Siong and Migration Agents Registration Authority - [2020] AATA 3699

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
Caltex Refining Co Pty Limited and Caltex Oil (Australia) Pty Limited v Amalgamated Metal Workers Union and Ors [1990] FCA 483
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 578
VBN 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 Siong has been a director of Siong and Associates Pty Ltd (“Siong and Associates").
The Respondent, the Migration Agents Registration Authority (“MARA”), is responsible for keeping a register of migration agents. Pursuant to section 316 of the Migration Act 1958 (Cth) (“the Act”), MARA is responsible for, among other things:
(a)dealing with migration agent registration applications;
(b)monitoring the conduct of registered migration agents in their provision of immigration assistance;
(c)investigating complaints in relation to the provision of immigration assistance by registered migration agents; and
(d)taking appropriate disciplinary action against registered migration agents or former registered migration agents.
Migration agents are required to lodge an application to the MARA to have their registration renewed annually.[1] Pursuant to section 290 of the Act a person must not be registered as a migration agent if they are not a person of integrity or if they are not fit and proper.
[1] Pursuant to section 299 of the Act.
On 25 February 2019, the MARA sent Mr Siong a Notice of Intention to Consider Refusal of his registration as a migration agent on the grounds that Mr Siong was not a person of integrity or fit and proper.
On 21 June 2019 the Queensland Law Society (“QLS”) informed the MARA that it had decided, “Having regard to the interest of the clients of the law practice, the protection of the public and the need to obtain records of the practice”, to appoint “receivers to protect the interests of clients in relation to trust money or trust property” and that Siong Legal may be wound up.
Mr Siong’s certificate permitting him to practice as a solicitor in Queensland was cancelled by the QLS on 24 June 2019.
On 2 October 2019 Mr Siong lodged his renewal application with the MARA (“Renewal Application”). In the Renewal Application Mr Siong declared, among other things:
·I understand that I must inform the Authority in writing within 14 days of any notifiable events as required by section 312(1) of the Migration Act 1958 (the Act);...[a “notifiable event” includes insert section 312(1)(h)]
·Declared yes to the following:
Are the following statements true and correct?
iii. to the best of my knowledge and belief I have not been (other than previously declared by me to the Migration Agents Registration Authority) and am not currently the subject of an inquiry or investigation (I understand that I must declare any current investigations) by;
•a department or agency of the Commonwealth
•a department or agency of a State or Territory of Australia; or
•a professional association; or
•a corporate regulatory agency; or
•a consumer protection organisation; and
iv. no disciplinary action is being taken (I understand that I must declare any current actions), or has been taken against me (other than previously declared by me to the Migration Agents Registration Authority);
vii.I am not aware of any finding, conduct, or event or fact which would affect my fitness and propriety to provide immigration assistance or which goes to my integrity (other than that which is disclosed herewith or previously disclosed)
viii.There are no other relevant matters which would cause the Authority to consider that I am not a fit and proper person or a person not of integrity, to provide immigration assistance.
Note: Some of these matters are notifiable events under Section 312 and migration agents are required to advise the Authority in writing within 14 days of any of these events occurring
[and]
I am aware that it is an offence under the Commonwealth Criminal Code Act 1995 for a person to give information or make a statement to a Commonwealth entity, knowing that the information or statement is either false, misleading or omits any matter or thing without which the information or statement is misleading (sections 136.1 and 137.1 of the Criminal Code Act 1995). I am aware that the penalty is imprisonment for up to 12 months
