Raymond Salomonn and Migration Agents Registration Authority
[2013] AATA 146
•19 March 2013
[2013] AATA 146
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1992
Re
Raymond Salomonn
APPLICANT
And
Migration Agents Registration Authority
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 19 March 2013 Place Sydney Decision Summary
The decision under review is affirmed.
.......................[SGD].................................................
Senior Member A K Britton
CATCHWORDS
MIGRATION—Migration agents—Cancelation of registration as migration agent—Whether agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance—Meaning of ‘integrity’—Meaning of ‘fit and proper person’—Whether agent’s registration should be suspended or cancelled—Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Migration Act 1958 (Cth) ss 290, 303, 314
Migration Agents Regulations 1998 reg; sch 2CASES
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Peacock v Repatriation Commission (2007) 161 FCR 256
Re Mottaghi and Migration Agents Registration Authority (2007) 98 ALD 424
Repatriation Commission v Warren (2008) 167 FCR 511Seymour v Migration Agents Registration Authority (2007) 156 FCR 544
SECONDARY MATERIALS
Code of Conduct for Registered Migration Agents (1 July 2012)
REASONS FOR DECISION
Senior Member A K Britton
19 March 2013
In accordance with orders of 19 February 2013, these reasons are subject to a confidentiality order under section 35 of the Administrative Appeals Tribunal Act 1975 and are not to be released, published or otherwise made available other than to the parties before 18 April 2013.
Mr Raymond Salomonn seeks review of the decision made by the Migration Agents Registration Authority to cancel his registration as a migration agent. Mr Salomonn was first registered as a migration agent in July 2006. In 2011, the Authority decided to suspend, and 12 months later, to cancel, Mr Salomonn’s registration as a migration agent. That decision was made pursuant to s 303(1)(f) of the Migration Act 1958 (Cth) (the Act): the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance.
The decision to cancel Mr Salomonn’s registration as a migration agent was made after the Authority had investigated and found proven a number of complaints made by former clients of Mr Salomonn and the Department of Immigration.
Mr Salomonn apparently does not contest the findings of fact upon which the cancellation decision was based. He contends that given his mental health, the preferable decision is to suspend his registration for a period of up to three years. The Authority submits that cancellation is warranted given the gravity and pattern of Mr Salomonn’s offending conduct.
ADJOURNMENT APPLICATION
Mr Salomonn’s application for review of the cancellation decision was listed for a two day hearing. On the morning on the first day of that hearing, Mr Salomonn’s application for confidentiality orders under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) was determined. Confidentiality orders were made but not in the form sought by Mr Salomonn, who, among other things, sought an order suppressing the publication of his name.
Dissatisfied with that decision, Mr Salomonn announced that he intended to lodge an appeal with the Federal Court and left the hearing. His solicitor requested an adjournment until such time as the foreshadowed appeal was determined. The Authority opposed that application pointing out that the initiating application had been lodged in May 2012; the matter had been the subject of a number of interlocutory hearings and significant cost had already been incurred.
The application for an adjournment was refused. Mr Salomonn’s solicitor was requested to notify Mr Salomonn of that decision and also that the hearing would recommence in 30 minutes. When the hearing reconvened the solicitor advised that as requested, he had notified Mr Salomonn that the adjournment application had been refused. The solicitor also announced that his instructions had been withdrawn and he would no longer be appearing in the matter.
The hearing proceeded in the absence of Mr Salomonn.
Statutory framework
Section 303 of the Act provides that the Authority may cancel or suspend the registration of a migration agent if it becomes satisfied that:
…
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
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(h) the agent has not complied with the Code of Conduct prescribed under section 314.
…
The Authority has prescribed a Code of Conduct pursuant to s 314(1) of the Act (see Regulation 8 and Schedule 2 of the Migration Agents Regulations 1998). A registered migration agent must conduct himself or herself in accordance with that Code (s 314(2) of the Act).
The cancellation decision
The cancellation decision was made following complaints received by six of Mr Salomonn’s former clients and the Department of Immigration. These complaints were in addition to those investigated which led to the decision to suspend Mr Salomonn’s registration as a migration agent. The decision–maker found among things, that Mr Salomonn had:
a.Provided advice to clients which was plainly incorrect and based on an inaccurate description of Migration Law;
b.Acted dishonestly by informing clients that applications had been lodged when in fact they had not;
c.Failed to keep his clients informed of the progress of their visa applications and the associated process;
d.Failed to have due regards to his clients’ dependence and reliance on his knowledge and experience;
e.Breached his obligations to act in the best interests of his clients;
f.Failed to respond to the Authority in a timely manner, or at all;
g.Accepted payment for professional fees and VACs in circumstances where he has failed to follow client instructions and failed to lodge the relevant visa applications;
h.Failed to properly manage money entrusted to him by his clients;
i.Acted in a manner which other registered migration agents of good repute and competency would regard as disgraceful or dishonourable as it placed his clients at a significant financial and administrative disadvantage and did not achieve the desired outcome for the clients; and
j.Failed to take all reasonable steps to maintain the reputation and integrity of the profession.
