Seymour v Migration Agents Registration Authority

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FEDERAL COURT OF AUSTRALIA

Seymour v Migration Agents Registration Authority
[2006] FCA 965

MIGRATION AGENT – application to re-register as migration agent – whether applicant not a person of integrity or otherwise a fit and proper person to give immigration assistance – where decision of Migration Agents Registration Authority held to be invalid by Administrative Appeals Tribunal – where Administrative Appeals Tribunal found applicant not to be a person of integrity or otherwise a fit and proper person to give immigration assistance - failure to disclose prior charges and convictions – failure to disclose contempt of court – failure to disclose prior criminal offence – whether conviction spent for purposes of s 290 of the Migration Act1958 (Cth)

ADMINISTRATIVE LAW – Tribunals – Administrative Appeals Tribunal – Jurisdiction – appeal by applicant to Administrative Appeals Tribunal - application to re-register as migration agent – whether applicant not a person or integrity or a otherwise fit and proper person to give immigration assistance – where decision by Migration Agents Registration Authority held to be invalid by Administrative Appeals Tribunal – effect of invalidity of decision by original decision maker - where Administrative Appeals Tribunal found applicant not to be a person of integrity or otherwise a fit and proper person to give immigration assistance

CONTEMPT – whether conviction for contempt by the Supreme Court of NSW a conviction of ‘a criminal offence’ pursuant to s 290(2)(c) of the Migration Act 1958 (Cth) – whether conviction of contempt by the Supreme Court of NSW a conviction ‘of an offence under a law of a State’ pursuant to s 312 (1) (e) of the Migration Act 1958 (Cth) – whether contempt charged was criminal or civil – whether distinction between criminal and civil contempt otiose

WORDS AND PHRASES - ‘an offence under a law of the Commonwealth or of a State or Territory’

Held – the tribunal made no error of law in finding that applicant had been convicted of a criminal offence and had failed to declare that he was the subject of a criminal proceeding in his application to Migration Agents Registration Authority; tribunal committed no error of law in finding that applicant had failed to notify the Migration Agents Registration Authority of those matters in accordance with the Migration Act 1958 (Cth); appeal dismissed with costs.

A Solicitor v Law Society (NSW) (2004) 216 CLR 253 referred to
ACCC v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 referred to
Al-Kateb v Godwin (2004) 219 CLR 562 referred to
Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314 referred to
Attorney-General (NSW) v X (2000) 49 NSWLR 653 referred to
Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 referred to
Attorney-General v Newspaper Publishing plc [1988] Ch 333 at 377 referred to
Australasian Meat Industry Employees’ Union v Mudginberri Pty Limited (1986) 161 CLR 98 discussed and followed
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to
Australian Building and Construction and Builders…

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Details
Case
[2006] FCA 965
Decision Date

CaseChat Overview and Summary

In the case of Seymour v Migration Agents Registration Authority, the applicant, Mr Seymour, appealed against a decision of the Administrative Appeals Tribunal (AAT) which had set aside a decision of the Migration Agents Registration Authority (the Authority) to refuse his application for re-registration as a migration agent. The central issue was whether the tribunal was entitled to form the view that Mr Seymour was not a fit and proper person to give migration assistance, thereby refusing his registration as a migration agent. This followed from Mr Seymour’s history of professional misconduct, a high range PCA offence, and a conviction for contempt by the Supreme Court of New South Wales. The tribunal had concluded that Mr Seymour was not a fit and proper person, but the basis of its reasoning was challenged by Mr Seymour.

The legal issues before the court included whether the tribunal had the authority to review the merits of the decision after finding the original decision-maker acted without power, and whether Mr Seymour's conviction for contempt was a criminal offence under the Act. Additionally, the court had to determine whether the tribunal's conclusion that Mr Seymour was not a fit and proper person was the correct and preferable decision. Mr Seymour argued that the tribunal's reasoning was flawed and that the decision should be remitted to the original decision-maker, while the Authority contended that the tribunal's approach was correct and that there were multiple independent grounds to support its conclusion.

The court examined the tribunal's reasoning and concluded that even if there were errors in the tribunal's approach, the ultimate decision that Mr Seymour was not a fit and proper person was supported by several independent findings. The court noted that the tribunal had referred to various factors, including Mr Seymour's history of professional misconduct, his high range PCA offence, and his conviction for contempt. The court further found that the tribunal's decision was supported by well-established authority and that any jurisdictional error did not vitiate the decision as there was no resulting injustice to Mr Seymour.

