Nima Mottaghi v Migration Agents Registration Authority
[2007] AATA 60
•15 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 60
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2006/47
GENERAL ADMINISTRATIVE DIVISION ) Re NIMA MOTTAGHI Applicant
And
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date15 February 2007
PlaceAdelaide
Decision The tribunal affirms the decision under review.
D.G. Jarvis
(Signed)
Deputy President
CATCHWORDS
IMMIGRATION - migration agent registration - whether applicant not fit and proper or not a person of integrity - previous conviction for obtaining money by false pretences - evidence of subsequent good conduct - consideration of role of migration agents and duties to respondent and to Department of Immigration and Citizenship - failure by applicant to provide relevant information requested by Tribunal - applicant disparaged respondent and process for review of its decisions - relevance of Code of Conduct - failure by applicant to attend for cross-examination at request of respondent - Tribunal satisfied that applicant not a fit and proper person - Tribunal not satisfied that applicant not a person of integrity - effective date of Tribunal’s decision - meaning of "any other matter relevant" – meaning of “fit and proper person” - meaning of “person of integrity” - decision under review affirmed.
Migration Act 1958, ss 290(1), (2)(h), 314(1)
Crimes Act 1914 (Cth), Part VIIC
Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321
Hughes and Vale Pty Ltd v State of New South Wales (No. 2) (1955) 93 CLR 127
Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558
Prothonotary v Del Castillo [2001] NSWCA 75
Re Hartnett and Migration Agents Registration Authority [2006] AATA 653
Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12
Re SRH and Comptroller-General of Customs (1995) 37 ALD 581
Seymour v Migration Agents Registration Authority [2007] FCAFC 5
Woods v Migration Agents Registration Authority (2004) 39 AAR 519
Reciprocal Duties of Bench and Bar (2007) 81 Australian Law Journal 23
PRACTICE AND PROCEDURE – migration agent providing immigration assistance overseas – registration not required for providing immigration assistance overseas – held that application should not be dismissed for lack of practical utility.
Administrative Appeals Tribunal Act 1975 (Cth), s 42B
Re Williams and Australian Electoral Commission and the Greens (1995) 38 ALD 366
D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, (6th Edition, 2006)
REASONS FOR DECISION
15 February 2007 Deputy President D G Jarvis 1. On 23 September 2005, the applicant, Nima Mottaghi, applied for registration as a migration agent. The Migration Agents Registration Authority (“MARA”) decided to refuse Mr Mottaghi’s application, on the grounds that it was not satisfied, pursuant to s 290(1) of the Migration Act 1958 (the “Act”) that he was a fit and proper person to give immigration assistance, or was not a person of integrity.
2. Mr Mottaghi has applied to this tribunal for review of MARA’s decision.
3. After he had lodged his application, Mr Mottaghi went overseas. He was represented at the hearing by a migration agent, Mr Van Arend, who communicated with Mr Mottaghi by email during the period leading up to the hearing before me, and represented him capably at the hearing.
Issues before the Tribunal
4. The issues before me are as follows:
(a)whether I am satisfied that Mr Mottaghi is not a fit and proper person to give immigration assistance;
(b) whether I am satisfied that Mr Mottaghi is not a person of integrity;
(c)whether the application should be dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”), on the grounds that its determination would be of no practical utility.
5. For the reasons set out below, I am satisfied that Mr Mottaghi is not a fit and proper person to give immigration assistance, but I am not satisfied that he is not a person of integrity. I have also concluded that it is not appropriate to dismiss the application under s 42B of the AAT Act.
Background
6. The following background facts are not in dispute, and are based on those parts of the applicant’s witness statement (exhibit A1) which are not challenged by the respondent, and on other records included in the T Documents (exhibit R1).
7. Mr Mottaghi is aged thirty one, having been born on 31 July 1975. He migrated to Australia with his family in 1991 from Tehran, Iran. His parents came to Australia as skilled migrants. He has one sister.
8. He completed his secondary education, and started a degree in civil aviation at the University of South Australia in 1995, but had to work to support himself, and found that he was too tired to continue his studies.
9. He had moved out of home when he commenced his studies, and was estranged from his parents for almost three years. After that he moved back home and worked in a computer store as a salesperson, and then as a computer technician. In 2002 he became a NAATI accredited interpreter, and worked as a subcontractor for organisations that specialise in legal and commercial matters.
