Narayanan and Migration Agents' Registration Authority
[2006] AATA 353
•30 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 353
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/331
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTOPHER GERALD NARAYANAN Applicant
And
MIGRATION AGENTS' REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Mr S Penglis, Senior Member Date30 March 2006
PlacePerth
Decision 1. The reviewable decision of the respondent made on 23 August 2004 is set aside.
2. In lieu thereof the applicant is barred pursuant to s 311A of the Migration Act 1958 (Cth) from being a registered migration agent for a period of 2 years and 3 months, commencing on 23 August 2004 and concluding on 22 November 2006.
..... ...(sgd S Penglis)............
Senior Member
CATCHWORDS
Immigration & Citizenship – breach of Code of Conduct by migration agent – applicant failed to, amongst other things, ensure a written agreement existed between himself and his client and that the written agreement made reference to the Code of Conduct – applicant charged for services said to be “free” and sought payment from client before providing the client a statement of services – barring order considered appropriate – period reduced from 5 years to 2 years 3 months.
Immigration & Citizenship – meaning of “immigration assistance”.
Practice & Procedure - power of Tribunal to consider evidence and potential breaches of Code not considered by respondent but arising out of complaints determined by respondent – Tribunal has power to consider such matters
LEGISLATION
Administrative Appeal Tribunal Act, 1975 (Cth), ss 41(7) and 43 (1)
Migration Act, 1958 (Cth), ss 5(1), 276, 311A, 311B,311D and 313(1)
Code of Conduct, cl 2.1(b), 2.8(a), 2.21, 3.2, 5.1, 5.5(a), 6.1, 7.2, 10 and 11.3
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Re Bryan Lawler Automotives Pty Ltd v Collector of Customs (NSW) (1978) 1 ALD 167
Rozsy v Migration Agents Registration Authority (W2003/188)
Griffiths v Migration Agents Registration Authority [2001] AATA 240
Hannah v Migration Agents Registration Authority [2000] AATA 821
Hartnett v Migration Agents Registration Authority [2004] FCAFC 269
Donald and Australian securities and Investments Commission [2001] AATA 66
Rich v Australian Securities and Investments Commission [2004] HCA 42
Andrew William Donald and the Australian Securities & Investments Commission (2001) AATA 8366, (2001) AATA 622 and (2003) FCAFC 318
Wang and Migration Agents Registration Authority [2005] AATA 628
Kari and Migration Agents Registration Authority [2006] AATA 42
REASONS FOR DECISION
30 March 2006 Mr S Penglis, Senior Member INTRODUCTION
3. By decision dated 23 August 2004, the respondent, purportedly acting pursuant to s 311B of the Migration Act 1958 (“the Act”), determined to bar the applicant from being a registered agent for a period of 5 years on the stated basis that the respondent “was satisfied pursuant to s 311A(1) of the Act that the (applicant) had not complied with the Code of Conduct prescribed under s 314(1) of the Act as enforced from time to time and that the (applicant) is not a person of integrity or otherwise not a fit and proper person to give immigration assistance”.
4.That is the decision which the applicant now seeks this Tribunal to review.
The Complaints
5. The matters considered by the respondent, and now considered by the Tribunal, arise from 3 separate complaints.
6. The first complaint (in time) was from a former client of the applicant, Mr Don Ajith (who prefers to be referred to as Mr Don). In a letter dated 22 November 2001 to the respondent, Mr Don’s complaints were as follows:
· despite terminating his contract with the applicant, the applicant remained in possession of and refused to return to Mr Don various original documents;
· Mr Don did not receive from the applicant any receipt for monies paid to him;
· the amount charged by the applicant exceeded the amount the applicant told Mr Don to be “the most (he) was likely to pay”.
· the applicant had not sent to the Australian High Commission in Sri Lanka various documents which Mr Don had provided to the applicant;
· the applicant had failed to inform Mr Don that the applicant’s brother (for whom Mr Don had engaged the applicant’s services) was not eligible to sit a test which the applicant advised to be taken;
· despite requests, the applicant did not provide to Mr Don a copy of the written contract between them;
· the written contract does not contain a statement about the existence of the Code of Conduct or guarantee that clients can obtain a copy of the Code, on request, from the applicant, both of which are required by the Code of Conduct.
7. The second complaint (in time) was from another former client of the applicant, Mr Paul Osbon. Mr Osbon’s letter of complaint, dated 6 October 2002, is reproduced in full:
“On 3rd February I completed an initial assessment form from AICLA’s website (www. Australian immigration.com.au). I had a reply on 6th February inviting me to call Mr Chris Narayanan from AICLA for a short discussion regarding my immigration plan.
After this initial discussion (sic) Mr Narayanan, he decided he would be able to help me with my immigration application. He said I would need to send him $600 US dollars to an account in Singapore, it was never explained to me why I was paying in US dollars to an account in Singapore. I paid this amount on 2nd March and was told that this was for one of his specialists to do a more thorough assessment, I also sent him a copy of my CV.
I then had to wait until 11th May to telephone Mr Narayanan to discuss the results of the assessment. I was advised that I would have to pay another $1665.27 US dollars to the same account in Singapore before he could proceed with my case. He also said that I would have to travel to Australia in order to have a practical assessment for a stonemason, as that is what I do in the UK. He advised me that it would be cheaper for me to travel over to Australia than be assessed in the UK, something which I later disagreed with. Having actually done it and bearing the cost myself was a lot.
I received an email from Mr Narayanan on 14 May outlining our discussions on 11 May. In this email he did say that he would be sending me a set of papers including a written contract detailing what we agreed in our discussions (this was never received by myself). It was at that time that he increased his initial fees from what he had earlier quoted me from $1750 to $2250 and $3500 to $45000 US dollars. He also advised at this time that I had to pay fees for the examiner of $1200 AUD for the assessment in Australia and $450 for the issue of the certificate.
Once I had arranged a suitable date to fly, the assessment was arranged for 26 July and I book (sic) a flight and accommodation. I also had to bring with me $1650 AUD for the assessment fees and issue of a certificate. On my arrival in Perth I telephone Mr Narayanan, it was at this point that he asked for the remainder of the balance that I was quoted. This was another $2235.00 US dollars. I said that I was not prepared to pay that until after I had completed the assessment, as I had no formal contract or statement of account. I then paid Mr Narayanan the $1650.00 AUD for the practical assessment and issue of certificate. I assumed he would pass this on the assessors. I then went ahead with assessment, which I passed.
About a week after this I received another email from AICLA asking for two certified true copies of my passport and one true certified copy of my visitors visa (ETA visa) both of which were sent to AICLA within the week. It was at this time also that I began to question some of Mr Narayanan's fees, as I had been talking with a friend of mine who was going through a similar process as myself to obtain his permanent residency. However he had been charge (sic) considerably less than myself and had not had to travel to Australia to do his assessment. It was at this point that I made it clear to Mr Narayanan that I was not happy with his service and requested a statement of account for (sic) find out what my money had been spent on so far (I have STILL not had this). I continued to try to find out how things were going with my case and tried contacting Mr Narayanan by email around the end of August but with no luck. It was then that I contacted the assessor John Nye from AMSAS to find out how things were going. It was at this point Mr Nye said that he was still waiting for the funds, which were paid by myself on 26 July ($1650) and the certified copies of passport and ETA visa, both were sent early in August. I was now getting extremely annoyed and upset.
