Sosrohadipoespito and Migration Agents Registration Authority - [2001] AATA 293

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DECISION AND REASONS FOR DECISION [2001] AATA 293

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1470

GENERAL ADMINISTRATIVE DIVISION       )
           Re      AGUS SOSROHADIPOESPITO
  Applicant

And MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent

DECISION

Tribunal Senior Member M D Allen

Date11 April 2001
PlaceSydney

Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision THAT: the registration of agus sosrohadipoespito as a Migration Agent is cancelled as and from the 11th day of April 2001.

(Sgd)             M D ALLEN
  ..............................................
  Senior Member
CATCHWORDS
MIGRATION - Migration Agent. Registration suspended for lengthy period for failure to comply with Code of Conduct. Lengthy suspension without more counterproductive. Primary consideration protection of the public. Tribunal standing in the shoes of the decision-maker. Set aside suspension and imposed cancellation of registration.

Migration Act 1958 - ss290A, 303, 304, 308 and 314
Migration Agents Regulations 1998 - Second Schedule

Re Quinn and Australian Securities Commission 19 AAR 321
Story v National Companies & Securities Commission (1988) 13 NSWLR 661
Re Hakaoro and Minister for Immigration & Multicultural Affairs 26 AAR 534

REASONS FOR DECISION

11 April 2001 Senior Member M D Allen

By a document lodged with the Tribunal on 15 September 2000 the Applicant sought review of the decision by the Respondent made 22 August 2000 and notified to the Applicant by letter dated 4 September 2000, which decision was that the Applicant's registration as a Migration Agent was suspended for 18 months from the 4 September 2000.
In the reasons for decision that accompanied the letter of 4 September 2000 to the Applicant, the decision of the Respondent is expressed in the following terms, namely (T2):
"Pursuant to section 303(b) of the Act, the Agent is advised that, following consideration of the facts before it, the Authority has determined to suspend the Agent's registration for eighteen months. The suspension shall remain in force for a period of eighteen months from the date of this decision." (Tribunal's emphasis)

Without more, therefore, a very real question arises as to the date at which the Applicant's suspension expires.

On 5 December 2000, Senior Member Ettinger refused a request by the Applicant to stay the decision under review.
The substantive application came on for hearing before me at Sydney on 27 March 2000. At that hearing the following documents were taken in as exhibits and marked as follows, namely:
T1 – T21: Documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit A1:    Applicant's submissions entitled "MARA versus Agus Arifin Sosrohadipoespito"
Exhibit A2:    Applicant's further submissions dated 1 October 2000
Exhibit R1:    Respondent's Statement of Facts and Contentions
Exhibit R2:    Copy of Movements Details of Ani Indrawati
Exhibit R3:    Copy of Department of Immigration and Multicultural Affairs file re Ani Indrawati
Exhibit R4:    Copy of Refugee Review Tribunal file re Ani Indrawati
Exhibit R5:    Copy Migration Agents Registration Authority Code of Conduct
Exhibit R6:    Copy statement of Merryl Dawson dated 23 March 2001.

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: [2001] AATA 293
Decision Date: 11 April 2001

CaseChat Overview and Summary

In the case of Sosrohadipoespito v Migration Agents Registration Authority, the applicant, a registered migration agent, had his registration suspended for a period of eighteen months by the Migration Agents Registration Authority (MARA) due to a failure to comply with the Code of Conduct. The suspension arose from a complaint by a member of the Refugee Review Tribunal (RRT) that the applicant had provided poor advice to a client, Ani Indrawati, resulting in discrepancies in her refugee status application. The applicant appealed the suspension to the Administrative Appeals Tribunal (AAT). The central legal issue was whether the lengthy suspension imposed by MARA was appropriate given the circumstances and whether the tribunal should substitute its own decision for that of MARA. The AAT examined the nature and purpose of the statutory powers granted to MARA, particularly under the Migration Act 1958, and the obligations of migration agents under the Code of Conduct. The tribunal also considered relevant case law such as Re Quinn and Australian Securities Commission and Story v National Companies & Securities Commission.

The AAT determined that while the primary consideration in disciplinary actions against migration agents is the protection of the public, the tribunal must also consider proportionality in the sanctions imposed. The tribunal held that the lengthy suspension without additional evidence of harm to the public was excessive and counterproductive. The tribunal found that the applicant had not adequately responded to the complaint, but also noted that the suspension did not align with the objectives of the Act and the Code of Conduct. The tribunal concluded that a cancellation of registration was a more appropriate remedy given the circumstances. The tribunal was guided by the principle that it should not lightly substitute its own decision for that of the original decision-maker unless there was a clear error of law or the decision was manifestly unjust.