Mr Siong did not inform the MARA that receivers had been appointed to Siong Legal or that his practising certificate had been cancelled.
On 22 June 2020, a delegate of MARA decided to refuse Mr Siong’s application for renewal of his migration agent registration.
On 25 June 2020 Mr Siong applied to the Tribunal for a review of MARA’s decision.
The application for review is yet to be heard.
On 3 August 2020, MARA requested that the Tribunal issue a summons for documents from the Queensland Law Society (“QLS”) and the Queensland Supreme Court (“QSC”) relating to Mr Siong and Siong Legal Pty Ltd.
At the commencement of this hearing, Counsel for the MARA confirmed that it no longer requested that a summons be directed to the QSC.
Counsel for MARA also advised that it had amended the wording of the summons it requested be issued to the QLS.
The MARA now requests that a summons be issued directing the QLS to produce the following documents (“Proposed QLS Summons”):
~~Any d~~ Documents in the possession of the Queensland Law Society relating to Teck King SIONG (also known as John SIONG) and Siong Legal Pty Ltd, ~~including any documents~~ in relation to the following:
·the investigation and decision to cancel Mr Siong's solicitor's practising certificate, including the reasons for the decision;
·~~correspondence between Mr Siong and the Queensland Law Society;~~
·correspondence between Mullins Lawyers and the Queensland Law Society in relation to Mr Siong;
·any investigations, communications, findings and actions by the Trust Accounting Manager undertaken in relation to SIONG or Siong Legal Pty Ltd including details of any trust accounting discrepancies;
·all other investigations, communications, findings and actions undertaken relating to Mr Siong or Siong Legal Pty Ltd, including his termination from Mullins Lawyers, his failure to hold professional indemnity insurance, and the insolvency of any company related to him; and
·any legal action or other disciplinary action taken against Mr Siong.
Mr Siong opposes the issue of the summons.
PARTIES CONTENTIONS
The MARA submits that the Proposed QLS Summons may assist to resolve the substantive issues in relation to Mr Siong’s application for review on the basis that production of documents may reveal further information regarding the following facts:
·the basis for QLS cancelling Mr Siong’s solicitor's practising certificate (which is relevant as to whether Mr Siong is a fit and proper person to give immigration assistance and is a person of integrity);
·any anomalies on Mr Siong’s handling of trust account monies given that the QLS Manager of Trust Accounts conducted an investigation into Mr Siong’s handling of client monies[2] (which is relevant as to Mr Siong’s ability to carry out the financial duties he owes to clients under the Migration Agents Registration Code of Conduct); and
·Mr Siong’s ability to manage his company given that QLS appointed receivers to Siong Legal[3] (which is relevant as to whether Mr Siong is a fit and proper person to give immigration assistance).
[2] T9, 311
[3] T12, 420-425, 449; T4, 100-102.
Mr Siong objects to the issue of the summons on the grounds that the Proposed QLS Summons amounts to a “fishing” expedition and lacks particularity.[4]
[4] Exhibit 2, Applicant’s Submissions dated 10 August 2020 (“Applicant’s Submissions”).
POWERS AND OBJECTIVES OF THE TRIBUNAL
The Tribunal is under a statutory obligation pursuant to section 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to:
…pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal
The power of the Tribunal to issue a summons is derived from section 40(A) of the AAT Act which provides relevantly that:
(1) For the purposes of a proceeding before the Tribunal, … an authorised member … may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:
(a) …;
(b) produce any document or other thing specified in the summons.
(emphasis added)
Issuance of a Summons – General Principles
It is not controversial that the summons power will only be exercised in relation to documents that are relevant to the issues in the proceeding before the Tribunal.
A summons “will be an abuse of process if it is not used for a legitimate forensic purpose”.[5]
[5] Trade Practices v Arnotts Limited and Others (1989) 21 FCR 306; (1989) 88 ALR 90 citing Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98, 100–1.
