Kraues v Migration Agents Registration Authority

[2018] FCA 664

FEDERAL COURT OF AUSTRALIA

Kraues v Migration Agents Registration Authority [2018] FCA 664

Appeal from:

Kraues v Migration Agents Registration Authority [2016] AATA 1086

File number:

NSD 82 of 2017

Judge:

PERRY J

Date of judgment:

11 May 2018

Catchwords:

ADMINISTRATIVE LAW – application for review of decision by Administrative Appeals Tribunal affirming cancellation of registration of migration agent by the Migration Agents Registration Authority –where miners working in Australia on temporary working visas made substantial payments to the applicant, a registered migration agent, but received no services in return – where Tribunal found applicant was not a person of integrity and had not complied with the Code of Conduct for Migration Agents – whether Authority and Tribunal had jurisdiction to investigate complaints and cancel registration - whether power to cancel under s 303, Migration Act, limited to cases where immigration assistance is given by virtue of s 316(1)(d) –where applicant conflated functions and powers under the Act - whether “retainer” agreements were not “in relation to immigration assistance” but only for the applicant to be available - whether applicant denied procedural fairness – whether no evidence of client/agent relationship between the applicant and miners – construction of “client” under the Code of Conduct - whether no evidence of receipt of monies for immigration assistance – whether Tribunal made correct or preferable decision as at the time of its decision – appeal dismissed

Legislation:

Acts Interpretation Act 1901 (Cth) s 15AA

Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44

Migration Act 1958 (Cth) ss 276, 280, 281, 290, 303, 306C, 316

Migration Agents Regulations 1998 (Cth) Sch 2

Cases cited:

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

Cunliffe v The Commonwealth (1994) 182 CLR 272

Davies v Australian Securities Commission (1995) 59 FCR 221

Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309

Hanna v Migration Agents Registration Authority [1999] FCA 1657; (1999) 94 FCR 358

Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315

Hartnett v Migration Agents Registration Authority [2004] FCAFC 269; (2004) 140 FCR 388

Hudson v Migration Agents Registration Authority [2004] AAT 1007

Hughes and Vale Pty Ltd v State of New South Wales (No. 2) (1955) 93 CLR 127

Issa v Migration Agents Registration Authority [2015] AATA 451; (2015) 67 AAR 6

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666

O’Grady v The Northern Queensland Company Limited (1990) 169 CLR 356

PMT Partners Pty Limited (In Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301

Rawson v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307

Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482

Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Smith v New South Wales Bar Association (1992) 176 CLR 256

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; (2004) 219 CLR 165

Travelex Ltd v Commissioner of Taxation of the Commonwealth of Australia [2010] HCA 33; (2010) 241 CLR 510

Date of hearing:

26 July 2017

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

120

Counsel for the Applicant:

Mr P King

Solicitor for the Applicant:

Adrian Joel & Co

Counsel for the Respondents:

Mr H Bevan

Solicitor for the Respondents:

DLA Piper

ORDERS

NSD 82 of 2017

BETWEEN:

KURT KRAUES

Applicant

AND:

OFFICE OF THE MIGRATION AGENTS REGISTRATION AUTHORITY

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	PERRY J
DATE OF ORDER:	11 MAY 2018

THE COURT ORDERS THAT:

1.The appeal on questions of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from the decision of the second respondent, the Administrative Appeals Tribunal made on 23 December 2016 is dismissed.

2.The applicant is to pay the first respondents costs as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1         INTRODUCTION	[1]
2         PROCEDURAL MATTERS	[5]
3         STATUTORY REGIME	[10]
3.1 Overview of Part 3 of the Migration Act	[10]
3.2      Registration of migration agents	[11]
3.3      Obligations imposed on registered migration agents and powers to investigate and discipline	[14]
4         BACKGROUND	[20]
4.1      The complaint to the Authority	[20]
4.2      The Authority’s decision	[26]
4.3      The Tribunal’s decision	[30]
4.3.1    The application for review	[30]
4.3.2    Mr Kraues’ case before the Tribunal	[32]
4.3.3    Evidence before the Tribunal	[33]
4.3.4    The Tribunal’s finding as to jurisdiction	[34]
4.3.5    Findings of fact by the Tribunal	[37]
4.3.6    The Tribunal’s conclusions	[44]
5         THE APPLICATION TO ADDUCE FURTHER EVIDENCE	[46]
6         CONSIDERATION OF THE QUESTIONS OF LAW	[47]
6.1      Did the Authority and the Tribunal on review lack jurisdiction to take action against the applicant?	[47]
6.1.1    The applicant’s submissions	[47]
6.1.2    The Authority and the Tribunal had jurisdiction to investigate and take disciplinary action	[51]
6.2      Alleged breach of procedural fairness	[66]
6.2.1    The applicant’s submissions	[66]
6.2.2    The circumstances in which the alleged breach of procedural fairness occurred	[69]
6.2.3    No breach of procedural fairness is established	[81]
6.3      Alleged error by the Tribunal in assuming a client/migration agent relationship	[89]
6.3.1    The applicant’s submissions	[89]
6.3.2    How does the applicant’s submission that no client/agent relationship existed intersect with the Tribunal’s findings of breaches of the Code?	[91]
6.3.3    Did the Tribunal err in law in finding that the miners were clients of Mr Kraues for the purposes of the Code?	[100]
6.4      The allegation of no evidence of the alleged receipt of client monies for immigration assistance	[114]
6.5      Alleged error in finding breaches of financial duties under the Code where no immigration services were given	[116]
6.6      Alleged failure to have regard to altered circumstances and evidence	[118]
7         CONCLUSION	[119]

1.               INTRODUCTION

1. This proceeding arises out of a complaint received by the first respondent, the Migration Agents Registration Authority (the Authority), on 28 November 2012.  The complaint was made by a number of miners from Papua New Guinea who had been employed by Corestaff Pty Limited (Corestaff), a labour hire firm, to work for one of its clients in Australia.  The miners came to Australia in May 2012 as the holders of Temporary Work (Skilled) subclass 457 visas (457 visas) pursuant to a Work Agreement between the Commonwealth and Corestaff NT Pty Ltd, as an approved sponsor, under Division 3A of Part 2 of the Migration Act 1958 (Cth) (the Act).  The miners alleged that they paid the applicant, Kurt Kraues (Mr Kraues), then a registered migration agent, approximately $200,000.00 in professional fees for assistance to become Australian permanent residents but received no services in return. Following an investigation, the Authority cancelled the applicant’s registration under subs 303(1)(a) of the Act. This cancellation was predicated on the Authority being satisfied under subs 303(1)(f) and (h) that the applicant was not a person of integrity and had not complied with the Code of Conduct for Migration Agents (the Code).

2. This is an appeal on questions of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), made on 23 December 2016. By that decision, the Tribunal affirmed the Authority’s decision to cancel Mr Kraues’ registration. The Tribunal found that Mr Kraues was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance, and that he had failed to comply with multiple clauses of the Code in breach of s 303 of the Act.

3. Bearing in mind the matters explained at [9] below, this appeal raises the following issues:

   (1)whether the Authority and the Tribunal had jurisdiction to investigate the miners’ complaints and cancel Mr Kraues’ registration because the agreements between Mr Kraues and the miners were not agreements “in relation to immigration assistance” for the purposes of s 316(1)(c) of the Act, but only agreements requiring Mr Kraues to make himself available if required to give such assistance;

   (2)whether the Tribunal failed to afford procedural fairness to Mr Kraues in denying him an opportunity to file expert evidence with respect to tables based on information provided by Corestaff which summarised payments allegedly deducted from the miners’ wages and paid to Mr Kraues, where bank records produced after the Tribunal hearing allegedly contradicted the summary tables and the bank records were said to come from an unknown company;

   (3)whether the Tribunal erred in failing to address, or treating as irrelevant, the question of whether the miners were clients of Mr Kraues for the purposes of the Code;

   (4)whether, given the alleged nature of the agreements between Mr Kraues and the miners, there was no evidence that Mr Kraues and the miners were in a client/migration agent relationship for the purposes of the Code;

   (5)whether there was no evidence that Mr Kraues received any monies from the miners for immigration assistance for the purposes of the Code;

   (6)whether the Tribunal erred in law in finding that Mr Kraues was in breach of his financial duties under the Code in circumstances where no agreement existed for the giving of immigration assistance and no such assistance was given; and

   (7)whether the Tribunal failed to have regard to “altered circumstances” occurring, and evidence produced, after the Authority’s decision was given, and thereby failed to make the correct or preferable decision as at the time of its decision.

4. For the reasons set out below, the Authority and the Tribunal had jurisdiction to investigate Mr Kraues’ conduct and to cancel his registration, and no other error of law has been established in the Tribunal’s decision.  It follows that the appeal must be dismissed.

   2.               PROCEDURAL MATTERS

5. An appeal under s 44 of the AAT Act is limited to questions of law and, despite the statutory nomenclature, is in the nature of an application for judicial review. The question of whether a question of law is raised should be approached as a matter of substance in the manner explained by the Full Court in Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 (Haritos) at [94] (the Court). While it does not follow from the absence of a precisely stated question of law that the Court lacks jurisdiction, nonetheless the Full Court in Haritos emphasised “the great importance of the question or questions of law being stated with precision” (at [97]).   

6. Initially the Authority submitted that the grounds in the amended notice of appeal, whether considered alone or as developed in the applicant’s written submissions, failed to identify a question or questions of law with sufficient precision so as to promote the efficient and effective hearing of the appeal, or indeed to identify any question of law at all.  The Authority eschewed, however, any argument that the appeal was not competent.  In its written submissions, the Authority submitted that the applicant should be required to identify his questions of law at the outset of the hearing and that it should not be left to the Court or the Authority to speculate about the questions of law which the applicant sought to raise. 

