Re Altintas and Migration Agents Registration Authority
[2004] AATA 978
•20 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 978
ADMINISTRATIVE APPEALS TRIBUNAL ) No V2003/455
)
GENERAL ADMINISTRATIVE DIVISION ) Re RAMAZAN ALTINTAS Applicant
And
MIGRATION AGENTS’
REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Senior Member Dwyer Date20 September 2004
PlaceMelbourne
Decision 1. The Tribunal varies the decision under review to provide:
(a). That Mr Altintas’ registration as a migration agent be suspended:
i For a minimum period of six months from 4 October 2004; and
ii. Until he has, since 7 April 2003, completed 20 points of Continuing Professional Development, of which 10 points must be in the areas of Refugee and Humanitarian matters and Record Keeping and File and Risk Management; and
(b). That his suspension not be lifted until he provides the Migration Agents’ Registration Authority with a statutory declaration in Commonwealth form stating that he has not made immigration representations for a fee or given immigration assistance as defined in the Migration Act 1958 while suspended.
2. The Tribunal reserves liberty to the parties to apply if there should be difficulty about the implementation of this decision.
[sgd] Joan Dwyer
Senior Member
MIGRATION AGENTS’ REGISTRATION – suspension of registration of migration agent – applicant’s registration as a migration agent suspended after two complaints – whether applicant breached the Code of Conduct for Migration Agents prescribed in the Migration Agents Regulations 1998 – whether applicant not a person of integrity or otherwise a fit and proper person to be a migration agent – first complaint made by Departmental officer after complaint made to her subsequently withdrawn – onus of proof – Tribunal unable to find non-compliance unless satisfied that there has not been compliance – no evidence from client concerning first complaint – second complaint made by client and her husband – finding that applicant breached clauses of the Code of Conduct including encouraging complainant to lodge a grossly unfounded application – meaning of “grossly unfounded” – reason for lodging application to seek exercise of Ministerial discretion – concerns about applicant’s integrity but Tribunal not comfortably satisfied that applicant not a person of integrity or otherwise not a fit and proper person to give immigration assistance – whether suspension appropriate – appropriateness of conditions imposed – finding that applicant’s manner in responding to complaint and decision and review process indicated a lack of understanding of seriousness of matter and therefore caution not appropriate – shorter period of suspension and different conditions appropriate – decision under review varied.
LAW REFORM – suggested amendments to Migration Act 1958 and Code of Conduct for Migration Agents.
Migration Act 1958 ss 303, 304, 306.
Migration Regulations 1998
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Briginshaw v Briginshaw (1938) 60 CLR 336
Re Donald and Australian Securities and Investment Commission (2001) 64 ALD 717
Re Hakaoro and Minister for Immigration and Multicultural Affairs (1998) 26 AAR 534
Re Hare and Commissioner for Superannuation (1978) 2 ALD 233
Hughes and Vale Pty Ltd and Anor v State of New South Wales and Ors [No. 2] (1955) 93 CLR 127
Re Griffiths and Migration Agents Registration Authority [2002] AATA 247
Minister for Immigration and Multicultural Affairs v Khawar and Others
(2002) 210 CLR 1 [2002] HCA 14Re Prasad and Migration Agents Registration Authority [2002] AATA 423
REASONS FOR DECISION
20 September 2004 Senior Member Dwyer
1. This is an application under s 306 of the Migration Act 1958 (“the Act”) for review of a decision of the Migration Agents Registration Authority (“MARA”) made on 7 April 2003 (“the reviewable decision”), which decided to suspend Mr Altintas' registration for a period of three years or until the following conditions were satisfied:
(i)after a minimum period of twelve months from the date that you were notified of the Authority's decision,
· you convince the Authority that you are a person of integrity and a fit and proper person to give immigration assistance, and
· you complete one of the following:
a.30 core points of Continuing Professional Development of which 10 points must be in the Refugee and Humanitarian area; or
b.the Migration Professional Knowledge Entry Examination; or
c.a prescribed qualification;
AND
(ii)you provide a statutory declaration in Commonwealth form stating that you have not made immigration representations for a fee nor given immigration assistance as defined in the Act while suspended.
The implementation of the reviewable decision was stayed by this Tribunal on 19 June 2003 until determination of this application or further order.
2. At the hearing, Mr Gerkens of Fernandez Canda Gerkens, Barristers and Solicitors, appeared for Mr Altintas. Mr Brereton, a solicitor with the Australian Government Solicitor, appeared for MARA on the first day of hearing. On the second hearing day, Mr Fell, a solicitor with the Australian Government Solicitor, appeared for MARA. Mr Altintas gave evidence. Evidence on his behalf was given by Ms Aktagen, who, from February to May 1999, was doing work experience with Mr Altintas, and by Mr Kleynhans, a psychologist. The respondent called Mr Toohey, who gave evidence about the circumstances giving rise to his wife's complaint to MARA about Mr Altintas. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), together with exhibits tendered during the hearing. There was some duplication in the numbering of exhibits at the second day of hearing. A corrected list was sent to the parties by the District Registrar on 3 September 2004. After the hearing, Mr Gerkens, by leave, provided the Tribunal with further documents relating to four cases in which the Minister had exercised his public interest discretion under s 417 of the Act in favour of Mr Altintas' clients. The documents have been added to the material taken into evidence at the hearing and marked as exhibit A19. Mr Gerkens also tendered further documents showing the Continuing Professional Development Mr Altintas had completed since the decision under review. They were taken into evidence as exhibit A21.
3. Mr Altintas was first registered as a migration agent, pursuant to s 286 of the Act, on or about 28 June 1992. He was registered under a “grandfather clause” on the basis of his previous experience as a migration agent. He has practised as a migration agent since that date, registering and completing 10 points of professional development each year as required.
HISTORY OF COMPLAINTS
4. MARA had two complaints before it when it made the decision under review. The first complaint (T15) was made by Ms Lew, an investigation officer with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”). That complaint was based on an oral complaint made by Mrs Kosif, who attended at the Department on 23 June 1999 complaining about advice Mr Altintas had given her and actions he had taken on her behalf. Mrs Kosif did not give evidence. She had advised the Department on 16 July 1999 that Mr Altintas had refunded her the money she had paid him and written a letter of apology, and that she did not “think it honourable” to continue with any further complaints. The only evidence as to that complaint was the complaint itself and the evidence of Mr Altintas and his client file for Mrs Kosif (R3).
5. The other complaint (T5) was made by Mr Toohey and his then fiancée Miss Khamhong, who is now his wife. They were clients of Mr Altintas from March 1999 until January 2000. Mr Toohey gave evidence in respect of that complaint, and the Tribunal had before it Mr Altintas' client file in respect of Miss Khamhong's protection visa application (R4).
COMPLAINT IN RESPECT OF MRS KOSIF
6. Mrs Kosif visited the Department for the first time on 23 June 1999. Ms Lew’s minute to MARA stated (T16):
Mrs Kosif, through her interpreter, then alleged the following:
·She had travelled to Australia to visit her relatives and intended to obtain a visitor visa extension and information regarding future study prospects for her two sons while she was holidaying in Australia;
·She had gone to the office of Ramazan Altintas, with her sister, to explain that she wanted information and advice on how to obtain visa for her two sons and also a visa for herself so that she could stay with her children while they studied;
·Mr Altintas told her that she should apply for a refugee visa as this would enable her to live in Australia, obtain benefits and allow her children to attend school free of charge;
·She told Mr Altintas that she did not want to apply for a refugee visa, that she did not consider herself a refugee and intended returning to Turkey;
·She was given forms and asked to complete these and was asked questions about her marriage and if she had problems with her husband. She did not understand the forms and was not aware that she was applying for a protection visa;
·She provided information saying that she had had quarrels with her husband;
·She paid $1000.00 for the processing
·After the visa label was issued in her passport friends of hers told her that it was a protection processing visa she had been issued with.
Mrs Kosif then came to the Department … to obtain advice on what to do under the circumstances. She then further stated the following:
·She did not want to obtain refugee status in Australia and preferred living in Turkey;
·She was upset and concerned that Mr Altintas had given her the refugee application forms to complete as she had fully explained to him, at the first time he made the suggestion, that she did not want to become a refugee;
·That at the time she completed the forms given to her by Mr Altintas he did not explain to her what she was filling in.
·She was further concerned that Mr Altintas had taken a fee from her whilst providing incorrect and misleading advice;
·That her visit to the Department … was to be considered a formal complaint about the matter.
7. The document Mr Altintas and Mrs Kosif signed on the day he refunded her money and she withdrew her complaint stated (T24, p115):
I, Ayse Kosif, have withdrawn, of my own free will, the Protection Visa Form which has been lodged with the Department of Immigration on 30.04.1999.
Previously, I had appointed Mr Ramazan Altintas to follow this matter on my behalf. However, as there is presently no need for his representation, I demanded from him to repay me $1000 – which I had paid to him, upon which I have been fully reimbursed. Consequently, I have squared up with Mr Ramazan Altintas.
Yours faithfully
Ayse Kosif
8. On 18 July 2001, MARA sent Mr Altintas a letter inviting submissions from him on the complaint from Mrs Kosif. Mr Altintas’ letter of 6 August 2001 in relation to the complaint by Mrs Kosif (T24, p108-9), denied that he had acted against her instructions in lodging an application for a protection visa on her behalf. He described his consultations with Mrs Kosif (T24, p108):
In 29 April 1999, Ms Ayse Kosif came to my office again and asked me if I would lodge a protection visa application on her behalf. I advised her that a protection visa was not suitable for her situation but she insisted on doing so. Ms Kosif asked about my fee and I told her it was $1000. I instructed her to write down her statement in support of her claims and to bring it to me.
On the 30 April 1999, she came to my office once again, bringing with her a statement dated 29 April 1999 which she had written herself in Turkish, which is enclosed herewith marked ‘A”. My secretary and I then helped Ms Kosif complete her application. … At the same time I advised Ms Kosif that her status was not suitable for a protection visa and that the best way was for her to return to Turkey. However Ms Kosif did not want to accept my advice and she still insisted on lodging the application.
…
COMPLAINT BY MR TOOHEY AND MISS KHAMHONG
9. On or about 2 February 2000, MARA received a complaint about Mr Altintas made by Miss Khamhong and Mr Toohey. Although it contained a number of specific allegations, the substance of the complaint was that Mr Altintas had lodged an application for a protection visa by Miss Khamhong in March 1999, without authority to do so. Mr Toohey and Miss Khamhong stated that, if she had understood what sort of application was being made on her behalf, she would have known the application was inappropriate as she was “undoubtedly not a refugee" (T5 p44). The letter also stated that Mr Toohey had paid Mr Altintas $1000, but had not been given a receipt. The letter of complaint continued (T5 pp44-45):
DIMA sent Wanphen [Miss Khamhong] a letter rejecting the application for the Protection Visa and outlined the process for appeal of the decision in their letter. It was only at the time of receiving this letter we were made aware a Protection Visa had been applied for. This was also the first time we viewed the letter written by Mr Altintas supporting Wanphen’s application for the Protection Visa. The reasons he outlined (religious, family and human rights reasons) are clearly bizarre and false, and would not have been authorised by Wanphen had he consulted her before the application was submitted.
I notifed Mr Altintas of DIMA’s decision to reject the Protection Visa application. He then encouraged us to submit an appeal application. Consequently, the appeal application was completed by him and lodged with the RRT on 11 May, 1999. The file number is V99/10151.
I telephoned Mr Altintas on several occasions after the lodging of the appeal to check the status of our application. Eventually, he told me quite bluntly that our appeal to the Tribunal was pointless and we should leave for Bangkok and apply for a spouse visa from there. After questioning why he had not given us this advice at [sic] in the first instance, Mr Altintas offered no reason.
Wanphen and I are honest people and feel totally mislead by Mr Altintas. Due to our lack of knowledge of the immigration laws and our willingness to trust his advice, we feel he took advantage of our faith in his knowledge of the legal system. As a result of this, we inadvertently followed the wrong path. If he had told us that Wanphen had no option but to return to Thailand prior to the expiry of her Tourist Visa, she would have returned immediately. I am concerned this has now made Wanpehn’s application for permanent residency (to be lodged shortly), will be complicated because of these actions. Having sought clarification of our case from our local Member of State Parliament in December, and receiving correct advice on our situation, we have moved quickly to arrive in Bangkok and proceed with an application for permanent residence in Australia as a spouse. Wanphen has subsequently withdrawn her application from the RRT.
10. On 7 February 2000, the complaint was sent to Mr Altintas for his comments (T6). In his reply, by letter dated 21 February 2000 (T7), he asserted that, when Miss Khamhong and Mr Toohey came to see him, they were informed and understood that a protection application was being lodged. Mr Altintas claimed that part of the application form, including the interpreter clause, had been filled in by Mr Toohey himself He enclosed a copy of a letter of appreciation he had received from Mr Toohey dated 3 May 1999.
11. On 25 February 2000, MARA sent Mr Altintas' response to Miss Khamhong and Mr Toohey for comment.
12. Mr Toohey forwarded a letter of response on 14 March 2000 (T9). His letter stated, in part:
…
Contrary to claims made by Mr Altintas in his letter, I did not instruct him to make an application for a protection visa for my wife Wanphen Khamhong. I do not have any knowledge of immigration law, nor even any prior knowledge of what a protection visa entailed. Had I known such information, as Mr Altintas claims, Wanphen would not have applied for such a visa. I approached Mr Altintas for the same reasons that migration consultants are generally approached, that is, for assistance and guidance through the legal system and to clarify the status of Wanphen's tourist visa.