It seems to me that Mr Narayanan had both my funds and the relevant certified copies of documents yet he told AMSAS that I had not provided him with them. It was at this point that I received a copy of a letter to AICLA from AMSAS stating that they were withdrawing there services to AICLA. It is since then that I have decided that I no longer wish to proceed with AICLA and have asked for all monies to be returned to me on several occasions in accordance with the AMRA Code of Conduct.
I have managed to get back the fee of $1650 AUD for the assessment. But the remainder that I paid of £1582.16 STERLING which I paid in US dollars $2265.27 has not been returned. Mr Narayanan has said on many occasions that he will send me a detailed account of what has been paid but as yet I have nothing and am the end of the line. He has also said that if I write to complain against him he will inform the Dept of immigration and the UK police authorities (and the Australian federal police) because I threatened to complain against him which I did not. Please can you help me as I am at the end of my tether and feel I am been treated wholly inappropriately.”
8. The third complaint (in time) was made by Lyn Reitano, an officer of the Department of Immigration and Multicultural Affairs. Ms Reitano’s complaint was that,
“…Mr Narayanan states that the applicant is lodging a “COMPLETE (his capitals) application”. However, when the application was lodged, the Student was not aware that he needed to provide evidence of his funds or IELTS results. The Student subsequently lodged evidence of his funds. He was advised about the IELTS requirement but he though that the ELICOS results would be sufficient. On Sunday 23/6/02, we advised that (sic) the Student that he needed to provide IELTS test results as there was no evidence that he had obtained an IELTS score either before (sic) after sitting the ELICOS course. On Monday 24/6/02, I confirmed with you that this request for IELTS is the correct approach.
Mr Narayanan called this office today and spoke to the Student processing officer, Gavin Willett. Mr Willett has told me that Mr Narayanan stated that he was not aware that students from Bangladesh were required to present IELTS results with their Student Visa applications. He further requested that Mr Willett send him the information about this!
The student himself seems to have been quite accepting of the fact that he will probably have to defer his course as the next IELTS exam in Dhaka is not until mid-July. IELTS exams are fairly heavily booked here. He had already purchased an airline ticket to travel on 23 June to commence his course on 24 June 2002. He does appear to be a genuine student.
You may wish to refer this matter to the Migration Agents Section, given that the student appears to have been given incorrect advice and unrealistic expectations by the agent (ie regarding his “COMPLETE” application). Of further concern is the agent’s request that we send him the information regarding the IELTS requirement, when this information is readily accessible in the Migration Regulations.” (sic)
Respondent’s Decision
9. The respondent barred the applicant from being a registered agent for a period of 5 years on the basis that it was satisfied that:
· with respect to the Don complaint, the applicant had breached Clauses 10.2, 10.4 and 10.5 of the Code of Conduct;
· with respect to the Osbon complaint, the applicant had breached Clauses 2.1, 2.23 and 6.3 of the Code of Conduct as at 1 March 2003, and Clauses 7.2 and 11.3 of the Code of Conduct as at 1 July 2002;
· with respect to the Reitano complaint, the applicant had breached Clause 2.3 of the Code of Conduct as at 1 July 2002.
10. In the course of its reasons for decision, the respondent also made findings, adverse to the applicant, with respect to the applicant “seeking to mislead the Authority” in certain respects, which conduct the respondent held
“would be reasonably regarded as disgraceful or dishonourable by Migration Agents of good repute and competency … Accordingly, the Authority is satisfied that the (applicant) is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance, as he sought to mislead the Authority”.
11.The respondent concluded by stating:
“Section 314(2) of the Act states that a registered agent must conduct himself in accordance with the prescribed Code of Conduct. The Authority, pursuant to section 311(A) of the Act decided to bar the agent from being a registered agent for a period of 5 years as it was satisfied that the agent had not complied with the Code of Conduct prescribed under section 314 of the Act as enforced from time to time and that the agent is not a person of integrity or otherwise not a fit and proper person to give immigration assistance”.
12. It was common cause before the Tribunal that the respondent erred insofar as in considering the exercise of its power under s 311A of the Act, it took into account the applicant’s conduct which the respondent said was done for the purpose of “seeking to mislead the Authority”. The respondent considered such conduct “would be reasonably regarded as disgraceful or dishonourable by migration agents of good repute and competency”, therefore leading the respondent to conclude that the applicant “is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance”.
13.The short reason for this is that s 311A of the Act provides as follows:
“(1)The Migration Agents’ Registration Authority may decide to bar a former registered migration agent from being a registered migration agent for a period if, after investigating a complaint about him or her in relation to his or her provision of immigration assistance which he or she was a registered migration agent, it is satisfied that the subject matter of the complaint is made out.
(2)The period must not be more than 5 years starting on the day of the authority’s decision.”
14. The power given to the respondent arises only if a complaint is made about a former registered migration agent, the complaint is in relation to the provision of immigration assistance, the complaint is investigated and the respondent is satisfied that the subject matter of the complaint is made out.
15. It is therefore clear that s311A is limited to satisfaction with respect to the subject matter of a complaint. It does not extend to conduct outside that scope, even if it relates to the former registered migration agents dealings with the respondent with respect to the investigation of a complaint.
16. Accordingly, insofar as the respondent made findings with respect to the applicant outside “the subject matter of the complaint”, as it clearly did, its decision was beyond power.
17. It was therefore common cause before the Tribunal that the matters which the respondent considered with respect to the applicants dealings with the respondent during the course of the respondents investigation of complaints were not matters which the respondent (and therefore the Tribunal) could properly consider. Accordingly, the Tribunal does not do so.
Briginshaw v Briginshaw
18. In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362, Dixon J (as his Honour then was) said,
“The truth is that when the law requires the proof of any fact the Tribunal must feel an actual persuasion of its occurrence or its existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of fact exists may be held according to indefinite graduations of certainty: and this has led to what tends to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. The reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, of the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony or indirect inferences.”
19. There is no doubt that a decision to bar a former registered migration agent pursuant to s311A has grave and serious consequences for the person the subject of the decision.
20. The Tribunal therefore embarks upon its consideration of this matter with the words of Dixon J well in mind.
Preliminary Issue
21. Certain of the alleged breaches of the Code of Conduct contended for by the respondent before the Tribunal were not breaches found by the respondent itself. Mr Lindsay, Counsel for the applicant, submitted that, in those circumstances, it was not open for the Tribunal to entertain such matters.
22. The starting point is s43 (1) of the Administrative Appeals Tribunal Act. As stated in Re Bryan Lawler Automotives Pty Ltd v Collector of Customs (NSW) (1978) 1 ALD 167 at 175, “the Tribunal is not a primary administrator. It is not the original repository of power or discretions under an enactment”.
