N2000/733 and Migration Agents Registration Authority - [2000] AATA 427

DECISION AND REASONS FOR DECISION [2000] AATA 427

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/733

GENERAL ADMINISTRATIVE DIVISION       )
           Re      APPLICANT N2000/733
  Applicant
           And    MIGRATION AGENTS REGISTRATION AUTHORITY
  Respondent

INTERLOCUTORY DECISION

Tribunal Deputy President A M Blow OAM, QC.,

Date15 May 2000
PlaceSydney

Decision The Tribunal orders as follows: 1. THAT the operation and implementation of the decision under review be stayed until the determination of the application for review or further order. 2. THAT so long as the decision under review remains stayed, the applicant is to provide each new client of his with either a copy of the Migration Agents' Code of Conduct or a letter offering to give that client a copy of that Code, and is to keep records of the copies of the Code and letters given or sent to clients accordingly.

[Sgd A M Blow]
Deputy President
CATCHWORDS
Migration – migration agents – cancellation of registration – stay pending review by AAT.
Administrative Appeals Tribunal Act 1975 – s.41(2)
Migration Act 1958 – s.303(a)
Re Dekanic and Tax Agents' Board of New South Wales (1982) 6 ALD 240
Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487
Pemberton v Attorney-General [1978] Tas SR 1
Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591
FAI Insurances v Registrar of Workers Compensation Commission of New South Wales [1982] 1 NSWLR 239

