Woods (No. 2) and Migration Agents Registration Authority
[2004] AATA 458
•11 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 458
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V03/165
GENERAL ADMINISTRATIVE DIVISION ) Re JAMES MALCOLM WOODS (No. 2) Applicant
And
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Mr J Handley, Senior Member
Associate Professor J Maynard, Member
Date11 May 2004
PlaceMelbourne
Decision 1. The decision under review in so far as it found a breach of Clauses 2.1 and 8.2 of the Migration Agents Code of Conduct is affirmed.
2. The decision with respect to penalty is varied and in substitution IT IS DECIDED the applicant be cautioned.
3. The remaining parts of the decision under review with respect to Clauses 8.1 and 8.3 are set aside and in substitution IT IS DECIDED that the applicant was not in breach of these Clauses.
(Sgd) J Handley
Senior Member
MIGRATION AGENTS REGISTRATION – Agent suspended for three years – alleged breaches of Clauses 2.1, 8.1, 8.2 and 8.3 of the Migration Agents Code of Conduct – withdrawal of fee guarantee – failure to properly supervise staff – failure to exercise effective control of office – false declaration that an employee was not acting as a migration agent – complaints to other professional and disciplinary bodies not substantiated or proved – decision that Clauses 2.1 and 8.2 breached – decision that Clauses 8.1 and 8.3 not breached – decision on penalty set aside – caution imposed per s303 of Migration Act
PRACTICE AND PROCEDURE – the respondent alleged employee solicitor had acted as a migration agent – allegation dismissed by respondent in 2001 after submissions made – five days prior to the solicitor giving evidence in these proceedings MARA decided to reopen its earlier enquiry – notice not given to the solicitor – reopening of enquiry advised by respondent’s Counsel immediately prior to commencement of hearing – respondent undertook not to reopen the inquiry – respondent’s conduct was either intimidating or naïve – obligation under Model Litigant Policy discussed
DISPUTE RESOLUTION – employee solicitor of applicant and complainant to MARA participated in a Conciliation Conference at Legal Profession Tribunal (Victoria) – solicitor appeared on behalf of applicant – settlement achieved – Conciliator certified resolution – whether content of discussions prohibited from disclosure in evidence in this review – s296(1) of Legal Profession Act – direction – in the context of citizen review – the issues in dispute in these proceedings (being different but related to the subject of the Conciliation Conference) and avoiding offence to public policy – the exclusion by privilege not available to MARA
Migration Act 1958 (Cth) s276 and s276(1) and s276(1)(a) and s276(1)(b) and s276(1)(c) and s276(1)(d), s280, s290, s303, s303(b) and s303(h) and s309(2) and s314
Legal Practice Act 1996 (Vic) s129(6)
Olam v Congress Mortgage Co. (N.D. Cal.1999) 68 F.Supp.2d 1110
REASONS FOR DECISION
11 May 2003 Mr J Handley, Senior Member
Associate Professor J.H. Maynard, Member1. On 3 February 2003 the Migration Agents Registration Authority (“MARA”) pursuant to s303(b) of the Migration Act 1958 (“the Act”) decided to suspend the applicant’s registration as a migration agent until the following conditions were satisfied namely:
(i)a period of three years had passed from the date of the decision of 3 February 2003 was notified to him; and
(ii)he provides a statutory declaration in Commonwealth form stating that he had not made immigration representations for a fee nor given immigration assistance as defined in the Act while suspended.
2. In making these decisions MARA found:
(a)the applicant had failed to act in accordance with the legitimate interests of his clients and failed to deal with his client competently, diligently and fairly in contravention of cl2.1 of the Code of Conduct (“the Code”) as at 1 April 1998; and
(b)the applicant failed to exercise effective control of his office for the purpose of giving immigration advice and assistance in contravention of cl8.1 of the Code; and
(c)had failed to properly supervise the work carried out by staff for him in contravention of cl8.2 of the Code; and
(d)the applicant had failed to ensure that all immigration assistance was given by a registered migration agent in contravention of cl8.3 of the Code.
3. The hearing of this review was conducted between 13 and 16 May 2003. It commenced upon the conclusion of the review of another decision of the respondent involving the applicant in application V2002/724. The decision in both applications will be delivered simultaneously. Both decisions shall be distinguished by “No. 1” and “No. 2”, this being the latter.
4. In the present application Mr Woods was self represented and Mr Star of Counsel appeared on behalf of MARA. A number of witnesses were called to give evidence and a number of documents were received into evidence. The evidence of the witnesses and the documents relied upon will be referred to in this decision.
5. The application arises out of a complaint made to MARA by Mr Tony Freeman on 30 August 1999. Mr Freeman provided an outline of his evidence and was called to give evidence. In order to explain the background to this complaint by Mr Freeman (upon which MARA acted and which has given rise to the decision under review in these proceedings) the outline of the evidence of Mr Freeman which was received as Exhibit 8 (and over which he was cross-examined) is reproduced as follows:
. . .
2. On 5 March 1998 Mr Freeman met with the Applicant, at which time he discussed and then signed the retainer letter from Law Partners at T15 at pp95-98.
3. In their meeting on 5 March 1998-
(a)Mr Freeman sought advice about the refusal of the Australian Embassy dated 9 February 1998 to grant Ms Zaitseva a visa: see T9 at pp50-52. The Applicant advised that time to appeal the refusal in Moscow to grant Ms Zaitseva a visa had run out (was just about to run out and there was insufficient to prepare documents for a Federal Court Appeal). It was discussed that Law Partners would prepare a new application which Mr Freeman would forward to Ms Zaitseva to lodge with the Australian Embassy in Moscow.
(b)There was no mention of how much money Ms Zaitseva had. The only knowledge at that time that Mr Freeman had of her finances was the amount of $US2,OOO listed on her first visa application form.
(c)There was no discussion at all about whether or not Ms Zaitseva was willing to enrol in any course or school in Russia.
4. On or around 10 March 1998 Mr Freeman received from Ms Zaitseva various documents. This included a second refusal in Moscow to grant Ms Zaitseva a visa: T11 at pp57-58. On 12 March 1998 Mr Freeman attended Law Partners’ office for a prearranged meeting with the Applicant. When Mr Freeman arrived he was seen instead by Jeremy Tobin of Law Partners. Mr Freeman gave various documents to Mr Tobin for the Applicant, including the second refusal in Moscow to grant Ms Zaitseva a visa. Mr Freeman requested that the Applicant lodge an appeal to the Federal Court as, on the basis of the second refusal, it became apparent to Mr Freeman that there was still sufficient time to do so.
5. As Mr Freeman had no response from the Applicant to his request regarding the appeal to the Federal Court, he wrote a letter of complaint to the Applicant dated 3 April 1998: T18 at p101. Within a few days, in response, the Applicant telephoned Mr Freeman. The Applicant apologised a few times and said that time to go to the Federal Court has passed again. The Applicant said that the silver lining was that there was now time to get FOI documents for all documents lodged for both refusals and that he would make it up to Mr Freeman.
6. Mr Freeman had a few telephone discussions with Mr Dronjic of Law Partners about the matter prior to 6 May 1998. Then on 6 May 1998 Mr Freeman met with Mr Antonio Dronjic. At this time-
(a)Mr Dronjic advised that upon receiving the FOI documents he had found that one of the main problems with Ms Zaitseva's previous application was the fact that she had not lodged original documents with the Australian Embassy. Mr Dronjic requested that original documents be supplied and English translations obtained.
(b)Mr Freeman informed Mr Dronjic that Ms Zaitseva's employment had been terminated but she had had obtained other employment commencing September 1998. Mr Dronjic requested that Ms Zaitseva obtain a letter from her new employer stating that she was to commence work in September 1998, what her salary was to be, that the employment was to be long term and that she could have the time off to travel.
(c)Mr Freeman informed Mr Dronjic that Ms Zaitseva (like many Russians) had a concern due to the political and economic instability in Russia of keeping all their money in the bank, particularly $US. Mr Freeman informed Mr Dronjic that Ms Zaitseva had 2 bank accounts, one for $US and one for Russian Rubles and her practice was to keep about 50% of her $US in the bank and the remainder at home. Mr Freeman informed Mr Dronjic that in February 1998 Ms Zaitseva placed all her $US in the bank to obtain a bank statement of her total savings. At a later time she withdrew approximately half again to keep at home. Mr Freeman said to Mr Dronjic that Ms Zaitseva requested to know whether or not she needed to put all the $US in the bank again for a new bank statement. Mr Dronjic said to Mr Freeman that this was not necessary and not a problem. Mr Dronjic advised that a bank statement showing that Ms Zaitseva had $US10,000-12,000 was sufficient for a visa application to Australia for a period of 2 months to show she had the funds to maintain herself, if the need arose, while she was in Australia.
(d)Mr Dronjic advised Mr Freeman that Ms Zaitseva should enrol in some course or school in Russia for the purpose to create another factor in enhance her chances of obtaining a visa, ie another factor why she will return to Russia.
7. On 25 May 1998 Mr Freeman had a telephone conversation with Mr Dronjic of Law Partners.
(a)Mr Freeman said that Ms Zaitseva had spoken to her new employer concerning the requested letter and that the letter would be forthcoming except that the employer would not state that the employment was guaranteed in the long term in case things did not work out. Mr Donjic agreed with Mr Freeman that this was reasonable.
(b)Mr Freeman advised Mr Dronjic that Ms Zaitseva was not prepared to enrol in some course or school in Russia for the purpose of her visa application.
8. Mr Freeman received Law Partners' letters dated 25 May 1998 and 3 June 1998 withdrawing the fee guarantee that was agreed to with the Applicant. See T20 at pp103-104 and T22 at pp106-107.
9. Mr Freeman wrote contemporaneous letters providing a reliable note as to the above matters, in particular-
·Mr Freeman's letter to the Applicant dated 3 April 1998: Tl8 at p1O1;
·Mr Freeman's letter to the Applicant dated 27 May 1998: T21 at p1O5;
·Mr Freeman's letter to the Applicant dated 7 June 1998: T23 at pp1O8-111;
·Mr Freeman's statement sent to MARA on 25 August 1999 at pp174-186 of T62.
JAMES MALCOLM WOODS
6. Mr Woods said that when Mr Freeman consulted him in March 1998, Law Partners Pty Ltd (being an incorporated legal practice over which Mr Woods had a 95% shareholding) was a large and growing migration practice employing six or seven solicitors and migration agents. He described his role as managing and supervising the practice and taking a particular interest in the immigration division of the practice. He said Law Partners were advertising extensively and it was his understanding that Mr Freeman consulted Law Partners because of that advertising.
7. Mr Woods recalled that Mr Freeman consulted him initially concerning a visitor visa application for a female friend (Miss Zaitseva) from Russia. He said that Mr Freeman instructed him that he had travelled to Russia on a number occasions and Miss Zaitseva wanted to come out to Australia to teach him the Russian language. He said that Mr Freeman instructed him that an application to have her come to Australia on a visitor visa had been refused.
