S M Senarath B Chanaka Senanayake and Migration Agents Registration Authority
[2020] AATA 116
•4 February 2020
S M Senarath B Chanaka Senanayake and Migration Agents Registration Authority [2020] AATA 116 (4 February 2020)
Division:GENERAL DIVISION
File Number: 2017/6023
Re:S M Senarath B Chanaka Senanayake
APPLICANT
AndMigration Agents Registration Authority
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:4 February 2020
Place:Sydney
The reviewable decision made on 9 October 2017, being the decision of the Migration Agents Registration Authority to cancel the registration of Mr Senanayake as a migration agent under section 303 of the Migration Act 1958 (Cth), is affirmed.
...........................[sgd].............................................
Deputy President J W Constance
CATCHWORDS
MIGRATION AGENTS REGISTRATION - review of decision to cancel registration - where complaint made in relation to applicant's conduct - false and misleading protection visa application - duplication of claims made in applications lodged previously by applicant on behalf of former clients - whether applicant is a person of integrity - whether applicant breached the Code of Conduct for registered migration agents - decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Australian Broadcasting Tribunal v Bond (1990)170 CLR 321
Briginshaw v Briginshaw (1938) 60 CLR 336
Mottaghi and Migration Agents Registration Authority (2007) 98 ALD 424
Peng and Department of Immigration and Multicultural Affairs [1996] AATA 12
Taylor v Law Society of New South Wales [2017] NSWSC 948The Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211
SECONDARY MATERIALS
Code of Conduct for registered migration agents, 18 April 2017
REASONS FOR DECISION
4 FEBRUARY 2020
INTRODUCTION
In 2010 Mr Senanayake was registered as a migration agent in accordance with the Migration Act 1958 (Cth). For the next seven years he practised as both a solicitor and registered migration agent in New South Wales.
On 9 October 2017, the Migration Agents Registration Authority cancelled Mr Senanayake's registration.[1] In these reasons I shall refer to the decision to cancel his registration as “the reviewable decision”. Under the Act, a person whose registration has been cancelled must not be registered as a migration agent within five years of the cancellation.[2]
[1] The power to cancel registration is provided by section 303 of the Act.
[2] Section 292 of the Act.
The cancellation followed findings by the Authority that Mr Senanayake:
ois not a person of integrity, or is otherwise not a fit and proper person to give immigration assistance; and
ohas not complied with clauses of the Code.[3]
[3] Exhibit R1 at 168.
Mr Senanayake has exercised his right to seek a review of the reviewable decision by the Tribunal.[4]
[4] Section 306 of the Act provides the right to seek review of a cancellation decision made by the Authority.
For the reasons which follow, the reviewable decision will be affirmed.
BACKGROUND
Mr Senanayake has practised as a solicitor since 2004. His initial registration as a migration agent took place on 18 March 2010. This registration was renewed annually up to and including registration on 1 March 2016.
On 3 November 2016, the Authority received a complaint about Mr Senanayake's conduct as a migration agent.[5] The complaint was made by Mr M and Ms Z, former clients of Mr Senanayake.
[5] Exhibit R1 at 265.
On 14 February 2017, the Authority sent Mr Senanayake a notice under section 308 of the Act.[6] The notice summarised the complaint made by Mr M and Ms Z and informed Mr Senanayake that it raised “possible issues”[7] under a number of specified clauses of the Code of Conduct for registered migration agents.[8] It also required Mr Senanayake to respond to several questions in relation to the matters raised by Mr M and Ms Z and to provide their complete client file to the Authority.
[6] Exhibit R1 at 243.
[7] Exhibit R1 at 244.
[8] The Code is provided for by section 314 of the Act.
Mr Senanayake provided his response to the notice in a statutory declaration made 20 March 2017.[9]
[9] Exhibit R1 at 203.
During its investigation of the complaint, the Authority identified 10 applications for a protection visa and supporting documents which were significantly similar in wording. These applications were made by clients of Mr Senanayake.
On 2 June 2017, the Authority instigated an own-motion complaint in relation to these applications which had been lodged with the then Department of Immigration and Border Protection.
On 5 July 2017, the Authority sent Mr Senanayake a notice under subsection 309(2) of the Act.[10] It notified Mr Senanayake that the Authority was considering cautioning him or suspending or cancelling his registration. The notice referred to the allegations contained in the complaint lodged by Mr M and Ms Z and in the Authority’s own-motion complaint. In relation to the latter, it noted that other applications lodged with the Department on behalf of clients of Mr Senanayake “raise concerns of potentially duplicated and template based protection claims”.[11]
[10] Exhibit R4.
[11] Exhibit R4 at 4.
On 9 October 2017, the Authority cancelled Mr Senanayake's registration as a migration agent.
LEGISLATION
Subsection 303(1) provides, in part:
The Migration Agents Registration Authority may:
(a) cancel the registration of a registered migration agent by removing his or her name from the register; or
(b) suspend his or her registration; or
(c) caution him or her
if it becomes satisfied that:
…
(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.
Subsection 309(2) of the Act provides:
If the Migration Agents Registration Authority is considering making a decision under section 303 to cancel or suspend a registered migration agent’s registration, or to caution such an agent, it must inform the agent of the fact and the reasons for it and invite the agent to make a submission on the matter.
Subsection 304(1) provides:
If the Migration Agents Registration Authority suspends the registration of a registered migration agent under section 303, the Migration Agents Registration Authority may:
(a) set a period of suspension of not more than 5 years; or
(b) set a condition or conditions for the lifting of the suspension.
