RYAN RAYGAN - [2023] SASCFC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
RYAN RAYGAN
[2023] SASCFC 1
Judgment of The Full Court
(The Honourable Acting Chief Justice Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
3 August 2023
PROFESSIONS AND TRADES - LAWYERS - QUALIFICATIONS AND ADMISSION - FIT AND PROPER PERSONS
This is an application for admission as a barrister and solicitor of the Supreme Court of South Australia.
The applicant was first registered as a migration agent on 20 July 2015. He opened his own business in June 2015. Following a series of complainants by clients and from the Department of Home Affairs, on 11 May 2018, the Migration Agents Registration Authority cancelled the applicant’s registration as a migration agent. The delegate concluded that the applicant was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance and had not complied with clauses of the Migration Agents Code of Conduct.
The applicant appealed to the Administrative Appeals Tribunal. He gave evidence and was cross examined. The Deputy President was not impressed with the applicant as a witness. He considered that the applicant failed to answer questions directly and often provided an explanation for his behaviour when not asked. He found that the applicant often blamed his clients for changing their story and failed to make appropriate concessions. He found the applicant gave evidence that was clearly false.
The Deputy President found that the applicant had shown himself to be a person lacking integrity and who was otherwise not a fit and proper person to give any immigration assistance. The Deputy President concluded that the decision of MARA to cancel the applicant’s registration was the correct and preferable decision.
The applicant then completed a Bachelor of Laws in early 2022 and a Graduate Diploma in Legal Practice in August 2022. By an ex parte Originating Application dated 11 August 2022, the applicant applied for admission as a legal practitioner. The Board of Examiners (‘the Board’) considered the applicant’s application for admission at its meeting held on 30 August 2022. The Board declined to issue the applicant a favourable report recommending his admission as a practitioner of the Court, on the basis that it was not satisfied that the applicant was a fit and proper person to be admitted as a practitioner. On 4 October 2022, the Board produced written reasons for that decision.
Held (by the Court), refusing the application:
1.The applicant’s transgressions are too recent, and the assurances of his understanding of his obligations too tenuous, especially in light of his continued lack of understanding of his disclosure obligations, for this Court to be satisfied that he is presently a fit and proper person for admission.

Uniform Civil Rules 2020 (SA) rr 257.2, 257.8, 257.9; Rules of the Legal Practitioners Education and Admission Council 2018 (SA) r 23(1); Legal Practitioners Act 1981 (SA) s 15; Migration Act 1958 (Cth) ss 292, 303, 308, 309, referred to.
In Re Vadasz (1988) 146 LSJS 455; In the matter of Claire Amy Morel [2015] SASCFC 20; Lincoln v New Zealand Law Society [2019] NZCA 442; Law Society of NSW v Foreman (1994) 34 NSWLR 408; Legal Profession Conduct Commissioner v Cleland [2021] SASCA 10; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; Raygan and Migration Agents Registration Authority [2020] AATA 1164; Re Application for Admission as a Practitioner (2004) 90 SASR 551; Re Harrison: Application for Readmission (2002) 84 SASR 120; Re Jenner [2007] SASC 263; Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, considered.

RYAN RAYGAN
[2023] SASCFC 1
Full Court – Application for Admission: Livesey A/CJ, Doyle and Bleby JJ

THE COURT: This is an application for admission as a barrister and solicitor of the Supreme Court of South Australia.
By an ex parte Originating Application dated 11 August 2022, the applicant applied for admission as a legal practitioner, pursuant to r 257.2 of the Uniform Civil Rules 2020 (SA). The applicant filed three affidavits in support of his application, dated 9 August 2022, 15 August 2022, and 18 August 2022, respectively.
The Board of Examiners (‘the Board’) considered the applicant’s application for admission at its meeting held on 30 August 2022. Rule 23(1) of the Rules of the Legal Practitioners Education and Admission Council 2018 (SA) (‘LPEAC Rules’) required the Board to report to the Court on the application for admission. The Board declined to issue the applicant a favourable report recommending his admission as a practitioner of the Court, on the basis that it was not satisfied that the applicant was a fit and proper person to be admitted as a practitioner. On 4 October 2022, the Board produced written reasons for that decision.
The Law Society of South Australia (‘the Law Society’), the interested party in this matter, opposes the applicant’s admission, on the ground that the applicant is not a fit or proper person for the purpose of s 15 of the Legal Practitioners Act 1981 (SA). It supports and adopts the reasons of the Board dated 4 October 2022.
Background
At the hearing of the application before this Court, the applicant relied on three further affidavits made by him dated 10 January 2023, 10 March 2023 and 4 May 2023. The Law Society cross-examined him briefly. The Law Society relied on an affidavit of Rosalind Burke made on 10 October 2022, which exhibited the Reasons of the Board of Examiners dated 4 October 2022, and the affidavits originally made by the applicant in support of his application.
The application for admission
In early August 2022, the applicant applied to the Law Society for pre‑admission assessment. In his accompanying affidavit dated 9 August 2022, he set out the circumstances that might affect his good character as follows:
In May 2018 the Migration Agents Registration Authority (MARA) canceled [sic] my registration as a registered migration agent for some breaches of the code of conduct.
On 9 August 2022, the applicant received an email advising him of amendments that needed to be made to his application. He made the amendments as directed on that date.