The AAT set aside the eighteen-month suspension imposed by MARA and instead ordered the cancellation of the applicant's registration. The tribunal's decision emphasized the need for appropriate and proportionate disciplinary measures that align with the statutory objectives and the protection of the public interest.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the reasons for decision that accompanied the letter of 4 September 2000 to the Applicant, the decision of the Respondent is expressed in the following terms, namely (T2):"Pursuant to section 303(b) of the Act, the Agent is advised that, following consideration of the facts before it, the Authority has determined to suspend the Agent's registration for eighteen months. The suspension shall remain in force for a period of eighteen months from the date of this decision." (Tribunal's emphasis) On 5 December 2000, Senior Member Ettinger refused a request by the Applicant to stay the decision under review. The substantive application came on for hearing before me at Sydney on 27 March 2000. At that hearing the following documents were taken in as exhibits and marked as follows, namely:T1 – T21: Documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975Exhibit A1: Applicant's submissions entitled "MARA versus Agus Arifin Sosrohadipoespito"Exhibit A2: Applicant's further submissions dated 1 October 2000Exhibit R1: Respondent's Statement of Facts and ContentionsExhibit R2: Copy of Movements Details of Ani IndrawatiExhibit R3: Copy of Department of Immigration and Multicultural Affairs file re Ani IndrawatiExhibit R4: Copy of Refugee Review Tribunal file re Ani IndrawatiExhibit R5: Copy Migration Agents Registration Authority Code of ConductExhibit R6: Copy statement of Merryl Dawson dated 23 March 2001. The action taken by the Respondent followed a complaint to that body by a member of the Refugee Review Tribunal (RRT) following a hearing on a claim for refugee status by one Ani Indrawati, a citizen of Indonesia. It was the view of the member of the RRT, who dealt with that person's claim, that (T4 p24):"… it is also apparent from discussing her applications with her that she received very poor advice and assistance from her original adviser. Neither her application to the Department nor her application for review to the Tribunal were her submissions or concerns." In particular the RRT, in its reasons for decision, drew attention to the fact that in her original application to the Department of Immigration and Multicultural Affairs (DIMA), the Applicant's ethnicity was shown as Indonesian whereas, before the RRT, she claimed to be Chinese. Further, in her original applications both to the DIMA and to the RRT, no claim was made as to her being persecuted because of her Christianity. The RRT also recorded that the Applicant for refugee status claimed that the Applicant to these proceedings had "made up" her claims. The Respondent wrote to the Applicant on 22 February 2000 informing him of the complaint and enclosing a copy of the RRT decision. That letter asked for his comments on the allegations raised. No reply was received to this letter. The Applicant claims that he forwarded a reply dated 2 March 2000 to the Respondent by facsimile. I do not believe him. I find that the document dated 2 March 2000 and received by the Respondent on 10 May 2000, being Document T11 in these proceedings, is not a copy of a document previously forwarded to the Respondent by facsimile but a document created on or about 10 May 2000 and its date is a deliberate attempt to deceive.

Ratio Decidendi

Legal Principle Established

On 18 April 2000 the Respondent wrote to the Applicant stating inter alia (T10):"This letter refers to a complaint brought to the attention of the Migration Agents Registration Authority (the "Authority") from the Refugee Review Tribunal.The Authority considered the matter at its meeting on 4 April 2000 and it is open to the Authority to be satisfied that you may have breached Clause 6.3 of the Code of Conduct as at 1 April 1998. The Authority is considering cautioning you or suspending or cancelling your registration for the following reasons:Clause 6.3A migration agent must respond to a request for information from the Authority within a reasonable time specified by the AuthorityOn 22 February 2000 the Authority published the complaint to you. The Authority gave you 21 days from the date of that letter in which to respond. You did not respond in the specified time.It is open to the Authority to be satisfied that you may have breached Clause 6.3 of the Code for failing to respond to the complaint from the Refugee Review Tribunal.Pursuant to section 309(2) of the Migration Act 1958, the Authority invites you to make a submission on the matter.Please provide your response by 8.30a.m. on 12 May 2000. …" As stated above, on 10 May 2000 a reply dated 2 March 2000 was received by the Respondent. That letter by the Applicant did not address the concerns of the Respondent. It reads (T11):"Dear Sir,Herewith I would like to respond your letter. My client Ani, I give my letter in Indonesian language so she did not respond or write me any letter to me or at least telephone me. So, I think its ok. The cost too much $ 1000,- because I give a commission to Robby. And thereafter when she was caught by Immigration because of working under section 116 her visa will be cancelled. So I am helping her until today. As I read the letter I knew that she is big lie then I hope she can be returned to Indonesia by Compliance Section as soon as possible. Enclosed is my letter in Indonesian language. I have been contact to Indonesian government that she is not under the government watch, not at all. So, she is not refugee at all. If anything happened to her in Indonesia is became my responsibility. Thank you for your attention." In response to the letter received 10 May 2000, the Respondent again wrote to the Applicant on 17 May 2000 requesting further information. That letter (T12) reads inter alia:"Reference is made to your letter dated 2 March 2000 which was received by the Authority on 10 May 2000,The Authority, pursuant to section 308(1)(a) of the Migration Act 1958 (the "Act"), requires you to provide a Statutory Declaration detailing the following:i) who the person named as Robby, in your letter dated 2 March 2000, is; andii) how much the payment given to Robby was; andiii) provide proof that the client knew of the commission to Robby that was being paid; andiv) identify which complaint your letter dated 2 March 2000 relates to.The Authority is to receive the Statutory Declaration by 8.30am 8 June 2000. Please forward all correspondence to the address below:…"