23. Counsel for the applicant also relied on section 311D(1) of the Migration Act, which is in the following terms:
“Before making a decision under subsection 311A (1), the Migration Agents Registration Authority must give the former registered migration agent a written notice (a) stating that the authority proposes to make such a decision and the reasons for it; (b) inviting him or her to make a written submission to the Authority on the matter within 28 days after the notice is given”.
24. Counsel for the applicant submitted that the respondent could not make a decision based on reasons other than those contained in a written notice pursuant to section 311D, and that therefore the Tribunal could not do so either.
25. The Tribunal finds that section 311D(1) of the Migration Act is a procedural provision to ensure that procedural fairness is accorded to a former registered migration agent in respect of whom a barring order may be made by the respondent pursuant to subsection 311A(1) of the Act. It is not a section that has any application to a hearing before this Tribunal (other than where a ground of review is that the respondent made findings not contained in such a written notice). In particular, it does not limit the reasons which this Tribunal may reach in making a decision on the matter before it.
26. Rather, the limitation upon what matters the respondent, and now the Tribunal, can take into account is apparent from section 311A itself. That limitation is that a barring order can only be made in circumstances where:
· a complaint is received with respect to a former registered migration agent.
· the complaint is in respect to his or her provision of immigration assistance while he or she was a registered migration agent.
· the complaint is investigated.
· by reason of the investigation there is satisfaction “that the subject matter of the complaint is made out”.
27. Accordingly, when reviewing the respondent’s decision to bar the applicant, the Tribunal finds that the only limitation upon the Tribunal is that it may not take into account anything beyond “the subject matter” of a complaint (of a nature referred to in section 311A of the Act).
28. This conclusion is consistent with previous decisions of this Tribunal; Rozsy v Migration Agents Registration Authority (W2003/188); Griffiths v MigrationAgents Registration Authority [2001] AATA 240.
29. In this regard the Tribunal’s attention was also drawn to the decision of Senior Member Ettinger in Hannah v Migration Agents Registration Authority [2000] AATA 821. In that matter, the Tribunal refused to consider “two further complaints which had been before MARA, when the finding had actually been made.” The Tribunal reviewed the relevant authorities and accepted it had power to receive additional evidence in regard to the complaints which had been heard and determined by the respondent. The Tribunal concluded, however, that;
“this was not simply a case of additional evidence that had arisen in regard to the existing complaints which had been dealt with by MARA, and which I was reviewing. These were new complaints which had not been determined with by MARA. They may be dealt with by MARA if Mr Hannah applies for re-registration in the future. It may then be the basis of another appeal to the Tribunal if appropriate.”
30. This decision is entirely consistent with the conclusion I have reached, namely that the limiting criteria is the “subject matter” of complaints which were investigated and considered by the respondent.
31. The Tribunal therefore concludes that it is open to it to consider any evidence or breaches of the Code of Conduct it considers appropriate, so long as the same form part of the “subject matter” of the three complaints made to the respondent concerning the applicant (as set out earlier in these Reasons).
The Osbon Complaint
32. The threshold issue raised by the applicant is whether or not any part of Mr Osbon’s complaint was in relation to the “provision of immigration assistance” by the applicant to Mr Osbon within the meaning of section 311A of the Act. In short, the applicant’s contention was that, as no visa application had been made, there was no “provision of immigration assistance”.
33. In this regard Counsel for the applicant referred to and relied upon the following passage from the reasons for decision of the Full Court of the Federal Court of Australia in Hartnett v Migration Agents Registration Authority [2004] FCAFC 269 (at paragraph 56);
“As we have pointed out above, the Act provides that only a migration agent may give immigration assistance. It says nothing, as far as we can see, about any other work that may be undertaken by a migration agent in connection with the Act. The term “immigration assistance” has quite limited meaning to which we have previously referred, involving specific applications (whether for reviews of visas or reviews of cancellation decisions). Any conduct falling within that definition could reasonably be classified for the purposes of cl 2.9 as being in support of an application under the Act or Regulations. It is at least arguable (including cl 2.9) regulates only those activities expressly or necessarily entrusted to migration agents by the Act, namely conduct in connection with the applications identified in subsections 276(1) and (2)”.
34.Section 276 of the Migration Act provides as follows:
“(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.
(2A)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 request to the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J in respect of a decision (whether or not the decision relates to the other person); or
(b) advising the other person about making such a request.
(3)Despite subsections (1), (2) and (2A), a person does not give immigration assistance if he or she merely;
(a) does clerical work to prepare (or help prepare) an application or other document; or
(b) provides translation or interpretation services to help prepare an application or other document; or
(c) advises another person that the other person must apply for a visa; or
(d) passes on to person information produced by a third person, without giving substantial comment on or explanation of the information.
(4)A person also does not give immigration assistance in the circumstances prescribed by the regulations”.
35.In Hartnett’s case, the Full Federal Court held that the net effect of s 276 was that “the term “immigration assistance” includes only
· acting or assisting in a visa application
· acting or assisting in a cancellation review or application;
· acting or assisting in nominating or sponsoring a visa applicant.
36.The term “visa applicant” is defined in section 5(1) of the Act as follows:
“In this Act, unless the contrary intention appears… visa applicant means an applicant for a visa and, in relation to a visa, means the applicant for the visa”.
37. One need go no further than section 276(1) of the Act itself to conclude that the applicants submission that the expression “visa applicant” means a person who has actually made an application under the Act for a visa (as opposed to a person who has resolved to apply for a visa) cannot be accepted. This is because section 276(1) contemplates that the assistance given to a “visa applicant” includes “preparing, or helping to prepare, the visa application”.
38. In the same way, there is no warrant to justify giving the term “visa application” a narrow meaning and thereby limiting it to an application that has been filed. If assistance is given to a person who has resolved to apply for a visa with respect to the preparation of the application, that constitutes “immigration assistance” with the meaning of section 276, irrespective of whether or not the application is ultimately lodged.
39. Indeed, to hold otherwise would be to not give effect to the clear purpose and intent of the legislation, and in this regard reference is made to section 15AA of the ActsInterpretation Act 1901 (Cth) which provides as follows:
“In the interpretation of a provision of an Act, the construction that will promote the purpose or object underling the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object”.
40. The Tribunal is therefore satisfied that the subject matter of the Osbon complaint is in relation to the applicant’s provision of “immigration assistance” to Osbon while the applicant was a registered migration agent.
41. Moving then to the substance of the Osbon complaint itself, the respondent submits that the applicant had acted in breach of Clause 2.1(b) of the Code of Conduct. Clause 2.1 provides as follows
“A migration agent must always (a) act in accordance with the law and the legitimate interests of his or her client, and (b) deal with his or her client competently, diligently, fairly and without any conflict of interest that would affect the legitimate interests of the client”.
42. Mr Macliver, Counsel for the respondent, submitted that the evidence establishes that the applicant did not deal with Mr Osbon “competently”.
43. The Tribunal is not persuaded that the evidence (which is analysed in the paragraphs which follow) establishes, to the requisite degree, any failure of the part of applicant to deal with Mr Osbon “competently”. The alleged breach of clause 2.1 of the code is not made out.
