VOLONSKI and MIGRATION AGENTS REGISTRATION AUTHORITY

[2010] AATA 765

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 765

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4293

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ARTHUR VOLONSKI

Applicant

And MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Ms N Bell,Senior Member

Date6 October 2010

PlaceSydney

Decision The Tribunal affirms the decision under review.

.........................[sgd]........................................

Ms N Bell, Senior Member

CATCHWORDS – Migration agents registration – immigration assistance - fit and proper person – person of integrity – criminal offences – assault – false declarations – notification of convictions – failure to act in best interests of clients – competence

Crimes Act 1914

Judiciary Act 1903

Migration Act 1958

Migration Agents Regulations 1998

Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1995) 93 CLR 127

Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12

REASONS FOR DECISION

Ms N Bell,Senior Member

1.      

Arthur Volonski has been a registered migration agent, on and off, since 1998.  At various times his registration has lapsed and he applied, successfully, for re-registration. In September 2006, Mr Volonski applied for re-registration as a migration agent after his registration had lapsed in September 2005. On

8 August 2007, the Migration Agents Registration Authority refused his application for registration on the grounds that Mr Volonski is not a fit and proper person to give immigration assistance or he is not a person of integrity: section 290 of the

Migration Act 1958

.  In particular, MARA noted that Mr Volonski:

(a)

was convicted of the criminal offence of common assault on

29 May 2001;

(b)

failed to notify MARA of his conviction and made false declarations that he had no criminal conviction (section 312 of the

Migration Act 1958);

(c)failed to act in the legitimate interests of his clients or treat his client competently, diligently or fairly (clause 2.1 of the Migration Agents’ Code of Conduct – schedule 2 of the Migration Agents Regulations 1998);

(d)failed to have due regard to his clients’ dependence on his knowledge and experience (clause 2.4 of the Migration Agent’s Code of Conduct);

(e)encouraged his clients in a vexatious or hopeless application under the Migration Act 1958 and failed to advise his clients in writing and obtain their written acknowledgement of their receipt of his advice (clause 2.17 of the Migration Agent’s Code of Conduct).

criminal conviction

2.      

It is not in dispute that Mr Volonski was convicted of common assault on

29 May 2001 and sentenced to a three year bond to be of good behaviour.

Mr Volonski maintains that he was unaware he had been convicted, notwithstanding that he had pleaded guilty to the offence and had been present in court when sentenced. He also maintains that he was, in fact, not guilty but decided, without legal representation, to plead guilty.

3.      Mr Volonski described the circumstances of the offence as follows: in the company of his then pregnant wife, Mr Volonski pushed aside a motorbike rider who had almost collided with his wife at a pedestrian crossing.  The rider jumped off his bike and began to shout at Mr Volonski and his wife.  Mr Volonski pushed the rider away and went to his car.

4.      Mr Volonski said he pleaded guilty because he was concerned for his wife’s health and simply wanted the matter to be resolved and finished.  He still maintains that he did not, in fact, commit the offence. 

false declarations and failure to notify of the offence

5. Section 312 of the Migration Act 1958 provides that a registered agent must notify MARA as soon as is reasonably possible after he or she is convicted of an offence under a law of the Commonwealth or of a state or territory.

6.      Mr Volonski did not alert MARA to his 2001 conviction despite having made applications for registration and re-registration in 2002, 2003, 2004, 2005 and 2006. This is not disputed by Mr Volonksi. Some of these applications included a statutory declaration to the effect that he had not been convicted of an offence. Mr Volonski restated to the Tribunal his argument that he had not understood that he had been convicted of an offence and, in any event and despite his plea of guilty, he had not committed the crime of common assault.

7.      Mr Volonski also argued that his conviction was a spent conviction within the meaning of the Crimes Act 1914 and therefore it was lawful for him to not disclose the conviction. However, section 85ZZH of that Act specifically excludes protection of non-disclosure when the disclosure would be made to a person making a decision under the Migration Act 1958, namely MARA.

8.      I note that in the course of the hearing Mr Volonski gave evidence that he was also convicted of a drink driving offence 10 to 12 years ago but did not notify MARA of that conviction either.

9.      

Mr Volonski argued that his convictions do not go to matters that would be of concern to MARA or that are relevant to his fitness to be a migration agent.  He referred the Tribunal to section 3.5.3.2.2 of the MARA Policy and Procedures Manual which lists a range of convictions, including assault, as well as listing factors that MARA is to consider when deciding if those convictions are relevant to the question of whether the applicant is a fit and proper person or a person of integrity. The considerations that MARA is to take into account include the nature, severity and frequency of offences, how long ago the crime was committed, the existence of a pattern of non-compliance with the law and any mitigating circumstances.

