Stolar and Migration Agents Registration Authority
[2007] AATA 1245
•20 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1245
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600929
GENERAL ADMINISTRATIVE DIVISION ) Re ANTHONY STOLAR Applicant
And
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date20 April 2007
PlaceBrisbane
Decision The Tribunal adjourns the matter to a date to be fixed to enable the parties to consider, and agree if possible, the terms of a decision to give effect to these reasons.
.............Signed.................
Deputy President
CATCHWORDS
MIGRATION AGENTS – registration – providing immigration assistance – obtaining assessment of qualifications connected to visa application - breach of Code of Conduct – failure to act in legitimate interests of clients – failure to deal with client competently, diligently, fairly – applicant’s conduct does not warrant conclusion that not a fit and proper person – Tribunal set aside respondent decision - varies decision of respondent – applicant to refund fees paid – period of suspension reduced to 6 months – supervision requirement of additional 6 months – parties invited to submit agreed draft within 14 days.
WORDS AND PHRASES – “immigration assistance”
Migration Act 1958 ss 5, 276, 303, 306AA, 314
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Regulations 1994 reg. 136.222
Migration Agents Regulations 1998 s7B(4)
Hartnett v Migration Agents Registration Authority (2004) 140 FCR 388
Silveira v Australian Institute of Management (2001) 113 FCR 218
Narayanan and Migration Agents’ Registration Authority [2006] AATA 353
Feng and Migration Agents Registration Authority [2002] AATA 709
REASONS FOR DECISION
20 April 2007 Deputy President P E Hack SC Introduction
1.Mr Anthony Stolar has been a migration agent, registered pursuant to Part 3 of the Migration Act 1958 (Cth), since 1997.
2.On 18 December 2006 the respondent, the Migration Agents Registration Authority, having investigated two complaints made against the applicant, determined to suspend his registration as a migration agent for a period of 12 months.
3.The applicant seeks a review of the respondent’s decision in this Tribunal.
Background
4.There appears to be little dispute between the parties about the primary facts[1]; what is in issue is the interpretation of those facts.
[1] See Exhibit 2, pars. [4] – [5].
5.I am concerned with two complaints. The first was made by a Dutch couple, Ms Maaike Plakman and Mr Remko Pijnaker. They were described throughout the hearing as “the first complainants” and I shall continue with that description. The other complaint was made by Mr Chin-Pi Hung, a citizen of Taiwan, who is described as “the second complainant”.
The first complainants
6.The applicant’s dealings with the first complainants commenced in about April 2002. At that time the applicant was a consultant to the Queensland Chamber of Commerce and Industry. He met the first complainants when they visited the offices of that organization in Brisbane. He met them again the following month. On this occasion the applicant discussed with the first complainants their prospects of being able to migrate to Australian under a general skilled migration visa.
7.It will suffice for present purposes to note that one of the requirements for such a visa was that the skills and qualifications of the intending migrants had to be assessed by an “assessing authority”. There were various entities that undertook that task for reward but it is relevant to mention two only, the National Institute of Accountants and the Australian Computer Society. These bodies had been appointed to assess accounting skills and computer skills respectively by the National Office of Overseas Skills Recognition.
8.There is some dispute about the content of discussions between the applicant and the first complainants at this stage in the dealings between them however none of the respondent’s allegations turn upon the terms of those conversations and thus I do not find it necessary to make findings about them. I record however that I regard the applicant as a generally reliable witness. Any reservations I have regarding his evidence are discussed in greater detail where necessary in the reasons that follow below.
9.I am satisfied that in the course of these conversations in April and/or May 2002 the applicant discussed with the first complainants:
(a) the general process of skilled migrant visa applications;
(b) the need to obtain a skills assessment from an appropriate body;
(c) his opinion that the first complainants had an arguable case for the grant of skilled migrant visas;
(d)the fact that the application process could take some time;
(e) his capacity, as a migration agent, to undertake the process necessary to put forward the applications to the necessary authorities.
10.After these initial meetings the first complainants returned to the Netherlands and communications between them and the applicant thereafter were conducted almost entirely by e-mail.
11.On 16 July 2002 (and again the following day) the first complainants sent the applicant an e-mail requesting confirmation of the required documents. The applicant replied on 22 July 2002. His e-mail read[2], in part:
“While you were in Australian did you get your qualifications assessed? Remember that you need to get 115 points. The critical point in the application will be work experience, English language ability, and the number of points you receive for your qualification.
