Sosrohadipoespito and Migration Agents Registration Authority
[2001] AATA 293
•11 April 2001
`
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.
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.
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 Authority
On 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; and
ii) how much the payment given to Robby was; and
iii) provide proof that the client knew of the commission to Robby that was being paid; and
iv) 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:
…"
No Statutory Declaration was received by the Respondent from the Applicant. Document T14 is a letter, undated, from the Applicant to the Respondent but received by it on 5 June 2000. The letter does not even attempt to address the matters raised by the Respondent.
A further letter from the Applicant dated 2 March 2000 was received by the Respondent on 5 June 2000. That letter reads (T14 p38):
"Dear Sir,
Herewith I would like to respond your letter. Sorry, I don't believe to you anymore. So, any letter about complained I wrote it to the Minister ?. If you have any queries, asked to the Minister. This was I made because nothing happened to Immigration officer or the migration agent … complained and no investigation and thereafter I was sick at the moment and I think is wasting time also. Thank you for your attention."
(The photocopy in the Section 37 documents is a bad copy and not all words are legible.)Various other documents have been forwarded to the Respondent by the Applicant. I also refer to the bundle of documents that became Exhibit A1 in this matter. I do not intend to traverse those documents in these reasons as they are totally irrelevant to the present proceedings. It seems, however, that the Applicant believes he is being singled out for investigation and review whereas other Migration Agents are acting improperly if not illegally. That may be so but in all his correspondence the Applicant has failed utterly to address the concerns the Respondent had regarding his actions and procedure in the matter of Ani Indrawati.
On 7 July 2000 the Respondent again wrote to the Applicant stating inter alia that it was open to the Authority to be satisfied that the Applicant had breached certain clauses of the Migration Agents Code of Conduct (Exhibit R5) and setting out the clauses alleged to have been breached together with particulars of the facts constituting the alleged breaches. The letter requested a response to the allegations by "8.30am on 31 July 2000".
A reply was received by the Respondent on 31 July 2000. That reply does not deal with the specifics of the alleged breaches. Part of the reply is, however, instructive as to the Applicant's state of mind and ability to deal with investigatory bodies. His letter reads in part (T17 p61):
"Herewith I would like to respond your letter. You are truly big liar. You did not read my last letter at all. Where is my authority to act on my authority to publish the complaint to Migration Agent and Unregistered Migration Agent?. I want you to get an authorization to act on behalf of Ani Indrawaty and from Refugee Review Tribunal this is for the court proceeding this case. I want to sue you.
As long as you did not show me the authority to act on behalf of Ani Indrawaty and Refugee Review Tribunal, I assume you have made a story and I did not answer your letter. Besides of that no proof or evidenced that I made up for her story. What for and no profit for me to do something like that? I must sacrifice my Citizenship only for her? If I want too, better I married and get paid and nobody knows. Like Eric, Jeffri and Sunhadi Permana. Forget about Migration Act 240 said that: Offence to arrange marriage to obtain permanent residence. Migration Act No. 243 said that: Offences relating to application for permanent residence because of marriage or de facto relationship.
…"
And concluded by stating (p63):
"Don't act you are very clean. You are issuing license to cheat. You are the creator of unfair competition. Your job only creating a conflict between client and migration agent. You are only helping the client without obeying the Immigration Law. Not too much asking why they complaint. Is that I need helping or not? You did not do anything to unregistered migration agent who did not pay for registration fee and studies of Immigration law.
Monopolyst and Racist (because there is no Asean people or Aborigine people in your small office although the money is millionair from registration fee)."
At its meeting of 22 August 2000 the Respondent made the decision under review (T20). In passing, I must point out that the chronology in paragraph (c) of the Respondent's "Findings on Material Questions of Fact" is wrong but I do not think this affects the gravamen of the complaints against the Applicant.
The Applicant then made his application to this Tribunal. That application reads inter alia:
"The authority who is cheating me is MARA (Migration Agents Registration Authority), he doesn't have authority from me to publish but he publishes it. No respond from him after I sent to anywhere the letter. But decision to suspend.