On 11 August 2022, the applicant received an email notification that his pre‑admission assessment was completed and that he was required to file the amended documents by no later than 19 August 2022. He filed the amended documents on 16 August 2022.
On 17 August 2022, Ms Rosalind Burke, Director (Ethics and Practice) of the Law Society, emailed the applicant advising of a number of matters that needed to be addressed. These included that the information the applicant had provided about the termination of his migration licence was inadequate. Ms Burke advised that the applicant needed to provide complete details of all the circumstances of that matter and exhibit any relevant documentation, including a copy of the decision by Migration Agents Registration Authority (‘MARA’) and any written submissions made by the applicant. She also directed him to read the Law Admissions Consultative Committee Disclosure Guidelines for Applicants for Admission to the Legal Profession (‘Disclosure Guidelines’) at Appendix D of the current LPEAC Rules.
On 18 August 2021, the applicant affirmed a fresh affidavit, which he filed together with his application for admission. Paragraph 9 of this pro forma affidavit reads as follows:
I have not otherwise done or suffered anything likely to affect adversely my good fame and character, nor am I aware of any circumstances that might affect my fitness to be admitted as a practitioner [except – set out any facts or circumstances that the applicant is required to bring to the notice of the Board of Examiners referred to in Exhibit “F”].
Matters that must be disclosed include that the applicant is or has been bankrupt and the circumstances of bankruptcy or has been found to have engaged in academic dishonesty such as plagiarism.
Beneath this paragraph, the applicant wrote:
Please see Exhibit “F” and associated documents [F1, F2, F3, F4, F5, F6].
Exhibit F comprised a cover page and six exhibited documents. The cover page contained the following statement by the applicant about the cancellation of his registration and the steps he took subsequently:
On 6 May 2020, the Administrative Appeals Tribunal confirmed MARA’s decision to cancel my registration.
The AAT decided to cancel my registration for a period of five years.
I was very devastated. I had a family and young children. I had expected a caution or a suspension but not a cancellation for the maximum period of five years.
I went through a period of unemployment and depression but I thank God that I had moral support from my wife and a few friends. I had arrived in Australia from Iran in 2007 and did not have many friends.
After the decision and with the moral support, I accepted my fate but decided to improve myself.
I decided to study law to get a deep understanding of the Australian legal system. I am glad that I did so because I now fully appreciate the need for high professional ethical standard required of me.
I regret my failure to adhere to those standards when I was a Migration Agent.
During the Graduate Diploma Legal Practice course, I took particular interest in the Legal Practitioner’s Code of Conduct and the Australian Solicitors’ Conduct Rules.
I believe that the cancellation has been a blessing in disguise. I have learnt a hard lesson from my mistakes while I was a Migration Agent.
(Footnotes omitted)
The exhibited documents were:
·the MARA decision dated 11 May 2018;
·the Administrative Appeals Tribunal (‘AAT’) decision and reasons dated 6 May 2020;
·the applicant’s supplementary submissions filed in the AAT proceedings dated 4 September 2019;
·the applicant’s written submissions in support of a stay application of the AAT proceedings; and
·the respondent’s supplementary submissions filed in the AAT proceedings dated 18 September 2018.
The applicant did not seek advice in preparing this affidavit.
On 19 August 2022, the applicant received an email confirming that his application and affidavit had been filed with CourtSA.
On 1 September 2022, Ms Burke wrote to the applicant, enclosing a copy of a Report of the Board of Examiners, dated 30 August 2022, to be referred to the Full Court. The Board concluded that it was not satisfied that the applicant was a fit and proper person to be admitted as a practitioner. Then on about 10 October 2022, the applicant received a copy of the Board’s reasons, dated 4 October 2022, for its decision of 30 August 2022.
The cancellation of the applicant’s registration as a migration agent
The applicant was born in Iran on 12 September 1975. He migrated to Australia in 2007. He worked in different jobs. In 2010, he completed a diploma in financial services through TAFE SA. In 2013 and 2014, he undertook and completed a two-year Master’s degree in professional accounting at the University of South Australia. He became an associate member of Certified Public Accountants (CPA) Australia. In 2014, he enrolled in Victoria University, Australia to study a Graduate Certificate in Australian Migration Law and Practice. He graduated from this course in April 2015. He applied for and was first registered as a migration agent on 20 July 2015. His registration was renewed annually, with the most recent application for registration, before the revocation, having been made on 14 June 2017.
The applicant had difficulty in finding employment at an established migration agency, which led to him opening his own business. On 16 June 2015, he registered with ASIC a company, Immigration Services Pty Ltd (ACN: 606 451 567).
Within the first six months of opening, the applicant had accumulated a large client base. His evidence was that he became overwhelmed by the workload. He described himself as being unprepared to act as a migration agent. He said he failed to implement proper office procedures, maintain clients’ files and record instructions properly.
Between November 2016 and December 2017, MARA received six complaints from the applicant’s clients and three from the Department of Home Affairs (‘the Department’) concerning the applicant’s conduct.
On 17 February 2017, MARA provided the applicant with a notice under s 308 of the Migration Act 1958 (Cth) concerning three complaints received by MARA between 5 November 2016 and 8 February 2017 and one complaint in February 2017. On 10 April 2017, the applicant provided MARA with a response to the notice.