…
Could you please let me know what you want me to do and do you need my services as your migration agent.”
[2] Minor typographical errors have been corrected in this and other e-mails.
12.The first complainants responded the same day indicating their wish for the applicant to arrange the assessment of their qualifications “making sure we both get the 60 points” and asking the applicant whether the “agreed” fee of A$1500 per application was still valid.
13.The applicant responded promptly, indicating that he could arrange for the first complainants’ qualifications to be assessed at their cost, confirming the fees of A$1500 per application and requesting payment of half of the fees.
14.On 29 July 2002 the first complainants sent half the fees by bank transfer and a package of documents by registered mail. The applicant was asked to confirm receipt of the documents. He did this by e-mail dated 2 September 2002 which indicated that he had received the funds and the documents on 19 August 2002. He did not proffer any explanation for the delay in acknowledging receipt of the documents.
15.The applicant’s e-mail went on to advise:
“I have sent your qualifications to the respective authorities and am awaiting their responses. I will keep you informed.”
16.I should, at this juncture, note that the evidence of the applicant was that, having received the qualification of the first complainants, he sought an “informal assessment” of their qualifications from three assessing bodies. But he also said that by mid September 2002 (at the latest) he had been informed that none of those bodies would provide an informal assessment of the type that he had sought. He agreed that he took no further steps to pursue any assessment, informal or otherwise, until the middle of 2004.
17.By e-mail sent on 12 September 2002 the fist complainants sought an “update” from the applicant. Nothing was provided. Then, on 12 November 2002, the first complainants again sought from the applicant information about the progress of the matter. The applicant responded the following day. His e-mail included the following:
“I received all of your documents in August. I have sent the qualifications to the respective bodies to obtain their accreditation. I am still waiting for their reply.”
18.The applicant accepts that both of those statements – that he had sent the qualifications to obtain accreditation and that he was awaiting reply - were untrue and known by him to be untrue at the time he made the statements.
19.The applicant provided further details, equally untrue, on 31 December 2002. On this occasion he nominated the Australian Computer Society and CPA Australia as bodies to which applications for accreditation had been made. In addition, the applicant requested that the first complainants complete a departmental document (Form 956) authorising the applicant to act on their behalf in dealing with the Department of Immigration and Multicultural and Indigenous Affairs. Those forms were executed by the first complainants and sent back to the applicant promptly.
20.On 23 May 2003 the applicant sent to the first complainants by facsimile, letters addressed to the National Institute of Accountants (in relation to Ms Maaike Plakman) and the Australian Computer Society (in relation to Mr Remke Pijnaker) appointing the applicant as agent and blank applications for assessments from those bodies, for execution by them. These documents, (executed) together with additional Forms 956 (also executed) were returned to the applicant by facsimile on 24 May 2003.
21.Thereafter on 28 May 2003 the applicant sent to the first complainants an e-mail in these terms:
“Thanks for the 10 documents. I believe they will be good enough. In any event I have sent the assessment materials they required and we will wait. Once they have receipted the documents I will lodge the applications forthwith.”
22.On 19 June 2003, in response to an enquiry from the first complainants, the applicant informed them that:
“I followed up with the assessment agencies and have not heard back from them.”
Later, in another e-mail on the same day he said:
“I have not heard back from the assessment bodies so I assume all is OK with them to make a determination in both your cases.”
23.This pattern of falsely indicating that the applications for assessment had been lodged and had been followed up continued with e-mails sent by the applicant on 26 June 2003 and 9 September 2003. In addition, both during and after that period the first complainants sent numerous e-mails to the applicant that went unanswered.
24.By registered letter dated 24 January 2004 the first complainants sought from the applicant an account of his dealings on their behalf and what of their funds had been spent. The applicant responded to that request by an e-mail dated 24 February 2004 and promised to “answer your question by the end of this week.” That was not done.
25.It is next relevant to note that on 19 July 2004 the first complainants made a formal complaint to the respondent. To that point, a period in excess of two years from their first contact with the applicant, no application for assessment of qualifications had been submitted.
