High Court Takes A Broader And More Beneficial Approach To The Regulation Of Migration Agents

TABLE OF CONTENTS

Introduction

Ethics Tool Kit for Migration Agents

Receiving a Commission

Confidentiality

Can a solicitor claim a lien over a passport?

High Court takes a broader and more beneficial approach to the regulation of migration agents

Related by Employment

Relations with other agents

Take the exam

The High Court in Shi v MARA [2008] HCA 31 (30 July 2008) took a very common sense approach to the regulation of migration agents, finding against the restrictive approach urged by MARA. The High Court found that when the AAT  reviews a matter it should look at the evidence in existence at time of decision and is NOT restricted to the evidence existing at time of the first instance and therefore earlier decision by MARA. It means that if an agent has done things to improve his or her position after the adverse decision by MARA then that evidence can be taken into account by the AAT.  For example in the case of Shi the agent had agreed post the MARA decision not to do protection visa cases (which was one of the causes of the problem) and secondly among other things was working under the supervision of another agent.  The AAT took both of those things into account in softening the decision of MARA.

Before going into the High Court decision it is necessary to look at what happened during the AAT hearing.

First up the AAT found that the rule in Jones v Dunkel applies in hearings involving accusations by MARA.  At first instance in Shi v MARA [2005] AATA 904 (6 April 2005), the AAT concluded:

1. I accept that a Jones v Dunkel (1959) 101 CLR 298 inference may arise in some circumstances in this Tribunal. Some examples are where there is a failure to call a witness by the party whom the witness might be expected to favour (Re Perring v Australian Postal Corporation) (1993) 31 ALR 693 at 694); where there is a well-advised party with the resources of the Commonwealth (Re Rodger v Secretary, Dept of Social Security) (1991) 24 ALD 720 at 721); and where there was a medical-legal consultant not called whose report presented some difficulties for the respondent (Re Bessey and Australian Postal Corporation (2000) 60 ALD 529 at 537).

In my view it depends on the circumstances of the case and that is how I have approached these matters

In Jones v Dunkel,  Wyndeyere J outlined the law as to what inferences can be drawn if a witnesses who ought to be called is not called:

“the general principles as stated in Wigmore on Evidence 3rd ed. (1940) vol. 2, s. 285, p. 162 [are] as follows: “The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted.” (at p321)

This is plain commonsense.”

This has an impact on AAT hearings.  Sometimes clients may be willing to make unsubstantiated or incomplete accusations in private to MARA but will not be willing to give evidence before the AAT and be subject to cross-examination. The AAT above has indicated that an inference will be drawn against a client in circumstances where the client is not willing to give evidence in accordance with the principles outlined in Jones v Dunkel.

The AAT also endorsed that the rule in Brown v Dunn applies with qualifications to AAT hearings:

No findings unless put specifically to Mr Shi

1. Mr Poynder submitted that I should make no findings on matters not specifically put in issue in the proceedings, “that is, allegations that have not been put to Mr Shi in cross-examination to enable him to provide a response”. For example, Mr Poynder submits that I must accept what Mr Shi says about his file notes because it was not put to him that he did not do what he said he did. Although not referred to by Mr Poynder, I understand this to be a submission based on the principle in Browne v Dunn. I accept that the principle applies in the Tribunal as discussed by Mr Pearce in his book Administrative Appeals Tribunal, at 7.4 and in the cases referred to. In particular, I note the remarks of Beazley J in Marelic v Comcare 32 ALD 155 at 161:

The rule in Browne v Dunn is a procedural rule grounded in fairness, and its application must depend upon the circumstances of each case. In Trade Practices Commission v Mobil Oil Australia Ltd [1984] FCA 238; (1984) 3 FCR 168; 55 ALR 527 Toohey J held (at FCR 181) that in the circumstances where the respondent’s legal advisers were fully alerted before and during the hearing to the allegations made against the company and the evidence upon which the Commission relied, it was unnecessary to consider the operation of the rule in Browne v Dunn. A similar approach was adopted by Spender J in Dolan v Australian and Overseas Telecommunications Corporation [1993] FCA 202; (1993) 114 ALR 231 where his Honour held (at 236) that in the circumstances of that case, the failure to put the contents of a video produced no unfairness to the applicant. …

1. The Tribunal is bound to observe the rules of procedural fairness and in that regard, the rule in Browne v Dunn, with the qualifications to which I have referred, is a convenient statement of the content of that aspect of procedural fairness which requires that a party be given adequate opportunity to meet the case which is put against him or her.

In a complex case worth reading in full for a detailed analysis of how individual breaches of the Code work, the AAT ultimately came to these conclusions [in Shi v Migration Agents Registration Authority [2005] AATA 851 (2 September 2005) being the second part of the published decision made after submissions were made about what orders should be made after the AAT made its findings on breach of the Code.] :

What is the appropriate order to make?

1. Whether Mr Shi’s continuing to practice is in the public interest depends in my opinion on my findings in relation to s 303(h) and s 303(f).
2. 24. Having considered all the evidence, I conclude that I am not satisfied that Mr Shi is not a person of integrity or otherwise not a fit and proper person to give immigration assistance within the meaning of s 303(f). My critical findings about his evidence were one factor to consider. However, there was no evidence that he had acted dishonestly in his practice and he has a number of very favourable references. His attitude to the Code and the consequential non-compliances are relevant is also of concern. However, I take into account that he has had a supervising migration agent for over two years who is a knowledgeable and experienced migration agent and who holds Mr Shi in high regard. There has been no evidence of breaches since the first decision was made in 2003 and his rate of success has been very high in recent years. Most of the non-compliances with the Code related to protection visas which he has not dealt with since early in 2003.
3. In my opinion, cancellation or suspension is not appropriate in this case in relation to s 303(h). I consider that there is another course which protects the public interest sufficiently but will allow Mr Shi to continue to practice as a migration agent with appropriate constraints. It is to issue a caution pursuant to s 303(c) subject to conditions imposed pursuant to s 304A. The caution will appear on the MARA web-site until it is lifted, pursuant to the Act.

1. The conditions I impose will have the effect:

(a) That Mr Shi continues to be supervised by a registered migration agent for a further period of 3 years from the date of this decision.

(b) That Mr Shi does not provide immigration assistance with respect to protection visas for a period of three years from the date of this decision.

MARA argued that the AAT could not take into account evidence or matters occurring after the date of the original decision by MARA to cancel the registration of the migration agent.  But this approach was soundly rejected by the High Court. Hayne & Heydon JJ pointed out that the role of the AAT was to consider the whole matter afresh.  Here is what they said:

1. In reviewing MARA’s decision to cancel the appellant’s registration, the Tribunal was empowered (by s 43(1) of the AAT Act) to exercise all the powers and discretions conferred by the Migration Act on MARA. The questions for the Tribunal in reviewing the cancellation decision were first, whether the Tribunal was satisfied that either of the s 303(1) grounds said to be engaged in this case was made out, and secondly, whether the Tribunal should exercise the powers given by s 303(1) to cancel or suspend the appellant’s registration or to caution him. That is, the first questions for the Tribunal were whether it was satisfied that the appellant “is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance” and whether it was satisfied that the appellant had not complied with the Code of Conduct.