8. After discussions with Mr Freeman concerning the strength of his application, Mr Woods said that he advised him to lodge a fresh application for a visitor application visa and in the event that it was refused, to consider lodging an appeal with the Federal Court. Mr Woods said that in 1998, merits review of a refusal of visitor visa’s were not permitted. He said that Law Partners had experience in acting for applicant’s with respect to visitor visa refusals and said that it was common to refuse visitor visa’s from “high risk” countries, which he said included China and Russia. He said these countries were considered to be “high risk” by Australian authorities because there were a number of instances of visitors from those countries overstaying the period of residence permitted by the visa’s. Mr Woods said the processing of visitor visa applications from China and Russia was erratic and in his experience, if a fresh application was made and properly documented, a “strong case in the Federal Court for judicial review” would follow. He said that a number of Federal Court reviews had been undertaken by him and it was usual for matters to be resolved at an early stage. He said “none ran” and the applications were remitted by consent to a visa officer, usually with a “positive result”.
9. By reason of the outcome of these previous applications, Mr Woods said that he offered Mr Freeman a “no win no fee” cost arrangement but on the basis that the applicant would pay “out of pocket fees”, being the filing fee to lodge an appeal in the Federal Court. He said Law Partners also engaged a number of barristers who were prepared to act on a no win no fee basis.
10. When these arrangements were explained to Mr Freeman, Mr Woods said that his client was happy to proceed on that basis. Mr Woods then prepared an “engagement letter” dated 5 March 1998, found at pages 95-98 of the T documents and which is reproduced as follows:
Dear Mr Freeman,
RE: OLGA ZAITSEVA – IMMIGRATION APPLICATION
YOUR INSTRUCTIONS TO US
We refer to your recent instructions to act on your behalf in relation to the above matter and confirm that you wish us to perform the following work for you:
1. Obtain a copy of the previous applications from the Australian visa office in Moscow under the Freedom of Information Act.
2. Take instructions, prepare and lodge an application for a subclass 676 – Tourist visa with the Department of Immigration and Multicultural Affairs (DIMA).
3. Correspond with yourself at the above address, any other persons and DIMA in order to obtain a determination on your application.
4. If necessary, make application to Federal Court for an Order to review the decision.
OUR FEES
For the service in 1 & 2 above, our fees will be $1,500.00. This will be paid by three payments. The first payment of $300.00 will be made at the commencement of the file. The second payment will be made when we have received the FOI material which should be about 6 weeks. The final payment will be made immediately prior to us lodging the application and supporting documentation.
For the service in 4 above, there will be no charge except disbursements – the main one being the Court Fees. If this step is necessary, we will advise you of the likely course of the Federal Court action in a seperate [sic] letter.
DISBURSEMENTS
The above fee does not include any disbursements that must be paid in respect of the application – disbursements could include such items as:
·costs incurred by us in lodging applications through personal attendance by our agents either in Australia or overseas (usually around $30.00 for local applications and $120.00 for overseas applications)
·fax and telephone charges, couriers etc
·Freedom of Information fee payable to DIMA (usually $30.00)
·interpreting and translating fees (if applicable). You should be aware that it is your responsibility to provide documents with English translations. If we are required to arrange translations on your behalf then this may need to be done through outside interpreters or by our staff members who will charge a competitive fee for this service;
·assurance of support bonds and charges (the refundable bond is currently at $3,500 for the first applicant and $1,500 for subsequent applicants and there is a bank charge of no more than $200.00. The non-refundable charge to DIMA is $940.00 for each applicant)
FEE GUARANTEE
Our opinion, based on the information that you have indicated is available, is that you will be successful in obtaining a visa to allow you to enter or remain in Australia either by way of the visa application that we are making on your behalf or from some other visa that you may be able to obtain either with or without our assistance.
We understand that you are relying on this opinion before incurring these fees in instructing us and, as we have indicated, we shall refund our fees to you (but not any disbursements) in the event that you fail to obtain a visa with the exception of a failure for reasons that include:
(a)failure to pass character or police check requirements; or,
(b)failure to pass the health requirements; or,
(c)failure arising from incorrect or false information provided to us or to DIMA; or,
(d)a withdrawal of your application or our instructions to act without our consent; or,
(e)[deleted]
If there was to be a refund then this would be made on the basis that you released Law Partners from all liability in relation to this matter and agreed that the matter was closed between us.
In the event that you chose to withdraw our instructions before a final decision was made on your application (including any internal review or IRT review) then there would be no refund of fees. This means you must engage us and allow us to complete any internal review or IRT review in the event of a refusal at the primary decision stage. The legal fees above include the cost of such a review but not the disbursements. You would not be required to pay any additional amounts as legal fees in this event.
If you do not pay our fees when due, withdraw our instructions, or fail to comply with any reasonable request made by us then we shall be entitled to withdraw our services and retain any amounts paid to us without refund.
CLIENT SATISFACTION
This matter will be handled principally by James M. Woods who will be assisted by Tony Dronjic. Mr Woods is an Accredited Specialist in Immigration Law.
Please direct your enquiries to Mr Woods or Mr Dronjic as necessary. If you find any problems with our service then Law Partners is a member of the Law Institute of Victoria and they operate a complaints service which may be reached at 350 Bourke Street Melbourne. The body governing all solicitors in Victoria is the Legal Practice Board and this is located at Level 29, 385 Bourke Street Melbourne.
YOUR RESPONSIBILITIES
The initial procedure will be:
1.you should ensure that this letter accurately reflects your understanding of what we have discussed and what you are instructing us to do. If you have any doubt about the contents of this letter then you may need to refer it to a legal practitioner or someone who is able to give you the appropriate advice in your language;
2.once you have decided to appoint us and are happy with the contents of this letter, you will sign a copy of this letter and fax it back to us or return it by mail;
3.the initial payment may be made either direct to this office or to by depositing in our trust account. The details of the trust account is:
NAME:LAW PARTNERS VICTORIA PTY LTD TRUST ACCOUNT
BANK:BANK OF MELBOURNE
BRANCH:541 ST KILDA ROAD
NUMBER:553 999 6565 3768
This deposit may be made at any bank. If you make the deposit direct into our trust account, then we would appreciate your faxing a copy of the bank receipt to us for our records;
4.we will provide you with a file action sheet which includes a list of documents that you will need to provide or other action that you will need to take;
5.in order for us to assist you properly and speedily, you will need to provide us with the information or take the action listed on the file action sheet;
6.we will then commence the preparation of the application in consultation with you;
7.you must keep us informed in writing of your current mailing address. We cannot be responsible for any problems that arise as a result of your failure to provide us with a current mailing address.
If these arrangements are agreeable, please sign the enclosed copy of this letter as our authority to commence work on your behalf. You should be aware that we reserve the right not to commence or continue work or [sic] your behalf until we receive a signed copy of this letter and the funds requested above. Do not delay in responding as Law Partners cannot be responsible for any problems (such as the expiration of time limits) that are the result of your failure to instruct us in this manner.
We thank you for your instructions and look forward to being of service.
11. Mr Woods said that he explained to Mr Freeman that it was sometimes difficult to “get hold of” him and that he worked in conjunction with Mr Tony Dronjic, an employee solicitor, however Mr Woods said that he explained to Mr Freeman that he would remain the person principally responsible for his application.
12. The applicant said that he also advised Mr Freeman to undertake a Freedom of Information (“FOI”) request upon the Australian authorities to identify the documents which had been lodged in the previous application thereby permitting an appreciation of what would need to be lodged in the fresh application.
13. Mr Woods regarded the application intended to be made on behalf of Mr Freeman as being “straight forward”. He said that he recalled Mr Freeman as being a person “with a reasonable amount of knowledge and ability” and said that he also recalled thinking that he “would be easy to work with. He was literate and spoke very well”.
14. At the end of the consultation Mr Woods said that Mr Freeman signed the engagement letter, took a copy of it away and paid $1,500 to the Law Partners trust account. Mr Woods also recalled that the FOI request was made and posted.
15. Some time after the conclusion of the consultation, Mr Woods said that he spoke with Mr Dronjic who had recently commenced employment with the firm. He said that Mr Dronjic did not have any immigration law experience and he recommended that Mr Dronjic should obtain that experience with a view to eventually becoming a migration lawyer. He said he had a “session” with him about the practice of immigration law and whilst he could not recall their exact conversation, he said that he frequently had “sessions” with other employee solicitors of Law Partners by way of explaining immigration law and practice. He said his recollection of the discussion on that occasion with Mr Dronjic was “not strong”.
16. Thereafter Mr Woods said that he understood that the “matter would rest” until the documents were obtained under the FOI request.
17. On 11 March 1998, Mr Freeman consulted with Mr Tobin, another employee solicitor of Law Partners (apparently because Mr Woods was not then available). Mr Tobin received a number of documents from Mr Freeman and passed them to Mr Woods, who said that he intended that Mr Dronjic would continue to assist him. (Mr Tobin had no further contact with Mr Freeman after 11 March). Despite the anticipated evidence of Mr Freeman, Mr Woods said that Mr Tobin had not told him that Mr Freeman had instructed Law Partners to then make a Federal Court application arising out of another visa refusal made subsequent to the first consultation on 5 March. He said that had those instructions been received he was confident that Mr Tobin would have told him and that his reaction would have been not to proceed on the no win no fee basis. That is, if Mr Freeman had been insistent that Federal Court proceedings be commenced, he would regard the application then as being at high risk and Mr Freeman could incur fees of up to $10,000.
18. Mr Woods said that he then instructed Mr Dronjic to “chase up” the FOI agency and recover the documents sought as soon as was possible. He said that he spoke with Mr Dronjic later about the application and asked him to ensure that when the documents were received to notify him so that those documents could be reviewed, arrangements would be made for Mr Freeman to come back into the office and instructions would be obtained to make a fresh visitor visa application.
19. Thereafter Mr Woods said that the relationship with Mr Freeman “got off the rails and got very combative”.
20. He said that at the initial consultation on 5 March, Mr Freeman did not instruct him that he had made a previous application for a visitor visa for another Russian woman. He said that had he been instructed of that application, his opinion of the likelihood of success in a fresh application for a visitor visa would have been “very different”. He said that in his experience, visa officers in high risk countries are suspicious of “improper activities”.
21. Mr Woods said that when the relationship with Mr Freeman commenced to break down he thought that his client had been “deceptive” and had not been “entirely open”. However Mr Woods acknowledged that there was “fault on both sides”.
22. When it was apparent that the relationship was not able to be restored – and having spent a lot of time with Mr Freeman, Mr Dronjic and Mr Tobin – Mr Woods said that he attempted to achieve a settlement with Mr Freeman by forwarding a number of letters “through Mr Dronjic”. Mr Woods said that he forwarded an account of $400 for work done to date and forwarded also a cheque for the balance of funds held in the trust account. He said Mr Freeman refused to accept the cheque and returned it.
23. Later, when there was a conciliation conference at the Law Institute, Mr Woods said that he instructed Mr Dronjic to offer to refund in full of the sum of $1,500 that was being held in the trust account. Mr Woods said he believed that Mr Dronjic had made that offer and he had also sent a letter to MARA indicating that that offer had been made.