7. After the luncheon adjournment of the hearing, Mr King, counsel for Mr Kraues, provided a list of purported questions of law (the list of questions of law).  Orders were made requiring the applicant to incorporate those questions of law into a further amended notice of appeal.  However, while a further amended notice of appeal was filed following the hearing, it did not in terms incorporate the list of questions of law. 

8. With respect to the relief sought, at the hearing the applicant handed up a document entitled “Short Minutes of Order proposed by Applicant”.  Leave was granted for the applicant to file these minutes in substitution for the prayer for relief in the amended notice of appeal.  The short minutes of orders were subsequently incorporated into the further amended notice of appeal.

9. As these matters indicate, Mr Kraues’ case changed over the course of the appeal.  Two substantive grounds were abandoned in his written reply, and his written submissions in chief and in reply were based upon a version of the notice of appeal which was completely rewritten by the list of questions of law and further amended notice of appeal.  Moreover, Mr King’s oral submissions were at times difficult to relate to the written submissions.  In these circumstances, I have taken the list of questions of law handed up by Mr King as identifying the questions of law which the applicant ultimately wished to litigate.  I consider this to be the fairest approach given that the argument at the hearing for both parties proceeded (after the luncheon adjournment) by reference to the list of questions of law.  Furthermore, this list was prepared in response to the Authority’s request in its written submissions for a document that identified the questions of law with precision, given the deficiencies in the (then) amended notice of appeal.  Moreover, the further amended notice of appeal did not in terms reproduce the questions of law in the list.  Finally, to the extent to which the further amended notice of appeal filed after the hearing raised any new issues, it did not comply with the order granting leave for the further amended notice of appeal to be filed and it would be unfair to the Authority to consider those new issues.  I note in this regard the unsatisfactory and inefficient manner in which the applicant’s case was run and the applicant’s failure to adhere to the principles identified by the Full Court in Haritos with respect to the drafting of questions of law in the notice of appeal.    

   3.               STATUTORY REGIME

   3.1 Overview of Part 3 of the Migration Act

10. Part 3 of the Act (formerly Part 2A) creates a scheme for the regulation of persons giving immigration assistance. Under the scheme, persons who are not registered migration agents are prohibited from giving, or receiving a fee for, immigration assistance. A breach of this prohibition is punishable as a criminal offence: ss 280 and 281 of the Act. The scheme makes provision for individuals to be registered as migration agents, and standards are set with which registered migration agents must comply. The purpose of this regulatory regime is to protect aliens against incompetent and unscrupulous advisers: Cunliffe v The Commonwealth (1994) 182 CLR 272 (Cunliffe) at 294 (Mason CJ); see also 314 (Brennan J), 333 (Deane J), 358-359 (Dawson J) and 394 (McHugh J): see further below at [61].

    3.2             Registration of migration agents

11. Provision is made for registration of migration agents in Div 3 of Part 3 of the Act: ss 286-306AA. The Authority must maintain the Register of Migration Agents, “listing individuals who are registered as migration agents”: subs 287(1). An individual may apply to the Authority to be registered as a registered migration agent: subs 288(1). Among other requirements, an applicant must generally publish her or his intention to be registered and invite objections (ss 288(2) and 288A), meet certain requirements as to qualifications (s 289A), and be a fit and proper person to give immigration assistance. As to the last of these requirements, s 290 of the Act relevantly provides:

    (1)      An applicant must not be registered if the [Authority] is satisfied that:

    (a)       the applicant is not a fit and proper person to give immigration assistance; or

    (b)       the applicant is not a person of integrity;…

12. In considering whether it is satisfied that an applicant is not fit and proper or not a person of integrity, subs 290(2) provides that the Authority must take into account among other things: any relevant convictions, criminal proceedings, or inquiries or investigations of the applicant; any relevant disciplinary action; any bankruptcy; and, finally, “any other matter relevant to the applicant’s fitness to give immigration assistance”.  This last consideration emphasises the width of considerations which are potentially relevant to an applicant’s fitness to give immigration assistance, in accordance with the natural and ordinary meaning of the concept of a “fit and proper person”.  As Dixon CJ, McTiernan and Webb JJ explained in Hughes and Vale Pty Ltd v State of New South Wales (No. 2) (1955) 93 CLR 127 at 156:

    The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations.  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. 

    (emphasis original)

13. Nor can the concept of a fit and proper person be divorced from the office to which the inquiry relates.  As Toohey and Gaudron JJ held in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380, the expression “fit and proper person”: 

    … 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.

    (See also e.g. Davies v Australian Securities and Investments Commission (1995) 59 FCR 221 at 232-233 (Hill J).)

    3.3             Obligations imposed on registered migration agents and powers to investigate and discipline

1. Following registration, registered migration agents are subject to ongoing monitoring and regulation by the Authority:  Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 (Shi) at [149] (Kiefel J). Registration is for a twelve month period only (subs 299(1)) and continued registration is subject to meeting annual requirements for continuing professional development (s 290A) and to maintaining professional indemnity insurance (s 292B). A registered migration agent is also under an obligation to conduct herself or himself in accordance with the prescribed Code by virtue of subs 314(2): see further at [92] below. Further, s 308 arms the Authority with compulsive powers to require a registered migration agent to make a statutory declaration in answer to questions in writing, to appear before the Authority to answer questions, and to provide the Authority with documents or records. That power is in its terms unconfined and therefore subject only to such limitations as may be implied from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend) at 40 (Mason J).

2. Provision is made for disciplining registered migration agents under s 303 relevantly as follows:

   (1)      The [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:

   …

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

   …

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

3. A Code of Conduct is prescribed by Schedule 2 to the Migration Agents Regulations 1998 (Cth) (Regulations):  see further below at [92]-[98]. 

4. Importantly, the purpose of the disciplinary powers conferred by s 303 is protection of the public and not punishment as such: Shi at [50] (Kirby J); see also by analogy Smith v New South Wales Bar Association (1992) 176 CLR 256 at 270 (Deane J).

5. The Act does not, however, prescribe any particular process whereby the Authority becomes seized of the question whether action should be taken against a migration agent under s 303, by contrast, for example, with the process in Div 3AA of Part 3 for disciplining migration agents engaging in vexatious activity, which is commenced by a referral from the Minister. It is not necessary, in other words, for there to be a complaint before the Authority may consider whether to take action under s 303. However, once the Authority is considering taking action under s 303, it must inform the migration agent of that fact and the reasons for it, and invite the migration agent to make submissions (subs 309(2) of the Act). If the invitation to make a submission is taken up, the person making the submission may be afforded the opportunity to appear before the Authority: subs 310(3). Where it is considering making an adverse decision under s 303, the Authority also has power, by written notice under s 305C, to require the migration agent concerned to provide it with prescribed information or documents within a specified period. A failure to comply with a s 305C notice is an offence of strict liability: subs 305C(4) and (5).

6. Finally, notice of a decision made under s 303 must be given to the migration agent and must set out the reasons for the decision: s 305. The Authority is also required to make a statement about the decision available in the prescribed way under s 305A of the Act, and may inform clients of the migration agent under s 305B. Particulars of cancellation or suspension must also be kept by the Authority and are available for inspection by the public: subs 287(3). These provisions emphasise the point earlier made that the disciplinary powers are ultimately directed at protecting the public.

   4.               BACKGROUND

   4.1             The complaint to the Authority

7. The circumstances in which the complaint was made on 27 November 2012 to the Authority by Mr Karu and 14 other miners may be summarised as follows.

8. On 23 November 2012, Corestaff notified the miners that due to “the severe downturn in the mining industry our client has advised CoreStaff your services are no longer required”, that Corestaff’s efforts to find the miners another position had been unsuccessful, and that Corestaff was therefore cancelling their nominations.  As the miners’ subclass 457 visas were conditional on employment in Australia, the complainants had no basis on which to remain in Australia and were no longer eligible to apply for permanent residency.  By this time, the complainants had paid, collectively, more than $200,000.00 by way of payroll deductions to Kraues Law Client Trust Account pursuant to a “Retainer Agreement” to “[make] available the services of Kraues Law to provide immigration assistance under the Regional Sponsored Migration Scheme”. 

9. Shortly after receiving Corestaff’s letter, Mr Karu and other complainants met with Mr Kraues.  They advised him they were terminating their agreements with him and asked him to refund the fees they had paid.  Mr Kraues declined to do so.  Mr Karu then instituted the complaint to the Authority, on behalf of both himself and the other miners.

10. The complaint to the Authority alleged:

    [Corestaff] had been advised by Kraues Law to start deducting money to cover our [permanent residency] Application.  This was done with $825 up front and 78 weekly payments of $82.50.  As we have had no communication from Kurt Kraues during our stay in Australia, we have decided to terminate our agreement with Kurt and deal with the local Agent.  We have all contacted Kurt via email, text message, phone, and in person but Kurt has ignored our attempts at communication. We have met with Kurt once to organise our monies repaid but he refused to answer our direct questions.  Our Sponsorship in Australia has now been terminated and we’ll be going back to PNG.  The money we have paid to Kurt would help us repatriate. …

11. The complainants attached Mr Karu’s retainer agreement with Mr Kraues, which was headed “Terms and Schedule of Fees: Migration Agent Regulations (1998)”.  Under the heading “Agreement and Fee Type” the agreement was described as a “Retainer Agreement – Single Sum Fixed Fee”.  On 11 December 2012, Mr Kraues sent letters to each complainant stating there appeared to be “some confusion about the nature of our agreement” and further that:

    The total retainer fee, although structured to be paid weekly, is fully payable by you under the agreement.  Termination of this agreement by you … does not extinguish the outstanding balance.  Please refer to the terms of engagement for Item 4(j)(v).