Central to whether, as the Authority contends, Mr Salomonn is not a person of integrity or otherwise not a fit and proper person to give immigration assistance and/or has not complied with the Code of Conduct, turns on, among other things, whether some or all of these findings can be accepted.
The statement of facts and contentions filed by Mr Salomonn in these proceedings, contain two apparently conflicting statements. Under the heading “Facts” it states: “the applicant concedes the material facts constituting the decision under review”. The document goes on to contend that “notwithstanding any alleged breach of the code of conduct, that [Mr Salomonn] is a person of integrity, or otherwise a fit and proper person to give immigration assistance”.
It is not entirely clear whether the first of these statements is in fact a concession or an admission that the conduct found proven by the Authority which led to the decision to cancel Mr Salomonn’s registration as a migration agent, occurred. In any event a concession does not permit the Tribunal to avoid its duty as an administrative decision-maker to reach the correct or preferable decision by reference to the material before it: Peacock v Repatriation Commission [2007] FCAFC 156; (2007) 161 FCR 256 at [23]; and Repatriation Commission v Warren [2008] FCAFC 64; (2008) 167 FCR 511 at [78]. This is especially so where, as in this case, there is some uncertainty as to what was actually conceded.
It follows that I must decide whether some or all of the impugned conduct, on which the Authority’s decision was based, occurred. The only material filed by Mr Salomonn in these proceedings was medical evidence and a short statement he had prepared, which made no mention of the alleged conduct which led to the suspension, and subsequent cancellation, of his registration. Having examined the voluminous material filed by the Authority and in the absence of any evidence to dispute the key findings of fact made by the Authority, I am comfortably satisfied that the impugned conduct occurred.
Is Mr Salomonn not a person of integrity or otherwise not a fit and proper person to give immigration assistance?
The expression “fit and proper person” carries no precise meaning and 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: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ. The context in this case is the statutory scheme established for the registration and supervision of the conduct of migration agents, a scheme designed to protect members of the public and persons seeking immigration assistance (see Seymour v Migration Agents Registration Authority [2007] FCAFC 5; (2007) 156 FCR 544, at [16]). The Act requires migration agents to conduct themselves in accordance with high standards. This is recognised by s 314 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 that code: Re Mottaghi and Migration Agents Registration Authority [2007] AATA 60; (2007) 98 ALD 424 at [48].
In deciding whether Mr Salomonn is a “fit and proper person …” the question of whether the community would have confidence that any improper conduct will not reoccur is a relevant factor (Bond at 380 per Toohey and Gaudron JJ). Otherwise, the determination of fitness and propriety is a question of fact for the tribunal to determine objectively on the basis of all of the available evidence.
The word “integrity” is an ordinary English word and must be given its ordinary meaning in the context in which it appears. The Macquarie Dictionary defines integrity to mean “soundness of moral principle and character; uprightness; honesty”. I agree with the analysis of DP Jarvis in Mottaghi at [65] that, while there is some overlap between the concepts of a person being “of integrity” and being “fit and proper … to give immigration assistance”, the two are not identical: the latter encompasses matters such as competence and technical skills; the former is concerned with character, probity, and scrupulosity.
Also relevant to whether a person is not a person of integrity or otherwise not a fit and proper person to give immigration assistance for the purpose of s 304(1)(f) are those factors listed by s 290(2) of the Act, that must be taken into account in deciding whether for the purpose of registration, a person is not fit and proper or not a person of integrity.
The material available to the Tribunal reveals that over an extended period, approximately May 2007 to mid-2011, Mr Salomonn’s conduct fell well short of the standards required of migration agents by the Act and the Code. The findings made by the Authority and accepted by me reveal, among other things, that Mr Salomonn: acted dishonestly by informing clients that he had lodged visa applications on their behalf by a particular time when he had not done so (see, for example, pars [59], [62], [101] of the decision under review — all references to paragraph numbers are to the decision under review); invoiced and took money from clients for services not provided (see, for example, pars [64], [164]); failed to refund money owed to clients despite undertaking to do so (see, for example, pars [168], [173], [177]); failed as required by cl 7.1 of the Code, to maintain separate accounts for his operating expenses and his clients’ money (see, for example, pars [178], [179]); failed as required by cl 2.3A of the Code, to make adequate arrangements to avoid financial loss to a client (see, for example, par [103]); failed to keep clients fully informed about the progress of their case, as required by cl 2.8(c) of the Code (see, for example, pars [130], [135], [139]) and failed to possess a sound working knowledge of the Act, as required by cl 2.3 of the Code (see for example, [80], [81], [83]).
