FEDERAL COURT OF AUSTRALIA

Kraues v Office of Migration Agents Registration Authority [2019] FCAFC 52

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

THE COURT:

OVERVIEW

1    On 28 November 2012, the Migration Agents Registration Authority (the first respondent) received a complaint made by Mr Mark Karu, who had been employed by Corestaff NT Pty Limited to work in Australia as a miner for one of Corestaff NT’s clients. Fourteen other miners were a party to the complaint. In summary, the complaint was that the miners had paid Mr Kurt Kraues (who was then a registered migration agent) (the appellant) an amount of approximately $200,000 in professional fees but received no services in return.

2    After conducting an investigation, the Authority became satisfied under s 303(1)(f) of the Migration Act 1958 (Cth) that Mr Kraues was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance. It also became satisfied, in accordance with s 303(1)(h), that Mr Kraues had engaged in conduct in breach of his obligations under cll 2.1, 2.23, 5.1, 5.5, 7.1, 7.2, 7.4 and 7.5 of the Code of Conduct for Migration Agents.

3    On 24 October 2014, the Authority notified Mr Kraues of its decision to cancel his registration as a migration agent by removing his name from the register of migration agents under s 303(1)(a) of the Act. Attached to the notification was a “decision record” which set out the Authority’s reasons for its decision.

4    Mr Kraues sought review of the Authority’s decision in the Administrative Appeals Tribunal. The Tribunal affirmed the Authority’s decision on 23 December 2016.

5    Mr Kraues brought an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). On 11 May 2018, the primary judge dismissed the appeal. Mr Kraues now appeals from her Honour’s decision.

6    The appeal should be dismissed for the reasons given below.

BACKGROUND

7    Corestaff NT was an “approved sponsor” under Div 3A of Pt 2 of the Act. It entered into a “work agreement” with the Commonwealth effective from 21 April 2011. This agreement authorised the approved sponsor, in particular circumstances, to recruit, employ or engage the services of people holding Temporary Work (Skilled) subclass 457 visas. The agreement permitted Corestaff NT to use a migration agent in carrying out its rights and obligations, but required it only to use the services of a migration agent who was registered with the Authority. At this time, Mr Kraues of “Kraues Law” (Kraues Pty Ltd) represented the “Corestaff Group” in respect of its Australian immigration matters. Mr Kraues was the sole director and shareholder of Kraues Pty Ltd.

8    A number of miners came to Australia from Papua New Guinea in May 2012 holding 457 visas. Those miners had been offered and accepted employment with Corestaff NT in Australia. It is sufficient for present purposes to outline the position with respect to one of the miners by way of example. An offer of employment provided for a base rate of pay of $120,000 per annum. The miner’s services were to be “on-hired” to Corestaff’s client organisation. Corestaff NT would pay the migration agent professional fees for the miner’s 457 visa application. The miner would be responsible for migration agent fees for an “employer sponsored permanent resident application”.

9    After having worked for some time, the miner received a letter from Corestaff NT dated 23 November 2012 which included:

Due to the severe downturn in the mining industry our client has advised CoreStaff your services are no longer required.

As you are aware your last day of work was the 18th October 2012.

You had requested CoreStaff to endeavour to find you another position rather than immediately cancelling your nomination and we had agreed to this request and to pay you at a nominated rate.

We have unfortunately exhausted all avenues and will now cancel your nomination.

10    All the miners’ services were ultimately terminated. They finished work on differing days.

11    The miners alleged that they paid Mr Kraues substantial amounts in professional fees for assistance to become Australian permanent residents but received no services in return.

12    Each miner signed a document which authorised Corestaff NT to deduct payments from their salary. By way of example, one authority provided for the deduction from the miner’s salary of a payment of $825 on 1 November 2011, followed by 18 monthly instalments of $357.50 commencing on 1 December 2011. Those amounts were to be paid into the “Kraues Law Client Trust Account”.

13    The miners each also entered into what was referred to as a “retainer agreement” in standard form with Mr Kraues, and executed a document entitled “Terms and Schedule of Fees”. This document specified that the payment method was by way of “salary deduction” and specified the frequency of payments (which was either weekly or monthly). It noted that the amounts were to be “deducted from Corestaff Salary and transferred into Kraues Law Client Trust Account”. The document included:

g    (i) The Agent will hold all non-retainer agreement fees paid in advance in the client’s trust account (ii) After the Agent has completed each block of work and issued an invoice which sets out the particulars and charge made of each service performed the Agent will be entitled to withdraw the fees relating to that block from the client’s trust account.

…

4. TERMS OF ENGAGEMENT

i     (i) The contractual relationship is between the client and Kraues Pty Ltd t/a Kraues Law. (ii) The client has appointed Kraues Law as its agent. (ii) [sic] For as long as circumstances permit at any given time, the clients [sic] responsible agent (RMA#1169953) is to provide immigration assistance services pursuant to the terms of this agreement. (iii) The agent is able to advise the client about immigration law at a particular point in time but is unable to predict future changes in the law. (iv) The client will not sell property, leave employment, commence or finalise any business or personal affairs in reliance on any information or immigration assistance received from the agent. (v) The agent will not be liable for any loss arising from changes to a law or a circumstance affecting the client.

14    As mentioned, Mr Karu made a complaint to the Authority, sent by email on 27 November 2012. Fourteen other miners joined the complaint. The complaint was identified in the following way:

The Recruitment Company who sponsored us to Australia had been advised by Kraues Law to start deducting money to cover our PR Application. This was done with $825 up front and 78 weekly payments of $82.50. As we have had no communication from Kurt Kraues during our stay in Australia, we have decided to terminate our agreement with Kurt and deal with a local Agent. We have all contacted Kurt via email, text message, phone, and in person but Kurt has ignored our attempts at communication. We have met with Kurt once to organise our monies repaid but he refused to answer our direct questions. Our Sponsorship in Australia has now been terminated and we’ll be going back to PNG. The money we have paid to Kurt would help us repatriate. We hope MARA would help us with this issue.

15    The complaint identified that the agent had been paid approximately $200,000.

16    In its reasons for decision, the Authority articulated the complaint in the following way:

The complaint alleged that:

•    the Agent advised Corestaff to make deductions from the salary payments to the miners to cover permanent residence applications. There was an initial payment of $825 followed by 78 weekly payments of $82.50. The agreement indicated that the deduction would be made from a miner's salary. The deductions commenced from 1 May 2012. The total fee payable under the agreement was $7,260 including GST;

•    the miners’ employment was terminated by Corestaff at varying dates in October and November 2012. The miners then terminated their agreements with the Agent as they would no longer be eligible to apply for permanent residence in Australia. The miners had had no direct communication with the Agent as everything was arranged by Corestaff;

•    they wanted to organise a refund of the fees they paid to the Agent, but the Agent ignored their attempts to contact him. When they did get to meet the Agent, the Agent refused to answer their questions;

•    the miners are seeking a refund of the fees paid to the Agent as they have not received any services from the Agent.

17    Mr Kraues was informed of the complaint at the latest by 5 December 2012. The Authority sought to obtain information and resolve the complaint informally with Mr Kraues. Mr Kraues, however, requested that the complaint be put in a notice under s 308 of the Act. Accordingly, on 15 January 2013, the Authority issued him with a s 308 notice. The notice identified the complaint in clear and precise terms, attached a copy of the complaint, posed a number of questions to Mr Kraues and sought various documents from him. The notice summarised the complaint in the following way:

The complaint alleges that:

•    You advised Corestaff to make deductions to cover permanent residence applications. There was an initial payment of $825 followed by 78 weekly payments of $82.50

•    The miners terminated their agreements with you as they had no communication with you since they arrived in Australia.

•    They wanted to organise a refund of the fees paid to you, but you ignored their attempts to contact you. When they did get to meet you, you refused to answer their questions.

•    Their sponsorships have been terminated and they are seeking a refund of the fees paid to you.

18    Mr Kraues did not provide a substantive response to this notice at this time, asking the Authority to “identify any alleged breach of the Code of conduct which would enliven the exercise of powers under section 308”.

19    The Authority responded:

Section 308 of the Migration Act provides the Office of the MARA with information gathering powers. It is not a requirement that the exercise of this power be linked to a potential breach of the Code of Conduct.

If at some later stage the Office of the MARA considers that you may have potentially breached any of the clauses in the Code you will be advised of this and given the opportunity to respond. That process is in accordance with or [sic] procedural fairness obligations.

I would like to take this opportunity to remind you that your response to the s308 notice is required by no later than 29 January 2013.