24. Nonetheless Mr Woods said that he believed that Mr Freeman had taken advantage of him and said that the offer of a fee guarantee was dependant on being fully informed and being made aware by the client of all relevant information upon which the application was based. He relied on paragraph (c) under the sub heading of “Fee Guarantee” in the letter of 5 March 1998 (refer earlier) which records an exception to the no win no fee offer being the “failure arising from incorrect or false information provided to us or to DIMA”.
25. Mr Woods said the allegation by MARA that he had breached cl2.1 of the Code of Conduct arose out of the withdrawal of the fee guarantee. The withdrawal was contained in two letters, of 25 May 1998 and 3 June 1998, (this letter being in response to a letter of Mr Freeman of 27 May 1998), found at pages 103-104 and 106-107 of the T documents, which are reproduced as follows:
Letter of 25 May 1998
I refer to our telephone conversation of 25 May 1998 and confirm the following:
1.The Applicant is no longer in position to provide written evidence of her employment;
2.The Applicant is not willing to enrol into any course or school in Russia;
3.The Applicant is no longer in position to provide evidence that she has USA $22,510.30 available on her bank account;
4.Our assessment of Ms Zaitseva’s case and subsequent fee guarantee was given based on your initial instructions. Circumstances relevant to Ms Zaitseva’s application have changed to her detriment and we are no longer in position [sic] to give fee guarantee.
5.We confirm that in addition to our professional fees, you agreed to pay $500.00 for the Federal Court application fee (if that becomes necessary).
If you in [sic] agreement with the above, please sign a copy of this letter and forward it back to our office at your earliest convenience.
Yours faithfully,
LAW PARTNERS
Per Antonio Dronjic
I, TONY FREEMAN, confirm that I am willing to proceed with the application and retain services of Law Partners in accordance with provisions contained in paragraphs 1 – 5 above.
Tony Freeman
Letter of 3 June 1998
I advise that our conference of 6 May 1998 was not conducted in a “photo-copy room” mainly because we do not have one. I acknowledge that conference was interrupted on two occasions for which I apologised at the time. I was under impression that apology was accepted at the time, but if not, I would like to take this opportunity to do so.
However, I agree with you, this matter is of little importance.
We confirm your instructions to suspend all work on Ms Zaitseva’s matter. Please note that we have undertaken to prepare the application for tourist visa for Ms Zaitseva on the basis of your instructions given to Mr Woods at initial interview.
Since that time, you have instructed us that circumstances relevant to Ms Zaitseva’s application have changed to her detriment.
Pursuant to our retainer letter, duly signed by you on 5 March 1998, under heading “fee guarantee” you have, amongst other things, acknowledged that we would refund our fees to you in case Ms Zaitseva fails to obtain visa with the exception of a failure for reasons that include :
1. incorrect or false information provided to us or DIMA
2. withdrawal of your application or our instructions
Unfortunate as it is, that is exactly what happened. Consequently, we have no problems with your decision to refer this matter to Victorian Lawyers RPA Ltd and we will not be intimidated by such treats [sic] which do nothing to resolve the situation for either of us.
Our current arrangements provide that we are entitled to our fees in full. However, if you choose not to proceed with the application on a non-fee guarantee basis as per our letter dated 25 May 1998 (as is currently the case) then we would propose, on a without prejudice basis, to render you our final bill for professional services based on the Solicitors Renumeration [sic] Order and refund any funds remaining in trust account (approximately $500.00).
You should be aware that this arrangement is opened for acceptance by you for 14 days from the day of this letter, and would naturally involve each of us releasing the other from all further liability.
Should you decide not to take this offer, then we would reserve the right to render our account for the entire amount as we are legally entitled to.
Given the time and effort that we have expended to date, I hope you will consider this a reasonable offer.
Would you kindly advise in writing.
Yours faithfully,
LAW PARTNERS
per Antonio Dronjic
26. MARA referred to and relied on these letters as the basis for its finding of a breach of cl2.1 of the Code of Conduct, which is reproduced as follows:
A migration agent must always:
(a)act in accordance with the law and the legitimate interests of his or her client; and
(b)deal with his or her client competently, diligently, fairly and without any conflict of interest that would affect the legitimate interests of the client.
27. Mr Woods said that it was not clear from his file whether the first letter had ever been sent but if it was, it was not an “accurate reflection” of his reasons for withdrawal of the fee guarantee. He said that he was then more concerned with whether Miss Zaitseva held a bank account in Russia, whether she held employment and whether the embassy officials in Moscow could be satisfied that her application was genuine. At the time the letter was sent, he was not principally concerned with whether Miss Zaitseva was willing to enrol in a course or school in Russia.
28. Mr Woods said that he intended to withdraw the fee guarantee because Mr Freeman was not “entirely open in his disclosure to us and it was fair that he should pay something”. He said that he was attempting to work out “a way for us to go our separate ways”.
29. MARA also relied on breaches of the Code of Conduct at cl8.1, cl8.2 and cl8.3. Those clauses are reproduced as follows:
Duties of Agents to Employees
8.1A migration agent has a duty to exercise effective control of his or her office for the purpose of giving immigration advice and assistance.
8.2A migration agent must properly supervise the work carried out by staff for the agent.
8.3 All immigration assistance must be given by a registered migration agent.
30. Mr Woods said that he did appropriately supervise Mr Tobin. He said Mr Tobin had told him that no instructions were given by Mr Freeman to then proceed to the Federal Court and Mr Wood said he doubted that those instructions would have been given. However he said had those instructions been given they would have been taken seriously and would have been passed on to him. He said that Mr Tobin only consulted with Mr Freeman on one occasion but acknowledged that a file note made by Mr Tobin of that consultation was “inadequate”. He said that Mr Tobin was then a solicitor and a registered migration agent.
31. To the extent that it was alleged that Mr Woods failed to ensure that immigration assistance was given by a registered migration agent, Mr Woods said that he relied on the evidence of Mr Dronjic who he said was under his supervision. He said that Mr Dronjic knew “nothing” about immigration law at the time of consultation with Mr Freeman and had been with the firm for a few days only. He said that Mr Dronjic was not providing “immigration assistance” as defined by the Act.
32. Additionally Mr Woods relied on part of a letter that he forwarded to the respondent on 2 August 2001 found at T88 page 331-333. At page 333 under the sub heading of “Clause 8.3” the following is found:
I have outlined the firm’s methods of recruiting new staff to work in the immigration area on a number of occasions. In summary, our method is to engage people (either lawyers or non lawyers) to work in the immigration area. They are assigned to the supervision of a senior person and work with that person as their clerk. At this stage, the people are generally not registered. Our internal arrangements provide that the person supervising the clerk must sight and approve all letters. It would not be unusual for the letter to be signed by the clerk as our method of operation is for the clerk to draft the letter, send it to the supervisor for approval via email and then for the clerk to print and sign the letter with any necessary attachments. Similarly, there may be occasions where the clerk makes contact with the client for administrative purposes i.e. obtaining documents after being directed by the supervisor. I would be happy to receive some detailed written guidelines as to whether or not you regard this as [an] inappropriate method of training people new to the immigration area and whether this method of operation breaches Clause 8.3. It is my view that the person giving the immigration assistance in this case is the file supervisor and that the clerk is simply acting as a conduit for the information. I think it would be useful for that to be published as [a] set of guidelines to clarify this area.
The points I am making above are all made on a worst [sic] case basis. By this I mean, that even on Mr Freeman’s view of the facts, I still have not committed any breaches of the Code of Conduct. Of course, I do not for the moment concede the facts that would give rise to these worst [sic] case situations. My point is that even if Mr Freeman’s evidence is to be believed, I have done everything within my power to satisfy what I believed to be an unreasonable and vexatious complaint.
33. Mr Woods said that MARA or its representatives had not ever responded to that letter.
34. In cross-examination Mr Woods was taken to the letter from Law Partners to Mr Freeman dated 5 March 1998. Mr Woods said that he was confident that the letter was prepared by him because it bears his reference and it records Mr Dronjic as the assistant. Mr Woods said that he did not discuss with Mr Freeman in any detail the extent of his supervision of Mr Dronjic nor did he notify Mr Freeman that Mr Dronjic was not a registered migration agent.
35. With respect to the four numbered paragraphs at page 1 of that letter, Mr Woods agreed that the instructions contained against paragraph 2 would be in the nature of immigration assistance namely “take instructions, prepare and lodge an application for a subclass 676 - Tourist visa with the Department of Immigration and Multicultural Affairs (DIMA)”.
36. The instructions as against paragraph 3 record “correspond with yourself at the above address, any other persons and DIMA in order to obtain a determination on your application”. (It was acknowledged that Mr Freeman was the client and not Miss Zaitseva). Mr Woods said that he would not regard the instructions with respect to paragraph 3 as being in the nature of immigration assistance in so far as it related to giving advice to Mr Freeman about the application made by Miss Zaitseva. He said that if Miss Zaitseva had been the client, the instructions against paragraph 3 would be in the nature of immigration advice. When he was asked to consider whether then the work contained against paragraph 3 would be in the nature of immigration assistance if it was advice to Mr Freeman for and on behalf of Miss Zaitseva, Mr Woods said that he did not know.
37. When asked how it could be that Mr Dronjic could be supervised by him if he did not know whether the work to be undertaken was in the nature of immigration assistance, Mr Woods said that he did not “turn” his mind to this issue at that time.
38. Mr Woods was then taken to a number of file notes completed by him, Mr Tobin and Mr Dronjic. (Mr Woods described Mr Dronjic as the “hands on operator”). When it was suggested that the quantity of file notes suggested that most of the work on the Freeman file was undertaken by Mr Dronjic, Mr Woods said that the work undertaken by Mr Dronjic was confined to an FOI request and a telephone attendance upon Mr Freeman. When he was asked to comment upon a one and a half-hour conference between Mr Dronjic and Mr Freeman on 6 May 1998, Mr Woods said that he was “surprised” that there would be a conference of that duration and said that “Freeman likes to talk”. He denied a suggestion put to him that Mr Dronjic was in fact giving immigration advice and said that Mr Dronjic would not “have had that knowledge”.
39. With respect to the meeting with Mr Freeman on 5 March, Mr Woods said that he relied entirely on the notes that he made of the meeting but otherwise had no recollection of it. He agreed that there was discussion with Mr Freeman concerning a visa refusal for Miss Zaitseva and he “presumed” that there had been discussions concerning whether to lodge an appeal with the Federal Court or whether a fresh visa application should be made. Mr Woods said he had no recollection of any discussions of whether Miss Zaitseva had a bank account in Russia and whether there were monies held in deposit.
