Prasad and Migration Agents Registration Authority
[2002] AATA 423
•3 June 2002
DECISION AND REASONS FOR DECISION [2002] AATA 423
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1832
GENERAL ADMINISTRATIVE DIVISION )
Re Narendra Prasad
Applicant
And Migration Agents Registration Authority
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President
Date3 June 2002
PlaceSydney
Decision The Tribunal affirms the decision under review.
..............................................
R P Handley
Deputy President
CATCHWORDS
MIGRATION AGENTS REGISTRATION AUTHORITY – refusal of registration as migration agent – whether the Tribunal is "comfortably satisfied" that the applicant is a fit and proper person to be registered as a migration agent – interpretation of 'person of integrity' and 'fit and proper person' – Tribunal is satisfied that the applicant is not a fit and proper person to be registered as a migration agent – decision of MARA affirmed.
Migration Act 1958 ss 290, 290(1)(2)(3), 303, 303(a)(e), 314, 314(2)
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Briginshaw v Briginshaw (1938) 44 ALR 334
Hughes and Vale Pty Ltd v State of NSW (No 2) (1955) 93 CLR 127
Lilienthal v Migration Agents Registration Authority [2002] FCA 93
Re Hakaoro and Minister for Immigration ad Multicultural Affairs (1998) 26 AAR 534
Re Lilienthal and Migration Agents Registration Authority [2001] AATA 797
Re Prasad and Migration Agents Registration Authority [2001] AATA 942
Re SRH and Comptroller-General of Customs (1995) 21 AAR 401
REASONS FOR DECISION
3 June 2002 R P Handley
This is an application by Narendra Prasad ("the Applicant") for a review of the decision of the Migration Agents Registration Authority ("MARA") ("the Respondent") made on 19 November 2001 to refuse Mr Prasad's application for registration as a migration agent pursuant to s 290 of the Migration Act 1958 ("the Act"). At the hearing, the Applicant was represented by Craig Colborne, of Counsel, and the Respondent was represented by Tim Reilly, of Counsel. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"), together with the documents tendered by the parties. The Applicant gave evidence in person and Carina Ford gave evidence by telephone.
BACKGROUNDThis is the second application made by Mr Prasad to the Tribunal concerning his registration as a migration agent by the Respondent. On 15 November 2001, the Tribunal decided to set aside a decision of the Respondent made on 12 June 2001 to cancel Mr Prasad's registration as a migration agent pursuant to s 303(e) of the Act, following Mr Prasad being declared bankrupt and the Tribunal remitted the matter to the Respondent with a direction that Mr Prasad's registration as a migration agent should not have been cancelled: RePrasad and Migration Agents Registration Authority [2001] AATA 942. In the current proceedings, the parties invited the Tribunal to take into consideration the evidence before the Tribunal during the previous hearing. The matters referred to more fully in the current proceedings were not before the Tribunal at the previous hearing.
In September 1999, Mr Prasad received instructions from Mr Karuppia Thenappan for assistance in obtaining permanent residence in Australia. On 15 October 1999, Mr Thenappan signed a Fees Agreement with Global Australian Immigration & Education Service Pty Ltd ("Global"), the company run by Mr Prasad, for the payment of $1,700 in respect of the preparation and lodgment of Mr Thenappan's application for a Skilled Independent Visa. The Fees Agreement referred to fees to be paid to the Department of Immigration and Multicultural Affairs ("the Department") of $1,595, to be paid before the lodgment of the visa application. Mr Prasad also gave Mr Thenappan a "Memorandum of Cost" for $450 in relation to work done for Mr Thenappan by Global Taxation Services in relation to commercial and contractual issues. On 16 October 1999, Mr Thenappan signed a Form 956 appointing Mr Prasad to act as his agent. On 18 October 1999, Mr Thenappan deposited $2,100 into Global's St. George business cheque account.
By letter dated 27 January 2000, Mr Thenappan's business sponsor was notified by the Department that the nomination of Mr Thenappan for a position had been approved. Mr Prasad claims that on 20 February 2000, Mr Thenappan met with him and signed an application for General Skilled Migration – Independent Category. At that meeting, Mr Thenappan asked that Global pay the Department's application fee on his behalf. On about 10 March 2000, Mr Prasad claims that he sent Mr Thenappan's visa application together with a cheque for $1,075 to the Australian High Commission in Auckland. In early June 2000, Mr Thenappan's file was reviewed and it was realised that no acknowledgment had been received from New Zealand. It was also realised that the wrong version of Form 47SK had been used in the application and amended pages were therefore prepared and sent with another cheque for $1,075 (the earlier cheque having been cancelled), and a letter dated 13 June 2000, to the Australian Consulate in Auckland.
On 14 June 2000, Mr Thenappan signed a Form 956 appointing Carina Ford of Wisewoulds Lawyers of Melbourne as his agent. On 16 June 2000, Wisewoulds sent a fax to Mr Prasad informing him that they now acted on behalf of Mr Thenappan in relation to his application for migration to Australia and asking him for information about the whereabouts of Mr Thenappan's application for migration. Mr Prasad claims that he was off sick at this time and returned to work on about 26 June 2000 after being away for about a week. On 28 June 2000, Mr Prasad claims that he telephoned Carina Ford at Wisewoulds and informed her that a Form 956 Authority was insufficient under the Migration Agents' Code of Conduct. Ms Ford denies that she received such a phone call. On 28 June 2000, Wisewoulds wrote to Mr Prasad making various demands and stating that if no response was received within 14 days a complaint would be lodged with the Respondent.
On 28 June 2000, Mr Prasad received an email from a departmental officer at the Consulate in Auckland confirming that she had received Mr Thenappan's application together with a Commonwealth Bank cheque for Aus$1,075. She asked Mr Prasad to arrange for payment in New Zealand dollars. Mr Prasad cancelled the cheque for Aus$1,075 and, on 10 July 2000, a replacement Commonwealth Bank cheque for NZ$1,425 was sent. By letter dated 14 July 2000, addressed to Mr Thenappan c/- Mr Prasad at Global, a departmental officer at the Australian Consulate notified Mr Thenappan of the receipt of his application. On receipt of this letter on 18 July 2000, Mr Prasad forwarded a copy to Wisewoulds.