Bennett J in Comcare v Maganga [2008] FCA 285; (2008) 101 ALD 68, [37] (“Maganga”) described the test to assess whether a summons should be issued as whether there “is a real possibility that [the documents sought] may assist in the resolution of issues in the proceedings”.
In Hunt v Wark (1985) 40 SASR 489 (at 493) King CJ said:
A summons to witness to produce documents cannot be used for purposes of mere “fishing”. There must be some reason to suppose that the documents sought will be capable of being used as evidence…
It is not necessary to construe those words with undue strictness so as to refer only to documents which are admissible evidence. The words are wide enough to include documents reasonably needed for the cross-examination of a witness ... whether or not they would ultimately be used in evidence to contradict the witness.
(emphasis added)
In VBN And Anor and Australian Prudential Regulation Authority and Anor [2005] AATA 1060; (2005) 92 ALD 455 (“VBN”) Deputy President Forgie explained that:
[31] Given the nature of merits review by the Tribunal, documents that are relevant …must be documents that are connected with or pertinent to the multi-faceted task, or a part of it, that the Tribunal must undertake.
(emphasis added)
In Trade Practices Commission v Arnotts Ltd and Others (1989) 21 FCR 306; (1989) 88 ALR 90 (“Arnotts”), Beaumont J asked (in the analogous context of subpoenas) the following questions:[6]
(1) Does the material sought have an apparent relevance to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? …
(2) Is the subpoena seriously and unfairly burdensome or prejudicial?.
[6] Quoted by Spender J in Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor [1997] FCA 1504; (1997) 37 ATR 432, 439.
In Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor [1997] FCA 1504; (1997) 37 ATR 432 (“Cosco”) Spender J (at 439) referred to Arnotts, where Beaumont J had said:
The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case. In my opinion, adjectival relevance is established.
(emphasis added)
Spender J (at 439) explained how he interpreted that passage from Beaumont J’s judgment in Arnotts as follows:
Notwithstanding the use of the word “possibly” in this paragraph, in my opinion, that word is not used in any speculative sense. I take his Honour’s conclusion expressed in that paragraph as an acquiescence to the correctness of the submission that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not a question of looking at the documents to see if the documents might permit a case to be made.
In Caltex Refining Co Pty Limited and Caltex Oil (Australia) Pty Limited v Amalgamated Metal Workers Union and Ors [1990] FCA 483 Burchett J said (with the agreement of Lockhart and Gummow JJ):[7]
Discovery should be controlled, and may be limited to documents relevant to particular issues, but it is a valuable weapon in the armoury of justice. The real objection which, in some cases, justifies discovery being limited to particular issues is the objection of oppression.
(emphasis added)
[7] Quoted by Spender J in Cosco Holdings Pty Ltd v Commissioner for Taxation & Anor [1997] FCA 1504; (1997) 37 ATR 432, 440. See Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp and Others [1997] FCA 578.
In Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp and Others [1997] FCA 578 (“Canwest”), their Honours said:
A modern statement of the principle which has been repeatedly followed is that made by Brennan J (with whom Bowen CJ agreed) in W.A. Pynes Pty Ltd v Bannerman (1980) 41 FLR 175 at 181, where what is required to obtain a discovery order in a doubtful case was expressed as follows:
sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery.
(emphasis added)
Spender J also referred in Cosco (at 440) to Canwest where Beaumont, Burchett and Emmett JJ said of the meaning of “fishing”:
The objection encapsulated in a metaphoric expression "fishing" has been understood as a good ground to deny an order for discovery for a very long time. It was stated in Bray on Discovery (1885) at 16:
Discovery is given in courts of equity to assist a plaintiff in proving a known case, and not to assist him in a mere roving speculation, the object of which is to see whether he can fish out a case.
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)

