Re Lilienthal and Migration Agents Registration Authority
[2001] AATA 797
•20 September 2001
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 addition, the Respondent was satisfied, pursuant to section 303(f) of the Act, that the Applicant was not "a person of integrity" or " otherwise not a fit and proper person to give immigration assistance".
The Respondent in its said decision found that the Applicant had, with reference to the first complaint, contravened or breached the requirements of clauses 5, 6, 7A, 18, 22, 27 and 28A of the Code of Conduct (as at 1 August 1996). The nature of the alleged contraventions is detailed later in these reasons (N2000/733 T13 and14).
As to the other complaint, the Respondent in its decision found that the Applicant had contravened or breached the requirements of clauses 2.1, 2.18, 2.23, 3.5, 5.2(b), 5.2(c), 6.1, 7.4(a) and 10.1 of the Code of Conduct (as at 1 April 1998) The nature of the contraventions is also detailed later in these reasons (N2000/733 T14 and 15).
In respect of each complaint in N2000/733, and the circumstances relating to it, the Respondent made the afore mentioned findings under section 303(f) of the Act.
The decision of the delegate of the Respondent in N2000/1407 related to complaints said to have been brought against the Applicant by Mr Rami Zilka, Ms Lana Hotimsky and Mrs Debra Hampton. The Respondent was again satisfied that the Applicant had not complied with the relevant Code of Conduct and that he was not a person of integrity or otherwise not a fit and proper person to give migration assistance.
The Respondent found that the Applicant had with reference to the Zilka/Hotimsky complaints, contravened or breached the requirements of clauses 5, 6, 7A and 18 of the Code of Conduct (as at 1 August 1996). The nature of the alleged contraventions is detailed later in these reasons (N2000/1407, T11).
As to the Hampton complaints, the Respondent found that the Applicant had contravened or breached the requirements of clauses 6 and 23 of the August 1996 Code of Conduct. (as at 1 August 1996) The nature of the alleged contraventions is detailed later in these reasons (N2000/1407, T12).
The deemed decision of the Respondent in N2001/21 related to the failure by the Respondent to re-register the Applicant. The Tribunal on 17 January 2001 determined that there was in this regard a decision reviewable by it.
issues for determinationThe issues thus for determination by the Tribunal at this time are:
(a) whether the Applicant failed to comply with designated clauses of the relevant Codes of Conduct for migration agents prescribed by the Migration Agents Regulations pursuant to section 314(1) of the Act;
(b) if the Applicant did so fail, was such failure sufficient to warrant cancellation or refusal to grant registration; and
(c) whether the Applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance.
the hearing
At the hearing of the applications, which extended over seven days, the Applicant appeared on his own behalf. The Respondent was represented by Mr Michael Wigney of Counsel.
There was tendered in evidence the documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 namely:
in N2000/733 marked T1-T126;
in N2000/1407 marked T1-151;
in N2001/21 marked T1-T12; and
supplementary documents marked T1-T8.
The Applicant and the Respondent each caused additional written material to be tendered, the same being marked as exhibits: as follows
Exhibit No Description Date
A Applicant's statement re Zilka/Hotimsky 1 March 2001
B Applicant's statement re Laura A Duggua 20 March 2001
C Applicant's statement re Robert Bock 19 March 2001
D Applicant's statement re Debra Hampton 15 March 2001
E Applicant's statement 9 July 2001
F Statement Mrs Mary Lilienthal 20 April 2001
G Statement Mr George Anastasi 27 February 2001
H Letter of the Respondent to the Applicant with copy of letter Rami Zilka (in Hebrew) attached 19 February 1999
J S'micha and translation 9 December 1992
K Issue 5 of MARA Newsletter July 2000
L Bundle of correspondence between the Applicant and the Law Society of N.S.W. comprising seven exhibits as detailedStatement Robert Bock 7 June 2001
Statement Zlatko Drapac 7 June 2001
Statement Rodney Govett 14 June 2001
Statement Robert T Hawthorn 29 May 2001
Statement Lana Hotimsky 30 May 2001
Print-out of Internet page of Dispute Resolution Centre re Applicant 4 July 2001
Statement Debra Hampton 5 July 2001
Copy of Lana Hotimsky's file notes re Zilka
The Applicant gave written and oral evidence and was cross-examined over a period of four days. Written and oral evidence was also tendered by Mrs Lilienthal, the wife of the Applicant, Mr R B D Bock, a migration agent, Ms Hotimsky, a migration agent, Mrs Hawthorn, a solicitor, Mrs Hampton, Mr Govett and Mr Drapac, upon which they were each cross-examined.
relevant statutory provisions and regulationsThe provisions of the Act relevant to this application are:
"4(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
290(1) An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:(a) the applicant is not a fit and proper person to give immigration assistance; or
(b) the applicant is not a person of integrity; or
…290(2) In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:
(a) the extent of the applicant's knowledge of migration procedure; and…
(e) any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and
(f) any disciplinary action that a professional association is taking, or has taken, against the applicant that the Authority considers relevant to the application; and
…
(h) any other matter relevant to the applicant's fitness to give immigration assistance.
…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
…
if it becomes satisfied that
…(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
…
(h) the agent has not complied with the Code of Conduct prescribed under section 314.314 Code of Conduct for migration agents
(1) The regulations may prescribe a Code of Conduct for migration agents.(2) A registered agent must conduct himself or herself in accordance with the prescribed Code of Conduct."
The relevant clauses of the Code of Conduct are:
code of conduct as of 1 August 1996
" Clause 5
On all occasions a migration agent must act in accordance with the law and in the legitimate interest of his or her client.Clause 6
An agent's professionalism should be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and a capacity to provide accurate and timely advice. An agent must treat clients fairly and give due regard to their dependence on the agent's knowledge and experience…
….
Clause 7A
An agent must…act in accordance with the client's instructions….
….
Clause 18
Subject to a client's instructions, an agent has a duty to provide sufficient relevant information to the Department of Immigration and Multicultural Affairs to allow a full assessment of all the facts against the relevant criteria….
….
Clause 22
An agent must provide a signed declaration to be attached to the Departmental application form citing his or her full name, a migration agent's registration number and his or her entire fee for each immigration case. An agent must also sign the declaration or, where the provision exists, the application form which he or she assisted in preparing, citing his or her full name and migration agent's registration number
…..
Clause 23
A migration agent must provide a statement of fees at the start of work for a client in the form of charges per hour, or per particular service and an estimation of the likely time to be taken in performing a service….
….
Clause 27
An agent must maintain records that can be available for inspection on request by the Migration Agents Registration Board, including files containing a copy of each client's application, copies of written communication between the client and the agent, and file notes of each oral communication between the client and the agent.