10. Through his work as an interpreter he became exposed to immigration work, which he found very interesting. He became involved with the Refugee Advocacy Service of South Australia as he wanted to help Iranians and Afghans who were seeking refugee status in Australia. He volunteered his interpreting services because he wanted to give something back to the community. He also worked with a number of lawyers and migration agents who acted on a pro bono basis for asylum seekers held in detention at the Woomera and Baxter detention centres.
11. In the course of this work Mr Mottaghi met Ms Libby Hogarth, who is the principal of the migration agency Libby Hogarth and Associates. He commenced working with that agency late in 2004 on a subcontracting basis, providing interpreting, administrative and computer assistance. After observing the work done by Ms Hogarth and Mr Van Arend, who works with her, Mr Mottaghi decided that he wanted to become a migration agent himself. He then studied for the Migration Advice Profession Knowledge Entrance Examination, and passed this examination in July 2005.
12. In his application for a migration agent’s licence, Mr Mottaghi ticked the “Yes” box in answer to the question: “Has there ever been a finding of guilt against you for a criminal offence (except a conviction that is spent under Part VIIC Crimes Act 1914 (Cth))?” He appended to the application form a letter in which he disclosed that he had six offences between 1995 and 1998, and he provided an explanation of the circumstances in which the offences occurred. He also attached a copy of his record of convictions issued by the Australian Federal Police, as well as a number of character references.
13. After receiving the application, MARA sought further information regarding Mr Mottaghi’s criminal record. It subsequently decided to refuse the application for a licence, on the grounds that it was satisfied that Mr Mottaghi was not a fit and proper person to give immigration assistance, or not a person of integrity.
14. Mr Mottaghi’s criminal record comprises a prosecution for shop lifting, resulting on 30 March 1995 in no conviction being recorded and no penalty being imposed; four traffic offences in 1997; and a conviction for obtaining money under false pretences in October 1998, when he was sentenced to imprisonment for nine months, but the sentence was suspended on his entering into a bond to be of good behaviour for three years, and was ordered to pay compensation of $4,000.00. This amount was paid, and the bond was not breached.
Communications with the Applicant prior to the Hearing
15. According to the records of this tribunal, Mr Mottaghi attended at the registry on 10 August 2006 to advise that he was going away on 23 August 2006 for five to six months. He said that he would like his application to be heard before that date if possible but if not, he was asking Mr Van Arend to represent him. It was not possible to list the matter for hearing before the date of his departure, and Mr Van Arend has in fact represented Mr Mottaghi since then.
16. The tribunal’s records include a note that on 6 October 2006, Mr Van Arend telephoned a registry staff member and said that Mr Mottaghi had advised him that he was going to be away from Australia for more than one year.
17. Mr Mottaghi requested that his application be dealt with on the papers. His application was in due course listed for hearing on 17 January 2007, and a telephone directions hearing was convened for 8 December 2006 in order to ascertain whether, notwithstanding his request, he would be available to give evidence at the hearing by video link, and whether the hearing date was suitable. At the telephone directions hearing, Mr Van Arend advised that he had been in contact with Mr Mottaghi sparingly by email, but had told him that the hearing could be by telephone or video and had requested him, by email, for his telephone number. Mr Van Arend also advised the tribunal that he thought that Mr Mottaghi was in Germany, but there is no other information before the tribunal as to Mr Mottaghi’s whereabouts, notwithstanding a further request by the tribunal for his address and certain other information, to which I will refer below.
18. On 14 December 2006, Mr Mottaghi sent an email (exhibit R2) to Mr Van Arend, which reads as follows:
“Dear Hans,
Hope you are well and happy. thank you for all your efforts so far and I hope i can one day repay you. I am in a remote area and do not have access to any telephones here. i have to travel to a different area so i could use the net and because of the time difference i can not travel there and use the phone at 3 in the morning !!!! i think i have provided enough documents for them and have spent enough time and effort and money on this bullshit. I have paid my lawyers in melbourne $3800 and still owe them another $3000. The best I can do is to write a formal letter to the aat scan and email it to them, stating that you have my full consent to talk for me as my council and guardian (as i probably need one after all this shit). If this is not sufficient, they can do whatever they please. dont stress too much about it. If it is let me know please and i will start asap.