On 3 May 2017, MARA provided the applicant with a second notice concerning a complaint received by MARA on 1 March 2017. On 30 May 2017, the applicant provided MARA with a response to this second notice.
On 25 July 2017, MARA made a further request for information, to which the applicant responded on 11 August 2017.
On 13 December 2017, pursuant to s 309 of the Migration Act, MARA provided the applicant with a notice advising that it was considering cautioning, suspending or cancelling the applicant’s registration under s 303(1). The applicant was invited to provide MARA with a written response to this notice. He did so on 13 April 2018.
On 11 May 2018, MARA cancelled the applicant’s registration as a migration agent, pursuant to s 303(1)(a) of the Migration Act. Pursuant to s 292 of that Act, the applicant was prevented from applying for registration for five years from that date.
The Statement of Reasons of the delegate expressed the following conclusions as to the applicant’s conduct:
230. Based on the evidence before me, I am satisfied that the Agent:
·failed to issue any Statements of Service to clients, despite withdrawing client monies from his clients account;
·Provided inaccurate and misleading information to the Department as part of […]’s, […]’s. and […]’s applications;
·Failed to keep adequate client file notes relating to drafting of client responses for their protection applications and supporting documentation;
·Failed to provide frank and candid advice to clients when assisting them to apply for protection, and failed to provide advice relating to their prospects of success in writing;
·Prepared a significant number of Protection visa applications and statements of claims that shared duplicated or template claims for protection, contrary to the integrity of Australia’s visa program, and in doing so, undermined the program and failed to act in the best interests of his clients when articulating their protection claims;
·Prepared and lodged a vexatious and/or grossly unfounded application for protection on behalf of […] using […] and […]’s protection claims. This conduct, considered to have occurred shortly after he responded to allegations of fraudulent conduct in respect of […]’s application, as well as in the first section 308 notice, shows a propensity for deceitful conduct;
·The Agent has repeatedly attempted to mislead the Authority in his responses to the complaints;
·The Agent has demonstrated a blatant disregard for the Authority and migration regulatory scheme by failing to respond reasonably to a request made by the Authority, and engaging in subsequent fraudulent conduct after the Authority had already brought conduct concerns to his attention;
·The Agent’s conduct, as made out in this decision record, demonstrates a blatant and ongoing disregard for the integrity of the Department’s Protection visa program; and
·The Agent has repeatedly demonstrated a lack of regard for section 11 of the Statutory Declaration Act 1959 and his clients by drafting and witnessing their statutory declarations and Form 866C’s knowing that the responses contained large amounts of duplicated, misleading and inaccurate information.
The delegate found that the applicant had not been forthcoming in acknowledging or expressing remorse for the serious conduct identified. She concluded that the applicant was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance and had not complied with clauses of the Migration Agents Code of Conduct (‘the Migration Agents Code’).
The AAT appeal
The applicant appealed to the AAT.[1] He gave evidence and was cross‑examined. The Deputy President was not impressed with the applicant as a witness. He considered that the applicant failed to answer questions directly and often provided an explanation for his behaviour when not asked. He found that the applicant often blamed his clients for changing their story and failed to make appropriate concessions. There were numerous inconsistencies in the applicant’s explanations.[2]
[1] Raygan and Migration Agents Registration Authority [2020] AATA 1164.
[2] Raygan and Migration Agents Registration Authority [2020] AATA 1164 at [2].
The Deputy President found that the applicant’s most significant failing as a witness was when he was asked to explain why passages of the written statements of claim he prepared for different clients were often almost word for word the same. It was evident that the applicant had copied and pasted the same passages for multiple clients. The Deputy President expressed his conclusions about the applicant’s evidence on this topic as follows:[3]
Under cross-examination the applicant denied fabricating any story of a client. He said that he listened to the client’s story and then wrote it down. He denied copying any passages from a previous client’s statement of claim and denied using those passages in a new client’s statement of claim. This evidence is clearly false. Counsel for the respondent put to the applicant numerous examples of replicated passages from the statements of claim of different clients. The applicant maintained his denial. I raised my concern that it was apparent from the face of the documents that passages had been copied. The applicant maintained his denial. There was then a break for lunch after which the applicant offered an explanation for his earlier evidence and said that he was confused when he had been asked whether he had copied and pasted passages of statements of claim. He explained that he never fabricated a client’s story but that he did copy and paste from previous clients’ statements of claim where their stories were the same. He said that as a migration agent he saw many clients whose stories had a common theme, for example being persecuted as a Christian in Iran and being arrested or shot at. This was the reason for the similarity of the passages. The applicant maintained that he accurately recorded the instructions given to him by clients. This is obviously false, and I reject this evidence from the applicant.
[3] Raygan and Migration Agents Registration Authority [2020] AATA 1164 at [4].
Later in his reasons, the Deputy President found:[4]
There is no acceptable explanation for the same passages of words appearing in different statements of claims. Despite this, the applicant maintained to the end that he never fabricated a client’s story. I reject this contention and consider that it indicates a lack of integrity on the part of the applicant.
[4] Raygan and Migration Agents Registration Authority [2020] AATA 1164 at [54].