Section 314 provides:
(1) The regulations may prescribe a Code of Conduct for migration agents.
(2)A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.
The Code of Conduct for registered migration agents referred to above has been prescribed in accordance with section 314.
ISSUES FOR DETERMINATION
The following questions arise:
(1) Am I satisfied that Mr Senanayake has not complied with the Code?
(2)Am I satisfied that Mr Senanayake is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance?
(3)If the answer to either or both of the above questions is “yes”, what is the appropriate sanction (if any) to be imposed under section 303 of the Act?
EVIDENCE AND FINDINGS OF FACT
Evidence of Mr M
Mr M provided a statutory declaration dated 15 January 2019 for the purpose of these proceedings.[12] He also relied upon the contents of a statutory declaration made 12 October 2015.[13] He gave evidence at the hearing.
[12] Exhibit R2.
[13] Exhibit R3 at 137.
Mr M was born in Zimbabwe and is a citizen of that country. He is 46 years old.
Mr M first entered Australia in January 2007 as the holder of a Long-Stay Temporary Business (subclass 457) visa. In March 2009 he commenced the process of applying for permanent residency. As part of that application he was required to undergo medical tests, which determined that he was HIV positive. He received advice from his migration agent that his HIV status would prevent him being granted permanent residency.
In relation to the state of his knowledge at the time as to his obligation to disclose his medical condition, Mr M said in his statutory declaration:
I received my HIV diagnosis at Medibank Health Solutions; I was referred by them to the Albion Centre where I saw Dr Jeffery Post who is an HIV specialist. He told me that I must not lie to the Department of Immigration about my HIV status, or withhold that information, because it would be discovered if I did. I also knew that the Department of Immigration would have been aware of my HIV status as I had undergone the visa medicals and been diagnosed with HIV by Medibank Health Solutions. So far as I am aware, my HIV status was automatically reported by Medibank Health Solutions to the Department following my diagnosis.[14]
[14] Exhibit R2 at [5].
In December 2010, Mr M applied for a further subclass 457 visa. In his application he disclosed that he had been diagnosed with HIV in April 2009.[15]
[15] Exhibit R2 at 6; see also Annexure A.
Mr M is married to Ms Z,[16] who has also been diagnosed with HIV. Mr M understands that his wife’s condition was diagnosed in approximately March 2015. He did not tell his wife that he had HIV until about October 2014 as he was embarrassed and found it difficult to reveal his condition to her.
[16] They married in 2012; Exhibit R3 at 138.
Mr M first met Mr Senanayake towards the end of 2012. At the time, Ms Z was seeking a visa as a dependent applicant of Mr M. Mr M did not inform Mr Senanayake at that time of his HIV status.
Mr M's visa was due to expire in December 2014. Mr M sought advice from Mr Senanayake as to other visas for which he may have been eligible. He was feeling very stressed at the time as he had been informed that his employer was not prepared to continue to sponsor him for the issue of a subclass 457 visa. Further, his employer had informed him that, based on advice received from the employer’s migration agent, there was no permanent visa option available to him. At the time, Mr M was unaware that this was inaccurate advice.
Mr Senanayake suggested to Mr M that he apply for permanent residency. Mr M then told Mr Senanayake that he was HIV positive. Mr Senanayake advised him that his only option was to apply for a protection visa and that, unless he informed the Department that he was involved with opposition political parties in Zimbabwe he would not obtain such a visa.[17] Mr M accepted this advice.
[17] Transcript, 24 July 2019, at 28.
Mr M provided the following description of the circumstances leading up to his applying for a protection visa:
Mr Senanayake asked me whether there was a war in Zimbabwe. I told him there was not. He replied that the Department would probably grant my application if there was a war, but that I would not be able to obtain a protection visa because I had HIV. I told Mr Senanayake that I was concerned about how I would be able to live in Zimbabwe with HIV, and that it would be difficult for me to get a job or proper medical treatment. Mr Senanayake then asked me whether I had any political affiliation in Zimbabwe. Both [my wife] and I told Mr Senanayake that we had had no involvement in politics in Zimbabwe. At this stage Mr Senanayake supplied [my wife] and I with the protection visa application forms to complete.
About four days later [my wife] and I returned to Mr Senanayake's office with the forms partially completed. I informed Mr Senanayake that I needed some help with some parts of the form and that I had some questions, including about my travel history and what to include, and also about the questions on why I feared returning to Zimbabwe. Mr Senanayake informed me that it was not necessary to include all the information, including all of my travel history.
Mr Senanayake insisted that we should go ahead with the political claims. When I told Mr Senanayake that we had no political claims, he gave us a protection visa application that was made by an Irish national and told me to copy the information from that application form into the questions about why I feared returning to Zimbabwe. I was concerned about what would happen if the Department called us for an interview about our claims, but Mr Senanayake said that he would make up a statement for the interview and he would come with us and that it would be OK.
I cannot remember the name of the man whose application I was provided. Mr Senanayake told me to copy that application, and I did; he informed [my wife] and I that [my wife] did not need to write her own reasons for why she feared returning to Zimbabwe.[18]
[18] Exhibit R2 at [11]-[14].
Mr M returned to Mr Senanayake's office on 12 December 2014. Mr Senanayake provided him with a document which he requested Mr M to sign. Omitting formal parts, the first page of the document read:
1. This is a statement made with regards to my application for Protection Visa; AND
2. That I made this Protection Visa Application due to fear of persecution if I go back to my country due to my political opinion.
