Prassad and Migration Agents Registration Authority - [2001] AATA 942

DECISION AND REASONS FOR DECISION [2001] AATA 942

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/959

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Narendra Prasad
  Applicant
           And    Migraton Agents Registration Authority
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date15 November 2001
PlaceSydney

Decision      The Tribunal sets aside the decision under review and remits the matter to the Respondent with a direction that the Applicant's registration as a migration agent should not have been cancelled.
.
  ..............................................
  Mr R P Handley
  Deputy President
CATCHWORDS
MIGRATION – cancellation of registration of Migration Agent – where Applicant declared bankrupt -– whether Tribunal "comfortably satisfied" that Applicant "fit and proper person" and "person of integrity" to be a migration agent

Migration Act 1958: ss 303, 280, 276, 290(1), 306

Briginshaw v Briginshaw (1938) 44 ALR 334
De Vere and Migration Agents Registration Board (AAT 13278, 11 September 1998)
Re Hakaoro and Minister for Immigration and Multicultural Affairs (1998) 26 AAR 534
Re SRH and Comptroller-General of Customs (1995) 21 AAR 401
Sarkis and Migration Agents Registration Board (AAT 12331, 23 October 1997)

REASONS FOR DECISION

R P Handley

This is an application by Narendra Prasad ("the Applicant") for a review of decision of the Migration Agents Registration Authority ("the Respondent") made on 12 June 2001 to cancel the Applicant's registration as a migration agent pursuant to s 303(e) of the Migration Act 1958 ("the Act"), following the Applicant being declared bankrupt.
At the hearing, the Applicant was represented by Craig Colborne, of Counsel, and the Respondent was represented by Murray Allatt, Solicitor of the Australian Government Solicitor's office. 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 at the hearing. Both he and Anna Bregantic also gave evidence when the Applicant's application for a Stay Order was heard on 10 August 2001.

BACKGROUND

Mr Prasad was born on 5 November 1935 and is aged 66. Mr Prasad was born in Fiji and first came to Australia in about 1956, settling here in about 1960. He and Ms Bregantic married in 1976, but separated in 1990, although they continued living together in the same property. In 1993, Mr Prasad underwent heart surgery. In 1996, he provided financial advice to Joan Rogers who, in 1997, instituted proceedings against Mr Prasad and others in the Supreme Court of New South Wales. Mr Prasad was found to have acted outside the authority conferred on him by Mrs Rogers to act as her agent and, accordingly, was liable for damages in respect of any loss caused by his actions. On 3 November 1999, Mr Prasad was found liable to pay Mrs Rogers $740,000 by way of damages. On 4 August 2000, a sequestration order was made against Mr Prasad by the Federal Court. On 14 August 2000, Mr Prasad notified the Respondent of his bankruptcy.
In about 1997, Mr Prasad purchased an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Prassad and Migration Agents Registration Authority

Details

AGLC: Prassad and Migration Agents Registration Authority [2001] AATA 942
Case: [2001] AATA 942
Decision Date: 15 November 2001

CaseChat Overview and Summary

In the case of Prassad and the Migration Agents Registration Authority, the Tribunal was tasked with deciding whether Mr. Prassad's registration as a migration agent should be cancelled, suspended, or cautioned, following his bankruptcy. The Tribunal's decision was based on the requirements of the Migration Act 1958 and the principles established in cases such as Briginshaw v Briginshaw and Re Hakaoro and Minister for Immigration and Multicultural Affairs. The Tribunal considered Mr. Prassad's declaration of bankruptcy and whether he remained a "fit and proper person" and a "person of integrity" to continue as a migration agent.

The legal issues before the Tribunal were whether Mr. Prassad's bankruptcy and his mental health history, which included chronic depression and memory problems, disqualified him from being a migration agent. The Tribunal was required to assess Mr. Prassad's current fitness and integrity, considering his past conduct, health, and financial situation. The relevant sections of the Migration Act 1958 included ss 303, 280, 276, 290(1), and 306, which provide for the cancellation, suspension, or cautioning of a migration agent's registration.

