Rozsy and Migration Agents Registration Authority

[2008] AATA 658

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 658

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W200600170

GENERAL ADMINISTRATION  DIVISION		)
Re		PETER ROZSY

Applicant

And MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Mr S Penglis, Senior Member

Date29 July 2008

PlacePerth

Decision

1.    The reviewable decision of the respondent made on 22 May 2006 is set aside. 

2. In lieu thereof the applicant is barred pursuant to section 311A of the Migration Act 1958 (C'th) from being a registered migration agent for a period of 2 years and 6 months commencing on 22 May 2006.

....(sgd) Mr S Penglis.........

Senior Member

CATCHWORDS

Immigration – various breaches of Code of Conduct by migration agent – relevant principles to be applied in determining whether to make a barring order and, if so, for what period – applicant barred for two years and six months.

LEGISLATION

Migration Act 1958 (Cth) s 311

CASES

Donald and Australian Securities Investment Commission [2001] AATA 66

Narayanan and Migration Agents Registration Authority [2006] AATA 353

Rich v Australian Securities Investment Commission [2004] HCA 42

REASONS FOR DECISION

29 July 2008 Mr S Penglis, Senior Member       

1. By Reasons for Decision dated 26 May 2008 [2008] AATA 434 I made findings that the applicant had contravened various provisions of the Code of Conduct prescribed pursuant to section 314 of the Act.

2.      At the same time I made directions to facilitate a further hearing of the matter to determine whether or not, in light of my findings, the applicant should be barred from being a registered migration agent and, if so, for what period.

3.      The Tribunal was subsequently provided with written submissions on behalf of the applicant and on behalf of the respondent, which written submissions were supplemented by counsel for the parties at a further hearing. Further written submissions were provided on behalf of both parties after that hearing.

4.      As I stated in Narayanan and Migration Agents Registration Authority [2006] AATA 353, it is well established that the purpose of a power such as that provided in s 311 of the Act is not to punish for wrongdoing, but is to protect the public from wrongdoing: see, for example, the decision of this Tribunal in Donald and Australian Securities and Investments Commission [2001] AATA 66 and the various authorities referred to therein at paragraphs 111 to 115 (inclusive), as well Rich v Australian Securities and Investments Commission [2004] HCA 42.)

5.      Mr Eastoe, Counsel for the applicant, submitted that the public interest did not require that a barring order be made because the protection of the public is satisfactorily achieved by other provisions of the Act, including:

·Section 289 - which provides that a person cannot become a registered migration agent without approval of an application for registration by the respondent.

·Section 289A – which provides that a former migration agent who applies for re-registration more than 12 months after his or her previous registration has lapsed must complete a prescribed course and pass a prescribed exam;

·Section 290, especially (2) (a) – which provides that a person cannot be registered unless the respondent is satisfied that the person is a fit and proper person to give migration assistance and is a person of integrity. In making a determination on these matters the respondent must take into account, inter alia, any disciplinary action being or previously taken against the applicant.

6.      It was also submitted on behalf of the applicant that given that there are ample powers in the Act to refuse re-registration where the circumstances warrant that result, there is a fundamental issue which must necessarily arise which a regulatory authority must consider before making a decision to impose any banning order, namely what, if any, “factual and rational basis exists” for making a pre-determination of the right conferred by the legislation to apply for registration by (or re-registration) be temporarily excluded.

7.      In a similar vein, it was also submitted on behalf of the applicant that any administrative decision to exclude a right conferred by the statute must be one which is based on “exceptional and compelling circumstances”.  It was submitted on behalf of the applicant that there were no factual or rational basis for such an order nor were there compelling and exceptional circumstances.

8.      I do not accept any of these submissions.  Section 311 stands independent of the provisions to which counsel for the applicant has referred.  It confers upon the respondent the power - quite separate from the power to re-register a migration agent – to, amongst other things, bar an agent from re-applying for a period of up to five years where that agent has conducted himself or herself in such a manner that the public interest requires such a barring order to be made.

9.      The power to bar an applicant from re-registering is given for purposes entirely independent of the power to grant or re-grant registration in the first instance.  It acts as a suspension of the right to practice by preventing an applicant, who is otherwise not registered, from seeking to achieve that status for a specified period.