1. MARA’s contention, in this Court and in the courts below, that the question for the Tribunal was whether the correct or preferable decision when MARA made its decision was to cancel the appellant’s registration, should be rejected. It finds no footing in the relevant provisions. To frame the relevant question in the manner urged by MARA would treat the Tribunal’s task as confined to the correction of demonstrated error in administrative decision-making in a manner analogous to a form of strict appeal[76] in judicial proceedings. But that is not the Tribunal’s task.
2. It has long been established  [in Drake (1979) 24 ALR 577 at 589 per Bowen CJ & Deane J] that:

“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.” (emphasis added)

And MARA accepted in argument in this Court that in conducting its review the Tribunal was not limited to the record that was before MARA[78]. It submitted, however, that the Tribunal had to consider the circumstances “as appear from the record before it as they existed at the time of the decision under review”.

1. Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.

This has significant implications for migration agents appealing to the AAT.  After a MARA decision an agent can do a lot to try and recover his or her position – things like accepting supervision of practice can be useful recover tools.

Conditions can be imposed on continued registration of a migration agent

Hayne & Heydon JJ in Shi found that the AAT could impose conditions on continued registration:

• Any condition imposed as a condition for lifting a caution could be described as providing a form of “qualified registration” of a migration agent. The agent would be registered but the agent’s registration would be “qualified” for so long as the condition applied. The qualification to the registration would be that the agent concerned was under caution until the condition was met. The power given by s 304A is not limited in the manner alleged by MARA.
• MARA accepted, correctly, that a caution could be administered to a migration agent on condition that the agent undertake a prescribed course of training. The Explanatory Memorandum for the 2004 Amendment Act had expressly given that as an example of the operation of the new s 304A. But no relevant distinction can be drawn between a condition that required an agent to undertake a course of instruction, and a condition that required an agent to work subject to supervision. No relevant distinction can be drawn because both are conditions that relate to the subject-matter, scope and purpose of the relevant provisions of the Migration Act and fall within the otherwise general words of s 304A. Likewise, a condition that a migration agent not undertake certain kinds of work relates to the subject-matter, scope and purpose of the relevant provision and falls within the words of s 304A.
• Contrary to MARA’s submission, the provisions of the Migration Act which provide for and regulate the registration of migration agents are not to be read as if registration as an agent confers on the person registered an unfettered capacity to give migration assistance. The relevant provisions must be read together. The powers and duties of a migration agent are to be identified from the combined operation of all of those provisions. Section 280(1) of the Migration Act provides that a person who is not a registered migration agent must not give immigration assistance. But what a registered migration agent may do in giving immigration assistance is regulated by other applicable provisions of the Migration Act, including s 304A.
• A failure to abide by the conditions for lifting a caution may well be a matter relevant to the annual exercise of the power to re-register an agent[87]. Failure to abide by such conditions may also be relevant to whether an agent is a fit and proper person to give immigration assistance. But a migration agent subject to a caution of the kind now in issue may continue to act as a migration agent. Imposition of conditions of the kind imposed in this case as conditions for the lifting of the caution administered to the appellant was not inconsistent with the scheme for which the relevant provisions of the Migration Act

Kirby J was perhaps more direct:

• In the context of professional discipline in other fields, it is not unusual for conditional orders to practise, or to return to practise, to be made, fashioned so as to take into account particular impediments, arising from the evidence, to a full, immediate return to the entire range of professional duties[61].
• Whilst it is true that the Migration Act does not comprehend qualified rights to practise as such, neither do the laws providing for the registration of medical practitioners or dentists, or the admission of legal practitioners. Yet in particular circumstances, the imposition of temporary conditions following disciplinary proceedings, here as an adjunct to a caution, might well be an entirely appropriate disciplinary response, protective of the public. In such cases, it would represent the “correct or preferable decision” on the merits of the case. Clearly, the Tribunal considered a decision of such a nature to be appropriate to its ultimate factual findings. This Court is not concerned with the factual merits of that conclusion. A decision that the Tribunal lacked the jurisdiction and power to fashion the order that it did is not required by the language, still less the purpose, of the Migration Act. It does not represent the better view of the meaning of the amended provisions of that Act.

AAT DISMISSED MARA CASE AGAINST MIGRATION AGENT

The AAT dismissed a complaint against a migration agent finding that the allegations made by the client were ‘unsubstaniated’. In Miller v MARA [2008] AATA 659 (30 July 2008).  The AAT observed:

1. The major problem with this matter was the substantial difference in the evidence of Mr Yang and Mr Miller. It is basically the word of one against the other. It is of some concern that he decision under review is based on the unsubstantiated allegations of Mr Yang against Mr Miller all of which he strenuously denied.

1. A primary argument of Mr Miller was that the contracts of 30 September 1999 were not complied with by Mr Yang and Mr Miller had no obligation to perform the contracted service and did not do so. It is clear that there is no evidence of the payment by Mr Yang of the RMB2,500 to Mr Miller or the payment of A$30,000 or any other amount to ACA. The only evidence of payment was the $161,100 direct to APC. Mr Yang acknowledged that the contract with ACA did not proceed. The reason for the substantial change in the basis on which Mr Yang made his investment are quite unclear.
2. The evidence of Mr Miller was clear and unequivocal. While making allowances for possible language difficulties of Mr Yang, his evidence was somewhat vague and, in some instances, clearly contradictory to what he had stated in his written complaints. It is accepted that he lost his investment, was angry and believed that he had been misled. However, it would seem that that anger was directed primarily at Mr C. Armitage and an assumption that, because he met Mr Miller at the same time as Mr Armitage that, somehow (unspecified), Mr Miller should be blamed also. It appears likely that some criticism could be levelled at Mr C Armitage in seeking to attract Chinese potential immigrants by lending his Australian business operations to a subterfuge that such as Mr Yang were legitimate business visa applicants. On the balance of probabilities I am satisfied that Mr Miller did not prepare visa applications for Mr Yang on the reasonable understanding that there was no completed contract to do so. Clearly Ms Li acted for Mr Yang to a much greater depth than he was prepared to admit. The involvement of a Mr Wall and a subsequent migration agent, Mr Peter Chan is unclear. It is relevant to note that, at the times when the 457 and the 845 visa applications were made, Mr Miller was not a registered migration agent. Section 311A of the Act applies only to the provision of migration assistance while registered.
3. As indicated earlier, this is a case of different versions of accounts given by Mr Miller and Mr Yang. On the basis of the evidence of both I am of the view that, on the balance of probabilities, the version of Mr Miller is the version which should be accepted.
4. MARA was critical of the fact that Mr Miller did not disclose his investment in Avin Operations Pty Ltd to Mr Yang. The investment was made in July and August 1999. On 3 September 1999 an administrator was appointed to the company, prior to the date of that first meeting with Mr Yang. However, the evidence indicates that, at that time, there was no clear arrangement for Mr Yang to invest in any company in which Mr Armitage was involved. Mr Yang visited and considered several other unrelated businesses. While Avin Operations Pty Ltd was controlled by the Armitage family there is no witness to suggest that it had any direct relationship with ACA. While it may have been desirable for Mr Miller to have disclosed this investment to Mr Yang, I am unable to find that there was any conflict of interest. It is possible to argue that, on the contrary, the knowledge of that investment may have given greater encouragement to Mr Yang to invest in another Armitage company.
5. Having found that the evidence of Mr Yang was less than satisfactory and unable to be relied upon, I repeat my concern that MARA acted on this unsubstantiated allegation. On balance, and considering all of the evidence, I am satisfied that the decision under review to bar Mr Miller from being registered as a migration agent for five years should be set aside.

