Nguyen and Migration Agents Registration Authority - [2012] AATA 925

[2012] AATA 925

Division	TAXATION APPEALS DIVISION
File Number(s)	2012/1490
Re	Vu Huy Anh Nguyen
APPLICANT
And	Migration Agents Registration Authority
RESPONDENT

DECISION

Tribunal	Mr F. D. O'Loughlin, Senior Member
Date	24 December 2012
Place	Melbourne

The Tribunal affirms the decision under review.

[sgd]........................................................................

Mr F. D. O'Loughlin, Senior Member

Catchwords

Migration Agent Registration: fit and proper person, code of conduct, cancellation of registration.

Legislation

Migration Act 1958 (Cth)
Migration Agents Regulations 1998 (Cth) Sch 2
Statutory Declarations Act 1959 (Cth)
Sentencing Act 1991 (Vic)

Cases

Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321

Hughes and Vale Pty Ltd & Anor v State of New South Wales & Ors No.2 (1955) 93 CLR 127
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Briginshaw v Briginshaw (1938) 60 CLR 336
Re Davis (1947) 75 CLR 409
Cunliffe & Anor v The Commonwealth of Australia (1994) 182 CLR 272
Adamec and Tax Agents’ Board of Victoria [2005] AATA 913

REASONS FOR DECISION

Mr F. D. O'Loughlin, Senior Member

24 December 2012

REASONS

The Tribunal is asked to review a decision of the Respondent to cancel the Applicant’s registration as a migration agent because the Applicant made false statements and declarations to the Respondent concealing past enquiries and investigations into his conduct and earlier convictions.
The Respondent can suspend or cancel a migration agent’s licence if:
(a)it is satisfied that a migration agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance[1];
(b)the application for registration was known by the agent to be false or misleading in a material particular[2]; or
(c)the registered agent breaches a prescribed Code of Conduct[3].
[1] Migration Act 1958 (Cth); (s 303(1)(f)).
[2] Migration Act (s 303(1)(d)).
[3] Migration Act (s 303(1)(h)).
The Code of Conduct includes obligations to :
(a)act in accordance with law[4]; and
(b)take all reasonable steps to maintain the reputation and integrity of the migration advice profession[5].
[4] Migration Agents Regulations 1998 (Cth) Sch 2 paragraph 2.1(a)).
[5] Migration Agents Regulations Sch 2 paragraph 2.23.
The present Applicant has had his registration cancelled.