thank you again and i will try and check my mail at least once every 10 days.
take care
nima” (sic)
19. At a telephone directions hearing on 18 December 2006, I directed that unless either party made application on or before 11 January 2007 for the matter to be dealt with otherwise, the application would be determined on the papers, but on the basis that the parties’ representatives would attend at the hearing and make submissions. In the event, neither party applied for the matter to be dealt with otherwise, although the respondent’s counsel advised Mr Van Arend and the tribunal on 20 December 2006 that the respondent required the applicant for cross-examination, and would submit that any failure to attend for cross-examination would affect the weight that I should attach to the applicant’s witness statement.
20. Following that telephone directions hearing, my associate sent an email to Mr Mottaghi, with a copy to Mr Van Arend. This email (exhibit R3) included the following paragraphs:
“The Deputy President has instructed me to advise you that he regards certain further matters as potentially relevant to the determination of your application. He requests that you provide the following information to me, with a copy to Mr Paul d’Assumpcao of the Australian Government Solicitor (whose email address appears above), as soon as possible:
1. your current address;
2. details of the work you are now doing;
3. whether you propose to work as a Migration Agent in your current circumstances and if so, how do you propose to carry out that work;
4. whether you continue to have any connection with Australia and if so, what connection;
5. whether you intend to return to Australia and if so, when; and
6. when did you leave Australia, and why.
If you do not provide the above information the Tribunal will nevertheless proceed to determine your application on the information currently before it, but may, in arriving at its decision, take into account any failure on your part to provide the above information.”
21. On 9 January 2007, Mr Mottaghi sent an email (exhibit R4) to Mr Van Arend, in response to an email from him which incorporated the text of exhibit R3. Mr Mottaghi’s email in response included the following statements:
“As you are aware for the past 8.5 years, I have tried everything to undo my mistake and I must say that along the way my integrety was questioned more than a few times and I endured numerous insults and humiliations. I thought this country was able to see clearly and judge justly and maybe if my name was “John Smith” everything would have been a little bit easier for me. I do not wish anymore to be trying and justiifying my honesty and integrity. I think enough is enough.
As far as the AAT is concerned they have all the evidence in front of them and taking in to account the fact that the respondent was not going to cross examine any witnesses and me before (as was discussed with their previous council) as this is not a MURDER CASE, it should not be very difficult for the case to be heared on papers. Although according to the law (which I studied day and night to pass their exam), I do not need any licences to practice from the outside and also considering the fact that MARA has no juristiction over anything now (concerning my practices) and cannot abuse and misuse its authority and powers anymore, I still would like the AAT to have enough integrity and authority to stand up, look at the evidence and make a decision regarding one man who is asking for justice. (ADVANCE AUSTRALIA FAIR)
As far as the MARA is concerned I am already assisting clients to migrate to the subcontinent and I must say that for obvious reosons there are many more clients outside the bordes, and business is pretty fine. Maybe this was all meant to be. …” (sic)
22. I had previously made it clear that I would list this matter for hearing to commence in the afternoon, to enable Mr Mottaghi to participate in the hearing by telephone if he wished. However, it was apparent from his last email that he did not propose to participate in the hearing by telephone or video link, and he did not do so. Further, he did not provide the information requested by the tribunal in the email of 18 December 2006 (see paragraph 20 above), except for providing the limited information as to the work activities in which he is currently engaged.
Will the Determination of the Application be of Practical Utility?
23. It is apparent from Mr Mottaghi’s email of 9 January 2007 (exhibit R4) that he is currently providing advice to people wanting to migrate to Australia, and that he is doing this from outside Australia. Counsel for the respondent, Mr d’Assumpcao, acknowledged that MARA does not require persons acting as migration agents outside Australia to be registered, and does not contend that the provisions in the Act for the registration of migration agents have an ex-territorial operation. It is perhaps regrettable that registration is not also required for persons who provide immigration assistance overseas. However, the acknowledgement by MARA of the requirements for registration as the Act now stands accords with the presumption that legislation is presumed not to have an ex-territorial effect, in the absence of an express or implied contrary intention (see D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, (6th Edition, 2006) at [5.6] – [5.9]).