20    Mr Kraues replied to the Authority suggesting that the Authority’s proposed use of s 308 would be an abuse of process.

21    On 12 February 2013, after initial investigation of the complaint, the Authority advised Mr Kraues that the circumstances raised in the complaint did not relate to the provision of immigration assistance, and as such the complaint was not within the jurisdiction of the Authority. On that basis, the complaint was closed.

22    On 19 June 2013, the Authority notified Mr Kraues that the complaint had been reopened. It stated:

On 12 February 2012 the Authority, following some initial investigation of the complaint, advised you that the circumstances raised in this complaint did not relate to the provision of immigration assistance, and as such were outside of the jurisdiction of the Authority. On that basis the complaint was closed.

Following a review of the complaint, the Authority considers the circumstances do relate to the provision of immigration assistance. Mr Karu and the other miners had formed an intention to apply for permanent residence and had engaged your services as a migration agent with that aim in mind. The retainer agreements (‘agreement’) signed by the miners anticipate that an application for a visa would be lodged and that immigration assistance would be provided by you. On this basis the complaint has been re-opened.

23    This letter requested, under s 308, answers to four questions. It requested the answers be given in the form of a statutory declaration. It also requested a response to the 15 January 2013 notice in the form of a statutory declaration.

24    Mr Kraues sought a number of extensions to respond. After granting a number of extensions, the Authority, on 27 November 2013, granted a further limited extension. It stated:

A registered migration agent is obliged under the Code of Conduct to keep records of their clients’ account. The s 308 notice requested that you provide documents relating to your clients’ account. Most of the specific questions put to you in the s308 notice also related to your clients’ account. It is therefore expected that you should be able to respond to the s308 notice …

25    The Authority advised Mr Kraues that a response was required by 11 December 2013, failing which it would consider issuing a notice under s 309.

26    On 11 December 2013, Mr Kraues provided a response bearing the heading “Commercial in Confidence”. It responded to the four questions which had been posed in the s 308 notice given on 19 June 2013 in the following way (errors in original):

1. “Could you please explain your contractual arrangement with Corestaff in relation to the miners.” The premise of the question is not applicable to the retainer agreement.

2. “What type of account are the clients ‘monies paid to you by the miners currently held in?” The premise of the question is not applicable to the retainer agreement.

3. “What is the current status of each of the miner’s monies in that account?” The premise of the question is not applicable to the retainer agreement.

4. “Have any monies been withdrawn from the clients’ account relating to any of the miners? If so, please provide copies of the invoices to each miner relevant to each withdrawal.” Yes, retainer payments have been withdrawn in accordance with the terms of the miner’s retainer agreement

27    Mr Kraues also stated:

The terms of the retainer agreement, retain my services as a migration agent ‘to be available’ to provide immigration assistance over a twenty-four months period and do not relate to ‘the actual provision’ of the assistance … Under the terms of the retainer agreement, any subsequent immigration assistance, if so provided, is charged on a time and attendance basis, in accordance with the hourly rate specified in the agreement, and requiring a separate service agreement that specifies the type of work to be performed. The circumstances, with reference to the terms of the retainer agreement, do not relate to the provision of immigration assistance and brings into question the jurisdiction of the authority to re-open the complaint.

…

The terms of the retainer agreement distinguish the type of monies that may be paid by a client as a fee for service or retainer, it specifies that monies other than a retainer payment must be held in the client account subject to provisions of the Code. With reference to the retainer agreement the payments made by the miners are a retainer.

28    Mr Kraues also provided certain documents. This included letters dated 11 December 2012 from Kraues Law to various miners, addressed care of Corestaff NT, headed “Statement of Account – Retainer Agreement for Immigration Assistance”. By way of example, one such letter included:

I refer to your recent correspondence and list below a statement of your account.

There appears to be some confusion regarding the nature of our agreement. The total retainer fee, although structured to be paid weekly, is fully payable by you under the agreement. Termination of the agreement by you, and the appointment of another agent, does not extinguish the outstanding balance. Please refer to the terms of engagement for Item 4 (j) (v).

I confirm the total fees outstanding under your retainer agreement are $4290.

Due to your current personal circumstance, if you are unable to continue to pay the weekly installments [sic] of $82.50, please advise what alternative payment arrangement you have in mind.

29    It will be observed that Kraues Law accepted in that letter that it had received “retainer fees” pursuant to written salary deductions. Mr Kraues had, by this time, received notice of the complaint which had been sent to the Authority on 27 November 2012. Kraues Law was demanding from the miners payment of the balance of “retainer fees” said to be owing following termination of the agreement between Mr Kraues and the miners.

30    On 21 February 2014, the Authority issued a further notice under s 308. It stated that it did not consider Mr Kraues’ response of 11 December 2013 was adequate in either responding to the questions or providing documents. As to documents, the notice stated:

You also did not adequately respond to requests for supporting documentation. In your statement of response you indicated that you were providing the following documents:

•    client account statements for each miner

•    ‘consolidated account transaction detail up to 22/10/2012’

•    A statement of account for each miner

•    A payroll deduction transaction for each miner

However, only the statements of account and the payroll deduction transactions were actually provided. These were provided in two folders attached to your email. You were advised of this on 12 December 2013 by email and requested to resend these documents however you did not respond to this request.

The documents provided are not sufficient to satisfy the requirements of clauses 5.5 and 7.1 of the Code. The statement of accounts for instance gave no indication of what services were actually provided.

On the basis of the issues discussed above a further notice under section 308 is being issued.

31    The notice requested the following documents:

Clients’ account (referred to as client trust account in the agreement) statements relevant to Mr Karu and the other miners who have or had similar agreements to Mr Karu’s, including:

•    all financial records;

•    receipts for payments by miners to your clients’ account;

•    for agreements that have been terminated, final statements of service, noting refunds made as no services were provided;

•    copies of invoices to each miner relevant to withdrawals made from the clients’ account.

32    The notice advised that the miners who were party to the present complaint had said they were part of a much larger group of Papua New Guinean nationals who had come on 457 visas and that information provided by the Department indicated that Mr Kraues had also acted in those matters. The scope of the notice had therefore been “extended to include all clients who have or had a similar agreement to Mr Karu’s”. The notice asked:

1    Could you please explain your contractual arrangement with Corestaff in relation to the miners.

2    Could you please list all of your current or former clients with similar agreements to Mr Karu’s.

3    What type of account are the clients’ monies paid to you by the miners currently held in?

4    What is the current status of each of the miners’ monies in that account?

In your response you confirmed that you had made withdrawals from the clients’ account.

5.    Could you please provide the detail of any withdrawals made and the services that were provided for those withdrawals? Please ensure that you provide copies of the invoices to each miner relevant to each withdrawal.

Requests for refunds

6.    Please provide the details of any requests for refunds that have been made by the miners?

7.    Please provide the details of the outcome of any refund requests?

Please note that you had specifically requested that the complaint be put to you under section 308 of the Act.

However your responses to the two previous section 308 notices were not given in the form of a statutory declaration as required. You are again reminded to ensure that your response to this notice is in the form of a statutory declaration.

33    On 17 April 2014, Mr Kraues sent an email to the Authority advising that his response to the notice was attached. The email did not have an attachment. The Authority replied on 22 April 2014 saying that no document was attached to his email. Mr Kraues did not respond to that email.

34    Rather, Mr Kraues commenced proceedings in the Federal Circuit Court and filed an affidavit sworn by him on 30 April 2014. He deposed to not being able to understand or give a sensible meaning to the requests made in the 21 February 2014 notice. He stated that it would involve considerable time and inconvenience to respond. He stated that his agreement with the miners required nothing more of him than his “availability to give immigration assistance”. The affidavit made it clear that he was seeking an interlocutory injunction to prevent action being taken against him by the Authority under Pt 3 of the Act.

35    On 16 September 2014, the Authority sent Mr Kraues a notice under s 309(2) of the Act advising it was considering cautioning him, or suspending or cancelling his registration under s 303(1). Reasons were identified for issuing the notice and Mr Kraues was invited to respond by 14 October 2014.

36    On 14 October 2014, Mr Kraues – by a letter from his then solicitor – sought an extension of time in which to reply to the s 309(2) notice on the basis that Mr Kraues “intends to seek a judicial review” of the decision to exercise those powers, and proceedings were already on foot in the Federal Circuit Court in relation to “the purported exercise of powers under section 308”. He also indicated that an injunction was to be sought in the Federal Circuit Court seeking “inter alia, a stay on the requirement to reply until resolution of the section 308 matters”.