12. The letters to the complainants also set out the “Total Retainer Fee” of $7,260.00 and the “Balance Owing”, after deductions for weekly fees paid to date “pursuant to your written salary deduction (as provided by Corestaff)”.  Copies of the letters were before the Tribunal and showed outstanding amounts from $6,270.00 to $4,290.00 (Tribunal reasons at [9]).  The letters asked, if the complainant was unable to continue to pay the weekly instalments of $82.50, “what alternative payment arrangement you have in mind?” 

    4.2             The Authority’s decision

13. On 15 January 2013, the Authority issued a notice under s 308 of the Act. The s 308 notice requested Mr Kraues answer certain questions relating to the retainer agreements and the visa pathways for the miners.

14. Initially the Authority accepted Mr Kraues’ position that the circumstances raised by the complaint did not relate to the provision of immigration assistance and, therefore, that the complaint was not within the Authority’s jurisdiction. However, the Authority subsequently reopened the investigation following a review in which it determined that the complaint did fall within its jurisdiction. A second s 308 notice was issued on 19 June 2013. On 21 February 2014, the Authority advised Mr Kraues that it considered his response to be inadequate. On that basis a further notice was issued. The scope of the requests in the notice was extended to include all miners who had a similar agreement to Mr Karu and not simply the 15 miners included in the original complaint. Mr Kraues did not respond to the further s 308 notice.

15. On 16 September 2014, the Authority sent Mr Kraues a notice pursuant to s 309(2) of the Act advising that it was considering cautioning, suspending or cancelling Mr Kraues’ registration under s 303(1). As required by s 309(2) of the Act, Mr Kraues was invited to make submissions, and was subsequently granted an extension of time within which to comply. No response was received by the revised date.

16. On 24 October 2014, the Authority cancelled Mr Kraues’ registration under s 303(1)(a) of the Act. The Authority was satisfied for the purpose of subs 303(1)(f) and (h) that Mr Kraues was not a person of integrity, or was otherwise not a fit and proper person to give immigration assistance, and that he had not complied with multiple clauses of the Code. In accordance with s 292 of the Act, that cancellation is in effect for a period of five years from the date of the decision.

    4.3             The Tribunal’s decision

    4.3.1The application for review

17. The applicant applied to the Tribunal for review of the Authority’s decision on 5 November 2014.

18. On review, the Tribunal is required to make the correct or preferable decision on the material before it and in the circumstances as they exist at the time of its decision: see Shi at [35] (Kirby J) and [98] (Hayne and Heydon JJ). In this case, as in Shi, the Tribunal was engaged in a review on the merits of the Authority’s decision to cancel Mr Kraues’ registration under s 303(1) of the Migration Act. In reviewing the Authority’s decision, s 43(1) of the AAT Act empowered the Tribunal to exercise all of the powers and discretions conferred by the Migration Act on the Authority. As such, the questions for the Tribunal were whether it was satisfied that the grounds in subparagraphs (f) or (h) of s 303(1) of the Act were established; and, if so, whether the Tribunal should exercise the powers conferred by s 303(1) to cancel or suspend Mr Kraues’ registration, or to caution him.

    4.3.2Mr Kraues’ case before the Tribunal

19. At the core of Mr Kraues’ application for review was the allegation that the Authority (and by extension, also the Tribunal) lacked jurisdiction “as the scheme for registration and regulation of migration agents is restricted to the provision of immigration assistance not conduct preparatory to or in anticipation of ‘immigration assistance’, as defined.”  In addition, Mr Kraues alleged that he was not aware of the retainer agreement and was “totally ignorant” of the meaning ascribed to it by the complainants, he “fairly ascribed an entirely different meaning to the retainer”, and he did not provide immigration assistance but rather was paid a retainer (Tribunal reasons at [66]). 

    4.3.3Evidence before the Tribunal

20. While he made extensive submissions, Mr Kraues did not provide any written or oral evidence to the Tribunal despite being invited to do so (Tribunal reasons at [61]-[62]).  The evidence led by the Authority before the Tribunal included oral evidence from:  Mr Karu, the initial complainant; Mr McKenzie, Recruitment Manager for the miners’ ultimate employer; Mr Ushorof, International Recruitment Consultant for Corestaff from 2011 to September 2012; and Mr Siegel, General Manager of the Western Australian operations of Corestaff. 

    4.3.4The Tribunal’s finding as to jurisdiction

21. In its reasons, the Tribunal first considered Mr Kraues’ submission that it lacked jurisdiction (Tribunal reasons at [39]).  This was identified as the central issue by the applicant and, as indicated above, was apparently based upon the submission that the Authority had no power to cancel Mr Kraues’ registration because he did not provide (and was not asked to provide) immigration assistance to the miners (Tribunal reasons at [41]-[42]).

22. The Tribunal rejected Mr Kraues’ submission for the same reasons as in Issa v Migration Agents Registration Authority [2015] AATA 451; (2015) 67 AAR 6 (Tribunal reasons at [43]). Specifically, the Tribunal was of the opinion that:

    44. The submission concerning jurisdiction amounts to saying that s 303 of the Act and the Code of Conduct cannot operate unless immigration assistance has been provided. In effect, that would allow a migration agent to avoid the power given to the Authority (and so the Tribunal) by failing to do the very thing he or she was engaged to do. As I understand it, that is precisely what Mr Kraues seeks to do.

    …

    47.  The Authority has power to investigate complaints in relation to the provision of immigration assistance by registered migration agents [referring to s 316(1)(c) of the Act]. It does not rely on the actual provision of immigration assistance. The complaint may be – as it was here – that the agent failed to provide that assistance.  

    48.  Nor does a finding that an agent has breached his or her obligations under the Code of Conduct rely on the provision of immigration assistance. 

    (emphasis original)

23. Further and in any event, the Tribunal found that the premise underlying the applicant’s submission on jurisdiction was misconceived:

    52. In any event, whether or not Mr Kraues provided immigration assistance to the complainants is not itself the question before the Tribunal, although, plainly, it is relevant. The question is whether his registration should be cancelled (or suspended or a caution given) because he [is] “not a person of integrity or is otherwise not a fit and proper person to give immigration assistance” or has not complied with the Code of Conduct: s 303(1).

    4.3.5Findings of fact by the Tribunal

24. It was not in issue that Mr Siegel and Mr McKenzie travelled to Papua New Guinea to interview the miners for possible employment by Corestaff.  They were accompanied by Mr Ushorof to provide administrative assistance but he did not participate in the interviews (Tribunal reasons at [71]).  The Tribunal found that it was more probable than not that, even if Mr Seigel did not tell the miners directly in the interviews that they would be able to apply for permanent residency, he said enough for them to believe they would have that opportunity (Tribunal reasons at [73]).  The Tribunal also found that a so-called “welcome pack” given to each miner by Corestaff on arrival in Australia included a copy of the retainer agreement, complete with Mr Kraues’ bank account details and the name of each miner, ready for the miner’s signature (Tribunal reasons at [74]-[75]).  In this regard, Mr Seigel gave evidence that Mr Kraues “entered into arrangements” with some of the miners “in relation to their obtaining of permanent residency”.  Mr Seigel also gave evidence that, at Mr Kraues’ request,  Corestaff agreed to facilitate the making of deductions from the miners’ pay for the “migration work he would be doing for them” provided that the employees agreed to sign the necessary authorisations (Tribunal reasons at [76]). 

25. With respect to the so-called retainer agreements themselves, the Tribunal considered that they:

    69.  …purported to bind the miners each to pay Mr Kraues $7,260 for nothing more than “being available”.  Actual advice and assistance would be for an additional fee.

    70.  Despite the fact that the “retainer fee” was paid into Kraues Law’s Client Trust Account, nothing in the agreement requires Mr Kraues to account for that money in any way.  The only reference to any form of accountability is to “non-retainer agreement fees paid in advance” which were to be held in the trust account and could be withdrawn by Mr Kraues on completion of “each block of work” and issuing of an invoice.

26. Furthermore, the Tribunal found at [85] that it was not dispute that:

    Ÿdeductions were made from the miners’ pay and deposited into Kraues Law’s account;

    ŸMr Kraues did not provide immigration assistance or any other service in return for the money;

    ŸMr Kraues has withdrawn money from the account; and

    ŸMr Kraues has not returned any money to the miners and he has not accounted to them for the withdrawals.

27. In addition, the Tribunal found at [86] that:

    Information provided by Corestaff shows that a total of $203,397.50 was deducted from 66 miners’ salaries by Corestaff and paid into the Kraues Law Client Trust Account.  Corestaff has also provided copies of statements of the bank account from which payroll deductions for the “Kraues retainer” were paid from 15 November 2011 to 31 October 2012.

28. In so finding, the Tribunal rejected the applicant’s submission that that information is “utterly erroneous and deceptive”, “cannot establish payment for immigration assistance in any form”, and was not a basis for the “claim that the Miners’ [sic] may assert ownership of the transmitted funds” (Tribunal reasons at [87]).  To the contrary, the Tribunal found that:

    88.  ….  Mr Kraues has acknowledged having received those payments and having withdrawn money from the account.  He has acknowledged that he did not account to the miners for those withdrawals.  He does not suggest that he provided any service in return other than “being available” to assist the miners.  Indeed, that is the heart of his argument as I understand it:  that the agreement obliged him to do nothing more than “be available”.

29. The Tribunal further found that:

    (1)The arrangement for payroll deductions and payment to the Kraues Law Client Trust Account extended well beyond the complainants to up to 70 miners in all (Tribunal reasons at [95]).

    (2)Mr Karu and the other complainants understood they were paying money to Mr Kraues in relation to their permanent residency applications, they would not have agreed to deductions of substantial amounts for nothing more than a “retainer”, and Mr Kraues can have been in little doubt that this is what the miners thought they would receive in return for substantial ongoing payments (Tribunal reasons at [84] and [96]).