….Clause 28A
An agent must keep records of the clients' account, including:· the date and quantum of each deposit made to the clients' account, including an indication of the purpose of the deposit and the client on whose behalf the deposit is made; and
· each withdrawal made from the clients' account; and
· receipts for any payment made by the client to the agent; and
· copies of invoices or accounts rendered in relation to the account."
code of conduct as of 1 april 1998
"Clause 2.1
A migration agent must always:(a) act in accordance with the law and the legitimate interests of his or her client; and
(b) deal with his or her client competently, diligently, fairly and without any conflict of interest that would affect the legitimate interests of the client.
….Clause 2.18
A migration agent must act in a timely manner if the client has provided all the necessary information and documentation in time for statutory deadlines. For example, in most circumstances an application under the Migration Act or Migration Regulations must be submitted before a person's visa ceases to be in effect.
….
Clause 2.23
A migration agent must take all reasonable steps to maintain the reputation and integrity of the migration industry.
….
Clause 3.5
If a migration agent changes his or her address, telephone number or any other details that are recorded on the Register of Migration Agents, the agent must give notice to…all current clients of the agent:(a) in advance; or
(b) not later than seven days after the change or changes if advance notice would be unreasonable in the circumstances.Clause 5.2:
A migration agent must:…
(b) as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of the terms of the work to be done; and
(c) give the client written confirmation of the terms of the service to be rendered……
Clause 6.1
A migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing:
….(c) file notes of every substantive or material oral communication between:
(i) the client and the agent…
….
Clause 7.4
A migration agent must keep record of the client's account, including:(a) the date and amount of each deposit made to the client's account, including an indication of the purpose of the deposit and the client on whose behalf the deposit is made….
….Clause 10.1
A migration agent must complete services as instructed by a client unless:(a) the agent and the client agree otherwise; or
(b) the client terminates the agent's instructions; or
(c) the agent terminates the contract for just cause and gives reasonable written notice to the client."
person of integrity – fit and proper person
As has been set forth above, the discretionary cancellation or suspension of registration provided for by section 303 of the Act, enables the Respondent to cancel a registration by removing the name from the register, if it becomes satisfied that so far as is here relevant, the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance. Section 290 of the Act is mandatory, section 303 is discretionary in its operation. In the present applications, the Tribunal is required to satisfy itself, inter alia as to whether the Applicant is not a person of integrity. "Integrity" means "soundness of moral principle and character, uprightness; honesty" (see Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12 at paragraph 26)
The Tribunal is also to consider whether the Applicant is otherwise not a fit and proper person to give immigration assistance. In Peng [supra] at paragraph 26 it was said:
"The use of the word "assistance," in my view, extends not only to help given to would-be applicants but also help given to the Department in the administration of immigration programs. In that regard, frankness and truth are of primary importance… If these standards are important in relation to individual applications how much more important are they in relation to those who will in the course of their practice make many representations to the Department on behalf of those seeking to deal with immigration matters. The requirement to display integrity and fitness in order to qualify for registration as a migration agent [and here read remain so registered] has an element of mutuality. The need for propriety is not only for the protection of the clients, but also for the open, honest and efficient administration of immigration matters in which the agent is involved."
In Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155 – 156 it was said:
"The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia".
This Tribunal, agrees with and endorses these statements of relevant principles.
A consideration of whether or not a person is one of integrity cannot be disassociated from the character of that person. It is on account of the above mentioned significant position occupied by a migration agent, that she or he is required to be a person of integrity or otherwise fit and proper to give immigration assistance. The responsibilities entailed in the rendering of assistance, extends not only to prospective visa or migration applicants, but also to the department administering the legislation. Fit and proper:
"… with respect to an office is said to involve three things, honesty, knowledge and ability; "honesty to execute if 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"."… Hughes and Vale Pty Ltd and anor v the State of New South Wales and Ors (No2) (1955) 93 CLR 127 at 156."
This concept of fitness and propriety is not however to be narrowly construed or confined:
"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 engaged in those activities. However, depending on the nature of the activities, the question maybe 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 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 of provides indication of public perception as to likely future conduct) may be sufficient to grant a finding that a person is not fit and proper to undertake the activities in question". (Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 at 380; Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 34 ALD 324 and 328).
There is thus an explicit link between fitness and propriety on the one hand and character on the other.
The establishment of good character is important in various areas of immigration practise. In the present applications, the Tribunal is invited to access the character of the Applicant in the context already discussed, in the manner of his dealing with a number of clients, and in his conduct in relation to their migration affairs.
The Migration Agent Registration scheme administered by the Migration Registration Authority is one that:
"seeks to achieve that object [effective administration of the Act] by protecting aliens from incompetent and unscrupulous advisers through the introduction of a regulatory scheme, which is designed to assure that those who advise are competent and are persons of integrity." (Cunliffe and Anor v Commonwealth of Australia (1944) 182 CLR 272 at 294).
To ensure effective and proper administration of the Act the Respondent is entitled to be able to rely upon the honesty of those registered with the Department.
the factual background - generally
The Applicant is an Australian citizen. He has asserted and evidenced qualifications from the Pacific Western University as a B.A., M.Ed. and Ph.D., all awarded in 1994 and J.D. degree awarded by la Salle University, Mandaville, Louisiana. Neither university was accredited. No one of the degrees entitles the Applicant to practice in the United States or elsewhere as an attorney at law. The Applicant lived in the United States from 1985 to 1995. Although he gave his occupation as that of a mediator and arbitrator, he is not currently a member of the Institute of Arbitrators. He once was. The Applicant says that he is a Rabbi – not a religious position but that of a teacher – and in that capacity has sat on a Jewish Court in New York. He said he could not sit on a Jewish Court in Australia.
On 3 October 1996, the Applicant applied for registration as a migration agent, such application being approved and granted on 7 January 1997. In November 1996 he attended a course of lectures conducted by the University of New South Wales. He said that by reason of his attendance at this course he became familiar with migration law, although he said there were many aspects of law practice and procedure of which he had no awareness at the time he obtained registration. He knew so, he said, that he could not provide migration assistance unless and until he was registered. He said that he "did U.S. immigration work" while in the United States and wanted to practice in this area in Australia. He stated that in 1995 he made an inquiry with the Law Society of New South Wales, and was told he could use the word "lawyer" in the context of "lawyer United States jurisdictions", provided he did not advise on New South Wales law. It may here be noted that the relevant officer at the Law Society at the time gave evidence before the Tribunal and denies so telling the Applicant. The Applicant nevertheless after 1995 carried on business under the name "Sage Law", caused to be inserted on letterhead, after his name, the words "Immigration law – Australia and United States". He denies however representing himself to be, or purport to practice as, a lawyer.