THE FACTS

The cancellation followed the Applicant’s false statements in his latest registration renewal on 6 April 2011 that:
(a)       he was a fit and proper person to give migration assistance;
(b)       he was a person of integrity;
(c)       he had not had a finding of guilt against him in a criminal offence;
(d)       he was not the subject of any criminal proceedings;
(e)to the best of his knowledge and belief he was not and had not been the subject of an enquiry or investigation by any professional association; and
(f)       there was no current disciplinary action pending against him other than as reported previously to the Respondent.
While (a) and (b) are issues upon which people may have subjective views, the statements in (c) and (e) were plainly false. The false statements had the effect of concealing matters to which the Respondent may legitimately have regard in a registration renewal application. As at 6 April 2011 the Applicant had been:
(a)struck off the Supreme Court of Victoria’s roll of legal practitioners on 5 April 2011 following an investigation; and
(b)convicted of 18 counts of theft, false accounting and trust account deficiencies and had been sentenced on 12 April 2010 to three years imprisonment to be wholly suspended.
On 9 April 2010 the Applicant made similar statements and a declaration similar to that described in [5] above. These statements were again false, at least in some material respects. They too had the effect of concealing matters to which the Respondent may legitimately have regard in a registration renewal application.
When the 9 April 2010 statements and declaration were made, the Applicant had previously:
(a)on 22 March 2010, pleaded guilty to 18 counts of theft, false accounting and deficiencies in his trust account, charges in respect of which he was convicted and sentenced on 12 April 2010; and
(b)on 10 September 2009 been served with a Police brief in respect of the matters for which he was later charged and convicted.
The 9 April 2010 statements were made not long after Mr Jeffrey Cummins, a consulting, clinical and forensic psychologist, had reported on 22 February 2010 that the Applicant’s mental state had stabilised, with the major mental health crisis in his life then being behind him, and that he was expressing remorse for his actions.
On 27 March 2009, 6 March 2008 and 2 February 2008 the Applicant made similar statements and a declaration to those referred to in paragraph [5] above.
All of these statements were both false in at least some material particular; and concealed matters to which the Respondent might legitimately have regard in considering registration applications and renewals. For example:
(a)on 1 August 2007 the Applicant withdrew his 18 April 2007 application he had made to the Victorian Civil and Administrative Appeals Tribunal contesting suspension of his certificate to practice as an Australian legal practitioner;
(b)on 9 March 2007 the Applicant’s certificate to practice as an Australian legal practitioner was suspended.
On 16 November 2006 the Applicant made similar statements and a declaration to those set out in paragraph [5] above, as part of his application to become a registered migration agent. Accompanying that application for registration was his Australian Legal Practitioner Practising Certificate and an Australian Federal Police check reporting no disclosable Court outcomes.
These statements and declaration were also false at least in some material respect and concealed matters to which the Respondent might legitimately have regard in considering the registration of a migration agent.
Prior to his making these false statements and declarations, the Applicant was admitted to practice as a Barrister and Solicitor of the Supreme Court of Victoria on 1 March 1999. He practised as a sole practitioner from 2000 to 30 June 2004. From April 2002 to November 2003 he conducted his trust account in a manner which led to the charges of 18 counts of theft, false accounting and deficiencies in his trust account referred to above. The sum involved was between $180,262.75 and $218,415.50.
The trust account matters led to an investigation that commenced in November or December 2003 and ended with the suspension of the Applicant’s practising certificate as an Australian Legal Practitioner in January 2004.
The Applicant made a fresh application for a practising certificate in July 2006 and that application was granted, in error, in October 2006.
The Applicant contends that he may not have been convicted for the offences to which he pleaded guilty had he conducted his defence to those charges differently. He submits that that is reflected in the sentence being wholly suspended. However, it is not the function of the Tribunal to go behind the conviction and look to its merits in the present application.
The Applicant admits his wrongdoing in relation to his application for registration as a migration agent and the subsequent applications for renewal of that registration. He relies on the opinion of Mr Cummins to the effect that the Applicant:
(a)suffered post-traumatic stress disorder with an adjustment disorder with mixed anxiety and mood; and
(b)has acknowledged that he provided false and misleading information and this has led to him having more insight into his own personality and behaviour and remorse for what he has done.
As noted, Mr Cummins had treated the Applicant twice, very shortly before the hearing.
The Applicant also led evidence from other migration agents and a client. Their unchallenged evidence was that the offences and subsequent false statements and declarations were out of character and that the Applicant was a commendable person in his dealings with them.
The Applicant’s evidence was that the actions in 2002 and 2003 that led to the investigations, loss of practising certificate and prosecution and conviction were the result of a marital breakdowns, which caused him to suffer from depression and emotional instability; and the need to care for children, then aged 5 and 4, who the Applicant claimed were abandoned by their mother.
The Applicant has an impressive study record, completing the requirements for a Master of Accounting degree since his difficulties in 2002 and 2003. The Applicant has commitments to the children of his first marriage and a child of his second marriage.
The Applicant has sought the assistance of Mr Cummins. That entailed only two sessions, in May 2012, shortly before the hearing in this matter. The Applicant claims that this assistance is helping him understand more about himself and how to deal with stressful situations. He places great reliance on the counselling that he received from Mr Cummins and looks to him as a role model.