37    The Authority allowed Mr Kraues an extension of time to respond to the s 309(2) notice until 22 October 2014. Mr Kraues did not respond.

38    On 24 October 2014, the Authority issued its decision, referred to above, cancelling Mr Kraues’ registration.

39    On 5 November 2014, Mr Kraues lodged with the Tribunal the application for review that was the subject of the appeal to the primary judge.

40    On 13 November 2014, Mr Kraues was granted leave to file a Notice of Discontinuance in the Federal Circuit Court.

STATUTORY REGIME

41    Part 3 of the Act is entitled “Migration agents and immigration assistance”. Its operation so far as is necessary to consider the issues in this appeal is as follows. Sections 280 and 281 prohibit a person who is not a registered migration agent from giving, or receiving a fee for giving, immigration assistance. A breach of these prohibitions is punishable as a criminal offence.

42    The meaning of the term “immigration assistance” is provided by s 276, which identifies when, for the purposes of Pt 3, “a person gives immigration assistance”:

(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.

(2)      For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:

(a)      preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or

(b)      advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or

(c)      representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.

(2A)      For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:

(a)      preparing, or helping to prepare, a request to the Minister to exercise his or her power under section 351, 417 or 501J in respect of a decision (whether or not the decision relates to the other person); or

(aa)      preparing, or helping to prepare, a request to the Minister to exercise a power under section 195A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person); or

(b)      advising the other person about making a request referred to in paragraph (a) or (aa).

(3)      Despite subsections (1), (2) and (2A), a person does not give immigration assistance if he or she merely:

(a)      does clerical work to prepare (or help prepare) an application or other document; or

(b)      provides translation or interpretation services to help prepare an application or other document; or

  (c)      advises another person that the other person must apply for a visa; or

(d)      passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.

(4)      A person also does not give immigration assistance in the circumstances prescribed by the regulations.

43    Part 3 contains provisions for the registration of migration agents. Section 290 of the Act relevantly provides:

(1)    An applicant must not be registered if the [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; …

44    Part 3 provides for standards of conduct to be set, with which registered migration agents must comply. Section 314 provides:

Code of Conduct for migration agents

  (1)     The regulations may prescribe a Code of Conduct for migration agents.

 (2)     A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.

45    The Code is prescribed by Schedule 2 to the Migration Agents Regulations 1998 (Cth). The Code made under s 314 contained 11 parts, and relevantly included:

Part 1 – Introduction

1.10     The aims of the Code are:

(a)     to establish a proper standard for the conduct of a registered migration agent;

(b)     to set out the minimum attributes and abilities that a person must demonstrate to perform as a registered migration agent under the Code, including:

    (i)     being a fit and proper person to give immigration assistance;

    (ia)     being a person of integrity and good character;

(ii)     knowing the provisions of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, in sufficient depth to offer sound and comprehensive advice to a client, including advice on completing and lodging application forms;

(iii)     completing continuing professional development as required by the Migration Agents Regulations 1998;

    (iv)     being able to perform diligently and honestly;

    (v)     being able and willing to deal fairly with clients;

(vi)     having enough knowledge of business procedure to conduct business as a registered migration agent, including record keeping and file management;

    (vii)     properly managing and maintaining client records;

(c)     to set out the duties of a registered migration agent to a client, an employee of the agent, and the Commonwealth and its agencies;

(d)     to set out requirements for relations between registered migration agents;

(e)     to establish procedures for setting and charging fees by registered migration agents;

(f)     to establish a standard for a prudent system of office administration;

(g)     to require a registered migration agent to be accountable to the client;

(h)     to help resolve disputes between a registered migration agent and a client.

...

1.12     However, the Code imposes on a registered migration agent the overriding duty to act at all times in the lawful interests of the agent’s client. Any conduct falling short of that requirement may make the agent liable to cancellation of registration.

…

Part 2 – Standards of professional conduct

2.1     A registered migration agent must always:

(a)     act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client; and

  (b)     deal with his or her client competently, diligently and fairly.

However, a registered migration agent operating as an agent in a country other than Australia will not be taken to have failed to comply with the Code if the law of that country prevents the agent from operating in compliance with the Code.

…

2.23     A registered migration agent must take all reasonable steps to maintain the reputation and integrity of the migration advice profession.

…

Part 5 – Fees and charges

5.1     There is no statutory scale of fees. However, a registered migration agent must set and charge a fee that is reasonable in the circumstances of the case.

…

5.5     A registered migration agent must be aware of the effect of section 313 of the Act, and act on the basis that:

(a)     the agent is not entitled to be paid a fee or other reward for giving immigration assistance to a client unless the agent gives the client a statement of services that is consistent with the services, fees and disbursements in the Agreement for Services and Fees mentioned in clause 5.2; and

Note: The statement of services may be an itemised invoice or account. See clause 7.2 and 7.4.

  (b)     a statement of services must set out:

(i)     particulars of each service performed; and

(ii)    the charge made in respect of each such service; and

(c)     a client is entitled by the Act to recover the amount of a payment as a debt due to him or her if he or she:

(i)     made the payment to the agent for giving immigration assistance; and

(ii)     did not receive a statement of services before making the payment; and

(iii)     does not receive a statement of services within 28 days after a final decision is made about the visa application, cancellation review application, nomination or sponsorship to which the immigration assistance related.

…

Part 7 – Financial duties

7.1     Subject to clause 7.1B, a registered migration agent must keep separate accounts with a financial institution for:

  (a)     the agent’s operating expenses (the operating account); and

(b)     money paid by clients to the agent for fees and disbursements (the clients’ account).

…

7.2     A registered migration agent must hold, in the clients’ account, an amount of money paid by a client for an agreed block of work until:

(a)     the agent has completed the services that comprise the block of work; and

(b)     an invoice has been issued to the client for the services performed in accordance with the Agreement for Services and Fees mentioned in clause 5.2, showing:

(i)     each service performed; and

(ii)     the fee for each service.

7.3     The registered migration agent may, at any time, withdraw money from the clients’ account for disbursements that are required to be paid to the Department, or any other agency, for the client.

7.4    A registered migration agent must keep records of the clients’ account, including:

(a)     the date and amount of each deposit made to the clients’ account, including an indication of the purpose of the deposit and the client on whose behalf the deposit is made; and

(b)     the date and amount of each withdrawal made in relation to an individual client, and the name of each recipient of money that was withdrawn; and

  (c)     receipts for any payments made by the client to the agent; and

  (d)     statements of services; and

  (e)     copies of invoices or accounts rendered in relation to the account.

7.5     A registered migration agent must make available for inspection on request by the Authority:

(a)     records of the clients’ account; and

(b)     records of each account into which money paid by a client to the agent for fees and disbursements has been deposited.

46    Section 308 of the Act gives the Authority powers to compel a registered migration agent to make a statutory declaration in answer to questions in writing, to appear before the Authority to answer questions, and to provide the Authority with documents or records.

47    Part 3 contains provisions for disciplining registered migration agents. Section 303 includes:

(1)    The [Authority] may:

(a)    cancel the registration of a registered migration agent by removing his or her name from the register; or

(b)    suspend his or her registration; or

(c)    caution him or her;

if it becomes satisfied that:

…

(f)    the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or

…

(h)    the agent has not complied with the Code of Conduct prescribed under section 314.

…

48    The primary judge noted, at J[17], that “the purpose of the disciplinary powers conferred by s 303 is protection of the public and not punishment as such”.

49    If the Authority does make a decision under s 303, it must give notice of, and set out the reasons for, the decision: s 305. The Authority must make a statement about the decision available in the prescribed way under s 305A of the Act, and may inform clients of the migration agent under s 305B. The word “client” in s 305C has the same meaning as given by s 306C. Section 306C is referred to later in these reasons. There is no general definition of “client”.

50    The functions of the Authority are set out in s 316 of the Act:

(1)    The functions of the  [Authority] are:

(a)      to deal with registration applications in accordance with this Part; and

(b)      to monitor the conduct of registered migration agents in their provision of immigration assistance and of lawyers in their provision of immigration legal assistance; and

(c)      to investigate complaints in relation to the provision of immigration assistance by registered migration agents; and

(d)      to take appropriate disciplinary action against registered migration agents or former registered migration agents; and

(e)      to investigate complaints about lawyers in relation to their provision of immigration legal assistance, for the purpose of referring appropriate cases to professional associations for possible disciplinary action; and

(f)      to inform the appropriate prosecuting authorities about apparent offences against this Part or Part 4; and

(g)      to monitor the adequacy of any Code of Conduct; and

(h)      such other functions as are conferred on the Authority by this Part.

