Yildiz v Migration Agents Registration Authority

Case [2021] FCA 1550

FEDERAL COURT OF AUSTRALIA

Yildiz v Migration Agents Registration Authority [2021] FCA 1550  

File number(s): VID 575 of 2020
Judgment of: WHEELAHAN J
Date of judgment: 10 December 2021
Catchwords:

ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal – where the Tribunal affirmed a decision of the Migration Agents Registration Authority to cancel the applicant’s migration agent registration following its investigations into four complaints made against the applicant – where the applicant was represented by solicitors and counsel before the Tribunal – allegations that the Tribunal did not address relevant evidence, did not accord procedural fairness, was affected by bias, placed unreasonable weight on certain matters, and erred in determining that cancellation was the appropriate consequence of its findings – whether, in according the applicant procedural fairness, the Tribunal was required to make available for cross-examination all four complainants before relying on material relating to the complaints – allegations not made out – no errors of law found – appeal dismissed with costs.

PRACTICE AND PROCEDURE – application to adduce further evidence on appeal that was not before the Tribunal – whether the proposed further evidence was connected to permissible findings of fact on appeal – proposed further evidence sought to be adduced for the purpose of the court making findings of fact inconsistent to those made by the Tribunal – application refused.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 32, 33(1), 33A, 34J, 35(1), 40, 40A(1), 44, 44(7) and (8)

Migration Act 1958 (Cth) ss 275, 276, 280, 287, 306, 308, 314(1) and (2), 320

Federal Court Rules 2011 (Cth), r 33.12(2)(b), 33.29, 33.29(2)

Migration Agents Regulations 1998 (Cth) reg 8

Cases cited:

Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408

Comcare v Etheridge [2006] FCAFC 27; 149 FCR 522

Frugtniet v Secretary, Department of Social Services [2021] FCAFC 127

Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315

House v The King (1936) 55 CLR 499

Luck v Secretary of the Department of Human Services [2015] FCAFC 111; 233 FCR 494

Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507

Rawson Finances Pty Ltd v Federal Commissioner of Taxation [2013] FCAFC 26; 296 ALR 307

Repatriation Commission v Butcher [2007] FCAFC 36; 94 ALD 364

Repatriation Commission v O’Brien (1985) 155 CLR 422

Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72

Yildiz and Migration Agents Registration Authority [2020] AATA 3744

Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 60
Date of hearing: 7 December 2021
Counsel for the Applicant: The applicant was self-represented
Counsel for the Respondent: Mr A Yuile
Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS

VID 575 of 2020
BETWEEN:

SEMA YILDIZ (TAS)

Applicant
AND:

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

ORDER MADE BY:

WHEELAHAN J

DATE OF ORDER:

10 DECEMBER…

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AGLC
Yildiz v Migration Agents Registration Authority [2021] FCA 1550
Case
[2021] FCA 1550
Decision Date

CaseChat Overview and Summary

In this case, the applicant, Yildiz, appealed against a decision of the Administrative Appeals Tribunal (AAT) affirming a decision of the Migration Agents Registration Authority to cancel her migration agent registration. The appeal was heard by the Federal Court of Australia. The primary issues the court had to decide included whether the AAT addressed all relevant evidence, provided procedural fairness, was affected by bias, placed unreasonable weight on certain matters, and whether the cancellation of registration was the appropriate consequence. The applicant also sought to adduce further evidence on appeal.

The court found that the applicant had not provided a coherent argument or particulars regarding which evidence was allegedly not addressed by the AAT. Given that the applicant was represented by solicitors and counsel before the AAT, and was given an opportunity to place material before the AAT, the court concluded there was no merit in the suggestion that there was any error of law by the AAT. Regarding procedural fairness, the court found no substance in the applicant's complaints, including the mode of the hearing (by video link), the opportunities to provide documents, and the documents placed before the AAT by the respondent. The applicant's allegations of bias, unreasonable weight, and error in the AAT's determination of the appropriate consequence were also dismissed.

The court refused the applicant's application to adduce further evidence on appeal, as the proposed evidence sought to be adduced for the purpose of the court making findings of fact inconsistent with those made by the AAT. The court held that the proposed evidence was not connected to permissible findings of fact on appeal.