40. Mr Woods acknowledged that a letter from Mr Freeman dated 3 April 1998 (T18 page 101) expresses dissatisfaction by Mr Freeman towards either Mr Woods or Law Partners or both. Mr Woods referred to a file memorandum prepared by him on 7 April 1998 which records “spoke to TF by phone. Went through the procedure. I will call him after chasing FOI application on 13/04/20mins”. Mr Woods said that it was likely that this memorandum indicates that within a few days of receiving the letter of 3 April 1998 he rang Mr Freeman and offered an apology. He had no recollection of making the telephone call and relied entirely on the note of 7 April 1998. Mr Woods said that he had no recollection of advising Mr Freeman that the time to lodge an appeal had expired, that a new application should be made and that he would “make it up to him”.
41. Mr Woods said that he was not instructed by Mr Freeman at first consultation on 5 March that he had previously made an application for a tourist visa which had been refused. Whilst he agreed that his file notes of 5 March 1998 and subsequently do not refer to this issue, Mr Woods said that he thought that Mr Freeman was obliged to notify him of prior unsuccessful applications. Mr Woods said that in his experience, Embassy’s in “high risk countries pick up their ears” if they have a “whiff” of matrimony or other “dubious” reasons for the issue of a tourist visa. He said that he had no idea of any previous application made by Mr Freeman nor was anything suggested to him indicating that a prior application had been made.
42. Mr Woods was then taken to the letters of 25 May 1998 which indicated an intention to withdraw the fee guarantee previously offered and the letter of 3 June 1998 withdrawing the fee guarantee (paragraph 25).
43. With respect to the letter of 25 May 1998, which purports to summarise a telephone discussion between Mr Dronjic and Mr Freeman of that same day, Mr Woods acknowledged, that when he and Mr Freeman first met on 5 March the issue of Miss Zaitseva enrolling in a course or at a school was not discussed. Mr Woods agreed that this was not a proper reason to withdraw the fee guarantee.
44. With respect to the information contained against paragraph 3, namely, that Miss Zaitseva has funds in a bank account, Mr Woods said that it would have been “better expressed” if it did not refer to a specific amount of money. He said that he could not recall whether amounts of money were discussed at the first consultation on 5 March and noted that there is no reference to sums of money in his file memorandum of that date.
45. When he learnt that Mr Freeman would say in evidence that when he met with Mr Dronjic he instructed that Miss Zaitseva had between $10,000 and $12,000 held on deposit in a bank account in Russia (and that Mr Dronjic had advised that would be a sum sufficient to satisfy the Australian authorities that Miss Zaitseva would return at the expiration of a visitor’s visa) Mr Woods pointed to the file notes completed by Mr Dronjic on 6 May 1998 where that sum of money is referred to.
46. With respect to the information contained against paragraph 4, namely that Miss Zaitseva’s circumstances had changed “to her detriment”, Mr Woods agreed that when interviewed by the Conduct Advisory Panel of MARA (page 238) the main issues from his point of view then, was whether Miss Zaitseva had employment in Russia and that she would return to Russia at the expiration of the visa. Mr Woods agreed that Miss Zaitseva’s changed circumstances was the “main reason” for withdrawal of the fee guarantee.
47. However Mr Woods acknowledged that when he was first instructed by Mr Freeman on 5 March, he then learnt that Miss Zaitseva was in fact employed, that he was not given false information by Mr Freeman and the reasons stated against paragraph 4 was not a proper reason to remove the fee guarantee. Nonetheless Mr Woods suggested that the fee guarantee was being interpreted “as if it were legislation”. He said that the intention of the parties needed to be considered but acknowledged that the letter of 25 May 1998 could have been more “descriptive”. He disagreed with the suggestion put to him by Mr Star that the stated reason for the fee withdrawal was not within the circumstances described at paragraph (c) of the fee guarantee letter of 5 March (refer paragraph 10 earlier) namely “failure arising from incorrect or false information provided to us or to DIMA”.
48. Mr Star then suggested to Mr Woods that Clause 2.1 of the Migration Agents Code of Conduct had been breached by the withdrawal of the fee guarantee because the stated reasons for withdrawal were false or inaccurate (or both). Additionally it was put that the reason for withdrawal was not within the circumstances envisaged by (c) of the letter of 5 March 1998 and the “main reason” as notified to the Conduct Advisory Panel is not found at all in the withdrawal letter. Mr Woods said that he should have expressed the reasons for withdrawal of the fee guarantee “better” and acknowledged that Mr Freeman did not give false or incorrect information with respect to involvement in a prior application. Mr Woods said that there should be a “contractual approach” to interpreting the solicitor/client relationship and it was therefore implied that Mr Freeman should have told him of the prior application for a visitors visa which had been refused. Nonetheless he agreed that the letters of 25 May 1998 and 3 June 1998 did not allege any breach of implied obligations by Mr Freeman.
49. Mr Woods acknowledged that immediately prior to the fee guarantee being withdrawn he did not have any personal discussion with Mr Freeman however Mr Freeman had received a letter from him containing reasons for the fee withdrawal which were false and inaccurate. Mr Woods agreed that he should have spoken with Mr Freeman and notified him of his concerns. He acknowledged that he should have given Mr Freeman the opportunity to address his concerns and/or have attempted to negotiate a withdrawal of the fee guarantee.
50. Mr Woods was then taken to a file memorandum of 11 March 1998 completed Mr Tobin. The memorandum records “took instructions. Forty mins”. Mr Woods agreed that this memorandum was “totally unsatisfactory and inadequate and meaningless”, nonetheless he said that he did not take any responsibility for the inadequacy of that file note. When it was put to him that he should have observed subsequent to 11 March 1998 that the file note was inadequate and should have had Mr Tobin elaborate and/or have him record what were the nature of the discussions during the forty minute attendance, Mr Woods maintained that it was not his “fault” that the file note was inadequate. When he was asked whether he was curious why there were discussions for forty minutes on the 11 March, Mr Woods said that “it must mean that there were discussions at length”. Mr Woods said that he could not deny or comment upon allegations that he understood Mr Freeman would make that he (Mr Freeman) instructed Mr Tobin to lodge an appeal with the Federal Court because a recent refusal to grant a visitors visa was within time. Mr Woods agreed that if the Tribunal were to find that Mr Freeman gave instructions of that kind to Mr Tobin – and an appeal was not lodged – that there would be a breach of cl8.1 and cl8.2 of the Code of Conduct. Mr Woods said that he would agree that if a solicitor was instructed to appeal to the Federal Court and did not, he would in breach of the Code of Conduct.
51. With respect to the involvement by Mr Dronjic in Mr Freeman’s applications Mr Woods denied that his “inexperience” would not necessarily have caused him to “stray into giving immigration assistance”. He reaffirmed that he had spoken to Mr Dronjic about immigration assistance but could not recall whether he specifically discussed what constituted “immigration assistance”. He was surprised that Mr Dronjic and Mr Freeman had a 90 minute consultation on 6 May (being of a duration longer than he would have expected). He acknowledged that there was a risk of Mr Dronjic inadvertently or unintentionally giving advice that he ought not (transcript page 609). Mr Woods emphatically rejected the suggestion of Mr Dronjic giving immigration assistance. He said Mr Dronjic “had pretty good general experience with clients and in sort of procedures, generally, but he knew nothing about immigration work at all” (transcript p610).
ANTONIO DRONJIC
52. Mr Dronjic is presently a non equity partner in the firm Law Partners Pty Ltd. He completed a statement dated 6 May 2003 which was received into evidence as Exhibit A. This statement was subject of considerable cross-examination by Mr Star and is reproduced as follows:
1. I hold degrees in law from both Monash University and University of Sarajevo.
2.In 1991 I came to Australia as a refugee from Sarajevo where I was working as a Magistrate at the Second Municipal Court. In 1998, after completing B.LL at Monash University and working as an articled clerk for one year, I was admitted to practice as a solicitor and have been practising ever since that time.
3.I joined Law Partners as a solicitor on 3 March 1998 before being promoted to a "non equitable partner" status in July 2001. I continued in that position until the cessation of the practicing certificate of the company. The structure of Law Partners was that the business was divided into groups headed by a legal practitioner styled as a "partner". Each "partner" operated his own business using the Law Partners name and systems.
4.During my time with Law Partners, I operated as a part of Mr Woods's practicing group until I became a "non equitable partner". From 1 January 2000 I have been holding practising certificate as a principal.
5.On 11 March 1998, I was called by my employer, Mr Woods to discuss Mr Freeman's case. Mr Woods told me of the circumstances of the case which were that Mr Freeman wanted to bring female friend from Russia, who was employed and will have job on her return to Russia, had sufficient funds for travel and one daughter who will stay in Russia whilst she is in Australia. Mr Woods outlined the applicable immigration regulations in general and what needed to be proved in order for the visa application to be successful. He told me that if the visa application was not successful we would make application to the Federal Court. The first step was to start chasing the FOI request, as he would like to lodge new visitors visa application ASAP.
6.On 13 March 1998, I was asked by Mr Woods to check documents provided by Mr Freeman to Mr Tobin during the conference on 11 March 1998 and to draft submissions for new visitors' visa application. Shortly after, I reported back to Mr Woods, informing him of my concerns regarding the documents provided by Mr Freeman. I observed the following:
(a) the letter provided by Ms Zaitseva's employer was neither original nor certified copy. Neither document provided in Russian language nor translation was printed with a company letterhead and both of them had only "Promys" stamp on it. Mr Sharpov did translation of the document;
(b) the same person did translation of the "Bank statements" headed as "Reference" (foreign currency and local account) and both documents had the same company seal (Promys). Neither documents submitted In Russian language nor translations were printed with a bank letterhead and were neither original nor certified copies;
(c) the translation titled "reference" concerning the ownership of property in Russia by Ms Zaitseva was also translated by Mr Sharpov, had the same seal and was neither original nor certified copy;
(d) all other documents, including confirmation of tenancy status of Ms Zaitseva, certificate from school for Ms Zaitseva's daughter, Birth Certificate, Citizenship Certificate and Divorce Certificate were defected in the same way as documents mentioned in paragraphs 1-3.
7.Mr Woods agreed with my observations and instructed me to chase FOI request and upon receiving copy of the file from the Australian Embassy in Russia, set up a meeting with Mr Freeman and inform him of the above problems with documents.
8.Law partners received the FOI file on 27 April and I was ask by Mr Woods to read the file notes made by the Immigration officer at the Australian Embassy in Russia and report my observations back to him before I saw Mr Freeman. Mr Woods then gave me specific instructions what to do or say to Mr Freeman at the forthcoming conference.
9. I met with Mr Freeman on 6 May 1998 and:
a) Informed Mr Freeman of Mr Woods observations regrading deficiency of documents presented by Mr Freeman (no originals or certified copies provided, translation done by non accredited person who use Ms Zaitsevas' employer's company seal on every documents)
b) Read the file notes made by the Immigration officer in Moscow, obtained through FOI request;
c) Conveyed Mr Woods's request for any additional supporting evidence of Ms Zaitsevas' reasons to go back to Russia after she completes her visit to Australia such as (enrolment to school, ownership of property in Russia).
10.To the best of my belief, at no stage during the conference I provided Mr Freeman any immigration advice or assistance. I merely passed to him information produced by a third party and conveyed Mr Wood's instructions and observations.