Mr Tindell was essentially submitting that the Tribunal would not have jurisdiction to consider any conduct other than the conduct specifically considered by the MARA delegate. In relation to the material which could give rise to a fresh allegation not previously addressed in the show cause notice or response, Mr Siong says that this is beyond the scope of the Tribunal’s jurisdiction and that the reasons for the decision “sets the frame” for the proceeding. Mr Tindell was unable to refer the Tribunal to any authority to support his contention.
If the documents produced in accordance with a summons disclose that Mr Siong engaged in conduct, either before or after the reviewable decision was made, which goes to whether Mr Siong is a fit and proper person, that conduct can be considered by the Tribunal.
The Tribunal fulfils its role by having unrestricted access to material related to, and able to shed light on, the administrative decision under review. This is supported by the High Court decision in Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 (“Shi”) where the High Court concluded that the Tribunal is entitled to consider the evidence available at the date of the hearing, not as at the date MARA made its decision. The Tribunal notes that the Act specifically provides in section 290 that the decision maker, in this instance the Tribunal standing in the shoes of the decision maker, is to have regard to “any other matter” that is relevant.
The Tribunal also referred the parties to the AAT decision in Toufic Laba Sarkis v Migration Agents Registration Board [1997] AATA 421 (“Sarkis v MARA”), and on appeal to the Federal Court at [1998] FCA 719 (“Sarkis”). In Sarkis v MARA the Tribunal held that the Tribunal is entitled to take matters into account which arose after the initial decision was made and the date of review which are relevant to the issues being determined. The Federal Court in Sarkis made it clear that the Tribunal makes its decision on review, de novo, based on the matters before it at the date of the hearing.
The issue before the Tribunal is whether Mr Siong is fit and proper, therefore any matter which addresses that is, prima facie, relevant. That is not to say Mr Siong is not entitled to procedural fairness and he would need to be given adequate notice of any alternative or “new” grounds or arguments relied upon by the Respondent.
The Tribunal is mindful of the comments of Chief Justice Kiefel and Justices Keane and Nettle in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 (applying Shi) that:
[15]…The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker.
(emphasis added)
Mr Siong would be entitled to object to any material that changed the question being considered.
In Shi, Keifel CJ (at 149) said:
There is no reason why the Tribunal's review should not extend to any information which sheds light upon the presence or absence of the necessary characteristics in the migration agent. The list in s 290(2) is not exhaustive. There is good reason why the Tribunal should be in a position to consider the most recent material bearing upon the question of an agent's integrity and their fitness to continue to provide immigration assistance. By this means facts such as an agent's subsequent conviction for a serious offence could be taken into account. The relevance of such a factor, to the question of an agent's integrity and fitness, is confirmed by its specification in s 290(2), as a matter which must be taken into account by the Authority in connection with their registration.
There is no temporal requirement under the Act with respect to assessing a person’s fitness for registration.
The condition, or proviso, to a person being able to introduce new evidence is that each party must have a reasonable opportunity to present its case. As Bennett J explained in Maganga (at [39]):
The requirement to accord procedural fairness includes a requirement to allow a party to test the evidence of a witness. While cross-examination to test the credit of a witness where that credit is not in issue may be excluded (Fried), credit was the main issue in these proceedings. The summonsed documents were, prima facie, relevant to the proceedings. There was a reasonable possibility that they could have assisted in the resolution of issues in the proceedings.
(emphasis added)
Does the Proposed QLS Summons amount to a “fishing” expedition? Is there a material forensic purpose to the summons that would assist the Tribunal in achieving its objectives?
Mr Tindell submits that the Proposed QLS Summons is no more than a “fishing expedition” because it seeks:
(a)an unlimited scope of documents providing little particularity;
(b)documents, such as correspondence generally, with no clear relevance to any specific issue;
(c)documents concerning any investigation about trust accounting or about termination from Mullins Lawyers; and
(d)documents concerning any legal or disciplinary action whatsoever.
Mr Siong provided submissions where he said:[8]
(a)he has exhibited any documents “passed to and from QLS leading up to the decision” to cancel his practising certificate;[9] and
(b)Siong Legal has not been wound up and has only had receivers appointed; and
(c)he has exhibited any documents “passed to and from QLS leading up to the appointment of receivers”.
[8] Applicant’s submissions dated 10 August 2020.
[9] Ibid at [28].
Ms Hoiberg, Counsel for MARA, informed the Tribunal at the commencement of the hearing that it was narrowing the scope for the summons to QLS and proposed to delete words from the original summons request as indicated in paragraph 17 above.
The hearing was adjourned briefly to allow the Applicant to consider the changes to the proposed summons. When the hearing recommenced Mr Tindell, for the Applicant, informed the Tribunal that the Applicant’s position, opposing the summons, had not changed.
Mr Tindell said the summons is a wide ranging request for documents.
First category of documents sought: Documents in the possession of the Queensland Law Society relating to Teck King SIONG (also known as John SIONG) and Siong Legal Pty Ltd, ~~including any documents~~ in relation to the investigation and decision to cancel Mr Siong's solicitor's practising certificate, including the reasons for the decision
The MARA says the purpose of the summons is to seek the entirety of the information available to the QLS to see if there is any information which might shed a different light on those matters.
Documents in this category appear to fall squarely within the issues that will be before the Tribunal, namely whether Mr Siong is a fit and proper person considering his practising certificate being cancelled by the QLS. The categories of documents sought relate to matters Mr Siong put before MARA. The Tribunal considers that the reasons behind the QLS’ decision would be relevant to its inquiry.