Mr Volonksi therefore submitted that these considerations were relevant in determining his fitness to be a migration agent.

10.     

I also note that the Manual provides that spent convictions are excluded from consideration under section 290(2)(c) of the Migration Act 1958. Given that

Mr Volonski’s convictions are spent and therefore not be considered in the context of section 290 of the Migration Act 1958, there is no need to consider their relevance to Mr Volonski’s fitness to be a migration agent.

11. While Mr Volonski’s convictions, as spent convictions, should not be taken into account in relation to consideration as to whether he is a fit and proper person or a person of integrity, I am satisfied that he failed to notify MARA of his convictions and thereby contravened section 312 of the Migration Act 1958.

failed to act in the legitimate interests of his clients or treat his client competently, diligently or fairly

12.     Clause 2.1 of the Migration Agent’s Code of Conduct provides:

Part 2 Standards of professional conduct

2.1 A 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.

13.     MARA referred to the role played by Mr Volonski in two judicial review applications before the Federal Court and the Federal Magistrates’ Court.  It contends that Mr Volonski was providing immigration assistance in each of these proceedings, neither of which was successful and in both of which personal costs were ordered against Mr Volonski.

14.     In particular, in relation to the appeal to the Federal Magistrates’ Court, MARA referred me to the following statement by Driver FM:

In my view, in this matter Mr Volonksi has strayed beyond the proper role of a migration agent to the extent of actively encouraging the pursuit of hopeless litigation in the Court. He should not have profited from the conduct and the interests of justice in my view require an order that he bear the Minister’s costs of the legal proceedings that were summarily dismissed to the extent that he has profited.

15.     

Driver FM found that Mr Volonski had assisted the applicant to persue proceedings “in circumstances where the proceedings were significantly under

Mr Volonski’s care and control”.

16.     MARA also referred me to the judgment of North J in which his Honour stated:

I suppose I should finally direct, to Mr Volonksi in particular, the comment that were he to fulfil his duty of properly representing these appellants, then he might have been better to seek to improve the evidence, improve the explanation before the court, than seek to argue the impossible; namely that the evidence was satisfactory.

17.     MARA submitted that in these applications which were found to be hopeless by the courts Mr Volonski did not act in the legitimate interests of his clients and nor did he treat them diligently, competently or fairly.

18.     Mr Volonski denied having represented or acted for the applicants before the Federal Magistrates Court.  He did accept that his secretary had prepared and sent a letter to the Minister’s legal representatives in that case saying that Mr Volonski’s firm had instructions in the matter.  He also agreed that he had kept the applicants’ file and correspondence in his office and had been something of a “post box”.  He maintained that he had advised the applicant that his action would fail.  He insisted he had not prepared an affidavit for the applicant and that his Secretary had made a mistake.  He said he had merely directed the applicant to some authorities he had in his office library.

19.     

In relation to the appeal to the Federal Court, Mr Volonski said he had been present at Court because the applicant had been unrepresented and asked

Mr Volonski to attend court with him.  Mr Volonski said he spoke on the applicant’s behalf.  He said he regretted his involvement in the case and accepted that he had misunderstood the Migration Agent’s Code of Conduct.

20.     In relation to both cases, he denied that he had represented the parties, but conceded he had been “involved”. Mr Volonski said he considered and still considers the Court to have been wrong in relation to the arguments he made before it.

21.     I am satisfied that Mr Volonski failed to treat his clients competently or to act in their legitimate interests. The statements of their Honours make this clear.

failed to have due regard to his clients’ dependence on his knowledge and experience

22.     Clause 2.4 of the Migration Agent’s Code of Conduct provides:

A registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.

23.     MARA submitted that by pursuing hopeless claims on his clients’ behalf, even though he said he had advised that they were hopeless, Mr Volonski failed to have regard to his clients’ reliance on his expertise.  In particular, MARA referred me to the following statement by North J when his Honour dealt with the question of costs:

Well, the second issue is this. That when it came to the arguments put on the appeal, again, you were a non lawyer operating in a legal environment. Some arguments were arguable in the sense that they are the normal sort of arguments that we hear on appeal even though they failed. Other arguments were completely and utterly hopeless, without merit and no lawyer would bother the Court with raising them. Even today you persist in saying that it ought to persuade the Court that there were other cases of a similar nature where the Department agreed to remit them to the Tribunal.  