11.To the best of my recollection, Mr Freeman never mentioned anything about his instruction to Mr Tobin to apply to Federal Court during the conference on 6 May 1998. He never asked what is happening with the Federal Court application.
12.In relation to my knowledge of the Applicant generally, I can say that he was the major shareholder and was the driving force behind the firm.
13.To the best of my knowledge, most of his time was spent in administrative and supervisory tasks. He did very little hands on file work himself. The majority of his time was spent in supervising and guiding staff members. My view of his supervisory regime was that the requirements were clearly spelled out and everyone knew what was required of them. However, as in all organisations of any size, it would be possible for someone not to follow procedures and perhaps remain undetected for a period of time.
14.Following the decision of the Legal Profession Tribunal, there was obviously a high degree of concern about what was to happen with the firm. The Applicant spent a great deal of time with the various partners attempting to work out a structure which would allow the clients and staff to continue with the least possible interruption. In October 2002 I decided to start my own legal practice. I registered my new business name "AD Solicitors" and have been practising under this name ever since.
53. In evidence Mr Dronjic said that he commenced employment as an employee solicitor with Law Partners on 3 March 1998. He said he completed articles with another firm of solicitors in Melbourne but had not had any experience with migration applications prior to commencement of his employment with Law Partners (except for his own application to enter Australia as a refugee). Additionally Mr Dronjic said that he had not studied immigration law.
54. Mr Dronjic acknowledged that he spoke with Mr Woods prior to him first consulting with Mr Freeman. He said that he was asked by Mr Woods to make enquiries, from Mr Freeman, of whether Miss Zaitseva had any real estate in Russia, whether she was employed and whether she was studying. He said that he was not advised by Mr Woods to recommend to Mr Freeman that Miss Zaitseva enrol in a school or in a course of study.
55. With respect to a prior application made by Mr Freeman to sponsor another person travelling from Russia to Australia on a tourist visa, Mr Dronjic said that he was not instructed by Mr Freeman that an application of that type had been made by him previously. He said that he learnt Mr Freeman had made an application of that type when he eventually obtained documents under a Freedom of Information application.
56. Mr Dronjic acknowledged that he attended a conference at the Legal Profession Tribunal which was convened arising out of a complaint made by Mr Freeman against Law Partners. He said that he was instructed by Mr Woods to make an offer to Mr Freeman of a refund in full of all fees that had been paid.
57. Mr Dronjic said that he did make that offer which Mr Freeman accepted. He said that as a result of the acceptance of that offer, the complaint was resolved and the conciliator recorded that an agreement had been reached between Mr Freeman and Mr Dronjic on behalf of Law Partners (refer page 157/158 of T documents). (This issue was the subject of legal argument and will be referred to later in this decision).
58. Mr Dronjic said that he eventually became a non-equity partner with Law Partners. He remains in that position. He said that he was at all times supervised by Mr Woods before he became registered as a migration agent. He said that during the five years that he has known Mr Woods he has regarded him as being an honest “good bloke” who had given him the chance to earn a living in Australia. He said he expressed these opinions having observed Mr Woods professionally and socially. He said he regarded Mr Woods as being a “tough negotiator” but dealt with persons “fairly”.
59. In cross-examination Mr Dronjic said that he relied on the contents of his statement of 6 May 2003. He was not aware that Mr Woods had previously prepared a draft statement which he (Mr Woods) had lodged at the Tribunal. The statement apparently was lodged in anticipation that Mr Dronjic would eventually sign it. When Mr Dronjic was shown the draft statement – which departed significantly from the statement that he signed on 6 May 2003 – he said that he did not consent nor did he give authority to have that statement completed on his behalf. He said that he was aware that Mr Woods had prepared a draft statement for him but it was unacceptable. He said that he eventually prepared and completed his own statement.
60. Mr Dronjic acknowledged that there were similarities between his statement of 6 May and the draft however he acknowledged that paragraph 9 of the draft statement does not appear in his signed statement nor is there any paragraph which resembles it in the signed statement. Paragraph 9 of the draft reads in the following terms:
On the basis of my experience as set out above it is my view that the applicant is a person of integrity and fit and proper person to give immigration assistance.
61. When it was suggested to Mr Dronjic that the paragraph was deleted from his signed statement because he did not agree with it, Mr Dronjic said that he was not giving evidence at the Tribunal about the character of Mr Woods nor was he called to give evidence to express an opinion concerning Mr Woods. He said that he was attending the Tribunal to give evidence with respect to the complaints made by Mr Freeman. He said it was self evident that his statement of 6 May was not in the nature of character evidence of Mr Woods. Nonetheless he said it was “not true” that he did not regard Mr Woods as not being a fit and proper person.
62. When he was again pressed on these issues Mr Dronjic said that he was attending the Tribunal to give evidence only with respect to the complaint made by Mr Freeman. He said that he understood that the registration of Mr Woods as a migration agent had been cancelled for three years because of the complaint made by Mr Freeman. He said that had he understood that the proceedings at this Tribunal concerned the integrity of Mr Woods he would have made reference to it in his signed statement.
63. Mr Dronjic agreed that when he first consulted Mr Freeman he was not registered as a migration agent. He said that he became registered as a migration agent on 25 March 1999 and at all times prior to him becoming registered as an agent he was supervised by Mr Woods.
64. Mr Dronjic acknowledged that it was intended by Mr Woods that he would assist him in relation to the instructions given by Mr Freeman. Mr Dronjic said that he was aware of the letter of 5 March 1998 where he is referred to at page 3 as the assistant to Mr Woods (refer paragraph 10).
65. Mr Dronjic acknowledged that the instructions given by Mr Freeman to Law Partners were to pursue the issue of a tourist visa to Miss Zaitseva to permit her to travel to Australia. Mr Dronjic acknowledged that instructions of this type were in the nature of “immigration assistance”.
66. As to the 4 numbered paragraphs on page 1 of the letter of 5 March, Mr Dronjic denied that the work to be undertaken at paragraph 1 was in the nature of immigration assistance. He said the work undertaken as described is administrative or clerical in nature.
67. As to the work to be undertaken as recorded in paragraph 4, Mr Dronjic said that a migration agent cannot make an application to the Federal Court and therefore it would not constitute “immigration assistance”. Additionally he said that the work to be carried out as recorded at paragraph 4 is not in the nature of giving “advice” and therefore it cannot amount to being “immigration assistance”.
68. At the time that he first consulted Mr Freeman, Mr Dronjic said that he did not know of the criteria for a visitors visa nor did he know what was constituted by “immigration assistance”. He said he was not aware of s276 and s277 of the Migration Act because he was then a solicitor without any prior immigration experience. He said that Mr Woods had also told him at that time that he was not permitted to give immigration assistance or advice because he was not registered as a migration agent.
69. Mr Dronjic acknowledged that Mr Freeman apparently did attend the office of Law Partners to consult with Mr Tobin. In his statement Mr Dronjic recorded that attendance as occurring on 11 March. Mr Dronjic said that he obtained that date by reference to file notes. He had no independent recollection of whether Mr Freeman attended the office on either 11 March or 12 March.
70. Mr Dronjic said that he was asked by Mr Woods to read the documents that had been given to Mr Tobin by Mr Freeman. He said that he was asked to identify whether there were any “deficiencies”. He observed that some of the documents were “unofficial translations”. Mr Dronjic said that he eventually spoke with Mr Woods after he had read the documents and “reported (his) observations”. Thereafter he said Mr Woods asked him to pursue the documents that were being sought under the FOI application. When they were eventually obtained, Mr Dronjic said that he was asked by Mr Woods to discuss the contents of the FOI file with him and again report his observations. He said he was then asked to make an appointment to see Mr Freeman and obtain certain information from him as advised by Mr Woods.
71. Mr Dronjic said that he met with Mr Freeman on 6 May 1998 for approximately 1 hour. He said that he had passed on information that had been given to him by Mr Woods, namely that the documents obtained under FOI disclosed that there was a “problem” with a previous application made by Miss Zaitseva because she had not lodged original documents with the Australian Embassy. Mr Dronjic said that to the best of his recollection the contents of the documents only were discussed, their deficiencies were identified and in those circumstances he was not giving “immigration assistance”.
72. Mr Dronjic recalled that he did advise Mr Freeman – as he was instructed by Mr Woods – that original documents must be provided in a new immigration application. He also recalled advising Mr Freeman – as he was instructed by Mr Woods – that a new application by Miss Zaitseva would be strengthened if she was enrolled in a school or a course of study. Additionally he recalled advising that the evidence contained in a bank statement of Miss Zaitseva having between US$10,000 and $12,000 on deposit in a Russian bank would be beneficial to her tourist visa application.
73. Mr Dronjic was then asked to observe a file note dated 6 May 1998. He agreed that the note of that date and of other attendances upon Mr Freeman or in relation to Mr Freeman’s application were recorded within a file memorandum system used by Law Partners Pty Ltd. Mr Dronjic could not recall whether he typed the notes found against the date 6 May 1998. He said that Mr Woods as his supervisor may have typed the note. He said that he regarded the attendance on 6 May with Mr Freeman as being “clerical”. He agreed that the note does not record that he was then passing messages to Mr Freeman originating from Mr Woods nor was he asking questions as instructed by Mr Woods. He also agreed that the note records that he had discussions with Mr Freeman. He rejected the suggestion by Mr Star that the content of the note of 6 May 1998 was a clear indication of immigration assistance being given. Mr Dronjic said that the note did not record that immigration assistance was given. Mr Dronjic said that he had been asked by MARA to explain his attendance on Mr Freeman of 6 May 1998 in relation to the complaint made by Mr Freeman. He provided a comprehensive explanation of the events of that day in an eight page letter dated 20 August 2001 (pages 7-14 of Exhibit D).
74. Mr Dronjic was then taken to the letter written to Mr Freeman on 25 May 1998 (refer earlier). He agreed that the letter bears his reference, that he was the author of the letter and that he had signed it.
75. Although Mr Dronjic recorded five numbered paragraphs arising out of a conversation that he had had with Mr Freeman on 25 May 1998, he said he could not now recall having had that conversation. Mr Dronjic said that he may have drafted the letter intending it to be signed by Mr Woods and the letter amounted to no more than undertaking work for Mr Freeman as supervised by Mr Woods.
76. Mr Dronjic also agreed that he “probably” drafted the letter of 3 June 1998 (refer earlier) and acknowledged that it contained his reference and his name at the end. He also acknowledged the second paragraph of the letter commences with the words “I advise that our conference of 6 May 1998………..”. He agreed that this would suggest that the letter in fact was drafted by him.
77. At the conclusion of cross-examination Mr Dronjic denied that Mr Freeman had made any mention to him on 6 May 1998 about his instructions to Mr Tobin to apply to the Federal Court. Mr Dronjic said that nothing was recorded in the file notes to indicate that comments of that type had ever been made by Mr Freeman and to the best of his knowledge he had no recollection of Mr Freeman making mention about a Federal Court appeal. Mr Dronjic therefore relied on the contents of paragraph 11 of his statement.