At our first meeting, when Mr Altintas informed Wanphen and myself that he would be able to obtain a visa for her, we felt assured we were following a correct legal path. We assumed a person in his position would not give us misleading or incorrect advice.
When I signed the interpreter clause, I was unaware of what document I was signing. Although I now realise I was foolish in not reading the document clearly, Mr Altintas placed the form in front of me and instructed me to sign it. I understand now that I should have read the fine print, however, I trusted it was a generic form, given Mr Altintas did not inform me of the details. Clearly, as Mr Altintas is aware, I cannot speak Thai, and in no way could act as an interpreter for Wanphen. In our meetings with him, I would explain his words to Wanphen in simple English.
His former secretary in fact completed the parts of the Protection Visa application Mr Altintas claims were completed by myself. Often in our meeting with him, he would speak with his secretary in Turkish and then she would complete any application forms on Wanphen's behalf. Wanphen had previously signed blank application forms which his secretary then completed. I have official documents completed by me previously which prove I do not write in uppercase, but write in sentence case. The writing on the Visa form is obviously quite distinct from my writing…
Mr Toohey also provided a statutory declaration in which he declared that Mr Altintas' secretary had completed the forms in her handwriting.
THE DECISION UNDER REVIEW
13. The decision of 7 April 2003 (T2) made findings on material questions of fact, numbered (a) to (s). The first paragraphs (a) to (d) set out the history of both complaints. Findings (e) to (j) referred to Mr Altintas’ responses to correspondence from MARA about both complaints. MARA then proceeded to make findings as to breaches of the Code of Conduct (“the Code”) referred to in s 314 of the Act, and prescribed in the Regulations. Those findings did not specify whether they applied to one or both complaints. MARA made the following findings (T2, p10-12):
…
(k)The Authority found that the Agent failed to provide accurate and timely advice in contravention of clause 2.3 of the Code of Conduct as at 1 April 1998; and
(l)The Authority found that the Agent failed to have due regard to his client's dependence on his knowledge and experience in contravention of clause 2.4 of the Code of Conduct as at 1 April 1998; and
(m)The Authority found that the Agent failed to confirm his client's instructions in writing within a reasonable time after agreeing to represent his client, in contravention of clause 2.8(a) of the Code of Conduct as at 1 April 1998; and
(n)The Authority found that the Agent encouraged the lodgement of vexatious or grossly unfounded applications under the Migration Act or the Migration Regulations in contravention of clause 2.17 of the Code of Conduct as at 1 April 1998; and
(o)The Authority found that the Agent failed to give his client notice of each amount paid by the agent for his client in contravention of clause 2.20(d) of the Code of Conduct as at 1 April 1998; and
(p)The Authority found that the Agent failed [to] take all reasonable steps to maintain the reputation and integrity of the migration industry in contravention of clause 2.23 of the Code of Conduct as at 1 April 1998; and
(q)The Authority found that the Agent failed to take all reasonable steps to maintain the reputation and integrity of the migration industry in contravention of clause 2.23 of the Code of Conduct as at 1 April 1998; and
(r)The Authority found that the Agent was not a person of integrity or otherwise not a fit and proper person to give immigration assistance pursuant to section 303(f) of the Act; and
…
14. In its reasons for decision, MARA found that Mr Altintas had been in breach of specific clauses of the Code in regard to the complaint concerning Mrs Kosif.
15. In regard to the complaint by Miss Khamhong and Mr Toohey, MARA found under s 303(f) of the Act that Mr Altintas was “not a person of integrity or is otherwise not a fit and proper person to give immigration assistance”. However, the substance of that complaint was summarised in such a way as to raise issues relevant to the Code. The summary was as follows (T2 p15):
…
Mr Desmond Toohey (Complainant 2) alleged that the Agent prepared and lodged a Protection Visa application without an explanation to Complainant 2 and the applicant, Ms. Khamhong Wanphen, of the nature of the visa being lodged. It is also alleged that the Agent did not allow Complainant 2 or the applicant to approve what was written in the Protection Visa application. Complainant 2 claims that the reasons for the application for a Protection visa (religious, family and human rights reasons) are "clearly bizarre and false".
16. In its decision of 7 April 2003, MARA did not make detailed findings as to breaches of the Code in respect of the complaint by Miss Khamhong and Mr Toohey. In the section of its decision dealing specifically with that complaint, it addressed only the issue of whether the protection visa application had been completed in Mr Toohey's handwriting. It accepted Mr Toohey's statement and statutory declaration to the effect that the form was not completed in his handwriting. It preferred that evidence to Mr Altintas' assertion that Mr Toohey had himself completed the form. MARA decided (T2, p16):
…Therefore, the Authority is also satisfied that the Agent's claims that Complainant 2 completed the application form himself, denied by Complainant 2 in his statutory declaration, are an attempt to mislead the Authority. The Authority is satisfied that such a breach indicates that the Agent is not a person of integrity or … otherwise not a fit and proper person to give immigration assistance. The Authority is also satisfied that such a breach may contravene section 137 of the Criminal Code 1995.
PRELIMINARY SUBMISSION AS TO COMPLAINT BY MR TOOHEY AND MISS KHAMHONG
17. At the commencement of the hearing, Mr Gerkens made a preliminary submission that the basis of the suspension decision, insofar as it related to the complaint by Miss Khamhong and Mr Toohey, was solely that Mr Altintas had misled MARA on the issue of whether the application forms were substantially completed in Mr Toohey’s handwriting, and not because of any misconduct by Mr Altintas in the handling of the application itself. Mr Gerkens therefore submitted that the only issues before the Tribunal as to breaches of the Code in relation to clients arose in respect of Mrs Kosif, who had not herself made a written complaint and who did not give evidence.
18. Mr Gerkens referred to Re Hare and Commissioner for Superannuation (1978) 2 ALD 233 as authority for the proposition that the Tribunal is not itself a primary administrator and only has power to review the decision which was made. He submitted that the decision under review was correctly characterised as a decision to suspend Mr Altintas’ registration because he misled MARA in respect of the handwriting issue as to the complaint by Mr Toohey and Miss Khamhong, and because of alleged misconduct in respect of Mrs Kosif. He submitted that the decision had not taken into account any alleged misconduct by Mr Altintas in dealings with Mr Toohey and Miss Khamhong.
19. Mr Brereton, in replying to Mr Gerkens’ submission, emphasised the distinction in a merits review between a review of a decision and a review of the reasons for the decision. He submitted that the Tribunal, having stepped into the shoes of the decision-maker, can consider all the relevant evidence and make its own preferable decision on that evidence.
20. I decided that, although MARA’s reasons for decision and findings were poorly expressed, there was sufficient reference to both complaints in the decision to conclude that MARA had considered issues of misconduct in relation to both complaints and had also considered the issue of Mr Altintas not being “a person of integrity”, or “otherwise not a fit and proper person to give immigration assistance”, because of the way he had misled MARA about the handwriting on the application form in respect of Miss Khamhong.
21. At the conclusion of the first day of hearing, at Mr Gerkens’ request, I directed that the respondent provide, before the resumed hearing, particulars of what it alleged to be breaches of the Code in respect of Mr Altintas’ dealings with Miss Khamhong and Mr Toohey.
THE RELEVANT LEGISLATION
22. Section 303 of the Act gives MARA power to caution a migration agent, or to cancel or suspend his or her registration. Section 304 gives a power to set a condition or conditions for the lifting a suspension. They provide:
303 Discretionary cancellation or suspension of registration etc.
The Migration Agents Registration Authority may:
(a)cancel the registration of a registered agent by removing his or her name from the register; or
(b)suspend his or her registration; or
(c)caution him or her;
if it becomes satisfied that:
(d)the agent's application for registration was known by the agent to be false or misleading in a material particular; or
(e)the agent becomes bankrupt; or
(f)the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g)an individual related by employment to the agent is not a person of integrity; or
(h)the agent has not complied with the Code of Conduct prescribed under section 314. [emphasis added]
304 Period of suspension
(1) If the Migration Agents Registration Authority suspends the registration of a registered migration agent under section 303, the Migration Agents Registration Authority may:
(a) set a period of suspension of not more than 5 years; or
(b) set a condition or conditions for the lifting of the suspension.
(2)If 2 or more conditions are set under paragraph (1)(b), one of them may be that at least a set period of suspension has ended.
23. The breaches of the Code relied upon by MARA in respect of both complaints were specified in the Respondent’s Statement of Facts and Contentions and Supplementary Statement of Facts and Contentions, lodged pursuant to the Tribunal’s direction made on 28 November 2003. They were as follows:
…
2.3 A migration agent's professionalism should be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.
2.4 A migration agent must have due regard to a client's dependence on the agent's knowledge and experience.
2.6 To the extent that a registered migration agent must take account of objective criteria to make an application under the Migration Act or Migration Regulations, he or she must be frank and candid about the prospects of success when assessing a client's request for assistance in preparing a case or making an application under the Migration Act or Migration Regulations.
2.8 A migration agent must:
(a)within a reasonable time after agreeing to represent a client, confirm the client's instructions in writing; and
(b)act in accordance with the client's instructions; and
(c)keep the client fully and regularly informed in writing of the progress of each case or application that the agent undertakes for the client; and
(d)within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client's case or application.
2.17 A migration agent must not encourage the lodgement of vexatious or grossly unfounded applications under the Migration Act or Migration Regulations, for example applications under the Migration Act or Migration Regulations which have no hope of success.
2.20 A migration agent must:
…(d) give the client notice of each amount paid by the agent for the client.
2.23 A registered migration agent must take all reasonable steps to maintain the reputation and integrity of the migration industry.
5.2 A migration agent must:
…(c)give the client written confirmation of the terms of the service to be rendered.
6.1 A migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing:
(a)a copy of each client's application; and
(b)copies of each written communication between:
(i)the client and the agent; and
(ii)the agent and any relevant statutory authority; and
(c)file notes of every substantive or material oral communication between:
(i)the client and the agent; and
(ii)the agent and an official of any relevant statutory authority.
8.1 A registered migration agent has a duty to exercise effective control of his or her office for the purpose of giving immigration advice and assistance.
8.2 A migration agent must properly supervise the work carried out by staff for the agent.
8.4 A migration agent must make all employees, including those not involved in giving immigration assistance (for example receptionists and typists), familiar with the Code, for example by:
(a)displaying the Code prominently in the agent's office;
(b)establishing procedures to ensure that employees become familiar with the Code including supplying employees with copies of the Code.
24. Mr Gerkens pointed out at the hearing that the form of the Code included in the T documents (T4) was not that in force at the relevant time. That form was in force only from 1 March 2003. The respondent produced a copy of the Code as it existed at the relevant time (T2). That version should have been included in the T documents. The difference is significant as clause 2.17, which deals with the lodging of vexatious or grossly unfounded applications, has now been amended so as to provide that an agent must advise a client if, in his or her opinion, an application is vexatious or grossly unfounded and if the client still wishes to lodge the application must obtain written acknowledgement of the advice given.
Onus of Proof
25. MARA’s Statement of Facts and Contentions and Supplementary Statement of Facts and Contentions both contained an error as to the onus of proof in matters of this nature. By way of example, I set out paragraphs 24 and 25 of MARA’s Statement of Facts and Contentions:
24. The clauses that the Applicant is alleged to have breached are:
A migration agent’s professionalism should be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice (Clause 2.3).
25. There was no evidence on the Applicant’s file that he had counselled Mrs Kosif about the full range of options available to her, their advantages and disadvantages. The Respondent contends that on this basis the Tribunal cannot be satisfied that the Applicant has provided accurate and timely advice to his client.
26. Action such as suspending a migration agent’s registration has severe consequences. I agree with Mr Gerkens’ submission that a Tribunal can only make a finding of non-compliance with the Code where the Tribunal is satisfied that there has not been compliance. Such a finding cannot be made on the basis that the evidence does not establish that there was compliance. Further, the standard of proof of such satisfaction should recognise the potential consequences of the finding. As was said in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2:
The truth is that, when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality. … [I]t is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
27. When this issue was raised at the commencement of the hearing, Mr Brereton agreed that the Tribunal must be “comfortably satisfied” of non-compliance with the Code before it can make a finding to that effect (trans, p22).
ALLEGED BREACHES OF THE CODE IN RESPECT OF MRS KOSIF
Clauses 2.3 & 2.4 – Professionalism and sound working knowledge of relevant legislation and regard for client’s dependence on agent’s knowledge and experience
28. These are very general clauses. There was no focus on them in the evidence or submissions. In the absence of evidence from Mrs Kosif and in the absence of specific submissions, I make no finding as to breaches of those clauses.
Clause 2.6 – Frankness and candour about prospects of success
29. It was Mr Altintas’ evidence that he advised Mrs Kosif that her prospects of success in her protection visa application were small, but that she still wanted him to make the application. He said, in a statutory declaration made on 7 August 2001 (T24, p118):
1.THAT I lodged a protection visa application on behalf of Ms Kosif with the Department of Immigration and Multicultural Affairs on 30 April 1999. The application was lodged on the specific instruction of Ms Kosif. Ms Kosif was fully advised of the consequences of lodging what appeared to be an unfounded application, but she was determined to proceed with it.
2.THAT I did not advise Ms Kosif to lodge a protection visa application. In fact I counselled her against lodging one and returning to Turkey.