COST OF RESISTING DISCIPLINARY CHARGES ARE TAX DEDUCTIBLE

A Customs Officer succeeded in the High Court in having all his legal expenses relating to defending disciplinary charges as tax deductions against his income.

By analogy, the cost of a migration agent resisting disciplinary charges brought by MARA would also be tax deductible. Such costs would include reviews and appeals to the AAT and Federal Court respectively.

The ability to claim a tax deduction is determined by s. 8-1(1) of the Income Tax Assessment Act 1997 (Cth) which provides:

“(1) You can deduct from your assessable income any loss or outgoing to the extent that:

(a) it is incurred in gaining or producing your assessable income; or

(b) it is necessarily incurred in carrying on a business for the purpose of gaining or producing your assessable income.

(2) However, you cannot deduct a loss or outgoing under this section to the extent that:

(a) it is a loss or outgoing of capital, or of a capital nature; or

(b) it is a loss or outgoing of a private or domestic nature.”

In Commissioner of Taxation v Day [2008] HCA 53 (12 November 2008) Gummow, Hayne, Heydon & Kiefel JJ held:

The respondent’s duties as an officer of the Service, and the possible consequences to him of internal disciplinary proceedings and action with respect to the continuation or termination of his service, form part of what was productive of his assessable income in that capacity. Applying the inquiry as to connection posed by the section, as explained by Ronpibon Tin, the occasion of the legal expenses is to be found in his position as an officer. It follows that the expenses were properly allowable as deductions.

UNREGISTERED AGENTS DO NOT HAVE RIGHT TO RECEIVE DOCUMENTS ON BEHALF OF CLIENTS

Unregistered migration agents who give migration advice will no longer have a right to receive documents on behalf of clients. S. 494D(1) of the Migration Act gives authorised persons the right to receive documents from DIAC. It states

(1)      If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person

But a new subsection is added to s. 494D as follows:

(5)        The Minister need not comply with subsection (1), or the requirement in subsection (4) to give a notice, if:

            (a)        the authorised recipient is not a registered migration agent (within the meaning of Part 3); and

            (b)        the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and

            (c)        the Minister has given the first person a notice, by one of the methods specified in s. 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1).

The effect of the above changes is that registered migration agents have a right to receive documents on behalf of clients, unregistered agents do not.

The above changes are made as part of the amendments made by the Migration Legislation Amendment Act (No 1) 2008,

assented to 15.9.08

‘Fraud unravels everything.’[10]

If a migration agent commits a fraud on behalf of a client, then it is possible to have that fraud overturned even if a court or tribunal has made an adverse decision against the client based on the fraud.

What amounts to fraud can be quite broad. How broad it can be is revealed in the recent High Court decision of SZFDE v MIAC [2007] HCA 35 (2.8.07), (2007) 81 ALJR 1401.  This was one of the very few decisions ever made by the High Court as 7 member bench unanimously and in a single joint judgment.[11]

The Court endorsed what Lord Denning said in Lazarus Estates Ltd v Beasle[12]:

“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever: see as to deeds, Collins v Blanter; as to judgments, Duchess of Kingston’s case; and as to contracts, Master v Miller.”

Here are the facts:

The evidence of the first appellant was that when, with her husband, she met Mr Hussain to discuss the Tribunal’s letter of invitation dated 27 June 2003 which invited attendance at a hearing of the Tribunal Mr Hussain used words to the effect:

“It is best not to go. If you go they will refuse you. They are not accepting any visa applications at all at the moment. I am going to take a different approach. I am going to write a letter to the Minister. I am worried that if you go to the [Tribunal] you will say something in contradiction to what I will write. Don’t worry. I’m doing what is best for you.”

A letter to the then Minister, dated 15.9.03, was composed by Mr Hussain in the name of the second appellant. It was headed “Application for Consideration [under] S. 417 of the Migration Act”. Section 417 conferred a power upon the Minister, if the Minister thought it was in the public interest to do so, to substitute for a decision of the Tribunal a decision more favourable to an applicant. This and further requests of this nature were rejected.

The Federal Magistrate held that Mr Hussain had acted fraudulently in his dealings with the appellants for personal gain, that he had extracted money under false pretences and that the appellants had been dissuaded from attending the Tribunal hearing “by the fraudulent behaviour of Mr Hussain”. The result was to have “deprived the invitation to the hearing [of] its quality of being a meaningful invitation under s 425”.

So the High Court determined as follows:

The importance of the requirement in s 425 that the Tribunal invite the applicant to appear to give evidence and present arguments is emphasised by s 422B. This states that Div 4 “is taken to be an exhaustive statement of the requirement of the natural justice hearing rule in relation to the matters it deals with.”

An effective subversion of the operation of s 425 also subverts the observance by the Tribunal of its obligation to accord procedural fairness to applicants for review.

The fraud of Mr Hussain had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants. That this is so is manifest by the reasons given by the Tribunal, which included the statement:

“The [first] applicant was put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but the applicant has not provided any further information in support of her claims. Nor has she given the Tribunal an opportunity to explore aspects of her claims with her. A number of relevant questions are therefore left unanswered.

The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.”

…

No doubt Mr Hussain was fraudulent in his dealings with the appellants. But the concomitant was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud “on” the Tribunal.

The consequence is that the decision made by the Tribunal is properly regarded, in law, as no decision at all. This is because, in the sense of the authorities, the jurisdiction remains constructively unexercised. The authorities were collected in Bhardwaj.

The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.

So if a migration agent does something on behalf of a client fraudulently then provided the client is not complicit in that fraud then whatever the migration did can be unravelled.

Federal Court considers SZFDE

Rushed hearings have an inherent risk of error as the Full Federal Court decision of MIAC v SZLIX [2008] FCAFC 17 (5 March 2008) demonstrates. Here one day before a protection visa application was to be removed from Australia, he sought judicial review in the Federal Magistrates Court against a decision of the RRT to refuse a review of a protection visa refusal. The judicial review hearing was held 3 days later and judgement was given 4 days later in favour of the applicant.  But the Full Federal Court observed:

This haste in the disposition of the matter probably explains in some degree the quite unsatisfactory state of the evidence before the Federal Magistrate.

In SZLIX, the applicant sought to rely on the High Court’s decision SZFDE because the applicant claimed the ‘migration agent’ did not inform him of a second date of hearing.  The Full Federal Court decision was critical of the evidence which was before the magistrate, obviously caused by the haste in the hearing. That aside the Full Federal Court found that negligence or error by a migration agent would not ordinarily amount to the level of fraud identified in SZFDE.  Here is what the Full Federal Court concluded:

32 We have already indicated that we do not consider that a finding that the agent was unregistered was open on the evidence. Even assuming it was, and assuming, moreover, that the respondent was thereby misled, we do not consider that all of the agent’s acts or omissions vis-à-vis the respondent are thereby to be characterised as dishonest. Nor do we consider that any particular such act or omission which directly effects the Tribunal’s discharge of its imperative statutory functions in a manner which is adverse to a person seeking Tribunal review can in turn be characterised as a “fraud on the Tribunal”.

33 The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent’s submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects the Tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw.. (1938) 60 CLR 336 at 363& 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.

34 We will order that the decision of the Federal Magistrate be set aside, and that the first respondent pay the appellant’s costs of the appeal and of the hearing before the Federal Magistrate. Because of the unsatisfactory state of the evidence upon which his Honour was asked to make his decision – we imply no criticism of him in this – we consider that the appropriate course is to remit the matter to his Honour for re-hearing.

