Zahidul Haque and Migration Agents Registration Authority
[2014] AATA 225
[2014] AATA 225
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3423
Re
Zahidul Haque
APPLICANT
And
Migration Agents Registration Authority
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert, Member
Date 17 April 2014 Place Melbourne The Tribunal affirms the decision under review.
.........[sgd]...............................................................
Mr Conrad Ermert, Member
CATCHWORDS
Registration as Migration Agent – fit and proper person – person of integrity – criminal convictions – character – decision affirmed
LEGISLATION
Migration Act 1958 sections 289A-294
Crimes Act 1914 section 85ZM(2)
CASES
Nguyen and Migration Agents Registration Authority [2012] AATA 925
Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12
Hughes & Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127
Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272
Australian Broadcasting Tribunal v Bond [1990] HCA 33;(1990) 170 CLR 321Witham v Holloway [1995] HCA 3; 195 CLR 525
SECONDARY MATERIALS
Code of Conduct for Registered Migration Agents paragraph 2.15(b)
REASONS FOR DECISION
Mr Conrad Ermert, Member
17 April 2014
INTRODUCTION
On 9 March 2004 the Sunshine Magistrates’ Court sentenced Dr Haque, the Applicant, with conviction, to serve a good behaviour bond for a period of 12 months for the charge of intentionally causing injury to another person (the 2004 conviction).
On 26 July 2011 Dr Haque submitted to the Migration Agents Registration Authority (MARA), the Respondent, an application for registration as a migration agent.
On 10 May 2012 a jury in the County Court of Victoria found Dr Haque guilty of reckless conduct endangering serious injury. On 30 August 2012 the trial judge recorded a conviction and imposed a 12 month community corrections order. The order also required Dr Haque to undergo a mental health assessment and treatment (the 2012 conviction). Dr Haque applied for leave to appeal the conviction and sentence to the Court of Appeal of the Supreme Court of Victoria; and later to the High Court of Australia. Both courts dismissed his applications.
On 27 June 2013 MARA refused Dr Haque’s application.
This matter is an application for a review of the MARA decision.
THE HEARING
Dr Haque represented himself at the hearing, giving evidence on affirmation. Mr Matthew Bock of Clayton Utz appeared for the Respondent.
For Dr Haque I took into evidence the following documents:
(a)Affidavit of Documents by Dr Zahidul Haque dated 26 September 2013 (Exhibit A1);
(b)Affidavit of Documents by Dr Zahidul Haque dated 27 November 2013 (Exhibit A2);
(c)Outline (Legal) of Submission by the Plaintiff (the legal submission) dated 27 November 2013 (Exhibit A3);
(d)Written Defence in Response to the Respondent’s Submitted Facts and Contentions (the written defence) dated 17 February 2014 (Exhibit A4);
(e)A bundle of documents containing a National Police Certificate relating to Dr Haque with copies of three decisions of the High Court (Exhibit A5); and
(f)A bundle of selected pages from the transcript of Dr Haque’s trial in the County Court of Victoria (Exhibit A6).
For the respondent I took into evidence:
(a)Respondent’s Statement of Facts and Contentions dated 17 January 2014 (Exhibit R1); and
(b)LEAP – Victoria Police Criminal Record relating to Dr Zahidul Haque (Exhibit R2).
I also had before me the documents lodged by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents).
THE LEGISLATION
The relevant legislation is contained in the Migration Act 1958 (the Act). Section 289(1) provides that MARA must register an applicant unless another provision in Part 3 prohibits registration. Sections 289A to 294 of the Act provide a number of bases upon which an Applicant must not be registered. Section 290 is relevant to these proceedings.
Section 290 provides that:
(1) An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:
(a) the applicant is not a fit and proper person to give immigration assistance; or
(b)the applicant is not a person of integrity; or
(c)….
(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)… ; 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); and
…
(h)any other matter relevant to the applicant’s fitness to give immigration assistance.
THE ISSUES
The issues in this case are whether:
(a)Dr Haque is a fit and proper person to give immigration assistance (section 290(1)(a)); or
(b)Dr Haque is a person of integrity (section 290(1)(b)); or
(c)there are any other matters relevant to Dr Haque’s fitness to give immigration assistance.
The exception in section 290(2)(c) relating to a spent conviction is not relevant to this case. Section 85ZM(2) of the Crimes Act 1914 provides in part that a conviction is spent if a waiting period (defined as ten years) has expired from the date of the conviction. At the date of Dr Haque’s application, the waiting period for neither of his convictions was spent. Accordingly, this exception does not apply in this case and will not be considered further.
Mr Bock raised a further issue that Dr Haque has not yet provided evidence to MARA of his English language competency. As a result, MARA has not made an assessment of this requirement. Mr Bock submitted that if the Tribunal found that Dr Haque was a fit and proper person and a person of integrity it should remit the matter to MARA for its assessment of this issue. In response, Dr Haque sought a Tribunal decision to waive the competency requirement in his case. I will return to this issue after determining the primary issues.
DR HAQUE’S EVIDENCE
Dr Haque, understandably for a person without formal legal training, tended to include contentions and submissions with his evidence. In recounting some background to his application Dr Haque said he was awarded a Master of Science degree (in Computer Science) at Victoria University. He was employed as a lecturer at the University of Ballarat and later at the University of the South Pacific in Fiji. Dr Haque said that when he returned from Fiji it was hard to find work. He successfully undertook a course in Australian Immigration Law and Practice at Victoria University and was awarded a Graduate Certificate. Dr Haque then submitted his application to be registered as a migration agent.
Dr Haque said he received a reply from MARA requesting further information about his 2004 conviction, the charges pending against him from March 2010, and his proficiency in the English language. He said he replied to this request. Then referring to his 2004 conviction, he submitted to the Tribunal that the conviction was struck out.