Second category of documents sought: 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 correspondence between Mullins Lawyers and the Queensland Law Society in relation to Mr Siong;
Mr Siong submits this category provides no particularity in terms of a date range, or the nature, content or subject matter of the correspondence sought. The Tribunal agrees. There is no date range and there may be a lot of correspondence which has nothing to do with the matters before the Tribunal. The MARA explained that Mr Siong had been terminated as a partner from Mullins Lawyers on the basis that he had not deposited the sum of $80,000, belonging to a client of Mullins Lawyers, into the Mullins’ trust account as required.
The Tribunal may wish to understand the circumstances behind which Mr Siong was terminated from Mullins Lawyers but the request as drafted is too broad. The Tribunal is prepared to issue a summons with the following amendments:
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 correspondence between Mullins Lawyers and the Queensland Law Society in relation to Mr Siong’s termination of employment by Mullins Lawyers.
At the hearing Counsel for the Respondent that they would be happy to confine this category to correspondence regarding Mr Siong’s termination from Mullins.
Third category of documents sought: 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 any investigations, communications, findings and actions by the Trust Accounting Manager undertaken in relation to SIONG or Siong Legal Pty Ltd including details of any trust accounting discrepancies
Mr Siong submits the reference to “any investigations” means there is no limitation on the scope of the summons.
The MARA referred the Tribunal to page 306 of the T Documents which is an attachment to the show cause notice which refers to the appointment of an external auditor to Siong Legal. The MARA says the Proposed QLS Summons seeks further details in relation to this investigation (and it referred and relied on section 290(2)(e) of the Act).
The Tribunal agrees that this request is overly broad and would no doubt illicit documents which have no bearing on the application for review. However, the investigations referred to are clearly limited to those conducted by the Trust Account Manager. Mr Siong’s conduct as a solicitor, given that his practising certificate was cancelled, may be pertinent to the issue of whether he is a fit and proper person. Therefore, the Tribunal is prepared to issue a summons amended as follows:
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 any investigations, communications, findings and actions by the Trust Accounting Manager undertaken in relation to SIONG or Siong Legal Pty Ltd ~~including details of~~ regarding any trust accounting discrepancies
Fourth category of documents sought: Documents in the possession of the Queensland Law Society relating to Teck King SIONG (also known as John SIONG) and Siong Legal Pty Ltd, ~~including any documents~~ in relation to all other investigations, communications, findings and actions undertaken relating to Mr Siong or Siong Legal Pty Ltd, including his termination from Mullins Lawyers, his failure to hold professional indemnity insurance, and the insolvency of any company related to him
This summons request is again quite broad as it would require the QLS to produce any document in relation to any communications and investigation whatsoever regardless of whether they related to the basis for QLS terminating his practising certificate. Counsel for the Respondent acknowledged at the hearing that other than in relation to the practising certification cancellation and the appointment of a receiver to Siong Legal, it does not know if there is anything else which would be of interest to the Tribunal. The Tribunal considers that this request in its current form is too broad and would amount, in part, to a “fishing” expedition.
There is already a category concerning Mullins Lawyers (discussed above), so this does not need to be repeated. The other category of documents would appear to be potentially relevant to the issues that will be before the Tribunal. Therefore, the Tribunal is prepared to issue a summons amended as follows:
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 all ~~other~~ investigations, communications, findings and actions undertaken relating to Mr Siong or Siong Legal Pty Ltd, ~~including his termination from Mullins Lawyers~~, regarding his failure to hold professional indemnity insurance, and the insolvency of any company related to him
Fifth category of documents sought: Documents in the possession of the Queensland Law Society relating to Teck King SIONG (also known as John SIONG) and Siong Legal Pty Ltd, ~~including any documents~~ in relation to any legal action or other disciplinary action taken against Mr Siong.
The Tribunal considers that the documents in this category may be relevant. If there is material produced, which MARA decides to rely upon as a further basis for finding that Mr Siong is not a fit and proper person, Mr Siong will be given an opportunity to consider that evidence and respond to it and further, can make submissions regarding relevance, and /or what weight should be given to that material at the final hearing.
The Tribunal agrees to this category of documents being summoned from the QLS.
CONCLUSION
The issue under review is whether Mr Siong is a fit and proper person to be registered as a migration agent. The contents of the documents sought, subject to the amendments outlined above, are likely to shed light on that issue and have apparent adjectival relevance. The Tribunal does not consider that the request is speculative.
As already set out, the Tribunal is entitled to consider the issues based on new material. The narrowed categories of documents in the QLS files, logically, not speculatively, may assist the Tribunal in its determination.
DECISION
The Tribunal authorises the issue of a summons against the QLS as amended by this Tribunal as follows:
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.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

..............................[SGD]..........................................
Associate
Dated: 18 September 2020

Date(s) of hearing: 12 August 2020

Lawyer for the Applicant: Mr Alistair Tindall

Solicitors for the Applicant: Robinson Locke Litigation Lawyers

Counsel for the Respondent: Ms Emma Hoiberg

Lawyer for the Respondent: Mr Aidan Higginson

Solicitors for the Respondent: Clayton Utz

Date(s) of hearing:	12 August 2020
Lawyer for the Applicant:	Mr Alistair Tindall
Solicitors for the Applicant:	Robinson Locke Litigation Lawyers
Counsel for the Respondent:	Ms Emma Hoiberg
Lawyer for the Respondent:	Mr Aidan Higginson
Solicitors for the Respondent:	Clayton Utz