51    Section 317 confers power on the Authority “to do all things necessarily or conveniently done for, or in connection with, the performance of its functions”.

52    The purpose of the regime, as the primary judge observed at J[10], is to protect non-citizens from incompetent and unscrupulous advisers: Cunliffe v The Commonwealth (1994) 182 CLR 272 at 294 (Mason CJ); see also 314 (Brennan J), 333 (Deane J), 358-359 (Dawson J) and 394 (McHugh J).

the tribunal

53    At Mr Kraues’ request, the Tribunal issued to Corestaff NT a summons to produce documents dated 19 March 2015. That summons required production of:

All documents and records detailing transfer of monies via Corestaff accounts to the Applicant pursuant to the relevant ‘Terms and Schedule of Fees: Migration Agent Regulation (1998)’ said to be the payment for block of work under the retainer agreement with the following miners: [42 names identified].

54    On 22 September 2015, Mr Seigel (the General Manager (WA) of Corestaff) emailed a bundle of documents to the Tribunal. These documents consisted primarily of the signed authorisations given by the miners for Corestaff to deduct instalments from their salary for payment to “Kraues Law Client Trust Account”, with the payment remittance to be emailed to kurt@kraues.com.

55    The Authority filed a document entitled amended statement of facts, issues and contentions (ASFIC) on 7 October 2015. Despite its name, it was in fact a supplementary statement of facts, issue and contentions, stating that it was to be read with the original statement of facts, issues and contentions. It stated, in substance, that the ASFIC related to additional financial information before the Tribunal which came about as a result of documents produced by Corestaff NT in response to the summons for production. It stated that information was incomplete and foreshadowed that the Authority would request Corestaff NT to complete the information. The ASFIC contained a table (Attachment A) said to demonstrate Mr Kraues’ “known reliance” on the retainer agreements to retain monies from the miners. The summary table indicated that the Authority contended that Mr Kraues had received in excess of $91,533.00 in instalments without having provided any immigration assistance.

56    On 23 October 2015, Mr Kraues filed his statement of facts, issues and contentions. This document did not suggest that Mr Kraues had not received amounts of money in relation to the miners; rather it was principally directed to an assertion that there was not a “cognizable client relationship sufficient to invoke Section 306(c) [sic]”. It included a submission that a “client relationship cannot be established solely by virtue of the receipt of money”.

57    Mr Seigel affirmed an affidavit on 10 November 2015. He stated that he had been shown Attachment A to the ASFIC and been asked to update and complete the information. He stated that Corestaff’s records indicated that a total of $205,377.50 in deductions from 66 employees had been paid by Corestaff to Mr Kraues. Mr Seigel annexed a summary (Corestaff Summary) of those payments which identified each of the employees concerned, identified their payroll ID, the date and amount of the initial deduction, the period over which further instalments were deducted, the amount of the instalments, and the total amount deducted from the miners’ wages. The Corestaff Summary was also called Attachment A and was evidently prepared from Attachment A to the ASFIC.

58    The Tribunal recorded at T[38]:

After several preliminary conferences, Mr Kraues’ application was listed for hearing on 26 and 27 November 2015. On 11 November 2015, Mr Joel sought an adjournment on the ground of “totally new evidence” provided by the Authority which “utterly changes” the case.

59    Mr Joel submitted, at a directions hearing held on 18 November 2015, that the written statements of witnesses to be called by the Authority included matters not previously raised and he also sought a preliminary hearing on a jurisdictional issue. The final hearing was adjourned and preliminary argument on the Tribunal’s jurisdiction was heard and determined, the Tribunal observing at T[40]:

Considering that it was Mr Kraues who sought the review, the assertion that the Tribunal had no jurisdiction to determine his application made little apparent sense. However, the matter was listed for preliminary argument on 26 February 2016 and parties were directed to file written submissions.

60    The jurisdictional issue raised by Mr Joel was whether the Tribunal could “make a new decision”. He submitted the Tribunal could not deal with the matter because Mr Kraues did not provide immigration assistance and the necessary “nexus” between his conduct and the power of the Authority and the Tribunal was not established: T[41]. The Tribunal recorded at T[44]:

The submission concerning jurisdiction amounts to saying that s 303 of the Act and the Code of Conduct cannot operate unless immigration assistance has been provided. In effect, that would allow a migration agent to avoid the power given to the Authority (and so the Tribunal) by failing to do the very thing he or she was engaged to do. As I understand it, that is precisely what Mr Kraues seeks to do.

61    The Tribunal rejected Mr Joel’s submissions, stating at T[46] to [48]:

By s 317, the Authority has a broad power to “do all things necessarily or conveniently done for, or in connection with, the performance of its functions”.

The Authority has power to investigate complaints in relation to the provision of immigration assistance by registered migration agents. It does not rely on the actual provision of immigration assistance. The complaint may be – as it was here – that the agent failed to provide that assistance.

Nor does a finding that an agent has breached his or her obligations under the Code of Conduct rely on the provision of immigration assistance.

62    The Tribunal noted, at T[49], that it had jurisdiction even if the Authority’s decision was void or voidable, referring to Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307. It concluded, at T[50] to [52]:

Mr Kraues disagrees with the Authority’s decision. He is entitled to seek review by the Tribunal. He has done so. It is, without doubt, a decision reviewable by the Tribunal. If the Tribunal concludes that the Authority had no jurisdiction to make that decision, it can set it aside in accordance with subsection 43(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

As for a declaration, Mr Joel apparently seeks to have the Authority’s decision overturned not by merits review but by a declaration of invalidity which the Tribunal has no power to make. It has only the powers conferred by statute. It has no power to make declarations and, in particular, no power to make the declaration sought.

In any event, whether or not Mr Kraues provided immigration assistance to the complainants is not itself the question before the Tribunal, although, plainly, it is relevant. The question is whether his registration should be cancelled (or suspended or a caution given) because he [is] “not a person of integrity or is otherwise not a fit and proper person to give immigration assistance” or has not complied with the Code of Conduct: s 303(1).

63    In an affidavit affirmed on 13 July 2016, Mr Joel annexed the documents which he said had been produced as at that time in answer to the summons to produce. Mr Joel stated that there had been no production of financial records, as purportedly requested by the summons. He stated:

Such records are critical to the evidentiary analysis as to the meaning of the [Retainer] Agreement … The character of funds transmitted is in part determinative of the character of the [Retainer] Agreement.

64    This affidavit did not state that it was in issue that Mr Kraues had received amounts deducted from the miners’ salary. Indeed, the paragraph above implies that there was no issue in that respect.

65    The final hearing before the Tribunal commenced with two days of evidence in April 2016. The hearing resumed on 15 August 2016 and Mr Seigel gave evidence by videolink from Western Australia.

66    Before the hearing resumed, Mr Joel filed submissions dated 12 August 2016. In those submissions he stated that the Tribunal had identified, orally, that the central issues were: (a) why Mr Kraues retained the client monies and (b) why were withdrawals made (presumably meaning: why were deductions made from miners’ salaries). Mr Joel submitted that these issues exclude from consideration the question of whether there was “sufficient, or indeed any admissible evidence with respect to the transmission of client monies” to Mr Kraues.

67    Mr Joel also submitted that the summary tables (Attachment A to the ASFIC and the Corestaff Summary) could not be accepted as a substitute for production of the underlying records requested in the summons, that such a procedure was unfair, that the financial documents were being concealed, and that Mr Kraues was entitled to be made aware of the relevant documents.

68    In the course of examination in chief on 15 August 2015, Mr Seigel explained that the Corestaff Summary was provided by the Accounts Department of Corestaff and that:

… It’s moneys that were deducted via a deduction authority that was signed by the employees that was paid into Mr Kraues’ account. It was supplied by Mr Kraues for works done in relation to the 457 employees’ permanent residency applications …

Well, what I can confirm to you is that a total of $205,377.50 was in total from the named employees was deducted via a signed deduction authority and it was distributed and paid into Mr Kraues’s [sic] account. That’s what our admin department has on record, and it’s been audited and all the rest of it, so they’re the facts…

69    The following evidence was also given by Mr Seigel :

MR LEERDAM (solicitor for the Authority): … the question was, in relation to the remainder of the miners for whom NDS appears next to their name and for which moneys have been recorded by your finance people as having been taken out, is it the case that there are financial deduction statements that CoreStaff holds in relation to them?--- Yes, that is correct …

70    Mr Seigel was cross-examined by Mr Joel. As to the provision of documents in response to the summons, Mr Seigel’s evidence was as follows:

[MR JOEL] I’m seeking to establish where the records are as to the transmission of what you allege to be funds owned by the miners which are alleged to have been transmitted to Mr Kraues? ---

[MR SEIGEL] Well, the records are here in this printout, on this two-page landscape paper. It lists all the (indistinct) and the amount of $205,377.50. I’m not sure – am I not understanding something?