Dr Haque then gave evidence in regard to the incident on 5 November 2009 which led to the charges against him that were heard in the County Court of Victoria. He said that earlier he had had an altercation with a friend who lived in his flat. Money was involved. He said the friend came back with others and punched him in the mouth. Dr Haque said that the police were of no assistance and he thought that he “might decide to act in the same way”. Dr Haque said that on 5 November 2009 he had finished his laboratory work and went to his car. He said that he saw his ex-flatmate parked 40 metres ahead and drove past him as he was opening his car door.
Dr Haque said that the police prosecutor laid four charges against him despite the fact that there was no physical contact, there was no incident. He said that the police eventually proceeded with only two charges: reckless conduct endangering death and reckless conduct endangering serious injury. Dr Haque said that there was no evidence from the police, the only evidence being from two civilian witnesses.
Dr Haque referred to page 169 of the transcript of the trial in the County Court (Exhibit A6) where His Honour said (at line 22) So the record of interview is now excluded. He then referred to lines 11 to 18 on page 399 of the same document and submitted that the victim of his actions asserted that he, Dr Haque was going to injure him. Dr Haque then went on to say that his offence was a bad thing but this affects my registration. He submitted that the judge said that there was no evidence of an intention to kill or injure. Dr Haque then recounted that the County Court recorded a conviction and imposed a 12 month community corrections order. He stated that his appeal against the conviction was dismissed by the Court of Appeal. He expressed the opinion that the judgments were as a result of a point of law.
Referring to his 2004 conviction, Dr Haque said that he assaulted his wife while having an argument. He said that the court result shown in Exhibit A5 was correct but opined that it should not have been recorded as a conviction as it was dismissed.
Dr Haque referred to his response to the show cause notice he received from MARA (T32, pages 194-196) in which he responded to the concerns expressed about his mental health. He referred next to the Respondent’s Statement of Facts and Contentions (Exhibit R1) and submitted that there is a difference in the meaning of a“ fit and proper person” as used in sections 290(1)(a) and 290(2)(c)(i) of the Act. He went on to state that the issues submitted by the respondent were his mental health condition and his failure to disclose his convictions.
In regard to the failure to disclose his 2004 conviction Dr Haque stated he did not look at the documents properly. He said that he assaulted his wife but he did not understand that he had been convicted of a crime. He contended therefore that he had not given false and misleading information. Dr Haque then read from the transcript of the County Court case where the trial judge said (Exhibit A3, page 4):
(d)I accept that throughout your life you have been a high academic achiever. Many of the letters tendered with your documents state that you are a person of high calibre and one who has clearly performed your professional duties in a most worthwhile and professional way. Whilst many of the letters contained in the documents were generic in that they speak about you without reference to the facts in this case, nevertheless, in my opinion they demonstrate a person who is held in high regards within the academic world.
Dr Haque contended that MARA was wrong in making its decision as his appeal against the 2012 conviction was still before the High Court at that time.
Dr Haque submitted that in paragraph 1 of its Statement of Facts and contentions the Respondent’s referral to a fit and proper person in section 290(2)(c)(i) of the Act is wrong. He contended that the meaning of the phrase is not clear and it relates only to a person already registered as an agent and who is applying for a renewal of his registration. Dr Haque submitted that, in contrast, he is a new applicant.
Dr Haque referred me to his written defence (Exhibit A4) where, at page 10, paragraph 31, he provided an extract from the decision of the High Court in the case of Witham v Hollway (1995) HCA 3 (Witham). Dr Haque read from the extract And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt constitute punishment. He said that in his case he was convicted but there was no imprisonment or fines involved.
Turning to the term fit and proper person, Dr Haque referred me to the decision of the High Court in Hughes & Vale Pty Ltd v New South Wales (No.2) [1995] HCA 28 (Hughes and Vale), in which their Honours said that Fit …is said to involve three things, honesty, knowledge or ability. Dr Haque submitted that the Respondent could not show dishonesty in his case. He was a new applicant, not an existing licence holder seeking renewal. About his conviction he said, I was right, the case was dismissed.
In regard to knowledge Dr Haque submitted that he had successfully appealed a civil case which was sent back to the County Court. He contended that this showed he had no lack of knowledge.
Dr Haque submitted that there was no definition of fit and proper person and referred to the decision of the High Court in Australian Broadcasting Tribunal v Bond [1990] HCA (Bond) , in which their Honours said (at paragraph 36) that The expression fit and proper person, standing alone, carries no precise meaning. Dr Haque referred also to the decision of the High Court in Cunliffe v The Commonwealth of Australia [1994] HCA 44 (Cunliffe), in which their Honours said at paragraph 8 The expressions person of integrity and fit and proper person are not defined”.
Returning to the issue of his non-disclosure of his 2004 conviction Dr Haque referred me to his written defence (Exhibit A4, paragraph 16) and stated that his non-disclosure was not intentional.
He concluded his evidence by contending that as he was a new applicant for registration and the Respondent cannot say that he is not a fit and proper person.
MR BOCK’S CROSS-EXAMINATION
In answer to questions by Mr Bock, Dr Haque agreed that he had previously worked as a university lecturer, including in Fiji, but on his return to Australia he found it hard to find work. Dr Haque stated he wants to become a migration agent to help people as a volunteer and not for the income. He agreed that he is unemployed and has been unable to find work as an electrical engineer. He also agreed that he has multi-media qualifications but is unable to find employment in that field.
Mr Bock took Dr Haque to the National Police Certificate in Exhibit A5. Dr Haque described the 2004 incident as a small fight with his wife. He said it was a private matter and that his wife was having an affair with another person which had been going on for a long time. When taken to the Sub Incident Summary Report (P.10/10 in Exhibit R2) and asked whether his wife was taken to hospital for treatment as reported, Dr Haque replied Definitely not.