Especially troubling is that when the Authority notified Mr Salomonn of the complaints made about him he contacted three of the complainants and urged them to withdraw their complaints (par [203]). In one case, Mr Solomonn threatened legal action unless the complainant paid disputed fees (par [35]).
While not entirely clear I understand Mr Salomonn to contend that in the assessment of whether he is not a fit and proper person or not a person of integrity, his mental health should be taken into account. It seems to me that whatever the cause of Mr Salomonn’s misconduct at this point in time, he could not be considered to be a fit and proper person to give immigration assistance. As detailed above, over an extended period he has provided poor quality and misleading advice causing many of his clients to suffer significant loss and disadvantage. Nor, for reasons to which I will return, do I accept the proposition that the evidence supports a finding that all of his conduct was due to a temporary lapse of judgement, attributable to Mr Salomonn’s ill health.
In my opinion, the community could not have any confidence that improper conduct would not reoccur. The conduct which formed the basis of the decision made by the Authority to cancel Mr Salomonn’s registration, in my opinion, indicates that he is not a person of integrity and not a fit and proper person to give immigration assistance.
Mr Salomonn has been an undischarged bankrupt since early 2012. Any bankruptcy (present or past) is listed by the Act as a factor the Authority must take into account in determining whether a person is a fit and proper person to become a migration agent (s 290(2)(g)). In my opinion Mr Salomonn’s bankruptcy is further evidence that he is not a fit and proper person to give immigration assistance.
What, if any, disciplinary action should be taken?
Being satisfied that Mr Salomonn is not a person of integrity, nor a fit and proper person to give immigration assistance, it is necessary to decide what, if any, disciplinary action should be taken. The Tribunal may caution Mr Salomonn, or alternatively cancel or suspend his registration as a migration agent (s 303(1)).
Mr Salomonn concedes that some form of disciplinary action is warranted but contends that the most appropriate penalty is the suspension of his registration for a period of no more than three years. He submits that he should be given the opportunity to “adduce satisfactory evidence of his rehabilitation and treatment sufficient to permit him to be readmitted to practice” at the expiration of that period. It is unclear whether Mr Salomonn proposes that the suspension period run from the date of the Tribunal’s decision, or, from the date of the decision under review. Under the former, subject to producing evidence of his rehabilitation and treatment, the period of suspension would end in March 2016; under the latter the suspension would end in April 2015.
The Authority argues that cancellation is the appropriate sanction given the nature and duration of Mr Salomonn’s offending conduct. A person whose registration has been cancelled under s 303 must not be registered within five years of the cancellation (s 292).
Mr Salomonn contends that the breaches of the Code he committed arose in circumstances where he was “afflicted by a variety of medical conditions, all of which operated in concert to seriously impair his judgement and reason”. He claims that his “normal sound judgement was impaired by reason of his depression, anxiety, PTSD [post-traumatic stress disorder] and AADD [adult attention deficit disorder]”.
In a statement dated 23 January 2013, Mr Salomonn claimed:
·In 2003 when he arrived in Australia, he had a history of various medical conditions and, as best he could recall, a history of depression, PTSD, anxiety and stress;
·At various times he had sought treatment for these conditions;
·These conditions have severely impacted upon his “personality and judgement”;
·Since 2007 he has suffered bouts of severe depression and anxiety, which exhibited themselves in poor memory, lack of concentration and an inability to cope with the rigours and stressors of a busy practice as a migration agent;
·He has been homeless for significant periods since 2008;
·He is currently under the care of psychiatrist, Dr Ricardo Farrago, who has prescribed a course of treatment including medication for his recently diagnosed AADD;
·Since the commencement of this treatment he has noticed an improvement in his thought process and judgement and, as a result, gained real insight into his behaviour as a migration agent, which he “deeply regrets”;
·He is confident that with continued treatment he is “well on the way to recovery” and will be able to finish his studies and resume a “normal and useful life”.
In a short report dated 17 January 2013, Dr Farrago stated that Mr Salomonn was being treated for AADD and taking 15 mg of dexamphetamine (apparently a psychoactive drug prescribed to treat poor concentration and focus). In a report dated 17 May 2012, Mr Salomonn’s GP referred Mr Salomonn under a mental health treatment plan to psychologist, Ms Rachel Grosseibl, for opinion and management. In a letter addressed to the NSW Roads and Traffic Authority, dated 31 July 2008, psychiatrist Dr Gloria Bettesworth wrote that Mr Salomonn had been diagnosed with PTSD, which symptoms include poor memory and concentration; the condition is chronic and disabling, difficult to treat, and is likely to be ongoing for many years.