10.     I find there is no legal justification to limit that power so that it may   only be exercised in compelling or exceptional circumstances.

11.     In Narayanan’s case I accepted and applied a submission to the effect that where a professional person is found to have acted in breach of the duties to a client, the following factors are often considered when determining what sanction should be imposed:

·     “The nature of the professional’s breach, particularly whether the professional is acting in good faith during the commission of the breach;

·     whether there were any factors that were beyond the professional’s control and could have reasonably contributed to the professional’s breach;

·     the professional’s willingness to accept that a breach may have occurred;

·     the professional’s efforts to rectify or mitigate the effect of the breach, were possible;

·     whether the client sustained any loss as a result of the professional’s breach;

·     the professional’s actions, if any, to compensate the client for any loss arising out of the possible breach;

·     the professional’s record of prior disciplinary breaches;

·     the professional’s community and professional reputation;

·     the extent to which any sanction may be harsh, unjust or oppressive in the circumstances taking into account the extent to which such a sanction would affect the professional’s financial earning capacity and livelihood;

·     the professional’s co-operation with the disciplinary authority;

·     whether a sanction, if any, would deter other professionals from similarly breaching their duties to a client; and

·     whether a sanction, if any, will ensure that the public’s confidence in the professional’s industry will be maintained”.

12.      I was invited by Counsel for the respondent to adopt those criteria in this matter. I do so.

13.     Having regard to all the above, I am in no doubt that the public interest requires a barring order to be made against the applicant.  Factors which particularly cause me to reach a conclusion are as follows:

·although they do not raise issues of the applicant’s honesty or integrity, the applicant’s contraventions of the Code were numerous and serious;

·none of the matters giving rise to the contraventions were beyond the applicant’s control;

·with once exception, the applicant did not accept that he had contravened the Code;

·at least one of the applicant’s clients suffered significantly as a consequence of his breach of the Code, namely Complainant F and, in particular, Complainant F’s partner;

·the applicant has a prior record of disciplinary breaches: Rozsy and Migration Agents Registration Authority [2005] AATA 420;

·no evidence was led to suggest that the conduct evidenced by the findings made against the applicant were inconsistent with the applicant’s general conduct and reputation;

·the making of a barring order ought to deter other migration agents from breaching the Code and also ensure that the public’s confidence in the industry will be to maintain.  

14.     All of the above factors, particularly those referred to by me in the immediately preceding paragraph of these Reasons for Decision, also cause me to accept the submission made on behalf of counsel for the respondent that the period for which the applicant ought be barred should be in the order of two years and six months to 3 years.

15.   Having given the matter careful consideration, I am satisfied that the public interest is sufficiently addressed by imposing a period at the bottom of that range, namely, two years and six months.

16.     For the sake of completeness I note that counsel for the applicant referred to the following matters during the course of his submissions, but that I do not consider any of them to be relevant to, alternatively have any impact upon, a determination of the proper period for which the applicant ought be barred when one has regard to the purpose for which the power to bar is given and the basis upon which this Tribunal reviews administrative decisions.  Those matters included:

·The fact that the reviewable decision and reasons for that decision (which reason included findings going to the applicant’s honesty and integrity, none of which I have upheld) have been published on the respondent’s website;

·The fact that the Tribunal’s orders and a link to its reasons for decision will be available on the respondent’s website for a period of up to 10 years;

·While the applicant has been partly successful in these proceedings in respect of the findings made by the respondent which have not been upheld, as well as in reducing the period by which he will be barred, there will be no monetary compensation available to the applicant, either in respect of the publication of those previous findings or in respect of his costs of the proceedings before the Tribunal;

·The fact that, without any admission of any wrongdoing, the applicant offered an undertaking not to re-apply for a period of 5 years (in order to avoid a lengthy and expensive hearing such as has ensued), which offer was not accepted by the respondent.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior member

Signed: .......(sgd) T Freeman.......
  Associate

Date of Further Hearing            1 July 2008
Date of Decision  29 July 2008
Counsel for the Applicant         Mr J Eastoe         
Solicitor for the Applicant          Mr J Eastoe
Counsel for the Respondent     Mr P Macliver      
Solicitor for the Respondent    Australian Government Solicitor