26.It is unclear when the applications for assessment were first made. I have a letter on the applicant’s letterhead to the Qualifications Assessment Unit of CPA Australia seeking an assessment of the qualifications of Ms Plakman. It bears the date 30 July 2004 but the evidence of Ms Hersley, the manager of the Qualifications Assessment Unit of that body, is that it was received on 22 September 2004. Curiously, it was seemingly accompanied by a bank cheque, representing the fee payable for the assessment, dated 2 March 2004. In any event the assessment, when finally undertaken, was not favourable.
27.I have a similar letter bearing the date 2 August 2004 to the Australian Computer Society. It also was said to have been received by that organization on 22 September 2004. It was accompanied by a bank cheque dated 5 March 2004. This assessment, when undertaken, was also unfavourable.
28.In the meantime the complaint to the respondent by the first complainants was investigated. On 3 November 2005 the applicant was interviewed at some length in relation to the circumstances of this complaint by representatives of the respondent.
The second complainant
29.On 22 December 2004 the second complainant executed a contract whereby the applicant’s corporate alter ego, Coongie Pty Ltd, agreed to act as the second complainant’s migration agent for the purposes of obtaining a graduate skilled visa. The applicant lodged this visa application on 7 March 2005.
30.By letter dated 31 March 2005 the second complainant’s application was refused. The applicant was instructed by the second complainant to seek a review of that decision. He lodged an application for review by the Migration Review Tribunal on 1 July 2005. It was common ground at the hearing that the application was lodged one day outside the statutory period within which a review might be sought and that there was no power in the Migration Review Tribunal to extend the time in order to overcome this deficiency.
31.There were attempts[3] thereafter to remedy the matter but ultimately nothing came of them.
[3] The detail is set out in the applicant’s chronology, Exhibit 3. It is unnecessary for present purposes to set out all of that detail.
32.The second complainant made a complaint to the respondent. The applicant was interviewed regarding this complaint on 2 February 2006.
The respondent’s decision
33.Having undertaken interviews of the applicant, the respondent, by letter dated 31 May 2006, set out the matters that were of concern and invited the applicant to provide a submission as to why he ought not be sanctioned under s 303 of the Migration Act.
34.The applicant, with professional assistance, sent a detailed submission dated 3 August 2006 to the respondent. There was further correspondence between the parties thereafter.
35.On 18 December 2006 the respondent decided to suspend the applicant’s registration as a migration agent for a period of 12 months and until the following conditions were satisfied:
“The [applicant] provides documentation of the following, and sufficient time has been allowed for the [respondent] to consider the documentation provided:
(1) the successful completion of private tuition in Professional Ethics for a minimum of four hours conducted by an individual or individuals approved by the [respondent] who is either an immigration law specialist or a migration agent with a minimum seven years experience; and
(2) the successful completion of one CPD Point on Business Management; and
(3) the successful completion of 10 CPD Points for each 12 months that the [applicant] is suspended.”
36.The respondent took the view that the applicant had not complied with the Code of Conduct prescribed under s 314(1) of the Migration Act and that he was not a fit and proper person to give immigration assistance.
The Legislation
37.It is sufficient for present purposes to note s 303(1) of the Migration Act. It is in these terms:
“The Migration Agents Registration Authority may:
(a) cancel the registration of a registered migration 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.”
The Respondent’s Case
38.The respondent’s case, in its final form, was set out in an Amended Statement of Facts and Contentions filed on 6 March 2007[4]. I made rulings on 6 March 2007 in relation to the respondent’s application to amend the Statement of Facts and Contentions that led to the final form of the respondent’s case.
[4] Exhibit 24.
39.I would summarize the five allegations in relation to the first complainants in this way:
(a)the applicant provided immigration assistance to them;
(b)the applicant breached Clause 2.1(a) of the Code of Conduct and did not act in accordance with the law by making misrepresentations to them;
(c)the applicant breached Clause 2.1(b) of the Code of Conduct and failed to deal with the first complainants competently, diligently and fairly by delaying lodgement of applications for skills assessment for a period in excess of two years;
(d)the applicant breached Clause 2.4 of the Code of Conduct because the first complainants were dependent upon his knowledge and experience;
(e)the applicant breached Clause 2.8 of the Code of Conduct by failing to act in accordance with his client’s instructions.
40.The allegations in relation to the second complainant are that:
(a)the applicant breached Clause 2.1(b) of the Code of Conduct by lodging the application for review by the Migration Review Tribunal out of time;
(b)the applicant breached Clause 2.4 of the Code of Conduct because the second complainant was dependent upon his knowledge and experience;
(c)the applicant breached Clause 2.8 of the Code of Conduct by failing to act in accordance with his client’s instructions;
(d)the applicant breached Clause 2.18 of the Code of Conduct by not acting in a timely manner and by not meeting a statutory deadline.