44. The respondent submitted that the applicant had acted in breach of clause 2.8(a) of the Code of Conduct. Clause 2.8 (a) provides as follows:
“Migration agent must (a) within a reasonable time after agreeing to represent a client confirm the client’s instructions in writing…”
45. The applicant accepted that he did not confirm Mr Osbon’s instructions in writing. The Tribunal therefore finds that the applicant breached clause 2.8(a) of the Code of Conduct as alleged.
46. The respondent submitted that the applicant had acted in breach of Clause 5.1 of the Code of Conduct. Clause 5.1 provides as follows:
“There is no statutory scale of fees. However, a migration agent is expected to set and charge a fee that is reasonable in the circumstances of the case.”
47.The evidence establishes that the applicant:
· charged Mr Osbon at an hourly rate of US$250 (which approximated to $A465 an hour).
· informed Mr Osbon that the minimum fee payable by Mr Osbon would be $2250 and the maximum fee would be $4500. This was exclusive of disbursements.
· charged Mr Osbon a total of US$4,050, notwithstanding that the matter had not progressed to the filing of a formal application.
48. No expert evidence was adduced before the Tribunal to establish what migration agents would have reasonably charged in all the circumstances, either by way of an hourly rate of by way of a total charge for the services provided by the applicant.
49. It was submitted on behalf of the respondent that, notwithstanding, the Tribunal ought to conclude that the hourly rate of US$ 250 was unreasonable in the circumstances of the case by comparing it to the Australian dollar equivalent which the evidence establishes the applicant charged Mr Don.
50. Whilst that would be an acceptable way to proceed if “the circumstances” of both cases were the same, the Tribunal does not consider it, alone, to be a basis by which the Tribunal could properly conclude that the rate of US$250 per hour charged to Mr Osbon was unreasonable given that “the circumstances of the (Osbon) case” are very different from the “circumstances of the (Don) case”.
51. The Tribunal is therefore not persuaded to the requisite degree that the rate of US$250 per hour was not “reasonable in the circumstances of the case”.
52. As that was the only basis upon which it was contended that the range of fees set was not reasonable, the Tribunal therefore concludes that the respondent has not established that contention either.
53. That, however, does not end the matter, as it was further submitted on behalf of the respondent that, quite apart from the hourly rate and the total quantum of the amount actually invoiced, the Tribunal ought to conclude that the fee charged was unreasonable in the circumstances of the case for other reasons.
54. It was submitted that the fee charged was unreasonable because it includes attendances which the applicant led Mr Osbon to believe would be “free”. It was further submitted that certain attendances were the subject of a charge where no charge at all ought to have been made.
55. By email dated 6 February 2002 from the applicant to Mr Osbon, the applicant stated, amongst other things:
“I suggest that you “invest” some money in telephoning me for a short discussion – it will take about 10- 15 minutes of free telephone consultation to give you a clearer picture of what needs to be done to achieve your objectives.”
56. This was in response to Mr Osbon completing and submitting to the applicant a form which appears on the applicant’s website, the email address of which includes the following
“Free % 20 assessment”.
57. In the applicant’s invoice dated 11 October 2002, he charged Mr Osbon US$50 for that “free” telephone conversation (which occurred on 12 February 2002).
58. In addition, the applicant also charged Mr Osbon US$425 for the following attendances which preceded that telephone call.
· “Received assessment form from client. Read, considered and assessed clients chances for migration, researched the law in connection with the case.
· Draft a letter and reply to client’s previous e-mail and transmitted e-mail to client.
· E-mail from client- read and considered.
· Drafted e-mail replied to client advising telephone consultation time. Transmitted e-mail to client.
· Read and considered e-mail from client”.
59. Whilst the applicant accepted he should not have charged for the telephone conversation on 12 February 2002, he maintained that he was entitled to charge for the preparatory work as Mr Osbon subsequently engaged the applicant to pursue his cause and that there was no reason why the applicant ought not charge Mr Osbon for work he had done prior to that engagement and for which Mr Osbon would benefit.
60. Neither the applicant nor his Counsel were able to point to anything which constituted informed consent on the part of Mr Osbon to the applicant charging him for work done in preparation of the “free” consultation and prior to any contract of retainer arising between the applicant and Mr Osbon.
61. The Tribunal finds it entirely unreasonable in those circumstances for the applicant to have charged Mr Osbon for those attendances. Not only as a matter of law did the applicant have no entitlement to render such charges, but no person would reasonable expect, in the absence of being clearly informed to the contrary, that by retaining the applicant’s services they would be charged for work done by him not only prior to the retainer, but specifically in regard to the provision of a consultation clearly stated to have been “free”.
62. In addition, the applicant charged US$100 for attending at Westpac bank to transfer money into Mr Osbon’s account and US$50 for drafting an email to Mr Osbon “advising that I would be providing detailed itemised invoice for all work done since about February 02 and about early November due to my current illness. Also request client to confirm if he has received AUD$1650.00 we returned to him on 20 September 02”.
63. Prior to undertaking these “attendances”, Mr Osbon emailed the applicant in the following terms:
“Chris
I have recently been advised by John Nye from AMSAS that they no longer wished to deal with AICLA. He has also informed that you have still not forwarded my fees that I paid to you when in Perth $1650 AUD. You advised him that I had not paid.
I have had to take legal advice on this matter and have explained the situation in great detail to a solicitor. Now I am in no way threatening you but, if you do not return to my bank account immediately the $1650 AUD and the $2200 USD I will have no choice but to make an official complaint to MARA and as you are using an overseas bank account and not a “client account” I would also have to inform the taxation department. My details are as follows …
Paul Osbon”.
64. The Tribunal finds that, by that email, if it was not understood by applicant that his services were no longer required, it ought reasonably to have been. The contract was at an end: Mr Osbon was requesting all moneys paid to be returned otherwise “an official complaint” would be made (amongst other things). For the applicant to have thereafter charged Mr Osbon for anything, let alone attending at a bank and drafting an email advising that an itemised account would be forwarded, was unreasonable.
65. For the above reasons, the Tribunal finds that the respondent’s contention that the applicant acted in breach of Clause 5.1 Code of Conduct has been made out.
66. The respondent submitted that the applicant had acted in breach of Clause 5.2 of the Code of Conduct. Clause 5.2 relevantly provides that a migration agent must, amongst other things, “as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of the terms of the work to be done.” The applicant admitted that he did not do this. The Tribunal thus finds that the applicant breached Clause 5.2 of the Code of Conduct.
67. The respondent submitted that the applicant acted in breach of Clause 5.5 of the Code of Conduct. Clause 5.5 provides that “a migration agent must be aware of the effect of s 313 of the Act”, and act on the basis that:
“(a) The agent is not entitled to be paid a fee or other reward for giving him immigration assistance to a client unless the agent gives the client a statement of services”
68.Section 313 (1) of the the Act provides that:
“(1)A registered migration agent is not entitled to be paid a fee or other reward for giving immigration assistance to another person … unless the agent gives the assisted person a statement of services.