On 18 July 2000, Wisewoulds wrote to the Respondent enclosing a complaint regarding Mr Prasad's conduct in acting on behalf of Mr Thenappan. On 9 August 2000, the Respondent wrote to Mr Prasad advising him of the complaint and asking him to respond. On 28 August 2000, Mr Prasad responded. On 16 October 2000, the Respondent wrote to Wisewoulds advising them of Mr Prasad's response and inviting comments. Wisewoulds responded by letter dated 31 October 2000. On 5 December 2000, Mr Thenappan signed a Form 956 appointing Ms Ford, by then of Gadens Lawyers of Melbourne, as his agent. A copy of this authority was enclosed with Gadens' letter to the Respondent dated 11 December 2000. On 8 February 2001, the Respondent wrote to Mr Prasad requesting that he provide his original file with respect to Mr Thenappan.
On 18 May 2001, the Refugee Review Tribunal ("RRT") published a decision in the matter of Amy Chand for whom Mr Prasad had acted in relation to an application for a protection visa. The RRT affirmed the decision to refuse Mr Chand's application. On or about 7 June 2001, Mr Prasad sent papers in relation to this matter to Benjamin Zipser, of Counsel, stating that Mr Chand wished to apply to the Federal Court for review of the RRT's decision and asking Mr Zipser to act in this matter. Mr Zipser stated that he understood that he was acting for Mr Chand on a "direct access brief" and proceeded to draft an application for an order of review in the Federal Court. Mr Zipser included Mr Chand's address for service as being c/- Mr Prasad at his business address in Surry Hills. Mr Zipser states that he gave this document to Mr Prasad for Mr Chand to sign and for the application to be filed in the Federal Court.
At a directions hearing in the Federal Court on 14 June 2001, Branson J directed that the application be amended to ensure compliance with the Federal Court Rules. This amended draft included space for Mr Chand's residential address to be inserted. Mr Zipser gave the amended application to Mr Prasad for Mr Chand to sign and for the document to be filed. At a hearing before Branson J on 29 August 2001, Mr Zipser referred to Mr Prasad as "my solicitor". On 18 September 2001, the Registrar and Chief Executive Officer of the Federal Court wrote to the Respondent bringing this matter to its attention for consideration and any appropriate action. On 9 October 2001, the Legal Services Commissioner wrote to the Respondent enclosing correspondence relating to a complaint by Justice Branson.
On 19 September 2001, the Respondent advised the Applicant that it would defer making a decision on the Applicant's re-registration until after the decision of the Tribunal on the review of the decision made by the Respondent on 12 June 2001 to cancel Mr Prasad's registration as a migration agent following his having been declared bankrupt on 4 August 2000. On 24 October 2001, the Respondent wrote to Mr Prasad notifying him that amongst the matters that it was considering taking into account in relation to his application for renewal of registration were the complaint by Mr Thenappan and the Federal Court proceedings in Amy Chand v Minister for Immigration and Multicultural Affairs in which it was alleged that Mr Prasad had held himself out as a legal practitioner. The Respondent invited Mr Prasad to make a submission on these and other matters.
On 15 November 2001, the Tribunal set aside the Respondent's decision to cancel the Applicant's previous registration. On 16 November 2001, Mr Prasad made a submission to the Respondent in response to its letter dated 24 October 2001. On 19 November 2001, the Respondent decided to refuse Mr Prasad's application for re-registration. Mr Prasad was notified of this decision by letter dated 23 November 2001, enclosing a copy of the Respondent's decision. On 30 November 2001, Mr Prasad lodged an application with the Tribunal for a review of that decision.
APPLICABLE LAWSection 290 of the Act provides:
(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
(b) whether the applicant has a qualification prescribed by the regulations or a knowledge of migration procedure that the Authority considers to be sound; 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 Act1914 ); 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 a professional association is taking, or has 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.
(3) In considering whether it is satisfied that an individual to whom the applicant is related by employment is not a person of integrity, the Migration Agents Registration Authority must take into account each of the following matters, so far as the Authority considers it relevant to the question whether the individual is not a person of integrity:
(a) any conviction of the individual of a criminal offence (except a conviction that is spent under Part VIIC of the Crimes Act 1914 );
(b) any criminal proceedings that the individual is the subject of;
(c) any inquiry or investigation that the individual is or has been the subject of;
(d) any disciplinary action that a professional association is taking, or has taken, against the individual;
(e) any bankruptcy (present or past) of the individual.
Section 314 states:
(1) The Regulations may prescribe a Code of Conduct for migration agents.
(2)A registered agent must conduct himself/herself in accordance with prescribe Code of Conduct.
A Migration Agents' Code of Conduct is set out in Part 2 of the Migration Agents Regulations.
EVIDENCE
Narendra Prasad ("the Applicant")
Mr Prasad provided two additional statements dated 1 April 2002 (A1) and 12 April 2002 (A6) which he confirmed were true and correct. The latter statement includes 10 attachments which Mr Prasad located after the hearing on 3 April 2002 when checking his files. The attachments comprise documents relating to Mr Thenappan which, Mr Prasad said, had been placed in a plastic folder and had been incorrectly filed in another client's file. Mr Prasad acknowledged that he had lost the computer disc containing other documents relating to Mr Thenappan's visa application. Mr Prasad noted that the Supplementary T Documents do not include Mr Thenappan's amended visa application dated June 2000. Mr Prasad said these documents were given to the Respondent. However, on further questioning, Mr Prasad acknowledged that his letter to the Australian Consulate in Auckland dated 13 June 2000 (A3, attachment) was not provided to the Respondent. However, Mr Prasad said a copy of this letter was given to Mr Thenappan.