He helped illegal migrant who has catched Any Indrawaty in Queensland because of working in Danny Restaurant in Tweedhead NSW. Under section 116 Migration Act 1958 say the visa can be cancelled because of working. He said from Refugee Review Tribunal but no indication from the RRT. The address of MARA is PO Box Q1551, QVB NSW 1230 Australia. His decision is on 4 September 2000 but I received on 14 September 2000. He threatened me for penalties 10 years imprisonment for giving of immigration assistance or making immigration representations while not a registered agent. For your information: MARA is monopoly and Private company, who has appointed by immigration minister. Thank you for your attention."
At a Directions Hearing held in this matter on 6 February 2001 and in Exhibit A2, the Applicant alleged that the person who appeared before the RRT was not the person to whom he had given immigration assistance. I find, having regard to the evidence of Ms Dawson and the copies of passport photographs together with the evidence of the Applicant's witness Mr Tedjo, this allegation cannot be supported.
The Applicant gave evidence in these proceedings but again I found he had an inability to direct his mind to the specific allegations against him. What he did say in evidence in chief was that he did not provide the Statutory Declaration requested by the Respondent in its letter of 17 May 2000 as he got "very angry".
The Applicant also added that "MARA is lying" and that the letter in question was "a big joke".
Cross-examined the Applicant conceded that in the claims made by him on behalf of Ani Indrawati both to the Migration Agents Registration Authority (MARA) and to the RRT, no specific head of claim setting out a well founded fear of persecution upon which to seek refugee status had been made out.
The Applicant did state that in the application for refugee status written out by him on behalf of Ani Indrawati he merely wrote down what he was instructed to write down, although he knew that Ms Indrawati had come to him in order to receive his expert advice.
Cross-examined further the cross-examination raised the clear inference that the Applicant lodged, on behalf of Ani Indrawati, an application for refugee status knowing it could not succeed and for which there were no substantive grounds but with the intent that the application would gain for his client residence in Australia for up to one year while the Department of Immigration and Multicultural Affairs and the RRT considered her claim.
In fairness to the Applicant I am prepared to consider that Ani Indrawati gave evidence to the RRT different to what she had informed the Applicant. It is not uncommon in Administrative Law that applicants to review tribunals, having received the decision of the primary decision-maker, improve their evidence upon review so as to more closely bring them within the legislative provisions entitling them to a particular benefit.
From the facts of this matter, either the Applicant was incompetent in failing to formulate a proper case for recognition of his client Ani Indrawati as a refugee pursuant to the United Nations Convention Relating to the Status of Refugees 1951, or he has made a claim for refugee status knowing it to be false in order to obtain for his client an extended period of residency in Australia.
I would only add that the evidence of the Applicant's witness Mr Tedjo did not advance matters. The solicitor for the Respondent, Mr Allatt, conceded that Ani Indrawati had, in violation of her visa conditions, engaged in employment whilst in Australia. Whilst this may go to the character of Ms Indrawati, I am not required to determine whether she gave false evidence to the RRT or not. If her evidence to that Tribunal was false then her original application, if true, was without foundation. If her evidence to the RRT was true then the Applicant was negligent in his preparation of her claim for refugee status.
The Respondent considered whether or not the Applicant had breached various clauses of the Migration Agents Code of Conduct. That Code of Conduct is given legislative force by section 314 of the Migration Act 1958 (as amended) which reads:
"(1) The regulations may prescribe a Code of Conduct for migration agents.
(2)A registered agent must conduct himself or herself in accordance with the prescribed Code of Conduct."
The regulations referred to are Migration Agents Regulations 1998 (Statutory Rule No 53 of 1998) and the said Code of Conduct is schedule 2 to those regulations.
Of the clauses forming the Code of Conduct in the said schedule 2 to the Migration Agents Regulations, the following are apposite to these proceedings:
"2.3 A migration agent's professionalism should be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.
…
2.4 A migration agent must have due regard to a client's dependence on the agent's knowledge and experience.
…
2.9 While a migration agent cannot be responsible for misinformation provided by a client, an agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.
…
2.17 If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) the agent:(a)must not encourage the client to lodge the application; and
(b)must advise the client that, in the agent's opinion, the application is vexatious or grossly unfounded; and
(c)if the client still wishes to lodge the application—must obtain written acknowledgment from the client of the advice given under paragraph (b).
…
2.19 Subject to a client's instructions, a migration agent has a duty to provide sufficient relevant information to the Department to allow a full assessment of all the facts against the relevant criteria. For example, an agent should avoid the submission of applications under the Migration Act or Migration Regulations in a form that does not fully reflect the circumstances of the individual and prejudices the prospect of approval.
