Re Lilienthal and Migration Agents Registration Authority - [2001] AATA 797

DECISION AND REASONS FOR DECISION [2001] AATA 797

ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/733; N2000/1407 and

)N2001/21

GENERAL ADMINISTRATIVE DIVISION       )
           Re      GARY IAN LILIENTHAL
  Applicant
           And    MIGRATION AGENTS REGISTRATION AUTHORITY
  Respondent

DECISION

Tribunal The Hon R N J Purvis Q.C., Deputy President

Date20 September 2001
PlaceSydney

Decision      The decisions under review are affirmed.
  [sgd] The Hon R N J Purvis Q.C
  Deputy President
CATCHWORDS
Professions and trades – registration – migration agent – cancellation of registration – refusal to register applicant as a migration agent – whether applicant failed to comply with designated clauses of the relevant codes of conduct for migration agents – if applicant failed to comply, whether such failure is sufficient to warrant cancellation of registration – whether applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance.
Migration Act 1958 – ss 4, 290, 303, 314
Migration Agents Regulations (as at 1 August 1996)
Migration Agents Regulations 1998 (as at 1 April 1998)
Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Hughes and Vale Pty Ltd and Auor v the State of New South Wales and Ors (No 2) (1955) 93 CLR 127
Australian Broadcasting Tribunal v Bond and Ors 170 CLR 321
Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 34 AUD 324
Cunliffe and Auor v Commonwealth of Australia (1994) 182 CLR 272

REASONS FOR DECISION

The Hon R N J Purvis Q.C., Deputy President

the applications

There are presently before the Tribunal three applications made by Dr Gary Ian Lilienthal ("the Applicant"). They are being heard together, the evidence in one being evidence in the others. Two of the applications, N2000/733 and N2000/1407, relate to the cancellation by the Migration Agents Registration Authority ("the Respondent") of the Applicant's registration as a migration agent pursuant to section 303(a) of the Migration Act 1958 ("the Act") as and from 2 May 2000 and 24 August 2000 respectively. The other, N2001/21, relates to a deemed refusal of the Respondent to register the Applicant as a migration agent effective as of 7 January 2001.
Orders were made by the Tribunal on 15 May 2000 and 11 September 2000 staying the operations of the two cancellations. However, the deemed refusal had the effect of preventing the Applicant operating as such an agent, the duration of the stayed registrations having by that date expired.
The decision of the delegate of the Respondent in N2000/733 related to two complaints brought against the Applicant, one by Ms Laura Duggua, the other arising out of his conduct in connection with a client, Mr Sasha Milacic and a Mr Zac Drapac. The Respondent was satisfied pursuant to section 303(h) of the Act, that the Applicant had not complied with specific provisions of the Code of Conduct for Migration Agents, made under the Migration Agents Regulations and the Act. In…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Re Lilienthal and Migration Agents Registration Authority

Details

AGLC: Re Lilienthal and Migration Agents Registration Authority [2001] AATA 797
Case: [2001] AATA 797
Decision Date: 20 September 2001

CaseChat Overview and Summary

In the case of Re Lilienthal and the Migration Agents Registration Authority, the Applicant, a registered migration agent, faced allegations of professional misconduct and unsuitability to continue in his role. The primary dispute centred on whether the Applicant had breached the designated clauses of the relevant codes of conduct for migration agents and if such breaches warranted the cancellation of his registration. The matter was adjudicated by the Migration Agents Registration Tribunal.

The central legal issues involved determining if the Applicant had indeed failed to comply with specific clauses of the codes of conduct and, if so, whether such failures were sufficient grounds for the cancellation of his registration. Additionally, the Tribunal had to assess whether the Applicant's conduct demonstrated that he was not a person of integrity or fit and proper to provide immigration assistance.