Mr Prasad said he first had discussions with Mr Thenappan in September 1999 and, in October 1999, received formal instructions to act. Mr Thenappan signed an instruction form on 16 October 1999. Mr Prasad told Mr Thenappan that he had done approximately $2,200 of work for him and he would not do any more work for him until he had received some payment. It was for this reason that on 18 October 1999, Mr Thenappan paid Global $2,100 in respect of work done. This included $450 payable to Global Taxation Services for work done in advising on contractual and commercial matters. Mr Prasad acknowledged that no invoice had been issued to Mr Thenappan at that stage. However, the Fees Agreement was signed by Mr Thenappan on that date (A6, Attachment 6). Mr Prasad said that by 18 October 1999, he would have compiled most of the information necessary for making the visa application with the exception of one or two documents, including, for example, the police report. At the time that formal instructions are given by a client, usually 90% on the visa application is done. Mr Prasad said that he did invoice Mr Thenappan later for the work done but that document is contained in the lost computer disc.
Mr Prasad said that no additional money was received from Mr Thenappan and, when the visa application was lodged in March 2000, Global paid the visa application fee on Mr Thenappan's behalf. Because of the dispute with Wisewoulds, Mr Prasad has never recovered this disbursement. Mr Prasad said it was not unusual for Global to pay a visa application fee and invoice the client for this when the application is concluded. He noted that this may mean waiting up to a year to recover the disbursement made. Mr Prasad said he had not originally given Mr Thenappan a written estimate of fees. However, details of Global's standard fees appear on its website, including the visa applications fees. Moreover, an information sheet would have been given to Mr Thenappan providing information about Global's charges. A copy of a similar information sheet provided to other clients was attached to Mr Prasad's statement of 12 April 2002 (A6, Attachment 11).
Mr Prasad said he met with Mr Thenappan about 20 February 2000, when Mr Thenappan signed the visa application. He then sent the visa application to the Australian Consulate in Auckland in March 2000 with a cheque for $1,075 in respect of the application fee. When no acknowledgment was received from New Zealand, Mr Prasad reviewed the file and checked with the bank to see whether the cheque had been drawn. When he realised that the March 2000 application had been prepared using the wrong form, he prepared replacement pages which he attached to his letter to the Australian Consulate, dated 13 June 2000. A FEDEX International Air Weighbill shows that this was sent on 14 June 2000 (ST p766). Mr Prasad said he does not often send documents by FEDEX but did so on this occasion to make sure that the application was delivered and that he had a receipt. His letter of 13 June 2000 also enclosed a new cheque for $1,075, his having asked his bank to cancel the cheque drawn in March 2000. Global then sent a follow-up letter dated 19 June 2000 (ST p768) which Mr Prasad had drafted on the 13 June. Mr Prasad assumes the letter was sent by fax but he does not have a fax transmission sheet. Mr Prasad received acknowledgment of receipt of the application by email from Auckland on 28 June 2000 (ST p769).
Mr Prasad said he did not immediately receive Wisewoulds' fax dated 16 June 2000 (ST p746) because he was away sick. He returned to work on about 26 June 2000 and telephoned Carina Ford of Wisewoulds on 28 June 2000 in response to her letter. Mr Prasad provided a copy of his file note on this brief telephone conversation as an attachment to his statement of 12 April 2002 (A6, Attachment 8). Mr Prasad said he told Ms Ford that her claim for the return of funds was outrageous and said he would not be sending her any file documents until he received a copy of Wisewoulds' instructions to act for Mr Thenappan. He said her conduct was a breach of the Migration Agents' Code of Conduct. Mr Prasad acknowledged that Wisewoulds' letter enclosed a Form 956 signed by Mr Thenappan instructing Ms Ford to act as his agent. Mr Prasad said that he took this as notice of an intention by Mr Thenappan to terminate his instructions to Mr Prasad but not as the required formal termination itself.
Mr Prasad said he responded to the email from the department officer at the Australian Consulate in Auckland on 28 June 2000, concerning the cheque for the visa application fee, which had been paid in Australian rather than New Zealand dollars, because he believed it was in his client's best interest to do so and because the bank would not have been able to pay the cheque drawn in favour of the Australian High Commission to anyone else. Sending a replacement cheque in New Zealand dollars was the only additional action he took with regard to Mr Thenappan. Mr Prasad said he phoned the departmental officer in Auckland and asked her to return the cheque. He received this on about 9 July 2000, and on 10 July 2000, he took it to the bank and arranged for a new cheque to be issued in New Zealand dollars. He then sent the cheque by certified by mail soon after 10 July 2000.
With regard to Mr Amy Chand, Mr Prasad said Mr Chand asked him to find a barrister to represent Mr Chand in his appeal to the Federal Court against the decision of the RRT. Mr Prasad passed the file documents to Mr Zipser and asked him to act on Mr Chand's behalf. They subsequently discussed the matter on the phone. Mr Prasad also met with Mr Chand on two or three occasions to discuss the Federal Court application. On the first occasion, they discussed the rejection of Mr Chand's application by the RRT and, on the second occasion, Mr Chand gave Mr Prasad some money on account of court fees. Mr Prasad said he did not charge Mr Chand any fee for his services in relation to the Federal Court application and did not give Mr Chand any advice about this application. Mr Prasad received cash from Mr Chand from which he paid Mr Zipser's fees and reimbursed Global for the Federal Court filing fees which had already been paid. It was agreed that Mr Chand would pay Global in instalments and not all instalments have yet been paid. Mr Prasad said he gave Mr Zipser's fee account to Mr Chand together with a receipt for the Court filing fees.
With regard to the address for Mr Chand which Mr Zipser inserted on the Federal Court Application, Mr Prasad said that Mr Zipser had used Mr Prasad's address as a matter of convenience. Mr Prasad said he was not aware of any difficulty that this might raise with the Federal Court Rules – he left the drafting of the application to Mr Zipser.