Mr Bock took Dr Haque to:
(a)Question 28 of his Initial Registration Application Form (T3, page 13) where he marked the No box in answer to the question Has there ever been a finding of guilt against you for a criminal offence in Australia …;
(b)an Australian Federal Police (AFP) Certificate, which Dr Haque provided with his application, showing an entry for the Sunshine Magistrates’ Court on 9 March 2004, viz Intentionally Cause Injury, Convicted. … (T3, page 19);
(c)a MARA letter dated 21 September 2011 (T14, page 58), noting the information contained in the AFP Certificate (above);
(d)his letter to MARA dated 22 September 2011 (T16, page 62) with his response to the 2004 conviction being … it was not a criminal conviction. It was the matter of family law violation, i.e. it was really the hot conversation between husband and wife & later on it turns to a small fight and after that we are separated; and
(e)paragraph 6 of his legal submission (Exhibit A3) in which he contends … the incident on March 2004 was in relation to family violence e.g. dispute between husband & wife and later on it terms (sic) to a shall (sic) fight. The applicant believe that it is common in Australia and most importantly it was a conviction under summary of offence.
Mr Bock put the following statements to Dr Haque, eliciting the replies shown:
(a)was his wife hospitalised as a result of the incident? – no, it was a small fight;
(b)you do not accept responsibility for your own actions – I am not sure; in Pakistan it is not a serious thing;
(c)you do not accept the seriousness of the offence – it was a family violation, if my son had not gone to the police it would not have gone to the court, it is not a serious matter.
Mr Bock put to Dr Haque that his description of the incident as a small fight was an attempt to mislead MARA. Dr Haque disagreed, saying that he had given the correct information; If it had been a big fight then my wife would have gone to the court to give evidence against me. In this case she has not gone to the court.
Mr Bock referred to the Reasons for Sentence (T32, page 207), in which Judge Hicks said (at paragraph 23) in relation to the 2004 conviction Considering that part of the sentence was an adjourned undertaking and this would require your presence … He put to Dr Haque that he was required to be in the Sunshine Magistrates’ Court when he was convicted. Dr Haque stated he did not remember going to court for the 2004 conviction. He said that at the time he was admitted to Werribee Mercy Hospital for a psychiatric episode (T32, page 197).
Mr Bock then put to Dr Haque that having received the AFP document he would have known that he had a criminal conviction. Dr Haque replied he had not read the document carefully, although he did recall reading the word convicted. He went on to state that by answering No to the question on his application he was not really trying to mislead MARA, the document might have been a mistake.
Mr Bock put to Dr Haque that a migration agent must complete forms with diligence and competence and that he had not done so in his own case. Dr Haque responded that he completed the forms mostly carefully.
Mr Bock then turned to Dr Haque’s 2012 conviction for reckless conduct endangering serious injury. Mr Bock referred to Dr Haque’s legal submission (Exhibit A3) in which Dr Haque had written The honourable judge in the Court of Appeal found that the applicant’s conduct was not reckless. Mr Bock took Dr Haque to the Supreme Court’s Results of Appeal (T32, page 202) in which His Honour said (at paragraph 25) As I understood the submissions, the two elements left unproven beyond reasonable doubt were recklessness and the absence of lawful excuse. This was, in effect, another way of contending that it is reasonably arguable that the verdict is unsafe and unsatisfactory, a proposition with which I cannot agree. Mr Bock put to Dr Haque that he cannot say that the judge found that his conduct was not reckless. Dr Haque responded that it was just his misunderstanding.
Mr Bock put to Dr Haque that his use of selective quotations was an attempt to mislead MARA. Dr Haque replied MARA did not request the full finding of the Supreme Court.
Mr Bock took Dr Haque to his Notes Regarding Police Charges (T3, page 21) and queried his use of the term funny in describing the assault charge (page 22). Dr Haque responded nothing happened. Mr Bock put to him that the complainer did not say that …nothing happened. He filed a complaint and stated that Dr Haque had tried to intimidate him. Mr Bock put to Dr Haque that his statement in the document was a lie to mask the seriousness of the incident. Dr Haque responded by saying that he was not sure that his statement was not true and he repeated that nothing happened.
Mr Bock took Dr Haque to the last paragraph on page 22 beginning with I am very much surprising (sic) regarding the police forces honesty, equality and integrity and asked him what he meant when he said this.. Dr Haque replied that he received no assistance from the police, it was a civil matter. Dr Haque then referred to Attachments GS-1, GS-2, GS-6, GS-7, GS-8 and GS-9 of his Affidavit (Exhibit A2) and submitted that they illustrated his respect for the law.
Referring to a letter from Dr Haque to MARA dated 22 September 2011 (T16, page 62), Mr Bock asked what was meant by the statement it was some sorts (sic) of conspiracy. Dr Haque responded by saying that in Victoria, driving over 90 kilometres per hour is called dangerous whereas in other States it is called reckless. He repeated that in this case there was no contact, no accident, nothing happened.
Mr Bock took Dr Haque to his letter to MARA dated 6 June 2013 (T32, page 195), and asked him to support his statements that: The learned Judge … found that there was an error of justice, and … the accused person did not committed (sic) any Crime/Offence. Dr Haque responded by quoting the following passages from the transcript of his trial in the County Court (Exhibit A6):
·… these charges do not apply, but it’s only the Road Safety Act applied (page 354;
·…there’s no evidence to…support a conviction in this case (page 354); and
·…these [charges] don’t apply, and the only relevant law to be applied is the Road Safety Act (page 356).
Mr Bock put to Dr Haque that the selected quotations were part of the Judge’s summarising Dr Haque’s own submissions. Mr Bock went on to say that the Judge said, on page 355, that Dr Haque was entitled to make these submissions. Mr Bock contended that that did not mean that the submissions were good ones. He submitted that Dr Haque’s reliance on these quotes demonstrated either Dr Haque’s poor understanding of the law and court procedures or an intention to mislead MARA. Mr Bock put to Dr Haque that he misunderstood basic elements of the law. Dr Haque disagreed, saying they were not basic elements of the law but some special matters of the law. Dr Haque referred to his successful appeal against orders of the County Court (Exhibit A4, attachment LP-16) and contended that this showed his legal competence.