69. The only statement of services provided by the applicant to Mr Osbon was after his retainer had been terminated. Before that, however, the applicant requested and was paid some US$2200 with respect to his professional fees.
70. It was submitted by counsel for the applicant that the statement of services need not precede the payment of the fee. He referred to the fact that s 313 of the Act and Clause 5.5 of the Code of Conduct required a statement of services to set out “particulars of each service performed”.
71. The Tribunal has no hesitation in concluding that the proper construction of s 313 of the Act and Clause 5.5 (a) of the Code of Conduct is that a migration agent is not entitled to be paid a fee until the services have been performed which entitles the agent to the payment of a fee and particulars of that service performed have been set out in a statement of services given by the agent to the client. That simply did not happen in this case.
72. It is, however, not a contravention of s 313 of the Act or Clause 5.5 (a) of the Code of Conduct if a migration agent requests the payment of moneys on account of services to be performed and holds any such payment received on trust. This is not, however, what happened in this case. The correspondence which passed from the applicant to Mr Osbon made no reference to moneys being required “on account”, and clearly categorised such payments as payment of fee. In this regard the Tribunal refers, for example, to an amount of US$600 having being required by the applicant from Mr Osbon “for the in-house assessment and last telephone consultation”: see the applicant’s email to Mr Osbon dated 14 May 2002, and the reference in the applicant’s email to Mr Osbon dated 24 July 2002 to “payment by you in Perth of balance of US$2235.00 for all the above work undertaken or to be undertaken by AICLA”.
73. The Tribunal therefore finds that the applicant claimed and was paid a fee from Mr Osbon prior to providing Mr Osbon with a statement of services, and that this was in breach of Clause 5.5(a) of the Code of Conduct.
74. The respondent submitted that the applicant had acted in breach of Clause 6.1 of the Code of Conduct. Clause 6.1 provides as follows:
“A migration agent must maintain proper records that can be made available for inspection on request by the authority, including files containing:
(a) copy of each client’s application: and
(b) copies of each written communication between
(i) the client and the agent and
(ii) the agent and any relevant statutory: and
(c) file notes of every substantial or material oral communications between
(i) the client and the agent:
(ii) the agent and any official of any relevant statutory authority”.
75. The respondent made no findings with respect to Clause 6.1 in regard to the Osbon complaint.
76. The Tribunal does not consider the “subject matter” of the Osbon complaint to raise any issue of failing to maintain proper records. Accordingly, the Tribunal concludes that the respondent’s allegation of a breach of Clause 6.1 of the Code of Conduct by the applicant with respect to the affairs of Mr Osbon is not one that the Tribunal may properly consider.
77. Had the Tribunal concluded that it could properly consider this matter, it would not have upheld the alleged breach. Pursuant to a direction made by the Tribunal on 15 August 2005, the respondent provided a list of all documents relating to the alleged breaches of clause 6.1 of the Code of Conduct. Many documents were therein referred to.
78. Counsel for the applicant submitted that no findings could be made adverse to the applicant in this regard by reason of the fact, amongst others, that none of the documents had been put to the applicant in cross-examination. Counsel for the respondent submitted that that was unnecessary as the applicant had notice of the documents which the respondent alleged he failed to maintain.
79. Whether or not as a matter of procedural fairness the respondent needed to put each of the documents to the applicant to allow the applicant to rebut the proposition that he had failed to maintain each document, the short point is that there was no evidence before the Tribunal that the applicant needed to rebut. The respondent appears to have proceeded on the basis that the list of documents tendered somehow constituted evidence the documents of the description referred to therein should have been, but were not, on the applicant’s files. No such evidence was tendered before the Tribunal, either through a witness or in documentary form. Accordingly, there was no forensic basis upon which the Tribunal could properly conclude that any of the documents referred to in the respondent’s list were not on the applicant’s files (the applicant’s files not having been tendered).
80. The respondent submitted that the applicant had acted in breach of Clause 7.2 of the Code of Conduct. Clause 7.2 of the Code of conduct provides as follows:
“A migration agent must hold, in the client’s account, an amount money paid by a client for an agreed block of work until
(a) the agent has completed the services that comprise the block of work: and
(b) an invoice has been issued to the client for his services”.
81. The applicant admitted that this did not occur. The Tribunal therefore finds that the applicant breached Clause 7.2 of the Code of Conduct as alleged.
82. Finally with respect to the Osbon complaint, the respondent submitted that the applicant breached Clause 11.3 of the Code of Conduct. Clause 11.3 of the Code provides as follows:
“Each contract made between an agent and a client must
(a) include a statement about the existence and purpose of the Code;
(b)guarantee that the client can obtain a copy of the Code, on request, from the agent”.
83. There was no written contract between the applicant and Mr Osbon. The Tribunal received no evidence of any oral statement by the applicant to Mr Osbon within the meaning of Clause 11.3 of the Code of Conduct. Accordingly, the Tribunal finds the applicant to have breached Clause 11.3 of the Code of Conduct as alleged.
84. Although a breach conceded by the applicant, in the course of his evidence the applicant explained the breach by reason of the fact that, so far as he was concerned, the party with whom Mr Osbon contracted was not the applicant, but rather a Singaporean company named Samsara Holdings Pty Ltd (‘Samsara’) in which the applicant’s brother has an ownership interest.
85. The first reference to Samsara is in the applicant’s e-mail to Mr Osbon dated 15 February 2002 where the applicant wrote:
“In line with our discussions today (last night your time), the bank details are as follows…:”
There followed the details of an account in the name of Samsara.
86. During the course of cross-examination, the applicant was asked about what he considered Mr Osbon could reasonably expect by way of the provision of a written agreement. The applicant said that “the agreement was between Osbon and AICLA and Samsara”. When asked why the applicant was of that view, the applicant responded “well, because he paid the – consideration was – given to Samsara”. The applicant accepted that Mr Osbon did not know about any agreement between the applicant’s brother and himself relating to Samsara. When it was put to the applicant “that the only agreements were between Mr Osbon and AICLA for AICLA to carry out immigration assistance were for him” the applicant said “No, I don’t agree with that … I mean, even the present time, that arrangement is still in place in my brother’s office and we are still consultants on a number of cases”.
87. The applicant went on to explain that AICLA services all of the Australian clients of the applicant, but that he had agreed with his brother that Samsara would service “the overseas clients as a general rule”.
88. Because the applicant contended that the contracting party was Samsara – not himself – the applicant asserted that it was Samsara’s obligation to issue Mr Osbon with a contract, not his. The applicant said:
“It was unfortunate that a contract was not sent out by Samsara to Mr Osbon. It was unfortunate because if that had been done, then as it is done today, there are no complications for clients who are signed up with my brother’s office and we are still contacting the clients and working as consultants. There’s no problem. This problem came up because the contract was not sent by Samsara to Mr Osbon…”
89. It was then put to the applicant that “there was no contract because Mr Osbon had a contract with AICLA”, the applicant said “No”. The applicant asserted that “… a written contract had actually been made; it would have been made by Samsara and Mr Osbon. It wouldn’t have been made by ACLIA”. The applicant went on to then specifically deny that ACLIA had any obligations to send Mr Osbon a contract, all this notwithstanding that the applicant accepted that he never mentioned anything to the applicant about a contract with Samsara.
