Woods v Migration Agents Registration Authority

Case [2004] FCA 1622

FEDERAL COURT OF AUSTRALIA

Woods v Migration Agents Registration Authority [2004] FCA 1622

ADMINISTRATIVE LAW- appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – Administrative Appeals Tribunal confirmed a decision of the Migration Agents Registration Authority – questions of law – migration agent’s registration cancelled – not a person of integrity – not a fit and proper person – agent failed to comply with the Code of Conduct – whether evidence supported findings – whether correct test applied in respect of conflict of interest –ss 290(2), 303(g) and (f) and 314(1) of the Migration Act 1958 (Cth).

Administrative Appeals Tribunal Act 1975 (Cth) s 44
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth) ss 290(2), 303(g) and (f) and 314(1)
Migration Agents Regulations 1998

Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 considered
Australian Securities & Investment Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 referred to
Birdseye v Australian Securities & Investment Commission (2003) 76 ALD 321 referred to
Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 referred to
Hughes and Vale Pty Ltd & Anor v State of New South Wales & Ors(No. 2) (1955) 93 CLR 127 considered
Lilienthal v Migration Agents Registration Authority [2001] AATA 797 referred to
Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558 considered
Parks Holdings Pty Ltd v CEO of Customs [2004] FCA 820 considered
Ping, L. S. and Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 referred to
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 referred to
Minister for Immigration & Multicultural & Indigenous Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to
Re MIMA; Ex parte Durairajasingham (2002) 168 ALR 407 referred to

JAMES MALCOLM WOODS v MIGRATION AGENTS REGISTRATION AUTHORITY

V 647 of 2004

CRENNAN J
9 DECEMBER 2004
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 647 OF 2004

BETWEEN:

JAMES MALCOLM WOODS
APPLICANT

AND:

MIGRATION AGENTS REGISTRATION AUTHORITY
FIRST RESPONDENT

ADMINISTRATIVE APPEALS TRIBUNAL
SECOND RESPONDENT

JUDGE:

CRENNAN J

DATE OF ORDER:

9 DECEMBER 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 647 OF 2004

BETWEEN:

JAMES MALCOLM WOODS
APPLICANT

AND:

MIGRATION AGENTS REGISTRATION AUTHORITY
FIRST RESPONDENT

ADMINISTRATIVE APPEALS TRIBUNAL
SECOND RESPONDENT

JUDGE:

CRENNAN J

DATE:

9 DECEMBER 2004

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The applicant appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 11 May 2004. The Tribunal affirmed a decision of the Migration Agents Registration Authority (“MARA”) of 28 June 2002 to cancel the applicant’s…

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AGLC
Woods v Migration Agents Registration Authority [2004] FCA 1622
Case
[2004] FCA 1622
Decision Date

CaseChat Overview and Summary

The case of Woods v Migration Agents Registration Authority involved the appellant, who was a registered migration agent and a principal of a firm of solicitors, appealing a decision by the Migration Agents Registration Authority (MARA) to cancel his registration. The appeal arose from the appellant’s conduct in handling a visa application for a client, Mr Zhai, including the creation of a company to facilitate the application, which was found to be unethical and a breach of the Code of Conduct for migration agents. The Federal Court was required to determine whether MARA’s decision to cancel the appellant’s registration was correct.

The central legal issue was whether MARA had correctly exercised its discretion under section 303 of the Migration Act 1958 to cancel the appellant’s registration as a migration agent. The court had to consider whether the appellant was a fit and proper person to provide immigration assistance, and whether he had complied with the Code of Conduct. The Tribunal had already found that the appellant was not a person of integrity and had not complied with the Code of Conduct. The court had to assess if these findings were correct and if MARA’s decision was justified.

The court found that MARA had correctly exercised its discretion to cancel the appellant’s registration. The court noted that the appellant had failed to call any of his clients as witnesses to support his fitness and integrity, despite his claims about the success of his practice. The court also found that the appellant’s reliance on certain documents, including an unsigned affidavit from Mr Zhai, was not persuasive. The court further held that migration agents owe the same standard of conduct as lawyers and must properly supervise their staff, which the appellant had failed to do by allowing Mr Huang to act in an unethical manner. The court concluded that the appellant had not demonstrated that MARA’s decision was unreasonable or unlawful.