The Tribunal found that the Applicant had breached several clauses of the codes of conduct, both individually and collectively, indicating a significant dereliction of his responsibilities. The breaches, which included misrepresentation, inadequate advice, and unprofessional conduct, collectively reflected poorly on the Applicant's integrity and suitability for his role. The Tribunal concluded that the Applicant's conduct, including his attempts to fabricate evidence and his adversarial attitude towards the Department, further substantiated the finding that he was unfit to act as a migration agent. Based on these findings, the Tribunal decided to cancel the Applicant's registration as a migration agent.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As part of his excuse for not processing the application of Mr Milacic, the Applicant says that he was told by Mr Drapac "that he should put the application on hold" inter alia because "I think he is here to do some espionage for the Croatian government". Mr Drapac denies the allegation as to the conversation occurring as being a "total fabrication". Another conversation alleged to have taken place, when it was suggested that a working relationship existed between Messrs Drapac and Milacic and that Mr Milacic slept at the Croation radio studio, was denied. Mr Drapac maintained that his recollection of relevant conversations was correct, adding during his cross-examination by the Applicant "a lot of the things which you say are not true". Mr Drapac paid the Applicant $500 in advance for the work the Applicant agreed to do but the Applicant "did not do anything". The Tribunal accepts the evidence of Mr Drapac where it is in conflict with that of the Applicant.the evidence The recitation of the evidence as detailed hereunder is consequent upon the assessments made of the credibility of the various witnesses. as to the duggua complaint Miss Duggua is a British citizen. She arrived in Australia on a 12-month visitor visa in September 1997. In November of that year she made contact with the Applicant, referable to her applying for permanent residency. On the 28 November, with her de facto husband Mr Terry Sampson and her uncle Mr Rodney Govett, Miss Duggua had an initial meeting with the Applicant. A fee agreement was negotiated with Mr Govett as guarantor, it being understood that Miss Duggua would provide instructions and pay the fee from her own resources. Thereafter Miss Duggua attended on the Applicant and provided him with instructions and documents. On 12 December 1997 she attended the office and on being handed, by the Applicant, a form referable to personal particulars for character assessment and a form of Statutory Declaration, Miss Duggua signed the same under that date, her signature being witnessed by the Applicant as a Justice of the Peace. Miss Duggua signed the documents without being asked to read through them and verify the same. They were probably incomplete at this time. On 17 December 1997 Mr Sampson was handed by the Applicant a statutory declaration to sign which he did his signature being witnessed by the Applicant. He was not asked to read or verify the contents of the Statutory Declaration. Mr Govett was contacted by the Applicant with reference to a statutory declaration being provided by him. He was unable to attend to the request at that time. The Applicant abused Mr Govett referring to himself as a solicitor saying he had a legally binding agreement (the fee agreement). "My time is money. I don't want to be mucked about". In letters to Miss Duggua, and Mr Govett, on 22 December 1997, the Applicant stated that the visa application was "substantially completed" and "is now ready for immediate lodgement" at the Department of Immigration and Multicultural Affairs. He enclosed a memorandum of fees the same being said to be due and payable "now". On 1 February 1998 the Applicant again wrote to Mr Govett, stating inter alia that "all work in this matter has been completed since" 7 January 1998 and "the application package is available for you" and unless the package "has been picked up and paid for" the applicant would commence action for breach of contract in the local court. On 5 February 1998 Miss Duggua and a friend went to the Applicant's office, handed him a bank cheque for the fee and collected the application package. On reading the latter, Miss Duggua ascertained that the forms contained a large number of errors and omissions. On being contacted by Mr Sampson, by telephone the Applicant said he would provide assistance in preparing "an amending statutory declaration" at no cost provided the task took no longer than 45 minutes; any additional time would be charged at $250 per hour '.

Decision

Reasons for decision

Finally, it was maintained by the Applicant that the Respondent had in effect investigated his activities as if it was conducting a criminal prosecution. This was not its role. The statutory obligation resting on the Respondent was to enquire into and assess the conduct of the Applicant in the context of the relevant statutory provision. That is, not only was it enquiring as to whether there had or had not been compliance with the Codes of Conduct prescribed under section 314 but it was also investigating whether the Applicant was not a person of integrity or otherwise not a fit and proper person to give immigration assistance. This did not entail establishing whether a criminal offence had been committed, but assessing on the available material whether there had been a non-compliance with a code of conduct or whether an assessment could be made as to the integrity or fitness of the individual. The matters to be considered and taken into account are those referable to an agent's suitability to be a migration agent, rendering assistance to potential visa applicants. decision The Tribunal has earlier in these reasons set forth the various respects in which it is satisfied that the Applicant breached relevant clauses of the Codes of Conduct. Whilst individually these breaches may not have been of great significance and may have been subject to criticism only, or a need to attend a course of study, when considered as a whole they do indicate a dereliction on the part of the Applicant of his responsibilities to the particular clients and to the Respondent. A migration agent has an obligation to assist a client and this assistance does not only extend to the mechanical operation of filling in a form but of tendering advice, informed advice, as to the courses appropriate for the client to pursue. It also entails due diligence in the conduct of the relationship between agent and client. The Applicant in this matter either deliberately neglected to appropriately consider the interests and needs of his clients or by dint of not appropriately informing himself, was ill-informed or ignorant as to his responsibilities. But more so, the various matters earlier detailed referable to the credibility of the Applicant reflect adversely upon him. They show, in the opinion of the Tribunal, that he is not a person of integrity and is not a fit and proper person to give immigration assistance. His conduct in purporting to be a lawyer, his conduct purporting to be in a position and able to give a reference for Mr Zilka, his conduct in reference to Mr Govett and Mrs Hampton, as well as other defects in his character, reflect upon his integrity. The Applicant sought to counter the evidence of numerous witnesses by creating a tissue of false statements, false situations, either deliberately or not appreciating the facade that he was seeking to erect. The Applicant displayed an inability to identify his professional obligations and the person to whom these were to be extended. The Applicant sought to terminate an agent/client relationship without a proper basis being established for such termination. This reflected upon his appreciation of his obligation towards a client. (See the Croatian Radio matter and the Jameson matter.) The matter of his fees did seem to be uppermost in his mind, this even where he had at the time demanded payment of his fees, and done little, to say the most by way of earning it (see the Drapac/Milacic matter). Of significance also is the attitude displayed by the Applicant towards the Department in suggesting that migration agents stand in an adversarial position to the Department, likening a visa applicant who sought information from the Department as "getting legal advice from the prosecutor". The Department is a service operation, with changed the task of assessing visa applications and making decisions appropriate on the material placed before it. The need for the Department to have all available relevant information necessitates an agent and a client being frank and honest in their dealings with it.

Ratio Decidendi

Legal Principle Established

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