Carina FordMs Ford confirmed that she had written to Greg Peak at the Australian Government Solicitor's Office on 17 April 2002 (R4), in response to a fax dated 16 April 2002 from Mr Peak concerning Mr Prasad. Ms Ford said Mr Thenappan is currently residing temporarily in the United States. Ms Ford said she worked at Wisewoulds from August 1999 to October 2000. Wisewoulds was a medium to large sized firm with 16 partners but, a few months before she left, the firm split up and Wisewoulds now has about 10 partners. She was first registered as a migration agent in 1996 but then took a year off and re-registered in 1998.
Ms Ford said she cannot recall any conversation with Mr Prasad on 28 June 2000 or at any other time. She is aware of the Migration Agents' Code of Conduct. She received oral instructions from Mr Thenappan that he no longer wanted Mr Prasad to act for him and Mr Thenappan's signed Form 956 giving her authority to act on his behalf.
SUBMISSIONS
RespondentMr Reilly said that the Respondent relies on both s 290(1)(a), that Mr Prasad is not a fit and proper person to give immigration assistance, and s 290(1)(b), that Mr Prasad is not a person of integrity, as justification for refusing his registration as a migration agent. Mr Reilly said that included in the matters to be taken into account by the Respondent in considering whether a person is not a fit and proper person, or not a person of integrity, are the matters referred to in s 290(2)(e), any inquiry or investigation to which the applicant has been subject, s 290(2)(g), any bankruptcy of the applicant, and s 290(2)(h), any other matter relevant to a person's fitness to give immigration assistance. Mr Reilly noted that s 313(1) states:
A registered agent is not entitled to be paid a fee or other reward for giving immigration assistance to an assisted person unless the agent gives the assisted person a statement of services
Furthermore, s 314(2) requires that migration agents must conduct themselves in accordance with their code of conduct.
Mr Reilly reminded the Tribunal that the findings from its earlier decision have not been canvassed in this matter but are relevant. He noted that Justice Young had found Mr Prasad to be an unreliable witness and that he had acted beyond his instructions from Mrs Rogers. Mr Reilly submitted that Mr Prasad's evidence in the current proceedings has been very unsatisfactory: his evidence has been vague, and further documents have come to light during the course of the hearing so that, despite Mr Prasad's earlier excuse that the documents were contained on the computer disc which had been lost, many of those documents have now been tendered and admitted in evidence.
With regard to the payment of $2,100 made by Mr Thenappan to Global on 18 October 1999, Mr Reilly noted that no invoice had been submitted to Mr Thenappan before payment was made. Mr Reilly submitted that Mr Prasad's evidence that most of the work on Mr Thenappan's application had been completed before that date, was implausible: a more plausible explanation is that Mr Prasad received money for work which he had not done. Mr Reilly noted that the fee agreement between Global and Mr Thenappan dated 15 October 1999 (A6, Attachment 3) provides for an agreed price of $1,700 with a first instalment of $500 and four later instalments of $300.
Mr Reilly said the Respondent submits that Mr Prasad never lodged a visa application with the Australian Consulate in Auckland in March 2000. When Ms Ford checked with the Australian Consulate on 16 June 2000, she was advised that no such application had been lodged (ST p746). Mr Thenappan's application was received at the Consulate on 28 June 2000, as acknowledged in the email message of that date. There is no evidence of any application being received in Auckland before that date. Mr Reilly said Mr Prasad's story of the June application constituting an amendment of the application made in March is inconsistent with other evidence. Mr Reilly submitted that no application was made until after 16 June 2000 when Mr Prasad received Wisewoulds' letter. FEDEX has no record of their sending an application on 14 June 2000, as claimed by Mr Prasad, and the evidence from the Australian Consulate is that the application was not received there until 28 June 2000. Then, when the cheque for Aus$1,075 was returned to Mr Prasad and he arranged for a cheque for NZ$1,425 to be issued in its place on 10 July 2000, that cheque was not sent to New Zealand until about 11 July 2000, some time after Mr Prasad had received an instruction from Wisewoulds that he was no longer acting for Mr Thenappan.
Mr Reilly said the Form 956 completed by Mr Thenappan instructing Ms Ford to act on his behalf should have been sufficient notification to Mr Prasad. Mr Prasad claims that he had a telephone conversation with Ms Ford on 28 June 2000, when he told her that the Form 956 was not satisfactory. However, Ms Ford's evidence was that such conversation never took place and there was no contact by Mr Prasad with Wisewoulds.
With regard to the Migration Agents' Code of Conduct, Mr Reilly referred the Tribunal to paragraph 2.20 of the Code and alleged that Mr Prasad failed to find out the correct amount of the visa application fee in New Zealand dollars and inform Mr Thenoppan of this. Mr Prasad is also in breach of paragraphs 4.4 and 4.5 of the Code, in that he failed to recognise the instructions to act which Wisewoulds had from Mr Thenoppan and failed to act with fairness, honesty and courtesy when dealing with Wisewoulds. With regard to paragraph 6.1 of the Code, Mr Prasad failed to maintain proper records that could be made available for inspection on request by the Respondent: he did not have copies of the visa applications made on behalf of Mr Thenoppan in March 2000 and June 2000, nor did he have copies of each written communication and file notes of each oral communication between himself and Mr Thenappan, and between himself and departmental officers. Moreover, Mr Prasad was in breach of paragraph 6.2 of the Code in that he did not keep documents securely, and failed to respond adequately to requests for information within a reasonable time from the Respondent.
With regard to Mr Prasad's financial duties, he breached paragraph 7.1 of the Code by not maintaining a separate account for disbursements and, contrary to paragraph 7.2, he failed to hold fees paid by Mr Thenappan in a separate account until the work for the client had been completed. Further, Mr Prasad did not make records of his clients' account available for inspection on request by the Respondent.