JEREMY LEE TOBIN
78. Mr Tobin is a Barrister and Solicitor and formerly an employee solicitor of Law Partners. He gave evidence in these proceedings and relied on a statement signed by him on 15 May 2003 and received into evidence as Exhibit C. Omitting irrelevant parts that statement is reproduced as follows:
1.I hold a degree in law from the University of Melbourne.
2.My work experience is that I commenced my articles of clerkship with Law Partners in March 1995, was admitted as a barrister and solicitor of the Supreme Court of Victoria and the High Court of Australia in 1996 and continued to work as a solicitor with Law Partners until September 1999. From September 1999 until early September 2001 I was employed by the law firm of Lander and Rogers as a solicitor. In late September 2001, I commenced employment as a solicitor with Deacons and have continued that employment to the present day.
3.During my time with Law Partners, I operated as a part of Mr Woods's practicing group and initially worked under his supervision which was intense at first but gradually reduced as I gained experience.
4.On 11 March 1998, I saw Mr Freeman for the first time as Mr Woods was not available. Mr Freeman gave me a lengthy outline of the case and much of which was already on the file. It appeared that Law Partners was doing a fresh visitor visa application for Ms Zaitseva, a female friend of Mr Freeman's. Mr Freeman provided me with documents which I received and passed to Mr Dronjic.
5.There is a very short file note of my attendance. Looking at the file note now, I realise that it is not adequate and is not reflective of my usual practice at the time. It is certainly not what would have been expected by Mr Woods in his supervision of me.
6.My opinion of the Applicant is that he is a person who is prepared to take people at face value and trust them. I consider the Applicant to be forthright and direct himself and he has always seemed to assume these qualities in others also. This has on occasion led to the Applicant being exploited by others but it has also enabled him to be a determined and successful campaigner for his client's rights. I have found him to be acutely conscious of the ethical obligations that he owes to his clients and a straight operator .
7.In my experience the Applicant has also demonstrated himself to be an excellent and enthusiastic mentor to a number of junior staff over a period of years. The Applicant clearly derived great satisfaction from this role. He is extremely knowledgeable about the migration law and direct and honest in his dealings with clients and immigration officials.
8.On the basis of my experience as set out above, it is my view that the Applicant is a person of integrity and fit and proper person to give immigration assistance.
79. When asked whether he could recall his discussions with Mr Freeman on 11 March 1998, Mr Tobin said that he could add nothing by way of recollection other than that which appears in his statement as found above. He said that he met with Mr Freeman on one occasion only, on 11 March 1998. At that time, he said the arrangement usually made between Law Partners and their clients was that a fee guarantee would be offered only if Law Partners made a fresh application for a visa after relevant documents had been obtained by FOI. It was only in these circumstances that fees would be refunded if an application was eventually unsuccessful.
80. However Mr Tobin said that in his experience the decisions made by DIMA were “so appalling” that the Australian Government Solicitor on its behalf would “roll over” and the matter would be resolved by the application being remitted to DIMA to grant the visa.
81. Mr Tobin said that it would be very unusual for Law Partners to proceed directly to the Federal Court on a visa refusal following an application that was made by the client only. He said if a client proceeded to the Federal Court by way of an appeal, in those circumstances, a fee guarantee would not be offered. He said that if he or other solicitors in the employ of Law Partners were instructed to proceed to the Federal Court, an agreement would be drawn between the client and Law Partners without the offer of a fee guarantee. He said the likely costs in those circumstances would be significant. He said that solicitor client costs would be in the vicinity of $1,500 for lodging an appeal and the total costs of a contested appeal would be in the vicinity of $8000 to $10,000. Additionally, if the application was unsuccessful the client would be exposed to the costs of the Australian Government Solicitor.
82. Mr Tobin said that if a fee guarantee had been offered to a client but Law Partners was subsequently instructed to proceed to the Federal Court on a refusal decision, following an application made by the client, the client would in those circumstances be notified that the fee guarantee would be withdrawn and Law Partners would proceed only upon a different fee basis.
83. Mr Tobin confirmed that he consulted with Mr Freeman on one occasion only namely 11 March 1998. He was aware that a file memorandum was prepared by him and is recorded (Exhibit 1) in the following terms:
JT 11/03/1998 A1 TF
Took instructions.
40 mins
84. Mr Tobin said that the file note that he then prepared was not adequate. He said that there had been discussions between he and Mr Woods during his initial training concerning the matters to be recorded as file memorandums. He said the content of the memorandum prepared by him on 11 March 1998 was inconsistent with the training that he had been given by Mr Woods.
85. In cross-examination Mr Tobin said between the time he made his file note on 11 March 1998 and his statement of 15 May 2003, he had not provided any written advice or notation to Mr Woods or any other person concerning his involvement on 11 March 1998 with Mr Freeman. He agreed therefore that the intervening period of more than five years would cause his memory to be “weak”. He said that he could only “jog” his memory by reference to the file note and perusal of the file. He agreed that he probably did observe a letter forwarded by Mr Freeman following the interview. Mr Tobin agreed that if there were other documented accounts of the contact between he and Mr Freeman made earlier than 15 May 2003 that they were more likely to be “accurate”.
86. With respect to his statement recorded above, Mr Tobin said that it was initially drafted by Mr Woods but was later settled as a “joint effort”. He said that Mr Woods drafted paragraph 5 which he was prepared to adopt. He said paragraph 7 was inserted by him, and whilst he could not recall whether he or Mr Woods drafted paragraph 8, Mr Tobin said it contained an opinion held by him.
87. Mr Tobin said he understood that he consulted with Mr Freeman on 11 March 1998. He gave this evidence on the basis of the date recorded against his file memorandum (refer paragraph 83). He said he was not aware that Mr Freeman had recorded in a proof of evidence that the consultation occurred on 12 March 1998. He said he could not recall Mr Woods ever advising him that Mr Freeman was asserting a different date of the conference nor was he ever asked by Mr Woods to verify whether the consultation occurred on either 11 or 12 March.
88. With respect to the consultation with Mr Freeman, Mr Tobin said that he would have had a “general discussion” with Mr Freeman and that it was likely that documents were given to him (by Mr Freeman). He said that he may have been given a letter addressed to Miss Zaitseva dated 16 February 1998 (T documents page 57 and 58) – being a letter advising of a refusal to grant a visitor visa but he could not recall it. Additionally he said that he had no recollection of being instructed to lodge an appeal with the Federal Court against that refusal – at the date of consultation – but did acknowledge at that date it would have been within time to lodge an appeal. Mr Tobin agreed that his memorandum containing the words “took instructions” suggests that he was instructed to do something and he said that he could not deny – but could not recall – that Mr Freeman was intending to pursue an appeal directly to the Federal Court against the refusal to grant a visa as found within the letter of 16 February 1998.
89. Nonetheless Mr Tobin agreed that some documents would have been given to him by Mr Freeman and he referred to paragraph 4 of his statement. He also agreed that any documents given to him would have been passed onto Mr Dronjic who was the file operator yet he agreed that he did not record these events in his file memorandum.
90. Mr Tobin said that he consulted with Mr Freeman only because Mr Woods was then unavailable. He said that he recalled the consultation as relating to a person overseas. At the time of consultation Mr Tobin said he was registered as a migration agent and he regarded his involvement with Mr Freeman at the time of consultation as being in the nature of “immigration assistance”.
91. At the conclusion of the evidence of Mr Tobin we discussed with Mr Woods and Mr Star our concern about a number of different pages from Mr Freeman’s file. Some documents, purported to be file memorandums, but were in a different format to the documents which were produced as Exhibit 1. In the course of those discussions – and after we asked for assistance to understand the differences between the documents purporting to be file notes - Mr Tobin said he was unable to assist but did recall “vaguely” having the meeting with Mr Freeman “and getting documents”. Mr Star then drew our attention to the evidence of Mr Tobin both at the hearing and within his statement of passing the documents received from Mr Freeman to Mr Dronjic. Mr Star (page 664 of the transcript) referred to evidence found within the transcript found at page 548 of the previous day given by Mr Woods that he (Mr Woods) received the documents made available by Mr Freeman from Mr Tobin and he then passed those documents to Mr Dronjic. It was also submitted by Mr Star that Mr Freeman would say in evidence that he instructed Mr Tobin to give his documents to Mr Woods.
92. After the conclusion of discussion concerning the pages of file notes being of different format and containing differing entries as against common dates, the additional pages were received into evidence as Exhibit 7. Mr Star persisted with the application to admit those documents into evidence because he submitted that the issues of supervision under the Code of Conduct at cl8.1 and cl8.2 were relevant and the inconsistencies between the file notes would be relevant to the enquiries under the Code of Conduct.
TONY FREEMAN
93. Mr Freeman adopted his “outline of evidence” as his evidence in chief. That document (excluding formal and irrelevant parts) has been reproduced earlier (paragraph 5).
94. At paragraph 8 of the outline of evidence Mr Freeman referred to the letter from Law Partners dated 25 May 1998. Mr Freeman held a signed copy of that letter and it was received into evidence. That letter has been reproduced earlier. The letter has a signature after the words “Yours faithfully” and before the words “LAW PARTNERS per Antonio Dronjic”. There is no signature in the space where it was intended that Mr Freeman would sign.
95. In cross-examination Mr Freeman said that he was a retired pensioner who enjoyed travelling to his “favourite destination” being Russia. He said he did not have a good grasp of Russian language and despite attempting to learn it – including travelling to Russia – he preferred to “invite someone to Australia whom I could show around parts of Australia, and that the – for them to reciprocate by teaching me the Russian language”. He said he had met two people in Russia who he thought would be able to secure time away from their employment to travel to Australia upon his invitation. The only basis of selection of those persons was “their availability”. His preference was for a female person to travel to Australia and again preferably a “new Russian” who he described as a “more well to do type of person, well educated”. He said it was his intention to meet the costs and expenses of a person travelling to Australia and to provide accommodation without fee. It was not his intention to pay a fee to a person for instructing him in the Russian language. He described the travel by a Russian person to Australia for the above purpose as being a “sponsored visit”. Mr Freeman acknowledged that he could have learnt the Russian language from persons in Melbourne however he was not “interested in proper grammar” but rather was “more interested in what is commonly known as street talk”. He reaffirmed – when pressed in cross-examination – that the two persons he had approached to travel to Australia were “young and attractive females” because that was his “preference”. He said that he intended to travel throughout Australia and preferred the companionship of a female person. He said the only motive in approaching two young, single female persons in Russia was to learn the Russian language and a “cultural exchange”. He described the relationship with both women as “purely platonic”. When asked whether he could explain why the Immigration Department in Russia had interpreted a “romantic connection” when the visa applications were sought, Mr Freeman said that Ms Russova (the first person to whom Mr Freeman made an offer to travel to Australia) had applied for a “prospective spouse visa” because she had notified those officials that the relationship between her and Mr Freeman “could be romantic”. Mr Freeman said “her reasons for doing that is beyond me”, when he was asked to explain why that explanation was given by her.