Mr Bock took Dr Haque to the last three pages of Exhibit A1, educational certificates of Dr Haque’s children, and asked if these were intended as an indication of Dr Haque’s good character. Dr Haque submitted that they showed that he properly looked after his children. He agreed with Mr Bock that he had only limited contact with his children after 2004. Dr Haque agreed further that none of the people who provided the references contained in Exhibit A1 knew of his convictions.
SUBMISSIONS
In addition to the submissions and contentions contained in the section above headed DR HAQUE’S EVIDENCE, Dr Haque submitted that the respondent was wrong in refusing his application on the basis of section 290(1) of the Act. The Respondent should have considered the provisions of section 290(2)(c). Dr Haque pointed out that the two elements of section 290(1) of the Act are joined by or whereas the seven elements of section 290(2) of the Act are joined by and.
Dr Haque contended that the Respondent had only considered his personal integrity in relation to section 290(1)(a). Dr Haque said he had provided a lot of documents and evidence to the effect that he was a proper person to be registered as a migration agent.
Mr Bock said he relied on the submissions tendered in the Respondent’s Statement of Facts and Contentions. (Exhibit R1)
Referring to paragraph 1 of the Respondent’s Statement of Facts and Contentions, Mr Bock said that sections 290(1)(a) and (b) were relevant but section 290(1)(c) was not. Referring to section 290(2)(c), he contended that Dr Haque’s convictions led to his not being a proper person to give immigration assistance and not being a person of integrity.
Mr Bock contended that the way Dr Haque dealt with his convictions reflected on his integrity. He referred to the Tribunal’s decision in Nguyen and Migration Agents Registration Authority [2012] AATA 925 (Nguyen), where the Tribunal said:
Past difficulties, and the manner in which those difficulties are dealt with, if dealt with openly, can be an opportunity to display the integrity and honesty called for by various roles that require licences, certificates and registration. Those past difficulties and the manner in which they are dealt with can also be an opportunity to display shortcomings that should operate as a barrier to such licences, certificates and registrations.
Mr Bock submitted that Dr Haque has not dealt with his past difficulties openly. He submitted that Dr Haque was either attempting to mislead MARA or he does not understand the seriousness of the past events and processes.
In regard to the 2004 conviction, Mr Bock contended that the evidence was that Dr Haque was required to be present in the Magistrates’ Court. He said it was difficult to believe that Dr Haque could not remember being in the court and that he did not know of his conviction. In any case it should have been clear to Dr Haque from the documents that he had a conviction. Mr Bock contended that when Dr Haque answered No to the question in the application form asking whether he had ever been found guilty of a criminal offence, he was either being misleading or not understanding the situation nor showing care in completing documents.
Mr Bock contended that Dr Haque continues to describe the 2004 assault as a
small fight. This is notwithstanding the fact that he caused injury to his wife requiring hospitalisation and that the incident led to a divorce. Mr Bock contended that Dr Haque does not accept the seriousness of the event which reflects on his integrity. Dr Haque’s reliance on the alleged prevalence of family violence in Australia as an excuse for his actions reflects on his lack of understanding and on his integrity.
Mr Bock also contended that Dr Haque’s use of the term funny in describing his second assault charge reflects that he does not respect the processes of the law and that he does not take the charge seriously.
In addition, Mr Bock contended that Dr Haque’s convictions in 2004 and 2012 show that he has difficulty managing conflict. Mr Bock referred to the psychiatric report on Dr Haque by Dr Kevin Ong, Consultant Psychiatrist (T26, pages 147 to 153). He said that the vague account of previous mental health problems and the denials reported in the Psychiatric History section of the report (page 149) are consistent with Dr Haque’s denials of the seriousness of his convictions as made to MARA. Mr Bock also contended that the obsessional and paranoid traits identified by Dr Ong (page 152), together with his history of violence, reflect on Dr Haque’s fitness to assist migrants.
Mr Bock submitted that both convictions were serious and were offences of violence, with the victim of the 2012 conviction feeling real fear of being hurt. Furthermore, Dr Haque’s actions in the 2012 conviction were aggravated because they were premeditated. Mr Bock contended that despite this, even at this hearing, Dr Haque did not accept the seriousness of his actions.
Finally, Mr Bock closed by contending that little weight should be placed on the character references as Dr Haque’s past convictions were not known to the referees. Mr Bock also noted the achievements of Dr Haque’s children but contended that they also carried little weight as Dr Haque had had limited contact with them after 2004.
In his response, Dr Haque referred to the psychiatric report and quoted the following extracts (T26, page 148):
Mr Haque himself was relatively pleasant, polite, and cooperative throughout the assessment. There was no evidence of psychomotor abnormality.
He was somewhat preoccupied with what he believed to be the police destroying my life due to a previous wrongful arrest.
The were no perceptual abnormalities such as auditory hallucinations.
Cognition was not formally tested, but Mr Haque was oriented to time, person and place and was able to attend to the assessment without any difficulty. He appeared to be of at least average intelligence.
In regards to insight, Mr Haque was somewhat preoccupied by what he felt was police wanting to make trouble for me.
Mr Haque described himself as being a high achiever, completing Year 12 in Bangladesh, and stated that he was a very good student, and that he excelled in science subjects, including physics as well as mathematics.
Dr Haque submitted that integrity in the Act means professional integrity.
In response to the issue of honesty, Dr Haque contended that the response of No in his application form was a mistake. He then added not really mistake, I did not remember the conviction in the Sunshine Court.
Dr Haque submitted that the High Court has not defined a fit and proper person and referred to the decisions of Witham, Hughes & Vale, Bond and Cunliffe.
Dr Haque submitted that fit is defined as comprising three elements: honesty, knowledge and ability. In regard to honesty he contends that he has made proper disclosures to MARA.
Dr Haque also submitted that all the cases cited by the Respondent related to applications for renewal of registration and not to new applicants.
TRIBUNAL’S CONSIDERATION
Section 290(1) of the Act is mandatory in its terms. An applicant for registration as a migration agent must not be registered if MARA, or in this case the Tribunal standing in the shoes of MARA, is satisfied that the applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance. If the Tribunal is satisfied that Dr Haque falls within the terms of the subsection then it is obliged to refuse registration.