The Deputy President found that the applicant had shown himself to be a person lacking integrity and who was otherwise not a fit and proper person to give any immigration assistance. He found that the applicant had breached a wide variety of clauses in the Migration Agents Code relating to both professional conduct and administrative requirements.[5] Further, the applicant’s conduct in response to the complaints and his conduct in giving evidence before the Tribunal demonstrated a lack of insight into the contravening conduct.[6] The Deputy President concluded that the decision of MARA to cancel the applicant’s registration was the correct and preferable decision.
[5] Raygan and Migration Agents Registration Authority [2020] AATA 1164 at [70].
[6] Raygan and Migration Agents Registration Authority [2020] AATA 1164 at [72].
The reasons of the Board

The Board’s reasons, dated 4 October 2020, noted that the affidavit accompanying the applicant’s application for admission exhibited documents addressing the cancellation of the applicant’s migration licence, including the reasons of the AAT. The Board referred to numerous remarks and findings made by the Deputy President, namely of the applicant’s lack of integrity and conduct during cross-examination.
The Board considered that the statement on the cover page of Exhibit F of his affidavit of 18 August 2022 failed to deal with the AAT’s finding that the applicant gave false evidence before it. The Board expressed its deep concern about that finding. Although the applicant gave that evidence prior to commencing his legal studies, the Board did not accept that a person who had not studied law would not understand that evidence given to a Court or Tribunal must be truthful and complete.
The Board also considered that the statement failed to address the AAT’s trenchant criticism of the applicant’s performance as a migration agent. The Board pointed to the findings of the Deputy President to the effect that the applicant’s conduct involved:
(a)      not giving proper advice;
(b)     failing to act in the best interests of the client;
(c)      providing misleading and inaccurate information in the statement of claim;
(d)     misunderstanding the relevant legal principles;
(e)     failing to keep records of instructions or dealings generally with clients;
(f) being responsible for adverse credibility findings being made against the client in their protection visa applications;
(g)     maintaining a denial through despite incontrovertible evidence.
The Board expressed the view that these matters were equally, if not more, crucial in a legal practitioner’s practice as in a migration agent’s practice. It considered that the applicant did not deal with the AAT’s criticisms beyond his words ‘I now fully appreciate the need for high professional ethical standard required of me. I regret my failure to adhere to those standards when I was a Migration Agent’.
The Board concluded that the applicant’s application was inadequate in dealing with:
·the AAT’s finding that he gave false evidence;
·the AAT’s criticisms of his integrity; and
·the AAT’s detailed criticism of aspects of his practice as a migration agent, which in the Board’s view were aspects equally, if not more, applicable to legal practice.
The Board concluded that it was not satisfied that the applicant was a fit and proper person to be admitted as a practitioner and declined to issue a favourable report.
The application for admission
Part 7 of Chapter 20 of the Uniform Civil Rules governs the jurisdiction of this Court to hear and determine applications for admission. Relevantly, r 257.8(2) provides:
(2) If an objection is filed or the Board recommends that the applicant not be admitted, the Registrar will convene a directions hearing before a Judge to give directions about the listing and preparation of the application for hearing before 3 Judges of the Court sitting in banco.
(Emphasis added)
Rule 257.9 provides:
257.9—Hearing
(1)     At the hearing of the application, the Court may, if it thinks fit, act upon a report of the Board of Examiners without further evidence.
(2)     The applicant must attend the hearing, unless exempted by the Court on application by the applicant made by filing a request to the Registrar in accordance with rule 13.2(5) at least 14 days before the hearing or on the Court’s own initiative.
(3)     If the Court orders that an applicant be admitted, the applicant must take the oath or affirmation of admission in the following terms—
…
(4)     If the Court orders that an applicant be admitted, the applicant will be enrolled as a solicitor and barrister of the Court upon signing the Roll of Practitioners.
Section 15(1) of the Legal Practitioners Act provides:
15—Entitlement to admission
(1)     A person who satisfies the Supreme Court—
(a)     that he or she is a fit and proper person to practise the profession of the law; and
(c)     that—
(i)      he or she has complied with—
(A) the rules of the Supreme Court relating to the admission of barristers and solicitors of the Supreme Court; and
(B) the rules made by LPEAC under this Act prescribing the qualifications for admission as a barrister and solicitor of the Supreme Court; or
(ii) insofar as there has been non-compliance with those rules, he or she should be exempted from such compliance,
is entitled to be admitted and enrolled as a barrister and solicitor of the Supreme Court.
Pursuant to s 15(1)(a), the onus is on the applicant to satisfy the Court of his fitness to practise law. The time at which the applicant must be ‘fit and proper’ is the time of the determination of the application.[7]
The evidence
[7] See for example Re Application for Admission as a Practitioner (2004) 90 SASR 551 at 557 [36] (Doyle CJ, White and Perry JJ agreeing) and [43] (Debelle J); Lincoln v New Zealand Law Society [2019] NZCA 442 at [38].
Affidavit evidence
10 January 2023
In his affidavit dated 10 January 2023, the applicant gave evidence about why he had failed to address in his application the AAT’s findings that he had given false evidence and the AAT’s criticisms of his performance as a migration agent. He said that if he had known that the Board wanted more detail regarding these two matters, he would have provided that detail. He said that he did not attempt to hide or cover the Deputy President’s findings. He accepted that the evidence to which the Deputy President referred was false, which is why in his statement in Exhibit F, he said, ‘I regret my failure to adhere to those standards when I was a Migration Agent’.