[MR JOEL] Yes. What I’m saying is that the critical records, which, as I understand, Mr Leerdam may well assert constitute client moneys, there must be a record of the transmission of those moneys to Mr Kraues, and I cannot---?

[MR SEIGEL] Yes, obviously.

[MR JOEL] I cannot locate them, with respect to the response that you or an officer has made in answering the summons. What have you got to say about that? ---

[MR SEIGEL] Look, Mr Joel, I’m going to maintain my politeness. The reality is, Mr Joel, that moneys were deducted - if you’re saying you want to see the actual transactions from the CoreStaff account into the Kraues account, happy to provide them. Not a problem at all. If we have misinterpreted the actual information that you wanted, and we haven’t gone to the bank and got printouts of all of those, please accept my sincere apologies. I’m more than happy to contact the bank and have our people and the bank provide all those transactions for you. Not a problem at all.

71    Mr Joel accepted that the offer was reasonable.

72    Mr Seigel’s undertaking to provide further evidence was adopted by the parties and the Tribunal.

73    On 22 August 2016, the Tribunal made directions for the filing of final written submissions after receipt of the bank records.

74    On 31 August 2016, Mr Seigel sent by email partially redacted bank statements indicating that a total of $203,397.50 had been paid, by 51 transactions, from an account in the name of “Corestaff Admin Pty Ltd” to Kraues Law. The total amount was slightly lower than the amount which had been recorded in the Corestaff Summary. The difference of $1,980 was explained in the email in the following way:

By way of correction, in my affidavit of 10 November 2015 (see also Annexure A), I stated at paragraph 3.2 that a total of $205,377.50 in deductions were paid to Kurt Kraues. This is $1980.00 more than the total indicated in the bank statements.

I would like to draw your attention to an accounting error that has been identified which relates to this amount of $1980.00. That amount has not been paid to Mr Kraues and will be returned to the people mentioned in the spread sheet under the heading of refund due to employee.

75    The entries in the bank statements attached to the email for each of the 51 transactions were not redacted, except for the balance in the account at those entries. Mr Kraues submitted that “[t]he critical entries were heavily masked”. In fact, they were not. The descriptions for the 51 transactions totalling $203,397.50 were variously “WITHDRAWAL FOR … KRAUES RETAINER” or “WITHDRAWAL FOR … KRAUES” or “WITHDRAWAL FOR KRAUES LAW” and specifying the relevant end date of the week. The bank statements otherwise identified all transactions which had occurred over the period but with the amounts of those transactions (whether debit or credit) redacted and with the account balance redacted. These other transactions were not shown to have any particular significance to the issues on the appeal.

76    The Authority filed submissions on 22 September 2016. The Authority’s submissions included (footnotes omitted):

The funds retained by the Applicant

9     The bank records provided by Mr Siegel on 31 August 2016, indicate that a revised total of $203,397.50 was paid into the Respondent’s bank account deducted from the wages of 69 miners, and paid in lump sums on 51 separate occasions.

9.1     These transactions are identified in hand-writing and numbered 1 to 51 in the documents.

9.2     This amount is $1980 less than the figure of $205,377.50 referred to at [3.2] and Annexure A of Mr Seigel’s affidavit dated 10 November 2015.

10     The Respondent contends that the Tribunal should accept this amount has been retained by the Applicant, as the bank statements properly comprise business records.

77    Mr Joel filed submissions on behalf of Mr Kraues on 6 October 2016. Those submissions addressed the bank statements which had been provided. The submissions did not dispute that funds had been transmitted to Mr Kraues. In fact, they accepted that he had received funds. For example, it was submitted:

Considering the above, it is submitted that it would be incorrect to ascribe the behaviour of the Applicant in accepting funds in the manner described as indicating he is not a “fit and proper person”.

20.1     The Applicant has received Retainer Fees, which cannot be ascribed the character of professional fees, which he placed in a general account in accordance with clause 3 (g) (i) of the Fee Agreement.

20.2     Of particular significance is that the company that owned the money and transmitted it to the Applicant has never requested its return. There is no evidence before the Tribunal to establish the origin of the money apart from the fact that this company paid it to the Applicant.

20.3     It is now seriously asserted that the failure of the Applicant to repay the funds to a group of persons who have no legal entitlement to it should lead to continued cancellation of his licence. Considering the permanent damage done to the reputation of the Applicant, it is a matter of concern that the Respondent continues the publication of the claim that he has misappropriated the money and is without integrity.

78    Rather, the submissions were directed to assertions that the funds transmitted did not establish “a nexus to the provision of immigration assistance”, that some funds were “transmitted to the Applicant” before miners had completed an authority for deductions, that the bank statements were not consistent with the Corestaff Summary, that there was “no evidence … to establish the origin of the money apart from the evidence that this company [Corestaff Admin] paid it to the Applicant”. The submissions contained the following:

In answer to central questions presented by the Tribunal

24.1     In answer to the question why did the Applicant retain the monies and not return them – the answer has been explained above. The previous owner of the funds, as asserted by the Respondent, is Corestaff Admin Pty Ltd. They have not requested the return of any funds from the Applicant.

24.2     Withdrawals were made from the Applicant’s general account, as the Applicant genuinely believed they comprised Retainer Fees (in the manner previously described in the Applicant’s Legal Submission filed 15/8/2016) - the contractual construction issue. The previous owner of the money has not made any objection to the nature of such withdrawal.

24.3     There is not anything wrong or improper for the Applicant accepting payment by a third party in accordance with the relevant terms of the Fee Agreement.

79    The submissions included a submission that there was “no evidence that the funds transmitted comprised the Miners’ Salaries paid by Corestaff Pty Ltd”. The submissions suggested that other business or financial records would have existed but had not been produced. For example, it was submitted that it would have been possible to produce the payroll records and corresponding bank statements.

80    No application was made by Mr Kraues to re-open or to adduce evidence, or to recall Mr Seigel for further cross-examination. No application was made to require further production under the summons for production or to issue a further summons. The bank statements which were produced were relied upon by Mr Kraues in his submissions.

THE PRIMARY JUDGE’S REASONS

81    While noting the unsatisfactory way in which the applicant’s case was run, the primary judge identified the issues in the following way at J[3] and J[9]:

3.    Bearing in mind the matters explained at [9] below, this appeal raises the following issues:

(1)    whether the Authority and the Tribunal had jurisdiction to investigate the miners’ complaints and cancel Mr Kraues’ registration because the agreements between Mr Kraues and the miners were not agreements “in relation to immigration assistance” for the purposes of s 316(1)(c) of the Act, but only agreements requiring Mr Kraues to make himself available if required to give such assistance;

(2)    whether the Tribunal failed to afford procedural fairness to Mr Kraues in denying him an opportunity to file expert evidence with respect to tables based on information provided by Corestaff which summarised payments allegedly deducted from the miners’ wages and paid to Mr Kraues, where bank records produced after the Tribunal hearing allegedly contradicted the summary tables and the bank records were said to come from an unknown company;

(3)    whether the Tribunal erred in failing to address, or treating as irrelevant, the question of whether the miners were clients of Mr Kraues for the purposes of the Code;

(4)    whether, given the alleged nature of the agreements between Mr Kraues and the miners, there was no evidence that Mr Kraues and the miners were in a client/migration agent relationship for the purposes of the Code;

(5)    whether there was no evidence that Mr Kraues received any monies from the miners for immigration assistance for the purposes of the Code;

(6)    whether the Tribunal erred in law in finding that Mr Kraues was in breach of his financial duties under the Code in circumstances where no agreement existed for the giving of immigration assistance and no such assistance was given; and

(7)    whether the Tribunal failed to have regard to “altered circumstances” occurring, and evidence produced, after the Authority’s decision was given, and thereby failed to make the correct or preferable decision as at the time of its decision.