    (3)There is no evidence that Mr Kraues took any steps to explain to the miners the nature of the agreement they were signing, or to contact them at any point to ask whether they required his services (Tribunal reasons at [97]).

    (4)With respect to Mr Kraues’ submission that the agreement was merely for “being available”:

    98.  Mr Kraues cannot, in effect, hide behind his failure to provide any service, or to account to the miners for money withdrawn from the trust account, simply because the arrangement is stated to be a “retainer agreement”.  It is true that a close reading of the document shows that the fee of $7,260 was for “being available”, and that “immigration assistance” would incur an additional fee.  However, it is difficult to see how $7,260 for nothing more than “being available” can be said to be “a fee that is reasonable in the circumstances”, especially when payment is required even after the miners could no longer make use of his services.  As the Authority has pointed out, had the agreements for all of the 81 miners involved run their course, they would have paid Mr Kraues in total $588,060 without him providing any service.

30. The Tribunal also accepted Mr Karu’s evidence that the miners asked Mr Kraues to return their money after their employment was terminated but he refused to do so (Tribunal reasons at [84]). 

    4.3.6The Tribunal’s conclusions

31. The Tribunal found that Mr Kraues’ conduct breached a number of provisions of the Code as follows.

    (1)In failing to provide any assistance with the miners’ permanent residency applications which the miners understood they were paying for or to explain the nature of the agreement they had signed, Mr Kraues failed to act in their legitimate interests and failed to deal with them fairly, contrary to clause 2.1 of the Code.  Moreover, by his own admission, Mr Kraues withdrew money paid to him without accounting for it.  The Tribunal found that conduct of the kind engaged in by Mr Kraues brought the migration advice profession into disrepute, and breached clause 2.23 of the Code (Tribunal reasons at [99]-[100]).

    (2)The conduct of Mr Kraues in failing to provide a statement of services to the miners and to account for withdrawals from the Client Trust Account was in breach of clauses 5.1 and 5.5 of the Code (Tribunal reasons at [102]).

    (3)Mr Kraues’ failure to issue receipts to the miners for payments made by them, to issue a final statement of services to those whose employment was terminated, and his apparent failure to keep records of the Client Trust Account, breached his obligations under clauses 7.1, 7.2, 7.4 and 7.5 of the Code (Tribunal reasons that [103]).

1. The Tribunal concluded that it was satisfied that Mr Kraues was not a fit and proper person to give immigration assistance for the reasons that:

   105.  …  In his dealings with Mr Karu and others, he has failed to act in the legitimate interests of his clients.  He has demonstrated an apparent disregard for the professional ethics and conduct and the regulatory framework by which registered migration agent[s] [sic] operate, and he had engaged in conduct contrary to the Code of Conduct in his dealings with the complainants in this matter and in the management of their monies.  The nature and extent of his failure to comply with the Code of Conduct makes him, in my view, not a person of integrity and not a fit and proper person to give immigration assistance.

   5.               THE APPLICATION TO ADDUCE FURTHER EVIDENCE

2. By an application made on 10 July 2017, the applicant seeks an order “Pursuant to Federal Court Rules 2011 Part 33.29 that the report of Mr Darrel Hughes dated 4 7 2017 be admitted on the appeal…” (Mr Hughes’ report).  By orders made on 26 July 2017 Mr Hughes’ report was admitted on the appeal subject to an order limiting its use in evidence to “the purpose only of proving what the applicant would or may have provided to the Tribunal if he had been afforded, on his case, a reasonable opportunity to be heard.”

   6.               CONSIDERATION OF THE QUESTIONS OF LAW

   6.1             Did the Authority and the Tribunal on review lack jurisdiction to take action against the applicant?

   6.1.1The applicant’s submissions

3. The applicant’s argument that the Authority and therefore the Tribunal lacked jurisdiction relies upon the terms of subs 316(1) of the Act which provides that the functions of the Authority relevantly include:

   (c)       to investigate complaints in relation to the provision of immigration assistance by registered migration agents; and

   (d)      to take appropriate disciplinary action against registered migration agents or former registered migration agents …

   (emphasis added)

4. The phrase “immigration assistance” is defined in s 276 of the Act relevantly to mean:

   (1)      For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:

   (a)       preparing, or helping to prepare, the visa application or cancellation review application; or

   (b)       advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or

   (c)       preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or

   (d)       representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.

   (2)      For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:

   (a)       preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or

   (b)       advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or

   (c)       representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.

   (emphasis original)

5. Mr King for the applicant submitted that the miners’ complaints were not complaints “in relation to the provision of immigration assistance” because, on the proper construction of the retainer agreements, Mr Kraues was not engaged to do any of the things identified in s 276 as constituting “immigration assistance”.  Rather, Mr King submitted that Mr Kraues was simply retained by the agreements with the miners “to be available”, that is, “on hand, on tap”, for any requirement that the person may have in relation to any immigration assistance.  Separate provision, in his submission, was made in the agreements for the giving of immigration assistance which was to be arranged by way of a block arrangement in accordance with the Code.  (In this regard, I note that initially in oral argument, Mr King submitted that Mr Kraues was retained to be available “[i]n relation to any assistance that person may give, but not immigration assistance…”.  However, that submission, with respect, was untenable given the terms of the agreements and the context in which they were concluded, and does not reflect the way in which Mr King ultimately put the applicant’s case.)

6. Mr King also submitted that, in the following passage of its reasons, the Tribunal expressly disavowed the task of construing the agreements and therefore failed to examine the client/agent relationship to determine whether the agreement was one for the giving of immigration assistance:

   89.  The Retainer Agreement refers to the “contractual relationship” between “the client and Kraues Pty Ltd t/s Kraues Law”.  Mr Joel has asserted throughout these proceedings that the Tribunal has no jurisdiction to determine matters arising out of a contract.  That argument amounts to saying only that disputes arising from a contractual arrangement are for the courts to decide. 

   90.  The Tribunal cannot, and does not purport to, determine matters of contract.  Whether the complainants pursue recovery of their monies through the courts is a matter for them.  It is another matter whether Mr Kraues’ conduct in relation to the contractual relationship puts him in breach of the Code of Conduct or makes him unfit to give immigration assistance.  Nothing about the existence of a contractual relationship prevents the Tribunal from reviewing the decision made by the Authority.

   6.1.2The Authority and the Tribunal had jurisdiction to investigate and take disciplinary action

7. The applicant’s submissions as to jurisdiction must be rejected.

8. First, Mr Kraues’ argument that the Tribunal failed to deal with his jurisdictional argument is without merit.  The Tribunal properly identified the jurisdictional argument raised by the applicant at [41]-[42], namely, that the Authority and the Tribunal lacked power to cancel his registration because he did not provide “immigration assistance” so as to enliven the cancellation power under s 303 of the Act. The Tribunal then rejected that argument for the reasons given at [43]-[52]: see above at [34]-[36]. The Tribunal had earlier given oral reasons for its decision that it had jurisdiction, after a preliminary hearing was held on this issue (Tribunal reasons at [53]). In so doing, it is apparent that the Tribunal accepted that the “retainer agreements” purported to bind the miners to pay money to Mr Kraues “for nothing more than ‘being available’” (at [69]). However, it rejected the argument that, as a consequence, neither the Authority nor the Tribunal had jurisdiction to cancel Mr Kraues’ registration under the Act.

9. Secondly, at paragraphs [89]-[90] of the Tribunal’s reasons, which were the subject of particular attack by Mr Kraues, the Tribunal was responding to a different point, namely, Mr Kraues’ argument that it lacked jurisdiction to deal with matters arising out of a contract.  The Tribunal correctly rejected that argument on the ground that the issue for the Tribunal was not the construction or enforcement of a contract.  Rather, it was seized of the same issue as the Authority, namely, whether Mr Kraues was a fit and proper person to be a registered migration agent and, as an aspect of determining that question, whether the basis on which Mr Kraues contracted with the miners was evidence that he was not such a person (see above at [36]).  

10. Thirdly and more fundamentally, the applicant’s submissions as to jurisdiction are misconceived in that they conflate the statutory functions conferred on the Authority by s 316 of the Act, on the one hand, with the powers conferred upon the Authority to undertake those functions, on the other hand. The powers which may be exercised in the discharge of those functions and the processes which must be followed are separately specified in Part 3 of the Act. This includes the power to cancel registration or take other action under s 303 and to do all things necessary, or conveniently done for or in connection with, the performance of the Authority’s functions under s 317 of the Act. Furthermore the function of taking appropriate action under s 316(1)(d) is not tied to the function of investigating complaints in relation to the provision of immigration assistance under s 316(1)(c); nor is the function under s 316(1)(d) of taking disciplinary action limited by the descriptor “in relation to the provision of immigration assistance”.  

11. It follows that there is nothing to suggest that the Authority and therefore the Tribunal could not take appropriate action under s 303 in relation to conduct falling outside the parameters of the initial complaint and which did not relate directly to the provision of immigration assistance. It would also be proper for the Authority (and the Tribunal) to take any such information into account in determining whether a migration agent was a person of integrity as required by s 303(1)(f) of the Act. This is consistent with there being no requirement for the Authority to receive a referral or complaint before commencing an investigation which might otherwise have confined the scope of an investigation or inquiry by the Authority. For example, it can readily be envisaged that the making of a complaint against a migration agent of a failure to comply with the Code may instigate a wider investigation by the Authority as to whether the agent is a fit and proper person to give immigration assistance. As Kiefel J (Crennan J agreeing at [117]) explained in Shi in relation to the Tribunal’s ability to have regard to new evidence in determining whether an agent was a person of integrity:

    149. … The topic with which s 303(1)(f) is concerned is not, however, one which identifies particular conduct, as is the case with respect to breaches of the Code of Conduct. The enquiry posed by the paragraph is a general one, and it may be considered by the Tribunal in that way. It does not limit an assessment of an agent’s integrity and fitness to what has been being conveyed by any breaches. There is no reason why the Tribunal’s review should not extend to any information which sheds light upon the presence or absence of the necessary characteristics in the migration agent. The list in s 290(2) is not exhaustive.