3.THAT I did not ask Ms Kosif any questions about her marriage, but quite categorically told her that if she wanted to press ahead with a protection visa application she would have to specify a convention reason for claiming protection. Ms Kosif returned to my office the next day with a hand-written note, which she wanted me to incorporate into her claim. She was again advised that it was inappropriate.
4.THAT at all time Ms Kosif was fully aware of the nature of the application that she had filed.
30. The complaint made by Ms Lew sets out a very different account of Mr Altintas’ dealings with Mrs Kosif. In the absence of evidence from Mrs Kosif, I can not find that Mr Altintas was in breach of clause 2.6 of the Code.
Clause 2.8 – Failure to confirm client’s instructions in writing, act in accordance with client’s instructions and keep client fully informed
31. Mr Gerkens submitted that there was written confirmation of Miss Kosif's instructions on her file such as to satisfy clause 2.8 of the Code which, as at 29 April 1999, provided (R2):
2.8 A migration agent must:
(a)within a reasonable time after agreeing to represent a client, confirm the client's instructions in writing; and
(b)act in accordance with the client's instructions; and
(c)keep the client fully and regularly informed in writing of the progress of each case or application that the agent undertakes for the client; and
(d)within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client's case or application.
32. Mr Gerkens submitted that T24, pp 111-114 constituted confirmation in writing of Mrs Kosif's instructions. Those pages are a brief statement in Turkish, signed by Mrs Kosif, and a translation. The statement describes matrimonial difficulties. Page 113 is a migration agent’s declaration by Mr Altintas and p114 is an unsigned brief fee agreement, in Turkish and English, headed “Refugee Application”.
33. I reject Mr Gerkens’ submission that there is sufficient confirmation of Mrs Kosif’s instructions to lodge a refugee application in the heading of the fee agreement. The translation of that agreement, originally in Turkish, states (T24, p114):
- T R A N S L A T I O N / T E R C U M E -
NAME TYPE OF APPLICATION DATE
Ms Ayse KOSIF Refugee Application 30.04.1999
Total Fee: $1,000
The Total Fee in this matter relates to all discussions, negotiations, submissions, copies of application and documents furnished by the Applicant, and any other matters relevant to the application.
Total Fee means “there is only one fixed fee”, but it excludes medical costs and barrister’s fees for appearances and representations to the courts, and immigration fees.
34. The brief statement as to marital problems (T24, p111) also contains no reference to alleged instructions from Mrs Kosif to lodge a protection visa application on her behalf. I find that would have been a crucial part of the instructions which should have been confirmed. I find, on the basis of Mrs Kosif’s client file, that Mr Altintas was in breach of clause 2.8(a) of the Code in that he did not confirm her instructions in writing. Had he done so that would have assisted the Tribunal in finding what her instructions had been.
35. Although the Code does not expressly say so, either as in operation in April 1999 (R2), or in its later form (T4), I consider the intention of 2.8(a) is that the instructions should be confirmed in writing to the client. I recognise that there is no specific mention of that requirement in clause 2.8(a), although there is specific mention of advice to the client in 2.8(c) and (d). I did not raise that interpretation during the hearing, nor did Mr Fell. Therefore, I have not given any weight to lack of evidence as to whether Mrs Kosif was given a copy of T24, pp112 and 114, but I do find that Mr Altintas did not confirm in writing any instructions to make an application for a refugee visa.
36. I suggest consideration be given to amending clause 2.8(a) of the Code to expressly include the requirement that instructions be confirmed in writing by or to the client.
37. I find Mr Altintas was in breach of clause 2.8(a) of the Code, in his dealings with Mrs Kosif. There is a conflict on the evidence as to the nature of Mrs Kosif’s instructions to Mr Altintas. I have reservations about Mr Altintas’ evidence on the issue, but as Mrs Kosif did not give evidence, I cannot prefer her account to his. I make no finding as to non-compliance with clause 2.8(b). Clauses 2.8(c) and (d) do not apply to this complaint.
Clause 2.17 – Not encouraging the lodgement of vexatious or grossly unfounded applications.
38. Question 37 of Form C, the application for a protection visa, asks "What do you fear may happen to you if you go back to that country?" The answer on the form signed by Mrs Kosif, and lodged on her behalf by Mr Altintas, states (R3):
I got married June 1979. My marriage wasn't successful. When I asked him if I can go to Australia to visit my sister first didn't say much. After I got my visa to come and visit my sister in Australia, he started threatening me. We started fighting everyday. I knew that I couldn't stay married with him any more. On the 11.03.1999 I left my house and moved to my mum's house and a few days later I came to Australia. I am very scared from my husband. This is the reason that I don't want to go back to my country.
39. Mr Gerkens submitted that an application based on family violence could not be found to be “grossly unfounded". He referred me to Minister for Immigration and Multicultural Affairs v Khawar and Others (2002) 210 CLR 1. In that decision the High Court held that persecution within the meaning of the Convention Relating to the Status of Refugees (Geneva: 28 July 1951) could exist where persecution or harm was inflicted otherwise than by the State, including by private citizens, and was tolerated or condoned by State authorities in a discriminatory manner. The majority (Callinan J dissenting) found that vulnerable married women in Pakistan may constitute a particular social group unable to secure effective protection from State authorities, and thus be able to establish entitlement to refugee status.
40. It is clear from the reasons for judgment in that matter that each of the judges who formed the majority emphasised the requirement that domestic violence must be condoned or tolerated by the police of the State. Gleeson CJ said, at 12, that it is not sufficient if it is merely allowed due to "maladministration, incompetence, or ineptitude, by the local police". McHugh and Gummow JJ, at 29, stressed that it was crucial that the persecution lie "…in the discriminatory inactivity of state authorities in not responding to the violence of non-state actors". Kirby J detailed the evidence of domestic violence and state activity at 30-33, including the fact that Mrs Khawar had gone to the police on four occasions to report violence or threats of violence by her husband. She had been accompanied by a brother in law on two occasions and, even though she had reported being beaten and having petrol poured over her, the police told her they could do nothing. The last incident was described by Kirby J, at 31:
After an incident in March 1997 in which her husband and his brother poured petrol on her, the respondent stated that she had again gone to the local police station. The officer told her that women always tried to blame their husbands for problems for which they themselves were the real cause, and that she should sort out her “own work”.
41. Kirby J referred to material concerning the attitude of the Pakistani authorities, at 31-32:
It can be assumed that the foregoing material had been tendered to the tribunal to meet a contention for the minister that the respondent’s reason for leaving Pakistan (and consequent reluctance to return there) was a purely private affair concerning domestic disagreements between her husband, his family and herself. Such a reason would not qualify for consideration as entitling the respondent to a protection visa on the ground of refugee status. The respondent did not submit otherwise. Instead, it was her contention that what had happened to her was but an instance of the general withdrawal from women in her position in Pakistan of the protection of the law that would, by implication, have been available to a man threatened with comparable acts of violence and personal affront.
The material tendered to the tribunal was substantial. The respondent relied upon it to establish that the neglect by police in her case derived from a policy or general practice of withdrawing police protection from women like her and not for some other reason (such as lack of police resources, default of individual police officers, influence of the husband’s family, financial corruption and so forth). The material included extracts from:
· a report of the Canadian Immigration and Refugee Board, Human Rights Briefs: Women in Pakistan, reviewing the many changes to the law of Pakistan introduced after 1977 during the military regime of General Zia ul-Haq, including to the law of evidence (Qanun-e Shahadat) devaluing the testimony of female as against male witnesses and alteration of the criminal law with respect to retribution (Qisas-e Divat) extending the area of legal discrimination against women in cases of murder, bodily injury and abortion and reducing by half the compensation payable where the victim of such crimes was female;
· a 1994 cable from the Australian Department of Foreign Affairs and Trade concerning oven burns leading sometimes to death of wives, especially in rural districts of Pakistan and often related to disputes over dowry payments by the wives’ families. In this cable, the police response and protection was described as “minimal”;
· a 1995 report from Amnesty International, Women in Pakistan — Disadvantaged and Denied Their Rights;
· a 1997 United States State Department report on the general practice of Pakistani police to return battered wives to abusive husbands;
· a 1998 report from the United States State Department on the general status of women in Pakistan. The report included information on the limitations on the admission and weight given to the testimony of women in court; the non-reporting by hospitals of so-called “stove deaths” involving women and, where such reports were made, the reluctance of police to investigate them or to lay charges or even to arrange for post mortem examinations to be conducted; and the killing and mutilation by male relatives of women accused or suspected of adultery, rarely with police intervention or effective court action or legal redress.
The phenomenon of burning of women in the position of the respondent is also described in academic literature in the Indian subcontinent and is sometimes linked historically to the same sources of female submission and subjugation evidenced in the practice of sati which was abolished during British rule. [footnotes omitted, emphasis added]
42. Kirby J said, at 38 – 39:
…It is sufficient that there is both a risk of serious harm to the applicant from human sources and a failure on the part of the state to afford protection that is adequate to uphold the basic human rights and dignity of the person concerned.
His Honour, at 40, offered the following simplified formula of his analysis of the law:
…Persecution = Serious Harm + The Failure of State Protection, …
43. I consider it to be a misrepresentation of the significance of the High Court decision of Khawar, to submit, as Mr Gerkens did, that it establishes that an application based on family violence cannot be found to be “grossly unfounded”. It establishes that a claim based on domestic disagreements between husband and wife does not entitle a person to a protection visa on the ground of refugee status, unless there is evidence of both danger of serious harm and a discriminatory failure of state protection against such harm.
44. I find that, far from showing that the application for a protection visa lodged by Mrs Kosif on Mr Altintas’ advice was not “grossly unfounded”, a reading of that decision establishes precisely why it was grossly unfounded. First, there was no suggestion in the application that Mrs Kosif had ever suffered any violence or harm, beyond threats, from her husband. Secondly, there was no suggestion that she had ever sought state protection against her husband and thirdly, there was no claim that, in Turkey, violence by husbands against their wives is tolerated or condoned by the police or the state. Both the elements of persecution, identified as necessary by the High Court, are missing from the application for a protection visa lodged by Mr Altintas on behalf of Mrs Kosif.
45. I find that the application for a protection visa lodged by Mr Altintas on behalf of Mrs Kosif on the ground of domestic violence was grossly unfounded. In the absence of evidence from Mrs Kosif, I am unable to find that Mr Altintas “encouraged” the lodging of that grossly unfounded application. Thus, I can not find a breach of clause 2.17 as it stood at the relevant time. If the same situation had arisen under the current Code (T4), and if there had been no acknowledgement on file by the client of advice given by Mr Altintas that the application was vexatious or grossly unfounded, it is likely that would lead to a finding of non-compliance with the amended clause 2.17.
Clause 2.20(d) - Giving the client notice of each amount paid by the agent for the client
46. Mr Gerkens submitted that the only evidence as to whether or not Mr Altintas' gave Ms Kosif notice of the $30 application fee he paid for her was his evidence that he gave Mrs Kosif a copy of the Department’s receipt for the $30.00 application fee he paid on her behalf. I accept that submission. In the absence of evidence from Mrs Kosif, I do not find there was non-compliance with clause 2.20(d).
Clause 5.2(c) - Giving the client written confirmation of the terms of the service to be rendered
47. Mr Gerkens relied on the fee agreement (T24, p114) which states in Turkish and English that the total fee payable by Mrs Kosif for a refugee application, excluding medical costs and barrister’s fees, was $1000. That satisfies the requirements of clause 5.2(c).
Clause 6.1 - Maintenance of proper records
48. The alleged breaches of this clause relate to the failure by Mr Altintas to keep proper records, as provided by clause 6.1(c), of every substantive or material communication between him and Mrs Kosif. There is no record, in the form of a file note, of Mrs Kosif’s first attendance, or of instructions she gave on that day. Nor are there any notes of any telephone contacts between Mr Altintas and Mrs Kosif. But in the absence of evidence from Mrs Kosif, I can make no finding as to what substantive or material communications there were between Mr Altintas and Mrs Kosif, other than on her first and second attendance on Mr Altintas. I find, on Mr Altintas’ evidence, that there should have been a record of the communications at those attendances. Mr Altintas said they occurred in mid-April 1999 and on 29 April 1999. There is no record of those attendances on the file. I find there is a breach of clause 6.1(c) of the Code.
49. Because Mrs Kosif did not give evidence, many of the allegations contained in Ms Lew’s written complaint about the way Mr Altintas dealt with Mrs Kosif cannot be proved. The only allegations which can be proved are those relating to deficiencies in Mr Altintas’ records. I find there was non-compliance with clauses 2.8(a) and 6.1(c) of the Code. I also find that Mr Altintas lodged a grossly unfounded protection visa application on behalf of Mrs Kosif, but, in view of Mr Altintas’ evidence, and the lack of any other evidence from Mrs Kosif, I have not found that Mr Altintas “encouraged” the lodgement of that grossly unfounded application.
EVIDENCE AT THE HEARING AS TO THE COMPLAINT OF MR TOOHEY AND MISS KHAMHONG
50. The Tribunal had before it a statement made by Mr Toohey dated 18 October 2003 (R1), in addition to his letter of 27 January 2000 lodged as part of his and Miss Khamhong's complaint against Mr Altintas. Mr Toohey also gave evidence.
51. Mr Toohey's evidence was that he knew nothing about migration matters at all when he first saw Mr Altintas. He said he had been referred to Mr Altintas by a man he knew, Mr Azzopardi, who also had a Thai wife, and who told him Mr Altintas had helped him obtain a visa for his wife to stay in Australia.