For the following reasons I am not persuaded that the appropriate disciplinary action is to suspend Mr Salomonn’s registration.
First, even on the most favourable interpretation of his evidence, much of Mr Salomonn’s misconduct could not be said to be solely attributable to “poor memory and concentration”. The material before the Tribunal is replete with examples of Mr Salomonn not only misleading and taking advantage of clients but having gone to considerable lengths to do so. As noted, there is also evidence of Mr Salomonn taking steps to coerce former clients not to proceed with their complaints, and in one case, of threatening legal action unless the complaint was withdrawn. There is no medical evidence to suggest that reprehensible conduct of this type, which plainly involves a degree of craft, is attributable to “poor memory and concentration”. At its highest, the medical evidence indicates that there is a possible link between poor memory and concentration and some of the impugned conduct that led to the decision to cancel Mr Salomonn’s registration. There is no medical evidence to suggest that a propensity to mislead, deceive or coerce people, are symptoms of any of Mr Salomonn’s diagnosed conditions.
Second, even if accepted that some of the conduct found proven, such as the delay in lodging visa applications, was largely attributable to poor memory and concentration, the evidence does not suggest that these symptoms are likely to abate in the near future. The report of his treating psychiatrist reveals that Mr Salomonn is being treated for AADD but makes no mention of when that treatment commenced, or its likely prognosis. The treating psychiatrist does not comment in that report on whether he shares the opinion expressed by Dr Bettesworth in 2008 that Mr Salomonn suffered from PTSD, its symptoms include poor memory and concentration, and the condition was difficult to treat and likely to be ongoing for many years.
Third, there is not a shred of evidence to support what I understand Mr Salomonn to suggest: that his misconduct as a migration agent was a temporary aberration and he is otherwise a person of good character. There is no independent evidence attesting to Mr Salomonn’s good character prior to, during, or after, the period he was registered as a migration agent.
Fourth, despite claiming that he acknowledges and accepts that his conduct has “a deleterious effect upon the lives of his clients” and that he is deeply remorseful for that behaviour, there is no evidence to support that claim. For example, Mr Salomonn has not issued apologies to, or repaid or agreed to repay, the significant amounts he owes to former clients.
The main difference between the suspension and cancellation are the length of time Mr Salomonn will be barred from registration as a migration agent and the conditions under which he would be able to resume practice as a migration agent. If his registration is cancelled, Mr Salomonn would be barred from working as a migration agent at least until 2017, and if suspended, until 2015. In addition, if Mr Salomonn’s registration is cancelled he would not automatically be re-registered as a migration agent: rather he would need to satisfy the Authority that he meets the criteria for registration, applicable at that time. In contrast, upon the expiration of the suspension period Mr Salomonn would automatically be able to resume work as a migration agent subject to “satisfactory evidence of treatment and rehabilitation”.
In my opinion cancellation is more appropriate option for these reasons.
First, in relative and absolute terms, a barring period of a minimum of five years could not be described as excessive given the type and duration of Mr Salomonn’s misconduct. Much of the misconduct was serious in nature. Notably Mr Salomonn is a repeat offender and his misconduct extends over four years.
Second, implicit in the suspension proposal is the proposition that Mr Salomonn’s misconduct was solely the result of poor concentration and memory. For the reasons given, I do not accept that proposition.
Third, the cancellation option has the advantage of requiring Mr Salomonn to satisfy the Authority that, if or when he wishes to resume practice as a migration agent, at that point he is a person of integrity and a fit and proper person to provide migration assistance. The proposal Mr Salomonn urges me to adopt assumes that upon production of “satisfactory evidence of treatment and rehabilitation” those criteria will be satisfied. In my opinion, in deciding whether Mr Salomonn is a person of integrity and fit and proper to provide migration assistance, the Authority should not be restricted to evidence of treatment and rehabilitation and should be able to take into account other factors such as whether Mr Salomonn remains an undischarged bankrupt and has the necessary skills and knowledge to fulfil the requirements of the role of migration agent.
In my opinion, cancellation is a reasoned and proportionate response in all the circumstances. I have decided that the preferable decision is to cancel Mr Salomonn’s registration as a migration agent and to affirm the decision under review.
Pursuant to orders made under s 35 of the Administrative Appeals Tribunal Act on 19 February 2013, this version of these Reasons, are not to be disclosed or published, other than to the parties until thirty days after the date of this decision. In addition the parties are to be provided with a copy these Reasons and are invited to comment on whether they are consistent with the s 35 orders made on 19 February 2013.
I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ................[SGD]........................................................
Associate to Senior Member Britton
Dated 19 March 2013
Date(s) of hearing 18 February 2013 Solicitors for the Respondent DLA Piper Australia
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