    (I note that Kiefel J was in dissent in Shi but not upon this issue.) 

12. In line with this, the Tribunal rejected at [52] the applicant’s submissions that the question before it was whether Mr Kraues provided immigration assistance to the complainants.  Rather it correctly considered that the question was “whether his registration should be cancelled (or suspended or a caution given) because he [is] [sic] ‘not a person of integrity or is otherwise not a fit and proper person to give immigration assistance’ or has not complied with the Code of Conduct: s 303(1).” 

13. In the fourth place and in any event, the Tribunal was correct in finding that the function of investigating complaints “in relation to” the provision of immigration assistance under subs 316(1)(c) of the Act is not limited to the actual provision of immigration assistance but may extend, as here, to a failure to provide that assistance (Tribunal reasons at [47]).

14. In this regard, the phrase “in relation to” in subs 316(1)(c) may connote different degrees of connection between the two subject matters, depending upon the particular context in which it is used: Travelex Ltd v Commissioner of Taxation of the Commonwealth of Australia [2010] HCA 33; (2010) 241 CLR 510 at [25] (French CJ and Hayne J). However, as McHugh J held in O’Grady v The Northern Queensland Company Limited (1990) 169 CLR 356 (O’Grady) at 376:

    The prepositional phrase “in relation to” is indefinite.  But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.

    (emphasis added)

15. While McHugh J was in dissent in O’Grady, his starting point as to the ordinary meaning of the phrase did not differ from that of the majority.  Thus, Toohey and Gaudron JJ (with whose reasons Dawson J agreed) accepted that the expression “in relation to” is a phrase of broad import (at 374).  However, their Honours held that, read in context with the word “arising”, a statutory provision conferring exclusive jurisdiction on a specialist mining court in all actions “arising in relation to mining…” presupposed a direct connection between the two statutory subject-matters:  ibid. 

16. On the other hand, Brennan CJ, Gaudron and McHugh JJ held in PMT Partners Pty Limited (In Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313 that the remedial nature of a provision conferring power on a court to relieve against a time limit for doing an act in relation to arbitration, and the fact that the power was to be exercised judicially, tended in favour of a wide construction of the expression “in relation to”.

17. In the present case, the remedial purpose of Part 3 of the Act compels against the applicant’s narrow construction. As Mason CJ explained in Cunliffe, that purpose is “to protect 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; see also 314 (Brennan J), 333 (Deane J), 358-359 (Dawson J) and 394 (McHugh J)). To limit the jurisdiction of the Authority and therefore the Tribunal to investigating complaints about the provision of immigration assistance, which is the effect of the applicant’s submission, would be to undermine that purpose. Taking the example given by the Tribunal at [47], the applicant’s submission would mean, for example, that unscrupulous agents who failed to provide assistance could avoid complaints against them being investigated. In this regard, a construction which would best achieve the legislative purpose or object is to be preferred to any other interpretation: s 15AA of the Acts Interpretation Act 1901 (Cth).

18. This construction is confirmed by the Minister’s Second Reading Speech introducing the Bill to enact then Part 2A (which is now Part 3):

    This initiative reflects the Government’s concern over the level and nature of complaints made against incompetent or unscrupulous agents, complaints which would be familiar to many members of this chamber.  It also recognises the fact that many of those who are likely to seek the assistance of agents are among the most vulnerable in our society, sometimes having a poor grasp of English, fear of authority or meagre financial resources…

    I do not intend to list comprehensively problems which led to the development of the scheme, but some examples include agents having been paid to lodge applications and then failing to do so; lodging applications without paying the prescribed fees, thereby not giving effect to the application; lodging applications tardily in a way which adversely affects the entitlements of applicant; and holding passports as ‘security and then demanding extra payments’. There are also examples of agents providing incompetent advice because they lack even a rudimentary knowledge of the Migration Act and regulations.

    (emphasis added)

    (Commonwealth, House of Representatives, Parliamentary Debates (Hansard), 27 May 1992 at p. 2937)

19. Nor, unlike the statutory provision considered in O’Grady, are there any textual considerations indicating that a narrow construction of the expression was intended.  The applicant sought to rely upon the definition of “immigration assistance” in s 276 in support of his narrow construction. He placed particular weight upon the fact that, as defined, “immigration assistance” was “about the visa application” and was a “procedure or document-focused endeavour”. However, s 276 merely defines one of the two subject-matter which are related in subs 316(1)(c). It does not identify the nature of the intended connection between that subject-matter and “complaints” which is the other statutory subject-matter. 

20. The applicant also submitted that the seriousness of the consequences for a migration agent if her or his registration is cancelled was a reason for narrowly construing the phrase “in relation to” in the context of s 316(1)(c). However, as earlier mentioned, Parliament was neither concerned with protecting migration agents against the consequences of unscrupulous or dishonest conduct nor with punishment per se:  Shi at [50] (Kirby J). Rather, Parliament’s concern was to protect a particularly vulnerable section of the public against such conduct.

21. Finally, on the construction which I have adopted, there is no need in the context of the jurisdictional issue to revisit the Tribunal’s finding at [69] that the agreements between Mr Kraues and the miners purportedly required payment solely for Mr Kraues to make himself available for the giving of immigration assistance.  However, that construction and its consequences remains relevant to certain of the “no-evidence” grounds.

    6.2             Alleged breach of procedural fairness

    6.2.1The applicant’s submissions

22. The applicant contended that he was denied procedural fairness with respect to further evidence. It was said that this evidence was “principally in documentary form going to the client relationship between the complainants, the Applicant and Corestaff”, and that  “there was utility in such material being made available and considered” by the Tribunal.  Specifically, the applicant submitted that:

    (1)Corestaff’s refusal to provide its records before the Tribunal hearing, together with the Tribunal’s failure to enforce a summons for production until after the Tribunal hearing, meant that the applicant was unable to present his case; 

    (2)the summary tables prepared by Corestaff and produced after the hearing in response to the summons, which were relied upon by the Tribunal, were not founded upon authentic or proper records and could not be tested;

    (3)Mr Hughes’ report demonstrated that the summary tables were “seriously flawed” and his evidence would have established Mr Kraues’ “contrary case”; and

    (4)given the third of these considerations in particular, it followed that the breach of procedural fairness occasioned a practical injustice and, therefore, that there was utility in the grant of relief. 

23. As to the last of these matters, the applicant also relied upon Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309. In that case, Griffiths and Moshinsky JJ at [96] emphasised the need for considerable caution before withholding relief on the ground of lack of utility once jurisdictional error has been established: see also Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [55] (Gaudron and Gummow JJ)).

24. Given these matters, Mr Kraues contended that the Tribunal wrongly found that the information relied on by the Authority was “made abundantly clear” and that Mr Kraues “could not be reasonably under any misapprehension as to the nature of the allegations against him, the information on which the Authorty relied in cancelling his registration, or the information now before the Tribunal.” (Tribunal reasons at [56] and [58] respectively).

    6.2.2The circumstances in which the alleged breach of procedural fairness occurred

1. It was not in issue that the Tribunal is required to comply with the requirements of procedural fairness.  That said, the precise content to be given to the requirement to accord procedural fairness and the question of whether it has been breached will depend upon the facts and circumstances of the individual case, including the relevant statutory framework:  SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (SZBEL) at [26] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). It is, therefore necessary to set out the relevant history of the proceedings before the Tribunal.

2. On 19 March 2015, the Tribunal issued a summons to produce documents to Corestaff at the request of the applicant.  That summons called for the production of:

   All documents and records detailing transfer of monies via Corestaff accounts to the Applicant pursuant to the relevant Terms and Schedule of Fees: Migration Agent Regulation (1998)’ [i.e. the retainer agreements] with the… miners.

3. On 22 September 2015, a bundle of documents was produced by Corestaff by email from Mr Seigel, who (it will be recalled) was the General Manager of Corestaff.  These documents consisted primarily of the signed authorisations given by the miners for Corestaff to deduct an initial instalment of $825.00 from the miners’ salary followed by 78 weekly instalments of $82.50 from their salaries for payment to “Kraues Law Client Trust Account”, with the payment remittance to be emailed to an email address bearing Mr Kraues’ name. 

4. On 7 October 2015, the Authority filed an amended statement of facts, issues and contentions (ASFIC).  At paragraph 3 of the ASFIC, the Authority referred to an attached summary table said to demonstrate Mr Kraues’ “known reliance” on the retainer agreements to retain monies from the miners.  The summary table was said to be based on information provided by Corestaff (the initial summary table).  This was said to indicate that the applicant had received in excess of $91,533.00 in first instalments and regular payments from the miners without having provided any immigration assistance.  However, the Authority also acknowledged that the information provided by Corestaff at that time presented an incomplete picture, and foreshadowed that Corestaff would be requested to complete the information from its records and, if necessary, appear at the hearing for this purpose.