52. Mr Toohey said that, on 23 March 1999, Mr Azzopardi took him and Miss Khamhong to meet Mr Altintas. He asked Mr Altintas if he could help get a new or extended visa, so that Miss Khamhong could stay in Australia, rather than return to Thailand when her tourist visa expired in May. Mr Toohey said Mr Altintas asked to see Miss Khamhong's passport and then said (trans, p26):
…Yes I can get a visa for her. It will cost you $1000.
53. Mr Toohey said Mr Altintas asked him and Miss Khamhong to sign blank application forms and then Mr Altintas passed the forms to his secretary. She filled in the forms with details while Mr Altintas asked Mr Toohey questions and Mr Toohey responded. Mr Toohey said Mr Altintas never explained the sort of visa for which he was applying on behalf of Miss Khamhong. He said they were not told that the application was for a protection visa.
54. Mr Toohey said that Miss Khamhong received a letter dated 25 March 1999 (T7 p50) from the Department acknowledging the lodging of her application. It referred to Miss Khamhong's application for a "protection visa", but he did not know what that meant. He said, so far as he could remember, he rang Mr Altintas who told him not to worry about it, and said that everything would be “OK”.
55. Mr Toohey said he rang Mr Altintas many times while waiting for the visa application to be processed. He said Mr Altintas always told him that Miss Khamhong had the right to apply for a visa and not to worry. On 3 May 1999, after one of those telephone conversations, Mr Toohey wrote to Mr Altintas apologising for his frequent telephone calls to Mr Altintas (T7, p49). He explained that he rang because of his worry about Miss Khamhong perhaps having to return to Thailand.
56. Mr Toohey said that, on or about 7 May 1999, Miss Khamhong was advised in writing that her application for a protection visa had been refused (R5). The reasons for decision, at paragraph 3.2, set out the grounds which had been advanced in support of the application. He was surprised to read that Miss Khamhong had claimed that she would face harassment or persecution at the hands of Thai authorities on return to Thailand, because of her religious beliefs. He said that was "completely not true". Mr Toohey said he had never seen that written on Miss Khamhong's application form. He said whoever had written it had done so without his consent. Similarly, Mr Toohey said that he had never, on behalf of Miss Khamhong, said that "human rights and democracy are not practised in Thailand" (R5, para 3.1.1).
57. Mr Toohey said that, when he received the decision refusing Miss Khamhong’s application for a protection visa, he contacted Mr Altintas and asked "What do we do?". He said he was really worried. He saw Mr Altintas who again said Miss Khamhong had a right to apply for the visa and not to worry. Mr Altintas filled in an application for review by the Refugee Review Tribunal (“the RRT”) and gave it to Mr Toohey to hand deliver. It was lodged at the RRT on 11 May 1999 (R4).
58. Mr Altintas’ client file for Miss Khamhong (R4) contains a copy of the application to the RRT. It is completed in capital letters, as was the original application for a protection visa, and appears to have also been completed by Ms Aktagen, except for Section D, which asks for reasons for making the application. It states, “I believe my application comes under the United Nations Refugees category”. Mr Toohey said that section was completed by Mr Altintas. At first, Mr Altintas agreed that he had filled in that form (trans, p192). Then, when he was asked to look at it during the hearing, he said he did not know who had filled it in. However, Section D appears to be in a different handwriting from the rest of the form. Mr Altintas denied that it was his handwriting. I find that it was not the handwriting of Mr Toohey or Miss Khamhong. I am not persuaded that it was not Mr Altintas who filled in that section. The interpreter’s declaration in Section F of the form was left blank.
59. Mr Toohey said he was very worried and confused when the application to the RRT was completed. He was worried that he and Miss Khamhong might have been breaking the law. He did, by then, understand that the application had been for a refugee visa, but he sought a review because that was what Mr Altintas told him to do. He repeated a number of times that Mr Altintas had told him Miss Khamhong had the right to apply for a visa and that everything would be "OK".
60. In cross‑examination, Mr Gerkens challenged Mr Toohey’s credibility in a number of respects. He asked him when he and Miss Khamhong became engaged. Mr Toohey replied that it was on a visit he made to Thailand before Miss Khamhong came to Australia. He explained (trans, p39):
…There was no real engagement. We were engaged, I bought her a ring, everything was very laid back, I suppose you can call it.
Later, he added that he had brought the ring from Australia as it had been his mother's.
61. Mr Gerkens pointed out that the evidence Mr Toohey gave was inconsistent with paragraph 2 of his statement (R1), in which he stated:
…
2.I met my future wife Wanphen Kamhong in Thailand on or about 6 February 1998. Wanphen came to Australia as a visitor on 4 February 1999 and we got engaged in Australia in March 1999. We decided to get married and were going to be married on 12 April 1999. Wanphen's visa was going to expire on 4 May 1999.
…
62. Mr Toohey told Mr Gerkens that it was because he knew that Miss Khamhong's visa had a condition saying "…no further stay", that he went to see Mr Altintas to find out if there was a way she could stay here legally as his wife. When they saw Mr Altintas on 23 March 1999, they had already arranged to be married on 12 April 1999, before her visa expired on 4 May 1999.
63. Mr Gerkens drew Mr Toohey's attention to the first page of the application for a protection visa submitted by Miss Khamhong (T7 p55). He asked Mr Toohey if he had not seen the word “refugee” at the top of that page, when he signed the last page of that form (T7 p76).
64. Mr Toohey said that, although, when Mr Altintas had asked him to do so, he had signed the sections of Form B, headed "Interpreter's declaration" at T7 page 76, he had not looked at the front page of Form C, or at the words beside his signature on Form B.
65. Mr Brereton clarified that there are two forms, Forms B & C, and they come as a sort of booklet. He said Form C consists of T7 pages 55 to 66. Form B, which is the one containing the interpreter’s declaration signed by Mr Toohey, is pages 67 to 76. It does not contain the word “refugee”.
66. The Declaration at Form B (T7, p76) is on a separate page. It is set out as follows:
Interpreter's declaration
18
If an Interpreter was used in the Interpreter's signature
Preparation of this application, the
[signed]
Interpreter must complete this
declaration
[dated]
I declare that: Date (day/month/year)
I am competent in the English languageand (language) Full name of Interpreter
…
Business address of interpreter
…
…Postcode …
I have faithfully interpreted all contents of this application form into the above language, and have faithfully interpreted the applicant’s responses into English. Except for Mr Toohey’s signature and the date, the actual declaration in the form lodged on behalf of Miss Khamhong has been left blank. Thus, although Mr Toohey, when asked to do so by Mr Altintas, signed the form under the heading “interpreter’s signature”, he did not do so as an interpreter competent in a language other than English.
67. Mr Gerkens asked Mr Toohey if he had filled in the details of Miss Khamhong's relatives at Q11 of the form (T71, p71). He said he had not. Mr Altintas later gave evidence that those details were written by him.
68. Mr Altintas denied that the forms were blank when signed by Mr Toohey and Miss Khamhong. Mr Gerkens relied on T12 p90, which is an acknowledgement of an agreement as to fees, signed by Miss Khamhong. Mr Toohey said he did not see the document in Mr Altintas’ office in the form it is now, with typewritten details of the fee agreement, so he did not tell Miss Khamhong what was in it. He said she would not have been able to read the document herself. Her English was not good enough in March 1999.
69. Mr Gerkens contended that there was an inconsistency in Mr Toohey's evidence in that, in paragraph 5 of the statement at T5 page 44, Mr Toohey wrote that Mr Altintas completed the application form for Miss Khamhong after getting her to sign a blank form "without allowing us to approve what he had written", but in T9 p82 he declared in a statutory declaration "…the female secretary who was working for Mr Altintas at the time completed in her own hand writing the Application forms being instructed by Mr Altintas".
70. The evidence shows that both statements were true. Most of the sections on the forms were completed by Ms Aktagen on instructions from Mr Altintas, but one page (T7 p71) was completed by Mr Altintas in his own handwriting (trans, pp 90 & 143), and he also completed answers to other questions by writing “NA”, where Ms Aktagen had left answers blank (T7, pp62, 63, 74).
71. In any event, the significant issues are whether Mr Toohey and Miss Khamhong were allowed to approve what had been written and whether the important section of the forms was completed by Ms Aktagen, on instructions from Miss Khamhong, conveyed by Mr Toohey, or on instructions from Mr Altintas, without instructions to that effect from Miss Khamhong. Further matters which were raised by the documents, but not pursued at the hearing are whether there was at any time adequate interpretation for Miss Khamhong and whether Miss Khamhong ever gave instructions to Mr Altintas that she believed herself to be covered by the Refugee Category, as stated on the RRT application (R4).
72. Mr Altintas said that he told Mr Toohey and Miss Khamhong that the best way for Miss Khamhong to be able to stay in Australia was for her to go back to Thailand after the wedding and then apply for a spouse visa. Mr Toohey denied that Mr Altintas had given them that advice (trans, p88).
73. Ms Aktagen, who was doing work experience in Mr Altintas' office from February to May 1999, gave evidence and provided a witness statement (R12). She said that she was a friend of Mr Altintas and was working there without payment for experience, but she was not a student doing work experience. She worked in the same room as Mr Altintas.
74. Ms Aktagen's evidence was that Form B (Persons included in this application) (T7 p67-75) and Form C (Application for an applicant who wishes to submit their own claims to be a refugee) (T7 p55-66) were filled in by her. She said that was the usual practice. She said (trans, pp103-104):
…They actually – they wanted help from me so I can fill it out and I used to ask them, like, questions on the forms and sometimes the ones that I don't know I used to ask Mr Altintas and so they can give the right answer to me so I can write on the form. [emphasis added]
75. In her statement (A12), Ms Aktagen said that she filled in the forms at T7 from responses given to her by Mr Toohey, sometimes after he had spoken to Miss Khamhong.
76. In answer to questions from the Tribunal, Ms Aktagen said that she filled in the answer to question 37 (T7, p61) from answers given to her by Mr Toohey. The question asks, "What do you fear may happen to you if you go back to that country?" The answer reads (T7, p61):
I believe that Thailand has no democracy and no human rights.
I am engaged and living with him, which he is an Australian citizen.
In my religion the belief is that if I was to leave my fionce [sic] it would shame my family.This is the reason I do not want to go back to my country alone.
77. Ms Aktagen said that it was not correct to say those things were written by her on instructions from Mr Altintas. She also said that she had written "N.A." in answer to questions 39 and 40, which ask:
39Why do you think they will harm/mistreat you if you go back?
40.Do you think the authorities at that country can and will protect you if you go back? If not, why not?
She said she did not know what she meant by "N.A.".
78. That evidence was not consistent with that of Mr Altintas, who said he had written the answers to questions 39 and 40. In re-examination, Ms Aktagen said that, if Mr Altintas said he had written the letters "N.A." where they appear on the forms, she would not really know whether she would dispute that.
79. Ms Aktagen said the fee agreement (T12 p90) had typing on it, when Miss Khamhong signed it. She said Mr Altintas typed it and then he and Miss Khamhong signed it. She then changed her evidence saying, "…Oh, no, actually. I can't actually remember" (trans, p100). Then Ms Aktagen changed her mind again, and repeated that the document was typed when Miss Khamhong signed it.
80. Mr Altintas had lodged a proof of evidence (A16). In the first paragraph dealing with the complaint by Mr Toohey and Miss Khamhong, he stated (A16, p4):
In mid March 1999, Mr Desmond Toohey and Ms Wanphen Khamhong came to my home with a Mr John Azzopardi and asked me if I would lodge a protection visa application on Ms Khamhong’s behalf. I had previously assisted Mr Azzopardi’s wife with a protection visa application. Mr & Mrs Azzopardi were very happy with my efforts on their behalf. I discussed Ms Khamhong’s situation with them and advised them that a protection visa was not likely to succeed but they still insisted on doing so. Ms Khamhong had a conditioned visa with no further stay [T7-54] and it was clear to me that they knew very well that she had no options other than to leave Australia or apply for a protection visa.
81. In his evidence, Mr Altintas said that he had applied for a protection visa for the Thai wife of Mr Azzopardi. He said that Mrs Azzopardi had then become pregnant while in Australia, before the protection visa application had been finalised. On his advice, she had then returned to Thailand and been sponsored by her husband. He said he recommended that Miss Khamhong also return to Thailand after the wedding, when he first met her and Mr Toohey, but they wanted Miss Khamhong to stay here longer. He said (trans pp133-134):
…Just he's soon married. He scared. If he send his wife back, if he spouse her, maybe immigration not believe this is genuine marriage. I tell them, I ask them if maybe high education better you sponsor education way, maybe qualification way. This why I ask her. Everything come possible. I say, "Look, better you send her back. You sponsor spouse." He say, "No, I want keep mine wife here longer how much I can." "Sorry mate, protection visa no good for you," tell that. "All right. Thank you very much. We are thinking about. Maybe we come back." "All right. You go."
82. Mr Altintas said Mr Toohey knew about a protection visa and wanted to apply for it to "…keep his wife here longer" (trans p135). He said Mr Toohey asked how much it would cost for him to apply for a protection visa for Miss Khamhong.
83. Mr Altintas said he told Mr Toohey that it was better not to apply for a protection visa and asked him to think about it again. Mr Altintas said he did ask Miss Khamhong a number of questions about her background because of Mr Toohey's concern that, if she went back to Thailand soon after the marriage, maybe the Department would not recognise the marriage as genuine.