In considering whether Dr Haque is a fit and proper person to give immigration assistance or is a person of integrity, I am required by section 290(2) to take into account a number of issues. In this case the relevant issues are contained in subsection (c) (providing for any relevant convictions), and subsection (h) (providing for any other relevant matters). The other subsections are not relevant to this case. I consider first Dr Haque’s convictions.
Convictions (s.290(2)(c))
Dr Haque has two criminal convictions recorded against him, the 2004 conviction and the 2012 conviction. The 2004 conviction was for an act of violence, namely an assault on his wife. The 2012 conviction involved a deliberate act that threatened violence, in that Dr Haque’s actions endangered serious injury to another person.
Honesty
The first consideration that goes to the relevance of Dr Haque’s convictions is the way in which Dr Haque has dealt with his convictions as part of his application to MARA. In his submissions, oral and written (Exhibit A4), Dr Haque contended that he has made proper disclosures to MARA and that the Respondent could not show dishonesty in his case. In regard to his failure to disclose his 2004 conviction, Dr Haque stated that although he had assaulted his wife he did not understand that he had been convicted of a crime. He testified that his non-disclosure was not intentional. Accordingly, he contended that he had not given false and misleading information.
Mr Bock referred to the decision in Nguyen and submitted that Dr Haque had not dealt with his past difficulties openly and that he had attempted to mislead MARA. In the Respondent’s Statement of Facts and Contentions (Exhibit R1, page 10), MARA submits that the way Dr Haque has dealt with his past difficulties reveals that he is not a person of integrity and/or not a fit and proper person to give immigration assistance.
In regard to the 2004 conviction, Mr Bock submitted that it was difficult to believe Dr Haque’s evidence that he could not remember being in the Magistrates’ Court for his conviction. In any case Mr Bock contended that the conviction was clearly shown on the AFP certificate. By declaring on his application that he had not been found guilty of a criminal offence, Dr Haque was attempting to mislead MARA.
Mr Bock contended that the following acts of Dr Haque were all part of an attempt to mislead MARA:
(a)his repeated description of the 2004 incident as a small fight;
(b)his repeated assertions that the 2004 conviction was not a criminal conviction but a summary offence, a family law violation (T32, page 194; Exhibit A3, page 2);
(c)his use of selective quotations from the Supreme Court’s Results of Appeal; and
(d)his statement to MARA (T3, page 22) that the complainer admits that…nothing happened.
In considering Dr Haque’s initial non-disclosure of the 2004 conviction, I note his late change of testimony. His first statement was that it was a mistake. He then said it was not really a mistake and that he did not remember the conviction in the Sunshine Magistrates’ Court. I note also his earlier testimony that he had read the word convicted on the AFP certificate that accompanied his application. I consider it improbable that a person of Dr Haque’s academic achievement would not recognise the word convicted and understand its significance to his application.
In addition, I do not accept Dr Haque’s final evidence in regard to his non-disclosure. His evidence was given on affirmation and he has repeatedly been questioned on this same issue. I consider his late change of testimony to be an attempt to mislead. I do not accept Dr Haque’s testimony that his No answer on his application was a mistake.
I note also the evidence of the selective quotations Dr Haque used in his written and oral evidence. I am satisfied that this was part of his continuing effort to mislead MARA about the seriousness of his convictions.
After considering the evidence, I am satisfied that Dr Haque did attempt to mislead MARA as to the seriousness of his convictions. I am further satisfied that his attempts to mislead MARA reflect a lack of honesty in Dr Haque.
In considering the issue of honesty, I note the decision of Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12 (Peng),where Deputy President McMahon said (at paragraph 26:
The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications …If these standards are important in relation to individual applications, how much more important are they in relation to those who will, in the course of their practice, make many representations to the Department on behalf of those seeking to deal with immigration matters.
I am satisfied that Dr Haque has not been honest in his dealings with MARA and I find accordingly. In regard to the relevance of this finding to his application, I concur with Deputy President McMahon in Peng that the observance of truth…in migration matters … is of fundamental importance.
Moral Principles and Character
In considering further the relevance of Dr Haque’s convictions to his application, I note that his offences were both acts of violence against another person. He assaulted his wife to the extent that she required treatment in a hospital. He drove his vehicle at another person endangering serious injury to that person. This second offence was noteworthy as it was a deliberate act with forethought. Dr Haque’s history of reverting to violence in response to perceived wrongs indicates a clear flaw in his moral principles and character.
A further consideration of the relevance of his convictions is Dr Haque’s attempts to excuse his acts of violence. I note in his written response (Exhibit A4, paragraph 7) Family violence is very common issue in Australia. It is clear that Dr Haque is attempting to excuse his assault against his wife by intimating that it is acceptable practice. Violence against another person cannot be held to be acceptable by reason of their being other perpetrators in the community. I also note Dr Haque’s repeated contentions with regard to his 2012 conviction, that nothing happened because there was no physical contact, despite the jury finding him guilty of endangering serious injury. Dr Haque clearly does not consider his deliberate action to be an offence against another person. I consider Dr Haque’s attempts to excuse his violence and his refusal to accept the seriousness of his violence upon another person demonstrate a further lack of moral principle on his part.
As a result of these considerations I find that Dr Haque is not a person of sound moral principle and character.
Integrity
The Macquarie Dictionary defines integrity as soundness of moral principle and character; uprightness; honesty. From my considerations of his convictions, I have found that Dr Haque is not a person of sound moral principle and character and that he has not been honest in regard to his convictions. These characteristics are directly related to whether he is a person of integrity. As a consequence, I find that Dr Haque’s convictions are relevant to the question whether the applicant is not a fit and proper person to give immigration assistance or a person of integrity as required by subsection 290(2)(c).