160. We would acknowledge that despite the letter of 5 March 1998 addressed to Mr Freeman indicating that Mr Dronjic was assisting Mr Woods that it may have been perceived by Mr Freeman that Mr Dronjic was also a registered migration agent. When the circumstances of the work undertaken by Mr Dronjic are carefully examined we believe that this perception, if held, is not valid. Similar consideration might be given to the work undertaken by Mr Dronjic from time to time on behalf of Mr Freeman and the contact between the two of them, nonetheless, we are satisfied that Mr Dronjic was doing no more than undertaking clerical and other preparatory work on behalf of Mr Woods and in order for Mr Woods ultimately to commence Federal Court proceedings (which for reasons found earlier in this decision was never undertaken because of the cessation of the relationship between Mr Freeman and Law Partners).
161. We are satisfied and find as a fact that Mr Dronjic did not have any knowledge of immigration law at the time that he had an association with Mr Freeman. We acknowledge that Mr Star submitted that the immigration assistance that was given was inadvertent and that Mr Dronjic could have provided “immigration assistance” despite his lack of qualification. On balance we are satisfied as a fact that immigration assistance was not given. An examination of the work undertaken by Mr Dronjic does not permit us to find as a fact that the work undertaken by him amounted to “immigration assistance” as defined by s276(1) of the Act.
162. We are satisfied on balance that Mr Dronjic was at all relevant times seeking information in order to provide advice to Mr Woods concerning the immigration application upon the instructions of Mr Freeman but that he, Mr Dronjic, was not giving immigration advice to Mr Freeman. Whilst we acknowledge that Mr Dronjic did draft some letters we are mindful of the evidence of Mr Dronjic (transcript page 528) that in his denial of a suggestion put by Mr Star that he was providing immigration assistance Mr Dronjic added “I was doing specifically what I was told by Mr Woods to do, in order to assist him to deal with this matter. He took instructions, he signed the retainer letter with the client, he did all the work, he called all the shots”.
163. In conclusion we are not satisfied, additionally by reference to s276(1) of the Act, that the preamble has been met by the respondent in its submissions. We are not satisfied that Mr Dronjic did use or purported to use “knowledge of or experience in migration procedure to assist a visa applicant . . .”. As we have found earlier Mr Dronjic had no “experience in migration procedure” (other than his own refugee application) nor did he have “knowledge of” migration procedure. Because he had “no knowledge of” and no “experience in” migration procedure he could not “use” that knowledge or that experience. Additionally we would say that by the absence of that knowledge and that experience Mr Dronjic could not and did not purport to use knowledge and experience in migration procedure.
164. In so far as s 276(1)(a) of the Act is concerned there is no evidence that Mr Dronjic prepared or helped to prepare a visa application. There is no evidence that Mr Dronjic advised Mr Freeman and there is certainly an absence of evidence that Mr Dronjic advised the “cancellation review applicant” who, for the purposes of this review, we understand to be Miss Zaitseva (s276(1)(b)). There is no evidence that Mr Dronjic prepared proceedings before a court or review authority within the meaning of s 276(1)(c) of the Act and there is certainly no evidence that he represented the visa applicant or the cancellation review applicant within the meaning of s 276(1)(d) of the Act. That Mr Freeman sought appointments with Mr Woods indicates to us that he – Mr Freeman – understood that immigration assistance would not be given by Mr Dronjic, rather by Mr Woods.
165. Since we are satisfied that Mr Dronjic did not give immigration assistance within the meaning of s 276 nor are we satisfied that he provided immigration assistance upon the documents read or the evidence heard in these proceedings it follows that we are satisfied that Mr Woods as the registered agent did not knowingly allow Mr Dronjic to provide immigration assistance. Additionally it follows that we are satisfied that Mr Woods did not falsely declare on 15 February 2000 that at no time during the relevant period that Mr Dronjic was acting as a migration agent by providing immigration assistance (refer findings of MARA at page 8).
CONCLUSION
166. We are therefore satisfied that there has been a breach of cl2.1 for the reasons given earlier. We are also satisfied that there has been a breach of cl8.2 but only upon the limited basis referred to earlier. We are not satisfied that there has been a breach of cl8.1 or cl8.3. Our reasons for penalty are found later in this decision.
DISCUSSION
167. A number of issues emerged during the hearing of this review which are not apparent from our summary of the evidence nor from the findings that we have previously made in this decision. Those issues in our view should be recorded.
DRONJIC
168. Mr Freeman lodged a complaint with MARA about the conduct of Mr Dronjic on 30 August 1999. The complaint is summarised in a report of 24 July 2001 but essentially it was alleged that Mr Dronjic had given incorrect information, had made false statements in a statutory declaration and had given wrong advice. Further letters were written by Mr Freeman on 16 December 1999 and 2 February 2000.
169. MARA referred the matter to a Conduct Advisory Panel to investigate whether Mr Dronjic had given immigration assistance at all relevant times because he did not become registered as a migration agent until March 1999, almost 12 months after he commenced employment with Mr Woods. MARA was of the view that it was entitled to consider whether Mr Dronjic was a “fit and proper person” and a “person of integrity” within s 290 of the Act and in conducting an inquiry of that type it was of the view that it was “relevant to consider whether Mr Dronjic provided immigration assistance at a time when he was not a registered migration agent”.
170. MARA ultimately concluded that it was open to it to determine that Mr Dronjic had falsely declared that he had not provided immigration assistance.
171. Apparently having reviewed a written response completed by Mr Dronjic to MARA, it was resolved that Mr Dronjic be invited to make a submission pursuant to s 309(2) of the Act before 27 August 2001.
172. Mr Dronjic did complete a detailed submission on 20 August 2001 where he emphatically and with considerable detail denied having given immigration assistance.
173. The members of MARA met on 4 September 2001. The Agenda item 28.2 concerned the “Antonio Dronjic complaint”. The members of MARA resolved “no further action. Agent’s submissions are accepted”.
174. Despite the decision made by MARA on 4 September 2001, it made one of the three decisions under review in these proceedings on 3 February 2003, namely that it was satisfied that Mr Woods “knowingly allowed Mr Antonio Dronjic to provide immigration assistance even though he was not a registered migration agent . . .” (T documents page 8).
175. The hearing of this review commenced on 13 May 2003. Mr Dronjic was being called by Mr Woods to give evidence. He had provided a proof of his evidence prior to the commencement of the proceedings which had been exchanged with the respondent’s representatives.
176. On the morning of the first day of hearing and whilst Mr Dronjic was present in the Tribunal hearing room, Mr Star drew to our attention an extract from Minutes of a meeting of MARA on 8 May 2003. Agenda item 23.1.2 of the meeting records the following:
Antonio Dronjic Complainant. Matter to be reopened further to information arising from litigation concerning Agent Woods. Secretariat in conjunction with John Young to collate registration file, evidence from transcripts, documents alleged in statement of facts and contentions and all other available information with a view to a possible s 309(2) letter.
177. The reference within the Minutes to Mr Dronjic concerns the complainant “T Freeman” with the complaint number being enumerated as 498. We note for the purposes of this discussion that this complaint number is the same complaint number contained within the Minutes of 4 September 2001 where MARA decided that the submissions of Mr Dronjic were accepted and that no further action would take place.
178. Mr Star and his instructor Mr Fell drew to our attention the existence of the Minute of 8 May 2003. No criticism is intended of Mr Star or Mr Fell indeed we acknowledge that they conducted themselves with respect to this issue with the utmost of propriety. We accept that they learnt of the existence of the Minute of 8 May 2003 on the morning of the first day of hearing. We note that the facsimile impression at the top of the page upon which the extract of Minutes is recorded bears the date 13 May 2003 with the time of receipt being 9.03am.
179. We also learnt during subsequent discussion with Mr Star and Mr Woods concerning the nature and effect of the Minute of 8 May 2003 that Mr Dronjic had not in fact been made aware that he had been the subject of the Agenda item contained in that Minute.
180. We expressed our concern that in the absence of any fresh complaint being made against Mr Dronjic and in the absence of him being put on notice that the complaint against him was being “reopened, that there was the potential for a manifest injustice and breach of procedural fairness being committed by MARA. Indeed Mr Dronjic was at considerable risk of intimidation by MARA because the resolution it made on 8 May 2003 was to review “evidence from transcripts” in addition to other documents. In effect it intended to initiate, without any apparent reason, a further review of the conduct of Mr Dronjic as a migration agent during the time that Mr Freeman was a client despite having earlier found that the explanations given by Mr Dronjic were accepted and no further action should be taken against him.
181. Of equal concern was the findings of fact of MARA on 3 February 2003 (T documents page 8) that Mr Dronjic had provided immigration assistance – a finding apparently made to support its case that Mr Woods had breached cl8.1 and cl8.3 of the Code of Conduct. This is despite MARA having decided on 4 September 2001 that the submissions of Mr Dronjic denying that he had provided immigration assistance were accepted and that no further action be taken against him.
182. After there was some considerable discussion, we recommended a number of options to Mr Star and suggested that he seek instructions. One of those options was to determine whether MARA was prepared to give an undertaking that it would forever agree not to reopen, act or proceed upon the complaint made by Mr Freeman against Mr Dronjic. Ultimately Mr Star was able to secure those instructions and the hearing eventually proceeded.
183. Mr Star however submitted that we should not make any finding about the content of the Minutes of 8 May 2003. He submitted that the circumstances concerning the creation of the Minutes had not been the subject of detailed evidence and that it would not be appropriate for the Tribunal to make any adverse finding against his client in the absence of evidence. He submitted that MARA did not intend to act inappropriately by publishing the Minutes of 8 May 2003 and that it should be observed as having acted promptly and co-operatively with Mr Woods and the Tribunal by offering the undertaking that it did.
184. We agree with Mr Star that the basis of MARA apparently acting to reopen the complaint against Mr Dronjic remains unknown.
185. Nonetheless whilst we will not make findings – indeed it would not be relevant in the present review – against MARA with respect to its conduct concerning Mr Dronjic but it is worthy to note that:
(i)MARA made a finding on 4 September 2001 that the complaint against Mr Dronjic be dismissed because it had accepted his submissions and it decided that no further action would take place.
(ii)MARA decided on 8 May 2003 that it would reopen the complaint against Mr Dronjic.
(iii)MARA did not notify Mr Dronjic that it intended to reopen the complaint against him.
(iv)Mr Dronjic learnt of the intention to reopen the complaint against him five days after it had made that decision and at a point in time when he was about to give evidence in the review initiated by Mr Woods. Part of that review was to challenge a decision that had been made by MARA on 3 February 2003 (18 months after it had accepted the submissions of Mr Dronjic) that Mr Dronjic had in fact provided immigration assistance and that Mr Woods had allowed that assistance to be provided by Mr Dronjic.
186. It might be concluded that the conduct of MARA in relation to these matters is either intimidatory or naïvé. The basis for it reopening the complaint against Mr Dronjic remains unclear. Whilst it has now undertaken that it will forever agree not to reopen any complaint against Mr Dronjic concerning Mr Freeman we would recommend with respect that it would be in the interests of the members of MARA to be mindful of the Model Litigant Policy published by the Commonwealth Government some years ago.