24.     I am satisfied that Mr Volonski failed to have regard to his clients’ reliance on his knowledge and expertise which, in these cases, was at a low level.

encouraged his clients in a vexatious or hopeless application under the migration act and failed to advise in writing

25.     Clause 2.17 of the Migration Agent’s Code of Conduct provides:

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) a registered migration agent:

(a) must not encourage the client to lodge the application; and

(b) must advise the client in writing 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).

26.     Mr Volonski maintained that he had advised his clients that their case was hopeless.  However, he said he did not advise them of this in writing because the above clause only applies, in his opinion, to applications made under the Migration Act 1958 and the applications to the Federal Magistrates Court and to the Federal Court were made under the Judiciary Act 1903.

27.     He also said he knows of hundreds of migration agents who have lodged “really spurious” applications without any adverse consequences.

28.     I am satisfied that Mr Volonski did not advise his clients in writing that their cases would not succeed.  I reject as misconceived his argument that there was no need to do so in relation to Court proceedings.

is mr volonski a person of integrity or a fit and proper person to provide immigration assistance?

29.     

Section 290 of the Migration Act 1958 provides that an applicant must not be registered as a migration agent if MARA is satisfied that the applicant is not a person of integrity or if the applicant is not a fit and proper person to give immigration assistance.  The range of matters which MARA must take into account in considering whether an applicant is not a person of integrity or not fit and proper includes any conviction of the person (except a conviction which is spent) (section 290(2) of the Act). I therefore do not have regard in this consideration to Mr Volonski’s spent convictions, except in so far as they are relevant to any failure to notify under

section 312 and any failure to disclose. Section 290(2) also requires MARA to take into account any other matter relevant to the applicant’s fitness to give immigration assistance.

30.     In considering the term ‘fit’ within a context of licensing for the use of vehicles, Dixon CJ, McTerinan and Webb JJ said in Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1995) 93 CLR 127, 156-7:

‘Fit’ (or ‘idoneus’) with respect to an office, is said to involve three things, honest, knowledge and ability: ‘honesty to execute it truly, without malice affection 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.

31.      In Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12, MacMahon DP considered the meaning of the word ‘integrity’ within the context of migration agents to consist of “soundness of moral principle and character, uprightness and honesty.”

32.     I am not satisfied that Mr Volonski was not aware that he had been convicted of a criminal offence in 2001. Even if he had not grasped the significance of the proceedings at the time they took place, his continuing professional involvement with the Australian legal system until 2006 and beyond should have brought it to his notice.  If after more than five years of professional work he was still not alert to his own conviction, then this raises questions about his competence.

33.     I find that Mr Volonski failed to notify MARA of his 2001 conviction and his conviction for drink driving, mentioned by him at the hearing of this application.

34.     

Questions as to Mr Volonski’s competence are also raised by the comments of North J and Driver FM, as discussed above.  The awards of personal costs against him by the Federal Court and the Federal Magistrates Court underline these questions.  I find, on the basis of their Honours’ awards and their comments, that

Mr Volonski breached clauses 2.1, 2.4 and 2.17 of the Migration Agent’s Code of Conduct in the manner contended by MARA.  I am not dissuaded from this by the distinctions sought to be made by Mr Volonski between mere “involvement” and representation.  He provided assistance to the applicants in actions that were, according to their Honours, hopeless.  He failed to document his alleged advice of that hopelessness, relying on a technical distinction between applications under the Migration Act 1958 and applications before the Courts notwithstanding that the applications in question concerned the Migration Act 1958.  This is a spurious distinction and betrays a lack of understanding of his role and a failure to appreciate the seriousness, for any adviser, of having had costs awarded against him personally.

35.     In these breaches Mr Volonski exhibited a lack of understanding of the law and legal process and a reckless attitude to the dangers of holding oneself out as an adviser when one does not possess the requisite expertise.  His lack of contrition underlines this.

36.     Mr Volonski raised a number of matters of a personal nature occurring in 2001 that had caused him some hardship.  However, none of these matters, including his Family Law proceedings in relation to his son, directly impacted on his ability to disclose the required information to MARA.  Nor did they affect his performance in relation to the Federal Court and Federal Magistrates Court applications in 2005.

37.     I am satisfied that Mr Volonski is not a fit and proper person to provide immigration assistance.

decision

38.     The Tribunal affirms the decision under review.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed: …….....................[sgd].................................................
  Associate: Lloyd Doherty

Date of Hearing  18 May 2010
Date of Decision  6 October 2010
Solicitor for the Applicant          Unrepresented 
Solicitor for the Respondent     Ms Alice Linacre, Clayton Utz