41.In addition, the respondent contends that in the factual circumstances revealed in the case the applicant is not a fit and proper person to give immigration assistance and is not a person of integrity.
The Issues
42.Given the way in which the matter was argued in the hearing the issues that arise for determination are these:
(a)did the applicant provide immigration assistance in relation to the first complainants;
(b)has the applicant breached the Code of Conduct in the manner alleged;
(c)is the applicant not a fit and proper person to give immigration assistance;
(d)what is the appropriate sanction if the applicant has breached the Code of Conduct or is not a fit and proper person to give immigration assistance.
43.I propose to deal with the particular issues raised by the applicant while considering these issues, making findings on disputed questions of fact as I do so.
Immigration Assistance
44.The respondent contends, correctly in my view, that in his dealings with the first complainants, at least from July 2002 onwards, the applicant was providing “immigration assistance” as that expression is used in the Migration Act. The argument for the applicant, which I am unable to accept, is that:
“a request to a ‘relevant assessing authority’ for a skills assessment is not ‘immigration assistance’ within the meaning of s 276 of the Migration Act.”[5]
[5] See Exhibit 2, par [7].
The argument is that it was not open to the respondent (and thus not open to the Tribunal) to deal with the applicant for a failure to comply with the Code in relation to the first complainants because the Code regulated only those activities that involved “immigration assistance”.
45.This argument relies upon remarks of the Full Court of the Federal Court in Hartnett v Migration Agents Registration Authority[6] in these terms:
“It is at least arguable that the Code of Conduct (including cl 2.9) regulates only those activities expressly or necessarily entrusted to migration agents by the Act, namely conduct in connection with the applications identified in s 276(1) and (2).”
[6] (2004) 140 FCR 388 at 402, par.[56].
46.The applicant also relied upon the decision of Emmett J in Silveira v Australian Institute of Management[7] however that case is authority only for the proposition that an assessment of skills by an assessing authority is not a decision under an enactment for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Contrary to the applicant’s submission[8] it is not authority for the proposition that a request to an assessing authority for a skills assessment is not immigration assistance within the meaning of s 276 of the Migration Act.
[7] (2001) 113 FCR 218
[8] Exhibit 2, par. [7(b)] and [14].
47.The starting point in a consideration of this argument is s 276 of the Migration Act. It is necessary for the present case to consider only sub-sec (1) of that section. It provides:
“(1)For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:
(a)preparing, or helping to prepare, the visa application or cancellation review application; or
(b)advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or
(c)preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or
(d)representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.”
48.The Full Court in Hartnett[9] regarded it as being of “some significance” that “immigration assistance” included only:
· acting or assisting in a visa application;
· acting or assisting in a cancellation review application;
· acting or assisting in nominating or sponsoring a visa applicant.
[9] Note 6 above at p 390, par [30].
49.As I have said I am unable to accept the applicant’s argument. The applicant was retained by the first complainants, at the very latest by 26 July 2002, when he forwarded his banking details to the first complainants. His retainer was, at least implicitly, to undertake the steps necessary to aid the first complainants’ application for a skilled-independent visa[10]. Obtaining an assessment of qualifications was an essential element of the application for a visa. The steps necessary to obtain an assessment of qualifications amounted to conduct in connection with a visa application and accordingly fell within the definition of “immigration assistance” in s 276(1) of the Migration Act. As Senior Member Penglis observed in Narayanan and Migration Agents’ Registration Authority[11] s 276(1) of the Migration Act contemplates that the assistance given to a “visa applicant” will include assistance in preparing the application for a visa. In these circumstances it could hardly have been intended to limit the expression “visa applicant” only to those who have, in fact, completed an application for a visa. In my view the expression includes those who intend to make applications for a visa and who embark upon the steps necessary to put that application in motion. That will include, relevantly, the making of an application for a skills assessment.
[10]See the applicant’s e-mail of 22 July 2002.
[11] [2006] AATA 353.
50.It is not to the point that at the relevant times the first complainants had not completed the form of application required by the Department of Immigration and Multicultural and Indigenous Affairs (as it was then called). A “visa applicant” is defined by s5 of the Migration Act as being an applicant for a visa. The first complainants answered that description when they engaged the applicant to act on their behalf to apply for visas. That engagement included the completion of the steps made necessary by the Migration Regulations 1994, in particular Reg. 136.222.