Following his registration as a migration agent and up until January 2001, the Applicant practiced as such an agent. A number of complaints were made against him, or arose from an investigation of his affairs, five of which are the subject of these proceedings. As earlier indicated they are referable to Ms Laura Duggua, Mr Rami Zilka, Mrs Debra Hampton, Ms Lana Hotimsky and Messrs Milacic/Drapac.
Consequent upon the Duggua and Milacic/Drapac complaints, the Respondent on 2 May 2000 made a decision cancelling the Applicant's registration. The operation of such decision being stayed on 15 May 2000. Consequent upon the Zilka, Hampton and Hotimsky complaints, the Respondent on 24 August 2000 made a decision cancelling the Applicant's registration. Once again the operation of such decision was stayed, this time on the 11 September 2000.
On 5 December 2000 the Applicant made application for re-registration of his then current registration which was to expire on 7 January 2001. Correspondence took place between the parties, the expiry date passing without a formal decision being made by the Respondent on the application for re-registration. On 17 January 2001 pursuant to an application then made by the Applicant, the Tribunal decided that there was a deemed refusal decision to re-register the Applicant capable, of review by it.
the applicant practicing as a lawyerOne of the matters of concern raised by the respondent as reflecting upon the Applicant's integrity or his being a fit and proper person to give immigration assistance was the extent to which he held himself out as a lawyer. In a "fee and service agreement" dated 24 December 1996 (Exhibit A, page 59) the Applicant describes himself as a "legal services provider" who "will prepare and lodge the appropriate visa application". The Applicant said that he had obtained advice from the Law Consumers Association, who gave him a brochure indicating that "people auxiliary to law" called themselves "legal services providers". He said, he might have misconstrued the brochure. Two "fee disclosure" documents of 2 June 1997 (T2, P55 of the Supplementary T docs) and 28 November 1997 (Exhibit B, p 40) used the words "Immigration Law Services" to describe the kind of work that was to be provided by the Applicant. He stated that these words were intended to relate to "visa assistance only", and that he saw no significant difference "as most clients think of the agent to be a lawyer". Clients, he said, do not understand the words "immigration assistance". The Tribunal is of the view that this impression provides more the reason why an agent should not cause confusion as to an expertise.
Letterhead used on 4 June 1997 (N2000/1407,T3 p27) and on 11 July 1997 (N2000/140, T4 p29) showed the Applicant as being a "specialist lawyer – immigration, industrial, mediation, arbitration", thus describing the professional services he had to offer. Although conceding that the use of this wording was not consistent with what he says, he was told by the officer of the Law Society, the Applicant claimed in his evidence that he did not realise nor thinks that there was anything wrong with he so describing himself. This evidence is hard to reconcile with the uncontradicted information that he had obtained from the officer of the Law Society, to the effect that he could not purport to, nor practice law or as a lawyer in New South Wales. The Applicant acknowledged in addition and in the course of his cross-examination, that he was not at any time in fact a "specialist lawyer". It is revealing as to the level of awareness of the extent of his responsibility to clients exhibited by the Applicant that he in his evidence denied that by so describing himself, he was providing completely incorrect information as to his professional capacity and expertise. On letterhead used in March 1998 (N2000/1407, T131 p335) the Applicant used the words "immigration law, industrial advocacy, mediation, arbitration" to describe the services he purported to be able to provide. In the body of the letter he described the service as that of "immigration lawyers". He said the latter contained "a mistaken description". However, in a "migration agents fee disclosure" document of June 1998 (T4 p257 of The Supplementary T-docs) he again used the words "immigration lawyer". He denied that he was consciously representing himself as a lawyer.
the findings or complaints generallyHaving in mind that there are numerous findings or complaints of the Respondent that are at issue in these proceedings, and upon which a final determination is to be made, each will need to be considered and a decision reached as to the validity or otherwise of such finding or complaint. Such a decision making process entails consideration of the nature of the complaint, the circumstances giving rise to it and in some instances, the credibility of the person or persons giving evidence in relation to such a complaint. The nature of the complaint is self-evidentiary. The circumstances giving raise to complaints are briefly dealt with in these reasons and were canvassed at length in the hearing. Findings as to the credibility of the persons who gave evidence is dealt with hereunder. It is on applying the latter to the evidentiary circumstances that relevant decisions can be made.
However, numerous of the complaints are either not in dispute or entail only an examination and assessment of documentary material. Other of the complaints entail consideration of circumstances and credibility.
assessment of credibilityNumerous instances of conflict of evidence arose in these proceedings. Such conflict in most instances entailed persons alleging that the Applicant was not truthful in his recounting of events, that he deliberately falsified and fabricated evidence. It is thus necessary to make an assessment of the credibility of the Applicant and of those witnesses who were in conflict with him. Differences in evidence can be attributable to a number of factors, such as faulty recollection, innocent inaccurate recollection, innocent self-delusion, misunderstanding of a question or surrounding circumstances, but may also be attributable to an intent to mislead, or deceive, or simply not tell the truth. The Tribunal is to consider the evidence in the light of an assessment made of the character of the witnesses, who bear upon the matters and issues and thence make its findings.
The Tribunal is not able to effectively make such an assessment in the event of a person not having given evidence and being subject to cross-examination upon it. As to such a person (Ms Duggua is an example), the Tribunal can only give such weight to what is said in a document of which the person is the author, or hearsay as to what allegedly was said by such a person, as is apparent from and/or consistent with all of the circumstances. A similar observation would apply to Mr Zilka.
As to each of such relevant witnesses the Tribunal finds as follows:
as to the applicant
The Applicant's evidence was in significant respects at issue with each of the witnesses called by the Respondent. Such differences have been largely identified in the summary of the evidence, as detailed later in these reasons. With limited qualifications there was no good reason established before the Tribunal as to why it should not accept these people other than the Applicant as witnesses of truth. Submissions made by the Applicant as to why some should not be accepted are mentioned hereunder. But as to others, such as Mr Hawthorn, Mr Drapac, and Mr Bock, the Applicant merely alleged that they were untruthful. The Tribunal has made its own assessment of these persons and where their evidence is at issue with that of the Applicant sees no good reason why it should not prefer the evidence of such witnesses to that of the Applicant. It does so.
As to the witnesses Mrs Hampton, Mr Govett, and Ms Hotimsky, the Applicant contended generally that they were not truthful, but did not support his contention with good reason. As to Mrs Hampton and Mr Govett, they are niece and uncle. Mr Govett guaranteed, by signing a relevant agreement with the Applicant, payment of his fee. The Applicant alleged a form of conspiracy on their part to hurt him. There was just no evidence to support this contention and it is not accepted by the Tribunal.