…

9.    As these matters indicate, Mr Kraues’ case changed over the course of the appeal. Two substantive grounds were abandoned in his written reply, and his written submissions in chief and in reply were based upon a version of the notice of appeal which was completely rewritten by the list of questions of law and further amended notice of appeal. Moreover, Mr King’s oral submissions were at times difficult to relate to the written submissions. In these circumstances, I have taken the list of questions of law handed up by Mr King as identifying the questions of law which the applicant ultimately wished to litigate. I consider this to be the fairest approach given that the argument at the hearing for both parties proceeded (after the luncheon adjournment) by reference to the list of questions of law. Furthermore, this list was prepared in response to the Authority’s request in its written submissions for a document that identified the questions of law with precision, given the deficiencies in the (then) amended notice of appeal. Moreover, the further amended notice of appeal did not in terms reproduce the questions of law in the list. Finally, to the extent to which the further amended notice of appeal filed after the hearing raised any new issues, it did not comply with the order granting leave for the further amended notice of appeal to be filed and it would be unfair to the Authority to consider those new issues. I note in this regard the unsatisfactory and inefficient manner in which the applicant’s case was run and the applicant’s failure to adhere to the principles identified by the Full Court in Haritos with respect to the drafting of questions of law in the notice of appeal.

82    Her Honour’s reasons are referred to below in addressing the issues on the appeal. No complaint was made on the appeal as to her Honour’s identification of the issues from the way in which Mr Kraues’ case had been run, as extracted above.

THE APPEAL

83    The appellant argued the appeal on the basis of four “propositions” said to emerge from six grounds of appeal.

84    Argument in relation to the first three propositions revolved around the summons for production issued by the Tribunal at the request of the appellant, referred to above. At the core of the oral argument advanced in relation to these propositions was an assertion that the Tribunal denied Mr Kraues procedural fairness. This was tied to an assertion that there was no evidence that “client moneys” had been paid to Mr Kraues. Counsel for Mr Kraues submitted orally that “it was the repeated objection of Mr Joel who appeared for [Mr Kraues] before the Tribunal that there was no evidence of client moneys paid to him in respect of the retainer agreement”. The written submissions on appeal included:

Based on the evidence all the applicant had done was accept money for a retainer service.

85    The appellant’s first proposition as articulated in written submissions was:

[T]hat the primary judge erred in holding that there was no miscarriage of justice before the Tribunal founded upon any procedural unfairness to the appellant and his legal representative Mr Joel in denying them the underlying records specified in the Summons for Production issued by the Tribunal to test the evidence of Corestaff representatives that their Summary Tables of payments by the vulnerable miners to the appellant as being authentic and accurate and affording no opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.

86    This “proposition” was said to arise from grounds 1(g), 3 and 5 of the notice of appeal. In oral submissions it was said to arise from grounds 1(a), 1(b) and (j) and grounds 3 and 5 of the notice of appeal.

87    The appellant’s second proposition was:

[T]hat the primary judge erred in holding that there was evidence in the Summary Tables allegedly prepared by Corestaff the employer of the vulnerable miners and/or in its bank records produced to the Court in response to the Summons for Production and/or otherwise in the material that monies referred to in the costs or retainer agreements of the complainants were transmitted to the appellant, and that the purported client monies paid to the appellant by Corestaff (Admin) constituted such funds, and were deducted by it for the appellant.

88    This was said to arise from grounds 1(a) to (c), (e), (f) and (h) to (j).

89    The appellant’s third proposition was:

[T]hat the primary judge erred in rejecting as relevant or of assistance the evidence of the appellant’s expert Mr Hughes demonstrating that it was practically unfair to the appellant to require him to test the case of MARA brought against him without the underlying records referred to in the Summons for Production.

90    This was said to arise from grounds 1(d) and 6.

91    Grounds 1, 3, 5 and 6 – being the only grounds said to be relevant to the first three propositions – were:

1.    The primary Judge erred in making the following findings:

a.    That the material in question, which the Appellant complained had not been provided by the Respondents in response to the Applicant’s Summons to Produce and the verbal assurances provided by Mr. Seigel, was not missing, had been provided and did not prevent a fair hearing.

b.    That the Summary Table at Court Book 329 may be accepted in substitution for original documents which had not been produced by the Respondents or could be used as a substitute for the production of original documents requested.

c.    That the Appellant received financial deduction statements of each employee.

d.    That the additional evidence of Mr Hughes was unnecessary and should be admitted on a limited basis only treated as irrelevant to the issues on the Appeal.

e.    That the bank statements of Corestaff Administration Pty Ltd provided to the Appellant in answer to the Summons to Produce contained cognisable particulars corroborating the calculations presented in the “No Documents Supplied” notations and the calculations made with respect to Miners whose documents had been (purportedly) considered.

f.    That the use of “inferences” and “implications” drawn from the limited material produced could be used as a substitute for the production of underlying documents.

g.    That the information contained in the Summary Table and the bank statements complied sufficiently with the terms of the Summons and the undertaking made by Mr Seigel.

h.    That the Appellant had received moneys from the Miners for immigration assistance for the purposes of the Code of Conduct.

i.    That there was no dispute at all material times that Miners had withdrawals from their wages and/or transmitted to the Appellant.

j.    Concluding the evidence of Mr Seigel could be examined as to the content and method of calculation of the Summary Table when the Table was based upon a summary of original documents or calculations without reference to any documents and was prepared by third parties.

…

3.    The primary judge erred in holding that there was no merit in the Appellant’s argument that he had no reasonable opportunity to put his case or to deal with the issues raised by the Authority founded upon the Summary Table and the purported corroboration provided by the bank records.

…

5.    The primary judge erred in holding that there was no breach of procedural fairness because the Appellant could have credibly challenged the evidence of Mr Seigel as at the time of the initial production of the Table or subsequent to the production of the bank statements in circumstance [sic] where cognisable records of the Financial Deduction Statements had never been produced and the expertise and authorship of the Tables was never affirmed nor were the person [sic] who prepared the Table ever called as witnesses.

6.    The primary judge further erred in dismissing the report of the expert upon the basis that the Appellant had been provided with the appropriate documents.

First Proposition

92    The first proposition appears to equate to the issue identified by her Honour at J[3(2)]:

[W]hether the Tribunal failed to afford procedural fairness to Mr Kraues in denying him an opportunity to file expert evidence with respect to tables based on information provided by Corestaff which summarised payments allegedly deducted from the miners’ wages and paid to Mr Kraues, where bank records produced after the Tribunal hearing allegedly contradicted the summary tables and the bank records were said to come from an unknown company.

93    The Tribunal did not deny Mr Kraues an opportunity to file expert evidence: J[81] to J[88]. He chose to run his case in the way he did and that did not involve seeking to file expert evidence.

94    The primary judge concluded that there had been no breach of procedural fairness. Her Honour’s first reason was that Mr Kraues had sufficient notice of the Authority’s case, both documentary and testimonial in advance of the hearing and had the opportunity to cross-examine the witnesses and review the relevant documents: J[82]. Her Honour noted, correctly, that Mr Kraues had Mr Seigel’s affidavit which set out the details of what the Authority contended were the relevant amounts paid from the miners’ salary. Mr Kraues could have, had he so chosen, adduced evidence to contradict what the Authority relied upon.

95    Secondly, her Honour recorded at J[83] that detailed written submissions had been provided by both parties after Corestaff NT had produced the bank statements, providing Mr Kraues ample opportunity to consider his position after receiving the bank statements and before filing his final submissions.

96    Thirdly, her Honour noted that Mr Joel’s detailed final submissions in fact relied upon the bank statements in support of Mr Kraues’ case, submitting among other things that the information contained in the amended summary table was “contradicted by the bank statements”. Mr Kraues did not suggest that he required expert evidence in order to respond to the information in the records and no application was made by him to lead further evidence or to recall the Authority’s witnesses for further cross-examination.

97    In the context of the first reason, at J[82], her Honour stated:

… While there was some delay, ultimately Corestaff produced the financial records which Mr Kraues complained ought to have been produced in response to the Authority’s summons.

98    On behalf of Corestaff NT (to whom the summons for production had issued), Mr Seigel produced bank statements of Corestaff Admin which he evidently considered met the agreement which had been reached at the hearing with respect to further production. Whilst Mr Kraues’ written submissions were critical of what had been produced, it was not submitted that what was produced was not in accordance with what had been agreed or that, for whatever reason, the Tribunal should require further documents to be produced before making its decision or that further cross-examination should be permitted. No application was made to adduce further evidence.