A side bar to this case is that the speed of the way all of the matters before the federal magistrate was conducted does not benefit anyone. Always oppose undue haste and use this case as an example.

Note what the court said above – ‘The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal.’

This reflects the general law and a good example of where this comes into play is the compliance with Public Interest Criteria 3003, which among others things states:

the Minister is satisfied that:

(c)      the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant’s control; and

(d)      there are compelling reasons for granting the visa;

MSI 374: Schedule 3: Additional criteria applicable to unlawful non-citizens and certain bridging visa classes dated 21/3/03 states in relation to complying with 3003:

6.5.27

Failure by the agent or lawyer to look after the applicant’s best interests may be grounds for the applicant to take legal action against their agent, but would not normally be grounds (on its own) for finding that the applicant became an illegal entrant or a person in Australia without a substantive visa due to factors beyond their control.

Another case along the same lines is Jalagam v Minister for Immigration & Citizenship [2009] FCA 197 (6 March 2009) where the client argued that the failure of the migration agent lawyers to pass on the DIAC notice amounted to fraud. But the Court considered this was just negligence not fraud:

1. Another difficulty was his Honour’s acceptance of the submission of the Minister’s counsel, that if he accepted all the evidence led by the appellant, it would support, at most, a conclusion only that there was a failure by Tan & Tan speedily to convey the delegate’s decision to the applicant. At most, in his Honour’s opinion, the appellant’s evidence might support a finding of negligence in communicating with a client of the firm on a significant matter. However, on the above authorities this was not enough (reference was made to SZFDE at [53]).

Similarly in SZHVM  v Minister for Immigration and Citizenship [2008] FCA 600 (7 May 2008) (2008) 170 FCR 211, the applicant knew about the Tribunal hearing but through being badly advised did not go to the hearing and so this was not fraud:

45 The further evidence sought to be adduced by the appellant shows that Mr Marzukie gave the appellant at least some letters from the Tribunal, her own mobile number was supplied to the Tribunal in the application for review, the appellant was aware of the existence of the hearing and the date upon which it was to take place, she knew the hearing was ‘important’, and she intended to go to the hearing. Whilst the appellant was influenced by Mr Marzukie at the last minute not to attend (because she ‘dared not oppose him’), she understood the Tribunal hearing was important, and she made the decision not to attend with that knowledge.

46 Further, Mr Marzukie’s role and conduct as a registered migration agent is quite unlike that of the migration agent in SZFDE. Such things as encouraging the insertion of the incorrect address on the application form, and telling the appellant that the hearing was an ‘interview’ are not so significant as to warrant a finding of fraud upon the Tribunal. Further, the appellant herself was complicit and knowingly involved in the decision to mislead the Tribunal as to her place of residence.

47 SZFDE does not stand for the proposition that a failure by an applicant to attend the Tribunal hearing due to the fault or conduct of a third person bears the result that the Tribunal decision to proceed under s 426A of the Act is always vitiated by error.

48 This is a case where the appellant did not attend the Tribunal hearing due to a combination of factors – her own lack of diligence, receipt of some misinformation or bad advice from a third party, and choosing after some persuasion not to attend. None of these matters amounts to fraud because there is no relevant ‘fraudulent’ conduct vis-à-vis the appellant. The real reason for the appellant not attending is not contained in the various matters particularised by the appellant in the Further Amended Notice of Appeal, but was the appellant’s own decision not to attend. The appellant consciously consented to the Tribunal disposing of her case without her appearance, and in the circumstances the legislative scheme and processes of the Tribunal were not in any way disturbed.

How is the Code of Conduct Interpreted?

A seminal case on the Code of Conduct is the Federal Court decision of Hanna v Migration Agents Registration Authority [1999] FCA 1657 (26 November 1999).  There Tamberlin J determined that the Code of Conduct has to be construed as it is, in accordance strictly with the words used.  He concluded:

20 When deciding the correct interpretation of a clause such as cl 17, it is appropriate to bear in mind the severity of the sanctions which can be imposed under s 303 of the Act. These include cancellation of the agent’s registration by removing the name from the register, and alternatively suspending the agent’s registration or cautioning the agent. Of course, the action which MARA, previously MARB, may take is a matter of discretion, and the provision clearly contemplates that the steps taken will vary according to the seriousness of non-compliance with the Code of Conduct: see Briginshaw[13] per Latham CJ at 343-344 and per Dixon J at 360-363. However, the exposure to these sanction under s 303 as a result of failure to comply with the professional standards may be severe and this indicates that caution should be exercised before introducing language which the legislature has not chosen to use: see Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640 at 649 per Stephen J. See also Gifford Statutory Interpretation 1990 at 25-26; and Pearce Statutory Interpretation in Australia 1996 at 38-39.

21 In addition, where a provision is directed to the prescription of standards of conduct, which, if breached, may be visited with severe consequences, the duty should be clearly spelt out. The necessity to add any words or qualification to the language used may well produce uncertainty as to the circumstances in which the clause operates.

An example of the way Hanna was applied is Shi v MARA [2005] AATA 904 (6 April 2005) a complex case worth reading in full.

The so-called Briginshaw test turns up so often in professional misconduct that it is worth referring to in some detail here.  In essence the Briginshawtest says then when a person is accused in a civil sense of some act of moral turpitude, the court or tribunal needs to be satisfied to a serious level that the wrong act was in fact done.  Here is how Dixon J (as he then was) described the law (footnotes omitted):

This mode of stating the rule for civil issues appears to acknowledge that the degree of satisfaction demanded may depend rather on the nature of the issue….. The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. Thus, Mellish L.J. says: “No doubt the court is bound to see that a case of fraud is clearly proved, but on the question at what time the persons who have been guilty of that fraud commenced it, the court is to draw reasonable inferences from their conduct” (Panama and South Pacific Telegraph Co. v. India Rubber, Gutta Percha, and Telegraph Works Co. In the same way, in dealing with the question in what county the publication of a criminal libel had taken place, Best J. said: “I admit, where presumption is attempted to be raised, as to the corpus delicti, that it ought to be strong and cogent; but in a part of the case relating merely to the question of venue, leaving the body of the offence untouched, I would act on as slight grounds of presumption as would satisfy me in the most trifling cause that can be tried in Westminster Hall” (R. v. Burdett). It is often said that such an issue as fraud must be proved “clearly”, “unequivocally”, “strictly” or “with certainty” (Cf. Mowatt v. Blake; Kisch v. Central Railway Co. of Venezuela Ltd.; Lumley v. Desborough). This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.

The Briginshaw test therefore would apply in relation to assessing evidence against migration agents relation to breaches of the Code of Conduct

Any ambiguity in the Code of Conduct should be resolved in favour of the migration agent. This approach was endorsed by Allsop J in Kazacos v MARA [2007] FCA 1573 (15.10.07) even though the court found against the agent.  Allsop J said:

Of course, the approach to the construction of the delegated legislation should recognise the serious consequences for the migration agent of a finding of misconduct. In that sense the provisions can be described as penal: Hanna v MARA (1999) 94 FCR 358 at 363. However, as I said in ACCC v Liquorland [2006] ATPR 42-123 at [45]-[48], the meaning of a penal provision is to be ascertained using the ordinary rules of statutory construction and interpretation, but recognising that if, as a matter of last resort after those rules are applied, the language of the statute remains ambiguous or doubtful, such ambiguity or doubt may be resolved in favour of the subject. What is to be rejected is an approach which, because the provision is penal, employs a literal analysis with an eye to the discernment of textual ambiguity through finely spun distinction: see also Pearce DC & Geddes RS, Statutory Interpretation in Australia (5th ed, Butterworths, 2001) at p 232 [9.8].