The applicant ‘endeavoured to emphasise [his] regret and contrition’ by saying, ‘I believe that the cancellation has been a blessing in disguise. I have learnt a hard lesson from my mistakes while I was a migration agent’. He said that by this statement, he intended for the Board to take it as recognition that he had accepted the findings of the Deputy President, that his future conduct needed to change and that it had changed.
The applicant accepted that his practices and behaviour during that time were wrong. He said that he had since learnt from his conduct and that the findings of the AAT were at the forefront of his mind whilst undertaking his law degree and Graduate Diploma in Legal Practice. He said that he endeavours to ensure that he is always up to date on all rules and regulations governing the ethical behaviour of legal practitioners, so that if he is admitted, he will, at all times, act both professionally and ethically. He concluded this affidavit saying that throughout his studies, he has continually reviewed the Australian Solicitors’ Conduct Rules and Ethics Policy to ensure that he is aware of what is required ethically and professionally from a legal practitioner.
Following the cancellation of his migration licence, the applicant completed a Certificate IV in Disability through TAFE. He has since found work using his accounting and financial services skills to gain employment as a casual subcontractor for NDIS providers by undertaking bookkeeping and accounting work. He has worked for Care Centre, Community Options and Anglicare on a casual basis.
The applicant explained that he began attending the Lutheran Church at Pasadena in recent years, as his religion assists him when he is under pressure. He is a member of various associations and volunteers regularly, such as at the Salvation Army and St Vincent de Paul Society.
The applicant gave detailed evidence about the law degree he undertook. In deciding to complete a law degree, he believed that he had learnt from his previous mistakes and resolved that nothing like that would happen again. He commenced a Bachelor of Laws degree through Victoria University in 2020 and completed it in early 2022. He subsequently completed his Graduate Diploma in Legal Practice (‘GDLP’) through the College of Law in August 2022. In 2021 and 2022, while completing his studies, he undertook work placements at Morgan Freeman Lawyers and Old Port Chambers.
The applicant said that following the AAT proceedings, he determined that he would not make the same mistakes again. This led to him paying particular attention to the ethics components of his degree and GDLP. He annexed exhibits to his affidavit, which illustrated his completion in various Continuing Professional Development (‘CPD’) courses with a focus on ethics. These included ‘Mistaken Expectations: Managing and Owning Mistakes in the Workplace’ and ‘Ethics – Professional and Practice Risks’. He also said he read the Australian Solicitors Conduct Rules (‘Conduct Rules’). He said that from studying and completing ethics-related courses, CPD courses and reading the Conduct Rules, he believed that he has an awareness of the ethical requirements of a legal practitioner. He completed these additional ethics courses as he was determined that he would not make the same mistakes again and that he would live up to the high standards required of a legal practitioner.
9 March 2023
In his affidavit dated 9 March 2023, the applicant acknowledged that by providing false evidence in the AAT hearing, he had ‘effectively lied’ to the Tribunal. He said that at the time, he did not appreciate the seriousness of his actions. He lied because he was worried that he would not have his migration agent’s registration reinstated or be able to continue working in migration services. He said that his actions were not premeditated and that he did not want to admit what he had done, which led to him lying. Once he had told one lie, he felt compelled to continue in order to cover up the initial lie.
The applicant said that at the time of the AAT proceedings, he lacked insight into his behaviour. He tried to protect himself and his reputation and did not realise the seriousness of his wrongdoing. His evidence was that having now completed a law degree and having an awareness of the ethical standards and duties of a legal practitioner, he appreciates the seriousness of his actions.
4 May 2023
Following reading the submissions of the Law Society, the applicant filed a further affidavit, dated 4 May 2023. In this affidavit, he sought to address the Law Society’s submission that he had been ‘less than candid with the Board in seeking admission into legal practice’. In response to this submission, he said he believed and proceeded on the basis that informing the Court of the cancellation of his licence would result in the Court having access to the MARA file, including the AAT decision. He said that for that reason, he had merely referred to his cancelled registration for breaches of the Migration Agents Code. He likened this process to that of a police check. He accepted that he was wrong in that view.
The applicant said that he believed that if the Law Society, the Board or the Court needed further information on account of what he had provided, they would ask. He accepted that he was wrong in that view and that he had an obligation to disclose the information he had subsequently included in his affidavit of 18 August 2022. He said he did not know this at the time of filing the previous affidavits. Once Ms Burke told him that this disclosure was inadequate, he filed a fresh application with the materials exhibited to his affidavit of 18 August 222, including the statement in Exhibit F.
The applicant said that if he had known and appreciated his disclosure requirements at the start, he would have annexed all the documents he had in his affidavit dated 18 August 2022 in earlier affidavits. He did not intend to be less than candid with the Board and it was never his intention to hide any aspect of his migrant agent licence cancellation and the subsequent AAT proceedings from the Board, the Law Society or the Court.
The applicant’s oral evidence
The applicant explained at the hearing that his first language is Farsi. When speaking English, he thinks in Farsi and translates his responses from Farsi before answering in English.