Other Issues (s.290(2)(h))
Character
I note Dr Ong’s opinion in his psychiatric assessment (T26, page 152) … that Mr Haque is a man with obsessional and paranoid traits … Mr Haque presents as a somewhat obsessional individual with paranoid traits whereby he tends to hold on to grudges for perceived slights. I also take note of the sentencing judge’s conclusion, that Dr Haque’s prospects of rehabilitation were somewhat cloudy…Nevertheless…reasonably good (T26, page 141). This opinion retains a degree of uncertainty that Dr Haque would not succumb to his obsessional and paranoid traits in future and resort to violence in response to a perceived slight.
In his oral submissions Dr Haque quoted a number of additional extracts from Dr Ong’s report (paragraph 59, above). I only consider two extracts to be relevant to his character, the remainder describing his demeanour, physical condition and academic results. The relevant extracts are:
He was somewhat preoccupied with what he believed to be the police destroying my life due to a previous wrongful arrest.
In regards to insight, Mr Haque was somewhat preoccupied by what he felt was police wanting to make trouble for me.
It is my opinion that these extracts support Dr Ong’s assessment of Dr Haque’s obsessional and paranoid traits.
I consider that Dr Haque’s obsessional and paranoid traits, combined with a history of committing and threatening violence, reflect adversely on his character. In Bond the High Court held at paragraph 36:
The expression “fit and proper person”, standing alone, carries no precise meaning. It takes it meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities … in certain contexts, character (because it provided indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
In this case the activity in question is the provision of immigration assistance to clients who may be in vulnerable and stressful circumstances, such as those who have fled persecution or those facing deportation. I note paragraph 2.15(b) of the Code of Conduct for Registered Migration Agents provides that registered migration agents must not intimidate or coerce any person for the benefit of the agent or otherwise. For example, a migration agent must not engage in undue pressure or physical threats.
From the evidence before me I consider that Dr Haque’s obsessional and paranoid traits, a history of violence, and an uncertainty about his rehabilitation reflects adversely on his being a fit and proper person to undertake the activities involved in giving immigration assistance.
Dr Haque tendered a number of character references (Exhibit A1). I note his evidence that none of the referees knew of his convictions. I consider that knowledge of his offences would most likely affect the referees’ opinions of Dr Haque. Accordingly, I give no weight to the tendered references and find that they do not alter my opinion of Dr Haque’s character.
Other Contentions
In his oral and written submissions, Dr Haque presented a number of additional contentions which I consider as falling within section 290(2)(h) of the Act.
In his oral submissions, Dr Haque contended that the Respondent was wrong in refusing his application on the basis of section 290(1) of the Act, pointing out that the sub-subsections of section 290(1) are joined by or, whereas the subsections of section 290(2) are joined by and. I consider that Dr Haque’s submission shows a misunderstanding of the application of these sections of the Act. I am satisfied that the Respondent properly considered the elements in section 290(2) in satisfying itself whether Dr Haque is not a fit and proper person to give immigration assistance or not a person of integrity as required by section 290(1) of the Act.
Dr Haque contended that integrity as used in the Act means professional integrity. In my earlier considerations, I examined the meaning of integrity as defined in the Macquarie Dictionary. As I have considered only issues relating to his character and fitness to provide immigration assistance, I see no reason to alter my consideration due to the addition of the qualifier professional.
In his oral submissions, Dr Haque cited the decision of the High Court in Witham, where their Honours said at paragraph 18 Moreover and, perhaps, of more importance, nothing is achieved by describing some proceedings as punitive and others as remedial or coercive. Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. Dr Haque cited this in support of his contention that his offences were not serious, as they did not involve imprisonment or the imposition of fines. I dismiss this contention. The sentences imposed on Dr Haque do not negate in any way the facts of his convictions for acts of violence.
In regard to the meaning of fit and proper person, Dr Haque cited the decision of the High Court in Hughes & Vale. Their Honours said (at paragraph 9): Fit (or idoneus) with respect to an office is said to involve three things, honesty knowledge and ability: honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it …a man was a fit and proper person to hold a licence…. In his written defence (Exhibit A4, paragraph 38), Dr Haque contended that the Respondent failed to establish that the he lacked those elements. He conceded that though his past convictions reflect poorly on his integrity, he had tendered a lot of character references. Dr Haque submitted he had provided a lot of court documents which demonstrate his deep knowledge of various Acts and legislation and his competence to give immigration assistance.
I have already found that Dr Haque has demonstrated a lack of honesty, which reflects on his character and his integrity. I consider Dr Haque’s lack of honesty, combined with his obsessional and paranoid traits, to place considerable doubt on his ability to provide immigration assistance without malice affection or partiality. I have already dismissed his character references. In addition, from his interpretations of the various acts and the selected quotations from the many decisions he has cited, I am not persuaded of his deep knowledge of the various Acts and legislation demonstrating a competence to give immigration assistance.
In his oral submissions, Dr Haque contended that the cases cited by the Respondent all relate to the renewal of registrations and not to a new applicant, as he is. In support of his contention he cites the decision of Bond. Their Honours said (at paragraph 83) the concept of is no longer a fit and proper person signifies a licensee which, though fit and proper at the time of grant or renewal, as the case may be, of the licence, has ceased to be fit and proper by reason of supervening circumstances or events. The argument finds textual support in the relationship of the words no longer with the expression fit and proper person; no longer does not govern the word satisfied.
Dr Haque appears to have disregarded the remainder of the paragraph in that decision, which included: Even so, the consequences which would follow from the adoption of this interpretation are so startling that it should not be accepted … It cannot be supposed that Parliament intended that the Tribunal’s powers should be restricted in this way.
In addition, section 290 of the Act uses the term Applicant throughout with no qualifications relating to whether the applicant has a prior or existing registration as a migration agent or is a new applicant. This section of the Act does not differentiate between these categories. Accordingly, the provisions of section 290 of the Act apply equally to existing registrants and to new applicants. The cases cited by the Respondent draw no distinction. I find no value in this contention by Dr Haque and I dismiss it.
In his written defence (Exhibit A4), Dr Haque makes a series of submissions which I now consider in turn.