As to Ms Hotimsky, the situation is somewhat different, as she was involved in litigation with the Applicant, arising out of the Zilka matter and by her demeanour disclosed little respect for him. It may be that at one time a friendship existed between the two, a friendship which was fractured when the Applicant cross-claimed against Ms Hotimsky in litigation commenced by Mr Zilka against the Applicant, in the District Court. Her evidence as to a meeting not having taken place on 21 December 1997 was convincing. That of the Applicant, a Rabbi, not so.
But apart from the inconsistencies of evidence, the following also inter alia reflect upon the credit worthiness of the Applicant:
(a) In writing (as has been detailed earlier in these reasons) by word of mouth (which he denied) the Applicant pretended to be a lawyer. The writing speaks for itself. He denied any intent to mislead clients or others, such as Ms Hotimsky. The Tribunal is unable to accept that a person with qualifications and experience such as that purported by possessed by the Applicant would not appreciate the consequence of this pretence and does not accept his disavowal;
(b) in writing, what can only be described as a faulty reference for Mr Zilka in support of his visa application, signed over the description of himself as a Rabbi, the Applicant sought to mislead officers of the Department of Immigration and Multicultural Affairs as to his awareness of the character and standing of Mr Zilka. His explanations or justifications for the statements made by him were false. He first met the man, even on his own accounting, which is not accepted, not more than a week before the date of the reference and had no objective basis on which to make a character assessment. The document was false in its particulars. The Applicant was not truthful to the Tribunal;
(c) the Applicant maintained that Mr Govett, not Miss Duggua, was his client. In light of the written fee agreement this may have been strictly true. However, the prospective visa applicant was Miss Duggua and it was for the protection of her interests that the Applicant had been engaged. He was and should have been aware of this. Nevertheless, he denied being so retained. This denial reflects adversely on his character and credit-worthiness and on his acceptance or awareness of his obligations as a migration agent;
(d) the Applicant claimed that even be he a certificated Rabbi "a teacher, a living embodiment of the Holy Torah" (Exhibit J) he had no hesitation in making an appointment with Miss Hotimsky to discuss the Zilka business matter on Saturday, 21 December, 1996. The Tribunal does not accept his evidence in this regard.
The Tribunal does not find the Applicant to be a witness of truth and as herein before mentioned where his evidence is in conflict with that of another, the Tribunal, in the absence of satisfactory corroboration of his evidence accepts that of the other.
as to mrs lilienthal
The Applicant and Mrs Lilienthal married in 1997, and after he became a migration agent. They were becoming close friends in December 1996 and into 1997. Mrs Lilienthal sought to corroborate the evidence of the Applicant as to there having been a meeting between he and Ms Hotimsky on Saturday 21 December 1996. Mrs Lilienthal did not make any note of the meeting. She was first asked to recall the alleged meeting in March 2001 when she started preparing her statement. She said that she remembered the meeting as she had only then known the Applicant for about three weeks. She was at his premises at the time. A telephone call was made. She said she was not impressed "it stuck in my memory". "I may be wrong," she said "but I believe it to be a Saturday". She also said she recollected precise words of a conversation in June 1997, although no notes were made at the time. Mrs Lilienthal when being cross-examined exhibited anxiety stating that she "did not want to get involved with her husband's problems". With reference to Miss Duggua allegedly reading documents in February 1998 although stated to be present and a barrister by occupation, Mrs Lilienthal was not able to say what was read, even though the reading was said by her to have taken four or five minutes.
The Tribunal is hesitant in accepting the evidence of Mrs Lilienthal as to the matters in issue. She was not as sure in her oral evidence as her written material might have led one to believe.
as to ms hotimsky
Ms Hotimsky is a registered migration agent. Her cross-examination by the Applicant extended over two days. Her evidence is very much at issue with his. She denied wanting to get herself a clerk as alleged. She thought as a consequence of what she had said and advice given to her by the Applicant, in relation to a tenancy problem, that the Applicant was in December 1996 already a migration agent, and a lawyer, and was emphatic in having transferred the work referable to Mr Zilka to the Applicant, and not thereafter being engaged in his refugee matter. Ms Hotimsky denies playing any part in the Zilka matter on her own behalf, or in conjunction with the Applicant after the 24 December 1996.
Miss Hotimsky was the recipient of a cross-claim in the Applicant's litigation with Mr Zilka. However, her candour in answering questions and her lack of any hesitancy in looking at the Applicant when making her denials gave the clear impression of her honesty in the answers she gave.
The Tribunal whilst appreciating her emotional involvement in the litigation accepts her as a witness of truth.
as to mrs hampton
The Applicant contended that the Tribunal should not accept the evidence of Mrs Hampton where it was in conflict with the evidence given by him.
Mrs Hampton was emphatic in her disclaimer of the correctness of the conversations had between she and the Applicant, as they were alleged by him. She maintained that what she alleged to have been said by the Applicant was correct, that he had threatened her and that she wanted to dispense with his services and did this as politely as possible "to not get any more threats from you … you are a threatening person".
Her evidence under cross-examination was persuasive. She did not hesitate in giving her denials to the Applicant.
The Tribunal prefers the evidence of Mrs Hampton where it is in conflict with that of the Applicant.
as to mr govett
Mr Govett as has already been mentioned is the uncle of Miss Laura Duggua. Miss Duggua is now residing in Plymouth in England. Mr Govett became involved in his niece's application when the Applicant insisted, according to him, in having an Australian citizen guarantee payment of his fee. This even though he says he made it clear to the Applicant that Miss Duggua would be paying.
It was Mr Govett who alleged that the Applicant held himself out as being a solicitor. "He said he was a solicitor" and he maintained unequivocally that the Applicant's evidence was incorrect when it was in conflict with his own. He emphatically denied being in collusion with Mrs Hampton or encouraging her to make a complaint against the Applicant. Mrs Hampton is the mother of the one-time de facto husband of Miss Duggua. Mr Govett said that he has never met her and has only spoken to her once by telephone.
The evidence given by Mr Govett, as it related to a telephone conversation with the Applicant shortly before Christmas 1997, (when it was said the Applicant was "clearly angry and quite abusive", maintained he was a solicitor and that he did not want to be "mucked about"), is consistent with the threatening conduct and attitude of the Applicant as attested to by Mrs Hampton. The Tribunal has no hesitation in accepting Mr Govett as a witness of truth.
as to mr hawthorne, mr bock and mr drapac
The Applicant contends that the Tribunal should not accept the evidence of Mr Hawthorn, a solicitor, wh0 recited his recollection of a telephone conversation in 1995 with reference to the ability of the Applicant to practise United States law in Australia if he had the right to so practise in the United States. At no time did the Applicant have such a right. Mr Hawthorn denied at any time telling the Applicant that he could call himself in Australia "lawyer – US jurisdictions". He maintained that the conversation took place as he recited and it would be incorrect to suggest otherwise.
No good reason was advanced as to why the Tribunal should not accept the evidence of Mr Hawthorn, which it does. On the other, hand the Applicant is motivated to disclaim his pretence.