With regard to Mr Prasad's duties as a migration agent to his employees, Mr Prasad was in breach of paragraph 8.1 by failing to exercise effective control over his staff. Contrary to paragraph 9.1, he also failed to respond properly to the Respondent about the complaint lodged by Mr Thenappan. Finally, Mr Prasad breached paragraph 10.1(b) by continuing to act in relation to Mr Thenappan's visa application having been notified that Ms Ford of Wisewoulds had received instructions to act for Mr Thenappan, and then Mr Prasad failed to take all reasonable steps to deliver documents to Mr Thenappan, contrary to paragraph 10.6 of the Code.
Mr Reilly said that the Respondent submits that Mr Prasad's failure to respond truthfully to the Respondent and the Tribunal indicates that he is not a person of integrity. He has breached numerous provisions of the Code of Conduct, for example those with regard to record keeping, financial dealings, dealings with other agents, and dealings with the Respondent, all of which indicates he is not a fit and proper person to give immigration assistance.
With regard to the medical evidence, Mr Reilly said Dr Edgar Freed's report dated 21 September 2001 (A7), provides no excuse for Mr Prasad's poor performance in giving evidence. Dr Clive Lovell's report dated 9 April 2002 (A8) provides no explanation for Mr Prasad repeatedly contradicting himself. With regard to the complaint by the Federal Court concerning Mr Prasad's conduct, Mr Reilly submitted that, despite Mr Zipser's explanation, this suggests a tendency by Mr Prasad to act beyond his instructions as Justice Young found with regard to Mrs Rogers. Mr Reilly said that when all the evidence is taken into account, the Tribunal should find that Mr Prasad is not a person of integrity or that he is not a fit and proper person to be a migration agent. Mr Reilly referred the Tribunal to the decision in Re Lilienthal and Migration Agents Registration Authority [2001] AATA 797, where Deputy President Purvis discusses the meaning of "person of integrity" and "fit and proper person". An appeal against this decision to the Federal Court was dismissed: Lilienthal v Migration Agents Registration Authority [2002] FCA 93.
ApplicantWith regard to the Federal Court complaint, Mr Colborne said Mr Prasad arranged for Mr Zipser to represent Mr Chand in his application to the Federal Court and, therefore, any mistakes made were, as Mr Zipser acknowledged, his responsibility. The Federal Court application was prepared by Mr Zipser and Mr Zipser gave evidence that he was not aware that Order 4, Rule 4 required that the Federal Court application should contain the name and address of the Applicant as well as an address for service.
Mr Colborne said the primary issue is whether the applications of March 2000 and June 2000 were sent to the Australian Consulate in Auckland. Mr Prasad believed that the departmental file would confirm this. Mr Colborne noted the documentary evidence of the work undertaken by Mr Prasad in preparing the March 2000 application, the accompanying letter dated 10 March 2000, a copy of which was attached to Wisewoulds' fax dated 16 June 2000 (A3), and the copy of the cheque for $1,075 (ST p764) which accompanied the application. Mr Colborne noted that a superseded version of the correct visa application form was mistakenly used and that the cheque was in the wrong currency. With regard to the letter of 13 June 2000 addressed by Mr Prasad to the Australian Consulate (A3, attachment) enclosing an amended application and replacement cheque, Mr Prasad's evidence is that this was sent about 14 June 2000. While the email message from the departmental officer in Auckland acknowledging receipt is dated 28 June 2000 (ST p753), this does not indicate that the letter and application were not received at the Consulate prior to that date. Mr Colborne noted that a copy of the letter dated 13 June 2000 had been supplied by Mr Prasad to Mr Thenappan and it appears that it was receipt of this letter that stimulated Mr Thenappan to seek the advice of Wisewoulds. Mr Colborne submitted that the Tribunal should, on balance, be satisfied that Mr Prasad sent Mr Thenappan's visa application to the Consulate with a letter dated 10 March 2000 and that a replacement form was later prepared and sent in June 2000.
With regard to the Respondent's request dated 8 February 2001 for the original of Mr Prasad's file for Mr Thenappan (ST p781), Mr Colborne noted that Mr Prasad responded to this request by letter dated 2 March 2001 (A4). Mr Prasad enclosed a copy of his working papers in preparing Mr Thenappan's visa application but advised that he was unable to retrieve an electronic copy of the form lodged from his database. Mr Colborne noted that the postcode used on Mr Prasad's letter to the Respondent was incorrect (NSW 2230 rather than NSW 2030) and this may indicate why the letter was not delivered. Mr Colborne noted the conflict between Mr Prasad's evidence and that of Ms Ford. Mr Prasad's evidence was that he reacted to Wisewoulds' letter of 16 June 2000 (A3) as soon as he personally received this. Mr Colborne suggested that Ms Ford had misinterpreted paragraph 4.4. of the Migration Agents' Code of Conduct and submitted that the client is required to write to a former migration agent to withdraw his or her instructions. With regard to Ms Ford's letter to Mr Prasard dated 28 June 2000 (ST p748), Mr Colborne submitted that it was improper to threaten that unless the sum of $3,756 was received within 14 days, Mr Thenappan would be lodging a complaint with the Respondent, with respect to the mishandling of his application.
Mr Colborne acknowledged that Mr Prasad became confused in giving evidence but said this confirmed the medical evidence as to the nature of Mr Prasad's condition. An inspection of Mr Prasad's file documents in relation to Mr Thenappan, makes it clear that Mr Prasad had completed most of the necessary work by 18 October 2000 and was merely awaiting receipt of a few additional documents. When Mr Prasad realised, on checking his file, that the wrong version of the visa application form had been used for Mr Thenappan, he considered that there was no point in contacting the departmental officer at the Australian Consulate in Auckland, but that it was better to send replacement pages completed in the correct form. Mr Colborne noted the FEDEX International Air Weighbill for documents sent by Mr Prasad to the Australian Consulate on 14 June 2000 (ST p766), but acknowledged that a summons addressed to FEDEX had proved to be of no assistance.