3. That during the period 2003 to 2007, I was heavily involved with active politics with the opposition and fought for freedom from the current dictatorship of Robert Mugabe.
4. During this period we started getting threats from unknown figures attached to the government hierarchies.
5. That, I experienced a lot of death threats and I was subject to emotional and physical harassments:
6. I could not make any complain to the authorities or to the police, because my life was under threat, until I moved out:
7. I am making this declaration to emphasise that, I was subject to persecution due my political opinion and cannot go back to my country of Origin.
8. I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declaration Act 1959, and…[19]
(Errors in original.)
[19] Exhibit R2, Annexure B.
On the second page of the document, above the provisions for the signature of the declarant and witness, the following words appeared:
I believe that the statements in this declaration are true in every particular.[20]
[20] Exhibit R2, Annexure B.
Mr M signed the second page of the statutory declaration on 12 December 2014. At the time of signing the document, Mr M did not see the first page and he was unaware of its contents. Mr Senanayake did not explain to him the nature of the document that he was signing, nor the consequences of making a false statutory declaration.
At the time Mr M signed the statutory declaration, Mr Senanayake requested Mr M sign a blank piece of paper, which he did. Mr Senanayake requested that Mr M sign in a particular place and advised him that he (Mr Senanayake) would fill out the rest of the contents of the document later so that he could provide relevant information to the Department. Mr M was concerned about signing in these circumstances but was assured by Mr Senanayake that all was in order. He told Mr M that he was a migration lawyer as well as a migration agent and that Mr M should trust him.
Mr M annexed to his statutory declaration a copy of a letter dated 12 December 2014. It was printed on the letterhead of Mr Senanayake's legal firm. It was addressed to Mr M and was signed by Mr Senanayake. Omitting formal parts the letter read:
PROTECTION VISA APPLICATION
Please note that after careful consideration of the claims and facts that you have mentioned on the application, we believe the success of the application is highly unlikely.
Therefore we advice [sic] you to refrain from filing this application[21]
[21] Exhibit R2, Annexure C.
Under Mr Senanayake's signature appears Mr M's name and the words “Please Proceed” followed by Mr M's signature. Mr M's name and the words “Please Proceed” were handwritten by him at the time he signed the otherwise blank piece of paper.
Mr M did not receive the letter of advice from Mr Senanayake. He was provided with a copy by the Authority after the commencement of the investigation into Mr Senanayake's conduct.
Sometime after the protection visa application was lodged with the Department, Mr Senanayake telephoned Mr M and advised him that he should proceed with a permanent residency application. Mr M understood from this conversation that the application for the protection visa had been made to buy time with the Department. It was only at this stage that Mr Senanayake advised Mr M that his protection visa application was unlikely to be successful. Mr M advised Mr Senanayake that he was not interested in taking the course Mr Senanayake suggested.
Following this conversation, and having been informed that the advice given to him by Mr Senanayake may not be correct, Mr M sought advice from the HIV/Aids Legal Centre. He was advised that he could apply for a visa on the basis of his medical condition. Mr M then informed Mr Senanayake that he no longer required his services.
During the time that Mr M held a subclass 457 visa, he travelled between Australia and Zimbabwe regularly. Once he was granted a protection visa, the terms of the visa meant he was not able to travel to Zimbabwe unless given permission to do so by the Department of Home Affairs. He travelled to Zimbabwe just before Easter in 2018, having been granted permission to do so.
Evidence of Mr Senanayake
In addition to giving oral evidence at the hearing, Mr Senanayake confirmed the accuracy of the statements he made in a statutory declaration on 20 March 2017[22] and the contents of a letter dated 15 August 2017[23] which he sent to the Authority. This statutory declaration was made in response to the notice issued by the Authority to Mr Senanayake under section 308 of the Act.
[22] Exhibit R1 at 122.
[23] Exhibit A1.
In September 2012, Mr Senanayake was instructed by Mr M and Ms Z to act for them in adding Ms Z as a dependant on Mr M’s existing subclass 457 visa. Mr Senanayake made the necessary application on their behalf and subsequently Ms Z migrated to Australia.
On 5 December 2014, Mr M attended Mr Senanayake's office and instructed Mr Senanayake to act for him in obtaining the necessary visa to allow him to remain in Australia as his current visa was due to expire in a matter of days. In accordance with his instructions, Mr Senanayake made representations to Mr M's employer seeking that it continue to sponsor Mr M. These representations were unsuccessful.
On 8 December 2014, Mr M again consulted Mr Senanayake and requested he apply on his behalf for a temporary protection visa. Mr Senanayake informed Mr M that he could not agree to do this until he had considered his claims. Mr M responded: “Chanaka, if you cannot file this, I will find another lawyer to do this. You got to understand that we cannot go back to Zimbabwe within a week.”[24] Mr Senanayake then provided Mr M with the necessary forms to apply for a temporary protection visa.
[24] Exhibit R1 at 205.
On 12 December 2014, Mr M and Ms Z attended Mr Senanayake's office and delivered to him the completed forms. Ms Z confirmed that she was not making a separate claim. Mr Senanayake requested that they return to the office in about two hours’ time.
After he had perused the completed forms, and when Mr M and Ms Z returned to his office, Mr Senanayake gave Mr M a letter dated 12 December 2014 and signed by Mr Senanayake. Omitting formal parts the letter stated:
PROTECTION VISA APPLICATION
Please note that after careful consideration of the claims and facts that you have mentioned on the application, we believe the success of the application is highly unlikely.
Therefore we advice [sic] you to refrain from filing this application[25]
[25] Exhibit R1 at 239.