84. Mr Altintas was asked by Mr Gerkens what, in his experience, would have been Mr Toohey's chance of getting a spouse visa for Miss Khamhong if she had gone straight back to Thailand after her wedding. He replied (trans, p135):
…Mine experience immigration refugees who will application because not enough time generally show – have to show genuine marriage, have to prove long relationship.
Yes. So you are saying they wouldn't have been able to prove that they had - - -?---Of course.
- - - a genuine and committed relationship?---Of course, yes, that's right.
Okay. So you told them – so you went through their background?---That's right.
85. Mr Altintas said he told Mr Toohey and Miss Khamhong, “Your protection visa very, very weak…Very little chance" (trans p136). He said he advised them to both go back to Thailand and live there together for six months or longer. Mr Altintas said that he did not understand the concept of an application being "grossly unfounded", as referred to in the clause 2.17 of the Code (trans, p145).
86. Mr Altintas said, after he first met Mr Toohey and Miss Khamhong, they rang him and said they wanted to go ahead and apply for a protection visa. He told them to come and see him at the office. In the office, he gave the appropriate forms to Mr Toohey to complete, but Mr Toohey took them over to Ms Aktagen who was sitting at her desk in the room and asked her to help him complete them. He said he listened to their discussion so he could correct things if necessary, or advise as to how to answer a question.
87. Mr Altintas said that he wrote "N.A." where Ms Aktagen had left an answer blank, because it was too hard for her and Mr Toohey and Miss Khamhong to complete those questions. He said he put "N.A." when Miss Khamhong had not made any comment in respect of questions Mr Toohey asked her. He did not explain why he did not seek to obtain appropriate answers to the questions.
88. Mr Altintas said he typed the detail about fees (T12 p90) while Mr Toohey and Miss Khamhong were with Ms Aktagen, who was filling in Forms B and C. He said it only took him five minutes to type the form. He did not explain why he did not assist his clients with the filling in of the applications, rather than leave that to his work experience secretary. Mr Altintas said that the fee document was only signed by Miss Khamhong when she agreed she was "happy" with it. He did not explain how she could have become “happy”, being unable to read it in English. He did not say that Mr Toohey had read and explained it to Miss Khamhong.
89. Mr Altintas denied that he asked Mr Toohey and Miss Khamhong to sign blank forms. He said the forms were all completed when Mr Toohey and Miss Khamhong signed them. He also said that Mr Toohey was well aware that, by making an application for a protection visa, Miss Khamhong was claiming that she was a refugee.
90. On the second day of hearing (trans pp170‑173), Mr Fell questioned Mr Altintas as to why he had mistakenly told MARA that Mr Toohey had filled in the form in his own handwriting, if, as he said, he was present in the room with Miss Khamhong, Mr Toohey and his work work‑experience secretary throughout the interview. Mr Altintas was reluctant to address that issue. He instead simply repeated his allegation that Mr Toohey was "a liar". He was not expressly asked why he did not acknowledge his error once MARA, with its letter of 2 January 2002 (T13), had sent him a copy of Mr Toohey’s statutory declaration exhibiting a copy of his handwriting and saying that the forms were completed by Ms Aktagen. That is a relevant matter in considering whether Mr Altintas is a “fit and proper person to give immigration assistance”.
91. On that second day of hearing, Mr Altintas explained what his advice to Mr Toohey had been again. That evidence in my view was very significant. He said (trans pp175‑176):
…Then I tell them, "Look as you know protection visa, not suitable. Your wife. Best way you send your wife back, you can sponsor." He say, "No, I don't want protection visa." Then we talk about - - -
[We - I didn't understand that?] --- Sorry. I am sorry. Then I tell them if we apply immigration after couple of weeks or one month, two months, immigration reject. Then I tell them, "You have a very, very little chance, just a word." After immigration reject RRT, Refugee Review Tribunal. After you can go Minister for section 417. When you go Minister I tell you the truth, honest, you have to go your family doctor, you get something you are healthy, you needing your wife. Then we ask Minister. Minister sometimes can say yes, sometimes can say no. If we go Minister, Minister regulation we have to go after RRT. Why go to Minister regulation? Minister said if anybody come to me section 417 have to come after RRT.
[So I am not sure of the point of that. So you did advise them that if they wished to apply under section 417 they would have to apply for a protection visa, and then apply to the RRT?] --- That's it.
[So you told them that?] --- Yes.
[And did you advise them that that was the course of conduct they should take?] --- No, not to take. The system. The Minister say like that.
[Yes. I agree that that is the system. I am not disputing that that is the system?] --- Yes, yes.
[What I am asking you is about your advice to Mr Toohey?] --- I tell him first, return your wife back. He say no. That if you go ..... have to go from there.
[So you explained to him how he could apply for a protection visa, apply to the RRT, then apply for 417?] --- Yes.
[Did he know about how to go about that process prior to your advice?] --- Of course he knew. Of course he knew.
[He knew about that?] --- He know.
[That is because he has expert knowledge of the Migration Act?] --- He know everything.
[Mr Toohey says he doesn't know. I will put it to you that Mr Toohey's state of mind is probably best described by him in his evidence?] --- Look. I no looking at what he says. I know what I say. I am justice for peace. I am JP first one. Second one I mark as urgent. [emphasis added]
92. As to how the answer to question 37 was filled in on the visa application form, Mr Altintas said (trans, p178):
… I ask them, I no teach nothing. I ask them what your share [you are scared of] your country. Then she ask husband for translation of writing.
[When you started talking with Mr Toohey and his spouse about filing a protection visa application, did you ask them, "On what basis do you think you suffer from persecution"?] --- I ask them.
[And what did they answer?] --- Answer? Explain husband, husband writing English, give it to me. I writing in the form.
Mr Altintas, however, agreed that the answer to question 37 was not in his handwriting, but in that of his work experience secretary. Mr Fell then, very appropriately, asked him whether the answer to question 37 was not the crux of the application. Mr Altintas agreed that it was, but gave no explanation as to why he had left the filling in of that part of the form to his work experience secretary.
93. Mr Altintas agreed that the visa application form did not disclose a reasonable basis for the application, but he explained he lodged it to provide the basis for an application for a humanitarian grant by the Minister under s 417 of the Act. He explained that 90 per cent of the cases in which he has applied for a humanitarian grant under s 417 of the Act have been successful. He produced extracts from the files of four unidentified Turkish clients. They had all applied for a protection visa and been rejected by the Refugee Review Tribunal, but then obtained a favourable decision under s 417 of the Act. The grounds relied on by the applicants in their applications for protection visas (A19), except perhaps in case 1, were generally no stronger than those in Miss Khamhong's application.
FINDINGS AS TO THE COMPLAINT OF MR TOOHEY AND MISS KHAMHONG
94. The Respondent’s Statement of Facts and Contentions and Supplementary Statement of Facts and Contentions allege breaches of the following clauses of the Code in respect of Mr Altintas’ dealings with Mr Toohey and Miss Khamhong: 2.3, 2.4, 2.6, 2.8, 2.17, 6.1, 8.1, 8.2 and 8.4. Mr Fell also made submissions as to whether Mr Altintas is a “fit and proper person to give immigration assistance”.
95. Mr Gerkens submitted that Miss Khamhong should have been called as a witness, and that if she needed an interpreter that would have been able to be arranged. I agree with that submission. There was no logical reason why Miss Khamhong was not called. Evidence as to her understanding of what happened at the meeting at Mr Altintas’ office on 23 March 1999 would have been of assistance to the Tribunal. She could have given evidence as to her understanding of discussions with Mr Altintas and of the fee agreement she signed, which was written only in English (T12, p90). However, her absence does not mean that the Tribunal cannot make findings on the evidence it did have. There was relevant evidence from Mr Toohey, Mr Altintas and Ms Aktagen and from the documents before the Tribunal.
96. Mr Gerkens also submitted that I should reject Mr Toohey’s evidence on the ground that there was a conflict between him saying (trans, p26) that Mr Altintas, after looking at Miss Khamhong’s passport, said he could get a visa for her, without saying what type of visa, and his acknowledgement in his letter of complaint (T5, p44) that there had been some discussion about appealing to the RRT.
97. I do not find there is any significant conflict. Mr Toohey said “I … was very naive in visas and immigration matters and everything like that” (trans, p24). I accept that explanation. It is demonstrated in his letter to Mr Altintas of 3 May 1999 (T7, p49). Further, even though in the letter of complaint Mr Toohey wrote that Mr Altintas had mentioned the RRT, he also wrote that Mr Altintas “did not explain that a protection visa was for persons seeking asylum. Wanphen is undoubtedly not a refugee” (T5, p44). I find Mr Toohey had an imperfect understanding of the process Mr Altintas commenced on behalf of Miss Khamhong.
98. I find that, whether or not Mr Altintas used the term “protection visa”, he did not clearly explain to Mr Toohey and Miss Khamhong that it is a visa for people who claim to be refugees. I find that there was some discussion between Mr Altintas and Mr Toohey as to whether there was any prospect of obtaining any other sort of visa, such as a study visa. Mr Toohey then agreed to the lodging of an application for the sort of visa advised by Mr Altintas. I also find that Mr Altintas does not have a clear memory of what happened at the meeting on 23 March 1999. That is clearly shown by his assertion that Mr Toohey filled in the application forms B and C in his own handwriting (T7, p47), when in fact they were filled in by Mr Altintas and Ms Aktagen.
ALLEGED BREACHES OF THE CODE IN RESPECT OF MR TOOHEY AND MISS KHAMHONG
Clauses 2.3 & 2.4 – Professionalism and sound working knowledge of relevant legislation and regard for client’s dependence on agent’s knowledge and experience
99. These are very general clauses. The respondent did not make any closing submissions directed to breaches of these clauses, although they were raised in the Supplementary Statement of Facts and Contentions.
100. As to clause 2.3, which requires that a migration agent should have a sound working knowledge of the legislation relating to migration procedure, I was troubled by Mr Altintas’ evidence that he did not know what the term “grossly unfounded” meant, in clause 2.17 of the Code. I find that does indicate an important gap in his knowledge, and is relevant to clause 2.3.
101. As to clause 2.4, I find, on the basis of Mr Toohey’s evidence that, when he engaged Mr Altintas to act for Miss Khanmhong, he had very little knowledge of migration matters and migration law, and that he depended on Mr Altintas to give him the benefit of his knowledge and experience. I find Mr Toohey’s evidence is supported by the letter he wrote to Mr Altintas on 3 May 1999 (T7, p49). I preferred Mr Toohey’s evidence on the issue to that of Mr Altintas. I do not accept Mr Altintas’ evidence that Mr Toohey knew about protection visas when he first came to see Mr Altintas. I find that Mr Altintas’ evidence to the Tribunal was not frank on that issue. Further, I consider that Mr Altintas should have used a Thai interpreter to obtain instructions from Miss Khamhong, if she had only very limited English. He should also not have asked Mr Toohey to sign the interpreter’s declaration, as he did not speak Thai.
102. I find that Mr Altintas, when he was acting as Miss Khamhong’s migration agent, did not have due regard to his clients’ dependence on his knowledge and experience. I find Mr Altintas did not comply with clause 2.4 of the Code.
Clause 2.6 – Frankness and candour about prospects of success
103. It was Mr Altintas’ evidence that he advised Mr Toohey and Miss Khamhong that their case was “very, very weak” and had “very little chance”. That was clearly frank and candid advice. I do not doubt that Mr Altintas gave that advice, but I find that he also advised Mr Toohey, as Mr Toohey said, that Miss Khamhong had a right to lodge an application, even though it had “very little chance” of success. That finding does not enable me to find that there was any breach of clause 2.6.
Clause 2.8 – Failure to confirm client’s instructions in writing
104. In its Supplementary Statement of Facts and Contentions, MARA relied on breaches of clauses 2.8(a) and (c) of the Code, stating, at paragraph 11:
11.1.lack of written confirmation of the result of the delegate’s refusal and the implications for Ms Kamhong;
11.2lack of written confirmation of alleged instructions to appeal to the Refugee Review Tribunal; and
11.3lack of written confirmation of any of the conversations between the Applicant and Ms Kamhong’s husband. The telephone contact is described by the Applicant as “regular” (Applicant’s proof of evidence at page 4).
105. Mr Gerkens, in his submissions, acknowledged that there had been a failure to comply with the Code as set out in paragraphs 11.1, 11.2 and 11.3 of the Respondent’s Supplementary Statement of Facts and Contentions. I find there was a failure to comply with clauses 2.8(a) and (c) of the Code.
106. Mr Gerkens submitted that those were not matters originally complained of by MARA, and that they were small failings only. He also said that they were “basically the only things that Mr Altintas can be justifiably criticised for” and they should not be a basis on which I should refuse to set aside MARA’s decision. I will consider that submission further, later in these reasons.
107. Although MARA, in its Supplementary Statement of Facts and Contentions did not specifically rely on a breach of clause 2.8(b) of the Code, an underlying problem for Mr Altintas is the evidence of Mr Toohey that he did not, on Miss Khamhong’s behalf, give the instructions which appear in answer to question 37 on Miss Khamhong’s application for a protection visa. I accept Mr Toohey’s evidence that he did not tell Ms Aktagen the matters set out in answer to question 37 on the application for a visa form. I find that it was Mr Altintas who told Ms Aktagen to write those matters down.