REASONS FOR INTERLOCUTORY DECISION

30 May 2000 Deputy President A M Blow OAM, QC.,

The applicant is a migration agent. On 2 May 2000 the respondent made a decision to cancel his registration as a migrant agent by removing his name from the Register of Migration Agents pursuant to s.303(a) of the Migration Act 1958 ("the Act"). On 12 May 2000 the applicant received notice of that decision, applied to this Tribunal for it to be reviewed pursuant to s.306 of the Act, and applied for its operation and implementation to be stayed pursuant to s.41(2) of the Administrative Appeals Tribunal Act 1975. On 15 May 2000 I made orders pursuant to that sub-section stating that I would publish written reasons for those orders. My orders were as follows:
1.THAT the operation and implementation of the decision under review be stayed until the determination of the application for review or further order.
2.THAT so long as the decision under review remains stayed, the applicant is to provide each new client of his with either a copy of the Migration Agents' Code of Conduct or a letter offering to give that client a copy of that Code, and is to keep records of the copies of the Code and letters given or sent to clients accordingly.
These are my reasons for making those orders.
The respondent decided to cancel the applicant's registration as a result of findings it made concerning two complaints. The first complaint that it considered was one by a Ms Duggua. The applicant had been engaged to prepare an application for a spouse visa for her on the basis of her de facto relationship with a Mr. Sampson. She made a complaint to the respondent, seeking a refund of $1,020, which the respondent had no power to order. Essentially she complained of inefficiency and inaction, and the quality of the applicant's work. Migration agents are required to conduct themselves in accordance with a code of conduct that is prescribed by the Migration Regulations. The respondent made findings that the applicant had breached various provisions in that Code of Conduct. Significantly, it found that, in completing a form for Ms Duggua's application for a spouse visa, the applicant had so inadequately presented her case for being granted a spouse visa on the basis of a de facto relationship that her application could have been refused. The respondent also made findings as to various technical breaches of the Code of Conduct, for example, in relation to a requirement for the keeping of file notes. On the basis of its primary findings, the respondent concluded that the applicant was "not a person of integrity or [sic] he is otherwise not a fit and proper person to give immigration assistance".
In making its findings, the respondent made findings as to the credibility of MsDuggua, some individuals who supported her version of events, the applicant and his wife. It did so on the basis of documents that it had before it, without conducting any form of oral hearing. The Act makes no provision for the calling of witnesses before the respondent. Under s.309 of the Act, if it is considering the cancellation of an agent's registration, it must inform or her him of that fact and the reasons for it, and invite him or her to make a submission on the matter, either in the form of a statutory declaration or in the form of a written argument. Upon receiving such a submission, it has a discretion either to decide the matter or to give the agent an opportunity to appear before it and then decide the matter. It chose the former course upon receiving a submission from the applicant.
The second matter in respect of which the respondent decided to cancel the applicant's registration concerned a visa application for a Mr. Milacic. It appears that the applicant was engaged by a Mr. Drapac to prepare that application. Mr. Drapac may have been a representative of an organisation called Croatian Radio. It is not clear from the material made available to me who, if anyone, made a complaint against the applicant. Mr. Drapac became a dissatisfied client and went elsewhere. The respondent made findings that the applicant had breached various provisions of the Code of Conduct by failing to obtain written acceptance by his client of the terms of the work to be done, failing to give his client written confirmation of the terms of the service to be rendered, failing to keep file notes of every substantive or material oral communication between his client and himself, inadequately recording the purpose of a deposit of $500 paid to him, terminating his contract with his client (because fees had not been paid) without giving reasonable written notice to his client of his intention to do so, failing to do his work in a timely manner, failing to warn either Mr. Drapac or Mr. Milacic in advance of any consequences of Mr. Milacic's current visa expiring and him becoming an unlawful non-citizen, and not notifying his client of a change of address. On the basis of those primary findings, it found that he had not taken all reasonable steps to maintain the reputation and integrity of the migration industry, and again found "that the Agent is not a person of integrity or [sic] the Agent is otherwise not a fit and proper person to give immigration assistance."
In relation to this second matter, the respondent did not conduct any form of oral hearing. In making the significant finding that the applicant had not undertaken his work in a timely manner, it made a finding that he was not credible.
The respondent has established a Conduct Advisory Panel for the purposes of investigating complaints against migration agents and providing it with advice in relation to those complaints. A Mr. Robinson, who acted as chairperson of the panel for the purpose of investigating the two complaints against the applicant, gave evidence by telephone during the hearing of the stay application. It is the practice of the panel to interview complainants and witnesses and to prepare statements which they are invited to sign. When a witness voluntarily provides a written statement that is not prepared by the panel or one of its members, no one from the panel will interview that witness unless that statement is considered in some way to be unclear or incomplete. Mr. Robinson interviewed Ms Duggua and at least two individuals who supported her complaint, but no-one interviewed the applicant's wife, who submitted a written statement in relation to that matter.
In Re Dekanic and Tax Agents' Board of New South Wales (1982) 6 ALD 240, which involved an application under s.41 of the AAT Act for a stay of a decision cancelling a man's registration as a tax agent, Davies J took into account in the applicant's favour the fact that the Board that made the decision under review had not afforded the applicant natural justice. I think that case is authority for the proposition that, on the hearing of a stay application, any failure to afford the applicant natural justice or procedural fairness on the part of the maker of the decision under review ought to be taken into account in favour of the applicant. In order to determine what significance, if any, that principle has in this case, it is necessary to consider the structure of the relevant provisions in the Act.
When it conferred disciplinary powers in relation to migration agents on the respondent, Parliament did not give it the power to summon witnesses or administer oaths or affirmations. It did not expressly empower it to conduct oral hearings. By s.309 of the Act, it established a procedure whereby agents were to be afforded an opportunity to make written representations, either in the form of statutory declarations or in the form of written argument. Under s.306 of the Act, a migration agent can apply to this Tribunal for the review of a decision by the respondent. This Tribunal, unlike the respondent, has all the powers it needs to conduct full oral hearings, compelling the attendance of witnesses and taking evidence on oath or affirmation.
