Mishalow and Migration Agents Registration Authority

[2002] AATA 411

DECISION AND REASONS FOR DECISION [2002] AATA 411

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2001/1866

GENERAL ADMINISTRATIVE DIVISION          )          

Re      ROXOLANA mishalow     

Applicant

And    MIGRATION AGENTS REGISTRATION AUTHORITY          

Respondent

DECISION

Tribunal       Senior Member M D Allen Mr M A Griffin, Member       

Date20 May 2002

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL  )         No N2001/1866
  )  
GENERAL ADMINISTRATIVE DIVISION     )

Re:     ROXOLANA MISHALOW

Applicant

And:     MIGRATION AGENTS
  REGISTRATION AUTHORITY
  Respondent

DECISION

Tribunal              Senior Member M D Allen
  Mr M A Griffin, Member

Date  20 May 2002

Place                   Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE.

(Sgd)  M.D. ALLEN

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

Presiding Member
CATCHWORDS

PROFESSIONS AND TRADES: Migration Agent. Whether a fit and proper person. Did lack of candour amount to unfitness to practice as a migration agent. Contract with company not contract with agent personally.

Migration Act 1958 - s290

Salomon v AV Salomon and Co [1897] AC22

Re Zuliang Wei and Migration Agents Registration Board (unreported AAT No 12431)

Davies v Australian Securities Commission & Anor 131 ALR 295

REASONS FOR DECISION

Senior Member M D Allen

Mr M A Griffin, Member

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

1. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

1. The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen  Mr M A Griffin, Member

Signed:         
          ..................................................................................……………………………….

Associate

Date of Hearing  20 May 2002
Date of Decision  20 May 2002

Counsel for Applicant                 Mr S Lloyd       
Solicitor for Applicant                  Horowitz and Bilinsky
Solicitor for Respondent            Blake Dawson Waldron

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N1866 of 2001
By MR ALLEN, Senior Member and
MR M A GRIFFIN, Member
MISHALOW and MIGRATION AGENTS
REGISTRATION AUTHORITY
SYDNEY 20 MAY 2002

MR ALLEN: In this matter the applicant pursuant to an application lodged with the Tribunal on 7 December 2001 seeks review of a decision by the respondent Migrant Agents Registration Authority to suspend her registration as a migration agent for a period of two years after the date of the decision was notified to her.  The date of the decision purports to be 23 October 2001.

The events which gave rise to the decision by the respondent started with a complaint by one Ivan Nichelavich Lazarev, a citizen of the Ukraine who complained that he had arranged with the applicant in the Ukraine for her to act as his agent and represent him in seeking a visa to migrate to Australia. It is common ground that Mr Lazarev was unsuccessful in his application and it would seem that he sought to obtain a refund or part refund of the fees which he had paid. The actual complaint can be found at document T27 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act.

It also appears that the complainant had entered into a contract with regard to his immigration application with a company formed in the Ukraine which had the name Evkalipt Ukrainian Australian Travel Agency Company.  The complainant originally complained to the Australian Embassy in Moscow as a result of which they corresponded with the respondent and on 17 August 1999 the respondent wrote to the applicant.  That letter reads inter alia:

The Migration Agents Registration Authority advises you that a complaint against your conduct as a migration agent has been received by this office from Mr Ivan Lazarev.  A copy of this complaint is attached.  The Authority would like to give you the opportunity to respond to the matter it has raised in this complaint.  The Authority is to receive your response by 8.30am 8 September 1999.

The applicant replied and her reply is to be found at document T41.  That reply which was received on 8 September 1999 by the respondent reads inter alia:

Your letter raises matters which relate to the code of conduct administered by the Migration Agents Registration Authority which applies to an individual who is listed in the register of migration agents kept by the Authority.  However, my certificate of registration number 9901593 was only issued in June 1999 therefore I became listed as a registered migration agent only on June 15 of this year whereas Mr Lazarev submitted together with his complaint a signed contract dated 16 April 1997 with a Ukrainian company that I was never employed with.

It would appear in the evidence before us that the applicant who was then residing in the Ukraine formed together with her husband and two other persons a company which has been referred to before and which or the name Evkalipt and part of the company's business was assistance in migration affairs although its chief purpose was according to evidence the applicant gave today in arranging in country tourists to the Ukraine particularly persons whose families had left the Ukraine in earlier years.

Again from the applicant's statement which became exhibit A3 of her evidence today as we understand it the applicant was at that time working for the Canadian Embassy and the business of Evkalipt was conducted by her husband.  She at times it seems did work for the business of the company but we accept her evidence that she did not receive any direct remuneration for that work.  She also said in cross-examination today that she had never been paid any dividend by the company.  Her husband did draw a salary from the company but she herself as stated never received any moneys from the company.

However, after the letter by the applicant of 8 September 1999 there was also forwarded by her to the respondent a letter dated 2 November 1999 which said inter alia:

I don't understand why Mr Lazarev has complained against me as I did not sign any contract with him nor personally receive any fee or other reward from Mr Lazarev or with the company with whom he signed a contract dated April 1997.

A statutory declaration declared by the applicant reads:

I have not provided Australian immigration assistance for which I have received any fee or other reward overseas or in Australia prior to my registration as a migration agent in June of 1999.

We'd simply pause to say as has been recognised by the respondent that even if the applicant had done so there would not be any breach of Australian law for those actions which took place in the Ukraine.

The applicant was then interviewed by an investigating officer from the respondent and as we read that record of the interview it would seem to be that she was quite full and frank with that investigating officer.  Part of the difficulty in this matter seems to be an inability by the respondent to appreciate the well known decision of the House of Lords in Salomon v A. Salomon and Company Limited (1897) Appeal Cases 22.  As was pointed out by Lord Hallsbury, Lord Chancellor in that case, page 31, where he said:

I can only find the true intent and meaning of the Act from the Act itself...