108. Similarly, I do not find that Miss Khamhong, through Mr Toohey, told Mr Altintas that she believed her application came under the United Nations Refugee Category, as stated in the application for RRT review. I find that was written by Mr Altintas because he knew that something had to be written as the reason for seeking RRT review. Mr Altintas gave evidence that he filled that form in himself (trans, p192). Later he said that none of the handwriting on the form was his, and that he did not know whose handwriting it was (trans, p195). It is clear that some of it was written by Ms Aktagen, but Section D does not appear to be her handwriting. I find it was not filled in by Mr Toohey. On the balance of probabilities, I find it was filled in by Mr Altintas.
109. I do, however, accept Mr Altintas’ evidence that, as a result of his advice, Mr Toohey and Miss Khamhong did instruct him to the lodge the application for a protection visa, although I am not satisfied that they understood exactly what was meant by that. I also find, on the evidence of both Mr Toohey and Mr Altintas, that, after that claim was rejected, Mr Toohey and Miss Khamhong did, again on advice from Mr Altintas, instruct him to lodge an application for RRT review and that they left it to him to specify the reasons for making the application in Section D of the form.
Clause 2.17 - Encouraging the lodgement of vexatious or grossly unfounded applications
110. Mr Gerkens submitted that the application for a protection visa for Miss Khamhong was not “grossly unfounded”, because it raised both an absence of human rights and a fear of persecution on the grounds of religion. It asserted that Thailand has no democracy and no human rights, and that Miss Khamhong would be shamed if she returned to Thailand without her fiancé, after having lived with him in Australia.
111. I find that the application was “grossly unfounded”, both because the assertions were far from sufficient to give rise to a grant of a protection visa and because the assertions in the application were not in accordance with Mr Altintas’ instructions from his clients. As already stated, I accept Mr Toohey’s evidence and find that he did not state, on behalf of Miss Khamhong, that Thailand has no democracy and no human rights. Further, I find, from the evidence of both Mr Altintas and Mr Toohey, that it was never intended that Miss Khamhong would return to Thailand unmarried. On 23 March 1999, when Mr Toohey and Miss Khamhong attended Mr Altintas’ office for the first time, they told Mr Altintas that they had arranged to be married on 12 April 1999, and that Miss Khamhong had a visa allowing her to remain in Australian until 4 May 1999. Thus, even if Miss Khamhong had to return to Thailand when her visa expired, she would have been married and applying to return to Australia to be with her husband. She would not have returned to Thailand in circumstances that would shame her family. I find Mr Altintas, not Mr Toohey, dictated that ground to Ms Aktagen. The application was grossly unfounded.
112. I also find that Mr Altintas encouraged the lodging of that grossly unfounded application. He explained his reasons for doing so in evidence a number of times, in particular in the passage quoted in paragraph 90 of these reasons. In that passage, Mr Altintas even acknowledged that Mr Toohey at first did not want Miss Khamhong to apply for a protection visa, and that he advised that she do so, in order to be able to seek a discretionary grant of a visa by the Minister on public interest grounds, under s 417 of the Act. In a later passage, Mr Altintas gave evidence suggesting that it was his practice to lodge such applications without exaggeration, so that it was apparent that they were lodged only to provide a basis to seek an exercise of Ministerial discretion. He said (trans, p182):
I tell them I am sorry, this is not fit for your protection visa, but look like that humanitarian grant. I got immigration application. I no put lot of things. I tell honest how it take. Then I go RRT. Even RRT member look. Yes, this not for RRT, this for humanitarian grant. Then to minister, Minister accept.
113. Mr Gerkens submitted that because the evidence established a reason for lodging the application for a protection visa, even on weak grounds, it was not “grossly unfounded”. In support of Mr Altintas’ evidence on that issue, and his submission, Mr Gerkens tendered the Migration Guidelines, current at the relevant date. They are headed “Ministerial Guidelines for the Identification of Unique or Exceptional Cases where it may be in the Public Interest to substitute a more favourable decision under s 345/351/391/417/454 of the Migration Act 1958(2)” (“the Guidelines”) (R6).
114. The purpose of the Guidelines is said to be to inform officers of the Department of the “Unique or Exceptional Circumstances” in which the Minister may wish to consider exercising his or her public interest powers under various sections of the Act, including s 417. The Guidelines, at paragraph 3.1, under the heading “When the public interest power is not available”, explain the circumstances in which the discretion cannot be exercised:
As my public interest powers only allow me to substitute a more favourable decision for a decision of MIRO, the AAT … or the RRT, I am not able to use this power until the relevant review authority has made a decision in a particular case. I cannot use this power to grant a visa when the review authority has not yet made a decision or when an application to the review authority has not been made. [emphasis added]
115. Under the heading “Unique or Exceptional Circumstances”, the Guidelines include, at paragraphs 4.2.8 and 4.2.10:
Strong compassionate circumstances such that failure to recognise them would result in irreparable harm and continuing hardship to an Australian family unit (where at least one member of the family is an Australian citizen or Australian permanent resident) or an Australian citizen;
…
The length of time the person has been present in Australia (including time spent in detention) and their level of integration into the Australian community;
…
116. Mr Gerkens submitted that, as Mr Toohey is an Australian citizen and it was in his interests to have his wife with him in Australia, Mr Altintas would have had a good case to submit to the Minister that the failure to grant a visa to Miss Khamhong would result in irreparable harm and continuing hardship to Mr Toohey, if his wife could not live with him in his own country (trans, p245).
117. Mr Fell did not agree that the cases lodged by Mr Gerkens on behalf of Mr Altintas showed that separation of a family, where one member of the family was an Australian citizen, without significantly more, was being accepted by the Minister as a ground for the grant of a visa on compassionate reasons. Leave was given to the applicant to file further material in respect of the four cases, and to Mr Fell to lodge a written submission as to the weight the Tribunal should give to that material. Further material was lodged on behalf of Mr Altintas, but no further submissions on that issue were received by the Tribunal on behalf of MARA.
118. I accept that the documents relating to the other four clients of Mr Altintas show that the Minister is prepared to find “strong compassionate circumstances, such that failure to recognise them would result in irreparable harm and continuing hardship to an Australian family unit”, in situations which are not stronger than those in this matter.
119. I find that Mr Altintas did encourage the lodging of a grossly unfounded application for a protection visa for Miss Khamhong, but that his reason for doing so was that if Mr Toohey had married Miss Khamhong, and she returned to Thailand a couple of weeks later, after only or one or two months in Australia, there was a strong chance her application for a spouse visa would have been rejected. However, the lodging of the protection visa automatically allowed her to stay here on a bridging visa. Thus, Miss Khamhong was able to establish a longer period of residence in Australia with Mr Toohey, as his wife. After the application for a protection visa was refused, there would have been a further period of residence in Australia, while waiting for the review by the RRT. Had that proceeded, after it had been refused, there would have been a reasonable chance of the Minister finding “strong compassionate circumstances”, particularly if, by then, Miss Khamhong was pregnant or a child had been born. Those are relevant matters to consider in deciding what sanction, if any, is appropriate for Mr Altintas’ breach of clause 2.17 of the Code.
Clause 6.1 - Maintenance of proper records
120. Mr Fell submitted that there was a breach of clause 6.1(c) of the Code, which provides that a migration agent must maintain proper records that can be made available for inspection on request by MARA including files containing file notes of every substantive or material oral communication between the client and the agent. Mr Fell submitted that the fact that Mr Altintas’ files contained no documentation other than the application forms themselves shows a breach of 6.1(c).
121. I accept Mr Fell’s submission on this issue and find that the evidence establishes breaches of clause 6.1(c) in that there are no file notes of the instructions Mr Altintas claims he received from Mr Toohey and Miss Khamhong to lodge an application for a protection visa, nor of Mr Toohey’s instructions on Miss Khamhong’s behalf to apply for review of the rejection decision by the RRT. Further, both Mr Toohey and Mr Altintas say Mr Toohey rang Mr Altintas frequently. There are no records of any of those telephone calls. I do not accept Mr Altintas’ evidence that none of them were substantive or material oral communications. I accept Mr Toohey’s evidence that, on some occasions, he was questioning whether it was correct or legal or appropriate for Miss Khamhong to proceed with the protection visa application, or with the application for RRT review. I find those enquiries, and Mr Altintas’ responses, were “substantive and material oral communications”, which should have been noted on Miss Khamhong’s file.
Clauses 8.1 & 8.2 - Duty to exercise effective control of his or her office for the purpose of giving immigration advice and assistance & Properly supervising the work carried out by staff
122. Mr Altintas gave evidence that he gave the application forms to Mr Toohey to fill in, and that Mr Toohey then took them to Ms Aktagen. If that were so, it would indicate that Mr Altintas did not take responsibility for considering the information Mr Toohey and Miss Khamhong could provide in support of Miss Khamhong’s application for a Protection Visa. Mr Altintas said, in his proof of evidence, that he had thought Mr Toohey had completed the body of the application form, but he had now realised it had been done by Ms Aktagen. Preparing a visa application for lodging is a task which is clearly the provision of immigration assistance. It requires the knowledge and experience of a migration agent in obtaining instructions from the applicant or her representative, and deciding what application should be made on those instructions, and how best to put the case for the applicant. Mr Altintas’ evidence was that all he did was listen to some of the conversation between Ms Aktagen and Mr Toohey, while typing the fee agreement, and then check the application form Ms Aktagen had completed. As I have already explained, I find he took a more active role than that, telling Ms Aktagen how to answer question 37. I found Ms Aktagen’s evidence so confused that I place no reliance on it, except as to her identifying her own handwriting.
123. Mr Fell submitted that if Mr Altintas had been, as he said, in the office for the whole time Mr Toohey and Miss Khamhong were present, and had supervised the completion of the form, he would not have made the error as to who filled out Miss Khamhong’s application form. He submitted further that, if Mr Altintas were not present, he was not exercising effective control of his office and was allowing the work experience person to perform work she should not have done. Thus, he said, Mr Altintas’ conduct “would have” breached clauses 8.1 and 8.2 of the Code.
124. I find that Mr Altintas was present while Ms Aktagen filled in the forms for Miss Khamhong. All the witnesses said so. Mr Altintas did not pay attention to the issue of whose handwriting it was when he responded to MARA (trans, p172). I find the evidence does not support Mr Fell’s submission as to a breach of clauses 8.1 and 8.2 of the Code.
Clause 8.4 - Making employees familiar with the code
125. The evidence of Mr Altintas and Ms Aktagen was that the Code is clearly displayed in Mr Altintas’ office. There was no evidence to the contrary. I do not find that there was any breach of clause 8.4 of the Code.
SUMMARY OF FINDINGS AS TO BREACHES IN BOTH COMPLAINTS
126. I have found breaches of clauses 2.4, 2.8(a) and (c), 2.17 and 6.1 of the Code. The next issue for consideration is whether the evidence establishes that Mr Altintas is “not a fit and proper person to give immigration assistance”, as referred to in s 303(f) of the Act.
WHETHER MR ALTINTAS IS A FIT AND PROPER PERSON TO GIVE IMMIGRATION ASSISTANCE
127. Mr Fell referred to Re Hakaoro and Minister for Immigration and Multicultural Affairs (1998) 26 AAR 534. That matter was a review of a decision of MARA, to refuse Mr Hakaoro’s application for registration on the ground that he was not a fit and proper person to give immigration assistance, in that he did not possess a sound knowledge of migration procedure. Deputy President Forgie, in considering the meaning of the term “fit and proper person” referred to Hughes and Vale Pty Ltd and Anor v State of New South Wales and Ors [No. 2] (1955) 93 CLR 127, where the High Court said, at 156:
The expression `fit and proper person’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things, honesty knowledge and ability: ‘honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it.
128. The Tribunal in Hakaoro also referred to the High Court decision of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, and in particular to the reasons for decision of Toohey and Gaudron JJ at 380. Their Honours said:
The expression `fit and proper person', standing alone, carries no precise meaning. It 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. The concept of `fit and proper' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
129. In Hakaoro, Deputy President Forgie said, at 545:
Mr Hakaoro has argued, in effect, that the words “fit and proper” relate only to issues of integrity: to issues of honour, reliability, honesty and soundness of moral character. In the context of the registration scheme, it is not enough, however, to be a person of honour, reliability, honesty and soundness of moral character in his or her life generally. A person must be all those things and more. He or she must be a person who has knowledge of migration procedure. Unless he or she has that knowledge, he or she cannot be relied upon to give competent migration assistance as that assistance is described in section 276. Unless he or she has that knowledge, he or she cannot fulfil the functions and responsibilities of a migration agent.
130. Mr Fell also referred to the decision of Deputy President Handley in Re Prasad and Migration Agents Registration Authority [2002] AATA 423. In that matter, Deputy President Handley, said, at paragraphs 39 and 40:
39. 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.
40. 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.
131. I adopt those passages as a helpful discussion of the relevant standard of proof, and also of the meaning of the phrases “person of integrity” and “fit and proper person”.
132. There was evidence that Mr Altintas is highly regarded within the Turkish community, and as a migration agent. Mr Gerkens tendered character references from Mr Kleynhans, a psychologist, who also gave evidence (A3), and from Mr Yilmaz, the editor of Turkish Report Weekly (A4). Mr Kleynhans described Mr Altintas as “a person of integrity”. Mr Yilmaz’s letter describes him as “a sincere, trustworthy and hardworking person that is well respected within the community”. Mr Gerkens also tendered statements from Mr Bob Sercombe, M.P. (A13), and Mr George Seitz, M.L.A. (A14) which both describe Mr Altintas as a “respected member of the Turkish community”. Mr Altintas also produced other documents including newspaper cuttings as to his standing in the community and correspondence relating his receipt in November 2003 of an award for “Meritorious Service in the Community” as part of the scheme of “Victoria’s Award for Excellence in Multicultural Affairs” (A5-15, A17). Those documents indicate that Mr Altintas is a man of good standing in the Turkish and broader multicultural community. That evidence was not challenged by MARA.