The exercise of the respondent's disciplinary powers can have a very serious effect on the business, income and reputation of a migration agent. Prima facie when legislation confers on an authority powers whose exercise can affect the rights of individuals, that authority is obliged, whenever it is considering exercising such powers, to afford the individual concerned natural justice or, as it is more precisely described, procedural fairness. However the prima facie duty to afford procedural fairness can be excluded or modified by the legislation that confers the power, either expressly or by implication. There is nothing in the Act that expressly modifies the duty of the respondent to afford migration agents procedural fairness, but I think it is arguable that the Act impliedly modifies the general rules as to procedural fairness to the extent of not requiring the respondent ever to conduct full oral hearings.
There are some situations in which a decision-making authority cannot afford an individual procedural fairness or natural justice otherwise than by conducting a full oral hearing: Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 per Aickin J (with whose reasons Stephen and Mason JJ agreed) at 516; Pemberton v Attorney-General [1978] Tas SR 1; Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591. In particular, when a statutory authority is presented with conflicting documentary evidence and needs to assess the credibility of individuals in order to make findings of fact, procedural fairness will usually require an oral hearing at which those individuals give evidence and can be cross-examined. By making unfavourable findings as to the applicant's credibility in relation to both the complaints against him without first giving him the benefit of a full oral hearing, the respondent was not conducting itself in accordance with the ordinary rules of natural justice or procedural fairness.
It may be, as I have suggested, that those rules were impliedly modified by the Act to the extent of not requiring the respondent to conduct full oral hearings. If so, in a case that depends on the assessment of the credibility of witnesses, I would not regard the decision-making process as complete until this Tribunal reviews the respondent's decision, or until the time for applying to this Tribunal expires without an application having been made.
I do not think I need to decide whether the Act impliedly modifies the prima facie duty to abide by the rules of natural justice or procedural fairness. What is significant is that the respondent made the decision under review upon the basis of findings as to the credibility of individuals without giving the applicant the benefit of an oral hearing. The correctness of the respondent's findings, and the appropriateness of its decision, must therefore be regarded as doubtful. Those matters should be taken into account in the applicant's favour, just as a denial of natural justice by a decision-maker bound by the rules of natural justice should be taken into account. When a migration agent has been disbelieved without the benefit of an oral hearing, I do not think it would ordinarily be appropriate to refuse a stay order unless there is very strong evidence of very serious misconduct on the part of the agent. This is not such a case.
Mr. Ambikapathy, who represented the respondent, urged me to take into account a number of other complaints that have been made against the applicant, none of which has yet been the subject of any final decision or fact-finding on the part of the respondent. None of these were taken into account by the respondent in making the decision under review. I am not in a position to make any findings of fact in relation to any of those complaints. It would not be appropriate to do so in the context of a stay application. I do not regard any of the allegations that have been made in those complaints as so serious that the mere making of the allegation should be taken into account in considering whether the Tribunal should exercise its discretion to grant a stay order. Such a course would only be appropriate in extreme and unusual circumstances, in my view. One would need an extremely serious allegation, and extremely strong evidence of its correctness. Those elements are not present in this case.
Mr. Ambikapathy has submitted that it would contrary to the public interest for me to stay the operation of the order cancelling the applicant's registration. It is true that it is in the public interest to ensure that migration agents are honest and efficient, and that their work is of a high quality. It is very important, for example, for visa applicants not to be prejudiced by delays, ignorance, or sloppy work on the part of their migration agents. It is also important for the Commonwealth government to be able to rely on the integrity of migration agents, and for the public to have a high level of confidence in their integrity. But in considering whether to exercise the Tribunal's discretionary power to grant a stay, I must balance these public interest considerations against considerations personal to the applicant and his clients. His current clients would be prejudiced if he were unable to practise pending the review of the respondent's decision. It is clear that he derives a significant income from his work as a migration agent. No compensation will be available to him if he is prevented from carrying on his practice pending a hearing before this Tribunal but is ultimately successful. The possibility of similar irreparable harm was treated as a significant factor weighing in favour of a stay in FAI Insurances Ltd v Registrar of Workers Compensation Commission of New South Wales [1982] 1 NSWLR 239.
Also, as Davies J pointed out in Dekanic at 242, granting a stay may remove pressure from the parties and the Tribunal to hurry towards a decision. The decision is likely to be of higher quality if the parties and the Tribunal are not rushed.
Having regard to the considerations favourable to the applicant, I do not think that the adverse findings of the respondent are so serious, or the evidence supporting them so compelling, that a stay should be refused. I think the more just course is to permit the applicant to continue to practise while these proceedings are pending. It is desirable that these proceedings be disposed of as soon as reasonably possible, without rushing them. The respondent apparently fears that the applicant will seek to delay the proceedings. My stay order will operate until the determination of the proceedings or further order. If the respondent wishes to contend at any time in the future that the applicant is unreasonably delaying the proceedings, it can apply for a further order discharging my stay order.
Mr. Ambikapathy submitted that any stay order should be conditional upon the applicant being required to give every client a copy of the Code of Conduct and requiring each client to acknowledge the receipt thereof in writing, and also conditional upon the applicant advising every client to seek a second quote from another migration agent and advise in writing that he or she has done so, or been asked to do so.   I do not think it is appropriate to make any order as to second quotes, since no allegation of overcharging has been made against the applicant. I do not think it is appropriate for him to be required to send out Codes of Conduct, since I expect most of his clients will either not be interested or not be able to read English.   However I do think it is appropriate that he be required to give each of his new clients either a copy of the Code of Conduct or a letter offering such a copy, hence the second of the orders that I have made.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President A M Blow OAM, QC.,
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  15 May 2000
Date of Reasons  30 May 2000
Counsel for the Applicant  Applicant appeared in person.
Representative for the Respondent        Mr J Ambikapathy