Upon receipt of this letter, Mr M and Ms Z “begged”[26] Mr Senanayake to file the forms on their behalf. Mr M then wrote his name and the words “Please Proceed” on the bottom of the letter, followed by his signature.[27] He returned the letter to Mr Senanayake.
[26] Exhibit R1 at 205.
[27] Exhibit R1 at 239.
As by this time it was the last day on which Mr M could lodge a visa application and remain in Australia, Mr Senanayake had the statutory declaration in support of the application prepared. Mr M signed the statutory declaration and Mr Senanayake witnessed his signature. Mr Senanayake then lodged the application and statutory declaration with the Department on behalf of Mr M.
Mr Senanayake gave evidence as to his usual practice in carrying out instructions from a client to make a protection visa application.[28] I will refer to this evidence later in these reasons. He said that he followed the same procedure in every application for a protection visa.[29]
[28] Transcript, 25 July 2019, at 101ff.
[29] Transcript, 25 July 2019, at 141.
Mr Senanayake denied each of the following allegations put to him by the Authority’s solicitor:
·that he (Mr Senanayake) suggested to Mr M that he should file an application for a protection visa;
·that Mr M told him that he was afraid to go back to Zimbabwe because he had HIV;
·that he told Mr M that an application based on his HIV would not work and there were other claims he should make;
·that he provided Mr M with a protection visa application made by another client;
·that Mr M and Ms Z told him that they had AIDS at the meeting on 8 December 2014.[30]
[30] Transcript, 25 July 2019, at 141.
Findings of fact
Having considered the evidence of Mr Senanayake and Mr M, together with the documentary evidence to which I have referred, I prefer the evidence of Mr M to that of Mr Senanayake. I accept the evidence of Mr M and make findings of fact in accordance with his evidence.
Mr Senanayake argued that prior to Mr M giving him instructions to act for him, Mr M had held senior management positions in various businesses and it was improbable that he would sign the second page of a statutory declaration without seeing the first page, and that he would sign a blank sheet of paper, only adding the words “Please Proceed”. This evidence has caused me to consider Mr M's evidence carefully, but I accept that Mr M was under considerable pressure to progress his application at the time and that he trusted Mr Senanayake as his solicitor as well as his migration agent.
There was an inconsistency in Mr M's evidence as to the first occasion he saw the first page of the statutory declaration dated 15 December 2014, lodged with the Department by Mr Senanayake on his behalf. At the hearing Mr M said that he became aware of the claims set out on the first page of that document when he was shown it by a solicitor of the HIV/Aids Legal Centre in 2015.[31] In his statutory declaration made 15 January 2019, Mr M said that he did not see the first page until he was shown it by the Authority’s solicitor at a later time.[32] I accept Mr M's explanation that this was an innocent error and that he first saw the first page in 2015 when shown it during his consultations at the HIV/Aids Legal Centre.
[31] Transcript, 24 July 2019, at 53.
[32] Exhibit R2 at [15].
On the other hand, there were aspects of Mr Senanayake's evidence which I found unsatisfactory.
Mr Senanayake had ample opportunity to produce his office file held in relation to Mr M's instructions, but he did not do so. His evidence was unclear as to whether such a file was in paper or electronic form. Further, he did not satisfactorily explain the reason why the file was not produced.[33] It is reasonable to expect that when acting as a solicitor as well as a migration agent, Mr Senanayake would have kept file notes of his discussions with Mr M during their meetings in December 2014. Mr Senanayake said that he kept a note of the conference with Mr M on 8 December 2014 on his file.[34] He did not produce the file or the note to the Tribunal or to the Authority.[35]
[33] Transcript, 25 July 2019, at 173.
[34] Transcript, 25 July 2019, at 140.
[35] Transcript, 25 July 2019, at 151.
At times Mr Senanayake was evasive when questioned by the solicitor for the Authority and by me.[36] He repeatedly gave answers which were not responsive to the questions asked of him.[37] On occasions he refused to respond to questions put to him in cross-examination without proper reason for so refusing.[38]
[36] For example, see transcript, 25 July 2019, at 104,135,136-137 and 144-145.
[37] See transcript, 25 July 2019, at 119.
[38] Transcript, 25 July 2019, at 115 and 120.
Further, Mr Senanayake was reluctant to accept conclusions which clearly arose from undisputed evidence. By way of example, Mr Senanayake was asked about a statutory declaration made by one of his clients in support of their application for a protection visa.[39] The signature to the statutory declaration was witnessed by him. A paragraph of the document read “I am making this declaration to emphasize that”[40] without more. It was clearly incomplete and the date on which it was made was left blank. Mr Senanayake maintained that he was unsure whether the document was “half-filled or not.”[41] When asked to assume that the document was not completed Mr Senanayake denied that this was so.[42]
[39] Exhibit R1 at 41.
[40] Exhibit R1 at 41.
[41] Transcript, 25 July 2019, at 114.
[42] Transcript, 25 July 2019, at 115.
CONTENTIONS OF THE AUTHORITY
It was argued on behalf of the Authority that Mr Senanayake breached the Code in several respects:[43]
[43] Respondent’s Statement of Facts, Issues and Contentions dated 18 January 2019 at [25]-[37].