The Tribunal found that Mr. Prassad's bankruptcy and his past conduct did not necessarily disqualify him from being a migration agent. The Tribunal considered Mr. Prassad's efforts to improve his mental health and his ongoing medical treatment. The Tribunal concluded that Mr. Prassad had demonstrated a sufficient level of rehabilitation and integrity, and therefore, his registration should not be cancelled. The Tribunal was not "comfortably satisfied" that Mr. Prassad was not a "fit and proper person" and a "person of integrity" to continue as a migration agent, given his current circumstances and ongoing treatment.

The Tribunal ordered that Mr. Prassad's registration as a migration agent should not be cancelled. Instead, it was determined that a caution would be appropriate, reflecting the Tribunal's view that Mr. Prassad's past conduct and current circumstances warranted a measure of oversight. This decision underscored the importance of rehabilitation and ongoing fitness in the assessment of a migration agent's suitability.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 306 provides for a review of such decisions by the Tribunal. Since there is no dispute that Mr Prasad has been declared bankrupt, the question for the Tribunal to determine is whether to exercise the discretion to cancel, suspend or caution Mr Prasad.DISCUSSION OF THE EVIDENCE Mr Prasad's evidence is that from 1976 to about 1992 he was self-employed as an accountant and tax consultant. In April and May 1993, Mr Prasad suffered heart failure and, on 18 May 1993, was admitted to St. Vincent's Hospital for heart bypass surgery. The anaesthetic administered for the surgery was not totally effective, and Mr Prasad was aware of what was happening during the course of the surgery with the consequence that he suffered trauma and a number of minor strokes. Following his discharge from hospital on 25 May 1993, he developed chronic depression and memory problems. As a result, he was liable to become frustrated and angry. In 1995, Mr Prasad commenced counselling with a consultant psychiatrist, Dr Edgar Freed, who also prescribed various medications for Mr Prasad's condition. In 1990, Mr Prasad's marriage to Ms Bregantic broke down and they separated. However, they remained friends and did not divorce, and Mr Prasad continued to live with Ms Bregantic in her apartment in Centennial Park. Ms Bregantic has also supported Mr Prasad financially when he has needed this. Following Mr Prasad's discharge from hospital in May 1993, he was unable to work for a few years. In 1996, he undertook some limited accounting work for a film financing company as a result of which he was introduced to Mrs Rogers and provided her with some financial and taxation advice. In December 1996, Mr Prasad purchased a shelf company, Manifesto Services Pty Ltd which, in 1997, Mr Prasad decided to use as the vehicle for developing an immigration and education business. The name of the company underwent two changes becoming Global on 28 August 1998. The proceedings brought by Mrs Rogers against Mr Prasad and others commenced in the Supreme Court of New South Wales in October 1998. In his statement dated 14 October 2001 (A5), Mr Prasad stated he could not afford legal representation for these proceedings which caused him "a lot of stress and my blood pressure became difficult to control during the hearing in late 1988 [sic], I went haywire". In his judgment, Young J records the difficulty Mr Prasad had in giving evidence, that resulted in an adjournment and a medical report being tendered on the next day in which the doctor recommended that Mr Prasad not be regarded as a reliable witness in court. However, his Honour found that even though Mr Prasad acted outside the scope of his authority as Mrs Roger's agent, nevertheless, he may have thought that he was acting in her best interests (T 33, p125). After the Court hearings in October 1998, Mr Prasad commenced a programme of yoga, meditation and exercise as a result of which his mental health improved steadily. He stopped consulting Dr. Freed in 1999 and, over a period of about four months, reduced and then stopped taking anti-depressants. However, Mr Prasad states he still sees his cardiologist for two monthly reviews and his general practitioner, Dr Clive Lovell, every few weeks.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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