Seymour v The Migration Agents Registration Authority - [2007] FCAFC 76

FEDERAL COURT OF AUSTRALIA
Seymour v The Migration Agents Registration Authority
[2007] FCAFC 76
MIGRATION – Appeal – Migration agent registration – Appeal from single judge affirming decision of Administrative Appeals Tribunal – Where Tribunal affirmed decision of the Migration Agents Registration Authority to refuse appellant’s re-registration – Where Tribunal found appellant not to be a person of integrity or otherwise fit and proper to give immigration assistance – Failure to disclose prior charges and convictions – Whether primary judge erred in finding that the appellant’s prior conviction for contempt constitutes a ‘criminal conviction’ for the purposes s 290 of the Migration Act – Whether primary judge erred in finding the decision not to re-register the Appellant was the correct or preferable decision under s 290 of the Act – No error disclosed in decision of primary judge
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Crimes Act 1914 (Cth)
Migration Act 1958 (Cth) ss 290, 312
Australian Telecommunications Corporation vLambroglou (1990) 12 AAR 515 referred to
Birdseye v ASIC (2003) 38 AAR 55 referred to
Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577 cited
MICHAEL THOMAS SEYMOUR v THE MIGRATION AGENTS REGISTRATION AUTHORITY
NSD 1536 OF 2006
NICHOLSON, DOWNES, TRACEY JJ
4 JUNE 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1536 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MICHAEL THOMAS SEYMOUR
Appellant

AND:

THE MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent

JUDGES:

NICHOLSON, DOWNES, TRACEY JJ

DATE OF ORDER:

4 JUNE 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1536 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MICHAEL THOMAS SEYMOUR
Appellant

AND:

THE MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent

JUDGES:

NICHOLSON, DOWNES, TRACEY JJ

DATE:

4 JUNE 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Mr Seymour had been registered as a migration agent under the Migration Act 1958 (Cth) (“the Act”) since 1994. In 2004 he applied to the Migration Agents Registration Authority (“MARA”) for what he described as “repeat registration” (more correctly, a grant of registration for a further 12 month period). In 2005 MARA refused this application on the ground that Mr Seymour was not a person of integrity or otherwise was not a fit and proper person to give immigration assistance. Mr Seymour then applied to the Administrative Appeals Tribunal (“the Tribunal”) seeking a review of MARA’s decision. The Tribunal came to the same conclusion and, although it formally set aside MARA’s decision because of a problem with delegation, it effectively affirmed that decision by making its own decision that Mr Seymour was not a fit and proper person to be registered as a migration agent. An appeal was then brought to this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FCAFC 76
Decision Date: 4 June 2007

CaseChat Overview and Summary

The case of Seymour v The Migration Agents Registration Authority concerns Mr. Seymour, who had been registered as a migration agent since 1994 under the Migration Act 1958. In 2004, Mr. Seymour applied for "repeat registration," which was denied by the Migration Agents Registration Authority (MARA) on the basis that he was not a fit and proper person to provide immigration assistance. This decision was upheld by the Administrative Appeals Tribunal (the Tribunal), and Mr. Seymour appealed to the Court, which was dismissed by the trial judge. Now, Mr. Seymour appeals the trial judge's decision.

The primary legal issue before the court was whether the Tribunal erred in concluding that Mr. Seymour was not a fit and proper person to be registered as a migration agent. The court needed to determine if the Tribunal's decision was lawful, reasonable, and based on appropriate consideration of the relevant factors under the Act. This included evaluating the Tribunal's assessment of Mr. Seymour's character and integrity, his failure to disclose past criminal convictions and proceedings, and the implications of these factors under the legislative framework.

The court thoroughly reviewed the Tribunal's decision and found that it was correctly made. The court emphasized that the Tribunal appropriately considered Mr. Seymour's history, including his failure to disclose a drink driving conviction from 1990 and his 2004 conviction for contempt of court. The court found that these omissions and the nature of the contempt conviction were significant factors in determining Mr. Seymour's fitness to be a migration agent. The court upheld the Tribunal's conclusion that the 2004 contempt conviction was criminal in nature, which was relevant under the Act. Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