24. Section 42B of the AAT Act provides in effect that this tribunal may, at any stage of a proceeding, dismiss an application if it is satisfied that it is “frivolous or vexatious”. Those words have been interpreted to extend to cases where due to a change in the applicant’s circumstances, the determination of the application would have no practical utility (see Re Williams and Australian Electoral Commission and the Greens (1995) 38 ALD 366).
25. As I understand it, the applicant proposes at least in the immediate future to provide migration assistance in overseas countries, and he does not require to be licensed under the Act in order to do so. However, it is apparent that he wants this tribunal to determine his application on the merits, and authorised Mr Van Arend to represent him at the hearing of his application. Further, from the limited information before me, it appears that Mr Mottaghi intends at some stage to return to Australia, and in that event it is likely that he will wish to practise as a migration agent. As mentioned above, I have decided to affirm the decision under review, but this does not of course prevent Mr Mottaghi from making a fresh application for a licence, and if he does, it will be necessary for MARA to again consider the relevance of his past criminal record, and also to consider other issues arising out of the present proceedings. Of course, my decision in relation to the merits of the current application would not be binding on the person who decides any such future application, but I expect that it would provide guidance to MARA, and would therefore potentially be of future relevance. For the above reasons I consider that the application should not be dismissed under s 42B of the AAT Act.
Legislation
26. Part 3 of the Act makes provision for migration agents and the provision of immigration assistance. It was inserted into the Act in 1992. Division 2 of Part 3 contains provisions imposing restrictions on the giving of immigration assistance and the making of immigration representations. Section 280 of the Act makes it an offence, subject to certain qualifications, for a person who is not a registered migration agent to give immigration assistance.
27. Division 3 of Part 3 provides for the registration of migration agents. Section 287 provides for MARA to keep a register, to be known as the Register of Migration Agents, listing individuals who are registered as migration agents. Subsequent provisions of Division 3 provide for applications for registration.
28. Section 290 prohibits MARA from registering an applicant if it is satisfied (amongst other things) that the applicant is not a fit and proper person to give immigration assistance, or that the applicant is not a person of integrity. Subsections 290(1) and (2) provide relevantly as follows:
“(1)An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:
(a)the applicant is not a fit and proper person to give immigration assistance; or
(b)the applicant is not a person of integrity; or
(c)the applicant is related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship.
(2)In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:
(a) the extent of the applicant’s knowledge of migration procedure; and
(c)any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:
(i) a fit and proper person to give immigration assistance; or
(ii) a person of integrity;
(except a conviction that is spent under Part VIIC of the Crimes Act 1914); and
(d)any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and
(e)any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and
(f)any disciplinary action that is being taken, or has been taken against the applicant that the Authority considers relevant to the application; and
(g)any bankruptcy (present or past) of the applicant; and
(h)any other matter relevant to the applicant’s fitness to give immigration assistance.”
29. It is also relevant to refer to subsection 287(2), which makes provision for the information to be shown in the Register of Migration Agents. It provides as follows:
(2)The Register is to show in respect of each registered migration agent:
(a) the agent’s full name; and
(b) any business names of the agent or the agent’s employer; and
(c) a business address for the agent; and
(d) a telephone number for contacting the agent; and
(e) the date on which the agent was registered most recently; and
(g) particulars of any suspension of the agent’s registration; and
(h) particulars of any caution given to the agent; and
(i) particulars of any other prescribed matter.”
Section 287 goes on to impose other record-keeping obligations on MARA, and to require MARA to make the Register available for inspection.
Consideration
30. It is apparent from subsection 290(1) of the Act that the Act does not require MARA to register an applicant only if it is satisfied that the applicant is a fit and proper person and a person of integrity; rather, MARA must not register an applicant if it is satisfied that relevant disqualifying criteria are made out (see the analysis of Deputy President PE Hack SC in Re Hartnett and Migration Agents Registration Authority [2006] AATA 653 at [24], [25] and [27]).
Is the tribunal satisfied that the applicant is not a fit and proper person to give immigration assistance?
31. I first consider whether I am satisfied that Mr Mottaghi is not a fit and proper person to give immigration assistance, in which case he must not be registered as a migration agent by virtue of par 290(1)(a) of the Act.