(a)he facilitated the making of statements in Mr M's visa application to the Department that he knew to be false;
(b)he “failed to identify that the complainants’ HIV status, and their fears regarding their ability to subsist and access medical treatment in Zimbabwe, comprised a basis on which they could seek to engage Australia’s protection obligations”;[44]
(c)he did not have due regard to Mr M's dependence upon his knowledge and experience;
(d)he did not act in accordance with his duty to preserve the confidentiality of his clients;
(e)he did not provide to the complainants “confirmation of their instructions in writing, nor advice as to the prospects of success of their applications for a protection visa”;[45]
(f)he encouraged the complainants to make a vexatious and grossly unfounded application;
(g)he sought to mislead or deceive the Authority in his communication with it;
(h)he submitted to the Department other visa applications attaching statutory declarations as to claims to fear harm in nearly identical terms; and
(i)his conduct fell short of the standard expected of a registered migration agent.
[44] Respondent’s Statement of Facts, Issues and Contentions dated 18 January 2019 at [28].
[45] Respondent’s Statement of Facts, Issues and Contentions dated 18 January 2019 at [33].
CONSIDERATION
It is alleged by the Authority that Mr Senanayake has engaged in serious misconduct. Findings that he has engaged in such conduct are likely to have grave consequences. In considering the evidence and reaching the conclusions I have reached, I have taken into account the principles set out by Dixon J in Briginshaw v Briginshaw:[46]
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indifferent testimony, or indirect inferences.
[46] (1938) 60 CLR 336 at 361-2.
Issue 1: Am I satisfied that Mr Senanayake has not complied with the Code?
Did Mr Senanayake facilitate the making of statements in Mr M's visa application to the Department, which he knew to be false, in breach of clause 2.9?
The Authority alleged that:
(i)Mr Senanayake provided Mr M with a copy of the application of an Irish national for the purpose of preparing a claim which would mislead the Department; and
(ii)he drafted a statutory declaration setting out concocted claims that his clients feared harm by reason of their political views and facilitated the submission of this document to the Department.
Clause 2.9 of the Code provides:
A registered migration agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.
On the basis of the evidence of Mr M, I am satisfied that Mr Senanayake did provide Mr M with a copy of an application prepared for another client with instructions to use that application as a guide to preparing his statement in relation to his fear of harm, owing to his political views, should he return to Zimbabwe. I am satisfied further that Mr Senanayake did this with the intention of having an application submitted to the Department which he knew would be misleading.
I am satisfied that Mr Senanayake approved the draft statutory declaration which set out representations in relation to Mr M's alleged fear of harm and provided it to his client for signature. He witnessed Mr M's signature on the second page of the document and then submitted this document to the Department on behalf of Mr M.
In reaching these conclusions, I have taken into account Mr Senanayake's denial that he provided Mr M with any documents prepared on behalf of other clients. However, the similarity of the wording of Mr M's declaration and those lodged on behalf of other clients by Mr Senanayake causes me to conclude that Mr M's version of these events should be preferred. I do not accept that the similarity can be explained by Mr Senanayake's use of office precedents.
Copies of six statutory declarations lodged with the Department by Mr Senanayake on behalf of other clients are in evidence.[47] They feature similar wording to that in Mr M's declaration set out in paragraph 30 of these reasons. In particular, one declaration made in February 2003 includes the following:
2. That I made this Protection Visa Application due to fear of persecution if I go back to my country due to my political opinion.
3. That during the period 2006 to 2008, I was heavily involved with politics with my friends in Ireland.
4. During this period we started getting threats over the phone from unknown figures attached to the opposition political figures.
5. I could not make any complain [sic] to the management or to the police, because my life was on the line.[48]
[47] Exhibit R1 at 41-50.
[48] Exhibit R1 at 41.
Mr Senanayake gave evidence as to the usual practice in his office in relation to protection visa applications at the time he took instructions from Mr M. He said that the client would be provided with the prescribed application form and asked to complete it and return it to his office. Mr Senanayake would consider the information in the application and advise the client of his or her prospects of success. A member of Mr Senanayake's staff would then draft the supporting statutory declaration summarising the information in the application.[49] Nothing would be included in the statutory declaration which was not in the application.[50]
[49] Transcript, 25 July 2019, at 146.
[50] Transcript, 25 July 2019, at 101-102.
Mr Senanayake was cross-examined at length as to his usual practice when acting for clients, such as Mr M, in respect of whom he had formed the view that they did not have a valid claim for a protection visa. He gave the following evidence as to his general practice in advising protection visa applicants:
What would you tell them? --- I can’t tell them reasons. I can give the criteria for the PPV [Permanent Protection Visa] applications according to the Department of Immigration website, and, “This is the criteria. If you’re having issues, would – go home. Take the application form. Write down whatever – everything you want to say. Then I will (indistinct) that this application is going to success or not”. So then I am issuing the letter [of advice that the client should not proceed with the application), and still – still they are pushing us. Then I asked someone in my office or whatever, “Put what they wrote on the application to a declaration and file it”.
…
Do you think a competent and diligent migration agent would have proofread this statutory declaration to ensure it was free of typographic errors before submitting it to the Department? Yes or no? --- We are checking according to the application, what they have written on the application. Always I advise everyone, “Don’t add anything. Just copy what they have written,” because it’s not going to success anyway.[51]
Mr Senanayake said that this procedure was followed when Mr M's statutory declaration was prepared.[52]
[51] Transcript, 25 July 2019, at 123-124.
[52] Transcript, 25 July 2019, at 144.
Mr Senanayake was referred to the paragraph in Mr M’s statutory declaration made 12 December 2014 which reads:
3. That during the period 2003 to 2007, I was heavily involved with active politics with the opposition and fought for freedom from the current dictatorship of Robert Mugabe.