Ultimately, the court dismissed the appeal, upholding the tribunal's decision that Mr Seymour was not a fit and proper person to be registered as a migration agent. The court also ordered that Mr Seymour pay the Authority's costs. This decision reinforces the tribunal's power to substitute its own decision after finding the original decision-maker acted without power, provided the substitution is supported by proper reasoning and independent findings.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant pay the respondent’s costs.

Background

Background to the litigation

In that context Mr Seymour has raised the following as questions of law in this appeal under s 44 of the Administrative Appeals Tribunal Act1975 (Cth) (‘the AAT Act’) namely:(a)Was his conviction for contempt by the Supreme Court of New South Wales a conviction ‘of a criminal offence’ pursuant to s 290(2)(c) of the Act or ‘of an offence under a law … of a State …’ pursuant to s 312(1)(e) of the Act?(b)Did the tribunal have power, after it held that the original decision maker acted without power, to review, on the merits, and to exercise the original decision maker’s power to refuse to renew Mr Seymour’s registration as a migration agent?(c) Was the tribunal’s decision the correct and preferable decision?BACKGROUND The ultimate question for the tribunal was whether it was entitled to form the view that it was not satisfied that Mr Seymour was a fit and proper person to give migration assistance or was not a person of integrity so that it was not entitled to register him as a migration agent pursuant to s 290(1) of the Act. The circumstances in which that issue fell to be determined were as follows. On 14 April 1982 Mr Seymour had been struck off the rolls as a solicitor of the Supreme Court of New South Wales after he had been found guilty of professional misconduct. On 1 November 1990 Mr Seymour had been convicted of driving with more than the prescribed concentration of alcohol, the offence being known as a ‘high range PCA’ and was fined $800 and disqualified from driving for 12 months. On 8 February 1993 Mr Seymour applied to the Migration Agents Registration Board (‘the Board’) for registration as a migration agent under the Act. That application was granted after the Board, without disclosure by Mr Seymour, became aware through its enquiries of the high range PCA offence. As part of his application, Mr Seymour had consented to the Board obtaining information from the Australian Federal Police, both from its own records and any other police force or other authority, of any criminal charge involving him or pending before any court together with details of any conviction or finding of guilt which may have been recorded against his name. The information about Mr Seymour’s high range PCA offence and possible bankruptcy was received by the Board on or about 16 March 1993. On 18 March 1994, Mr Seymour attended a meeting with five members of the Board in Canberra which lasted for approximately 3½ hours during the course of which no reference was made to the Board’s information that he had been convicted of the high range PCA offence, notwithstanding that in his application he had falsely said that he had not been the subject of a conviction or finding of guilt or a pecuniary penalty before a court that was not spent. On 15 April 1994 Mr Seymour was registered, and thereafter continued to remain registered and to practice as a migration agent. On 5 September 1994 Mr Seymour agreed to orders being made by to the Supreme Court of New South Wales that he would not in future act or purport to act as a solicitor. The reasons for and the circumstances surrounding the giving of those orders were not before the Tribunal. The consent orders made by Blanch J on 5 September 1994 included an order in the following terms:‘1. [Mr Seymour] be restrained, from acting, or purporting to act, as a solicitor.’

