certificate. His explanation was that, although a finding that he had been fraudulent towards MARA reflected adversely on his character, he took it to refer only to his capacity as a migration agent, and he had done nothing wrong as a legal representative.
He said it was a mistake not to tell the Bar Association, but denied that he deliberately omitted to mention it.
The Applicant’s Submissions
Mr Karp submitted that, if the Applicant’s evidence was accepted, then this case comes squarely within the decision of the High Court in SZFDE v Minister for Immigration and Citizenship[20], in that the migration agent gave knowingly false information and in doing so persuaded her not to attend the hearing. The agent’s conduct, he submitted, fraudulently undermined the statutory scheme underpinning the Tribunal’s obligation to review the primary decision, which should result in the decision being set aside.
[20] (2007) 237 ALR 64; 81 ALJR 1401; [2007] HCA 35
Mr Karp submitted that the present case is essentially about credibility, that of the First Applicant and that of Mr Eyeson-Annan, now Mr Ebow Annan. He said that the effect of the suspension on Mr Ebow Annan’s business as a migration agent could have been catastrophic. The more people who knew about his suspension the more his reputation would suffer both as a migration agent and as a person. It was in his interest to hide his suspension because it would be an impediment to the eventual re-establishment of his business.
As to the other ground, Mr Karp submitted that the fact that Ms Kim’s duties in the business are the same as those of other people did not mean that she did not satisfy sub clause 845.216 of the Regulations. There is no requirement that duties in a particular business be unique to an individual, nor is there any reason why two or more people may not have the same duties in a particular business.
Mr Karp submitted that the Tribunal’s finding that Ms Kim had the same duties as others indicates that the Tribunal asked itself the wrong question and took an irrelevant consideration into account.
The Minister’s Submissions
Mr Kennett of counsel, who appeared for the Minister, submitted that, even if the Applicant’s evidence were to be accepted, an issue arises as to whether it establishes fraud on the part of Mr Eyeson-Annan (now Mr Ebow Annan). Unlike SZFDE v Minister for Immigration and Citizenship[21], where fraud could be inferred because of the agent’s clear interest in concealing the fact of his deregistration, the Applicant’s evidence (if accepted) shows Mr Ebow Annan disclosing his own inability to attend and,, at least initially, offering to arrange another agent for her. Her evidence, he submitted, also indicates that Mr Ebow Annan was not paid all of the agreed fee for representing the Applicant, which is at least consistent with his ceasing to act in a paid capacity once he was suspended.
[21] supra
Mr Kennett submitted, in his written outline of submissions, that there was nothing to establish that Mr Ebow Annan had any personal motive for giving the advice which the Applicant alleges he gave. If given, that advice should be taken to have been either merely “bad or negligent” (cf SZFDE v Minister for Immigration and Citizenship at 77 [53]) or possibly “astute” advice reflecting an assessment of the Applicant’s prospects of improving her case by attending a hearing (cf SZKTM v Minister for Immigration and Citizenship[22] at [35], where Smith FM said:
Moreover, even if she[23] advise him not to attend, on the evidence before me, this could have reflected a proper understanding of the true merits of his refugee claims, and could have been astute advice designed to extract as much delay from the Tribunal’s processes as possible).
[22] [2008] FMCA 215
[23] a migration agent
Even accepting the Applicant’s evidence, he submitted, it did not follow that the Tribunal’s performance of its duties was stultified by fraud.
As to the Applicants’ Ground 4, the only other ground to be argued, Mr Kennett submitted that it was not simply that the Applicant’s involvement in the business was thought to be the same as that of other people, but that her role appeared to be equivalent to those of persons who plainly were not involved in shaping the destiny of the business: Mr Kwon, the “contract manager”, and “the person currently employed as accountant/administration”. The drawing of that comparison does not suggest any error by the Tribunal, he submitted.
Conclusions
In my view this matter stands or falls on the allegation of fraud on the part of the migration agent. With respect, the Applicant’s Ground 4 does not take the matter very far and I agree with the submission of counsel for the Minister that the Tribunal found that the First Applicant’s role appeared to be equivalent to the roles of the others mentioned. There does not seem to be any jurisdictional error in that matter.
Fraud
It is well established that, in making a finding of fraud, the Court should specify:
·What was said that was fraudulent
·How it was fraudulent
·How it was acted upon.[24]
[24] SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 237 ALR 64; [2007] HCA 35 at [41]; Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 265; [2006] FCAFC 142 at [74]; SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152 at [36].