90. The Tribunal suggested to the applicant that it appeared that the applicant was acting as an undisclosed agent for Samsara. The applicant disagreed and stated that the usual course is for all persons who were to be serviced by Samsara would receive a contract from Samsara.
91. The applicant’s reasons for there being no written contract at all with Mr Osbon are of concern. The applicant does not purport to act as an undisclosed agent for Samsara, and there is nothing in any of the material that was provided to Mr Osbon, or told to him, that could have resulted in him contracting with Samsara, rather than the applicant. The fact that the applicant had told Mr Osbon to pay moneys into an offshore account in the name of Samsara would not appear to be enough to give rise to any privity of contract between Samsara and Mr Osbon.
92. It should be made clear that, whilst I have grave reservations about the arrangement to which the applicant has given evidence, I make no findings with respect thereto as it is not open to the Tribunal to do so on the hearing of this application. The Tribunal’s purpose of dealing with this evidence, however, is that it was the applicant’s explanation as to why there was no written contract with Mr Osbon and therefore forms part of the circumstances which the Tribunal is entitled to consider when determining the ultimate disposition of this matter.
Mr Ajith Don
93. The respondent submitted that the applicant had acted in breach of Clause 10 of the Code of Conduct.
94. Clause 10 of the Code of Conduct provides as follows:
“10.1 A migration agent must complete services as instructed by a client unless:
(a) the agent and client agree otherwise; or
(b) the client terminates the agent’s instructions; or
(c)the agent terminates the contract for just cause and gives reasonable written notice to the client
10.2A client is entitled to ask a migration agent (orally or in writing) to return any document that belongs to the client. The agent must return the document within 7 days after being asked.
10.3Australian passports, and most foreign passports, are the property of the issuing Government and must not be withheld.
10.4A migration agent must not withhold a document that belongs to a client by claiming that the agent has a right to withhold a document by a lien over it.
10.5On completion of services, the agent must, if asked by the client, give to the client all the documents:
(a)given to the agent by the client; or
(b)for which the client has paid.
10.6If the client terminates the instructions, the agent must take all reasonable steps to deliver all documents quickly to the client or any other person nominated by the client in writing. If the agent claims a lien on any documents, the agent must take action to quantify the amount claimed and tell the client in a timely manner.
Note 1The question whether, in a particular case, an agent has a lien over documents is a matter for the law of the relevant State or Territory. If in doubt, a client should seek independent legal advice.
Note 2 A document includes an application, nomination, sponsorship, statement, declaration, affidavit, certificate or certified copy. See Acts Interpretation Act 1901 s25, Migration Regulations regulation 5.01.”
95. The applicant accepted that he had not returned documents he was required to return pursuant to Clauses 10.2, 10.4 and 10.5 (a) of the Code of Conduct within the periods referred to therein. He said he did so, however, with the honest and reasonable belief that he was entitled to withhold all the documents pursuant to a “solicitor’s lien”, the applicant being a legal practitioner practising in Western Australia.
96. On behalf of the respondent it was submitted that, whilst the applicant’s mistaken belief might have been held “honestly”, it was not one that could have been reasonably formed. In this regard counsel for the respondent referred to “Note 1” following from Clause 10.6 of the Code of Conduct (which is reproduced above).
97. In essence, the issue here is that the respondent possessed no “solicitor’s lien” over the relevant documents as he was not engaged by Mr Don, nor was acting, in his capacity as a “solicitor”, but rather as a registered migration agent.
98. With respect to others who might have held a different view, the Tribunal believes this distinction to be clear. The Tribunal nevertheless accepts that the applicant took reasonable steps to ascertain the position and did not simply rest on his own view. In this regard the Tribunal received evidence from a former member of the law firm Philips Fox, as well as evidence of a telephone conversation between the applicant and an employee of the Legal Practitioners Complaint Committee which is part of the Legal Practice Board of Western Australia.
99. Accordingly, whilst the Tribunal upholds the respondent’s contention of a contravention of Clauses 10.2, 10.4 and 10.5(a) of the Code of Conduct, it does not consider this conduct to be such as to warrant the making of an order pursuant to s 311A of the Act, either in isolation or taken in conjunction with the other matters dealt with in these Reasons.
100. The respondent submitted that the applicant had acted in breach of Clause 11.3 of the Code of Conduct. Unlike the position with respect to Mr Osbon, a written contract existed between the applicant and Mr Don. That contract did not include a statement about the existence and purpose of the Code of Conduct, nor did it guarantee that the client could obtain a copy of the Code of Conduct, on request, from the applicant. The respondent’s contention that the contract between the applicant and Mr Don contravened Clause 11.3 of the Code of Conduct is thus made out.
101. In this regard the Tribunal notes that the applicant gave evidence that Clause 11.3 of the Code of Conduct was, at that time, relatively new, and the applicant had not had sufficient time to ensure that his standard form of contract was amended to comply with it.
The Reitano Complaint
102. It was alleged that the applicant had acted in breach of Clause 2.1 of the Code of Conduct. Clause 2.1 provides –
“a migration agent must always … deal with his or her client competently, diligently, fairly without any conflict of interest that would affect the legitimate interests of the client.”
103. The allegation is that, with respect to his client, Mr Mosabir, the applicant did not deal with him “competently”.
104. In this regard the respondent alleges that the plaintiff failed to ensure that his client’s application for a visa contained the required evidence of funds and, or alternatively, that he failed to advise his client to sit an IELTS test.
105. The evidence establishes that Mr Mosabir’s application for a visa did include relevant financial information, but that the information was incomplete as it did not cover the whole of the period required by the regulations.
106. With respect to the IELTS test, the evidence establishes that Mr Mosabir had sat and passed an ELICOS test and gained a result which was of an equivalent standard of the IELTS course required by the regulations. The evidence received by the Tribunal, which the Tribunal accepts, was that the requirement in the regulations for an IELTS score could not be satisfied by a comparable score achieved by completing the ELICOS course.
107. Accordingly, in order to pursue his application for a visa (which was ultimately successful), Mr Mosabir was advised by the Department to provide further evidence of funds and to sit and pass the IELTS Course (which he did).
108. The applicant submits that these facts do not establish that he failed to deal with Mr Mosabir “competently”. The applicant gave evidence that Mr Mosabir’s visa had been revoked and he had been ordered to leave the country. The applicant therefore only had a short period of time in which to prepare Mr Mosabir’s application for a visa. He said “we were working with very, very strict constraints, and very, very stressful constraints, to get him out of the country, to get the application processed, to get his medicals, whatever other documents that were required”.
109. The applicant further said that “to get further financial documents from his father would entail probably two to three weeks because it was coming from Bangladesh … we were working on a two-week window. All we had was these documents. I did a quick calculation on that. Whether it met the three months, I can’t one hundred percent say that I checked it or.. I did not check it. I cannot say, unfortunately, because I have no file note on that. It may well be I checked it. It may well be I did not check it. But in any case I did put sixty thousand in there…”.