(a)Paragraph 2 – OMARA … makes a wrong decision to dismiss the applicant’s application where the conviction matter was still in the High Court. The issue under review is whether the decision made by the Respondent was the correct or preferable decision. In doing so, I am able to take in additional evidence, relevantly the High Court’s dismissal of Dr Haque’s appeal. That decision confirms the conviction handed down in 2012. As a result, the fact that the matter was still under consideration by the High Court at the time of the Respondent’s decision makes no difference to my consideration of the evidence.
(b)Paragraph 3 – In response to the respondent’s statements of paragraph 2-8 the applicant … provided lots of evidence to the tribunal that, the applicant’s (sic) has wide range of knowledge of various Act & Legislation and is an appropriate proper person to give immigration assistance. I take the reference to lots of evidence to be in support of the way in which Dr Haque dealt with his convictions. This contention in no way alters my finding that Dr Haque is not a person of integrity. Furthermore, a knowledge of legislation is but one element in the consideration of a fit and proper person. Even if I accepted his wide knowledge of the legislation, which I do not, this would not change my finding that he is not a fit and proper person to give immigration advice.
(c)Paragraph 4 – … the respondent must understand … the difference between and & or in the sub-sections of section 290 of the Act. I have already dismissed this argument.
(d)Paragraph 5 – In response to the respondent’s statements from paragraphs 14-18 … it is not the mandatory condition that, the applicant has to passed (sic) the character test in order to obtain registration as a migration agent. The Respondent has not called up a character test in these paragraphs. The Respondent has only referred to the relevant sections of the Crimes Act 1914 in order to define the term spent as used in section 290(2)(c). I dismiss this contention.
(e)Paragraph 6 – Dr Haque contends that he had no knowledge about his court conviction in March 2004. He repeats his assertions that the conviction was dismissed and that family violence is very common in Australia. I have already dealt with these contentions in reaching my findings on Dr Haque’s honesty and integrity.
(f)Paragraph 7 – Dr Haque contends that the Respondent has quoted some victim’s (Mr Alamgir) statement and does not take into account, that the applicant was assaulted by the victim in his own flat and does not get any assistance from the law & enforcement authority. I am satisfied that the Respondent quite properly presented material relevant to this matter. Dr Haque’s complaint in regard to the law enforcement authorities is not relevant to this matter. I dismiss this contention.
(g)Paragraph 8 – Dr Haque appears to contend that MARA has refused his application without valid reasons. I take that to be merely a restatement of his reasons for seeking a review of the MARA decision.
(h)Paragraph 9 – Dr Haque contends that he had no knowledge of his prior criminal conviction at the time of his application. I have dealt with this issue in my consideration of his evidence and have already found that Dr Haque was not honest and attempted to mislead MARA.
(i)Paragraph 10 – Dr Haque contends that he always tried to provide correct information to MARA. From the evidence I have found that Dr Haque attempted to mislead MARA in his selection of the information he provided to MARA.
(j)Paragraph 11 – Dr Haque cites two decisions by this Tribunal and contends that in both cases the applicants applied for renewal or re-registration of their registration. I have already dismissed this contention as valueless.
(k)Paragraph 12 – Dr Haque contends that the Respondent’s quotation from the decision in Nguyen is not applicable to his case. He quotes further from the same reasons where the Tribunal said at paragraph 27:
While it is necessary to focus on the future in assessing a person’s fitness for a particular role, and that acknowledgement of past misdeeds assists in that process, the past is an important touchstone by reference to which an assessment of whether a person is fit and proper is to be made. The relevant time to make that assessment as to whether the Applicant is a fit and proper person is now.
I do not accept that the respondent’s citation is not applicable to Dr Haque’s case. On the contrary, I find the citation to be particularly relevant. In addition, I note Dr Haque’s own citation above that the past is an important touchstone by reference to which an assessment of whether a person is fit and proper is to be made. I have applied Dr Haque’s past as an important touchstone in assessing that Dr Haque is not a person of integrity now.
(l)Paragraph 13 – Dr Haque takes issue with the Respondent’s reference to the Code of Conduct for Registered Migration Agents, contending that it deals only with registered migration agents and not applicants. I have already dismissed Dr Haque’s contentions that the Act does not relate to applicants. Accordingly, I consider this contention to have no value.
(m)Paragraph 14 – Dr Haque contends that the Respondent has been selective in its reference to only a part of the decision in Peng and quotes further from the same decision. I find nothing in Dr Haque’s selections from the Peng decision that alter my findings that he is not a person of sound moral principle and character and that he is not a person of integrity. I dismiss this contention as lacking value.
(n)Paragraph 15 – Dr Haque contends, in more detail, that he did not know of his 2004 conviction for a criminal offence when making his application. From the evidence, I have already found that Dr Haque was not honest when making his application. Consideration of this contention does not alter my finding.
(o)Paragraph 16 – Much of this paragraph is a restatement that Dr Haque did not intentionally provide incorrect information. I have already found that he has not been honest in relation to this issue and this contention does not alter my finding. He concludes this paragraph with his submission that integrity means professional integrity (Cunliffe). I have already found this contention to be of no value in this case.
(p)Paragraph 17 – Dr Haque contends again that he was convicted only once, in 2012, for a criminal offence and that his 2004 conviction was dismissed. I have already found that the dismissal only related to the completion of the term of his sentence and did not nullify the conviction.
(q)Paragraphs 18 to 20 – Dr Haque restates his earlier contentions that he had no knowledge of his 2004 conviction and accordingly, he did not knowingly provide false and misleading information in his application. I have already found that he has not been honest in relation to this issue. This restatement does not alter my finding.
(r)Paragraph 21 – Dr Haque contends that, although he is not a lawyer, he has acquired knowledge of relevant legislation. His knowledge of legislation is not at issue in this case. Accordingly, this contention is not relevant to my findings.