The court dismissed the appeal and ordered the applicant to pay the respondent's costs of the appeal. The court noted that an affidavit sent by the applicant after the hearing was not considered as it did not appear to have been sworn and lacked a qualified witness signature.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant pay the respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The hearing proceeded on 7 December 2021. I heard the applicant and counsel for the respondent, and gave the applicant an opportunity to make submissions in reply.The legislative background Section 280 of the Migration Act 1958 (Cth) proscribes the giving of immigration assistance (as defined by s 276) by persons who are not registered migration agents. Part 3 of the Act provides for a scheme for the registration and regulation of migration agents. Under s 287 of the Act, a Register of Migration Agents must be kept by the Migration Agents Registration Authority, which is the Minister, who has delegated functions and powers to officers of the Department: see, s 275 and s 320. Section 314(1) of the Migration Act provides that the regulations may prescribe a code of conduct for migration agents. Section 314(2) provides that a migration agent must conduct himself of herself in accordance with the prescribed code of conduct. Regulation 8 of the Migration Agents Regulations 1998 (Cth) prescribes the Code of Conduct set out in Schedule 2 of the Regulations (the Code), which includes the following provisions – Part 1 - Introduction…1.11The Code does not list exhaustively the acts and omissions that may fall short of what is expected of a competent and responsible registered migration agent.1.12However, the Code imposes on a registered migration agent the overriding duty to act at all times in the lawful interests of the agent's client. Any conduct falling short of that requirement may make the agent liable to cancellation of registration.…Part 2 - Standards of professional conduct2.1A registered migration agent must always:(a)act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client; and(b)deal with his or her client competently, diligently and fairly.However, a registered migration agent operating as an agent in a country other than Australia will not be taken to have failed to comply with the Code if the law of that country prevents the agent from operating in compliance with the Code.2.1AA registered migration agent must not accept a person as a client if the agent would have any of the following conflicts of interest:(a)the agent has had previous dealings with the person, or intends to assist the person, in the agent’s capacity as a marriage celebrant;(d) [sic]there is any other interest of the agent that would affect the legitimate interests of the client.…2.8 A registered migration agent must:(a)within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing to the client; and(b)act in accordance with the client’s instructions; and(c)keep the client fully informed in writing of the progress of each case or application that the agent undertakes for the client; and(d)within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client’s case or application.2.9A registered migration agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.2.9AIn communicating with, or otherwise providing information to, the Authority, a registered migration agent must not mislead or deceive the Authority, whether directly or by withholding relevant information.…2.15A registered migration agent must not intimidate or coerce any person for the benefit of the agent or otherwise. For example, a registered migration agent must not engage in any of the following:(a)undue pressure;(b)physical threats;(c)manipulation of cultural or ethnic anxieties;(d)threats to family members in Australia or overseas;(e)untruthful claims of Departmental sanctions;(f)discrimination on the grounds of religion, nationality, race, ethnicity, politics or gender.…Part 5 — Fees and charges…5.2 A registered migration agent must: (a)before starting work for a client, give the client: (i)an estimate of charges in the form of fees for each hour or each service to be performed, and disbursements that the agent is likely to incur as part of the services to be performed; and (ii)an estimate of the time likely to be taken in performing the services; and (b)as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of: (i)the estimate of fees; and (ii)the estimate of the time likely to be taken in performing the services; and (c)give the client written confirmation (an Agreement for Services and Fees) of: (i)the services to be performed; and (ii)the fees for the services; and (iii)the disbursements that the agent is likely to incur as part of the services; and (d)give the client written notice of any material change to the estimated cost of providing a service, and the total likely cost because of the change, as soon as the agent becomes aware of the likelihood of a change occurring.…Part 6 - Record keeping and management6.1A registered migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing:(a)a copy of each client's application; and(b)copies of each written communication between:(i) the client and the agent; and(ii) the agent and any relevant statutory authority; and(iii) the agent and the Department regarding the client; and(c)file notes of every substantive or material oral communication between:(i) the client and the agent;(ii) the agent and any relevant statutory authority; and(iii) the agent and the Department regarding the client.6.1AA registered migration agent must keep the records mentioned in clause 6.1 for a period of 7 years after the date of the last action on the file for the client.…Part 10 - Termination of services…10.2A client is entitled to ask a registered migration agent (orally or in writing) to return any document that belongs to the client. The agent must return the document within 7 days after being asked.…10.5On completion of services, a registered migration agent must, if asked by the client, give to the client all the documents:(a) given to the agent by the client; or(b) for which the client has paid.10.6If the client terminates the instructions, a registered migration agent must take all reasonable steps to deliver all documents quickly to the client or any other person nominated by the client in writing. If the agent claims a lien on any documents, the agent must take action to quantify the amount claimed and tell the client in a timely manner.…