99    The primary judge noted at J[85]:

Finally and at the risk of a degree of repetition, there was no dispute relevantly that:

(1)    the miners each signed forms authorising Corestaff to deduct an initial instalment of $825.00 from their salaries followed by 78 weekly instalments of $82.50 for payment to “Kraues Law Client Trust Account”, with the payment remittance to be emailed to an email address bearing Mr Kraues’ name;

(2)    the authorisations stated that they were to remain in force until cancelled by Kraues Law in accordance with the terms of the retainer agreements;

(3)    the banking records confirmed the withdrawal of the amounts, albeit from an account in the name of Corestaff Admin Pty Ltd;

(4)    monies were in fact deposited into Kraues Law’s account;

(5)    there was no evidence of any other explanation for the deduction of monies from Corestaff Admin Pty Ltd to Kraues Law;

(6)    Mr Kraues had withdrawn money from the Kraues Law account;

(7)    Mr Kraues had not accounted for the withdrawal of those monies;

(8)    After the miners complained to the Authority, Mr Kraues wrote to them demanding the “balance owing” under the “retainer agreement[s]”; and

(9)    Mr Kraues had not returned any money to the miners (or indeed to Corestaff or Corestaff Admin).

100    Her Honour’s conclusions that there was no dispute about the matters set out at J[85] was consistent with the material before the Tribunal referred to in the “background” section of these reasons. It was not directly challenged in the notice of appeal. In written submissions it was submitted, referring to J[85], that the primary judge erred in concluding that “there was no dispute he had received client moneys”.

101    The primary judge did not err at J[85]. To the extent that there was a dispute about matters relevant to the facts her Honour set out, it was centred on whether the miners were clients of Mr Kraues to whom immigration assistance had been given and a contention that the evidence (including the bank statements) did not show that the miners were the source of the moneys transferred to Mr Kraues by Corestaff Admin.

102    Her Honour observed that Mr Kraues did not adequately explain how the fact that the deductions were made from Corestaff Admin could possibly bear upon the issues before the Tribunal: J[86]. In written submissions, Mr Kraues contended that the primary judge at J[86] “intermixes the issue of receipt of money transmitted from Corestaff with the purported transmission of client moneys”. All that the primary judge was observing at J[86] was that it had not been explained why it was significant that the account was in the name of Corestaff Admin, rather than Corestaff NT, the employer. That remains the position.

103    At J[87], the primary judge concluded that “the inference which the Authority asked the Tribunal to draw, namely, that the monies were in fact deducted from the miners’ salaries pursuant to the authorities signed by them, in fulfilment of their obligations under the so-called retainer agreements with Mr Kraues, was obvious and compelling, if not irresistible”. That conclusion was not shown to be affected by error. It was a natural inference to draw from the material before the Tribunal. Her Honour continued, given that the complaint being advanced was one of denial of procedural fairness:

… It cannot seriously be argued that Mr Kraues was unaware of the implications of that evidence and the case against him, as the Tribunal found at [58] of its reasons. Nor could it seriously be argued that the procedure adopted by the Tribunal deprived Mr Kraues of the opportunity to respond to the Authority’s case by calling evidence, which he chose not to do, or by cross-examining the Authority’s witnesses and making submissions as to the alleged deficiencies in that evidence, as he in fact did. The requirements of procedural fairness required no more. As for example, Kirby J stated in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172:

38. … Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

104    Her Honour rejected the submission which had been made to her that “the Tribunal, in giving him a late reprieve … by enforcing the summons merely to meet his concern of concealment was at best, a sop to Mr Joel, and not a genuine opportunity”: at J[88]. Her Honour continued:

Mr Kraues’ contention that there was a breach of procedural fairness is ultimately therefore a complaint about the consequences of his own forensic decision not to call evidence and the merits of the Tribunal’s decision which is beyond the power of the Court to review.

105    A contention was advanced by counsel for the appellant in oral submissions on the appeal that:

… contrary to what the learned primary judge said at paragraph 88, he [Mr Joel] was not permitted to cross-examine Mr Seigel as to his explanation of this summary table after he produced what he said he would he agree to produce, the documents relating to the actual transactions.

106    When asked by the Court at the hearing of this appeal whether Mr Joel asked for an opportunity to cross-examine after receipt of the bank statements, it was submitted that Mr Joel did not because “he had already been told he wasn’t permitted to do that”. The transcript of the hearing before the Tribunal included:

MR LEERDAM: Senior Member, the questions of resumption indicate or at least imply that there is further evidence to be taken over and above the receipt of the bank records which we say are an exception to the hearsay rule. We are content with simply submitting those bank records and providing our submissions in response to the written submissions that we’ve been given today on that basis. In terms of a hearing date, once – unless Mr Joel says Mr Kraues is going to take the witness stand, at which point we’d obviously seek to cross-examine him.

But over and above the provision of the bank records, we would follow that up with our written submissions. We would probably file our written submissions on the same day that those bank records come through, because the bank records are really only one per cent of this case. They simply go to supporting annexure A of Mr Seigel’s affidavit to start with. They don’t do anything more.

SENIOR MEMBER: Well, I suppose I only had in mind to resume for closing submissions and anything that either of you wish to say about those bank records.

MR LEERDAM: Yes. Certainly, Mr Joel would probably like the opportunity of responding to those bank records, but the point we make Mr Joel already knows about; that is, it is an exception under the Commonwealth Evidence Act to the hearsay rule and that those business records will speak of the truth within them as to the moneys that have been transferred over. It remains for Mr Kraues to rebut that.

SENIOR MEMBER: I accept that. The only question is whether – well, those records are produced. We then wait to hear whether Mr Kraues wishes to take up the opportunity or not. In a way, my preference would be fix a date in November that is for closing submissions. If Mr Kraues wishes to appear on the day and give evidence, so be it. But otherwise, we are closing on that day.

107    Later, the Tribunal stated:

SENIOR MEMBER: So we are now waiting on the bank records and anything parties wish to say by way of closing submissions that has not already been said. Given that you have made these submissions now, Mr Joel, is there any benefit in speaking to them?

108    Mr Joel was not told that he would not be permitted to seek to cross-examine about the bank statements after they had been produced. In any event, even if he had been, it would have been open to Mr Joel to seek to do so after the bank statements were produced. He did not.

109    Mr Kraues knew the case which was being put by the Authority: (i) it had been put by the Authority since the commencement of the complaint (which even indicated the amount he had been paid was approximately $200,000); (ii) it was articulated in the statements of facts, issues and contentions; and (iii) it was contained in the evidence adduced by the Authority, all of which Mr Kraues had an adequate opportunity to address.

110    Mr Kraues chose to deal with the Authority’s case by criticising the adequacy of the evidence adduced by the Authority, particularly the evidence in relation to the transmission of funds into Mr Kraues’ account and the source of them. He also chose not to go into evidence himself. No doubt the latter choice was informed by considering the consequences to Mr Kraues and his case of him giving evidence or tendering documents (such as his own bank statements or those of Kraues Law). Those were forensic decisions he was entitled to make. However, they are forensic decisions with consequences.

111    Mr Kraues addressed in his submissions of 6 October 2016 what he considered was a deficiency in what was produced under the summons for production. Mr Kraues did not seek an opportunity to require further documents in light of the production of the Corestaff Admin bank statements or seek to adduce any evidence on the issue.

112    Mr Kraues was afforded procedural fairness.

Second Proposition

113    The second proposition, as developed in written submissions and argument, appears to be directed to the issue identified by the primary judge at J[3(5)], namely “whether there was no evidence that Mr Kraues received any monies from the miners for immigration assistance for the purposes of the Code”. The primary judge recorded, at J[114], that the submissions made to her included that regard should be had to the following:

(1)    the evidence tendered comprised merely the amended summary table tendered by the Authority and prepared by an unknown person with redacted bank statements;

(2)    Mr Seigel’s evidence about the arrangements put in place between Corestaff and Mr Kraues did not assist because Corestaff was not the employer of the miners;

(3)    the summary table was inconsistent with the bank records produced in answer to the summons and Mr Hughes’ report;

(4)    there was no evidence of immigration assistance having been requested or given by the applicant to the miners;

(5)    there was no evidence that the miners’ owned the money paid to Mr Kraues; and

(6)    Mr Karu never met Mr Kraues until after the retainer agreements were terminated.