Mr Bock, a migration agent, was consulted by Mr Drapac when the latter was "not satisfied" with the attention being given to him by the Applicant. According to Mr Drapac, "we went to Bock as a safeguard after Lilienthal had failed to do what he had promised. I went to Bock for help. He had been an advertiser on our station".
Mr Bock maintained the truth of his version of conversations with the Applicant, describing the Applicant's evidence as "a total fabrication". Where they were at issue, he maintained the accuracy of his version. Mr Bock spoke during his cross-examination of the Applicant "shouting abuse" and behaving improperly by the tone of his voice.
Mr Bock maintains, and the Tribunal accepts, that the Applicant abused him and alleged that the Applicant was "ripping off my clients". The Tribunal does not accept that Mr Bock threatened to "besmirch" the Applicant's reputation. Mr Bock was cross-examined by the Applicant, gave his answers to questions in a reasoned and responsive manner and did not exhibit any animosity towards the Applicant. No good reason was advanced as to why the Tribunal should not accept his evidence, which it does. The Applicant sought to maintain his contention that he did all things necessary to protect the interests of Mr Milacic. He sought to accuse Mr Bock of intervention and wrongful conduct on his part. The Tribunal does not accept the contentions of the Applicant. It accepts Mr Bock as a witness of truth.
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 evidenceThe 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 '.
Miss Duggua compiled a list of the errors and omissions, which she posted to the Applicant, with an indication that the task of correction would take well in excess of 45 minutes that she no longer wanted to deal with the Applicant and considered that the fee paid should be refunded. Later the Applicant offered to "re-prepare" the form for Miss Duggua. On 15 April 1998 she lodged her complaint.
It is apparent from the written material tendered before the Tribunal, that where in the application form a question was asked as to payment of a fee, for help in preparing the form, a negative answer was given. The Applicant said that Mr Govett was the client so the answer was correct, though Miss Duggua had in fact paid the fee. No copy of the material prepared by the Applicant was retained by him, nor were copies of correspondence, statutory declarations, or file notes of conversations had between him and Miss Duggua and/ or Mr Govett retained by the Applicant. An insufficient record was kept of the nature and purpose of the money received from Miss Duggua.
On the basis of the evidence before the Tribunal and the findings as to credibility already noted, the Tribunal is satisfied as to the existence of the following complaints against the Applicant:
(a) the Applicant did not request or suggest to Miss Duggua that she read and verify the contents of the forms before she signed them and had her signature witnessed by the Applicant;
(b) likewise with Mr Sampson, the Applicant did not request or suggest to him that he read and verify the contents of the forms before he signed them, his signature being witnessed by the Applicant;
(c) the Applicant did say to Mr Govett that he was a solicitor and was abusive in the telephone conversation he had with Mr Govett;
(d) the Applicant did make errors and there were omissions in the Form 887 prepared by him, such errors and omissions being of a fundamental nature. The errors and omissions were such as to render the forms not satisfactory for the purpose of enabling a decision-maker to assess the application against relevant criteria;
(e) the errors and omissions in the form reflected a lack of due care and diligence and professionalism on the part of the Applicant;
(f) the forms were signed by Miss Duggua under a date of 12 December 1997, on which day they were witnessed by the Applicant. The Applicant's claim that they were signed on 5 February 1998 is false;
(g) the Applicant represented to Mr Govett and Miss Duggua that the spouse visa application was complete and ready for lodgement. This was false. The Tribunal is satisfied that this falsity was such as to show a failure by the Applicant to provide sufficient relevant information to the Department to allow a full assessment in accord with the relevant criteria; a failure to act in accordance with a client's instructions and legitimate interests; a less than sound working knowledge of the Act and regulations; and a failure to have due regard to the client's dependence on an agent's knowledge and experience;
(h) the omission of the Applicant to indicate on the Form 887 that a fee had been charged for migration assistance, indicated a failure on his part to properly acknowledge the part he had played in the preparation of the documentary material;(i) The Applicant failed to retain file notes and copies of the documentation that was created in support of Miss Duggua's application; and
(j) The Tribunal is satisfied that the existence of the errors and omissions demonstrated a lack of due care and diligence by the Applicant and that his contention that the material was "substantially complete" was in error. The Applicant was not truthful in his evidence before the Tribunal, in the various respects earlier indicated.
the hampton complaintIn December 1997, Mr and Mrs Jameson, the parents of Mrs Deborah Hampton, sought advice from the Applicant as to their applying for permanent residency in Australia. A written advice was given by the Applicant for a fee of $250 with a recommendation as to the appropriate visa and a quotation of the applicable fee. The Applicant was requested to prepare the relevant application and the fee was paid in full.
On 3 February 1998 and 23 February 1998, forms referable to assurance of support and sponsorship for migration to Australia were forwarded to Mrs Hampton with a request made by the Applicant that the forms be completed in pencil. On 16 March 1998 the Applicant forwarded an 'Application for Migration to Australia form' to Mr Jameson again asking that it be completed in pencil. On 26 March 1998 Mr Jameson sought explanatory notes and clarification from the Applicant of some matters. On 31 March 1998 the Applicant wrote to Mr Jameson inter alia using the words "as immigration lawyers, we can lodge your application for you in Britain while you are here in Australia" and advising Mr Jameson that denial of a permanent visa may result in his being excluded from Australia for several years and that he should "under no circumstances" write to the Australian immigration authorities.
The Applicant having prepared documentation requested payment of the initial filing fee. Believing they had already paid this fee as well as the Applicant's fee, the Jamesons by letter of 6 April 1998, terminated instructions and asked that their documentation be forwarded to Mrs Hampton. On 22 April 1998 the Applicant forwarded to Mr and Mrs Jameson a memorandum of fees charging at the rate of $250 per hour and requesting $272.50 in addition to the $1200 already received. On 1 June 1998 a complaint was lodged by Mrs Hampton.
On the basis of the evidence before the Tribunal, and consistent with the findings as to credit made by it as earlier detailed, the Tribunal is satisfied that:
(a) The Applicant did advise that refusal of a permanent visa may result in a person being excluded from Australia for several years. Such a refusal does not result in such exclusion;
(b) In the same letter to Mr Jameson, the Applicant suggested that immigration lawyers can file an application in an overseas post in the circumstances there detailed. This advice was incorrect;
(c) The peremptory advice given by the Applicant to Mr Jameson, that he should not communicate with Australian migration authorities, did not reflect the relationship that should exist between a migration agent and the authorities and did suggest that applicants such as Mr and Mrs Jameson had no option other than to use an agent; and
(d) The terms of the Applicant's engagement of 22 December 1997 was not in accord with the conduct referable to his fee, later engaged in by the Applicant. The Applicant failed to inform his client that he would apply a $250 an hour rate.
as to the croation complaint
In June 1998 the Applicant was requested by a Mr Drapac to assist his nominee, Mr Milacic to prepare and lodge a form 457 visa application. Mr Milacic's then current visa was due to expire on 9 July 1998. Mr Drapac signed a fee disclosure document on 10 June 1998. Little happened thereafter and being dissatisfied with the services provided by the Applicant, Mr Drapac engaged Mr Bock, another migration agent, to take over carriage of the visa application. In due course the Applicant lodged a complaint against Mr Bock which was investigated by the Respondent with potential adverse findings. The complaint was resolved.