The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs, including reserved costs. This decision reinforces the high standards expected of migration agents and the importance of adhering to the Code of Conduct.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs including reserved costs.

Background

Background to the litigation

Prior to 25 June 2002, the applicant was the principal of a firm of solicitors trading under the name of Law Partners. The applicant was also registered as a Migration Agent under Part 3 of the Act. The present appeal arises from certain events occurring in 1998. The full details of those events are set out in the Tribunal’s reasons for decision. Factual Background The following summary is based on the findings of fact made by the Tribunal. At the relevant time, the applicant owned held 97% of the firm “Law Partners Pty Ltd” through which he conducted an extensive business as a solicitor and migration agent. At some time prior to August 1998, the applicant engaged the services of Mr Alan Huang (“Huang”), who was not a lawyer but a registered migration agent, to ‘attract business from Chinese persons’. The appeal arises from events concerning the applicant’s conduct in the handling of an application on behalf of a Mr Zhai (“Zhai”), who is a Chinese citizen, for a sub-class 457 Business Visa (“the Visa”). On 26 August 1998 Li Li Fang (“Li”) who was acting on behalf of Mr Zhai approached Huang for assistance with Zhai’s Visa. It appears from the evidence before the Tribunal that Huang was either employed by or otherwise engaged by Law Partners, the applicant’s firm. Zhai’s initial visa application had been rejected and another migration agent had already filed an appeal to the Federal Court on Zhai’s behalf when Li contacted Huang. Some discussions followed between Huang and Li to the effect that Li agreed to retain the services of Law Partners to assist with Zhai’s appeal. According to the evidence before the Tribunal, Huang advised Li that the appeal would be ‘principally handled’ by him under the applicant’s supervision. On 28 August 1998, upon advice from Huang, Li agreed on behalf of Zhai to incorporate the firm Hua Fu Enterprises (Australia) Pty Ltd (“the Company”). According to the terms of incorporation, Law Partners Investments (Far East) Pty Ltd (Law Partners’ investment vehicle) was to hold a 25 per cent share in the company. The Tribunal noted that the Minutes of the first Directors and Shareholders meeting recorded that both Zhai and the applicant attended. However, neither the applicant, nor Zhai (who was then resident in China) were present. A joint bank account was also set up in the Company’s name with the applicant, Huang and Zhai as authorised operators. Zhai later transferred certain monies into the joint account, again on Huang’s advice. The applicant gave evidence before the Tribunal that it was Law Partners’ practice to encourage clients to acquire a company so as to demonstrate an ongoing connection with Australia for the purposes of enhancing their qualifications for their business visa applications. This company was then used to acquire a business as a going concern and Law Partners, as shareholders in the company, would then claim 25% of the realised value of the business when it was eventually sold. The applicant conceded that as the clients provided 100% of the capital they would also suffer 100% of any loss associated with any particular venture.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CRENNAN J
A complaint was also made to MARA concerning the applicant’s conduct as a migration agent in relation to the same events, which were the subject of complaint before the LPT. In making its determination MARA had regard to the evidence before the LPT and the LPT’s reasons for decision. On 28 June 2002 MARA exercised its discretion under s 303 of the Act to make the following determination:“(a) it was satisfied that the Applicant was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance within s 303(f); (b)it was satisfied that an individual related by employment to the Applicant was not a person of integrity within s 303(g); (c)it was satisfied that the Applicant had not complied with the Code of Conduct prescribed under s 314(1) as in force from time to time; and(d)to exercise the powers given to MARA by s 303(a) of the Migration Act to cancel the registration of the Applicant by removing his name from the Register kept by MARA under s 287(1).”(“MARA’s decision”)Tribunal’s Decision The matter came before the Tribunal on 10 July 2002 by way of an application for review of MARA’s decision. An appeal from a decision of MARA lies to the Tribunal pursuant to s 306 of the Act. On 11 May 2004, the Tribunal decided as follows:“1. The decision under review in so far as it was decided that an individual related by employment to the applicant was not a person of integrity within s 303(g) of the Migration Act 1958 (“the Act”), is set aside and in substitution it is decided that relevant persons were not related by employment.2. The remaining parts of the decision namely:(i)the applicant was not a person of integrity or was not a fit and proper person to give immigration assistance within s 303(f) of the Act; and(ii)the applicant had not complied with the Code of Conduct prescribed under s 314(1) of the Act; and(iii)to cancel the registration of the applicant as a registered migration agent by removing his name from the Register,are affirmed.”This appeal is confined to paragraph 2 of the Tribunal’s decision. The Tribunal’s determination involves a hearing de novo such that in determining whether to affirm MARA’s decision, the Tribunal was required to ‘stand in MARA’s shoes’. The Tribunal correctly referred to its role as involving a hearing de novo in its reasons for decision. The question for determination before the Tribunal was whether on the evidence before the Tribunal MARA had correctly exercised its discretion under s 303 of the Act to cancel the applicant’s registration. In determining whether MARA had acted correctly the Tribunal was required to take account of certain factors listed under s 290(2) of the Act, which provides:“(2) In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:(a) the extent of the applicant’s knowledge of migration procedure; and(b) whether the applicant has a qualification prescribed by the regulations or a knowledge of migration procedure that the Authority considers to be sound; and(c) any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:(i)a fit and proper person to give immigration assistance; or(ii)a person of integrity; (except a conviction that is spent under Part VIIC of the Crimes Act 1914); and6. any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and7. any disciplinary action that a professional association is taking, or has taken, against the applicant that the Authority considers relevant to the application; and8. any bankruptcy (present or past) of the applicant; and9. any other matter relevant to the applicant’s fitness to give immigration assistance.” (emphasis added)