With regard to Mr Prasad's continuing to act for Mr Thenappan after receiving Wisewoulds' letter, Mr Colborne noted that the only thing Mr Prasad did after this was to replace the cheque for Aus$1,075 with a substitute cheque for NZ$1,425. With regard to other alleged breaches of the Migration Agents' Code of Conduct, while Mr Colborne acknowledged that there have clearly been record keeping problems in relation to Mr Thenappan's application, this is the only complaint ever made to the Respondent about Mr Prasad's work as a migration agent. The Applicant submits that the Tribunal should find that he is a person of integrity and a fit and proper person to give immigration assistance. However, in view of the evidence with respect to Mr Prasad's record keeping, Mr Colborne acknowledged that the Tribunal might feel it appropriate that a caution be issued to Mr Prasad with regard to this aspect of his conduct.
APPLICATION OF THE LAW AND FINDINGSThe issue for the Tribunal to determine pursuant to s 290(1) of the Act is whether Mr Prasad is not a fit and proper person to give immigration assistance or is not a person of integrity. In so determining, the Tribunal must take into account the matters raised in s 290(2) set out above. The Tribunal notes that s 290(2)(h) requires the decision-maker to take into account "any other matter relevant to the applicant's fitness to give immigration assistance" and, in so doing, the Tribunal will have regard to whether Mr Prasad complied with relevant clauses of the Migration Agents' Code of Conduct in accordance with which migration agents must conduct themselves pursuant to s 314(2). The Tribunal also notes that s 303 provides the Respondent with power to caution a migration agent if satisfied that the agent becomes bankrupt, the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance, or the agent has not complied with the Code of Conduct.
The obligation placed upon the Respondent by the relevant provisions of the Act is to be "satisfied". The Tribunal reiterates the reference it made in the previous decision in this matter to the High Court decision in Briginshaw v Briginshaw (1938) 44 ALR 334, where Rich J, at 350, said of the obligation placed upon a court or tribunal to satisfy itself:
The phrase "satisfy itself" so far as it reasonably can obviously reflects the influence of the common expression "reasonable satisfaction"… The nature of the allegation requires as a matter of commonsense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the Tribunal has reached both a correct and just conclusion.
In its previous decision in this matter, the Tribunal also referred to the meaning of the phrases "person of integrity" and "fit and proper person". The Tribunal cited the discussion by Deputy President Purvis in Re SRH and Controller-General of Customs (1995) 21 AAR 401, at 405, when he adopted the ordinary meaning of the word "integrity" as indicating "soundness of moral principle and character; uprightness; honesty". He then went on to discuss the meaning of "fit and proper" in the context of the Income Tax Assessment Act, which he said encompasses integrity, honesty, diligence and professionalism; these are the qualities relevant to integrity. The Tribunal then cited Deputy President Forgie in Hakaoro and Minister for Immigration and Multicultural Affairs (1998) 26 AAR 534, and her discussion of the need for a migration agent giving competent migration assistance to have a knowledge of migration procedure. While knowledge may not reflect on a person's integrity, it may mean that a person is not otherwise a fit and proper person to give immigration assistance. The Tribunal was also referred by Mr Reilly to the decision in Lilienthal (supra). In that case, Deputy President Purvis repeated his discussion of the word "integrity" in Re SRH (supra). He also cited the decision in Hughes and Vale Pty Ltd. v State of NSW (No 2) (1955) 93 CLR 127 at 156, where the High Court discussed the meaning of the "fit" in a similar context, which it said involves: "Three things, honesty knowledge and ability". The Deputy President emphasised that the concept of fitness and propriety is not however, to be narrowly construed or confined but is to be interpreted in the context of the activities in which the person is, or will be engaged and the ends to be served by these activities: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380.
In the Tribunal's previous decision in this matter, it determined that the discretion in s 303(a) of the Act to cancel the registration of a person as a migration agent should not be exercised in the case of Mr Prasad. The Tribunal summarised its discussion at paragraph 33 as follows:
In the particular circumstances of the present matter, the Tribunal does not consider that Mr Prasad's bankruptcy of itself is sufficient to establish that he is not a person of integrity and is otherwise not a "fit and proper person to give immigration assistance". Clearly, Young J. in the Supreme Court considered that Mr Prasad might have been acting in the best interests of Mrs Roger's, albeit that he was acting beyond his authority. Nor, in the Tribunal's view, is Mr Prasad's prevarication about producing the financial records for Global and his reluctance about revealing the nature of his relationship with Ms Brigantic and with the business, sufficient to persuade the Tribunal of these matters.
In the present proceedings, further allegations have been made about Mr Prasad's conduct, in particular, involving complaints by the Federal Court and by Mr Thenappan. The complaint made against Mr Prasad by the Federal Court was in relation to an application to the Federal Court by Mr Amy Chand challenging a decision by the RRT affirming a decision not to grant Mr Chand a protection visa. Mr Prasad's evidence is that he was asked by Mr Chand to find a barrister to represent him in making the application to the Federal Court. Mr Prasad therefore asked Mr Benjamin Zipser to act and Mr Zipser prepared the relevant Federal Court application. There is no evidence that Mr Prasad ever held himself out as a solicitor and Mr Zipser gave evidence that he accepted responsibility for a mistake on the Federal Court application when, in contravention of Order 4 Rule 4, he did not include the Applicant's address in that application, instead giving Mr Chand's address as being care of Mr Prasad. The Tribunal accepts Mr Prasad's evidence that he did not charge Mr Chand any fees in respect of his own services in relation to the Federal Court application but sought to recover from Mr Chand the Federal Court filing fee and Mr Zipser's fee. Mr Prasad's arrangement with Mr Chand was that Mr Chand would reimburse him by instalments and Mr Prasad's evidence is that, at the time of the Tribunal hearing, Mr Chand had not yet paid the final instalment. The Tribunal makes no adverse finding about Mr Prasad in relation to this matter which, essentially, arose out of a mistake made by Mr Zipser.