51.Accordingly, I do not accept the applicant’s first argument and am satisfied that in his dealings with the first complainants he was providing immigration assistance and was bound by the provisions of the Code of Conduct.
Breach of the Code of Conduct
52.The Migration Act, by s 314, allows for the Regulations to prescribe a Code of Conduct and requires registered migration agents to conduct themselves in accordance with the prescribed Code.
53.The provisions of the Code that are relevant are as follows:
“2.1A registered migration agent must always:
(a)act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client; and
(b)deal with his or her client competently, diligently and fairly.
However, a registered migration agent operating as an agent in a country other than Australia will not be taken to have failed to comply with the Code if the law of that country prevents the agent from operating in compliance with the Code.
2.4A registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.
2.8A registered migration agent must:
(a)within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing to the client; and
(b)act in accordance with the client’s instructions; and
(c)keep the client fully informed in writing of the progress of each case or application that the agent undertakes for the client; and
(d)within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client’s case or application.”
Clause 2.1(a)
54.The case for the respondent seemed to assume, wrongly in my view, that for a breach of Clause 2.1(a) to be shown there needed to be both unlawful conduct and a failure to act in the legitimate interests of the client. That led the respondent on a search for a characterisation of the applicant’s conduct that answered the description of “unlawful”. The respondent’s case was put on the basis that the applicant made misrepresentations to the first complainants and that the making of those misrepresentations constituted conduct that was misleading and deceptive contrary to s52 of the Trade Practices Act 1974 (Cth.).
55.I do not consider that Clause 2.1(a) needs to be viewed in that way. And, as it seems to me, it is unnecessary in the present case to isolate conduct that is “unlawful”. It is enough, and constitutes a failure to comply with the Code, if the conduct in issue is not conduct in the legitimate interests of the client.
56.It is plain that for a period in excess of two years the applicant falsely maintained to the first complainants that he had lodged their applications for skills assessment when he had not done so. Time and time again from September 2002 onwards the applicant lied to the first complainants. I am satisfied that the applicant’s conduct in lying to the first complainants in this way and over that period of time constituted a failure on his part to act in their legitimate interests.
57.That finding, in my view, sustains a finding that the applicant did not comply with Clause 2.1(a) of the Code of Conduct. It is unnecessary to reach a conclusion about the lawfulness of the conduct that constitutes that failure. The conduct takes its character from what the applicant did, or failed to do; it does not take its character from the legal label that might be applied to it in other settings.
Clause 2.1(b)
58.The respondent alleges a breach of this clause in relation to both the first and second complainants.
59.In the case of the first complainants I consider the allegation to be made out. The applicant’s repeated lies to them make it impossible for me to regard his conduct as competent, diligent or fair. His treatment of the first complainants was frankly disgraceful. The applicant propounded, somewhat faintly, two reasons for his delay – his illness during part of the period and the fact of having lost the first complainants’ file for a period of time.
60.Were this to be a matter involving delay only those reasons might have relevance but they are not to the point here. The gravamen of the complaint is the making of repeated false statements over a period in excess of two years. Illness and losing the file did not cause, or contribute to, the sustained untruthfulness practiced by the applicant upon the first complainant.
61.I find the position in relation to the second complainant to be more difficult. It is not in issue that the applicant missed a statutory deadline by one day. Whatever may be said of that it does not involve any issue of fairness; what is in issue is whether in missing that deadline the applicant breached the obligation in Clause 2.1(b) to act competently and diligently.
62.I think, on balance, that he did breach this obligation in relation to the second complainant. Competence requires compliance with statutory deadlines. It might even be thought that diligence requires lodgement of appeal proceedings well before the expiry of deadlines so that there is no question of non-compliance but, in any event, a competent and diligent agent would ordinarily be expected to meet statutory deadlines.
Other breaches of the Code
63.The respondent was at pains, or so it seemed to me, to attach as many labels of breach of the Code as possible to the applicant’s conduct. I do not share the enthusiasm for attaching labels. In my view, it does not matter how many clauses of the Code are breached; what is important is that there be a failure to comply with the Code. Once the respondent (or the Tribunal) is satisfied that there has been such a failure, the disciplinary power is enlivened. That power is exercised by reference to the nature of the underlying conduct and the extent to which, by reference to that conduct, the applicant’s conduct fell below the standard expected. The factual findings made inform the exercise of respondent’s disciplinary power.