Referring of course to the Companies Act.

...and the Act appears to me to give a company a legal existence with as I have said rights and liabilities of its own whatever may have been the ideas or schemes of those who brought it into existence.

In other words a contract signed with Evkalipt is not a contract or arrangement with the applicant.

The respondent, as set out in its statement of facts and contentions, based its decision upon a so called lack of candour by the applicant in her answers to its queries and then reported to act pursuant to subsection 1 of section 290 of the Migration Act 1958 which reads inter alia:

An applicant must not be registered if the Migration Agents Registration Authority is satisfied that (a) the applicant is not a fit and proper person to give immigration assistance.

Subsection 2 then sets out various examples as to whether a person can be regarded as a fit and proper person with a final catch all provision in paragraph H of any other matter relevant to the applicant's fitness to give immigration assistance.  That general article it seems to us must be read ejusdem generis with the other examples given in the subsection which refers to persons having convictions, disciplinary action by a professional association or bankruptcy.  However, the complaint of the respondent is that the applicant has shown a lack of candour.

In paragraph 18 it sets out the particulars of that lack of candour, namely, that in the 7 September 1999 letter she stated she was not employed by Evkalipt, which is true of course, however it adds:

However, she did work for that company even if not as an employee and was a part owner of it.

In the circumstances it was misleading to respond in the terms which the applicant did.  We have already referred to the case of Salomon v Salomon and in the letter of 7 September 1999 there is no misstatement of the law.

The second ground particularised by the respondent is:

The statutory declaration is to the effect that the applicant did not render any immigration advice for which she received any fee or reward.  If the applicant did in fact receive any fee or reward for the services to Mr Lazarev which she denies in her statement then this statement was false.  In any event the applicant appears to rely upon a distinction between her personal receipt of the fee and receipt by the company for whom she performed work and in which she was a part owner to avoid disclosing to the respondent the true situation and it can be inferred she would have appreciated MARA would infer from her statements that she was not providing assistance for remuneration to a company in which she had a material interest.

And ground C:

The applicant's letter of 22 November 1999 appears to rely on a similar distinction which in the circumstances was misleading.

So far as a lack of candour is concerned we note that the word is defined in the Shorter Oxford English Dictionary, meaning three, as a freedom from bias, impartiality or fairness.  Meaning five gives frankness, openness, ingenuousness, outspokenness.

What constitutes a person who is a fit and proper person as being discussed in cases relating to tax agents, auditors and on other occasions by the Tribunal in relation to migration agents, see for example Zuliang Wei v Migration Agents Registration Board unreported Tribunal decision 12431. As was said in that case the test has to be having regard to the seriousness of the matters raised on principles of Briginshaw v Briginshaw 60 CLR 336 and reference was also made to the words of Hill J in Davies v Australian Securities Commission and Another 131 ALR 295 at page 305 where his Honour said:

The phrase "fit and proper person" is a familiar one in the context of qualifications for officers or vocations.  Discussing the phrase in the context of licences to use vehicles for the purposes of interstate trade Dixon CJ, Matheunan and Webb JJ said in Hughes and Vale Pty Ltd v New South Wales No 2 (1955) 93 CLR 127 at 156-7 "but their very purpose is to give the widest scope for judgment and indeed for rejection fit or idoneus with respect to an office is said to involve three things, honesty, knowledge and ability.  Honesty to execute it truly without malice, affection or partiality, knowledge to know what he ought duly to do and ability as well in estate as in body that he may intend and execute his office when need is diligently and not for impotency or poverty neglected".  Cook.

When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.

Hill J then continued:

As I observed in Statos v Tax Agents Board of New South Wales 90 Australian Tax Cases 4950 at 4959 the content of what is necessary to constitute a person, a fit and proper person to occupy a particular office or pursue a particular vocation will vary having regard to the office or vocation under consideration.  Thus the characteristics required to show fitness as a tax agent were expressed by Davies J in re Sue v Tax Agents Board South Australia 82 Australian Tax Cases 4284 at 4286 as requiring that person to be a person of good reputation, has a proper knowledge of taxation laws, is able to prepare income tax returns competently and is able to deal competently with any queries which may be raised by officers of the taxation department.

He should be a person of such competence and integrity that others may entrust their taxation affairs to his care.  He should be a person of such reputation and ability that officers of the taxation department may proceed upon the footing that the taxation returns lodged by the agent have been prepared by him honestly and competently.

In this matter there is no allegation that the applicant has in any way been fraudulent and misled clients.  What has been referred to is a simple lack of candour and we accept that a person can mislead by a failure to mention but we must assess whether the applicant was attempting to mislead as opposed to simply answering by giving the minimum amount of information required.  There is nothing in the applicant's answers provided which was untrue so the question for us is, does the information supplied demonstrate a lack of candour having regard to the dictionary meaning of the term and is that lack of candour sufficient to designate the applicant not a fit and proper person?

As was stated by Deputy President McMahon in Peng v Department of Immigration and Multicultural Affairs unreported decision the administration of immigration programs frankness and truth are of primary importance.  Where the deputy president speaks of frankness and truth it can be regarded with the opposite which is as we see it deceit.  In this matter the applicant on the test we have propounded by giving the answers she did has not demonstrated a lack of candour such as to render her not a fit and proper person to practice as a migration agent, and therefore, the decision under review will be set aside.

The only matter we would say is it is an unfortunate matter here where a person's business has been ruined by a decision which to us was made on very flimsy bases and it is unfortunate that this is a jurisdiction in which we cannot award costs.

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