…
2.23 A migration agent must take all reasonable steps to maintain the reputation and integrity of the migration industry."
Whereas paragraph 308(1)(a) of the migration Act 1958 reads:
"(1) The Migration Agents Registration Authority may require a registered agent:
(a)to make a statutory declaration in answer to questions in writing by the Authority; …"
In this matter I find that either the Applicant did not accurately represent the claim of Ani Indrawati to the DIMA in that he did not specifically set out the grounds upon which she sought refugee status, namely that she was of Chinese ethnicity and of the Christian religion and as such had a well founded fear of persecution, thus breaching clauses 2.4 and 2.19 of the Code of Conduct, or, alternatively, by submitting an application which he knew to be incapable of success but with the intention of gaining for his client an extended stay in Australia he breached clauses 2.17 and 2.23 of the said Code of Conduct.
Further I find that the action of the Applicant in ignoring the correspondence from the Respondent, and in the allegations he made against the Respondent, breached clause 2.23 of the Code of Conduct.
There has also been by the Applicant a clear breach of the provisions of paragraph 308(1)(a) of the Migration Act 1958 in his refusal to supply to the Respondent, when requested by letter dated 17 May 2000, a Statutory Declaration. That refusal was contumacious and deliberate as evidenced by the Applicant's statement to the Tribunal: "I did not provide a Statutory Declaration as I got very angry".
The Respondent imposed upon the Applicant a suspension of 18 months. That suspension was pursuant to section 303 of the Migration Act 1958 which reads:
"303 Discretionary cancellation or suspension of registration etc.
The Migration Agents Registration Authority may:(a) cancel the registration of a registered agent by removing his or her name from the register; or
(b) suspend his or her registration; or
(c) caution him or her;if it becomes satisfied that:
(d) the agent's application for registration was known by the agent to be false or misleading in a material particular; or
(e) the agent becomes bankrupt; or
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g) an individual related by employment to the agent is not a person of integrity; or
(h) the agent has not complied with the Code of Conduct prescribed under section 314.
Note:If the Migration Agents Registration Authority is considering cautioning a registered agent, or suspending or cancelling a registered agent's registration, it must invite the registered agent to make a submission. See sections 309 and 310."
Section 304 then reads:
"304 Period of suspension
(1)If the Migration Agents Registration Authority suspends the registration of a registered agent under section 303, the Migration Agents Registration Authority may:
(a) set a period of suspension of not more than 5 years; or
(b) set a condition or conditions for the lifting of the suspension.(2)If 2 or more conditions are set under paragraph (1) (b), one of them may be that at least a set period of suspension has ended."
I am at a loss to understand why the Respondent imposed a suspension period of 18 months. In Re Quinn and Australian Securities Commission 19 AAR 321 a Tribunal presided over by Deputy President Burns at pp327-328 adopted the remarks of Young J in Story v National Companies & Securities Commission (1988) 13 NSWLR 661, namely:
"On the matter as to whether revocation should follow an opinion of inefficiency, various matters have to be weighed. One of these is the public interest that people should be permitted to follow a trade or profession which they are qualified to follow. Another is that the public expect those who fall short of the minimum standards to be removed from the profession, at least until such time as the regulatory body can be assured that they are able to perform their functions efficiently. A third consideration is that the step of revocation is purely for the public benefit and is not punitive."
The principles outlined by Young J above have been consistently applied by this Tribunal in matters relating to "licences" to practice. For a further discussion of the protective nature of the power to suspend from practice, see the judgment of Gillard J in Victorian Lawyers RPA v Young [2001] VSC 28 and the cases discussed starting at para 19 of the judgment.
As the reasons for suspension in matters affecting Migration Agents must be the same as for other professions, namely not as a punishment but for the protection of the public, it is difficult to see what an 18 month suspension without more would accomplish. I was informed by the solicitor for the Respondent that at the end of 18 months the Applicant would be readmitted to practice. If this is so, all the suspension would have achieved would be the atrophy of such skills as the Applicant does possess to the ultimate disadvantage to those persons who became his clients.
Another matter which has exercised my mind is whether the Applicant is indeed a fit and proper person to practise as a Migration Agent at all.