When asked in cross-examination about the errors he had to rectify in earlier affidavits, prior to that which accompanied his final application, he explained:
There was lots of communication by phone and email with Law Society… there wasn't any guideline for how to load application for admission; and the website of Law Society also is very - is not user friendly, is very confusing. And that's why I had lots of communication by phone and email with Law Society, to guide me how to load a perfect application. That's why I lodged, I think, four application [sic].
He was then asked about the Law Admissions Consultative Committee Disclosure Guidelines, which he confirmed reading, in full, prior to preparing his first affidavit. He said he understood them. On that understanding, he disclosed that his migration licence had been cancelled, and expected that ‘they’ would access all the relevant documents or ask him to provide further documents. He said there was no intention to hide anything. Senior Counsel for the Law Society took the applicant to specific sections of the Disclosure Guidelines where applicants are instructed not to wait for the admitting authority to ask for further information. The applicant explained that he believed that his failure to provide a full account at that stage was a misunderstanding and that he did not intend to hide anything.
The applicant confirmed that he read the Disclosure Guidelines before he first sent the materials to the Law Society but was unsure of the documentation that would be relevant, as there was a ‘huge amount of information and document [sic]’. On his explanation, this was why he was waiting for the Law Society to ask for the information. Once they asked, he immediately provided it.
The applicant maintained that he thought the Court would have access to the whole of his migration agent file and the AAT decision, similarly to undergoing a police check. He made this assumption due to past experience with police checks. He agreed that he now understood that this was not the case and that the Board did not have access to his migration agent file or the AAT material.
The applicant said that he did not mention anything specifically about giving false evidence in the AAT proceedings in his affidavit of 18 August 2022 and the cover page to Exhibit F because the AAT clearly discussed his lies in its Reasons for Decision. He therefore did not think it necessary to mention that he had lied. He thought that if the Board was to read the decision, it would be aware that he had lied. He did not provide any explanation why he lied or the circumstances that brought him to that incident in the cover page because there was ‘lots of information in [the] AAT decision’. He believed that they would read the decision and find out everything.
The applicant confirmed that he now knew that an adverse credit finding that he had lied was a very important matter when applying for admission as a legal practitioner. He disagreed that he did not appreciate its importance when completing his affidavit dated 18 August 2022. He appreciated that it was important, but he provided the AAT decision and thought that was enough for the Board to find anything it needed to know.
The cross-examination then focused on the lack of apology to the AAT in Exhibit F of the affidavit and the subsequent apology in his affidavit dated 10 January 2023:
Q.Just staying with that single page, Exhibit F, do you agree with me that there is no apology there to Deputy President Britten-Jones or to the tribunal.
A. I think you are right, I have ... to mention specifically my apology.
Q.But you do do that in your January affidavit, I think it's para.46 of your January affidavit you do specifically state you wished to apologise to the tribunal.
A. Yes.
Q.The decision of the tribunal was much earlier, I think it's 2020 and your affidavit is in January of this year, so there was quite a period of time between when you would've first read it and when you were making the apology. Is it a genuine apology.
A.Yes it is a genuine apology because during those few years I tried to improve my knowledge in the area, now I understand the seriousness of the matter I did in the past.
Q.But I mean you had already completed your studies when you prepared Exhibit F, so are you saying this is something that you have developed more recently in terms of your understanding.
A.Yeah, all of us need to improve ourself daily basis, yeah, and no-one is perfect, you know.
Q.I have to ask is it the case that you are only apologising in January because it is going to assist with your application for admission.
A.No, I really understand what I did and what they tried to do, that's why I apology of that and it is very embarrassing when I am talking about these things.
When asked whether he knew that it was wrong to give false evidence to a tribunal sitting in a witness box, like he was at the hearing before this Court, he accepted that he knew that it was wrong, but he did so in order to keep his licence. He said he was really under pressure at the time.
The applicant accepted that when working as a migration agent, he cut and pasted from one client’s statement of claim into another client’s and that he did so on multiple occasions. He accepted that it was dishonest and said he was ‘so sorry about that’.
The applicant was then asked about the CPD courses he had undertaken and noted in his affidavit dated 10 January 2023. He explained that he was not a solicitor at the time and had no obligations to complete CPD courses but did so to improve himself and his knowledge. He noted that these courses were specifically in ethics. When asked for an example of what he had learnt from these CPD courses, the applicant said:
Yes, I learned briefly that lawyers have a duty always to be honest about their - open and lawyer, about their client, about the court system because knowing law and the way of using law doesn't mean we can do misdeals or to abuse or break the law. We have to act ethically, always.
He accepted that the things that he did and his practices as a migration agent which resulted in complaints were unethical and that he did not comply with the Code of Conduct in many ways. If he was allowed to practice as a legal practitioner, he was ‘pretty sure’ that he would not make the same mistakes again as he knew the seriousness of those actions and he had also improved himself.
The cross-examination concluded with counsel asking the applicant whether he appreciated the need to ask for help and whether he was willing to undergo supervision for longer than the mandatory two-year period:
Q.Do you appreciate that if you are allowed to practice as a legal practitioner that it is very, very important that if you're unsure about how to do something that you ask for help.
A. Definitely.
Q.If the court decides that you can be admitted as a legal practitioner would you be willing to undergo supervision for a longer period of time than the usual two years.