However, arising out of the investigation of Mr Bock, the Respondent raised its own complaints against the Applicant. The significant aspects of the complaints emerged from the file maintained by Mr Bock and the evidence of Mr Bock and Mr Drapac.
Such material revealed the following. The Applicant was engaged by Mr Milacic, quoting $2,500 for his fee and receiving a deposit of $250. (There was a dispute unresolved as to whether a further $250 was paid.) There is no file evidence of a written confirmation of the engagement. The Applicant informed Mr Milacic of the need for a sponsor and Mr Drapac was approached with this in mind. It was then that Mr Drapac signed the fee disclosure document and paid a deposit, it is said of $500 to the Applicant. No receipt was given. On 17 June 1998 Mr Drapac attended the Applicant's office only to find it closed without a forwarding address but a post office box number and a telephone number. Mr Drapac telephoned the number and spoke with the Applicant who said he would later be in contact.
On 24 June 1998 Mr Drapac instructed the Applicant to put the application "on hold" until further instructions were given. On 2 July 1998 the Applicant was instructed by Mr Drapac to proceed with the application. The Applicant requested payment of $200 (the fee agreement schedule so provided). Payment was not then made. On 7 July 1998 Mr Milacic telephoned the Applicant as his visa was due to expire on 9 July 1998 and was informed by the Applicant that payment of the $200 would need to be made before the Applicant would proceed. The visa expired. Mr Drapac contacted the Applicant and an appointment was made for 13 July 1998, on the basis of Mr Drapac making immediate and full payment. The appointment was not kept by the Applicant but on that day he sent a fax to the effect that as payment had not been made as per the fee schedule of 10 June 1998, the agreement was terminated. On the same day the Applicant was telephoned, being asked why he needed more money he not having as yet rendered any services. The answer provided by the Applicant was that as Mr Milacic was "now an illegal non-citizen" the Applicant would not proceed without payment in full by 14 July 1998. Payment was not forthcoming and the Applicant faxed a letter to Mr Drapac "confirming" repudiation of the agreement by Mr Drapac, a memorandum of fees for "damages" incurred in the sum of $875 and with a request for immediate payment. The following day Mr Drapac and Mr Milacic approached Mr Bock.
On the basis of the evidence before the Tribunal and the findings already noted in these reasons, the Tribunal is satisfied as to the various complaints in the following respects:
(a) it is apparent from the material contained in the relevant file that the Applicant did not maintain or retain a record of a written acceptance by Mr Milacic of the terms of the work to be done, and confirmation by the Applicant of the terms of the service to be rendered;
(b) there was no record maintained of advice from Mr Milacic that he needed a sponsor;
(c) there was a short notation of a telephone conversation which was said to have extended beyond 30 minutes. The extent to which a notation would need to be made in order to comply with of the Code of Conduct would depend on the contents of the conversation. There is insufficient evidence as to the latter. The Tribunal does not make a finding in this regard;
(d) the record maintained by the Applicant did not sufficiently indicate the purpose for which money had been received by the Applicant;
(e) there was not any evidence of the Applicant having done work towards preparation of the visa application in spite of the impending expiration of Mr Milacic's visa on 9 July 1998. As earlier indicated, the Tribunal does not accept the evidence of the Applicant in this regard. It does accept the evidence of Mr Drapac. The Applicant failed to act in a timely manner in the preparation of the visa application and its lodgement.
(f) there is no evidence of the Applicant putting Mr Milacic on notice of the consequences of his visa expiring on the 9 July 1998. There is no evidence of the Applicant putting Mr Drapac or Mr Milacic on notice as to the consequences of Mr Milacic becoming an unlawful non-citizen; and
(g) the Applicant did not give Mr Drapac advanced notice of his change of address.
as to the zilka/hotimsky complaint
Mr Zilka, an Israeli citizen, arrived in Australia on 25 December 1995 on a six-month visitor visa. He was not to work. On 20 June 1996 he obtained an extension of his visa, now expiring on 20 January 1997, and again he was not to work. However during the above period Mr Zilka had obtained employment as a storeman for a company Tech Pacific Pty Ltd.
The Applicant had met Ms Hotimsky at a conference on Australian immigration law and practice held at the Swiss Grand Hotel, Bondi, in early November 1996. The Applicant had applied for registration as a migration agent on 3 October 1996, his application not being approved until 7 January 1997. The Applicant was, however, required to attend the course preparatory to his application being approved.
The course at the Swiss Grand Hotel was attended by lawyers, migration agents and other persons wishing to become agents. Ms Hotimsky says (and as earlier mentioned, the Tribunal accepts her evidence where it is at issue with that of the Applicant), that she gained the impression that the Applicant was a lawyer and at that time a registered migration agent. She denies the allegation of the Applicant that she was looking for someone to clerk for her. She exchanged business cards with him. Thereafter the Applicant and Ms Hotimsky made contact on a few occasions. He went to her office and she to his residence, from which she understood he conducted his practice. He professed knowledge and experience of residential tenancy matters and helped and advised her in relation to a problem she then had with her own accommodation.
On 16 December 1996 Mr Zilka attended the office of Ms Hotimsky. She gave Mr Zilka what she described as "preliminary advice" regarding a temporary residence visa and sponsorship requirements. Between that date and 23 December 1996 she did some "preliminary work" in relation to a possible application for a sub-class 457 visa. At this time she was in the process of moving from her apartment. She says she had on that account little time available to attend to the details of Mr Zilka's prospective application, she was as well, closing her office from Friday, 20 December 1996 to Monday, 6 January 1997. She thought of the Applicant as one who could attend to Mr Zilka's affairs and having told Mr Zilka that she would be unable to further assist him, asked Mr Zilka if he would like to be referred to another agent. He agreed.
Ms Hotimsky contacted the Applicant prior to 22 December 1996 to see if he was interested in assisting "a new client." He indicated affirmatively.
Ms Hotimsky was occupied with her moving to the new apartment on 21 December 1996. She saw Mr Zilka on 22 December 1996 and on receiving his confirmation of the earlier agreement to transfer to another agent she contacted the Applicant and arranged a meeting for 24 December at the Swiss Grand Hotel. She had a telephone conversation with a possible sponsor on 23 December 1996.