64.Given that I am satisfied that the applicant did not comply with the Code of Conduct, I do not find it necessary to determine whether the same conduct also amounted to a failure to comply with Clauses 2.4 and/or 2.8.
A Fit and Proper Person
65.The disciplinary power is also enlivened if I were to be satisfied that the applicant was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance.
66.It is at this point in the enquiry that it is relevant for me to have regard to the evidence on behalf of the applicant that attests to his competence and good character.
67.Mr Bruce Henry is a solicitor and migration agent with vast experience. He speaks of the applicant’s “experience and integrity as a migration agent”. Another solicitor, Mr Peter Rosengren, speaks of always finding the applicant to be “of utmost integrity.” Ms Lesley Hunt, another migration agent, regards the applicant to be “an honest and forthright gentleman” who is “a very competent migration agent” and “a man of integrity”. Mr Lorenzo Boccabella of counsel also speaks of the applicant as being “a very competent agent of high integrity”.
68.Whilst the respondent did not require any of these witnesses for cross-examination, the difficulty I face is that it is not clear that any of the witnesses were aware of the extent of the applicant’s aberrant conduct. The closest may be Mr Boccabella who speaks of having read the allegations contained in the material from the respondent and states “that such behaviour is out of character” for the applicant.
69.It is also relevant in this context that these present complaints appear to be the only blemishes upon the applicant’s record in a number of years of practice as a migration agent.
70.The test to be applied in the present case has been considered in a number of decisions of the Tribunal. In Feng and Migration Agents Registration Authority[12] Deputy President Purvis QC, having reviewed a number of the earlier authorities, said[13]:
[12] [2002] AATA 709
[13] At par [15]-[20]
“15. A consideration as to whether or not an applicant is a person of integrity cannot be disassociated from the character of that person. It is on account of the above mentioned significant position occupied by a migration agent that she or he is required to be a person of integrity or otherwise fit and proper to give immigration assistance. The responsibilities entailed in the rendering of assistance extend not only to prospective visa or migration applicants but also to the Department administering the legislation. As was stated in Hughes and Vale Proprietary Limited and Anor and The State of New South Wales (No. 2) (1955) 93 CLR 127 at 156, fit and proper:
“…with respect to an office is said to involve three things, honesty, knowledge and ability: ‘honesty to execute it truly, without malice or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it.”
16. The concept of fitness and probity is not however to be narrowly construed or confined. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 and affirmed in Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 34 ALD 324 at 328 it was stated:
“The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can assumed that it will not occur, or whether the general community will have confident that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”
17. There is an explicit link then between fitness and probity on the one hand and character on the other.
18. The establishment of good character is important in various areas of immigration practice. In the present application, the Tribunal is invited to assess the character of the Applicant in the context already discussed, of the manner of his dealing with a number of clients and in his conduct in relation to migration affairs generally.
19. The Migration Agents Registration Scheme administered by the Migration Agents Registration Authority is one that:
“…seeks to achieve that object (effective administration of the Act) by protecting aliens from incompetent and unscrupulous advisers through the introduction of a regulatory regime which is designed to ensure that those who advise and represent aliens are competent and are persons of integrity”.
(Cunliffe and Anor v Commonwealth of Australia (1994) 182 CLR 272 at 294).
20. To insure effective and proper administration of the Act, the Respondent is entitled to be able to rely upon the honesty of those registered with the Department.”
71.I have given anxious consideration to this issue, but ultimately have come to the conclusion that the applicant’s conduct in relation to the first complainants and the second complainant does not warrant the conclusion that he is not a person of integrity or is not a fit and proper person to provide immigration advice.
72.His failure to lodge the second complainant’s application for review within time says nothing about the applicant’s integrity and, without more, that failure does not suggest that he is not a fit and proper person. He was undoubtedly guilty of negligence in relation to the second complainant but that does not, either alone or in combination with his conduct in relation to the first complainants, lead me to conclude that he is not a person of integrity or not a fit and proper person.
73.The applicant’s conduct in relation to the first complainants is more troubling. There, for a period in excess of two years, he falsely presented to them that he had lodged their applications for skills assessment when he had not. He created an elaborate web of deception that had the effect that the first complainants spent some two years in limbo, uncertain about their future and unsure whether they would be successful in their applications for visas. There can be no doubt that the applicant’s conduct towards them was disgraceful.