5. In his affidavit affirmed on 10 November 2015, Mr Seigel deposed that Corestaff’s records indicated that a total of $205,377.50 in deductions from 66 employees was paid by Corestaff to Mr Kraues.  Mr Seigel annexed an updated summary of those payments which identified each of the employees concerned, and in the case of each such employee, identified their payroll ID, the date and amount of the initial deduction, the period over which further instalments were deducted, the amount of the instalments, and the total amount deducted from the miners’ wages (the amended summary table).  On the following day, Mr Joel, the solicitor for Mr Kraues, applied for an adjournment of the final hearing, then scheduled for 26 and 27 November 2015 (Tribunal reasons at [38]).  In support of the adjournment, Mr Joel submitted that the written statements of witnesses to be called by the Authority included matters not previously raised, and also sought a preliminary hearing on the jurisdictional issue.  The final hearing was adjourned and preliminary argument on the Tribunal’s jurisdiction was heard and determined (Tribunal’s reasons at [39]-[53]). 

6. By his affidavit affirmed on 13 July 2016, Mr Joel annexed the documents which he said had been produced as at that time in answer to the summons to produce.  However, Mr Joel alleged that there had been no production of financial records, as purportedly requested by the summons. 

7. The final hearing before the Tribunal commenced with two days of evidence in April 2016.  The hearing resumed on 15 August 2016 when Mr Seigel gave evidence by videolink from Western Australia.  In the interim, Mr Joel filed submissions dated 12 August 2016 identifying as “a central issue” the question of whether there was sufficient evidence with respect to the transmission of client monies to the applicant. In those submissions, Mr Joel also submitted that the summary tables could not be accepted as a substitute for production of the underlying records requested in the summons, that such a procedure was unfair, that the financial documents were being concealed, and that Mr Kraues was entitled to be made aware of the relevant documents.

8. In the course of examination in chief, Mr Seigel explained that the initial summary table was provided by the Accounts Department of Corestaff, and that:

   …It’s monies that were deducted via a deduction authority that was signed by the employees’ that was paid into Mr Kraues’ account.  It was supplied by Mr Kraues for works done in relation to the 457 employees permanent residency applications. …

   Well, what I can confirm to you is that a total of $205,377.50 was in total from the named employees deducted via a signed deduction authority and it was distributed and paid into Mr Kraues’s [sic] account.  That’s what our admin department has on record, and it’s been audited and all the rest of it, so they’re the facts… 

9. Subsequently in his evidence, Mr Seigel confirmed as follows:

   MR LEERDAM (solicitor for the Authority): … the question was, in relation to the remainder of the miners for whom NDS appears next to their name and for which monies have been recorded by your finance people as having been taken out, is it the case that there are financial deduction statements that CoreStaff holds in relation to them?--- Yes, that is correct.…

10. Mr Seigel was cross-examined on his evidence by Mr Joel.  As to the provision of documents in response to the summons, Mr Seigel’s evidence was as follows:

    [MR JOEL] I’m seeking to establish where the records are as to the transmission of what you allege to be funds owned by the miners which are alleged to have been transmitted to Mr Kraues? --- [MR SEIGEL] Well, the records are here in this printout, on this two-page landscape paper. It lists all (indistinct) and the amount of $205,377.50.  I’m not sure – am I not understanding something?

    [MR JOEL] Yes.  What I am saying is that the critical documents, which, as I understand, Mr Leedam may well assert constitute client monies, there must be a record of the transmission of those monies to Mr Kraues, and I cannot---?  [MR SEIGEL] Yes, obviously.

    [MR JOEL] I cannot locate them, with respect to the response that you or an officer has made in answering the summons.  What have you got to say about that?  --- [MR SEIGEL] Look, Mr Joel, I’m going to maintain my politeness.  The reality is, Mr Joel, that monies were deducted - if you’re saying you want to see the actual transactions from the CoreStaff account into the Kraues account, happy to provide them.  Not a problem at all.  If we have misinterpreted the actual information that you wanted, and we haven’t gone to the bank and got printouts of all of those, please accept my sincere apologies.  I’m more than happy to contact the bank and have our people and the bank provide all those transactions for you.  Not a problem at all.

11. Mr Joel accepted at the hearing that the offer by Mr Seigel was a reasonable one.  Mr Seigel’s undertaking in relation to further evidence was therefore adopted, and directions were made accordingly at the end of the hearing.  On 31 August 2016, Mr Seigel sent by email the documents in question comprising bank statements indicating that a total of $203,397.50 was paid from an account in the name of “Corestaff Admin Pty Ltd” to Kraues Law in 51 separate transactions (correcting the amount earlier given in Mr Seigel’s affidavit evidence).  It was not in contention that these sums were received by Mr Kraues.  The bank statements attached to the email were not masked and each payment to “Kraues Law” was highlighted and identified by a number. 

12. In the interim, on 22 August 2016 the Tribunal made directions setting a timetable for the filing of final written submissions to commence after receipt of the bank records.  The Authority filed its submissions on 22 September 2016, with Mr Joel filing submissions on behalf of Mr Kraues on 6 October 2016.  As the Authority points out, both sets of final submissions dealt, among other things, with Mr Siegel’s evidence on the amounts deducted from the miners and remitted to Mr Kraues, and with the further documents produced by Corestaff on 31 August 2016.

    6.2.3No breach of procedural fairness is established

13. When regard is had to all of the circumstances, it is plain that there was no denial of procedural fairness to Mr Kraues.  

14. First, the Authority adduced evidence in support of its case, both documentary and testimonial, in advance of the hearing, and Mr Kraues had the opportunity to cross-examine its witnesses and interrogate the relevant documents.  While there was some delay, ultimately Corestaff produced the financial records which Mr Kraues complained ought to have been produced in response to the Authority’s summons.  Furthermore, Mr Kraues had Mr Seigel’s affidavit which set out the details of the deductions made with respect to each employee since approximately 10 November 2015 and had previously sought and obtained an adjournment of the hearing on 11 November 2015 in part, it would appear, as a result of receiving that evidence.  Had Mr Kraues chosen to do so, it was therefore open to him to have filed evidence contradicting Mr Seigel’s evidence at that time and well before the final hearing before the Tribunal.  In this regard, no doubt Mr Kraues had access, for example, to his own bank statements and financial records.

15. Secondly, detailed written submissions were provided by both parties after Corestaff had produced its bank statements, with Mr Kraues having nearly five weeks within which to consider his position after receiving the bank statements before filing his final submissions and some two weeks within which to respond to the Authority’s submissions.  

16. Thirdly, Mr Joel’s detailed final submissions in fact relied upon the bank statements in support of Mr Kraues’ case, submitting among other things that the information contained in the amended summary table was “contradicted by the bank statements”, and that no nexus existed between the monies transmitted by “a hitherto unnamed company, namely Corestaff Admin Pty Ltd” and the so-called hearsay “entitlement of ownership” to the monies asserted by the miners.  Nor, following receipt of the bank statements, did Mr Kraues suggest that he required expert evidence in order to respond to the information in the records, despite being legally represented before the Tribunal, and no application was made by him to lead further evidence or to recall the Authority’s witnesses for further cross-examination.  

17. Finally and at the risk of a degree of repetition, there was no dispute relevantly that:

    (1)the miners each signed forms authorising Corestaff to deduct an initial instalment of $825.00 from their salaries followed by 78 weekly instalments of $82.50 for payment to “Kraues Law Client Trust Account”, with the payment remittance to be emailed to an email address bearing Mr Kraues’ name;

    (2)the authorisations stated that they were to remain in force until cancelled by Kraues Law in accordance with the terms of the retainer agreements;

    (3)the banking records confirmed the withdrawal of the amounts, albeit from an account in the name of Corestaff Admin Pty Ltd;

    (4)monies were in fact deposited into Kraues Law’s account;

    (5)there was no evidence of any other explanation for the deduction of monies from Corestaff Admin Pty Ltd to Kraues Law;

    (6)Mr Kraues had withdrawn money from the Kraues Law account;

    (7)Mr Kraues had not accounted for the withdrawal of those monies;

    (8)After the miners complained to the Authority, Mr Kraues wrote to them demanding the “balance owing” under the ‘retainer agreement[s]”; and

    (9)Mr Kraues had not returned any money to the miners (or indeed to Corestaff or Corestaff Admin).

18. Furthermore, the applicant never adequately explained how the fact that the deductions were made from an allegedly unknown company, Corestaff Admin Pty Ltd, could have possibly borne upon the issues before the Tribunal.  Furthermore, the submission by Mr Joel to the Tribunal that Corestaff Admin Pty Ltd was a “hitherto unnamed company” was no more than a bare assertion as no evidence was led by Mr Kraues that he did not know about the company until he received the bank records. 

19. In these circumstances, the inference which the Authority asked the Tribunal to draw, namely, that the monies were in fact deducted from the miners’ salaries pursuant to the authorities signed by them, in fulfilment of their obligations under the so-called retainer agreements with Mr Kraues, was obvious and compelling, if not irresistible.  It cannot seriously be argued that Mr Kraues was unaware of the implications of that evidence and the case against him, as the Tribunal found at [58] of its reasons.  Nor could it seriously be argued that the procedure adopted by the Tribunal deprived Mr Kraues of the opportunity to respond to the Authority’s case by calling evidence, which he chose not to do, or by cross-examining the Authority’s witnesses and making submissions as to the alleged deficiencies in that evidence, as he in fact did.  The requirements of procedural fairness required no more.  As for example, Kirby J stated in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172:

    38. … Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided.  Affording the opportunity is all that the law and principle require.

20. It follows that there is no merit in the submission that the applicant had no reasonable opportunity to put his case and that “the tribunal, in giving him a late reprieve … by enforcing the summons merely to meet his concern of concealment was at best, a sop to Mr Joel, and not a genuine opportunity”.  Mr Kraues’ contention that there was a breach of procedural fairness is ultimately therefore a complaint about the consequences of his own forensic decision not to call evidence and the merits of the Tribunal’s decision which is beyond the power of the Court to review. 