On 24 December 1996 Ms Hotimsky went to the Swiss Grand Hotel introduced Mr Zilka to the Applicant and then left. She says that she has not seen Mr Zilka since that day. She did not charge for any of the assistance she afforded to him. On 24 December 1996 the Applicant had Mr Zilka sign a "fee and service agreement" describing himself therein as a "legal services provider" and for the fee, agreeing to "prepare and lodge the appropriate visa application" with the Department. On that day Mr Zilka paid the Applicant a proportion of the fee. But also on that day and under date 24 December 1996, the Applicant signed a letter on his letterhead describing himself as "Rabbi Doctor Gary L Lilienthal" and addressed to the Department of Ethnic Affairs " re application by Rami Zilka for a Protection Visa sub-class 866." The letter purported to be a reference. It read so far as here relevant (T6, Supplementary T-docs):
"This reference by me is in respect of the above application. I have known Rami Zilka during the last six months of his residence in Australia and as well I know him by reputation in the Bondi area where I live and where he also lives.
"I have had contact with him and with his friends in the community in my rabbinic role and as such I am willing to certify as below:
1) He is unlikely to engage in criminal conduct; rather, I understand that he looks forward to working in the construction industry in Sydney.
2) He is unlikely to vilify a segment of the Australian community.
3) He is unlikely to incite discord in the community and is not a politically oriented person.
4) He is unlikely to represent a danger to the community in any way; rather he has left his statutorily mandated Israeli military career behind him.
5) He has to my knowledge no past or present criminal conduct.
6) His general conduct is of a respectful demeanour and quite friendly.
7) His associates to my knowledge are other young people living in the area trying to better their lives …"
As mentioned earlier, the Applicant met Mr Zilka for the first time on the 24 December 1996.
Mr Zilka was not called to give evidence at the hearing. The recitation of events hereinafter detailed emanates from file notes said to have been kept by the Applicant and correspondence. It is the view of the Tribunal that in his absence and without his being available for cross-examination, little weight should be given to the pleadings of Mr Zilka in support of his District Court claim against the Applicant or the transcript of evidence.
However, the reference signed by the Applicant was misleading and must have been so misleading to the knowledge of the Applicant. In his evidence during cross-examination the Applicant endeavoured to excuse himself by saying that when using the words "I have known Rami Zilka during the last six months" this was strictly correct because he knew him on 24 December which was "during the last six months". This explanation is rejected. When asked as to how it was that he could say that he knew "him by reputation in the Bondi area" the Applicant sought to say that he had made a telephone call and had talked with friends of Mr Zilka. If telephone calls had taken place they would have been on the same day and hardly afforded the Applicant ground for making the statement. The various matters detailed in the enumerated paragraphs 1 to 7 were not and could not have been within his own knowledge on that day even be it he might have been told so by Mr Zilka. It is the finding of the Tribunal that the Applicant by such document sought to mislead the Department, such conduct hardly being consistent with the responsibilities of a prospective migration agent.
An application for a protection visa was lodged on or about 9 January 1997. On 13 January 1997 the Applicant lodged an application seeking permission for Mr Zilka to work. On 4 June 1997 the Applicant with his wife met Mr Zilka at the Swiss Grand Hotel where a "fee disclosure" agreement was signed for preparation and submission of an application for grant of a temporary business entry class 457 visa. Mr Zilka paid to the Applicant half of the agreed fee on that day. The Applicant in a file note dated 4 June 1997 stated (T2, p56, Supplementary T-docs):
"1. If his protection visa application is rejected he will have to submit his 457 application outside Australia. Or if he prefers, he can withdraw the protection visa application before the primary decision is made then lodge the 457 application in Australia. The latter I advised as the preferred option. He said he would be submitting the 457 application either in LA or Tel Aviv and he said he was not concerned because he intended to be out of Australia and back home in Israel soon because he had some business there and wanted to be home for the High holidays …
That if his protection visa application was rejected and if he wanted to further stay in Australia would most probably advise him to appeal because I thought he had quite a good case based on his story. He said he would think about (sic) if the time came". 'On 3 July 1997 the protection visa application was refused. The Applicant advised Mr Zilka to seek review of the decision in the Refugee Review Tribunal. On 23 July Mr Zilka asked the Applicant to prepare an application to the Refugee Review Tribunal. A fee was agreed. A declaration in support of an application for review was witnessed by the Applicant and dated 21 July 1997. The application for review was lodged on 24 July 1997.
By the 16 September the agreed fee had not been paid. The Applicant telephoned Mr Zilka requesting payment. Mr Zilka came to see the Applicant saying he "had problems". He did not pay the fee. The Applicant nevertheless continued with the 457 visa application.
On 2 December 1997 Mr Zilka came to the Applicant's office and "picked up his 457 application". He paid the fee. On 3 December 1997 Mr Zilka lodged the 457 application.
Prior to 3 December 1997 Mr Zilka had been requested by the Refugee Review Tribunal to attend a hearing on 10 December. The Applicant had advised him to withdraw the appeal and avoid having to pay a $1,000 exit charge, which if not paid might prevent grant of the 457 visa. There had earlier been discussion between the Applicant and Mr Zilka as to the effect, of failure of his application for review on his 457 visa application.
The hearing before the Refugee Review Tribunal was on request adjourned to 27 January 1998. On that day Mr Zilka verbally sought to withdraw the Refugee Review Tribunal application. The request needed to be in writing. On 29 January the Refugee Review Tribunal affirmed the original decision. On 26 February 1998 the Department informed Mr Zilka that by reason of the refusal of a protection visa, the application for a 457 visa was not valid when lodged in Australia on 3 December 1997.
Mr Zilka complained to the Respondent alleging that the Applicant had deceived him into lodging an invalid 457 visa which had no chance of being granted. In May 1999 he commenced proceedings in the District Court against the Applicant seeking recovery of monies paid. The Applicant filed a defence and cross-claim against Miss Hotimsky. This was in due course, when part heard, settled between the parties.
The complaints raised by the Respondent in relation to the Zilka/Hotimsky matter were numerous. As has already been mentioned the Tribunal finds that it is not able to reach a firm decision on matters where there is an alleged conflict between the Applicant and Mr Zilka, in the absence of acceptable documentary material which might corroborate matters alleged to have occurred. However, as has already been mentioned, there are a number of instances referable to the conduct of the Applicant where the facts can be gleaned from the Applicant's own files. The Tribunal is satisfied as to the following complaints:
(a) the advice given to Mr Zilka as to his having to go overseas preparatory to lodging the Class 457 visa application may well have been correct, but the Applicant proceeded to prepare the visa application nevertheless. This was on the basis that the application was on-shore;
(b) the Respondent contended that the Applicant either forged, or was a party to a forgery of a business sponsorship letter. The Tribunal is not satisfied as to the Applicant being a party to the preparation of the document. A number of matters were raised by the Respondent with reference to the business sponsorship application and it was alleged, that the Applicant displayed incompetence or reckless disregard for his clients interests in relation to it. This may have been so, but the Tribunal is not satisfied that the allegations in this regard have been established. It is true that there is an absence of documentary material on the Applicant's file as to this aspect of Mr Zilka's application but the Tribunal is not satisfied that the Applicant was remiss in this regard.