The High Court, in SZFDE , has also considered the question of motive:
[45]Neither the reasons of the Federal Magistrate nor the dissenting reasons of French J in the Full Court considered in any detail the question of the motives of Mr Hussain in acting as he did with respect to the rejection of the invitation to attend the Tribunal hearing. The inference is well open on the evidence that Mr Hussain acted as he did for self-protection, lest in the course of a Tribunal hearing there be revealed his apparently unlawful conduct in contravention of restrictions imposed by Pt 3 Div 2 of the Act, particularly by s 281.[25]
[25] (2007) 232 CLR 189; 237 ALR 64; [2007] HCA 35 at [45]
In SZHVM v Minister for Immigration and Citizenship[26] at [47], Middleton J said:
SZFDE does not stand for the proposition that a failure by an applicant to attend the Tribunal hearing due to the fault or conduct of a third person bears the result that the Tribunal decision to proceed under s 426A is always vitiated by error.
[26] [2008] FCA 600
Negligence or bad advice by a migration agent does not establish fraud; it is important to distinguish between whether an agent’s actions are fraudulent or merely negligent. Clearly, to establish fraud there must be evidence of dishonesty.
Counsel for the Applicants has submitted that this case comes squarely within SZFDE v Minister for Immigration and Citizenship. Mr Karp submits that the migration agent gave knowingly false information to the Applicant and, in doing so, persuaded her not to attend the hearing, thereby fraudulently undermining the statutory scheme underpinning the Tribunal’s obligation to review the primary decision.
There are some obvious similarities between this case and the situation in SZFDE, but there are some significant differences as well. In SZFDE, the person concerned, Mr Hussain had been suspended as a migration agent and had also been struck off as a solicitor. Mr Ebow Annan was certainly suspended as a migration agent but remained a barrister, presumably to this day.
Second, whilst Mr Hussain attended court on two occasions, once with a solicitor, he elected not to take any part in the proceedings when SZFDE & Ors v Minister for Immigration & Ors[27]was heard on a final basis.[28] In the present case, Mr Ebow Annan attended Court, in answer to a subpoena, and gave oral evidence. He was cross examined by both counsel and made his own statement from the witness box.
[27] [2005] FMCA 1979
[28] [2005] FMCA 1979 at [13]-[15]
Because the First Applicant and Mr Ebow Annan both gave evidence, I was able to form a view of the credibility of each one. The First Applicant gave evidence with the assistance of an interpreter but Mr Ebow Annan gave evidence in English, a language in which he is fluent.
The First Applicant presented as a determined and, at times, assertive lady, who had firm views about what had transpired between her and Mr Ebow Annan. She was unshaken in cross examination. I am satisfied that she had been determined to attend the hearing of the Migration Review Tribunal, and only departed from this position the day before the hearing, after she saw Mr Ebow Annan.
Mr Ebow Annan, formerly Mr Eyeson-Annan, was not an impressive witness. He appeared to be uncomfortable and evasive in the witness box. A number of his answers defied credibility. His evidence that he made very little out of his business as a migration agent was hard to accept, as it was clear that he hardly had any practice as a barrister at all. He admitted in cross examination that he had only appeared before the Federal Court about three times and the Federal Magistrates Court about three times since he was admitted as a barrister in 1998 and that he had only appeared before other courts and the AAT on handful of occasions during that time. I am satisfied that he was primarily engaged in the business of being a migration agent, although his evidence that he made hardly any money at all out of that business left unanswered the question of how he supported himself and his family. Even allowing for his remarkable evidence that he deducted his living expenses from his pre-tax income (which may be of interest to the Australian Taxation Office), I am satisfied that he was not at all truthful in his evidence about his income.
It is a fact that Mr Ebow Annan was suspended from practising as a migration agent for two years with effect from 12th November 2008. The reason for that suspension is not probative of any allegation of fraud before this Court. However, it counts against his credit that he neither informed the Bar Association of New South Wales about this suspension or the reason for it, nor did he take active steps, on his own evidence, to inform his clients. I am satisfied that he did not inform the First Applicant.
It appears clear that if the First Applicant had been made aware that Mr Ebow Annan had been suspended as a migration agent in November, she would have taken her business elsewhere, as she had done in the past when her previous migration agents had not met her expectations. I am satisfied that Mr Ebow Annan’s failure to disclose to the First Applicant that he had been suspended as a migration agent was more than merely negligent, it was dishonest, because he misled her as to his status.
Mr Ebow Annan remained as the Applicants’ authorised recipient as far as the Migration Review Tribunal was concerned. His explanation for doing so was that the Tribunal already knew that he had been suspended. It is true that the Tribunal was aware of this fact:
On 12 November 2007 the Migration Agents Registration Authority suspended Mr Eyeson-Annan’s registration for a minimum of two years. Mr Eyeson-Annan continues to be the applicants’ authorised recipient in accordance with s.379G of the Act but the Tribunal has taken the precaution of sending copies of all correspondence to the applicants at their residential address.[29]
[29] Court Book 193
I am not satisfied that the Tribunal’s actions were adequate. Where a migration agent’s registration is suspended, allowing that person to continue to be the authorised recipient, even if copies of correspondence are also sent to the Applicant, leaves the way open for negligent or dishonest behaviour. There is nothing to show that the Tribunal sent any correspondence to the Applicants asking if they still wished to retain Mr Eyeson-Annan (Ebow Annan) as their authorised recipient for correspondence, since his registration had been suspended. It may be that the Tribunal had assumed that Mr Ebow Anna would have notified the Applicants of his suspension, but he did not do so.
