Siong and Migration Agents Registration Authority [2020] AATA 3699 (18 September 2020)
Division:GENERAL DIVISION
File Number(s): 2020/3766
Re:Teck King John Siong
APPLICANT
AndMigration Agents Registration Authority
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:18 September 2020
Place:Brisbane
The Tribunal authorises the issue of a summons to the Queensland Law Society to produce the following:
Documents in the possession of the Queensland Law Society relating to Teck King SIONG (also known as John SIONG) and Siong Legal Pty Ltd in relation to the following:
1.the investigation and decision to cancel Mr Siong's solicitor's practising certificate, including the reasons for the decision;
2. correspondence between Mullins Lawyers and the Queensland Law Society in relation to Mr Siong’s termination of employment by Mullins Lawyers;
3.any investigations, communications, findings and actions by the Trust Accounting Manager undertaken in relation to Mr Siong or Siong Legal Pty Ltd regarding any trust accounting discrepancies;
4.all investigations, communications, findings and actions undertaken relating to Mr Siong or Siong Legal Pty Ltd, regarding his failure to hold professional indemnity insurance, and the insolvency of any company related to him;
5.any legal action or other disciplinary action taken against Mr Siong.
................................[SGD]........................................
Member D K Grigg
CATCHWORDS
PRACTICE AND PROCEDURE – SUMMONS – objection - whether documents sought are relevant to the issues to be decided – whether fishing expedition – relevance and admissibility of documents sought to the Tribunal’s determination – scope of the Tribunal’s jurisdiction on review – amended summons.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Comcare v Maganga [2008] FCA 285; (2008) 101 ALD 68
Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor [1997] FCA 1504; (1997) 37 ATR 432
Drake v Minister for Immigration and Ethnic Affairs (1997) 24 ALR 577; (1979) 2 ALD 60
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250
Hunt v Wark (1985) 40 SASR 489
Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286
Toufic Laba Sarkis v Migration Agents Registration Board [1997] AATA 421
Sarkis v Migration Agents Registration Board [1998] FCA 719
Trade Practices Commission v Arnotts Ltd and Others (1989) 21 FCR 306; (1989) 88 ALR 90
Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp and Others [1997] FCA 578VBN And Anor and Australian Prudential Regulation Authority and Anor [2005] AATA 1060; (2005) 92 ALD 455
REASONS FOR DECISION
Member D K Grigg
18 September 2020
BACKGROUND
The Applicant, Teck King John Siong, has been a registered migration agent since 2000. Between 2008 and 2019 Mr Siong was also a practicing solicitor.
Between 27 August 2015 and 10 May 2019 Mr Siong operated a law firm, Siong Legal Pty Ltd (“Siong Legal”), as sole director and sole shareholder. From 25 March 2019 to date Mr…
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- Siong and Migration Agents Registration Authority [2020] AATA 3699
- Case
- [2020] AATA 3699
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CaseChat Overview and Summary
The primary legal issues before the Tribunal were whether the documents sought by Mr Siong were relevant to the Tribunal's determination of whether MARA's decision was correct or preferable, and whether the Tribunal's jurisdiction on review was limited to the matters considered by the original decision-maker. The Tribunal also had to consider whether the proposed summons constituted a "fishing expedition" and whether new issues could be raised before the Tribunal based on documents obtained through the summons.
The Tribunal reasoned that the test for relevance was one of apparent relevance, given the subject matter of the dispute, which was whether Mr Siong was a fit and proper person to be a registered migration agent. It was held that the Tribunal's function on review was not limited to the material before the original decision-maker, but rather to determine the correct or preferable decision based on the material before the Tribunal. The Tribunal affirmed that new material could be considered and that the scope of the review was not confined to the specific issues raised in the show cause notice.
Ultimately, the Tribunal authorised the issue of an amended summons against the QLS for specific documents relating to investigations, disciplinary actions, and communications concerning Mr Siong's practising certificate, termination of employment, trust accounting, professional indemnity insurance, insolvency, and any legal or disciplinary actions taken against him. These documents were considered to have logical, not speculative, relevance to the Tribunal's determination.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In Maganga Bennett J reiterated (at [38]), that the test of relevance was one of apparent relevance given the subject matter of the dispute.CONSIDERATION As referred to previously MARA is not permitted to allow an individual to be a registered migration agent if they are not a fit and proper person. Whether Mr Siong is a fit and proper person is the issue at the heart of the application. Section 290(2) of the Act specifically provides, relevantly, that the decision maker is to take the following matters into account when considering whether a person is a fit and proper person:(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 (h) any other matter relevant to the applicant's fitness to give immigration assistance(emphasis added) Any documents sought by the Proposed QLS Summons that have actual or “apparent relevance” to the issue before the Tribunal are relevant to the Tribunal’s determination of whether the reviewable decision was the correct and preferable decision. The parties provided written submissions in advance of the hearing and made further oral submissions to the Tribunal at the hearing on 12 August 2020. Can any new material resulting from the summons be raised before the Tribunal? Mr Tindell, on behalf of Mr Siong, submitted at the outset that that although any new evidence, not available before the previous decision maker, would be admissible, new issues cannot be raised. Mr Tindell submitted that:(a)the general objection is that there has been no attempt to ascertain whether the documents sought are relevant to the application under review; and(b)matters regarding whether Mr Siong is a fit and proper person are limited to a failure to notify MARA that a receiver had been appointed, matters Mr Siong declared in his renewal application, and a failure to have appropriate professional indemnity insurance in place. Mr Tindell acknowledged that summonsed material may give rise to fresh evidence, but submitted that if the purpose to obtain the summonsed material is to obtain additional grounds for finding that Mr Siong should not be granted migration agent registration, this would raise an issue of procedural fairness. Mr Tindell’s argument rested on the proposition that only those matters set out in the show cause notice and decision are relevant. That is, it is the Applicant’s position that the show cause establishes the boundaries of the review, and, ipso facto, the jurisdiction of the Tribunal. This is a step too far, and seemingly without authority. It is irrelevant here whether any additional documents produced because of the summons were before the delegate. For example, Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1997) 24 ALR 577; (1979) 2 ALD 60 (at 68) clearly identified the role of the Tribunal as distinct from that of a court:The function of the Tribunal is ... an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative decision in a given case or, where a decision has been lawfully made in pursuance of permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal.The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. The Act offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance. (emphasis added)