FREEMAN
187. The motives of Mr Freeman are not the subject of review in these proceedings but it cannot be denied that he has been persistent and vigilant in his complaints against Mr Woods and Mr Dronjic. His correspondence to a number of different agencies has been voluminous and complaints have been lodged by him not only to the respondent but also to the Legal Ombudsman in Victoria, the Legal Professional Tribunal (“LPT”) and to Victorian Lawyers RPA Ltd. The complaints are widespread but do include references to the complaints which have given rise to this review.
188. Victorian Lawyers RPA Ltd decided on 8 December 1998 that there was no reasonable likelihood that the LPT would find Mr Woods guilty of any misconduct or unsatisfactory conduct and the complaint against Mr Woods was dismissed. Mr Freeman was advised that he could seek to have the conduct of Mr Woods reviewed by the Legal Ombudsman should he prefer.
189. Mr Freeman apparently did take up that suggestion and lodged a complaint with the Legal Ombudsman who decided on 9 June 1999 that there was no reasonable likelihood that the LPT would find either Mr Woods, Mr Dronjic or Law Partners guilty of misconduct or unsatisfactory conduct within the Legal Practice Act (Vic)1996 (“the Legal Practice Act”).
190. Apparently not content with that decision Mr Freeman sought a review of the decision of the Legal Ombudsman who wrote him a letter on 28 September 1999 that no further action would be taken with respect to the concerns raised by Mr Freeman.
191. The complaint lodged with the LPT did cause what was believed to be a resolution of the dispute with respect to costs. It is noted that a conciliation conference was convened and an agreement was apparently reached. Mr Freeman signed a record of agreement (T documents page 158) on 30 March 1999 as did Mr Dronjic who appeared on behalf of Mr Woods. We also note that on the day that he signed the agreement he wrote a letter to the LPT (page 155) indicating that he continued to have rights against Mr Woods that he would consider exercising, including institution of proceedings to recover damages.
192. We acknowledge that the three agencies referred to above are concerned with reviewing complaints made against members of the legal profession. Whilst we note that the decisions made in these proceedings concern the conduct of Mr Woods as a migration agent, we are puzzled as to why MARA was apparently unmoved or unimpressed by the findings made by these three agencies. Obviously it was not influenced by those findings.
193. Despite the lengthy and detailed reasons for the decisions made by the above agencies, the copious letters and other documents completed by Mr Woods and Mr Dronjic, including some declarations and the findings made by MARA concerning Mr Dronjic, MARA decided to make the decisions that were the subject of review in these proceedings where it principally sought to rely upon the evidence of Mr Freeman.
194. In our view MARA should have exercised far greater restraint and caution in bringing these proceedings in the absence of more compelling evidence. Additionally it should have exercised greater scrutiny over the motivation of Mr Freeman and recognised that he had embarked on a crusade against Mr Woods and Mr Dronjic which continued unabated despite his complaints being rejected by the three agencies referred to earlier.
195. MARA should have also in our view acted upon its own decision of September 2001 and continued to observe that it was satisfied with the explanation of Mr Dronjic that he did not provide immigration assistance. Instead it continued to pursue that allegation as was initiated by Mr Freeman which – having regard to our findings earlier – was unwise.
CONCILIATION CONFERENCE AT THE LEGAL PROFESSION TRIBUNAL
196. We should at this stage of the reasons reaffirm the oral reasons we gave during the hearing concerning the admissibility of evidence of an offer made at the LPT on 30 March 1999.
197. Mr Dronjic appeared on behalf of Mr Woods and made an offer of $1500 to Mr Freeman being a refund in full of costs and disbursements paid. This offer was accepted by Mr Freeman and both Mr Dronjic and Mr Freeman signed an agreement that the dispute was then ended. The conciliator also signed the agreement certifying it as a “true record” (T-documents p158).
198. During the hearing Mr Star opposed this evidence being given on reliance of s129(6) of the Legal Practice Act which reads as follows:
. . .
(6)Subject to section 131, evidence of anything said or done in the course of a conciliation is not admissible in proceedings before the Tribunal or any other proceedings relating to the subject-matter of the dispute.
199. In recent years processes of dispute resolution alternative to litigation have emerged and been adopted by disputants. Generally the processes involve a degree of confidentiality. In the present case s129(6) of the Legal Practice Act is a reflection of statutory intent not inconsistent with many other similar processes permitted by legislation. The common law has also protected – and therefore preserved – the confidentiality of discussions intended to achieve resolution of a dispute by the entitlement to claim privilege.
200. Presently the extent or limitation – if any – on a claim of privilege or confidentiality continues to emerge and is the subject of some controversy (refer “Mediation – Principles Process and Practice” – Boulle and Nesick; Butterworths 2001, p505).
201. Recently the United States’ decision of Olam v Congress Mortgage Co. (N.D. Cal.1999) 68 F.Supp.2d 1110 aroused some excitement amongst mediators when the mediator was compelled to give evidence concerning the subject and content of a mediation conference involving the above parties, despite the Californian Evidence Code being understood to prohibit such evidence.
202. Generally, if the discussions within a mediation or conciliation conference involve conduct intended to offend criminal or civil laws, evidence of those discussions cannot be concealed behind the cloak of confidentiality or privilege. It follows that an “agreement” reached in these circumstances will be unenforceable. Alternatively, an attempt to prevent enforcement of an agreement by one party seeking privilege is likely to fail if there has been no offence to civil or criminal laws. The consequence of course of such procedure is the disclosure of the discussions and the terms of the agreement.
203. We have concluded that in the circumstances of the present review we should be aware of the conference convened by the LPT, the content of it and its outcome. That a conference was convened and an outcome achieved is beyond controversy – documentation concerning it is within the T-documents lodged by the respondent (refer p158 and p159). The content of the conference, namely an offer of refund of all fees paid and acceptance by Mr Freeman of the offer was heard in evidence from Mr Dronjic. Acceptance of the offer brought that dispute to an end, as was certified by the Conciliator. Excluding this evidence would be offensive to citizen review and public policy.
204. The offer, on the instructions of Mr Woods is relevant to the first decision under review (cl2.1 of the Code of Conduct) and is a matter we should, and will, take into account. Having that evidence excluded on the basis of offending s129(6) of the Legal Practice Act is not appropriate because the dispute before the LPT concerned a costs dispute only. These proceedings to review decisions of MARA are not the “subject-matter of the dispute” within the meaning of s129(6) of the Legal Practice Act. Additionally, we would find that MARA cannot claim an exclusion of this evidence by privilege, it not being a party to the Conference before the LPT.
PENALTY
205. Section 303 of the Act is reproduced as follows:
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.
206. The respondent decided that the applicant had not conducted himself as a registered agent in accordance with the prescribed Code of Conduct pursuant to s 314 of the Act. It decided pursuant to s 303(b) of the Act to suspend the registration of Mr Woods as a migration agent for a three year period pursuant to s 303(h) of the Act.
207. The focus of this review was entirely upon the alleged non-compliance with the Code of Conduct by Mr Woods. In considering any penalty under s 303 of the Act we will also focus only on the non-compliance with the Code of Conduct where relevant.
208. In reviewing the penalties under s 303 of the Act – and at the risk of stating the obvious – cancellation or suspension of registration can have a significant and far reaching consequence. Initially it affects the livelihood and reputation of the agent. It also has a significant dislocating affect on clients of that agent. Nonetheless where there have been breaches of the Code of Conduct the Parliament has clearly indicated that cancellation or suspension of registration is an appropriate sanction. We note that cl1.10 of the Code of Conduct recites the aims of the Code which clearly are referrable to the standards of competence and practice of a migration agent.
209. In the present application the penalty imposed by MARA was by reason of the alleged breach of four clauses of the Code of Conduct where it was alleged that a fee guarantee was improperly withdrawn, the work carried out by staff was not property supervised and that Mr Woods allowed a person who was not a registered agent to provide immigration assistance.
210. We have found as a fact that Mr Dronjic did not provide immigration assistance. It follows that cl8.3 has not been breached. Additionally cl8.1 has not been breached because Mr Woods did not allow Mr Dronjic to give immigration assistance. It follows that there can be no finding under cl8.1 that Mr Woods failed to exercise effective control over his office with respect to the giving by staff of immigration assistance.
211. We have found that there was a breach of cl8.2 because Mr Woods failed to properly supervise his staff – namely Mr Tobin by:
(i)not requiring him to provide a more comprehensive memorandum of 11 March 1998; and
(ii)failing to seek more information from him; and
(iii)failing to accept responsibility for not seeking a more comprehensive memorandum and not seeking more information.
212. Since we also found that Mr Freeman did not instruct Mr Tobin to commence Federal Court proceedings as was alleged, the consequences of failing to supervise Mr Tobin in these circumstances should be factored into a penalty.
213. We have found that Mr Woods did breach cl2.1 by the manner in which the fee guarantee was withdrawn. We have recorded earlier our reasons for making that decision. In those findings we have also referred to the conduct of Mr Woods. We do not intend to repeat those findings at this part.
214. When all of the above is taken into account we have concluded that the suspension of the registration of Mr Woods for a period of three years was harsh.
215. Indeed we have concluded that any suspension of his registration as a migration agent would in the circumstances be unfair.
216. We have concluded that the penalty against Mr Woods should also have regard to the events giving rise to these proceedings having occurred almost six years ago. We note that there has been a number of enquiries of Mr Woods upon the initiation of Mr Freeman where he has been required to defend himself and who has continued to practice in an atmosphere of uncertainty because of the frequency of the complaints and the risk to his practice and reputation. We note other professional and disciplinary agencies have not found or upheld any complaint against Mr Woods at the initiation of Mr Freeman.
217. On balance and having regard to all of these factors we have concluded that it would be appropriate in the circumstances that a caution be imposed upon Mr Woods for the breaches of the Code of Conduct as we have found in this review. We interpret the penalty options available at s303 as being referable to the proven conduct. We think the conduct of Mr Woods is of lesser consequence and significance than that which would attract cancellation or suspension. A caution, in our view, is appropriate.
DECISION
218. The decision under review in so far as it made findings with respect to breaches of the Code of Conduct is varied and a decision be imposed that there has been a breach of cl2.1 and cl8.2 of the Code of Conduct.
219. With respect to the penalty imposed by MARA under s 303 we have decided that it should be set aside and in substitution it is decided that a caution be imposed upon Mr Woods.
220. The remaining part of the decision under review shall therefore be set aside and in substitution it is decided that the applicant has not breached clauses 8.1 and 8.3.
I certify that the 220 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J Handley, Senior Member, and
Associate Professor J Maynard, MemberSigned: Holly Weston
AssociateDate of Hearing 13–16 May 2003
Date of Decision 11 May 2004
Solicitor for the Applicant Self Represented
Counsel for the Respondent Mr D Star
Solicitor for the Respondent Australian Government Solicitor
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