Evidence

Evidence Before The Court

I will now consider each of the issues identified in turn.Whether the Tribunal addressed relevant evidence The applicant made this allegation at the beginning of her notice of appeal, stating that “The Applicant appeals from Relevant evidence were not addressed”. The applicant also stated, at a later point, that “Many evidence could been looked into” by the Tribunal; and that “Evidence where clearly looked into not accepted evidence”. I accept the submission of counsel for the respondent that in the absence of some coherent argument, or particulars, or some further description of the evidence that was before the Tribunal that was not addressed, it is impossible to evaluate this allegation. It is not possible to discern what it is suggested was missing, or not looked into, or how those claims interact with the Tribunal’s reasons and record, and whether any asserted evidence (i) was not considered and (ii) was important to the Tribunal’s decision. It appeared from the applicant’s oral submissions that she contended that the Tribunal had not been appraised of all relevant facts. However, in light of the fact that the applicant was at all times represented before the Tribunal by solicitors and counsel, and that she was afforded an opportunity by the Tribunal’s procedural orders to place material before the Tribunal, there is no merit in the suggestion that there was any error of law by the Tribunal.Whether the applicant was provided procedural fairness A number of the applicant’s complaints might be characterised as alleging a denial of procedural fairness. I will address these in turn. The mode of the hearing (video link) There is no substance in the applicant’s complaint that the hearing before the Tribunal proceeded by way of video link on the second and third days. I take judicial notice of the fact that there were COVID-19 restrictions in place at the relevant time. Section 33A of the Administrative Appeals Tribunal Act authorises the Tribunal to allow or require persons to participate in hearings “by telephone or by means of other electronic communications equipment”. There is nothing in the material before this court to suggest that counsel for the applicant objected to the hearing continuing by video link, and no error of law has been demonstrated.Opportunities to provide documents and gaps in the documents that were placed before the Tribunal by the respondent The applicant’s complaints about missing documents were referred to by the Tribunal at [65] of its statement of reasons when summarising the submissions of counsel for the Authority –Mr Yuile asserted that much had been made during the hearing of missing documents and that Ms Yildiz had failed to produce any documents she claimed were not provided to the Tribunal by the respondent in the T-documents in this matter. The delegate’s original decision made much of the lack of documentary evidence provided by Ms Yildiz to support her contention in respect of the numerous allegations against her. Additionally, at no stage had she produced handwritten notes or diary entries corroborating the work she allegedly had undertaken on behalf of the numerous clients, emphasising that Ms Yildiz had had the T-documents since February 2019 but had at no stage specified which documents were missing or produced any of the allegedly missing documents.

Decision

Reasons for decision

The decision to cancel the applicant’s registration upon making the findings of contravention was a discretionary decision to which the principles in House v The King (1936) 55 CLR 499 apply. No specific error in the Tribunal’s evaluation of the seriousness of the applicant’s contraventions and the protection of the public interest has been shown. Further, having regard to the Tribunal’s findings and to its consideration of the public interest, I am not persuaded that the Tribunal’s decision to affirm the cancellation of the applicant’s registration was unreasonable or plainly unjust such that some error of principle should be inferred.Conclusion The appeal should be dismissed with costs.Post script Yesterday, 9 December 2021 at 2:10 pm, and after a draft of these reasons for judgment had been prepared, the applicant emailed to my chambers a document purporting to be an affidavit. The affidavit did not appear to have been sworn. No signature of a person qualified to witness the affidavit was present. Much of the content of the affidavit appeared to be in the form of further submissions. No leave was given to the applicant to rely upon any further material following the hearing. Accordingly, I have not had regard to the additional document: see Frugtniet v Secretary, Department of Social Services [2021] FCAFC 127 at [85] and the cases cited therein.

Ratio Decidendi

Legal Principle Established

Of particular concern to the applicant, and which warrants special mention, was the claim by the Authority that she had forged the signatures of Mr S and his wife on documents that were submitted to the Department. In her written and oral submissions to the court, the applicant referred passionately to the injury to her reputation that had occurred in consequence of the Authority’s claims. However, I emphasise and make clear that, as I stated at [16] and [18(c)(i)] above, the allegations of forgery were not accepted by the Tribunal on review, and the Tribunal made no finding of forgery. The fact that the Tribunal made no such finding is recorded in the Tribunal’s published reasons, which are in the public domain.Consideration Taking a beneficial approach to the whole of the notice of appeal I will act on the submissions of counsel for the respondent that questions of law that might be distilled from the applicant’s material are as follows –(a)whether the Tribunal addressed relevant evidence;(b)whether the applicant was provided procedural fairness, in the manner of the hearing (by video link), in the opportunities to provide documents, in the documents that were placed before the Tribunal by the respondent, in the opportunity for cross-examination, in the opportunity to provide character references, and in the way closing submissions were made;(c)whether the Tribunal’s decision was affected by bias; (d)whether the Tribunal placed unreasonable weight on certain matters such that error of law is disclosed; and(e)whether the Tribunal’s determination that the appropriate consequence of its findings should be cancellation was affected by error of law. I will now consider each of the issues identified in turn.Whether the Tribunal addressed relevant evidence The applicant made this allegation at the beginning of her notice of appeal, stating that “The Applicant appeals from Relevant evidence were not addressed”. The applicant also stated, at a later point, that “Many evidence could been looked into” by the Tribunal; and that “Evidence where clearly looked into not accepted evidence”. I accept the submission of counsel for the respondent that in the absence of some coherent argument, or particulars, or some further description of the evidence that was before the Tribunal that was not addressed, it is impossible to evaluate this allegation. It is not possible to discern what it is suggested was missing, or not looked into, or how those claims interact with the Tribunal’s reasons and record, and whether any asserted evidence (i) was not considered and (ii) was important to the Tribunal’s decision. It appeared from the applicant’s oral submissions that she contended that the Tribunal had not been appraised of all relevant facts. However, in light of the fact that the applicant was at all times represented before the Tribunal by solicitors and counsel, and that she was afforded an opportunity by the Tribunal’s procedural orders to place material before the Tribunal, there is no merit in the suggestion that there was any error of law by the Tribunal.Whether the applicant was provided procedural fairness