(s)Paragraphs 22 and 23 – These paragraphs contain a restatement of Dr Haque’s contention that section 290(1) of the Act applies only to agents already registered. He cites the decision in Hughes & Vale where their Honours referred to a fit and proper person to hold a licence. I have already dismissed Dr Haque’s contentions on this issue. In addition, I see in Hughes & Vale no distinction made by the High Court between registered agents and new applicants.
(t)Paragraphs 24 and 25 – Dr Haque quotes from Bond and Cunliffe that fit and proper person has no precise meaning and that the words are so indefinite that they have been held to confer a discretionary judgement on the licencing authority. He makes no contention based on these extracts.
(u)Paragraph 26 – Dr Haque takes exception to the Respondents’ submissions that his character is not sufficiently robust to deal with stressful and potentially difficult clients. He contends that he is very polite, flexible, logical, highly educated person and always follows up lawful abide life (sic). Dr Haque’s manners and education are not at issue in this case and are not relevant to my findings. His contention that he is always law-abiding is not supported by the evidence and I reject it.
(v)Paragraph 27 – Dr Haque submits that out of eight charges launched against him in the last four years he has been convicted of only one. He suggests that the possibility of malice and collateral abuse of process might be involved. The evidence relevant to this case has related to only his 2004 and 2012 convictions. I dismiss his contention as having no relevance to my findings.
(w)Paragraph 28 – Dr Haque provides details of his successful appeal against a decision of the County Court of Victoria. This is in support of his contention that he has a deep knowledge of various Acts and legislation and that he is competent in regard to legal procedures. I have already found that Dr Haque’s legal knowledge is not at issue in this case. This contention is not relevant to my findings.
(x)Paragraph 29 – This is a repeat of Dr Haque’s contention that the Act relates only to agents who are already registered. I have already dismissed this argument.
(y)Paragraph 30 – Dr Haque quotes the definition of immigration assistance included in the decision in Cunliffe. On the basis of that definition, he contends that he is the right person to give immigration assistance. The definition relates to the knowledge of the law and practices involved in the provision of immigration assistance. Dr Haque’s knowledge of what is involved in the provision of immigration assistance is not at issue in this case and is not relevant to my findings.
(z)Paragraph 31 – Dr Haque draws on the High Court decision in Witham to support a distinction between imprisonment and remedial or corrective orders but makes no contention based on that distinction. I have already dismissed his contention that his criminal conviction was somehow negated by the fact that he did not receive a custodial sentence.
(aa)Paragraphs 32 and 33 – Dr Haque summarises two of the Respondent’s contentions but makes none himself in these paragraphs.
(bb)Paragraph 34 – Dr Haque appears to be raising his contention that MARA was incorrect in making its refusal decision on the basis of section 290(1)(a) of the Act. I have already found that there is no substance in this contention.
(cc)Paragraphs 35 to 37 – Dr Haque contends that the Respondent failed to establish that he is not a fit and proper person to give immigration assistance, citing the High Court decisions in Bond and Hughes & Vale. In these paragraphs, he appears to be restating his contention that the Act does not apply to him as he is a new applicant as distinct from an already registered agent. I have already dismissed this contention.
(dd)Paragraph 38 – In this paragraph, drawing on the High Court decision in Hughes & Vale, Dr Haque contends that the Respondent has failed to establish that he lacks honesty. He also restates his deep knowledge of various Acts and legislation. I have already found that Dr Haque has been dishonest in regard to his convictions. This restated contention makes no difference to my finding. Additionally, I have already found that Dr Haque’s claimed knowledge of legislation is not in issue in this matter.
(ee)Paragraph 39 – Dr Haque contends that section 289A of the Act provides for new applicants and should be applied to his case rather than section 290 which provides for agents wishing to renew their registration. He cites the High Court decision in Cunliffe in support of his contention. Section 289A of the Act provides that only applicants without the prescribed qualifications must not be registered. Dr Haque’s qualifications are not in issue in this case and this contention is not relevant.
(ff)Paragraph 40 – Dr Haque contends that in the case of a new applicant with a past conviction the department might take it lightly; depending on the seriousness of the offence e.g. nature of sentence/imprisonment. He contends further that it is common practice for the department to examine convictions for the previous five years. There is no basis in the Act for these contentions and I dismiss them.
(gg)Paragraph 41 – Dr Haque submits that MARA’s main reason for refusing his application was his psychological state, whereas the Respondent’s main concern is his past convictions. He makes no contention from this difference. I consider the issue not relevant to my own findings.
(hh)Paragraph 42 – Dr Haque appears to contend that the Respondent is concerned only with section 290(2)(c), which is only one of seven subsections. I have considered all the sub-sections in my own deliberations and this contention is of no value. Dr Haque contends further that the Respondent makes no appropriate justifiable statements in regard to section 290(1) but nevertheless seeks a decision under that subsection. I am not bound or constrained by the contentions of the Respondent. Accordingly, this contention is of no value.
(ii)Paragraph 43 – This is a repeat of Dr Haque’s earlier contention that the High Court has found no clear definition of the terms person of integrity and fit and proper person. I have already fully considered the evidence on this issue and found that Dr Haque is not a person of integrity and not a fit and proper person to provide immigration assistance. Accordingly, I dismiss this contention.
FINDINGS
After considering all the subsections of section 290(2) of the Act, I find that only two are relevant to this case, namely subsections (c) and (h).
After considering all the evidence and contentions in relation to Dr Haque’s relevant convictions (s.290(2)(c)), and all other relevant matters (s.290(2)(h)), I have found that Dr Haque is not a person of integrity and is not a fit and proper person to give immigration advice.
In accordance with the provisions of subsection 290(1), I am satisfied that Dr Haque is not a fit and proper person to give immigration assistance nor is he a person of integrity. As a consequence, I find that he must not be registered as a migration agent.
As I have found that Dr Haque must not be registered as a migration agent, it is not necessary for me to consider the issue of his English language ability.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert, Member ..........[sgd]..............................................................
Associate
Dated 17 April 2014
Date(s) of hearing 3 March 2014 Applicant In person Solicitors for the Respondent Mr Matthew Bock, Clayton Utz Lawyers
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