32. The concept of giving immigration assistance is provided for in s 276 of the Act. It includes using knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by preparing for proceedings before a review authority, or representing the visa applicant or cancellation review applicant in proceedings before a review authority, in relation to the relevant applicant (see pars 276(1)(c) and 276(1)(d)). Of course, this tribunal also has jurisdiction to review certain decisions made under the Act, including decisions of MARA such as the decision under review in the present matter, but curiously, s 276 does not refer to preparing for proceedings before this tribunal (see the definition of “review authority” in s 275 of the Act).
33. The meaning of the expression “fit and proper person” was discussed in Hughes and Vale Pty Ltd v State of New South Wales (No. 2) (1955) 93 CLR 127 at 156, where Dixon CJ, McTiernan and Webb JJ said:
“The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it” –Coke.”
34. In Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 Toohey and Gaudron JJ said in effect, at 380, that the expression “fit and proper person” takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities.
35. In the present matter, the expression applies in the context of a person seeking registration as a migration agent pursuant to the Act. The object of the Act is to “regulate, in the national interest, the coming into, and presence in, Australia of non-citizens” (subsection 4(1)). This is a matter of vital concern to the Australian community.
36. It is apparent from Part 3 of the Act that Parliament has recognised the important role played by migration agents in the giving of immigration assistance. This is apparent not only from the provisions of the Act requiring the registration of migration agents, but also from the restrictions imposed upon migration agents by Division 2 of Part 3 of the Act, and the further provisions for deregistration, disciplinary action and notification obligations. Further, a Code of Conduct has been prescribed by regulations made pursuant to subsection 314(1), and the first aim of the Code, according to par 1.10(a), is to establish a proper standard for the conduct of a registered migration agent.
37. In considering whether Mr Mottaghi is not a fit and proper person, I am required by subsection 290(2) to take into account a number of specific criteria, which I will consider in turn.
38. As to the first criterion, I find that Mr Mottaghi has an adequate knowledge of migration procedure (see par 290(2)(a)). I also take into account his experience in providing interpreting services and providing assistance to refugees and other applicants, as outlined in his witness statement, and the testimonials contained in certain annexures to it. I also take into account that he has successfully completed the requisite examinations.
39. The next relevant criterion is par 290(2)(c). This requires me to take into account Mr Mottaghi’s conviction in October 1998 for obtaining money by false pretences. The respondent did not rely on Mr Mottaghi’s traffic offences in 1997 or his earlier conviction for larceny, and I do not regard those offences as relevant to par 290(2)(c) of the Act. The conviction for false pretences entailed fraudulent conduct, and is clearly relevant to a determination of whether it can be expected that Mr Mottaghi would act honestly if he were to be registered, and thereafter act, as a migration agent.
40. Mr Mottaghi provided further information regarding, and some explanation for, his offending in paragraphs 9 to 13 of his witness statement (exhibit A1), and also in earlier communications with MARA. These earlier communications are consistent with the relevant parts of his witness statement. However, because Mr Mottaghi was not available for cross-examination, as required by the respondent, I attach limited weight to those parts of the witness statement, and to his earlier explanation for his criminal conduct.
41. It appears that there is no record of the sentencing remarks of the Magistrate when the conviction for false pretences was recorded. However, I take into account that the offence was a minor indictable offence, and according to attachment “NM-3” to Mr Mottaghi’s witness statement, the maximum term of imprisonment was four years, but the applicant received a suspended sentence of nine months and was placed on a good behaviour bond for three years. It therefore appears that the Magistrate did not regard the offence as particularly serious.
42. I also take into account in favour of Mr Mottaghi that he repaid in full the amount of compensation that he was ordered to pay, he did not breach his bond to be of good behaviour, and has no other convictions subsequent to the conviction to which I have referred, which was in October 1998.
43. I also note that the offending which gave rise to the conviction occurred more than eight years ago, when Mr Mottaghi was a comparatively young man. There is no evidence of any improper conduct by Mr Mottaghi during the time when he assisted in migration matters, or provided translating services. On the contrary, there is strong evidence of his recent good character from persons who have been directly involved in providing immigration assistance and who have worked closely with him.