1. The appeal be dismissed with costs.

Background

Background to the litigation

Mr Seymour had been registered as a migration agent under the Migration Act 1958 (Cth) (“the Act”) since 1994. In 2004 he applied to the Migration Agents Registration Authority (“MARA”) for what he described as “repeat registration” (more correctly, a grant of registration for a further 12 month period). In 2005 MARA refused this application on the ground that Mr Seymour was not a person of integrity or otherwise was not a fit and proper person to give immigration assistance. Mr Seymour then applied to the Administrative Appeals Tribunal (“the Tribunal”) seeking a review of MARA’s decision. The Tribunal came to the same conclusion and, although it formally set aside MARA’s decision because of a problem with delegation, it effectively affirmed that decision by making its own decision that Mr Seymour was not a fit and proper person to be registered as a migration agent. An appeal was then brought to this Court from the Tribunal’s decision. The trial Judge dismissed the appeal. Mr Seymour now appeals from his Honour’s decision.THE FACTUAL BACKGROUND Mr Seymour was formerly a solicitor of the Supreme Court of New South Wales. In 1982 he was found guilty of professional misconduct and struck off the roll. He remained struck off when his application for registration as a migration agent was granted by MARA’s predecessor, the Migration Agents Registration Board (“the Board”), in 1994. When he applied for registration Mr Seymour failed to disclose to the Board that, in 1990, he had been convicted of a drink driving offence. Shortly after he was registered he agreed to an order (“the 1994 order”) being made by the Supreme Court of New South Wales that he would not in future act or purport to act as a solicitor. In June 2004 Mr Seymour pleaded guilty to having committed a contempt of Court. It was alleged that Mr Seymour had breached the 1994 order by undertaking conveyancing work. Buddin J convicted Mr Seymour and sentenced him to imprisonment for nine months (“the 2004 conviction”). The execution of the sentence was suspended upon condition that he entered into a good behaviour bond for the period of nine months. This nine month period was still current when, on 14 February 2005, MARA purported to make the decision to refuse Mr Seymour’s application for registration for a further period. Mr Seymour failed to advise MARA that the contempt proceeding was pending or that he had been convicted and sentenced. In his application for “repeat registration” dated 1 May 2004 he advised MARA that there had been no previous finding of guilt of a criminal offence of which he had not advised MARA and that he was not currently the subject of any criminal proceedings. MARA was led to its negative conclusion as to Mr Seymour’s fitness and propriety by the following considerations:·His failure to disclose a conviction for drink driving when he originally applied for registration in 1993; and·His making of a declaration to MARA in 2004 that he was not the subject of any criminal proceeding when in fact he was; and·His failure to notify MARA that he had been convicted of an offence by Buddin J; and·The conduct which led to him being convicted and sentenced to imprisonment for nine months in 2004.THE RELEVANT LEGISLATION

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NICHOLSON, DOWNES, TRACEY JJ

The legislative scheme which provides for the registration of migration agents is to be found in Part 3 of the Act. Part 3 contains the following provisions which are of relevance on this appeal. Section 290 provides:“290(1) An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:(a)the applicant is not a fit and proper person to give immigration assistance;(b)the applicant is not a person of integrity; or(c)…(2) In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:(a)the extent of the applicant’s knowledge of migration procedures; and(b)[repealed](c)any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:(i)a fit and proper person to give immigration assistance; or(ii)a person of integrity;(except a conviction that is spent under Part VIIC of the Crimes Act 1914); and(d)any criminal proceedings that the applicant is subject of and that the Authority considers relevant to the application; and(e)any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and(f)any disciplinary action that is being taken, or has been taken against the applicant that the Authority considers relevant to the application; and(g)any bankruptcy (present or past) of the applicant; and(h)any other matter relevant to the applicant’s fitness to give immigration assistance.(3) …(4) To avoid doubt, this section applies to all applicants (not just first time applicants).”Section 312 of the Act requires registered agents to notify MARA in writing within 14 days after certain events occur which may have a bearing on the fitness and propriety of the agent. These events include the conviction of the agent of an offence under a law of the Commonwealth or of a State or Territory: see s 312(1)(e).THE TRIBUNAL’S DECISION The reasoning of the Tribunal commenced with an uncontroversial explanation, based on authority, of what is meant by fitness and propriety in an occupational licensing context. The Tribunal then turned its attention to the 2004 contempt conviction. It did so in order to deal with Mr Seymour’s contention that the contempt proceeding was not criminal in nature and he had not been convicted of a criminal offence. The Tribunal recorded that:“16. At paragraph 12 of his judgment, Buddin J referred to AG for New South Wales v Whiley (1993) 31 NSWLR 314 where the NSW Court of Appeal said:‘a conviction for contempt of court is a conviction for an offence which is criminal in nature …’His Honour went on to say at paragraph 14:’The Migration Agents Registration Authority may, pursuant to s 303 of the Migration Act 1958 (Cth), cancel or suspend (for a period not exceeding five years) an agent’s registration if it becomes satisfied of the existence of various matters …One of the matters that is included in that list is any conviction of the person of a criminal offence. That being so, it is common ground that the offender may well have his registration cancelled or at least suspended.’He added at paragraph 15:‘The question of what action (if any) is taken by the Authority as a consequence of these proceedings, is a matter entirely for it. As it is quite possible that the Authority will take action against the offender it is accordingly appropriate that I should take into account in his favour, the fact that a conviction for this offence may well have a significant impact upon his capacity, especially given his age, to earn an income.’17.During the course of these proceedings the Applicant submitted that the conviction (to use Buddin J’s term in paragraph 15 of his judgment) was not of a criminal offence.”(Emphasis added)The Tribunal then embarked on a lengthy analysis of authorities dealing with the distinction between civil and criminal contempt. The Tribunal concluded that, although the matter was not free from doubt, the proceeding before Buddin J was criminal in nature.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON, DOWNES, TRACEY JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1536 OF 2006

BETWEEN:	MICHAEL THOMAS SEYMOUR Appellant
AND:	THE MIGRATION AGENTS REGISTRATION AUTHORITY Respondent

JUDGES:	NICHOLSON, DOWNES, TRACEY JJ
DATE OF ORDER:	4 JUNE 2007
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1536 OF 2006

JUDGES:	NICHOLSON, DOWNES, TRACEY JJ
DATE:	4 JUNE 2007
PLACE:	SYDNEY