I have already referred to the Applicant's contumacious contempt towards the Respondent and in such correspondence as he did address to the Respondent, he exhibited a total inability to grasp the issues the Respondent required him to address and engaged in abuse. If his reaction to matters affecting his own livelihood is so uncomprehending, what capability has he demonstrated to advance the cases of those who rely upon him for advice and assistance?
The behaviour of the Applicant before this Tribunal is best described as counterproductive. In a body such as the Administrative Appeals Tribunal allowances must be made for self-represented applicants who are overcome with emotion or, in some cases, positively "disturbed". The Applicant, however, is in a different position in that he ostensibly holds himself out as capable as representing his clients to the DIMA and to both the Migration Review Tribunal and the RRT. At times before me the Applicant completely lost his temper, shouted and became incoherent. Before appointment to this Tribunal, I was a barrister in actual practice and had a commission to prosecute on behalf of the Crown. The Applicant's behaviour in the Tribunal is amongst the worst I have ever witnessed in any court or tribunal. Unfortunately, should this matter go on appeal, the transcript will not demonstrate the Applicant's threatening gestures and contorted features which, after 13 years sitting in this Tribunal, caused me for the first time to have real concern as to my own safety.
Subsection 43(1) of the Administrative Appeals Tribunal Act 1975 states:
"For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision …"
That subsection confers all the powers of the primary decision-maker upon the Administrative Appeals Tribunal so that the Tribunal may exercise not only the powers upon which the decision-maker relied but also any other relevant power or discretion conferred upon the decision-maker by the enactment – see Re Control Investment Pty Ltd & Ors and Australian Broadcasting Tribunal (No 2) 3 ALD 88 at 92.
I put to the Respondent's representative that considering all the matters before me, including the Applicant's attitude to MARA and his outbursts before the Tribunal, that the Applicant was not a fit and proper person to be accredited as a Migration Agent. The Respondent's representative conceded that I did indeed stand in the shoes of the decision-maker. When asked to address this specific matter, namely whether I should exercise my discretion and revoke his registration as a Migration Agent, the Applicant's argument in reply was unintelligible.
Taking all of the circumstances into account I acknowledge that there are undoubtedly other persons practicing as Migration Agents who should not be. It seems to me by reference to other matters that have come before me that the standards required for qualification as a Migration Agent are extremely low. In a recent matter before me the Applicant was, to my mind, functionally illiterate in written English yet his ability to be a Migration Agent was not controverted by the Respondent. That the standard of written communication by this Applicant is judged sufficient for a person who represents others is amazing. During the hearing of this matter the Applicant utilised the services of an interpreter to receive questions but replied directly in English.
Notwithstanding the low standard apparently required of Migration Agents, the Applicant has proved to me in these proceedings that he is incapable of adequately representing any person before a Government Department or Tribunal. His understanding of how to proceed is lacking and he appears to lack insight into how his attitudes and behaviour would disadvantage clients. In addition, as outlined above, he has shown himself to be either negligent or willing to subvert the system, and incapable of appreciating the real issues in these proceedings.
The term "fit and proper person" was discussed by Deputy President Forgie in Re Hakaoro and Minister for Immigration & Multicultural Affairs 26 AAR 534 commencing at page 540 et seq. I am satisfied, applying the tests discussed by Deputy President Forgie, that the Applicant is not a fit and proper person to give immigration assistance.
Adding to my opinion that cancellation of registration is appropriate is the fact that the Respondent determined that the Applicant's breaches of the Code of Conduct were deserving of a lengthy period of disqualification. Such a lengthy disqualification even if the Applicant is, pursuant to section 290A of the Migration Act 1958, required to undertake professional development whilst not practising in that his registration is merely suspended, counterproductive in that at the end of 18 months there is still let loose upon the unsuspecting public a Migration Agent who has been removed from actual practice with consequent diminution of such skills as he does possess.
The decision under review will therefore be set aside and the Tribunal substitutes in lieu thereof its decision that the registration of agus sosrohadipoespito as a Migration Agent be cancelled as and from the date of publication of this decision.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: . Kwai-Ling Wong
............................................................................
Associate
Date/s of Hearing 27 March 2001
Date of Decision 11 April 2001
Solicitor for the Applicant Applicant was self-represented
Solicitor for the Respondent Mr M Allatt,
Australian Government Solicitors Office
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