[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…
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- Case
- [2013] AATA 146
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CaseChat Overview and Summary
The central legal issue was whether the conduct found by the Authority, which led to the decision to cancel Mr Salomonn's registration, actually occurred. The Tribunal had to assess the evidence presented by both parties and determine if the findings of misconduct by the Authority were supported. Additionally, the Tribunal had to interpret the terms "integrity" and "fit and proper person" within the context of the statutory scheme for the registration and supervision of migration agents. This involved considering the statutory objectives, which aim to protect the public and persons seeking immigration assistance, and the high standards expected of migration agents.
The Tribunal concluded that the conduct found by the Authority did indeed occur, as there was no evidence from Mr Salomonn to dispute the key findings. The Tribunal then examined the meanings of "integrity" and "fit and proper person" within the context of the statutory scheme. The Tribunal agreed that these terms should be interpreted in light of the statutory objectives and the high standards expected of migration agents. The Tribunal also noted that the community's confidence in the agent's future conduct is relevant when determining their fitness and propriety. Ultimately, the Tribunal found that Mr Salomonn's conduct met the criteria for not being a person of integrity or a fit and proper person to give immigration assistance.
The Tribunal affirmed the Authority's decision to cancel Mr Salomonn's registration as a migration agent, based on the findings of improper conduct and the interpretations of "integrity" and "fit and proper person" within the statutory context.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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.