THE LAW

A Fit and Proper Person

The term fit and proper person calls for consideration of the context of the role being discharged by the person required to be a fit and proper person.[6]
[6] Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.
Fitness for office for a migration agent calls for an assessment of honesty, knowledge and ability[7]. The Applicant’s knowledge and ability are not in issue.
[7] See Hughes and Vale Pty Ltd & Anor v State of New South Wales & Ors No.2 (1955) 93 CLR 127 at 156.
A migration Agent’s role entails giving advice to clients in need of professional assistance and dealing with governments. Those aspects of the role, particularly the latter, call for considerable trustworthiness. The role is not materially dissimilar to that of a lawyer who interacts with courts and/or arms of government, or a registered tax agent who interacts with an arm of government. Courts and government agencies need to be able to rely on the integrity and honesty of practitioners acting for their clients. If they could not do so, the courts and government regulatory and administrative bodies and their systems would become dysfunctional.
While it is necessary to focus on the future in assessing a person’s fitness for a particular role, and that acknowledgement of past misdeeds assists in that process, the past is an important touchstone by reference to which an assessment of whether a person is fit and proper is to be made. The relevant time to make the assessment as to whether the Applicant is a fit and proper person is now[8].
[8] Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [47]-[51] per Kirby J, [99] per Hayne and Heydon JJ, [140]-[143] per Kiefel J with whom Crennan J agreed at [117].
Breaches of the Code of Conduct are to be tested at a different time, namely at the date of the Respondent’s decision[9].
[9] Shi at [144]-[149] per Kiefel J with whom Crennan J agreed at [117].
In a matter such as this a Briginshaw[10] standard applies, with a positive obligation on the Respondent to put material before the Tribunal.
[10] (1938) 60 CLR 336
A failure to display candour on an important occasion, even if only once, and even if that one failure is by a person who has faced and dealt with adverse circumstances, disadvantages and obstacles in life, can raise questions of character and honesty that can be fatal in important applications where it is necessary to display those traits[11]. Applications for registrations, licences and certificates that allow their holders to assume roles that call for high levels of integrity and trust are important applications. They call for candour. The purpose of the migration agent registration scheme is to protect people by assuring those seeking representation that they will receive that representation from migration agents with integrity[12].
[11] See Re Davis (1947) 75 CLR 409 at 426 per Dixon J.
[12] See Cunliffe & Anor v The Commonwealth of Australia (1994) 182 CLR 272 at 294 per Mason CJ.
Public perceptions are also important. The question of whether public confidence would be eroded by allowing people of questionable integrity to be registered is relevant[13].
[13] See Bond 170 CLR at 380 per Toohey and Gaudron JJ.
Finally, dealing with misfortune that many in the community experience does not necessarily excuse actions that fall short of requisite standards. Dr Hughes’ remarks in Adamec and Tax Agents’ Board of Victoria[14] are apposite to characterise the difficulties associated with marital breakdown. Past difficulties, and the manner in which those difficulties are dealt with, if dealt with openly, can be an opportunity to display the integrity and honesty called for by various roles that require licences, certificates and registration. Those past difficulties and the manner in which they are dealt with can also be an opportunity to display shortcomings that should operate as a barrier to such licences, certificates and registrations.
[14] [2005] AATA 913 at [70]
Here, the Applicant was convicted of offences a constituent element of which was dishonesty. The events which led to the convictions involved the management of clients’ affairs. Following the events that led to the convictions, the Applicant was said to have had his mental health condition in check. However, in matters where his personal position was to be affected, the Applicant subsequently sought and obtained a migration agent’s registration on the basis of false statements and false declarations; and that continued from November 2006 up to and including April 2011.
In this matter, the Applicant has shown repeated lack of candour in important matters concerning the very same statute in respect of which:
(a)he wishes to be allowed to engage in professional practice by way of provision of migration assistance (which registration as a migration agent allows); and
(b)it is necessary for the relevant arms of government and the wider community to enjoy a high level of confidence that registered migration agents are trustworthy in their dealings.
In May 2012, shortly before the hearing of the present application in late July 2012, the Applicant had counselling, which has had the effects noted above.
These circumstances are such that the terms of s 303(1)(d), (f) and (h) are all satisfied. Moreover they are satisfied to the Briginshaw standard.
The facts pertaining to s 303(1)(d) do not require further explanation.
The false declarations are contrary to s 11 of the Statutory Declarations Act 1959 (Cth) and potentially contrary to s 83AB of the Sentencing Act 1991 (Vic). These breaches are sufficient to be a breach of the Code of Conduct, enlivening s 303(1)(h) of the Migration Act.
As to s 303(1)(f), a person who by deception obtains a registration that, at best, could not be assured if an honest application was made, and continues the deception over more than 3 years, and whose self-interest is advanced by the registration and the continuance of the deception, is not a person of integrity or otherwise a fit and proper person to be registered in a role that calls for trust and integrity.
The shortcomings of this Applicant were displayed too close in time to the hearing of this matter to be ignored. While the Applicant has suffered some personal misfortune that may have set off the chain of events that led to his current predicament, those misfortunes are a regular part of modern life and do not excuse his shortcomings.
Further, the failures to meet the requirements to hold a migration Agents registration are sufficiently serious to warrant cancellation of the registration. The observations at [34] apply equally here. It would be anomalous to impose a lesser sanction where there has been a concealment of matters to which the Respondent might legitimately have regard in allowing a registration at all.
In the circumstances, the Tribunal affirms the decision under review.

I certify that the preceding 42 (forty‑two) paragraphs are a true copy of the reasons for the decision herein of Mr F. D. O’Loughlin, Senior Member

[sgd]........................................................................

Administrative Assistant

Dated 24 December, 2012

Date of hearing	26 & 27 July 2012
Counsel for the Applicant	Mr Michael Heaton, QC
Solicitor for the Applicant	Ms Samantha Burris, Starnet Legal
Counsel for the Respondent	Mr P Gray, SC
Solicitor for the Respondent	Mr Nick Swan, Sparke Helmore