44. In considering the relevance of the conviction, I observe that paragraph 290(1)(a) requires the decision-maker to be satisfied that the applicant is not a fit and proper person to give immigration assistance at the time when the relevant decision is being made in relation to an application for registration, and not as at the time when the offence occurred, or when the offending conduct occurred: Prothonotary v Del Castillo [2001] NSWCA 75 at [71]. I also note that par 290(2)(c) excepts convictions that are spent under Part VIIC of the Crimes Act 1914 (Cth). Whilst neither party addressed any argument about the relevance of that exception, it appears that the conviction for false pretences will become a spent conviction in less than two years from now.
45. In all of the circumstances, I find that Mr Mottaghi’s conviction for obtaining money by false pretences does not of itself lead to the conclusion that Mr Mottaghi is not a fit and proper person to give immigration assistance.
46. As to pars 290(2)(d), (e), (f) and (g) of the Act, I take into account in Mr Mottaghi’s favour that none of the potentially negative factors referred to in those paragraphs apply to him.
47. Paragraph 290(2)(h) requires me to take into account any other matter relevant to Mr Mottaghi’s fitness to give immigration assistance. In considering the application of this criterion, I again refer to the object of the Act, (that is, to regulate, in the national interest, the coming into and presence in, Australia of non-citizens), and the importance to the Australian community of that object.
48. It is clear that the statutory scheme for the registration of migration agents and the supervision of their conduct is intended to protect members of the public and persons seeking immigration assistance (see Seymour v Migration Agents Registration Authority [2007] FCAFC 5, at [16]). For their part, migration agents fulfil a most important role in the implementation of the Act. The importance of their acting in accordance with high standards is recognised by subsection 314(1) of the Act, which empowers the making of regulations prescribing a code of conduct for migration agents, and requires a registered migration agent to conduct himself or herself in accordance with a prescribed code of conduct.
49. The Code of Conduct made under the Act expressly recognises that migration agents owe duties to the Commonwealth and its agencies, and provides for a number of those duties. One of those duties, imposed by par 2.23 of the Code, is to take all reasonable steps to maintain the reputation and integrity of the migration advice profession. The Code also provides that it is not intended to displace any duty that a registered migration agent may have at common law, or under legislation, in relation to a matter covered by the Code (par 1.9). Further, par 1.11 provides in effect that the Code is not an exhaustive statement of the acts or omissions that might fall short of what is expected of a competent and responsible registered migration agent.
50. In my view, when applications are made under the Act, registered migration agents should appreciate and respect the importance of the role and responsibilities of the Department administering the Act (which by a recent Administrative Arrangements Order was renamed the Department of Immigration and Citizenship) and of entities such as MARA and this tribunal in the implementation of the Act. For its part, the Department should be able to rely on migration agents at all times to act in that manner, and should I think be able to assume that they will refer to the Department (and other entities involved in the administration of the Act, such as MARA and this tribunal) in terms that are not disparaging, and that they will not discredit the importance of the role of those entities in the administration of the Act.
51. In Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12, Deputy President McMahon, when considering whether an applicant for registration as a migration agent was a “fit and proper person to give immigration assistance”, interpreted the word “assistance” to extend not only to help given to would-be applicants, but also to help given to the Department in the administration of immigration programs. He referred, at [26], to certain remarks he had made in an earlier decision as to the importance of the observance of truth in dealing with officials in migration matters, particularly where the truth is known only to the person making the statement. He continued:
“If these standards (that is standards of honesty and truthfulness) are important in relation to individual applications, how much more important are they in relation to those who will, in the course of their practice, make many representations to the Department on behalf of those seeking to deal with immigration matters. The requirement to display integrity and fitness in order to qualify for registration as a migration agent, has an element of mutuality. The need for probity is not only for the protection of clients, but also for the open, honest and efficient administration of immigration matters in which the agent is involved.”
52. Perhaps with respect an alternative basis for the mutuality of obligations is that this should be implied because of the public interest in the objective of the Act, and in achieving its proper implementation, rather than from an interpretation of the word “assistance” where that word is used with reference to migration agents giving “immigration assistance”, and that compendious concept is given a specific meaning by s 276 of the Act. However that may be, the proposition in Peng that migration agents owe a duty to the Department was supported by Wilcox J in Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558 at [24]. His Honour referred to the principle that in representing clients, a lawyer owes duties to the court, which include assisting in the efficient and expeditious disposal of the case. He continued:
“There is not thought to be any inconsistency between giving assistance to the court, in its carrying out its functions, and the primary obligation of the lawyer to represent the client. It seems to me this type of dual responsibility was being referred to in Peng.”