The Tribunal's findings in relation to Mr Thenappan's complaint are as follows. The Tribunal accepts that in September 1999, Mr Thenappan approached Mr Prasad for immigration assistance. Mr Prasad prepared a skilled (independent) migrant visa application for Mr Thenappan. Mr Thenappan went to see Mr Prasad again on 16 October 1999 when he signed a Form 956 appointing Mr Prasard to act as his agent (A5). Mr Prasad also prepared a Fees Agreement dated 15 October 1999 for Global's services in relation to Mr Thenappan's visa application (A6, Attachment 3) and a Memorandum of Cost dated 15 October 1999 from Global Taxation Services in relation to advice provided to Mr Thenappan on contractual and commercial matters (A6, Attachment 4). The Fees Agreement was subsequently signed by Mr Thenappan on 18 October 1999 (A6, Attachment 6). Amongst the file papers, there is also a Form 887 General (Residence) Visa Application which was signed by Mr Thenappan on 15 October 1999 (A6, Attachment 5). It is not clear to the Tribunal whether Mr Thenappan met with Mr Prasad on both 15 and 16 October 1999, but Mr Prasad's evidence is that at that time, he told Mr Thenappan he had done approximately $2,200 worth of work for him and he would not do any further work until he had been paid. This appears to have been the reason for Mr Thenappan paying a cheque for $2,100 into Global's account on 18 October 1999.
The Tribunal finds that Mr Prasad had not provided Mr Thenappan with a statement of services rendered at that time, but he had asked Mr Thenappan to sign a Fees Agreement which gave some information about the nature of the work undertaken. Mr Prasad's evidence was that information about Global's charges was available on its website and that Global provides clients with an information sheet setting out Global's fees and disbursements (A6, Attachment 11). The Fees Agreement states that the fee in respect of Global's services is $1,700. Global Taxation Services Memorandum of Cost was for $450. Thus, when Mr Prasad said he had undertaken $2,200 of work for Mr Thenappan, the Tribunal concludes that this was an exaggeration. Mr Prasad's evidence was that he had completed "90% of the work" on Mr Thenappan's visa application. The Tribunal does not find this plausible given that not only had Global not received all the relevant documents which were needed for the application but, as it turned out, Mr Thenappan did not lodge an application for a general (residence) visa but instead lodged an application for a skilled (independent) visa.
The Tribunal notes from Mr Prasad's skilled (independent) visa working papers (A4, Attachment) that these papers were signed by Mr Thenappan on 21 February 2000. The Tribunal accepts Mr Prasad's evidence that Mr Thenappan asked Mr Prasad to pay the visa application fee on his behalf on the basis that Mr Thenappan would later reimburse Mr Prasad for this. The Tribunal finds that a Commonwealth Bank cheque for Aus$1,075 dated 10 March 2000 (ST p764) was drawn, addressed to the Australian High Commission in New Zealand. The Tribunal also finds that Mr Prasad sent Mr Thenappan's visa application accompanied by the cheque with a letter dated 10 March 2000 addressed to the Principal Migration Officer at the Australian Consulate in Auckland (ST p755). However, it appears that the application was probably not received since the Commonwealth Bank cheque was not cashed. Mr Prasad became aware of this when reviewing his file when he also discovered that a superseded visa application form had been used.
The Tribunal accepts Mr Prasad's evidence that he therefore completed replacement pages of the current version of the application form and had the Commonwealth Bank cheque re-issued (ST p770); he sent these to New Zealand with a covering letter dated 13 June 2000 (A3, Attachment) by FEDEX on 14 June 2000 (ST p766). This was then followed up with a letter dated 19 June 2000 (ST p768) asking for acknowledgment of receipt of the application. It is not clear when this letter dated 19 June 2000 was sent or whether it was faxed. On 28 June 2000, a departmental officer at the Australian Consulate in Auckland responded by email (ST p769) saying she had "received the migration application today" and asking for a cheque made payable in New Zealand dollars. On 4 July 2000, Mr Prasad sent an email to the Consulate asking for advice as to the amount of the lodgment fee. The Consulate responded on 5 July 2000 saying that the fee was NZ$1,425 (ST p772). Mr Prasard then obtained a Commonwealth Bank cheque for NZ$1,425 dated 10 July 2000 (ST p770) which he sent to New Zealand.
Mr Prasad sent a copy of the letter dated 13 June 2000 to Mr Thenappan. This appears to have prompted Mr Thenappan to approach Wisewoulds to act for him and, on 14 June 2000, he signed a Form 956 appointing Ms Ford of Wisewoulds as his agent in relation to his dealings with the Department (ST p74). On 16 June 2000, Wisewoulds faxed a letter of that date to Mr Prasad (A3), informing him of their instructions to act, enclosing a copy of the Form 956, and requesting the release of Mr Thenappan's file to them. Mr Prasad's evidence is that he was away from the office sick at the time and did not return to work until about 26 June 2000 when he received Wisewoulds' fax. However, it is not clear why another person in Global's office did not, at least, acknowledge Wisewoulds' fax in Mr Prasad's absence. Mr Prasad points to his file note of 28 June 2000 (A6, Attachment 8) as evidence that he telephoned Ms Ford on that date in response to Wisewould's fax. He said he informed her that the copy of Form 956 was insufficient for the purposes of paragraph 4.4 of the Code of Conduct. He also told her that he had a lien on the file documents until he had been paid in full. Ms Ford's evidence is that Mr Prasad did not telephone her. On 28 June 2000, she wrote Mr Prasad a letter, following up her letter of 16 June, requesting payment of $3,756 within 14 days and stating that if a response was not received within that time "our client will be lodging a complaint with the Migration Agents Registration Authority with respect to the mishandling of his application" (ST p748). Given the contradictory evidence, the Tribunal is unable to make a conclusive finding as to whether or not Mr Prasad spoke to Ms Ford. However, it is inclined to think that Mr Prasad probably did phone Wisewoulds, although may not have spoken to Ms Ford.