Allsop J through some light on how an employee migration agent is bound by the Code of Conduct:

11 One can see that these obligations may or may not, in any given context, be relevant to a migration agent who works entirely as an employee. If such a person had no part in liaising with clients, with receiving funds, with the operation of the practice or with controlling the bank accounts, it may well be that such obligations do not affect the daily working professional life of such a person.

12 Equally, one can see a need for an express regime whereby the duties as are found in Part 7 are placed on persons (including companies) who employ migration agents and who (lawfully) ask for or receive fees or reward for the giving of immigration assistance by employed registered migration agents.

In this case Allsop J rejected the notion that a migration agent could insulate himself from the effects of the Code through using a corporate entity which he owned and controlled.

Telling lies about what was done

Giving assurances to clients which are not correct may lead to a suspension of registration as a migration agent.  Often because of the exigencies of practice one may not get around to doing what one promised the client that one would do.

In S v MARA [2007] AATA 1245 (20 April 2007), the agent had told the client that skill assessment applications had been lodged but in fact none were lodged.  The AAT described the situation thus:

1. This pattern of falsely indicating that the applications for assessment had been lodged and had been followed up continued with e-mails sent by the applicant on 26 June 2003 and 9 September 2003. In addition, both during and after that period the first complainants sent numerous e-mails to the applicant that went unanswered.
2. By registered letter dated 24 January 2004 the first complainants sought from the applicant an account of his dealings on their behalf and what of their funds had been spent. The applicant responded to that request by an e-mail dated 24 February 2004 and promised to “answer your question by the end of this week.” That was not done.
3. It is next relevant to note that on 19 July 2004 the first complainants made a formal complaint to the respondent. To that point, a period in excess of two years from their first contact with the applicant, no application for assessment of qualifications had been submitted.
4. It is unclear when the applications for assessment were first made. I have a letter on the applicant’s letterhead to the Qualifications Assessment Unit of CPA Australia seeking an assessment of the qualifications of Ms Plakman. It bears the date 30 July 2004 but the evidence of Ms Hersley, the manager of the Qualifications Assessment Unit of that body, is that it was received on 22 September 2004. Curiously, it was seemingly accompanied by a bank cheque, representing the fee payable for the assessment, dated 2 March 2004. In any event the assessment, when finally undertaken, was not favourable.
5. I have a similar letter bearing the date 2 August 2004 to the Australian Computer Society. It also was said to have been received by that organization on 22 September 2004. It was accompanied by a bank cheque dated 5 March 2004. This assessment, when undertaken, was also unfavourable.
6. In the meantime the complaint to the respondent by the first complainants was investigated. On 3 November 2005 the applicant was interviewed at some length in relation to the circumstances of this complaint by representatives of the respondent.

The second complaint involved lodging an application to the MRT one day out of time.

The first issue that the AAT determined was whether organising a skill assessment was ‘immigration assistance’ within the meaning of s. 276 of the Migration Act. That section states:

276.      (1)      FOR THE PURPOSES OF THIS PART, A PERSON GIVES IMMIGRATION ASSISTANCE IF THE PERSON USES, OR PURPORTS TO USE, KNOWLEDGE OF, OR EXPERIENCE IN, MIGRATION PROCEDURE TO ASSIST A VISA APPLICANT OR CANCELLATION REVIEW APPLICANT BY:

(a)      preparing, or helping to prepare, the visa application or cancellation review application; or

(b)      advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or

(c)      preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or

(d)      representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.

The AAT noted:

Obtaining an assessment of qualifications was an essential element of the application for a visa. The steps necessary to obtain an assessment of qualifications amounted to conduct in connection with a visa application and accordingly fell within the definition of “immigration assistance”

The AAT reduced the period of suspension from 12 to 6 months as it concluded:

1. The applicant’s conduct in relation to the first complainants is more troubling. There, for a period in excess of 2 years, he falsely presented to them that he had lodged their applications for skills assessment when he had not. He created an elaborate web of deception that had the effect that the first complainants spent some two years in limbo, uncertain about their future and unsure whether they would be successful in their applications for visas. There can be no doubt that the applicant’s conduct towards them was disgraceful.
2. The applicant, whilst admitting his culpability, was quite unable to explain why he had lied to the first complainants over the period that he did. It is a curious feature of the case that the applicant did not benefit financially from doing so; he says and his evidence was not challenged, that he still retains the full amount of the fees paid by the first complainants in his trust account.
3. Whilst the applicant did not himself propound an explanation it seems to me that the only logical explanation is that having initially told an untruth to conceal a failure to act in accordance with his clients’ instructions he found himself caught up in an increasingly impossible situation. He could not, without admitting his lack of competence, act truthfully towards his clients and was for this reason compelled to maintain the façade. He lacked the fortitude to tell the first complainants what had gone wrong.
4. But, not without some hesitation, I have concluded that these matters do not warrant the conclusion that the respondent seeks. In the circumstances of this case, and particularly having regard to the other evidence of “good character” and absence of other complaints, I have reached the conclusion that the applicant’s conduct was indeed out of character and that, notwithstanding that conduct, he was and is otherwise a person of integrity and a fit and proper person to give immigration advice.

The AAT initially sought to impose a condition that the migration agent practice under the supervision and mentoring of an experienced migration agent.  But MARA argued that since the application for re-registration had been suspended the AAT had no power to impose conditions.  The migration agent agreed voluntarily to accept the mentoring condition but still reduced the suspension from 12 months to 6 months.

Lies leads to suspension

A similar case is Russell v MARA [2008] AATA 22 (10 January 2008).  Mr Russell was a solicitor and migration agent. The stark facts are these as reported from the AAT decision:

1. On 31 July 2003 Mr Russell received a letter from Vetassess showing a negative assessment. The brother demanded an explanation from Mr Russell as to why he had been so confident that the application would be successful. Mr Russell caused the brother to believe that there was a positive assessment and that this new negative assessment was a new decision. In fact it was the only decision.
2. Mr Russell created a fraudulent undated Vetassess positive assessment and gave a copy to the brother in the period September to December 2003.
3. Mr Russell lodged a further application with Vetassess around 14 July 2004. A negative result was received on 23 December 2004.

1. The following matters were put in support of Mr Russell’s case. He explained that he found himself in a situation where he was pressured and intimidated. He panicked and was not thinking clearly. He stuck his head in the sand and did not consider seeking the advice of colleagues. He hoped it would go away. He explained the period of almost 12 months delay from his receipt of MARA’s first letter because he had told his employer who suggested he seek advice which lead to issues arising in relation to the confidentiality of client’s records.