110. Mr Mosabir attended before the Tribunal and gave evidence on behalf of the applicant. In a signed statement dated 14 April 2004, Mr Mosabir stated “Before I left Australia, I remember (the applicant) told me that he could not guarantee that I would get the visa but he thought I had a good chance based on his view of the case, but of course I was still very worried when I left Perth. He did tell me that I might have to do a medical or English (IELTS) test in Bangladesh if this was required even though I had already done about seven weeks of English Instauration (sic) at Edith Cowan University immediately prior to my leaving Perth. As my visa was about to expire, there was no time to do this test before I left Australia”.
111. In a further statement dated 5 April 2005, Mr Mosabir stated that when he was in Bangladesh, he was told by Mr Gavin Willett (of the Australian High Commission) that he needed to sit the IELTS Test before he could be granted a student visa. Mr Mosabir said “I was not surprised at this request because Mr Narayanan had already told me when I was in Perth that I may be asked by DIMIA to do the IELTS test (see my 14 April 04 statement) although I thought that was to save me some further costs, he was actually trying to discuss with DIMIA to see if it was possible for DIMIA to accept my English language results at ECU, the result was shown equal to the mark of 5.0/5.5 in IELTS test and it is written in the ECU papers which ECU gave to me”.
112. In regard to this issue, in his evidence the applicant also said that, in his opinion, it was at least arguable that the requirement in the Regulations for a particular score in the IELTS test could be satisfied by a comparable score in the ELICOS Test.
113. The evidence further establishes that, had the applicant advised Mr Mosabir to sit the IELTS test, it is possible (but by no means probable) that Mr Mosabir may have been able to sit the test before having to depart Perth. As a consequence, Mr Mosabir was ultimately delayed in the commencement of the course in which he was enrolled.
114. The Tribunal accepts that the applicant’s evidence that he was aware of both requirements in the regulations which the visa application did not fully address.
115. The Tribunal finds that it is relatively clear from the regulations that they require a particular score to be achieved in an IELTS Test, and not simply its equivalent.
116. It is also clear, however, that Mr Mosabir’s application was prepared in great haste as a result of the circumstances that Mr Mosabir found himself in. The applicant and Mr Mosabir had to work with what was reasonably available to them in the time they had. Further, notwithstanding the Tribunal’s finding with respect to the proper interpretation of the requirements relating to the IELTS test, the fact that the applicant contemplated the possibility of persuading the Department to accept a comparable result from the ELICOS course, particularly in the circumstances of this matter, does not establish that the applicant did not deal with Mr Mosabir “competently”. Indeed, Mr Mosabir himself said that he had been warned by the applicant that the ELICOS course may not be held sufficient.
117. The respondent relied upon the evidence given by Ms Reitano of her conversation with Mr Willett, which conversation is reproduced in her complaint and has been set out above, regarding an alleged statement made by the applicant and Mr Willett that “he was not aware that students from Bangladesh were required to present IELTS results with their student visa applications”.
118. In cross-examination the applicant denied making any such statement to Mr Willett.
119. Whilst the Tribunal has no doubt that Ms Reitano accurately recorded what she was told by Mr Willett, the issue remains as to whether or not what Mr Willett told Ms Reitano was accurate.
120. In this regard the Tribunal notes that those representing the respondent took steps to have Mr Willett available to give evidence. They were unsuccessful in their endeavours, informing the Tribunal that Mr Willett was no longer employed by the Department.
121. In all the circumstances of the case, and particularly having regard to the test in Briginshaw’s case, the Tribunal is unable to make a finding of fact to the effect that the applicant told Mr Willett that which Mr Willett told Ms Reitano without the applicant, through his counsel, having been given an opportunity test that evidence through the cross examination of Mr Willett. In other words, although the hearsay evidence given by Ms Reitano was admitted into evidence, it cannot be given weight greater than the applicant’s denial of the conversation.
122. For all the above reasons, the Tribunal concludes that the respondent’s allegation of a breach of Clause 2.1(b) on the part of the applicant has not been made out.
123. It was alleged that the applicant had acted in breach of Clause 3.2 of the Code. Clause 3.2 provides:-
“A migration agent’s professionalism should be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice”.
124. It was submitted that for the same reason that the respondent contended the applicant had acted in breach of Clause 2.1 (b) of the Code, the applicant had acted in breach of Clause 3.2 of the Code.
125. For the reasons given with respect to the Tribunal’s finding in relation to the alleged contravention of Clause 2.1 (b) of the Code, the Tribunal concludes that there is insufficient evidence to find that the advice given to Mr Mosabir was not “accurate”.
126. In any event, even if the advice given to Mr Mosabir was not “accurate”, that does not necessarily lead to the conclusion that the applicant did not have “a capacity to provide accurate ... advice”. The provision of inaccurate advice on one occasion does not necessarily mean that one does not possess “a capacity to provide accurate … advice”.
127. In this regard the Tribunal notes that there was no other evidence before the Tribunal to suggest that advice which the applicant had given in any matter in addition to the affairs of Mr Mosabir were not “accurate”.
128. The Tribunal therefore concludes that this allegation has not to be made out.
129. Finally, it was submitted on behalf of the respondent that the applicant had acted in breach of Clause 2.21 of the Code. Clause 2.21 provides:-
“A migration agent should not submit an application under the Migration Act or Migration Regulations without the specified accompanying documentation …”.
130. It is clear that the Migration Regulations provided certain material to be provided, which was not provided. Accordingly, a breach of Clause 2.21 of the Code is thus found. However, in view of the circumstances surrounding this matter (which have been analysed above), the Tribunal concludes this to be a technical breach which, both alone and in conjunction with the other matters before the Tribunal, would not justify the applicant being barred.
Barring Order
131. It is well established that the purpose of a power such as that given by s 311A of the Act is not to punish for wrongdoing, but is to protect the public from wrongdoing: see, for example the decision of this Tribunal in Donald and Australian Securities and Investments Commission [2001] AATA 66 and the various authorities referred to therein at paragraphs 111 to 115 (inclusive), see also Rich v Australian Securities and Investments Commission [2004] HCA 42.
132. By reference to a paper presented by, amongst others, an employee of the respondent, counsel for the applicant submitted that where a professional person is found to have acted in breach of their duties to a client, the following factors are often considered when determining whether, and how severe, a sanction should be imposed:
· “The nature of the professional’s breach, particularly whether the professional is acting in good faith during the commission of the breach
· whether there were any factors that were beyond the professional’s control and could have reasonably contributed to the professional’s breach;
· the professional’s willingness to accept that a breach may have occurred;
· the professional’s efforts to rectify or mitigate the effect of the breach, where possible;
· whether the client sustained any loss as a result of the professional’s breach;
· the professional’s actions, if any, to compensate the client for any loss arising out of the possible breach;
· the professional’s record of prior disciplinary breaches
· the professional’s community and professional reputation
· the extent to which any sanction may be harsh, unjust or oppressive in the circumstances taking into account the extent to which such a sanction would affect the professional’s financial earning capacity and livelihood;
· the professional’s co-operation with the disciplinary authority;
· whether a sanction, if any, would deter other professional from similarly breaching their duties to a client; and
· whether a sanction, if any, will ensure that the public’s confidence in the professional’s industry will be maintained”.