74.The applicant, whilst admitting his culpability, was quite unable to explain why he had lied to the first complainants over the period that he did. It is a curious feature of the case that the applicant did not benefit financially from doing so; he says and his evidence was not challenged, that he still retains the full amount of the fees paid by the first complainants in his trust account.
75.Whilst the applicant did not himself propound an explanation it seems to me that the only logical explanation is that having initially told an untruth to conceal a failure to act in accordance with his clients’ instructions he found himself caught up in an increasingly impossible situation. He could not, without admitting his lack of competence, act truthfully towards his clients and was for this reason compelled to maintain the façade. He lacked the fortitude to tell the first complainants what had gone wrong.
76.But, not without some hesitation, I have concluded that these matters do not warrant the conclusion that the respondent seeks. In the circumstances of this case, and particularly having regard to the other evidence of “good character” and absence of other complaints, I have reached the conclusion that the applicant’s conduct was indeed out of character and that, notwithstanding that conduct, he was and is otherwise a person of integrity and a fit and proper person to give immigration advice.
77.I propose however, to tailor a response by way of discipline to ensure as far as possible that the applicant has some assistance in avoiding problems of this nature in the future.
The Appropriate Sanction
78.Having concluded that the applicant failed to comply with the Code of Conduct, I turn then to the appropriate sanction. The respondent does not suggest cancellation is appropriate and I do not regard a caution as being an adequate sanction.
79.The respondent imposed a suspension of 12 months subject to the applicant complying with certain conditions. Whilst I can appreciate the consideration that leads to that conclusion I propose to vary that in two ways but the variation ought not be regarded as lightening the sanction imposed on the applicant.
80.First, I propose to add a further condition requiring the applicant to refund to the first complainants the whole of the fees paid to him. The first complainants obtained no benefit from his services and I think it appropriate that, as a condition of lifting his suspension, he be obliged to repay the monies received from them. As I understood his evidence at the hearing he is prepared to agree to that condition in any event.
81.Secondly, I propose to reduce the period of suspension from 12 months to 6 months but to impose upon the applicant, in the 6 months after the suspension is lifted, a requirement that he be supervised in his practice by an experienced migration agent of his choosing. I have in mind imposing upon the application for a period of 6 months a type of supervisory regime similar to that imposed by s 306AA of the Migration Act when an order for a stay of a s 303 cancellation or suspension decision order is made but modifying slightly the regime.
82.I propose to adopt that course because I consider that the applicant would benefit from the mentoring that would follow from a period of supervision in this way, principally because it would assist him to develop ways of ensuring that his conduct was not the subject of adverse attention by the respondent in the future. That would not only benefit the applicant, it would, as well, benefit the wider community that might have dealings with him in his capacity as a migration agent.
83.I propose to publish these reasons and invite the parties to submit an agreed draft within 14 days. The draft ought to incorporate a decision:
(a)setting aside the decision of the respondent made on 18 December 2006;
(b)substituting a decision in substitution thereof that the applicant’s registration be suspended but that that suspension be lifted on 18 June 2007 provided that:
(i)the applicant has complied with the conditions as specified in the respondent’s original decision;
(ii)the respondent is satisfied that the applicant has refunded to the first complainants the total sum[14] paid by them to him;
(iii)the application agrees that for a period of 6 months after the suspension is lifted his practise as a registered migration agent will be supervised by a named registered migration agent who will supervise the works of the applicant for a period of 6 months including supervision of the type set out in paragraphs (c), (d) and (e) of s7B(4) of the Migration Agents Regulations 1998.
[14]My understanding of the evidence is that that sum is $3000 but the parties ought agree upon, and specify, an amount.
84.I would expect the parties to be able to agree upon the form of words but if that is not possible they each ought submit a draft to my Associate, together with short submissions in support of that draft. I propose at this juncture to merely adjourn the proceedings to a date to be fixed to enable the parties to consider, and agree if possible, the terms of a decision to give effect to these reasons.
I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ..................Signed....................................................
Eleanor O’Gorman, AssociateDates of Hearing 6 & 7 March 2007
Date of Decision 20 April 2007
The Applicant appeared for himselfSolicitor for the Respondent Clayton Utz Lawyers
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