133. MARA’s primary concern about the complaint by Mr Toohey and Miss Khamhong, at the time of the decision under review (T2) was that Mr Altintas had wrongly claimed that Mr Toohey had completed the application form himself. MARA regarded that as an attempt by Mr Altintas to mislead MARA, and thus as indicating that Mr Altintas was not a person of integrity or otherwise not a fit and proper person to give immigration assistance. Mr Altintas had written to MARA on 21 February 2000, stating (T7, p47):
It is pertinent to note that Parts B and C of the protection visa application (886) has been completed by Desmond Toohey in his own handwriting including him signing the interpreter Clause 18 of Part B. I enclose photocopies of these documents for your perusal (in confidence). In the light of what is stated above the allegation that Desmond Toohey and Wanphen now seeks to make regarding the protection visa application, apart from being denied, is clearly false and misleading.
134. At the hearing, Mr Gerkens submitted that Mr Altintas had been mistaken in his claim that Mr Toohey completed the form himself, and that the fact that he had made an unintentional mistake should not lead to findings of serious breach. I do not accept that Mr Altintas’ error is only relevant to s 303(f) if it was intentional. A high degree of carelessness or ineptitude may also be relevant to s 303(f) of the Act.
135. Mr Gerkens said that Mr Altintas had not intended to mislead MARA and that he apologised to the Tribunal and to MARA for doing so. That would be an appropriate course to adopt, if Mr Altintas had done so soon after he realised that the handwriting in the form was not Mr Toohey’s, but that of Ms Aktagen. MARA, with its letter dated 2 January 2002, sent Mr Altintas a copy of Mr Toohey’s statutory declaration as to the handwriting issue. Mr Altintas in his response of 25 January 2002 (T14) did not include any retraction of his claim that Mr Toohey had himself completed the form. It was not until Mr Altintas lodged his Proof of Evidence (A16) in these proceedings, on 31 July 2003, that he admitted that he had been wrong in asserting that the protection visa application form lodged in respect of Miss Khamhong, had been completed by Mr Toohey. He stated (A16, p5):
The Respondent made a finding that I attempted to mislead it when I suggested in my letter to the Respondent dated 21 February 2000 that the Protection Visa was completed in Desmond Toohey's handwriting. I now realise that I was mistaken in this regard. Mr Toohey signed the interpreter's declaration [T7/76]. I now realise, however, that he did not complete the body of the document. What occurred was that I gave him the blank document to complete and I assumed that he had personally completed it. After reading his statutory declaration dated 18 March 2000, I now realise that my secretary (who was assisting me as a work experience person) actually assisted him by completing the answers to questions in the document.
I acknowledge my mistake in this regard and apologise. My mistake was, however, an innocent one and I had no intention to mislead. I believed at the time that Mr Toohey had personally completed the documents and that that was a point assisting my case. I was wrong but my error was inadvertent and unintentional.
136. Mr Altintas did not explain why it took him from January 2002 until July 2003 to apologise. He should have realised in January 2002, from reading Mr Toohey's statutory declaration of 18 March 2000, that he had made a mistake in his first response to Mr Toohey's complaint of 6 August 2001 (T12). The letter from MARA dated 2 January 2002 (T13) specifically drew to his attention Mr Toohey's denial that the forms were completed in his handwriting, and enclosed the statutory declaration by Mr Toohey.
137. Mr Altintas' response to that letter (T14), dated 25 January 2002, complained about the way the matter had been handled by MARA, and criticised Mr Toohey's response to Mr Altintas’ letter of 6 August 2001. Mr Altintas failed to acknowledge his own error in claiming that Mr Toohey had himself filled in the application form for the protection visa.
138. The tone of Mr Altintas’ letter of 25 January 2002 was certainly not a tone of retraction or apology, either to MARA or to Mr Toohey. In fact, although Mr Gerkens said that Mr Altintas apologised to MARA and to the Tribunal, he did not state that Mr Altintas had apologised to Mr Toohey. That is a significant omission; an apology was owed to Mr Toohey.
139. I accept that when Mr Altintas made the assertion that the form was filled in by Mr Toohey, he believed that to be true. Thus, I find that he did not intentionally mislead MARA. However, I find the making of that assertion, without properly checking the facts, to be so careless as to raise a serious question as to whether Mr Altintas is a person of integrity or otherwise a fit and proper person to give immigration advice. At the hearing, Mr Altintas explained why he written that it was Mr Toohey’s handwriting on Miss Khamhong’s visa application form. He said (trans, p172):
When I receive complaint to MARA I shocking because this gentleman he know everything from A to Z. "Look," I say, "Look. He full up form. How he can do couldn't understand?" Quick I writing like that. I answer MARA, "Yes, he write it." After he say, "No, I wrote form," and then I investigation I remind, I remind, "Yes, that's right." Correction. [emphasis added]
140. I consider that Mr Altintas acted with a careless disregard as to whether his statements were in fact true.Further, although he said that he then remembered that Mr Toohey did not fill in the form, he did not correct his error for another eighteen months. I consider that to be less than honest, and to cast doubt on Mr Altintas’ integrity, and to raise a serious question as to whether he is a fit and proper person to give immigration assistance.
141. However, although I consider it to be a serious omission that Mr Altintas did not acknowledge his error in January 2002, and waited to do so until July 2003, MARA did not seem to make anything of that delay. Mr Altintas was not on notice as to that issue, nor was he cross examined on the delay. It was not relied upon by Mr Fell in his closing submissions. Thus, I feel unable to take it into account in deciding whether Mr Altintas is a fit and proper person to give immigration assistance.
142. Another matter relied on by MARA as showing that Mr Altintas was not a fit and proper person to give immigration assistance related to Mr Toohey’s evidence that he and Miss Khamhong were asked by Mr Altintas to sign blank forms. Mr Toohey did not clearly explain whether the form he signed was already signed by him when Ms Aktagen filled in the various details on it. The evidence was confused as to when Ms Aktagen filled in the form, but I find it was done in Mr Toohey’s presence. His signature was in the interpreter’s box. It was inappropriate for Mr Altintas to ask him to sign the form there, but he did not sign to verify the details in the forms.
143. I find that, when Miss Khamhong signed Forms B and C, Mr Toohey was not shown them in their completed state, so that he could explain them to her. I find that, when Miss Khamhong signed the fee agreement, Mr Altintas had typed the agreement up. However, Miss Khamhong could not read it, and Mr Toohey was not shown the typewritten form. A practice of obtaining clients’ signatures to documents they do not have the opportunity to read, or to have explained to them, shows a lack of integrity and a lack of knowledge. The evidence as to the signing of the forms by Mr Toohey and Miss Khamhong raises worrying issues.
144. Another matter of concern to me, on the issue of whether Mr Altintas is a fit and proper person to give immigration assistance, was his evidence that he did not understand what was meant by the concept of a “grossly unfounded application”, as referred to in clause 2.17 of the Code. However, that issue only arose in evidence and was not relied on by Mr Fell in his closing submissions.
145. The issue as to whether Mr Altintas is a person of integrity or otherwise a fit and proper person to give immigration assistance is extremely significant for Mr Altintas. An adverse finding would mean that he could not be allowed to go on practising as a migration agent. That would be a very serious decision, as that has been Mr Altintas’ occupation for more than 12 years. I would, applying the Briginshaw standard of proof, need to be “comfortably satisfied” that I had “reached a correct and just conclusion”.
146. Bearing in mind the general confusion on the evidence as to exactly how and when the different parts of the forms were filled in, I do not feel able to be comfortably satisfied that the procedure adopted was such as to show that Mr Altintas is not a fit and proper person to give immigration assistance. My finding that Mr Altintas himself decided on the grounds to put in answer to question 37, and did not check them with Mr Toohey and Miss Khamhong, is more troubling. That is conduct which shows a lack of integrity. I have also decided that Mr Altintas’ careless disregard for the truth, in asserting that Mr Toohey had filled the forms in, in his own handwriting, indicates a lack of honesty.
147. The question is whether those matters are sufficient to justify a finding that Mr Altintas is not a fit and proper person to give immigration assistance. Not without some hesitation, I have decided that, because of the nature and significance of a finding that Mr Altintas is not a fit and proper person to give immigration assistance, I cannot find, on the evidence currently before me, that it has been proved to my reasonable satisfaction that Mr Altintas is not a fit and proper person to give immigration assistance. In reaching this conclusion, I have borne in mind that MARA did not decide to cancel Mr Altintas’ registration as a migration agent. I have also borne in mind the significance of the suggested finding, in regard to suspending Mr Altintas’ registration as a migration agent. As discussed later in these reasons, I cannot understand how, if Mr Altintas’ registration were suspended, he would be able in the future to convince MARA that he is a fit and proper person to give immigration assistance. I consider that MARA has not addressed the issue of whether Mr Altintas’ lack of integrity and honesty are such that he should not practice as a migration agent in the future. If I were to find that Mr Altintas were not a fit and proper person, I would need to understand why MARA had decided on a suspension rather than a cancellation of his registration as a migration agent.
SANCTIONS
148. Sanctions can only be imposed where the Tribunal has been satisfied of one of the matters under s 303(d) – (h). I have found that Mr Altintas misled MARA but that he did so carelessly, but not intentionally. I have not made the necessary finding under s 303(f).
149. I have found breaches of clauses 2.4, 2.8(a) and (c), 2.17 and 6.1 of the Code, as relied on by MARA. There were aspects of Mr Altintas’ evidence which I have not accepted, such as his evidence that Mr Toohey knew all about protection visas when he came to see Mr Altintas, and his evidence as to the answer to question 37. Those are serious matters.
150. There were no submissions as to the role of any sanction I might impose under s 303 of the Act, or as to the relevant considerations in making a decision as to sanctions. In Re Donald and Australian Securities and Investment Commission (2001) 64 ALD 717, the Tribunal was reviewing a decision to make a banning order under s 829 of the Corporations Law. The Tribunal considered the purpose of a banning order and whether it was the best way to ensure protection of the public. The Tribunal said, at paragraphs 52, 55 and 57:
(52) We will not set out the findings we have already made in our previous reasons. As we said in those reasons, in our view, it seems to us that Mr Donald needs further time to reflect upon his actions so that he gains a proper understanding of what is appropriate behaviour of a dealers representative. But in what circumstances is he to reflect? In considering that question, we are mindful that we must have as our objects only those of achieving public protection and the maintenance of proper professional standards. Although any decision may involve great deprivation for Mr Donald, the object of the order is not to punish or to extract retribution. The protection of the public requires that persons operating in the market as dealers representatives understand that their behaviour must be such that it protects the integrity of the market.
…
(55) To impose a further banning order when a banning order has been stayed and there is no evidence of further inappropriate behaviour in the short period of Mr Donald’s resuming work as a dealers representative almost smacks of punitive action rather than of protection of the public. Considerations of punishment are as inappropriate as are considerations of the hardship that has been caused to Mr Donald by his inability to work as a dealers representative.
…
(57) It seems to us that the public is better protected both in the short and the long term if a more pro-active approach is taken to Mr Donald’s rehabilitation. It seems to us that Mr Donald should be permitted, having served the period of the banning order to 22 November 2000, to resume his duties as a dealers representative under supervision while undergoing a program of education. That program would be directed to extending his knowledge of what is appropriate legal and ethical behaviour generally in the industry and specifically as a dealers representative. Both actions would achieve some level of protection to the public.
151. I consider it is necessary when deciding to impose a sanction under s 303 of the Act, to provide reasons for the choice of sanction, and, if conditions are imposed during a suspension, for the imposition of those conditions. Unfortunately, the MARA decision under review did not do so, and neither did Mr Fell in his submissions, other than in a very general way.
152. Mr Gerkens submitted that the only breaches which the Tribunal should find were those which Mr Altintas conceded, namely breaches of clauses 2.8(a) and (c), and 6.1(c). He also submitted that they were minor breaches only and “the only things that Mr Altintas can justifiably be criticised for”, and that the appropriate penalty or sanction was a caution.
153. Mr Fell, in his closing submission, referred to the breaches Mr Altintas had admitted, of clauses 2.8(a) and (c), and 6.1(c) of the Code. Mr Fell acknowledged that Mr Altintas’ breaches, in not confirming instructions in writing within a reasonable time, and not keeping his client fully and regularly informed of the progress of her case, were not serious breaches, but he said that they were breaches which should lead to a penalty beyond a caution. He submitted that they would warrant a suspension of Mr Altintas’ registration as a migration agent. He pointed out that, where a decision is made to suspend registration, the Tribunal has power to impose conditions under s 304 of the Act.
154. Mr Fell did not agree with the characterisation of the breaches admitted by Mr Altintas as “a small failing” (trans, p246). He pointed out that, if Mr Altintas had confirmed his clients’ instructions in writing, as required by the Code, there would have been more satisfactory evidence before the Tribunal as to whether or not Mr Altintas had acted in accordance with his clients’ instructions, as required by clause 2.8(b) of the Code. I do however, note that MARA did not rely on any breach of clause 2.8(b) of the Code.