53. In a later case, Woods v Migration Agents Registration Authority (2004) 39 AAR 519, Crennan J considered an observation by this tribunal to the effect that the standard of conduct for migration agents is no less than the standard of conduct owed by lawyers. Her Honour decided that this did not constitute an error of law, in the context of the duty to avoid a conflict of interest.
54. In a very recent article entitled “Reciprocal Duties of Bench and Bar” published in (2007) 81 Australian Law Journal 23, the Honourable Justice J D Heyden AC referred to the reciprocal duties of courts and barristers. He referred (at 81 ALJ 25) to the characteristics required of judges, and said that the display of those characteristics by barristers was also desirable, although qualified by their duty to advance client interests. The relevant characteristics for judges that were referred to by Justice Heyden included good manners, abstention from anger or malice or personal attack, whether on counsel or parties or witnesses, and respect for other organs of government and for other decision-making bodies.
55. Having regard to the public interest in the proper execution of the functions of registered migration agents, their responsibility to assist the Department to carry out its functions, the cases that suggest that the standard of conduct that applies to lawyers should also apply to registered migration agents, and the provision of the prescribed Code of Conduct requiring them to maintain the reputation and integrity of the migration advice profession, I think that registered migration agents should also display the characteristics referred to by Justice Heyden, to which I referred in the preceding paragraph, in their dealings with the Department and with other organisations, including MARA and this tribunal. Of course, Mr Mottaghi is not a registered migration agent, but as an applicant for registration he should be aware of the standards of conduct that will be required of him if his application is successful, and should conduct himself in accordance with those standards.
56. In paragraph 18 above I quoted an email from Mr Mottaghi to Mr Van Arend. Mr Mottaghi refers to the proceedings in this tribunal in derogatory and crude terms. It is apparent from his later email of 9 January 2007 (exhibit R4) that Mr Mottaghi was aware that a copy of his earlier email of 14 December 2006 had been provided to this tribunal, but he has made no attempt to retract the abusive remarks contained in his earlier email. Further, his later email of 9 January 2007 (exhibit R4) is derogatory of MARA.
57. Having regard to the important role of registered migration agents in providing immigration assistance, and in particular MARA’s obligation not to register an applicant as a migration agent if he or she is not a fit and proper person to give immigration assistance, I think that MARA acted properly and responsibly in the present matter in seeking further information regarding Mr Mottaghi’s earlier offending, particularly as it involved dishonest conduct on his part. However, Mr Mottaghi’s disparaging attitude to MARA and to the process for reviewing its decisions indicates that he does not understand or acknowledge either the responsibilities of MARA and its concern about his earlier conviction for an offence entailing dishonesty, or the review process of this tribunal and its place in the proper administration of the Act. His attitude further suggests that the Department could not depend on him, if he were providing immigration assistance as a registered migration agent, to understand his obligations to the Department in relation to the proper administration of the Act, or to conduct himself with propriety in referring to the Department or its responsibilities in administering the Act.
58. I am further concerned that Mr Mottaghi did not see fit to provide the information requested by this tribunal in exhibit R3 (see paragraph 20 above). He should have realised that the Register of Migration Agents must show the agent’s address and contact details. He should also have appreciated the relevance of other information requested by the tribunal, namely when and why he left Australia, whether he had any continuing connection with Australia and whether he intended to return to Australia and if so when. He should have provided this information to the tribunal, but did not do so.
59. Mr Mottaghi’s emails also indicate an indifferent attitude on his part to the prosecution of his application to this tribunal for review of MARA’s decision. This is further evidenced by his unwillingness to take advantage of the opportunity of participating in the hearing by telephone or video link, and his unwillingness to be available for cross-examination, notwithstanding the respondent’s requirement that he should be so available.
60. Having taken into account all of the matters referred to in subsection 290(2), I am satisfied on balance that Mr Mottaghi is not a fit and proper person to give immigration assistance, and so, having regard to the terms of subsection 290(1) of the Act, he must not be registered as a migration agent.