The information provided by Mr M in his application completed at the request of Mr Senanayake did not contain this information.[53]
[53] Exhibit R1 at 25-28.
When asked how the information in paragraph 3 of Mr M’s statutory declaration came to be included, Mr Senanayake said that Mr M had requested the person who prepared the declaration to amend it.[54] Mr Senanayake had not previously suggested that this had occurred. Mr Senanayake claimed to have made notes of his conference with Mr M.[55] Again, he did not produce those notes to the Tribunal despite being afforded the opportunity to do so.
[54] Transcript, 25 July 2019, at 145.
[55] Transcript, 25 July 2019, at 140.
Of the six statutory declarations prepared for other clients, five consist of more than one page. All five are signed by the declarants on each page. Mr Senanayake did not satisfactorily explain how it came about that he witnessed Mr M's signature on his statutory declaration without ensuring that he signed both pages. He said that he was aware that it is necessary that a declarant sign both pages of a two-page document.[56]
[56] Transcript, 25 July 2019, at 145.
I accept the evidence of Mr M that when he signed the statutory declaration in support of his application, Mr Senanayake did not show him the first page of that document. I am satisfied that Mr Senanayake did this so as to conceal from Mr M the content of the declaration he was making in support of his application.
I am satisfied that Mr M's application and statutory declaration were prepared in the circumstances described by Mr M. I accept his evidence.
I find that Mr Senanayake's conduct was in breach of clause 2.9 of the Code.
Did Mr Senanayake fail to identify that the complainants’ HIV status, and their fears regarding their ability to subsist and access medical treatment in Zimbabwe, comprised a basis on which they could seek to engage Australia’s protection obligations?
Based on the evidence of Mr M, I am satisfied Mr Senanayake advised him that he would not be able to obtain a protection visa based on his HIV status and that Mr Senanayake encouraged him to proceed with a claim based on an alleged fear of political persecution.
Clause 2.1 of the Code provides, in part:
A registered migration agent must always:
(a) act in accordance with the law … and the legitimate interest of his or her client; and
(b) deal with his or her client competently, diligently and fairly.
I find that, in his dealings with Mr M, Mr Senanayake failed to meet the obligations imposed on him by clause 2.1.
Clause 2.3 of the Code provides:
A registered migration agent’s professionalism must be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.
I find that by failing to properly advise Mr M of his prospects of success if he applied for a protection visa based on his fears relating to his HIV status, Mr Senanayake breached the provisions of clause 2.3.
Did Mr Senanayake have due regard to Mr M's dependence upon his knowledge and experience in relation to migration matters?
On the basis of the evidence of Mr M, I am satisfied that Mr Senanayake requested Mr M to sign the second page of his statutory declaration made 12 December 2014 without showing him the first page. Mr M complied with this request. I am satisfied also that Mr Senanayake did not advise Mr M that it is an offence to knowingly make a false statutory declaration.
In answer to questions by Mr Senanayake, Mr M agreed that as a software consultant he was responsible for implementing human resources and payroll solutions. This involved communicating with particular teams of employees. It required him to maintain up-to-date knowledge of the countries in which his employer was operating, including relevant changes in applicable laws. He has approximately 28 years of experience in the field.[57]
[57] Transcript, 24 July 2019, at 35-36.
I accept Mr Senanayake's submission that Mr M is a person experienced in his field who has held positions requiring consideration of some legal issues.
Clause 2.4 of the Code provides:
A registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.
Even taking into account Mr M's experience and training in the business world, in engaging Mr Senanayake as his migration agent he was clearly in a situation in which he could reasonably expect to be able to rely upon Mr Senanayake's experience and expertise in migration matters. In addition, as Mr Senanayake informed Mr M during one of their meetings, Mr Senanayake was a qualified solicitor as well as a migration agent. I am satisfied that Mr M was in a difficult situation by reason of the imminent expiry of his visa and that he was seeking the urgent assistance of Mr Senanayake.
Whilst I find it surprising that Mr M did not insist that he be shown the first page of the statutory declaration, it is not his conduct that is in issue. I have accepted Mr M as a witness of truth and I accept that, for whatever reason, he did not see the first page of the document when he made the declaration he did.
I find that in his dealings with Mr M, Mr Senanayake did not have due regard to Mr M's dependence on his knowledge and experience in breach of clause 2.4 of the Code.
Did Mr Senanayake act in accordance with his duty to preserve the confidentiality of his clients?
Clause 3.1 of the Code provides:
A registered migration agent has a duty to preserve the confidentiality of his or her clients.
Clause 3.2 of the Code provides:
A registered migration agent must not disclose, or allow to be disclosed, confidential information about a client or a client’s business without the client’s written consent, unless required by law.
I am satisfied that Mr Senanayake provided Mr M with a copy of a statutory declaration made by another client as a means of advising him of the type of information he should provide in his own statutory declaration. There is no evidence to suggest that the other client provided his or her written consent to this disclosure or that the disclosure was required by law.
In this regard, I find that Mr Senanayake acted in breach of clauses 3.1 and 3.2 of the Code.
Did Mr Senanayake provide to Mr M or Ms Z confirmation of their instructions in writing, or advice as to the prospects of success of their applications for a protection visa?
On the basis of the evidence of Mr M, I am satisfied that Mr Senanayake did not provide written confirmation of the instructions of either Mr M or Ms Z or advise them of the prospects of success in their application. I do not accept Mr Senanayake's evidence that he provided the letter dated 12 December 2014 to Mr M. Again, whilst it is surprising that Mr M was prepared to write instructions on and sign an otherwise blank piece of paper, I am satisfied that this is what in fact occurred.