155. However, I have found further breaches. I have found that Mr Altintas did not have due regard to his clients’ dependence on his knowledge and experience, in breach of clause 2.4. I have also found that the applications lodged on behalf of Mrs Kosif and Ms Khamhong were both “grossly unfounded”. I have found that, in breach of clause 2.17 of the Act, Mr Altintas encouraged Miss Khamhong to lodge a “grossly unfounded” application for a protection visa. I have not accepted Mr Gerkens’ submission that the application was not grossly unfounded, because it was lodged as a step towards obtaining an exercise of a Ministerial discretion.
156. However, the evidence on that issue is, in my view, relevant as to sanction. I have found that the advice Mr Altintas gave to his clients Mr Toohey and Miss Khamhong, was that “the system” operated in such a way that they needed to lodge a visa claim, even though it would inevitably be rejected, in order to eventually be able to seek an exercise of a Ministerial discretion.
157. I find that the advice Mr Altintas gave to his clients was not unreasonable or ill-informed. I accept that it was not the advice the Department would want him to give but, bearing in mind the way the legislation as to exercise of Ministerial discretion is structured, it may well have been good advice from the point of view of his clients. It would have been helpful if Mr Fell had addressed the way in which the system for an exercise of Ministerial discretion operates so as to encourage the lodging of applications as a step towards obtaining an exercise of Ministerial discretion, even in circumstances where the primary application cannot succeed.
158. However, I have also found that Mr Altintas, in answer to question 37, included grounds which were not in accordance with instructions received from his clients. That was clearly inappropriate, from any point of view, and it adds an additional factor to the breach of clause 2.17 of the Code.
159. A suspension could be an appropriate sanction in two situations. The first is where a person has been found to be not a fit and proper person to give immigration assistance, but there is reason to believe that during a period of suspension, that circumstance will change, for example if he or she studies in an area where his or her knowledge has been found to be deficient. The second is where the person has not been found not to be a fit and proper person to give immigration assistance, but there are serious findings of concern about the person’s breaches of the Code. In such a situation it may be considered that a period of suspension will impress upon the person the necessity to improve his or her conduct and practices as to compliance with the Code. I regret that MARA’s representatives at the hearing did not address the reasons why Mr Altintas’ registration as a migration agent should be suspended.
160. As set out in paragraph 1 of these reasons, MARA suspended Mr Altintas’ registration for three years, but provided a mechanism whereby that period could be reduced to twelve months. The conditions MARA set were that, after twelve months the suspension could be lifted if Mr Altintas could “convince the Authority that you are a person of integrity and a fit and proper person to give immigration assistance”, and complete one of the following:
a.30 core points of Continuing Professional Development of which 10 points must be in the Refugee and Humanitarian area; or
b. the Migration Professional Knowledge Entry Examination; or
c. a prescribed qualification;
161. I was not addressed as to how MARA expected or anticipated that Mr Altintas could “convince” MARA that he is a person of integrity or otherwise a fit and proper person to give immigration assistance, twelve months after having been found not to be so by MARA in the reviewable decision. Nor was Mr Altintas given any indication, in the reviewable decision, or in the letter from MARA dated 8 April 2003 enclosing it, of how he might satisfy the requirement.
162. At the hearing of this matter, Mr Altintas tendered several references as to his character and integrity and standing in the community. As he would be precluded from giving immigration assistance during the period of his suspension, it is not clear what, if any, additional material could be produced at the end of a period of suspension to convince MARA that Mr Altintas was then a person of integrity or otherwise a fit and proper person to give immigration assistance. He clearly would not be able to give evidence of any improvement in the way he conducted himself as a migration agent. Those are matters which should be considered in any matter where a suspension is imposed under s 303(f) of the Act. However, they are not relevant here, as I have not found that I am satisfied of the matters set out in paragraph 303(f) of the Act.
163. In regard to the imposition of sanctions under s 303(h) of the Act, I asked for information from Mr Gerkens and Mr Fell as to the meaning of conditions (a) – (c).
164. Mr Gerkens explained that every migration agent must undertake 10 core points of Continuing Professional Development to retain registration each year. Mr Altintas produced a document (A21) showing that he had completed 19 points of Continuing Professional Development since the reviewable decision on 7 April 2003. The courses he attended are as follows:
Item No.
Activity Name
Status
Value
30,611
Record Keeping, File Management and Risk Management
Elective
1 pt
30,200
Recent Developments in Migration Law
Core
2 pts
30,532
Business Visa Topics
Core
2 pts
30,538
Visitor & Other Temporary Visas
Core
2 pts
30,194
Judicial Review of Migration Decisions
Core
2 pts
30,187
Applying for Refugee & Humanitarian Visas
Core
2 pts
30,118
Recent Changes in Migration Legislation and Policy
Core
2 pts
30,119
Protection and Humanitarian Visas
Core
2 pts
30,028
Technical Training and Updated Session: Resident Return Visas and Citizenship
Core
2 pts
30,025
Medicals and Other Schedule 4 Issues
Core
2 pts
165. I explained to Mr Gerkens and Mr Fell that I had difficulty in deciding whether or not the completion of those points of Continuing Professional Development was an appropriate condition, without knowing more about the courses. I was told that the courses are run by the Migration Institute of Australia, which is the Board of MARA, and that there is no assessment at the courses. The points are gained simply by attending the course.
166. I expressed some concern as to whether it was appropriate to impose three possible conditions, and leave it to Mr Altintas to choose which he would satisfy. I asked whether Mr Altintas had ever completed the Migration Professional Knowledge Entry Examination (“the Entry Exam”). I was told he had not, because he had been registered under a “grandfather clause”. I suggested to the parties that, where it had been found that a person’s practice did not comply with required standards, I would not be satisfied that their knowledge and understanding of those standards had improved, as a result of attendance at a seminar or workshop. I suggested there should be some assessment at the end of the course. I suggested that, bearing in mind that Mr Altintas had never sat the Entry Exam, I might find that to be the appropriate condition to impose.
167. Mr Gerkens, in responding to my comments submitted, that it would not be appropriate for the Tribunal to impose a burden on Mr Altintas which is more serious and more severe in consequences to him than the choice of conditions which MARA saw fit to apply. He pointed out that MARA is the body which has overall charge of regulating the industry, and thus has expertise in the particular area.
168. Somewhat to my surprise, Mr Fell supported Mr Gerkens’ submission on that issue. He made the point that Mr Altintas had embarked on the “quite expensive process of getting the 30 points which MARA actually stipulated”, and that he was almost two thirds of the way through. He added that it is a “not inexpensive exercise”.
169. The mention of the expense of the courses made me question whether MARA might support the courses because that is how it gets its funding. Mr Fell said that MARA gets no funding from the courses but only gazettes them as being appropriate. That seemed to be inconsistent with the explanation Mr Gerkens had given, when he told me that the courses are run by the Migration Institute of Australia, which is the Board of MARA. Mr Fell did not disagree with that statement. I see that in fact the definition of MARA in s 275 of the Act, provides that the Migration Institute of Australia is MARA, rather than “the Board of MARA”. The matter was not further canvassed at the hearing.
170. I indicated to the parties that I would have preferred to impose a condition which required Mr Altintas to demonstrate that he had acquired knowledge relevant to the giving of immigration assistance, rather than simply to attend courses, even at considerable expense. However, as neither Mr Gerkens nor Mr Fell supported my suggestion of a requirement that Mr Altintas pass the Entry Exam, and as I only raised that matter at the very end of the hearing, I have decided that it is not appropriate for me to impose a suspension with a condition that Mr Altintas be suspended until he has passed the Entry Exam. However, if that is not an appropriate condition to impose, I have some doubt as to whether suspension is appropriate at all. I am not persuaded of the benefits to Mr Altintas or the community of him attending more workshops or seminars. If, as Mr Gerkens said, he has been completing 10 core points of Continuing Professional Development a year since 1992, and there is still concern about his knowledge of migration law and practice, there is a question whether a further 30 points will add to his knowledge or improve his compliance with the Code.
171. I would have preferred to have been able to consider imposing a condition such as supervision of Mr Altintas’ work practices, but that is not possible under the Act. The only situation where conditions can be imposed is where a migration agent’s registration is suspended.
172. I have considered whether a caution is a more appropriate penalty than a suspension. I am concerned that Mr Altintas’ attitude throughout the process of dealing with MARA and at the hearing seemed to lack any recognition of the fact that it was important that he respect MARA’s responsibility to deal with complaints and that he comply with the provisions of the Code.
173. Mr Altintas reacted to both complaints in an aggressive and defensive way. He challenged MARA’s right to consider Ms Lew’s complaint about Mrs Kosif. He also made threats towards Mr Toohey and Miss Khamhong. His letter to MARA of 6 August 2001 stated (T12, p88):
I feel compelled to send a copy of all the correspondence to the Australian Embassy – Bangkok for appropriate action against Wanphen and Desmond Toohey.
174. Mr Altintas wrote to MARA again on 13 November 2001 (T29). Mr Altintas said he had made the complaint he foreshadowed in his earlier letter. He wrote (T29, p128):
…
I would also take this opportunity to reiterate that I have lodged a complaint against Desmond Toohey and Wanphen at the Australian Embassy in Cambodia and also a complaint against the appropriate person in DIMA and MARA. …
175. Mr Altintas sent a similar letter to MARA on 26 August 2002 (T31). He wrote in response to the complaint by Mr Toohey:
…
I have carefully perused this file and I find that I have more than adequately responded to each and every allegation levelled against me and that unfortunately there has been no pointed reply to the pertinent issues raised by me. Additionally, Desmond Torley [sic] says in his complaint "Wanphen arrived in Australia from Bangkok on February 4, 1999 holding a tourist visa. The visa expired on May 4 this year" and later on he says "we both understood and had planned for Wanphen's return to Thailand in May". If her visa was to expire in May and they both had planned for her to return in May what was the reason to see a migration agent.
Again, he says "we were to be married in Melbourne on April 12". If they had planned to marry when Wanphen was here on a visitor visa, it was perhaps clear that she misled the authorities in obtaining a visitor visa when her real intention was to get married here in Australia whilst on a visitor visa. This speaks volume as to their honestly in dealing with the Department of Immigration.
176. Those letters seem to me to show a lack of respect for Mr Altintas’ clients and a lack of recognition of the importance of the investigation by MARA of complaints against migration agents. Further, the careless way Mr Altintas gave evidence, often contradicting what he had said a little earlier (see, for example, trans, p192 & 194-5) seemed to indicate a lack of awareness of the significance of the hearing, as well as of MARA’s role in investigating complaints made against migration agents.
177. Finally, Mr Altintas did not give any evidence that, having conceded that his procedures and file management were deficient, he has changed them to comply with the Code. As he did not take the whole complaints/decision/review process as a warning that his practices and procedures required improvement, I doubt that a caution under the Act would lead to any improvement in Mr Altintas’ compliance with the Code.
178. On the other hand, I am concerned that, if Mr Altintas’ registration as a migration agent is suspended, he will lose touch with practice as a migration agent and will be less well-informed than he is currently. I have accordingly decided to vary the decision under review by reducing the minimum period of suspension to six months. As I have not made a finding that Mr Altintas is not a fit and proper person to give immigration assistance, it will not be necessary for him to convince MARA that he is a fit and proper person before the suspension is lifted. Because of my reservations, on the evidence before me, about the value of Mr Altintas obtaining more core points in Continuing Professional Development, I will also reduce the requirement in condition (a) from 30 points to 20 points. As the breaches of the Code which I have found were established relate partly to record-keeping and file and risk management, I will further vary the condition to provide that a total of 10 points must be in the Refugee and Humanitarian area and in the area of Record Keeping and File and Risk Management. I note that the latter area is not a core subject, but I consider it to be important for Mr Altintas. Thus, I will not continue the requirement that all 20 points be core points of Continuing Professional Development. I note that Mr Altintas has already completed 19 points of Continuing Professional Development since 7 April 2003. Thus he is well on the way to satisfying this condition.
179. There is a difficulty about imposing a suspension because it is necessary to provide a time-frame for Mr Altintas to notify his clients that his registration is suspended for a time, and transfer his files to another registered migration agent. The letter of 8 April 2003 advising Mr Altintas of the making of the decision under review concluded as follows (T2, p9):
On receipt of this letter you must immediately arrange for the transfer of your active files to another migration agent. You are also to immediately advise the Department of Immigration and Multicultural & Indigenous Affairs that you no longer represent your former clients, and you should advise those clients that you are no longer registered and that you are transferring your files to another registered migration agent and give the clients the name of that registered migration agent.
180. I consider that two weeks is an appropriate time to allow for the carrying out of those steps. However, I will reserve liberty to the parties to apply to the Tribunal, in case there is difficulty about the implementation of this decision.
CONCLUSION
181. I will vary the decision under review to provide that Mr Altintas’ registration as a migration agent be suspended for a minimum period of six months from a date two weeks from the date of this decision and until he has completed 20 points of Continuing Professional Development since 7 April 2003, of which a total of 10 points must be in the areas of Refugee and Humanitarian matters or Record Keeping and File and Risk Management. I will retain the condition that he not be re-registered until he provides MARA with a statutory declaration in Commonwealth form stating that he has not made immigration representations for a fee or given immigration assistance as defined in the Act while suspended.
I certify that the 181 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dwyer
Signed: Josephine McKay
AssociateDate/s of Hearing 28 November 2004 & 3 March 2004
Date of Decision 20 September 2004
Counsel for the Applicant Mr Gerkens
Solicitors for the Respondent Mr Brereton & Mr Fell
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