Counsel for the respondent did not seek to take issue with this summary.
133. Applying these factors, the Tribunal believes that the breaches of the Code of Conduct which the Tribunal has upheld, and the circumstances surrounding these breaches, warrant an Order being made against the applicant pursuant to s 311A of the Act. The Tribunal’s reasons for so concluding are as follows:
· Although several of the breaches which the Tribunal has upheld may be described as technical, others cannot. In particular the Tribunal refers to the applicant’s breaches of Clauses 2.8(a), 5.1, 5.5(a), 7.2 and 11.3 of the Code of Conduct.
· The Tribunal finds there to have existed no factors that were beyond the applicant’s control which could have reasonably contributed to these breaches.
· The Tribunal has found the applicant willing to accept various breaches to have occurred, but not all of the breaches, which the Tribunal has upheld.
· Given the nature of the breaches which have been upheld, they did not lend themselves to rectification or mitigation by the applicant.
· No loss has been suffered by any of the applicant’s clients as a result of the breaches; accordingly the question of compensation does not arise.
· The Tribunal was not informed of any prior disciplinary breaches by the applicant in his capacity as an immigration agent (as distinct from as a legal practitioner).
· Many favourable testimonials were tendered on behalf of the applicant with respect to his reputation.
· A barring order would have an obvious effect on the applicant’s financial earning capacity and livelihood.
· No evidence was adduced before the Tribunal with respect to lack of co-operation on the part of the applicant with the respondent.
· The Tribunal expects that an order barring the applicant would more likely than not deter other migration agents from similarly breaching their duties.
· The Tribunal concludes that an order barring the applicant for a period will more likely than not ensure that the public’s confidence in the industry in which the applicant practices will be maintained.
134. To amplify the point made above with respect to the applicant’s willingness to accept that a breach may have occurred, the Tribunal notes that with respect to the breaches upheld by the Tribunal, the applicant did not admit the breaches with respect to Clauses 2.8 (a), 5.1 and 5.5 (a) of the Code of Conduct.
135. Furthermore, the Tribunal is particularly concerned with respect to the applicants attitude in respect to the role played by the Singaporean company in which his brother has an interest and various of the items for which he charged Mr Osbon. The Tribunal concludes that the applicant’s evidence with respect to these matters indicates either an unwillingness or a serious inability on the part of the applicant to appreciate that which, to the Tribunal, ought to be obvious to him.
136. The issue then to be determined is for what period the applicant should be so barred.
137. As noted above, Counsel for the respondent conceded during the course of the hearing that the alleged breaches of the Code contended for by the respondent would not, if found, justify a five year bar. It was submitted that any bar should be in the region of three to four years.
138. In support of his submissions, Counsel for the respondent referred the Tribunal to previous cases in which a three year ban had been imposed, namely, decisions of this Tribunal and the full Federal Court concerning Andrew William Donald and the Australian Securities & Investments Commission (2001) AAT 8366, 2001 AATA 622 and (2003) FCAFC 318; Wang and Migration Agents Registration Authority [2005] AATA 628 and Kari and Migration Agents Registration Authority [2006] AATA 42.
139. For his part, Counsel for the applicant submitted that the cases relied upon by the respondent involved cases of dishonesty and are therefore distinguishable. Further, Counsel for the respondent provided to the Tribunal copies of various decisions by the respondent itself concerning relatively serious conduct on the part of immigration agents, where various forms of supervisory orders were made, but without suspending the relevant agent.
140. The Tribunal has carefully considered all of the cases to which Counsel for the applicant and Counsel for the respondent have referred the Tribunal. In the end, however, the Tribunal gains little from those cases as each case must turn on its own facts.
141. In fixing the appropriate period in which to ban the applicant, one needs to take account of the fact that Parliament has indicated that the maximum period is five years. That is obviously reserved for the most severe cases. The most severe cases would inevitably involve an element of fraud, dishonesty or incompetence.
142. When one has regard for the various matters which are covered by the Code – although the Tribunal recognises that it is not only a contravention of the Code which can enliven the jurisdiction provided by s311B of the Act – it would appear that the breaches which the Tribunal has upheld, and the circumstances surrounding them, fall within the middle of the range of severity. For reasons which have already been noted, of particular concern to the Tribunal are the applicant’s breaches of Clauses 5.1, 5.5(a) and 11.3 of the Code and the circumstances surrounding them.
143. This then puts the range between two to three years. On careful reflection, the Tribunal considers that these matters, in their totality, fall within the lower end of that range. This conclusion is reinforced by the character evidence adduced on behalf of the applicant.
144. Accordingly, the Tribunal concludes that the appropriate period for which the applicant ought to be barred is two years and three months.
145. The Tribunal notes that by Order dated 20 September 2004, upon the application of the applicant, Deputy President Hotop ordered that the respondent’s decision made on 23 August 2004 be stayed pursuant to s 41 (2) of the Administrative Appeals Tribunal Act, 1975 - “Pending the decision of the Tribunal on the ultimate hearing of this application or pending further order by the Tribunal”.
146. But for this order, the time which has elapsed since 23 August 2004 would have been operated in partial satisfaction of the order contemplated by the Tribunal. However, because of the stay order made on the application of the applicant, the barring order has in effect been “frozen” since 23 August 2004. Since then, time has not been running.
147. The Tribunal was informed that, notwithstanding the stay order granted on 28 September 2004, the applicant did not secure registration as a licensed Migration Agent. Accordingly, so far as the “public interest” is concerned, it is in no different position than if the stay had not been granted. This was a proposition that was conceded by counsel for the respondent when it was put to him by the Tribunal. The Tribunal is of the opinion that the concession was rightly made.
148. It therefore follows that, notwithstanding that by reason of the stay order time has not been running under the respondent’s decision made on 23 August 2004, the whole of the period from 23 August 2004, the date that the respondent made its decision, ought to be effectively “credited” to the applicant in calculating when the period of the bar to be ordered by the Tribunal expires.
CONCLUSION
149. For the reasons given the Tribunal concludes that –
· The reviewable decision of the respondent made on 23 August 2004 should be set aside,
· In lieu thereof the applicant is barred pursuant to s 311A of the Migration Act from being a registered migration agent for a period of 2 years and 3 months, commencing on 23 August 2004 and concluding on 22 November 2006.
I certify that the 149 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member S Penglis.
Signed: (sgd E M Jordan) .....................................................................................
Associate
Date/s of Hearing: 6,7,8,9 and 10 February 2006
Date of Decision: 30 March 2006
Counsel for the Applicant: Mr R Lindsay
Solicitor for the Applicant: Mr C Narayanan
Counsel for the Respondent: Mr P Macliver
Solicitor for the Respondent: Australian Government Solicitor
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