Clause 2.8 of the Code provides:
A registered migration agent must:
(a) within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing to the client; and
(b) act in accordance with the client’s instructions; and
(c) keep the client fully informed in writing of the progress of each case or application that the agent undertakes for the client; and
(d) within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client’s case or application.
I find that Mr Senanayake acted in breach of the provisions of clause 2.8 of the Code.
Did Mr Senanayake encourage Mr M and Ms Z to make a vexatious and grossly unfounded application?
I am satisfied that Mr Senanayake deliberately encouraged Mr M and Ms Z to apply for a protection visa despite being instructed that neither of them had any concerns for their safety by reason of any previous political activity in that country.
Clause 2.17 of the Code provides, in part:
If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) a registered migration agent:
(a) must not encourage the client to lodge the application …
At the time he lodged the protection visa application, Mr Senanayake was aware that the basis on which the application was being made was false. In the circumstances, the application is properly described as “grossly unfounded” as it had no hope of success if the true situation was known to the Department.
I find that in encouraging Mr M and Ms Z to make the application, Mr Senanayake acted in breach of subclause 2.17(a) of the Code.
Did Mr Senanayake seek to mislead or deceive the Authority in his communication with it?
Clause 2.9A of the Code provides:
In communicating with, or otherwise providing information to, the Authority, a registered migration agent must not mislead or deceive the Authority, whether directly or by withholding relevant information.
In his statutory declaration made 20 March 2017,[58] Mr Senanayake responded to matters raised by the Authority in the notice dated 14 February 2017 issued to him under section 308 of the Act.[59]
[58] Exhibit R1 at 203-207.
[59] Exhibit R1 at 243-246.
Among other matters, in his response Mr Senanayake advised the Authority that:
·on 12 December 2014 he had provided written advice to Mr M that it was “highly unlikely” that he would succeed in his application for a protection visa and that he should refrain from making the application;[60]
·on 12 December 2014 (after receiving his advice) Mr M instructed him in writing to proceed with the application;[61]
·on 12 December 2014 Mr M read the two-page statutory declaration before he (Mr Senanayake) witnessed him signing the document;[62]
·the word “HIV” was never mentioned during his meetings with Mr M and Ms Z.[63]
[60] Exhibit R1 at 205 and Annexure G.
[61] Exhibit R1 at 205.
[62] Exhibit R1 at 206.
[63] Exhibit R1 at 206.
On the basis of the evidence of Mr M, I am satisfied that Mr Senanayake deliberately misled the Authority when he provided the above information to it in response to the section 308 notice issued to him.
I find that in communicating with the Authority, Mr Senanayake acted in breach of clause 2.9A of the Code.
Did Mr Senanayake's conduct fall short of the standard expected of a registered migration agent?
Clause 2.23 of the Code provides:
A registered migration agent must take all reasonable steps to maintain the reputation and integrity of the migration advice profession.
Taking into account all of the evidence which I have set out above in relation to breaches of the various provisions of the Code by Mr Senanayake, I find that Mr Senanayake acted in breach of clause 2.23 of the Code.
Alleged breach of clause 2.1(b) of the Code
It was argued on behalf of the Authority that by lodging with the Department several statutory declarations on behalf of various clients, where the declarations were in almost identical terms, Mr Senanayake was in breach of clause 2.1(b).
Clause 2.1(b) provides:
A registered migration agent must always:
(b) deal with his or her client competently, diligently and fairly.
Copies of a number of statutory declarations lodged with the Department by Mr Senanayake are in evidence.[64] Their similarities raise concern as to the manner in which they were prepared. However, in the absence of further evidence as to the circumstances in which those statutory declarations were made and lodged, I do not make any findings in relation to the alleged breach by Mr Senanayake of clause 2.1(b) of the Code in this respect.
Finding in relation to the allegation that Mr Senanayake did not comply with the provisions of the Code
[64] Exhibit R1 at 41-53.
For the reasons stated above, I am satisfied that Mr Senanayake did not comply with clauses 2.9, 2.1, 2.3, 2.4, 3.1, 3.2, 2.8, 2.17(a), 2.9A and 2.23 of the Code.
Issue 2: Am I satisfied that Mr Senanayake is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance?
The solicitor for the Authority referred me to several judgements and decisions in which the phrase “fit and proper person” was considered.
In Australian Broadcasting Tribunal v Bond,[65] Toohey and Gaudron JJ said:
The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it ·provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
…
The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
[65] (1990) 170 CLR 321 at 380 and 388.
In Taylor v Law Society of New South Wales,[66] the Supreme Court of New South Wales considered the above extracts from Bond, reasoning that:
… the question whether the plaintiff is currently a fit and proper person falls to be decided referable to what the evidence reveals about a range of matters, including whether improper conduct has occurred (as to which there is no dispute in these proceedings); what motivated that course of conduct; whether there is likely to be a repetition of the misconduct or whether it can be assumed that it will not recur such that the community can have confidence that it will not be repeated in the course of the plaintiff discharging her duties and obligations as a legal practitioner.
[66] [2017] NSWSC 948 at [33].
In The Legal Practitioners Complaints Committee v Lashansky,[67] in considering the conduct of a legal practitioner, the Supreme Court of Western Australia said it is clear that:
a practitioner's failure to understand the impropriety of his conduct, may be a factor of very great importance in determining whether he or she is permitted to remain on the Roll.
[67] [2007] WASC 211 at [35].