A. I will accept any decision from this honourable court.
Whether the applicant is a fit and proper person to practise the profession of the law
The legislation does not define the expression ‘fit and proper’. Relevant considerations in cases where a doubt or concern as to an applicant’s fitness arises from previous conduct of the applicant include:[8]
·the protection of the public;
·the character of the applicant;
·the applicant’s understanding of the standard of behaviour required of solicitors;
·the effect upon relationships which must exist between solicitors; and
·the nature and circumstances of what was done.
[8] See Law Society of NSW v Foreman (1994) 34 NSWLR 408.

The Court should have regard to whether it is appropriate for the applicant to be admitted when considering the role of practitioners in the due administration of justice, and whether courts and the profession will be able to have confidence in the honesty and integrity of the applicant as a practitioner.
It is convenient to approach the question of whether the applicant is a fit and proper person by reference to the three matters raised by the Law Society, that is, the applicant’s past practice as a migration agent, his giving false evidence before the AAT and the frankness of his disclosure to the Board in making his application, particularly with reference to the findings of the AAT.
Disclosure to the Board
We generally accept the applicant’s explanation that his failure to disclose sufficient details about the cancellation of his migration agent’s licence and the findings of the AAT was not a deliberate attempt to mislead the Board. When asked to provide further materials, he did so without hesitation. We accept that the ongoing lack of disclosure was based on a misunderstanding of his obligations and of the materials to which the Board would have access to in any event.
While we accept, then, that these failures were not the product of dishonesty, they cause us to doubt the applicant’s capacity to have understood the Disclosure Guidelines. The applicant confirmed in evidence that he had read them. He has, with the benefit of advice and representation, shown a better understanding of his disclosure obligations before this Court. That he has done so only at this late stage, on advice, when the question of disclosure was explicitly in issue, gives some cause for concern about the depth of his understanding of the obligation.
Were this lack of disclosure the only matter of concern, it would likely not warrant a conclusion that the applicant is not a fit and proper person. In Re Application for Admission as a Legal Practitioner,[9] an applicant had not given a full account of offending conduct he had committed some years earlier. The offending conduct, which consisted of larceny and receiving items of clothing, and shoplifting, had occurred over five years earlier. The applicant did not have the Police Apprehension Report (‘PAR’) to assist him.
[9] (2004) 90 SASR 551.
Doyle CJ considered that the offending conduct was a product of immaturity and difficulties the applicant was experiencing at the time, and that in all the circumstances it was not an obstacle to admission.[10] On the applicant’s failure to make full disclosure of the circumstances of the offending, rather than just the fact of the convictions, Doyle CJ accepted that the applicant did not have the PAR but that, nonetheless, it was troubling that he did not disclose details such as the imposition of a suspended sentence of imprisonment. His Honour said:[11]
I am troubled not just by the failure to think more carefully about what should have been disclosed. I am troubled by the fact that this occurred in November 2002, at which stage he had been working for some time, and should have had a better understanding of what would be required of an applicant for admission in these circumstances.
However, in the end I am again prepared to conclude that this matter does not prevent me finding that the applicant is a fit person to be admitted. I do so on the basis that the non-disclosure is attributable to an error of judgment, and to some extent to immaturity, and not to a deliberate attempt to mislead the Board.
[10] Re Application for Admission as a Legal Practitioner (2004) 90 SASR 551 at [32] (Doyle CJ, Perry and White JJ agreeing).
[11] Re Application for Admissionas a Legal Practitioner (2004) 90 SASR 551 at [34]-[35] (Doyle CJ, Perry and White JJ agreeing).
In the present case, we are similarly prepared to accept that the applicant’s non‑disclosure was not an attempt to mislead the Board deliberately. However, we are left with some concern about the applicant’s understanding of obligations of disclosure. That understanding is a critical capacity of a legal practitioner.
We are also concerned that the applicant’s failure to make sufficient disclosure about the reasons for the cancellation of his licence and the findings of the AAT demonstrates a lack of insight into their gravity. He has, with the benefit of advice and representation, come to an understanding of their seriousness. That he has done so only at this late stage and in the present circumstances gives reason to expect, at the very least, that his appointment would undermine public confidence in the legal profession.[12]
[12] Legal Profession Conduct Commissioner v Cleland [2021] SASCA 10 [42]-[44], and see also the applications to be readmitted, where the evaluation of the character requirements for admission were undertaken: In Re Vadasz [1988] SASC 1044; (1988) 146 LSJS 455; Re Harrison: Application for Readmission (2002) 84 SASR 120 and In the matter ofClaire Amy Morel [2015] SASCFC 20.
The applicant’s practice as a migration agent
The various failures of the applicant to comply with the Migration Agents Code are failures that speak directly to his character and his ability to command public confidence as a legal practitioner. Professional misconduct has a direct bearing on the question of fitness to practise. Personal misconduct may on occasion have a less direct impact,[13] although it will always depend on all the circumstances.[14] Here, the applicant’s misconduct as a migration agent, being in a professional capacity sharing some of the responsibilities of a legal practitioner, is highly relevant. In this regard, the applicant’s conduct was egregious. The AAT Deputy President found:[15]
The applicant has failed to conduct himself in accordance with the proper standards of a registered migration agent. I do not consider that he possesses the minimum attributes and abilities that a person must demonstrate to perform as a registered migration agent. The applicant has engaged in conduct that breaches the Code in relation to almost all areas of practice – administrative functions; financial obligations; consumer protection obligations; dealings with the authority; dealings with his clients; and the need to act in the best interest of the client. Breaches of the Code were often repeated, and the applicant showed a lack of insight into his conduct by not making appropriate concessions and by maintaining a defence to his actions even where not plausibly available.