Here is what the AAT determined:

1. Mr Russell deliberately altered details on a Vetassess document belonging to another of his clients, but his conduct was not confined to one act of creating a false document. Rather Mr Russell persisted with an intentional course of conduct maintaining that there had been a positive assessment, to Mr Yuan, his brother, and finally to DIAC. It began when Mr Russell first advised the brother that there had been a positive assessment in about July 2003 and continued until Mr Russell’s letter to the Department on 4 February 2005.
2. The Department complained to MARA in a letter dated 26 August 2005 alleging that Mr Russell was involved in the creation of a false Vetassess certificate for Mr Yuan using the assessment of a former client. On 17 October 2005 MARA collected Mr Russell’s files relating to Mr Yuan and to the former client. Mr Russell was requested to comment on the complaint in a letter dated 27 October 2005. On 7 November 2005 Vetassess advised MARA that Mr Yuan had never received a positive skills assessment.
3. On 29 November 2005 Mr Russell wrote to MARA claiming legal professional privilege and requesting that the material in the clients’ files not be used until he had obtained the clients’ consent. He requested an extension of time to respond to the letter until 15 December 2005. After further delays, Mr Russell responded on 27 February 2006. In the admissions made he did not state that he had advised the Department on 4 February 2005 that the positive skills assessment had been made.
4. On 28 March 2006 MARA issued a notice under s 309(2) of the Act advising that disciplinary action was being considered and asking for Mr Russell’s comment by 3 May 2006. Mr Russell requested, and was granted, several extensions because he was waiting for DIAC to respond to his freedom of information request for his records as a migration agent. On 20 and 25 October 2006, Mr Russell sent responses. They included a copy of his record as a migration agent to demonstrate that he had had no other complaints of significance. He included several references and a request for a further extension to respond fully, and to obtain a psychiatrist’s report.
5. While the explanation of vulnerability to bullying might apply to Mr Russell’s conduct in relation to Mr Yuan and his brother, I do not find it a compelling explanation for the letter written to the Department in February 2005. Further, that Mr Russell was still seeking a reference, had only recently sought psychiatric advice, and wished a further extension to respond fully when he wrote his letter dated 25 October 2006 in response to the s 309 notice after several extensions were sought for other reasons, shows a failure even at that time to appreciate the seriousness of his conduct and the need to address it.

As a result the AAT affirmed a 3 year suspension of the applicant’s registration.

Struck off solicitor fails to be re-registered as a migration agent

In Seymour v MARA [2007] FCAFC 76 (4 June 2007), a former solicitor failed before the Full Federal Court to overturn a decision by MARA not to re-register him.  Here are the facts of the case:

2 Mr Seymour was formerly a solicitor of the Supreme Court of NSW. In 1982 he was found guilty of professional misconduct and struck off the roll. He remained struck off when his application for registration as a migration agent was granted by MARA’s predecessor, the Migration Agents Registration Board (“the Board”), in 1994. When he applied for registration Mr Seymour failed to disclose to the Board that, in 1990, he had been convicted of a drink driving offence. Shortly after he was registered he agreed to an order (“the 1994 order”) being made by the Supreme Court… that he would not in future act or purport to act as a solicitor. In June 04 Mr Seymour pleaded guilty to having committed a contempt of Court. It was alleged that Mr Seymour had breached the 1994 order by undertaking conveyancing work. Buddin J convicted Mr Seymour and sentenced him to imprisonment for nine months (“the 2004 conviction”). The execution of the sentence was suspended upon condition that he entered into a good behaviour bond for the period of nine months. This nine month period was still current when, on 14 February 2005, MARA purported to make the decision to refuse Mr Seymour’s application for registration for a further period. Mr Seymour failed to advise MARA that the contempt proceeding was pending or that he had been convicted and sentenced. In his application for “repeat registration” dated 1 May 2004 he advised MARA that there had been no previous finding of guilt of a criminal offence of which he had not advised MARA and that he was not currently the subject of any criminal proceedings.

3 MARA was led to its negative conclusion as to Mr Seymour’s fitness and propriety by the following considerations:

• His failure to disclose a conviction for drink driving when he originally applied for registration in 1993; and
  • His making of a declaration to MARA in 2004 that he was not the subject of any criminal proceeding when in fact he was; and
  • His failure to notify MARA that he had been convicted of an offence by Buddin J; and
  • The conduct which led to him being convicted and sentenced to imprisonment for nine months in 2004.

The applicant had argued that since the earlier Board knew he had been struck off as a solicitor, these facts were irrelevant to his current application for re-registration.  But the Full Federal Court pointed out that even if a person had been forgiven for earlier transgressions, any re-offending allows MARA to review the totality of the person’s history.  The court noted:

Moreover, subsequent events, such as the 2004 conviction, may well lead a decision-maker, as it did in this case, to review an applicant’s history. The Tribunal did not revive the 1982 striking-off decision in isolation. It did so as a logical starting-point for examining the 1994 Court order and the 2004 conviction for its breach. Together these events indicated that Mr Seymour had acted as a solicitor despite being struck off the roll and agreeing to orders that he should not so act again. He thereby demonstrated a willingness to disregard Court orders and the law regulating legal practitioners.

Agents can certify copies of documents

From 1 October 2006, Reg 2.13 (5) of the Migration Regulations is amended[14] to allow registered migration agents to certify copies of documents, the changes are set out in bold below:

(5)      SUBJECT TO SUBREGULATION (6), A DOCUMENT ACCOMPANYING A WRITTEN COMMUNICATION MUST BE:

(a)      the original; or

(b)      a copy of the original certified in writing to be a true copy by:

(i)      a Justice of the Peace; or

(ii)      a Commissioner for Declarations; or

• a person before whom a statutory declaration may be made under the Statutory Declarations Act 1959; or

(iv)                a registered migration agent whose registration is not:

(A)                                      suspended; or

(B)                                      subject to a caution; or

            (v)                 if the copy is certified in a place outside Australia:

(A)                                      a registered migration agent mentioned in subparagraph (iv); or

(B)                                      a person who is the equivalent of a Justice of the Peace or Commissioner for Declarations in that place.

Note   S. 303 of the Act provides that the Migration Agents Registration Authority may suspend the registration of a registered migration agent or caution him or her. If a registered migration agent is subject to a suspension of his or her registration, or a caution, particulars of the suspension or caution are shown on the Register of Migration Agents: s. 287 (2) of the Act. These particulars must be removed once the suspension or caution is no longer in effect: s. 287 (5) of the Act. 

Does not have to be ‘regularly informed’

A migration agent no longer needs to keep a client regularly informed.  Clause 2.8 is amended by deleting the words ‘and regularly’[15], from clause 2.8 of the Code of Conduct.

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 and regularly 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.

Clients should be advised that ‘no news is good news’ and that visa decisions take time so there is no point calling in every week to ask how the application is going, the code of conduct now endorses that approach.

Obligation to MARA beefed up

The Code of Conduct now puts this obligation[16] on agents when dealing with MARA:

2.9A                   In communicating with, or otherwise providing information to, the Authority, a registered migration agent must not seek to mislead or deceive the Authority, whether directly or by withholding relevant information.

Migration Agents as translators must reveal that they are migration agents.

The Code is amended by adding this subclause[17]:

2.22A       A registered migration agent must, when providing translating or interpreting services, include on a prominent part of the translated document the following sequence:

      (a)             the name of the migration agent;

      (b)             followed by the words ‘Migration Agent’s Registration Number’;

      (c)             followed by the agent’s registration number.

It means that agents who do translating may have their work scrutinised more closely.