(c) the Tribunal is satisfied that the Applicant sought to mislead it and others as to the part played or not played by Ms Hotimsky in relation to the Zilka application. She did not seek to have him clerk for her. She did not play any part in the various applications of Mr Zilka after 24 December 1996. She did not play any part in the lodging of a protection visa application.
(d) the Applicant had Mr Zilka sign a fee and service agreement on 24 December 1996. The agreement recited that the Applicant was to prepare and lodge the appropriate visa application. The Applicant was not at that time a registered migration agent. In the application for the protection visa lodged with the Department, prepared by the Applicant, it was stated that a migration agent did not assist in preparing the application. This was not correct. The Applicant did assist Mr Zilka in preparing the application. The Applicant in this regard sought to mislead the Department;
(e) reference has already been made to the document of 24 December 1996 signed by the Applicant, in which he made the numerous false representations;
(f) the Applicant prior to his registration as a migration agent, sought to and did provide Mr Zilka with immigration assistance. This was in breach of section 280 of the Act. ; and
(g) The Respondent contends that various file notes of the Applicant were fabricated. A determination as to this complaint would need an assessment of the credibility of Mr Zilka against the Applicant. Mr Zilka was not available for such assessment to be made and the Tribunal is of the opinion that on this account it is unable to make a definitive finding in relation to this issue.
Accordingly, the Tribunal is satisfied that:
(a) the Applicant provided immigration assistance to Mr Zilka prior to his becoming registered as a migration agent on 7 January 1997;
(b) the Applicant received payment for such immigration assistance prior to his registration;
(c) the Applicant sought to mislead the Respondent and the Tribunal in alleging that he was retained as a clerk by Ms Hotimsky. The Tribunal does not accept that Ms Hotimsky played any part in Mr Zilka's migration matters after 24 December 1996;
(d) the Tribunal is satisfied that prior to 24 December 1996 the Applicant held himself out to Ms Hotimsky as a lawyer and a migration agent;
(e) the Applicant provided a reference for Mr Zilka, which he knew was false; and
(f) the Applicant provided a false and misleading statement in the application form, when answering the question as to the provision of assistance to Mr Zilka in the negative.
other matters raised by the applicant in his submissons
In the course of making his final submissions the Applicant raised a number of matters that now warrant consideration.
Miss duggua and mr zilka
Criticism was raised as to the Respondent not calling either Miss Duggua or Mr Zilka. The former lady now lives in England, Mr Zilka perhaps in Israel.
As has earlier been indicated in these reasons, the Tribunal has experienced some difficulty in assessing the evidence of the Applicant when it is at issue with written material this particularly so in the case of Mr Zilka. As has already been indicated it is a matter of weight and this has been duly assessed. The Tribunal has indicated that a number of complaints have not been established by dint of this factor. This is not to say that there was an obligation on the Respondent to call these persons to give evidence. The material was placed before the Tribunal and it is for the Tribunal to make such assessment of it as it considers appropriate in the circumstances.
Likewise, it was said that in not calling Mr or Mrs Jameson, the Hampton complaint was defective. As earlier indicated the Tribunal is satisfied on the evidence of Mrs Hampton and other material that this complaint is substantially established. Likewise, with the Croation radio complaints Mr Milacic was not called. The Tribunal is satisfied that the material before it is sufficient to make the findings already assessed:
With reference to the Croation Radio complaint, it was said that by dint of Mr Bock not being a complainant and the Respondent raising the issues, itself that the complaint was defective. Likewise it was not Mr Govett who complained. The Tribunal is satisfied that, as with the Respondent and its delegate, it is able to receive material and assess material in the context of alleged complaints. It is not within the legislative parameters that a third-party complainant must exist. The Respondent has the power to initiate enquiries and collate material referable to alleged breaches of a code of conduct, or otherwise as it considers appropriate;
Consistent with the decision in Cunliffe v Commonwealth of Australia [supra] it was submitted that the Act cannot be invoked against a migration agent where the person at one time receiving migration assistance is now outside the jurisdiction. The Tribunal is satisfied that the Respondent and hence the Tribunal has jurisdiction to assess the conduct and behaviour of migration agents, irrespective of the whereabouts of the one-time client. It is as to the agent's conduct that the statute may be enlivened and invoked;
The Applicant contended that, with reference to file notes, there was not an obligation on him consistent with the complaints. Some of the file notes are self-explanatory. The Tribunal has not made a finding adverse to the applicant where it has been maintained that a conflict existed between a file note and what was alleged by Mr Zilka in pleadings in the District Court proceedings. In the absence of Mr Zilka the Tribunal was not able to make a finding as to any alleged fabrication. Otherwise, the Tribunal takes the file notes as they are and makes an assessment of them in the context of surrounding circumstances;
The Applicant alleged that clause 27 in the relevant Code of Conduct of 1 August 1996 and clause 61 in the Code of Conduct as of 1 April 1998 illustrated the need for the making of changes evidencing a luck of clarity and certainty in the earlier code. It was submitted that the more recent clause, clause 61 is also uncertain as to its meaning. The Tribunal has no difficulty in placing a construction on clause 27, the need to maintain records and files containing copies of an application, written communication and each oral communication. Likewise, with clause 6.1. It is a matter of there being in the agent's records or files information as to the nature of instructions received, advice given and documentation in due course prepared sufficient for inspection if considered necessary or appropriate. It is true, as was submitted, that a situation may well arise where the Department by its officers should make appropriate enquiries if there be an ambiguity or deficiency in a document submitted to it. Again, this would be dependent upon the particular circumstances but such as to enable an applicant's situation to be duly and properly assessed;
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.
decisionThe 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.
The Tribunal is satisfied that there has been breach by the Applicant of the Codes of Conduct and that he has shown himself to be a person not of integrity and not fit and proper to give immigration assistance.
For the reasons herein and before set forth, the decisions under review are affirmed.
I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President
Signed: R Quinn .....................................................................................
AssociateDate/s of Hearing 9, 10, 11, 12, 13, 31 July 2001, 1 August 2001
Date of Decision 20 September 2001
Counsel for the Applicant self-represented
Counsel for the Respondent Mr M Wigney
Solicitor for the Respondent Ms A Nansen
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