In my view, a migration agent whose registration has been suspended or a lawyer who has been struck off should not continue to act as an authorised recipient for correspondence from the Migration Review Tribunal or, for that matter, the Refugee Review Tribunal. There may be a need to amend s.379G of the Migration Act to deal with that eventuality, and I commend that course to the Minister.
In any event, what Mr Ebow Annan did was to advise the Applicant not to attend the Tribunal hearing the next day and prepared documentation for her to take to the Tribunal that afternoon. His explanation for his actions is that he was doing so as part of his “administrative work” as an authorised recipient, not as a migration agent. Mr Ebow Annan was at pains to say that he did not do any work as a migration agent once he had been suspended. In my view, his explanation that he was just doing administrative work as an authorised recipient is ludicrous and I do not accept the truth of it.
It is clear from the First Applicant’s evidence that Mr Ebow Annan was still operating some form of business in his office in December and January, after his registration as a migration agent had been suspended. The number of staff that he had seemed to be too large for a person who was in practice as a barrister, even if he was sharing an office with someone else and some of his staff members were part-time who only attended once a week. In any event, Mr Ebow Annan’s practice as a barrister would hardly justify that number of people, since he had only appeared in court fewer than a dozen times since his admission in 1998.
In my view, the inference can be drawn from the evidence that it was virtually “business as usual” at Mr Ebow Annan’s office after his suspension as a migration agent and he had a motive for ensuring that the First applicant did not attend the Tribunal hearing, as his actions may have been found out. Section 281 of the Migration Act carries a sentence of imprisonment for asking for or receiving a fee for giving immigration assistance by a person who is not a registered migration agent.
I am satisfied that the evidence shows that Mr Ebow Annan, formerly Mr Eyeson-Annan, acted dishonestly in his dealings with the First Applicant. I am of the view that his dishonest actions went beyond negligence and constituted fraud. Having heard his evidence and that of the First Applicant, where their accounts differ I prefer that of the First Applicant to that of Mr Ebow Annan.
He advised the First Applicant not to attend the Tribunal hearing, informing her that her English was not good enough, an interpreter would not understand business dealings and people usually won when they did not attend. This advice was fraudulent. Any migration agent of any competence would be well aware that people who do not attend before the Migration Review Tribunal when the Tribunal has made it clear that “The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone”[30] have a relatively low chance of success. Whilst that fact alone may be evidence of negligence, in this case Mr Ebow Annan had withheld from the First Applicant that his registration had been suspended and had a motive for her not to attend the hearing.
[30] MRT letter to Mr John Eyeson-Annan as authorised recipient dated 13 December 2007 at Court Book 179
The First Applicant acted on that information by deciding not to attend the hearing and giving to the Tribunal a document advising that she was not going to attend. I am satisfied on the evidence that it had been the First Applicant’s intention to attend the hearing until she received that advice from Mr Ebow Annan.
In my view, the Applicants have shown that Mr Ebow Annan gave knowingly false information to the First Applicant, that she acted on that information to her detriment by not attending the hearing, and that his actions were dishonest in that he had a motive for her not to attend. An honest person in his position would have advised all his clients in November that his registration had been suspended and he was unable to continue to give them immigration advice. An honest person would have offered to refer them to other agents and would have advised them that he would not continue to act as their authorised recipient for correspondence. He did not do so in the case of the Applicants.
The agent’s conduct was fraudulent and it did undermine the statutory process that the Tribunal was required to undertake. The Tribunal’s performance of its duties was stultified by fraud and there should be relief in the form of orders by way of certiorari and mandamus.
It has not escaped my notice that Mr Ebow Annan was at all relevant times a barrister, even though his primary business seems to have been that of a migration agent. It is more a matter for the Bar Association then this Court to decide whether the roles of barrister and migration agent can successfully coexist, although there are a number of solicitors who manage to perform both functions honestly and competently. Several of them appear regularly in this Court and no challenge has been made to their integrity or competence.
However, the behaviour of Mr Ebow Annan, as shown by the evidence that I have accepted, appears to be a long way below the high standard expected of barristers in Australia. It is hard to believe that Mr Ebow Annan could seriously have believed that the decision of the Migration Agents Registration Authority handed down on 12th November 2007 could in some way have been quarantined from his role as a barrister.
I propose to direct that a copy of this decision be forwarded to the Director of Professional Conduct of the New South Wales Bar Association.
I grant the application and orders in the nature of certiorari and mandamus will issue. The court will consider the question of costs.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 17 November 2008
6
2