Before examining the implications of the above findings in relation to the Migration Agents' Code of Conduct, mention should be made of the medical evidence as to Mr Prasad's condition. Dr Edgar Freed, Consultant Psychiatrist, prepared a report dated 21 September 2001 (A7) on a "Mini Mental State Examination" carried out on that day. Dr Freed said the examination showed no depression, but a "slight slowness in the speed of processing information" which he attributed to the minor strokes suffered by Mr Prasad during the course of heart surgery in May 1993. Dr Freed stated that the slight slowness in processing information that Mr Prasad suffers "should be of no consequence in the ordinary course of day to day business decisions". The Applicant also provided a report from Dr Clive Lovell, Mr Prasad's family doctor, dated 9 April 2002 (A8). Dr Lovell stated that Mr Prasad:
has recently been hospitalised at Prince of Wales Hospital for treatment of a heart condition, from 12 – 21/03/2002. It is possible that he may suffer short term after-effects of the illness and its treatment, in the form of decreased ability to process information quickly, as when answering questions during cross-examination. It does not appear likely that such after-effects will be long lasting or will have a significant effect upon Mr Prasad's ability to carry on his usual business.
The Tribunal's impression of Mr Prasad from his giving evidence, was that he was confused about some of the events. At the earlier of the two hearings on 3 April 2002, he stated that a number of the file documents relating to Mr Thenappan had been contained in a computer disc which was lost. On the second day of the hearing on 17 April 2002, Mr Prasad had located various documents relating to Mr Thenappan which he said had been misfiled in a plastic folder which had been placed in another person's file. Again, the impression gained by the Tribunal from an examination of these documents and of the other file documents relating to this matter prepared by Mr Prasad, is of his being disorganised and failing to maintain a proper file in relation to Mr Thenappan. The Tribunal notes, in particular, that Mr Prasad had not retained a hard copy of Mr Thenappan's visa applications which he had sent to the Australian Consulate in Auckland. With respect to Mr Prasad's financial records and invoicing, the impression gained by the Tribunal is also one of some disorganisation. Finally, the Tribunal observes that Mr Prasad's file notes and correspondence are truncated in character.
Having made these findings, the Tribunal must consider whether it is "comfortably satisfied" on the basis of all the evidence before it, that Mr Prasad is not a person of integrity or is otherwise not a "fit and proper person to give immigration assistance". Having regard to the meaning of the word "integrity" and, in particular, to its exposition by Deputy President Purvis in Re SRH (supra) as "soundness and moral principle and character; uprightness; honesty", the Tribunal is not satisfied on the basis of the evidence and its findings that Mr Prasad is not a person of integrity in the terms expressed by Deputy President Purvis. However, the Tribunal's findings do raise questions about whether Mr Prasad is able to fulfil the functions and responsibilities of a migration agent and whether, therefore, he is a fit and proper person to give immigration assistance. The Tribunal has concerns about his record keeping and management of his business, about the performance of his financial duties, in particular, as to his account keeping and invoicing, and about whether he is exercising effective control of his business for the purpose of giving immigration advice and assistance.
The Tribunal had regard to the matters to which decision-makers are referred by s 290(2). Based on Mr Prasad's evidence and the documentary evidence before the Tribunal, the Tribunal gained the impression that Mr Prasad has a reasonable working knowledge of migration procedure, although considers that his efficiency and effectiveness in giving immigration assistance is affected adversely by disorganisation of the kind which was apparent from his handling of Mr Thenappan's case. The fact that Mr Prasad has not been released from bankruptcy, does not, in the Tribunal's view, of itself, affect his ability to give immigration assistance, although the Tribunal notes that the events which gave rise to the bankruptcy are indicative of the lack of clarity in Mr Prasad's operation, his confusion over some matters and what the Tribunal surmises may be inadequate communication with his clients. In the Tribunal's view, the medical evidence suggests that his medical condition may be contributing to these problems.
With regard to the Migration Agents' Code of Conduct in accordance with which Mr Prasad must conduct himself, the Tribunal has concerns with regard to Mr Prasad's compliance with those parts of the Code concerning record keeping and management, financial duties and the duties of Agents to their employees. As to his dispute with Wisewoulds in relation to Mr Thenappan, in the Tribunal's view, this was probably affected by Mr Prasad having been away sick and by a somewhat confrontational letter from Wisewoulds dated 28 June 2000. In fairness to Ms Ford, she was no doubt frustrated at not having heard from Mr Prasad in response to her fax dated 16 June 2000.
The Tribunal also took into account the evidence that emerged at the previous hearing relating to the structure of Global, including the role of its principal shareholder, Ms Anna Brigantic, and the lack of clarity in the business arrangements and as to who has control over the business.
Whilst individually, particular action or inaction by Mr Prasad may not have been of great significance and may have been the subject only of criticism, when considered as a whole, in the context of Global's business arrangements, these actions indicate that Mr Prasad was not running his business of giving immigration assistance efficiently and effectively in a manner which should be expected from a Migration Agent. The Tribunal is mindful of the fact that much of the evidence at the most recent hearing related principally, to a complaint by Mr Thenappan who has not been shown to have suffered any significant detriment as a result of Mr Prasad's conduct. However, the light which this complaint throws on the way in which Mr Prasad conducts his business, when considered in the context of the other evidence, leads the Tribunal to conclude that it is "comfortably satisfied" that he is not a "fit and proper person to give immigration assistance", and that the Respondent's decision to refuse Mr Prasad's application for registration as a migration agent should be affirmed.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed: .....................................................................................
AssociateDate of Hearing 3 April and 17 April 2002
Date of Decision 3 June 2002
Representative for the Applicant Mr C Colborne, BarristerRepresentative for the Respondent Mr T Reilly, Barrister
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