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

RARES J
Mr Seymour argued that because the original decision was invalid the tribunal either had no jurisdiction to embark upon a review, or that if I were minded to uphold the appeal to the Court I ought to remit the matter directly to the original decision-maker rather than the tribunal pursuant to s 44(4) of the AAT Act. He made a formal submission that Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, 41 FLR 338, was wrong but acknowledged that I am bound to follow it. The Authority submitted that the approach of the tribunal applying well known authority was correct.SUBMISSIONS AS TO THE CORRECT AND PREFERABLE DECISION Mr Seymour submitted that the reasoning of the tribunal as set out in paragraph 37 and the first sentence of paragraph 38 of its reasons (see [29]) demonstrated that the tribunal had failed in its statutory task of assessing the subjective and objective circumstances of Mr Seymour’s offending behaviour in the way explained by the High Court in A Solicitor v Law Society (NSW) (2004) 216 CLR 253 at 267-268 [19]-[22]. That submission was based on characterizing the tribunal’s reasoning that Mr Seymour’s history of having been struck off as a solicitor in 1982, having given the undertaking to the Supreme Court that he would not in future act or purport to act as a solicitor in 1994 and his 2004 conviction and sentence for contempt were facts which ‘alone would be sufficient to render [Mr Seymour] not a fit and proper person whether the contempt was criminal or civil’ (see [38] of the tribunal’s reasons). The Authority submitted that the tribunal had been referring in this passage of its reasoning to the earlier findings which it had set out recounting the nature of the proceedings leading up to Buddin J’s decision and his Honour’s findings in that decision, including matters that were set out in the decision but not necessarily referred to directly in the tribunal’s reasons. The Authority said that there was a number of freestanding findings by the tribunal each of which would justify its ultimate conclusion, first, the findings which I have just set out, secondly, the findings relating to Mr Seymour’s change of position as to whether contempt was a criminal offence depending on whether he was before the Court of Appeal or the tribunal (see [26]-[31] of the tribunal’s reasons [26] above). Thus the Authority argued that even if the tribunal had been wrong to take account of the balance of material referred to in [38] of its reasons, having concluded that by reference to the matters in [37] alone, Mr Seymour was not a fit and proper person, that was a finding of fact on the merits in respect of which there was no error of law. Moreover, the Authority relied on what Allsop J had said in SZEEU v Ministerfor Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [231]-[233] (Weinberg J agreeing at [155]) that even if a jurisdictional error had been established, that may not vitiate the decision if there were a separate and independent reason which supported it. Likewise, the Authority referred to the observations by McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at 184 [80] that discretionary relief for cases in which jurisdictional error had been established may be refused if the applicant had in fact suffered no injustice, for example, because the statutory law compelled a particular outcome.

Ratio Decidendi

Legal Principle Established

Established by: RARES J

By letter dated 1 May 2004 Mr Seymour applied for ‘repeat registration’ as a migration agent to the Authority, which had succeeded to similar functions to that of the Board. Mr Seymour completed the questionnaire for re-registration, critically, giving the following information in relation to Item 23:‘23. The following statements relate to section 290 of the Migration Act 1958.i.There has not been a finding of guilt against me for a criminal offence that has not previously been declared to the Migration Agents Registration Authority.ii.I am not currently the subject of any criminal proceedings.’ (emphasis in original) By an internal memo dated 28 May 2004, the Authority was informed of the fact that the Law Society had ‘taken’ Mr Seymour to the Supreme Court for acting as a solicitor of which fact, the Authority noted, he had not informed it. On 3 June 2004 Buddin J, in the Supreme Court of New South Wales found Mr Seymour to be guilty of contempt pursuant to a statement of charge filed in accordance with Pt 55 r 7 of the Supreme Court Rules (NSW), on a plea of guilty. The basis of the finding of guilt of contempt was that Mr Seymour had breached the order set out above made by that court in 1994. His Honour sentenced Mr Seymour to a term of imprisonment of 9 months, the execution of which was suspended upon condition that he entered into a good behaviour bond for the period of 9 months. His Honour ordered Mr Seymour to pay the costs of the proceedings before him. It will be necessary to return to the details of that matter below. On 14 February 2005 the Authority refused Mr Seymour’s application for re-registration. On 17 February 2005 Mr Seymour brought an application for review of that decision in the tribunal. The application asserted that the Authority had wrongly decided that Mr Seymour was not a fit and proper person pursuant to s 290 of the Act in refusing to re-register him as a migration agent and that in doing so he had been denied procedural fairness and natural justice. In the proceedings before the tribunal, Exhibit R3 was a statement by an officer of the Authority, which noted that when Mr Seymour was advised by letter dated 30 September 2003 that his application for re-registration had been successful and reminded him of his obligations to inform the Authority in writing of any events prescribed in s 312(1) of the Act as soon as reasonably possible. The statement went on to assert that the records of the Authority had been examined including for the period prior to 30 September 2003 and that they did not contain any written advice from Mr Seymour to the Authority of any proceedings having been brought against him by the Law Society of New South Wales or of the decision by the Supreme Court of New South Wales, namely that of Buddin J which had been the basis of the Authority’s refusal of his application for re-registration. On 27 January 2006 the tribunal ordered that the decision under review be set aside, because it was a nullity since the original decision maker had had no delegation to act. The tribunal then substituted in lieu its own decision that Mr Seymour was not a fit and proper person to be registered as a migration agent.STATUTORY BACKGROUND