In considering the conduct of registered migration agents, the Tribunal has taken into account the honesty of the agent[68] and the agent’s knowledge of the migration scheme.[69]
[68] Peng and Department of Immigration and Multicultural Affairs [1996] AATA 12.
[69] Mottaghi and Migration Agents Registration Authority (2007) 98 ALD 424.
Mr Senanayake was prepared to advise his clients to lodge an application for a protection visa on grounds he knew to be untrue. Furthermore, he facilitated the lodgement of their application and attempted to mislead the Department. As part of this process he divulged information relating to another client in breach of the other client’s privacy.
When confronted with allegations that he had acted improperly, Mr Senanayake was not honest in his response to the Authority, nor was he honest in his evidence to this Tribunal.
As a registered migration agent, Mr Senanayake had an important role to play in the administration of the Act, an Act “relating to the entry into, and presence in, Australia of aliens …”.[70] On registration, Mr Senanayake obtained the benefit of being entitled to give prescribed “immigration assistance” to clients. He was able to hold himself out as being a person with expertise in the area.
[70] Long title of the Migration Act1958 (Cth).
In acting in the manner in which he did, Mr Senanayake failed to fulfil his obligations to his clients and to the Department; in so acting he failed to meet his obligation “to maintain the reputation and integrity of the migration advice profession”.[71]
[71] Clause 2.23 of the Code.
When he gave evidence before me, Mr Senanayake still did not appear to appreciate the seriousness of his past conduct. He maintained the view that it was appropriate to lodge an application for a protection visa which he believed would fail without first seeking further detailed instructions as to the relevant facts from the client. He sought to justify this approach on the basis that “all that the temporary protection visa applicants with the credible evidence – they come with the file with all the documents. That if they have evidence, according to my experience …. [Mr M] didn’t bring anything”.[72]
[72] Transcript, 25 July 2019, at 148.
I have considered the two statutory declarations and two statements tendered by Mr Senanayake, being exhibits A2 to A5 inclusive. The authors of these documents (one of whom is an employee of Mr Senanayake and three are former clients) attest to the honesty, integrity and professionalism of Mr Senanayake. This evidence is of very limited value in this application as none of the authors indicate an awareness or appreciation of the matters before the Tribunal.
For the reasons set out above, I am satisfied that Mr Senanayake is not a person of integrity.
Issue 3: What is the appropriate sanction (if any) to be imposed on Mr Senanayake under section 303 of the Act?
As set out in section 303, the sanctions available are:
ocancellation of registration;
osuspension of registration; or
oa caution.
It is well accepted that the purpose of a regulatory process such as that under consideration is to protect members of the public and not to punish the agent involved.
In view of the findings already made, it is clear that some form of sanction is appropriate. The reviewable decision made on 9 October 2017 was to cancel Mr Senanayake's registration.
Section 292 of the Act relevantly provides:
An applicant whose registration has been cancelled under section 303 … must not be registered within 5 years of the cancellation.
An applicant in these circumstances would be required to meet all of the eligibility criteria for an initial registration.
A suspension of registration under section 303 may be for any period not exceeding five years.[73]
[73] Section 304 of the Act.
Mr Senanayake argued that the claim against him was fabricated and that it is not appropriate for any form of disciplinary action to be taken. He contended that I should take into account that:
·he is an experienced solicitor who acts for disadvantaged people on a pro bono basis;
·he is involved in assisting members of his local community;
·he has acted for many visa applicant who have been successful in their applications;
·cancellation of his registration, which has the effect of a minimum suspension of five years, is too harsh.
I approach the issue of the appropriate sanction on the basis that Mr Senanayake acted deliberately to deceive the Department and at the same time failed to exhibit a reasonable level of competence in the advice he gave to Mr M and Ms Z.
In order to protect the public from the consequences of Mr Senanayake's actions, it is necessary to act to maintain the confidence of the public that the grant of registration as a migration agent will, as far as possible, ensure that proper advice is given and that applications made to the Department are truthful and competently prepared.
I accept the submission made on behalf of the Authority that in acting for Mr M and Ms Z, Mr Senanayake displayed neither competence nor integrity.
I have given consideration to whether a period of suspension of less than five years would be appropriate. In deciding to reject this option, I have taken into account that, even at the time of the hearing, Mr Senanayake did not appreciate the seriousness of the allegations or the degree of dependence Mr M and Ms Z had on him as a professional.
On more than one occasion, Mr Senanayake expressed the view that he was a migration agent and not an investigator. My understanding of his evidence is that he does not consider it to be his responsibility to seek further instructions from a client in order to ensure that an application has the best chance of success before the Department. The standard and detail of Mr M's application prepared by the HIV/Aids Legal Centre stands in stark contrast to the application lodged on his behalf by Mr Senanayake.[74]
[74] Exhibit R3.
Taking into account the matters referred to above, and Mr Senanayake's adherence to the evidence which I have determined not to accept, I am satisfied that the protection of the public requires that Mr Senanayake not be eligible to be registered as a migration agent for the foreseeable future and certainly not before the expiration of at least five years from 9 October 2017.
CONCLUSION
The reviewable decision made on 9 October 2017, being the decision of the Migration Agents Registration Authority to cancel the registration of Mr Senanayake as a migration agent under section 303 of the Migration Act 1958 (Cth), will be affirmed.
I certify that the preceding 132 (one hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
...............................[sgd].........................................
Associate
Dated: 4 February 2020
Dates of hearing: 24 and 25 July 2019 Applicant: In person Solicitors for the Respondent: Mr A Keevers, Sparke Helmore Lawyers
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