Raymond Salomonn and Migration Agents Registration Authority - [2013] AATA 146

[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 2
CASES
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 511
Seymour 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…

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.

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Details

Case: [2013] AATA 146
Decision Date: 19 March 2013

CaseChat Overview and Summary

The case involved a challenge to the Migration Agents Registration Authority's (the Authority) decision to cancel the registration of Raymond Salomonn as a migration agent. The Authority had suspended and subsequently cancelled Mr Salomonn's registration due to multiple complaints from former clients and the Department of Immigration, alleging improper conduct. The Tribunal was tasked with determining whether Mr Salomonn was not a person of integrity or otherwise not a fit and proper person to provide immigration assistance, which are grounds for the cancellation of a migration agent's registration under section 304(1)(f) of the Migration Act 1958 (Cth).

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

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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; andj.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.

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.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/1992
Re	Raymond Salomonn
APPLICANT
And	Migration Agents Registration Authority
RESPONDENT

Tribunal	Senior Member A K Britton
Date	19 March 2013
Place	Sydney