Ratio Decidendi

Legal Principle Established

Established by: CRENNAN J

The Tribunal made the following findings. First, the Tribunal noted that the applicant did not call any persons in the proceedings before it that may have assisted him. It noted that:“Despite his frequent references to the successful nature of his immigration practice not one client – past or present – was called as a witness in support of his fitness, propriety and integrity as a migration agent. Many witnesses were called who spoke of the personal attributes of (the applicant). …It is his professional reputation that is the subject of this part of the review and he has chosen or omitted to call persons who have previously engaged him in migration applications.”Secondly, the Tribunal went on to consider the evidence put forward by the applicant. It stated that it ‘took a dim view’ of certain of the documents which the applicant attempted to rely upon, including an unsigned affidavit of Zhai that the applicant had drafted. Zhai did not give evidence before the LPT and the Tribunal rejected the applicant’s submission that the unsworn affidavit should be accepted as Zhai’s ‘evidence’. The Tribunal summarised the relevant evidence before it in considerable detail.Thirdly, the Tribunal considered whether the duties and responsibilities owed by migration agents to their clients were any different from those duties and responsibilities owed by lawyers. It concluded that:“…having regard to the objectives of the Act, the intention of Parliament as evident by the Minister’s speech upon introduction of the Act, the numerous decisions of superior courts referring to the vulnerability of migration applicants and the duty generally of a professional seeking reward and – not insignificantly – the prescription of a Code of Conduct applicable to migration agents – that the standard of conduct of migration agents are no less than the standard of conduct owed by lawyers.” (emphasis added) Finally, cl 8.2 of the Code states:“A migration agent must properly supervise the work carried out by staff for the agent.”Having regard to this provision, the Tribunal determined that ‘(it) had no doubt that the applicant did fail to exercise the duty he owed as a migration agent to effectively control his office (refer cl 8.1 and cl 8.2 of the Code) by allowing Huang to act in the manner that he did as a contracted person.’ The Tribunal also appeared to attach some importance to the fact that the applicant continued to engage Huang’s services for some time after the events concerning Zhai and Chang. It stated ‘we would have thought it would be appropriate for a person of fitness, propriety and integrity to immediately dismiss him, such was the disgraceful and dishonourable conduct that he displayed.’The proceeding in this court On 20 May 2004, the applicant issued two proceedings, a notice of appeal under s 44 of the AAT Act and an application for an order for review of MARA’s decision under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). The applicant filed a notice of discontinuance in relation to the latter proceeding on 8 July 2004.