Agent has duty of candour to RRT

The Federal Court was highly critical of a migration agent in how a refugee application was done. In NAFJ v MIMIA [2003] FCA 91(12.2.03) Conti J concluded:

His oral submission to the Court was.. to the effect that his migration agent Mr Amin had caused him to put to DIMA and to the delegate a false case, contrary to his instructions, though no such submission was articulated in his said affidavit in support of that application filed belatedly in Court. Thus the Applicant’s affidavit was silent as to Mr Amin’s alleged professional misbehaviour in the context of the case put to the delegate. Moreover, the applicant did not explain how it came about that the Applicant came to Australia on what appeared to have been a valid Bangladeshi passport. In summary, the Applicant’s case for review of the delegate’s decision was utterly lacking in substance and merit.

13 In addition to the allegations by the Applicant as to the role undertaken by Mr Kazi in relation to his presentation of a case to the RRT, involving as it did the belated and radically different basis of claim to that presented to the delegate. I draw attention to the following passage in the RRT’s reasons for decision:

“After the hearing had finished and all concerned had left the hearing room, the Tribunal was asked to attend a meeting requested by the interpreter. The interpreter said that he had thought it proper for the Tribunal to know that before the hearing started, outside the hearing room, Mr Kazi had commented within earshot that he was “not interested in letting the hearing proceed” and had told the interpreter that “it would be good for this client if the hearing did not proceed”. The adviser had instructed his client to speak in a fashion that would be hard to understand and had told him also to pretend not to understand the interpreter. He had hinted that the interpreter should co-operate in this process. The Tribunal asked the interpreter.. if he was prepared to set down this matter in writing so that a formal complaint could be taken up by [MARA], but the interpreter said that he feared Repercussions.” …

15 Migration agents are in my opinion subject to duties of and responsibilities as to candour in the presentation of applications for review to the RRT which they prepare, and purport to rely on, in the course of making submissions to the RRT. I assume that the alleged conduct of Mr Kazi has been or will be considered by the appropriate authorities.

The Code of Conduct also states:

2.9                      While a registered migration agent cannot be responsible for misinformation provided by a client, a 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.

But this provision below should not be regarded as stopping a migration agent lodging an application which he or she knows can not succeed but may be a good case of ministerial discretion.

2.17         If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) a registered migration agent:

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

      (b)             must advise the client in writing that, in the agent’s opinion, the application is vexatious or grossly unfounded; and

      (c)             if the client still wishes to lodge the application — must obtain written acknowledgment from the client of the advice given under paragraph (b).

Note   Under section 306AC of the Act, the Minister may refer a registered migration agent to the Authority for disciplinary action if the agent has a high visa refusal rate in relation to a visa of a particular class.

Mr Kazi was disciplined for a number of matters, one of which was the matter referred to by Conti J.  In Kazi v MARA [2006] AATA 42 (20 January 2006) the AAT examined that matter and a number of other issues and concluded:

All in all I can consider that the Applicant is highly deserving of censure for the way in which he conducted his practice. I believe that this censure is best manifested by a period of suspension from practice with hope of rehabilitation rather than the more severe penalty of cancellation.

But in relation to both of those provisions of the Code of Conduct, 2.9 and 2.17, the AAT observed:

In relation to clause 2.9:

1. There is no evidence that the Applicant made any statements in support of an application that he knew to be false. I am satisfied that he put forward statements by his clients that he must have suspected on very strong grounds were false but I cannot find any evidence to justify finding that he encouraged them to make the said statements as opposed to acquiescing in the making and putting forward of the said statements.

In relation to clause 2.17:

The test of what is a vexatious or grossly unfounded application was set out in Re Shi[18] (supra) commencing at para 84. In particular, I refer to point 3 of the summary of the meaning of vexatious by Roden J in Attorney General v Wentworth (1988) 14 NSWLR 481 at 491 (cited in Shi at para 84) namely:

“…if, irrespective of the motive of the litigant, they are obviously untenable or manifestly groundless as to be utterly hopeless.”

1. As pointed out in Re Shi (supra) at para 85, the real test is whether “on its face” the application satisfied the criteria for the visa class.
2. As I understand the submissions of the Respondent, it is not that in the particular visa applications referred to the said applications were on their face untenable but rather it was apparent on the face of the supporting statements that the facts allegedly giving rise to the claim were concocted.
3. Again I find that the Applicant did not breach this particular clause of the Code of Conduct. What he seems to have done is acquiesce to his clients’ instructions to put a certain fact scenario before the RRT when he knew, or ought to have known, that the alleged facts were most likely concocted as they were very similar to the alleged facts in other claims.

The above statements demonstrate that it is not the function of the migration agent to be the decision maker.  The agent is required to put the case as told by the client.  The agent as an advocate can not put material in a visa application which the client has told him or her is incorrect.  But the agent is entitled to put the case as instructed[19] by the client.

It is useful to restate what the law is in relation to lawyers and misleading the court – a good example is this case of Kyle below:

In Kyle v Legal Practitioners’ Complaints Committee at [12] [1999] WASCA 115; (1999) 21 WAR 56, Ipp J (with whom other members of the court agreed) observed:

It is a basic precept of the legal profession that lawyers owe a duty of honesty and candour to the court. It is the general duty of lawyers not to mislead the court by stating facts which are untrue, or mislead the Judge as to the true facts, or conceal from the court facts which ought to be drawn to the Judge’s attention, or knowingly permit a client to deceive the court: see Rondell v Worsley [1969] 1 AC 191; Saif Ali v Sidney Mitchell & Co [1980] AC 198; Tombling v Universal Bulb Co Ltd; Vernon v Bosley [No. 2]; Unioil International Pty Ltd v Deloitte Touche Tohmatsu [No. 2] [1997] 18 WA 190 at 193.

Further Ipp J went on to say in Kyle v Legal Practitioners’ Complaints Committee at [13]:

Lawyers may not, consistently with their ethical duties and duties to the court, prepare and file affidavits known by them to be perjured, whether the affidavits are made by their clients or other witnesses: Myers v Elman [1940] AC 282. In England, the ethical rule is that lawyers should not produce witness statements that they know to be false or where they know that the witness does not believe the statement to be true in all respects. Further, if, after filing a witness statement, a lawyer is put on enquiry as to the truth of the facts stated in the statement, the lawyer should, where practicable, check whether those facts are true. If the lawyer then discovers that the witness statement which has been served is incorrect, the lawyer must inform the other parties immediately, Chancery Guide: February 28, 1995. par 3.7(7). In my view this rule reflects the duties that lawyers in this country owe to the court.

A useful details analysis of all of these principles is found in Legal Practitioners Complaints Committee v McCormack [2009] WASAT 4 (16 January 2009)

In correct information in a visa application

The information provided in the application form must be true and correct in every detail. This is specified in s. 101 of the Migration Act which states:

 A non-citizen must fill in his or her application form in such a way that:

• all questions on it are answered; and
• no incorrect answers are given.

The Act states further at s.105:

• If a non-citizen becomes aware that:
• an answer given in his or her application form; or
• an answer given in his or her passenger card; or
• information given by him or her under section 104 about the form or card; or
• a response given by him or her under section 107;

was incorrect when it was given, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

• Subsection (1) applies despite the grant of any visa.

Remember that you should be careful to ensure that you keep records relating to the following obligations on clients:

• If a visa applicant’s personal circumstances change, so that an answer on a visa application form is no longer correct, the applicant must inform the department in writing of the new circumstances and of the correct answer. Where an application is lodged onshore, the applicant has a duty to advise of a change of circumstances until the visa is granted. If the applicant is offshore, the duty to advise applies before the applicant is immigration cleared i.e. after they have passed through immigration processing at the port of entry to Australia.