    6.3             Alleged error by the Tribunal in assuming a client/migration agent relationship

    6.3.1The applicant’s submissions

21. Mr Kraues also took issue with the Tribunal’s findings that he had not complied with the Code on the ground that the Code did not apply because there was no evidence of a client/migration agent relationship between him and the miners, and because he did not give immigration assistance.  As best can be discerned from the applicant’s submission, this challenge is made in various ways which, while overlapping, may be summarised as follows:

    (1)The Tribunal erred in failing to address, or treating as irrelevant, the question of whether the miners were clients of Mr Kraues in giving, or agreeing to give, immigration assistance under Part 3.3 of the Act prior to 26 November 2012.

    (2)As a matter of construction of the agreements between Mr Kraues and the miners, there was no client/migration agent relationship created between them.  Rather, the agreements did “not evidence either the provision of immigration assistance or an agreement to give such assistance except provisionally, and upon certain conditions being satisfied” (applicant’s reply submissions dated 21 July 2018 at [33]).  In this regard, the Tribunal erred in having regard to evidence of the miners’ intentions in entering the agreement and their understanding of it, and in taking into account what Mr Kraues might have considered was their state of mind when entering into the agreement.  

    (3)As the Tribunal found, the applicant did not in fact give immigration assistance.  Nor was immigration assistance requested.

22. Contrary to these submissions, I consider for the reasons set out below that the Tribunal did find that a client/agent relationship existed between the applicant and miners’ and did not err in law in so finding.

    6.3.2How does the applicant’s submission that no client/agent relationship existed intersect with the Tribunal’s findings of breaches of the Code?

23. As the point of the applicant’s argument is that no relationship existed between Mr Kraues and the miners which attracted the obligations in the Code in Schedule 2 to the Regulations, the starting point must be the Code.

24. First, as earlier mentioned, subs 314(2) of the Act provides that “[a] registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.”  The power to prescribe a Code is limited expressly only by the requirement that it be “for migration agents”: subs 314(1). 

25. In this regard, in line with the purpose of Part 3 of the Act being to ensure that only fit and proper persons of integrity and competence may hold themselves out as migration agents and give immigration assistance, neither the power to prescribe a Code, nor the obligation to comply with the Code, are limited to the giving of immigration advice by a migration agent or indeed to conduct undertaken in the context of a client/migration agent relationship. Rather, consistently with the construction adopted by Kiefel J in Shi at [149] (quoted above at [55]), the Code may impose obligations upon migration agents with respect to conduct which is indirectly, as well as directly, related to the giving of immigration advice. This may include matters which cast light upon the presence or absence of the necessary characteristics in the migration agent: cf the obiter observation of the Full Court in Hartnett v Migration Agents Registration Authority [2004] FCAFC 269; (2004) 140 FCR 388 at [56] (Madgwick, Finkelstein and Dowsett JJ).

26. The aims of the Code set out in clause 1.10 reflect this breadth of purpose, and include:

    (a)       to establish a proper standard for the conduct of a registered migration agent;

    (b)      to set out the minimum attributes and abilities that a person must demonstrate to perform as a registered migration agent under the Code, including:

    (i)        being a fit and proper person to give immigration assistance;

    (ia)      being a person of integrity and good character;

    …

    (c)       to set out the duties of a registered migration agent to a client…;

    …

    (g)       to require a registered migration agent to be accountable to the client;

    …

27. Clause 1.11 provides that the Code does not list exhaustively the acts and omissions that may fall short of what is expected. 

28. Secondly, the obligations imposed by the Code are not limited to conduct undertaken by a migration agent in the client/agent relationship or in the giving of immigration advice to a client.  Thus the obligations imposed by the Code which Mr Kraues was found to have breached included the obligation to take all reasonable steps to maintain the reputation and integrity of the migration advice profession:  clause 2.23.  Furthermore, the obligation to set a fee that is reasonable in the circumstances of the case under clause 5.1 is an obligation that may apply before any contractual arrangement is entered into between a person and a migration agent.  As such, the Tribunal’s findings that these obligations under the Code were breached are not necessarily affected by Mr Kraues’ submission that the Tribunal erred in law in finding that he was in a client/migration agent relationship with the miners, and in finding breaches of the Code in circumstances where he had not given any immigration advice.

29. Thirdly, it is correct to say that the Tribunal also found that certain obligations imposed by the Code on Mr Kraues with respect to clients were breached.  These obligations were:

    (1)to deal with the client fairly (clause 2.1);

    (2)to charge a fee that is reasonable in the circumstances of the case (clause 5.1);

    (3)to return payments to clients in circumstances where the client made the payment to the agent for giving immigration assistance and did not receive a statement of services (clause 5.5);

    (4)to maintain separate accounts with a financial institution for operating expenses (the operating account), on the one hand, and money paid by clients to the agent for fees and disbursements (the clients’ account), on the other hand (clause 7.1);

    (5)to hold money in the clients’ account until an agreed block of work is completed and an invoice issued (clause 7.2); and

    (6)to keep records of the client’s account and to make them available for inspection (clauses 7.4 and 7.5). 

1. Furthermore and importantly, clause 1.12 “imposes on a registered migration agent the overriding duty to act at all times in the lawful interests of the agent’s client.  Any conduct falling short of that requirement may make the agent liable to cancellation of registration.” 

2. These breaches were plainly taken into account by the Tribunal in reaching its decision that the applicant was not a fit and proper person of integrity and accordingly to cancel his registration.  As such, the question arises as to whether the Tribunal erred in law in finding that the miners were clients of Mr Kraues for the purposes of these provisions of the Code.  

   6.3.3Did the Tribunal err in law in finding that the miners were clients of Mr Kraues for the purposes of the Code?

3. Mr Kraues’ submissions before the Tribunal and in this Court addressed the issue of whether he was in a client/migration agent relationship with the miners for the purposes of the Code in a highly technical manner.  As earlier explained, in Mr Kraues’ submission, properly construed, the agreements with the miners were only to be available (as in “on call”) to provide immigration assistance.  The fact that separate provision was made in the agreements for payment for immigration assistance in blocks of work at hourly rates over and above the fixed fee for being retained, was said to avoid any conclusion that Mr Kraues was in such a relationship unless and until immigration assistance was in fact provided.  At this point it was said that those provisions of the agreements relating to blocks of work (which, it was submitted, were compliant with the Code) would come into effect.

4. Mr Kraues also argued that the Tribunal fell into error in relying on the understanding of the parties as to the agreements or their subjective intentions.  Rather, in his submission the parties’ intentions are to be assessed objectively and not subjectively, relying upon the High Court’s decision in:  Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; (2004) 219 CLR 165 (Alphapharm) at [42] (the Court). As such, Mr Kraues submitted, that the Tribunal erred in having regard to extrinsic evidence as to the parties’ intentions and state of knowledge contrary to the parol evidence rule: see e.g. Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 (Codelfa Construction) at 347 (Mason J (with whose reasons Stephen J agreed)).

5. Those submissions must be rejected.

6. First, as the Tribunal correctly pointed out at [89]-[90], its task was not to determine matters of contract.  The question of whether the miners pursued recovery of monies paid to Mr Kraues through the courts was a matter for them.  Rather, the Tribunal correctly asked whether Mr Kraues’s conduct in relation to the contractual relationship between him and the miners relevantly put him in breach of the Code (at [90]).  As such, the issue for the Tribunal was not governed by decisions such as Alphapharm and Codelfa Constructions. 

7. Furthermore, in considering whether to take action under s 303 of the Act against a migration agent, neither the Authority nor the Tribunal are bound by the rules of evidence: s 311 of the Act and s 33(1)(c) of the AAT Act. Rather, the Authority, and the Tribunal ‘standing in its shoes’ on review, may have regard to evidence that is “logically probative” and relevant to the issues:  Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64;(1979) 36 FLR 482; appeal dismissed in Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 (Smithers, Evatt and Deane JJ (Smithers J dissenting)).

8. Secondly, aside from s 306C of the Act, there is otherwise no definition of the term “client” in the Act or in the Code. Section 306C of the Act defines the circumstances in which a person is a “client” of a registered migration agent only for the purposes of Division 3A of Part 3. Division 3A (comprising ss 306A-306L) is concerned with ensuring that clients of inactive or deceased migration agents are not thereby disadvantaged by providing the Authority with powers to obtain client documents and return them to the client. Not surprisingly, in that context s 306C defines “client” widely, extending the concept to cases where a registered migration agent “gave, or anticipated giving, immigration assistance to another person”. Nonetheless, Senior Member Dwyer in Hudson v Migration Agents Registration Authority [2004] AAT 1007 (Hudson) at [96] decided to adopt the s 306C meaning of the word “client” generally for the purposes of the Code, as contended for by the migration agent.  I note in this regard that no contrary submission was apparently made in that case by the Authority.  However, while it is not necessary to decide the point, I would be slow to imply that the Code, in the context of defining obligations between migration agents and clients, intended to adopt a definition of “client” employed otherwise only in the limited and special circumstances with which Division 3A is concerned. In this regard, I note the seriousness of the disciplinary measures which may be imposed on registered migration agents for non-compliance with the Code under s 303 of the Act, albeit that the purpose of taking such measures is not per se to punish the agent in question:  Hanna v Migration Agents Registration Authority [1999] FCA 1657; (1999) 94 FCR 358 at [20] (Tamberlin J).

9. That notwithstanding, in my view it is consistent with the purposes of the Act being to protect the vulnerable against unscrupulous migration agents and to maintain public confidence in the integrity of migration agents, for a common sense approach to be taken to the question of whether a person is a “client” for the purposes of the Code, having regard to the reality of the relationship between the parties. Any other construction would leave open the door to permitting migration agents to structure their agreements with those seeking their advice so as to avoid the obligations that they would otherwise owe to such persons. In other words, the purposes of the Act suggest an approach to construction of the Code which gives effect to substance over form.