Is the tribunal satisfied that the applicant is not a person of integrity?
61. For the sake of completeness, I will also consider whether I am satisfied that Mr Mottaghi is not a person of integrity (although strictly speaking, it is not necessary for me to consider this in view of my above conclusion).
62. In Re SRH and Comptroller-General of Customs (1995) 37 ALD 581, Deputy President Purvis discussed the meaning of the expression “person of integrity”. He first referred with approval to the relevant meaning in the Macquarie Dictionary of “integrity”, namely “soundness of moral principle and character; uprightness; honesty”. He proceeded to refer to a number of other authorities, including authorities dealing with the expression “fit and proper” in the context of persons holding specified offices or vocations, and he said that the requisite qualities to meet that expression are also qualities relevant to integrity. After referring to the facts of the matter before him, he said (at [45]):
“It is accepted that the relevant considerations in determining the question of integrity are whether the applicant has understood the error of his ways; whether he appreciates the significance of his experience; whether he displays regret; whether there is a permanent defect in his character; whether the events of 1988-1989 as to the applicant’s criminal conduct should be seen as a series of events relating to the same time period and pressure; and, ultimately, whether, on the balance of probabilities, it is unlikely that there will be a future lapse.”
63. I adopt, with respect, the above approach in interpreting the expression “person of integrity”.
64. The question of whether Mr Mottaghi is a person of integrity also involves considering the matters referred to in subsection 290(2) of the Act. My earlier comments in relation to the paragraphs of that subsection are, in the case of pars 290(2)(a), (d), (e), (f) and (g), equally applicable to a consideration of Mr Mottaghi’s integrity.
65. For the reasons referred to above, I do not think that Mr Mottaghi’s past offending means that he is not now a person of integrity. On the contrary, the character evidence which he has submitted in support of his application to this tribunal indicates that he is a person of integrity, and is unlikely to offend again.
66. Whilst there is clearly some overlap in the concepts of being a fit and proper person to give immigration assistance and being a person of integrity, the former concept, in my opinion, imports somewhat broader considerations. The matters to which I have referred above in the context of par 290(2)(h) of the Act (that is, other matters which led me to find that I was not satisfied that he was a fit and proper person to give immigration assistance) are not in my view as relevant or important in an assessment of whether Mr Mottaghi is a person of integrity.
67. Having had regard to the matters referred to in subsection 290(2), I am not satisfied that Mr Mottaghi is not a person of integrity, and so his application for registration should not be refused on that ground.
Entitlement to make future application for registration
68. My decision in this matter will not of course preclude Mr Mottaghi from making a fresh application for registration as a migration agent at some future time.
69. Under subsection 291(1) of the Act, an applicant must not be registered if he or she has been refused registration as a migration agent within twelve months before his or her application. However, under subsection 43(6) of the Administrative Appeals Tribunal Act 1975 (Cth) my decision is deemed to have had effect on and from the day on which the decision under review had effect. In this case, that date was 22 February 2006, being the date of MARA’s decision to refuse the application. My decision would not therefore preclude MARA from approving, at any time on or after 23 February 2007, any new application for registration which Mr Mottaghi might make.
70. I would expect that if Mr Mottaghi submits any such fresh application and provides an undertaking, in a form acceptable to MARA, that he will be mindful of and observe his obligations to the Department as outlined in this decision, and that he will not disparage MARA, and if he apologises for the disparaging remarks he has made in the context of the present proceedings regarding MARA and the process whereby MARA’s decision is reviewed by this tribunal, then having regard to my decision as to the relevance of his past criminal conviction, it might well be that any future application for registration will be granted. However, any such future application, of course, will have to be determined by MARA on the merits, and by reference to all of the information before it at that time.
Decision
71. The tribunal affirms the decision under review.
I certify that the 71 preceding paragraphs are
a true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
L. Wunderer AssociateDate/s of Hearing 17 January 2007
Date of Decision 15 February 2007
Advocate for the Applicant Mr H Van Arend
Solicitor for the Applicant Australian Refugee Association
Counsel for the Respondent Mr P d'Assumpcao
Solicitor for the Respondent Australian Government Solicitor
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