Agents have to give information to clients.

There is some tinkering with the obligation to give clients the document – ‘Information on the Regulation of the Migration Advice Profession’.  The change[20] is shown in bold:

3.2A                   Once a registered migration agent has agreed to work for a client, but before commencing that work, the agent must:

      (a)             provide the client with a copy of Information on the Regulation of the Migration Advice Profession; and

      (b)             make a record that the copy has been provided.

That document comes from Reg 9A of the Migration Agents Regulations 1998 which states:

9A           Information booklet

                        The Authority must arrange for a document to be produced, with the title Information on the Regulation of the Migration Advice Profession, that the Authority is satisfied will adequately inform potential clients of a registered migration agent about:

                        (a)        the migration advice profession; and

                        (b)        the functions of the Authority and the legislation regulating the profession; and

                        (c)        what a client can reasonably expect from a registered migration agent; and

                        (d)        complaint procedures.

The document Information on the Regulation of the Migration Advice Profession states (among other things):

If you consider that the advice provided by your registered migration agent was incorrect you may have a right to seek compensation from the registered migration agent, even if that agent did not charge you for the advice.  Registered migration agents are not required to have professional indemnity insurance however the MARA strongly recommends that registered migration agents have professional indemnity insurance.

You may have contractual rights in a civil jurisdiction if you have a dispute in relation to any monies you have paid.

If you have ever on the receiving end of a complaint to MARA, MARA will almost inevitably do a general audit on your practices and will ask the migration agent to provide proof of how each and every client has been given that document.  Proof can be quite simple – it can just be a file note done in hand writing on file – whenever you make such an entry, always date it and make sure the person who has done the file note has printed his or name next to the note.

Agent not a fit & proper person

Here is how the fit and proper person issue arises in relation to the registration of migration agents.

Section 290.      Applicant must not be registered if not a person of integrity or not fit and proper

1.      (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)      the applicant is related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship

The courts and tribunals over the years have applied a test for ‘fit and proper’ from an 19th century English decision of Allinson v General Council of Medical Education & Registration (1894) 1QB 750) (at page 761) as follows the person’s overall conduct would not “…be reasonably regarded as disgraceful or dishonourable by his professional colleagues of good repute and competency..”.

 

In Narendra Prasad v Migration Agents Registration Authority [2002] AATA 423 (3.6.02), the AAT reviewed the handling of a skilled visa application and concluded:

With respect to Mr Prasad’s financial records and invoicing, the impression gained by the Tribunal is also one of some disorganisation. Finally, the Tribunal observes that Mr P’s  file notes and correspondence are truncated in character.

1. Having made these findings, the Tribunal must consider whether it is “comfortably satisfied” on the basis of all the evidence before it, that Mr P is not a person of integrity or is otherwise not a “fit and proper person to give immigration assistance”. Having regard to the meaning of the word “integrity” and, in particular, to its exposition by D P Purvis in Re SRH (supra) as “soundness and moral principle and character; uprightness; honesty”, the Tribunal is not satisfied on the basis of the evidence and its findings that Mr P is not a person of integrity in the terms expressed by D P Purvis. However, the Tribunal’s findings do raise questions about whether Mr P is able to fulfil the functions and responsibilities of a migration agent and whether, therefore, he is a fit and proper person to give immigration assistance. The Tribunal has concerns about his record keeping and management of his business, about the performance of his financial duties, in particular, as to his account keeping and invoicing, and about whether he is exercising effective control of his business for the purpose of giving immigration advice and assistance.

Whilst individually, particular action or inaction by Mr P may not have been of great significance and may have been the subject only of criticism, when considered as a whole, in the context of Global’s business arrangements, these actions indicate that Mr P was not running his business of giving immigration assistance efficiently and effectively in a manner which should be expected from a Migration Agent. The Tribunal is mindful of the fact that much of the evidence at the most recent hearing related principally, to a complaint by Mr T who has not been shown to have suffered any significant detriment as a result of Mr P’s  conduct. However, the light which this complaint throws on the way in which Mr P conducts his business, when considered in the context of the other evidence, leads the Tribunal to conclude that it is “comfortably satisfied” that he is not a “fit and proper person to give immigration assistance”, and that the Respondent’s decision to refuse Mr P’s application for registration as a migration agent should be affirmed.

Agent – fit and proper person

In Mishalow and Migration Agents Registration Authority [2002] AATA 411 (20.5.02), the AAT overtuned a finding that an agent was not a fit and proper person.  The AAT was rather pungent in its conclusion:

What constitutes a person who is a fit and proper person as being discussed in cases relating to tax agents, auditors and on other occasions by the Tribunal in relation to migration agents, see for example Zuliang Wei v Migration Agents Registration Board unreported Tribunal decision 12431. As was said in that case the test has to be having regard to the seriousness of the matters raised on principles of Briginshaw v Briginshaw 60 CLR 336 and reference was also made to the words of Hill J in Davies v ASC 131 ALR 295 at 305::

“The phrase “fit and proper person” is a familiar one in the context of qualifications for officers or vocations. Discussing the phrase in the context of licences to use vehicles for the purposes of interstate trade Dixon CJ, Matheunan & Webb JJ said in Hughes and Vale Pty Ltd v NSW No 2 (1955) 93 CLR 127 at 156-7 “but their very purpose is to give the widest scope for judgment and indeed for rejection fit or idoneus with respect to an office is said to involve 3 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 neglected”. Cook”.

When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.”

Hill J then continued:

“As I observed in Statos v Tax Agents Board of NSW 90 ATC 4950 at 4959 the content of what is necessary to constitute a person, a fit and proper person to occupy a particular office or pursue a particular vocation will vary having regard to the office or vocation under consideration. Thus the characteristics required to show fitness as a tax agent were expressed by Davies J in re Sue v Tax Agents Board Sth Aust 82 ATC 4284 at 4286 as requiring that person to be a person of good reputation, has a proper knowledge of taxation laws, is able to prepare income tax returns competently and is able to deal competently with any queries which may be raised by officers of the taxation department.

He should be a person of such competence and integrity that others may entrust their taxation affairs to his care. He should be a person of such reputation and ability that officers of the taxation department may proceed upon the footing that the taxation returns lodged by the agent have been prepared by him honestly and competently.”

In this matter there is no allegation that the applicant has in any way been fraudulent and misled clients. What has been referred to is a simple lack of candour and we accept that a person can mislead by a failure to mention but we must assess whether the applicant was attempting to mislead as opposed to simply answering by giving the minimum amount of information required. There is nothing in the applicant’s answers provided which was untrue so the question for us is, does the information supplied demonstrate a lack of candour having regard to the dictionary meaning of the term and is that lack of candour sufficient to designate the applicant not a fit and proper person?

As was stated by DP McMahon in Peng v DIMA unreported decision the administration of immigration programs frankness and truth are of primary importance. Where the deputy president speaks of frankness and truth it can be regarded with the opposite which is as we see it deceit. In this matter the applicant on the test we have propounded by giving the answers she did has not demonstrated a lack of candour such as to render her not a fit and proper person to practice as a migration agent, and therefore, the decision under review will be set aside.

The only matter we would say is it is an unfortunate matter here where a person’s business has been ruined by a decision which to us was made on very flimsy bases and it is unfortunate that this is a jurisdiction in which we cannot award costs.