10. Thirdly, despite the emphasis placed by Mr Kraues upon the fact that no immigration advice was given, none of the provisions of the Code which he was found to have breached were premised upon the giving of immigration advice.

11. In the fourth place, contrary to the applicant’s submissions, it cannot be inferred that the Tribunal overlooked the question of whether the relationship between Mr Kraues and the miners was one of migration agent and client.  That finding is implicit in the Tribunal’s findings that various clauses of the Code imposing obligations on Mr Kraues vis a vis clients had been breached. 

12. Fifthly, there was an ample basis in the evidence for the Tribunal to find that a client/migration agent relationship existed for the purposes of the Code. 

13. Perhaps the most salient point in this regard is that this finding accords with the terms of the agreements themselves.  Without endeavouring to be exhaustive, so much is apparent from the following aspects of the agreements with the miners, each of which were relevantly in the same terms.

    (1)The deducation authorities were said to be subject to the “Kraues Law Terms and Fee Schedule Retainer Agreement issued pursuant to the Migration Agent Regulations”.

    (2)The title to each retainer agreement refers to the “Migration Agent Regulations (1998)” indicating that they were proposed by Mr Kraues, in his capacity as a registered migration agent in purported compliance with his obligations under the Act and Regulations.

    (3)This intention is also apparent from cl 2 of the “Terms and Fee Schedule” headed “Terms and fee confirmation” which explains that “Part 5 of the Code requires Registered Migration Agents to set and charge a fee that is reasonable in the circumstances”.  Clause 2 continues under that umbrella paragraph to state: 

    c.  Retainer Agreement to be available to provide Immigration Assistance

    d.  Single Sum Fixed Fee: $7,260 including 10% GST (where applicable)

    d.  Immigration Assistance – Hourly Fee calculated in accordance with the fee rate published in the table below.

    …

    Similarly, the fixed fee is explained in cl 3 dealing with payment method and structure as:  “Commencment of Retainer Agreement; the retainer makes available the services of Kraues Law to provide immigration assistance under the Regional Sponsored Migration Scheme”.  As such, it is open to imply from these references to the Code that the contracts are to provide immigration assistance in accordance with the Code and for the purposes of Part 3 of the Act. Similarly, cl 4(j)(iv) of the agreements provides that “[p]ursuant to the Code of Conduct the agent may at its sole discretion terminate or suspend the agreement…”.  The agreements do not explain that the single sum fixed fee in cl 2(d) is for “bare availability” and nothing more.

    (4)The requirement in cl 3 of the agreements that payment be made to the “Kraues Client Trust account” is also significant given that cl 7.1 of the Code requires an agent to keep separate accounts for operating costs and for money paid by clients for fees and disbursements, and requires that the latter be identified by the words “the client account”:  see cl 7.1A of the Code.  Clause 3(g) of the contracts provide that the non-retainer agreement fees paid in advance will (also) be held in “the clients’ trust account”. 

    (5)If there were any doubt about the matter, cl 4 of the agreements expressly provides that the relationship is that of agent and client:

    (i)  the contractual relationship is between the client and Kraues Pty Ltd T/a Kraues Law.  (ii)  The client has appointed Kraues Law as its agent (iii) For as long as circumstances permit at any given time, the clients responsible agent is (identifying Mr Kraues by his registration number) is to provide immigration assistance services pursuant to the terms of this agreement  (iii) [sic]  The agent is able to advise the client about immigration law at a particular point in time but is unable to predict future changes in the law…

    (emphasis added)

14. As such, Mr Kraues’ submission that the Tribunal erred in treating the relationship between him and the miners as that of migration agent and client for the purposes of the Code is contradicted by the very terms of the agreement.  

15. Furthermore, the rubric within which the parties were operating was that the miners wanted assistance with permanent residency applications (Tribunal reasons at [96]).  Importantly in this regard, the Tribunal found that Mr Karu and the other miners understood that they were paying money to Mr Kraues in relation to their permanent residency applications and that Mr Kraues can have been in little doubt that this is what the miners thought they would receive in return (ibid).  Nor is any error apparent in the Tribunal’s finding that it is improbable that the miners would have paid those amounts for nothing more than Mr Kraues “availability” to, in effect, answer the telephone (ibid). 

16. It follows that it was open as a matter of law for the Tribunal to find on the evidence that a client/migration agent relationship existed for the purposes of the Code.  Mr Kraues’ argument to the contrary is, with respect, an exercise in semantics.

    6.4             The allegation of no evidence of the alleged receipt of client monies for immigration assistance

17. Mr Kraues also submits that there was no evidence of the alleged receipt of client monies for immigration assistance having regard to the following matters:

    (1)the evidence tendered comprised merely the amended summary table tendered by the Authority and prepared by an unknown person with redacted bank statements;

    (2)Mr Seigel’s evidence about the arrangements put in place between Corestaff and Mr Kraues did not assist because Corestaff was not the employer of the miners;

    (3)the summary table is inconsistent with the bank records produced in answer to the summons and Mr Hughes’ report;

    (4)there is no evidence of immigration assistance having been requested or given by the applicant to the miners;

    (5)there was no evidence that the miners’ owned the money paid to Mr Kraues; and

    (6)Mr Karu never met Mr Kraues until after the retainer agreements were terminated.

18. The submission however, misconceives the nature of the “no evidence” ground of judicial review.  Mr Hughes’ report was not before the Tribunal. It is therefore irrelevant to the issues on this appeal, save potentially to the question of whether any breach of procedural fairness resulted in practical unfairness in line with the limited basis on which Mr Hughes’ report was received in evidence.  Otherwise, the applicant’s submissions invite the Court impermissibly to evaluate the sufficiency of the evidence before the Tribunal which formed the basis of the Tribunal’s findings:  Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 (Mason CJ); Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [90]-[91] (Hayne, Heydon, Crennan and Kiefel JJ); see also Rawson v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307 (Rawson) at [83]-[88] (Jagot J (with whose reasons Nicholas J agreed). As the Authority submits, the evidence before the Tribunal was more than sufficient to provide an evidential basis for the findings. Those findings were not only supported by the undisputed evidence set out earlier at [85] above. They were also supported, for example, by Mr Karu’s evidence which the Tribunal accepted and by Mr Seigel’s evidence which was relevantly accepted by the Tribunal despite its finding that other aspects of his evidence were “somewhat disingenuous” (Tribunal reasons at [75]).

    6.5             Alleged error in finding breaches of financial duties under the Code where no immigration services were given

19. Mr King also submitted that there could have been no breach of clause 5.5 of the Code requiring an agent to return monies for which no statement of services was rendered because under the agreements with the miners, the monies deducted from the miners’ salaries was paid to Mr Kraues simply for him to be available, and he never provided (or was requested to provide) any immigration assistance.  Equally, Mr King submitted that there could have been no breaches of clauses 7.1, 7.2, 7.4 and 7.5 of the Code which impose duties with respect to the proper accounting of monies paid to an agent on trust for services because no monies were ever paid for “services”, being immigration assistance. 

20. However, these submissions ignore the Tribunal’s findings that, notwithstanding the technical terms of the agreements signed by the miners, they understood that the payments were made for Mr Kraues’ assistance with their permanent residency applications, that Mr Kraues can have been in little doubt about this, and that he failed to either provide that assistance or explain the nature of the agreement signed by the miners (Tribunal reasons at [84], [96] and [99]).  Those findings were plainly open to the Tribunal on the evidence.  It was not in dispute that Mr Kraues had not explained the terms of the agreements to the miners.  Furthermore, for example, the miners’ understanding of the agreements was supported by Mr Karu’s and Mr Seigel’s evidence.   Moreover, while Mr King argued that the Tribunal had impermissibly “speculated” on Mr Kraues’ state of mind,  the Tribunal merely drew an inference available on the evidence having regard among other things to the context in which the agreements were signed and the substantial and ongoing nature of the payments by the miners.  As such, there was an ample evidence to sustain the Tribunal’s findings that clauses 5.5, 7.1, 7.2, 7.4 and 7.5 of the Code had been breached by Mr Kraues.

    6.6             Alleged failure to have regard to altered circumstances and evidence

21. Finally, Mr Kraues alleged that the Tribunal failed to have regard to altered circumstances and evidence produced after the Authority’s decision.  Specifically, he asserts that the “oral representations” by Corestaff to the miners in Papua New Guinea “were irrelevant once the retainer agreements whose contents were and are inconsistent with those alleged representations.” Presumably this allegation refers to the Tribunal’s findings referred to at [37] above that, at the least, Mr Siegel had said enough when initially interviewing the miners to lead them to believe that they would be able to apply for permanent residency. Furthermore, Mr Kraues alleges that, once the bank records were produced, the Tribunal erred in failing to have regard to the alleged inconsistencies between that evidence and the initial and amended summary tables.

22. As earlier mentioned, the Tribunal on review is required to make the correct or preferable decision on the material before it and in the circumstances as they exist at the time of its decision: see Shi.  The matters relied upon by the applicant in support of this ground again seek impermissibly to take issue with the merits of the Tribunal’s decision and do not establish any failure by the Tribunal to have regard to the evidence as at the time it made its decision.  In this regard, it was for the Tribunal to determine the relevance and weight to be afforded to the evidence of Corestaff’s representations to the miners:  Peko-Wallsend at 41 (Mason J); Rawson at [119] (Jagot J). Furthermore, the Tribunal expressly considered and rejected Mr Kraues’ submissions regarding the information provided by Corestaff as to the amounts deducted from the miners’ accounts (Tribunal reasons at [86]-[88]).

    7.               CONCLUSION

23. For the reasons set out above, the appeal against the decision of the Tribunal must be dismissed with costs.

I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

Associate:

Dated:       11 May 2018