[13] Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 290 (Fullagar J).
[14] See Re Jenner [2007] SASC 263 at [18] (Debelle J); New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 at [35] (Spigelman CJ).
[15] Raygan and Migration Agents Registration Authority [2020] AATA 1164 at [65].
These professional failings occurred in circumstances where the applicant held a number of professional qualifications. They are not explicable on the basis of immaturity or lack of life experience. The applicant’s conduct, especially that of copying and pasting claims into different applications, had the capacity to expose vulnerable clients to unwarranted adverse outcomes.
It is relevant that MARA cancelled the applicant’s registration as a migration agent on 11 May 2018. That is, five years have passed. The capacity of the applicant to have reformed thanks to his subsequent legal education and the passage of time are the only things capable of ameliorating the impact of this conduct on the applicant’s fitness and propriety to be a legal practitioner. Those matters must be considered in the further context of the applicant’s conduct before the AAT.
The findings of the AAT
The applicant’s lies before the AAT are of the greatest concern. These were said and maintained on oath, in circumstances where it was the applicant who had brought the appeal in an effort to regain his registration as a migration agent.
Senior Counsel for the applicant submitted that these lies were borne out of a desperation on the part of the applicant to save his livelihood. The maintenance of the lies, in the face of incontrovertible evidence before the AAT that they were lies, in his submission constituted sheer stupidity. In this regard, these lies should be contrasted with what might be described as calculated or devious lies. Having been discovered in his lies, he told further lies to meet the challenge. This was hardly a premeditated course of conduct.
We readily accept that the applicant’s lies in the AAT were not at all sophisticated. However, they formed the foundation of his appeal. The applicant persisted in these lies, in a futile attempt to recover the position. That the applicant was prepared to act in this way, with such dishonesty in circumstances of desperation, still speaks heavily against his character.
As senior counsel submitted, however, the ultimate question is whether this Court is satisfied that the passage of time and efforts of the applicant since the AAT proceedings are such as to warrant the conclusion that the applicant is, now, a fit and proper person for admission as a practitioner.
The applicant’s progress
The AAT delivered its decision on 6 May 2020. The AAT hearing, during which the applicant persisted in his lies, occurred on 10 and 11 September 2019. The applicant commenced study for a Bachelor of Laws in 2020. It is since then that he has engaged in the legal studies described above and made a point on focusing on the study of ethics. We are prepared to conclude that he has a greater insight now into the nature of his behaviour and that he has worked to improve his character. Having said that, we remain concerned that his lack of comprehension of his obligations of disclosure to the Board on this application indicates that this understanding remains, to some degree, superficial. His assurances have come, finally, only with the benefit of legal advice and representation.
The historical fact of the applicant’s dishonesty and misconduct in a professional capacity between 2016 and 2019 remains relevant to the effect that his admission would have on public confidence in the administration of justice. In Re Application for Admission as a Legal Practitioner[16] where, it is to be recalled, the applicant had engaged in dishonesty offences when young, Doyle CJ said:[17]
I turn now to the question of public confidence in the administration of justice and in the legal profession. As I said earlier, it is conceivable that the court might be satisfied that an applicant for admission has changed his or her ways, but might at the same time take the view that earlier misconduct was so serious that public confidence in the administration of justice and in the profession would be shaken were the public to learn that a person with the applicant’s record had been admitted as a practitioner.
[16] (2004) 90 SASR 551.
[17] Re Application for Admission as a Legal Practitioner (2004) 90 SASR 551 at [36].
In the present case, we do not consider that an ordinary member of the public would accept that the applicant’s conduct, which occurred in a professional context when he was aged in his 40s, can be put behind the applicant in only the time that it has taken him to obtain a law degree. It is one thing to have undertaken the necessary studies and learned, explicitly, the obligations attaching to a legal practitioner. It is another for the public to have confidence that the applicant not only understands these lessons as an intellectual exercise, but is also capable of putting them into practice, as part of his ethical identity, in the pressured environment of legal practice.
This does not mean that the applicant can never be regarded as a fit and proper person to be admitted as a legal practitioner. As already indicated, we are satisfied that the applicant has embarked in good faith on reforming his character. There is no reason why the necessary public confidence cannot be earned outside of legal practice. However, the applicant’s transgressions are too recent, and the assurances of his understanding of his obligations too tenuous, especially in light of his continued lack of understanding of his disclosure obligations, for this Court to be satisfied that he is presently a fit and proper person for admission.
This conclusion does not prevent the applicant from applying for admission again, when he has had the opportunity to consolidate his understanding and put the question of his fitness and propriety for admission on a firmer, more demonstrable footing.
Conclusion
For these reasons, we are not satisfied that the applicant is a fit and proper person to be admitted as a practitioner of this Court at this time. We refuse the application.