114    Her Honour rejected the contention as misconceived, stating at J[115]:

The submission however, misconceives the nature of the “no evidence” ground of judicial review. Mr Hughes’ report was not before the Tribunal. It is therefore irrelevant to the issues on this appeal, save potentially to the question of whether any breach of procedural fairness resulted in practical unfairness in line with the limited basis on which Mr Hughes’ report was received in evidence. Otherwise, the applicant’s submissions invite the Court impermissibly to evaluate the sufficiency of the evidence before the Tribunal which formed the basis of the Tribunal’s findings: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 (Mason CJ); Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [90]-[91] (Hayne, Heydon, Crennan and Kiefel JJ); see also Rawson v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307 (Rawson) at [83]-[88] (Jagot J (with whose reasons Nicholas J agreed). As the Authority submits, the evidence before the Tribunal was more than sufficient to provide an evidential basis for the findings. Those findings were not only supported by the undisputed evidence set out earlier at [85] above. They were also supported, for example, by Mr Karu’s evidence which the Tribunal accepted and by Mr Seigel’s evidence which was relevantly accepted by the Tribunal despite its finding that other aspects of his evidence were “somewhat disingenuous” (Tribunal reasons at [75]).

115    On the appeal it was submitted that there was “not a scintilla of evidence to establish that the applicant received client monies”.

116    The primary judge was correct. The Tribunal’s findings were open on the evidence. Having regard to:

(1)    the “retainer agreements” between Mr Kraues and the miners;

(2)    the signed authorities given to the employer to deduct amounts from the miners’ salaries in order to pay those amounts to Mr Kraues;

(3)    the fact that the authorisations stated that they were to remain in force until cancelled by Kraues Law;

(4)    the fact that there was no evidence to suggest, or submission to the effect, that Kraues Law had cancelled the authorisations;

(5)    the fact that Mr Kraues wrote to the miners demanding the “balance owing” under the “retainer agreements”;

(6)    the fact that payments were made to Mr Kraues by a company (Corestaff Admin) obviously associated with the miners’ employer (Corestaff NT);

(7)    the descriptions of the payments in the bank statements of Corestaff Admin;

(8)    the fact that there was no dispute that Mr Kraues had received the amounts indicated in the Corestaff Admin bank statements;

(9)    the terms of Mr Kraues’ various communications to the Authority and submissions to the Tribunal referred to in the “background” set out above; and

(10)    the fact that Mr Kraues chose not to adduce evidence, including evidence easily available to him relevant to the issues outlined above,

there was obviously sufficient evidence to conclude that the funds transmitted to Mr Kraues by Corestaff Admin had their source in the salaries of the miners.

117    The manner in which the case was argued by the appellant at certain points might perhaps suggest a misunderstanding of the nature of the fact finding process. A fact can be established by a process of inference. Inferences drawn from actual facts that are proved are just as much part of the evidence as those facts themselves: Holloway v McFeeters (1956) 94 CLR 470 at 480; Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 168. It was not shown that the Tribunal drew inferences in a way which was not open – as to which, see: Rawson v Commissioner of Taxation (2013) 296 ALR 307 at [83]-[88].

Third Proposition

118    It is not strictly necessary to deal with the third proposition because there was no denial of procedural fairness. As noted earlier, the appellant’s complaint in this respect was that the primary judge erred “in rejecting as relevant or of assistance” the evidence of Mr Hughes. However, according to the submissions of the respondent (which were not relevantly disputed) that is not what happened. Shortly before the hearing before the primary judge, the appellant filed an interlocutory application seeking orders admitting Mr Hughes’ report on appeal. The relevance of the report was debated at the hearing and counsel for Mr Kraues accepted that reliance was placed on Mr Hughes’ report on the limited basis upon which it was ultimately admitted, namely for “the purpose only of proving what the applicant would or may have provided to the Tribunal if he had been afforded, on his case, a reasonable opportunity to be heard”. As a result of that limitation, counsel for the Authority accepted it was not necessary to cross-examine Mr Hughes.

119    Mr Kraues is bound by the way he chose to run his case. The third proposition is not made out.

Fourth Proposition

120    The appellants fourth proposition was:

that the primary judge erred, whether one adopts the broad construction of Part 3 of the Act with respect to giving immigration assistance to the vulnerable miners or the more narrow construction (which the appellant contends truly reflects the legislative intention) in holding that upon the facts found by the Tribunal it had jurisdiction, or alternatively the primary judge failed to consider upon the correct test whether the appellant’s conduct of accepting non-client money for a retainer and taking the steps to implement that retainer constituted misconduct within Migration Act 1958 section 303(1)(f) and (h).

121    This was said to arise from grounds 1(a) to (c), 2 and 4 of the notice of appeal. Grounds 1(a) to (c) have been set out above. Grounds 2 and 4 were:

2.    The primary judge erred in holding that the Tribunal had jurisdiction under Part 3 of Migration Act 1958 [Cth].

…

4.    The primary judge erred in holding that a client relationship had commenced.

122    The fourth proposition and the grounds said to give rise to it appear to be directed to the issues identified by the primary judge at J[3(1)] and [3(3)]:

(1)    whether the Authority and the Tribunal had jurisdiction to investigate the miners’ complaints and cancel Mr Kraues’ registration because the agreements between Mr Kraues and the miners were not agreements “in relation to immigration assistance” for the purposes of s 316(1)(c) of the Act, but only agreements requiring Mr Kraues to make himself available if required to give such assistance;

…

(3)    whether the Tribunal erred in failing to address, or treating as irrelevant, the question of whether the miners were clients of Mr Kraues for the purposes of the Code …

123    The jurisdictional argument which Mr Kraues had run was that the Authority and the Tribunal lacked power to cancel his registration because he did not provide “immigration assistance” so as to enliven the cancellation power under s 303 of the Act.

124    The primary judge noted at J[52] that the Tribunal correctly identified the jurisdictional argument raised and rejected it for the reasons it gave at T[43] to [52]. It had earlier given oral reasons for its decision that it had jurisdiction. As the primary judge correctly concluded at J[52], the Tribunal accepted that the “retainer agreements” purported to bind the miners to pay money to Mr Kraues “for nothing more than ‘being available’”: T[69]. However, it rejected the argument that, as a consequence, neither the Authority nor the Tribunal had jurisdiction to cancel Mr Kraues’ registration under the Act.

125    At J[53], the primary judge noted that the Tribunal correctly understood that the issue for the Tribunal was not the construction or enforcement of a contract:

Rather, it was seized of the same issue as the Authority, namely, whether Mr Kraues was a fit and proper person to be a registered migration agent and, as an aspect of determining that question, whether the basis on which Mr Kraues contracted with the miners was evidence that he was not such a person …

126    The primary judge went on to note other problems with Mr Kraues’ submissions. Her Honour stated that they were misconceived in conflating the statutory functions conferred on the Authority by s 316 with the powers conferred to undertake those functions: J[54]. Her Honour stated:

The powers which may be exercised in the discharge of those functions and the processes which must be followed are separately specified in Part 3 of the Act. This includes the power to cancel registration or take other action under s 303 and to do all things necessary, or conveniently done for or in connection with, the performance of the Authority’s functions under s 317 of the Act. Furthermore the function of taking appropriate action under s 316(1)(d) is not tied to the function of investigating complaints in relation to the provision of immigration assistance under s 316(1)(c); nor is the function under s 316(1)(d) of taking disciplinary action limited by the descriptor “in relation to the provision of immigration assistance”.

127    Her Honour continued at J[55]:

It follows that there is nothing to suggest that the Authority and therefore the Tribunal could not take appropriate action under s 303 in relation to conduct falling outside the parameters of the initial complaint and which did not relate directly to the provision of immigration assistance. It would also be proper for the Authority (and the Tribunal) to take any such information into account in determining whether a migration agent was a person of integrity as required by s 303(1)(f) of the Act. This is consistent with there being no requirement for the Authority to receive a referral or complaint before commencing an investigation which might otherwise have confined the scope of an investigation or inquiry by the Authority. For example, it can readily be envisaged that the making of a complaint against a migration agent of a failure to comply with the Code may instigate a wider investigation by the Authority as to whether the agent is a fit and proper person to give immigration assistance. As Kiefel J (Crennan J agreeing at [117]) explained in Shi in relation to the Tribunal’s ability to have regard to new evidence in determining whether an agent was a person of integrity:

149. … The topic with which s 303(1)(f) is concerned is not, however, one which identifies particular conduct, as is the case with respect to breaches of the Code of Conduct. The enquiry posed by the paragraph is a general one, and it may be considered by the Tribunal in that way. It does not limit an assessment of an agent’s integrity and fitness to what has been being conveyed by any breaches. There is no reason why the Tribunal’s review should not extend to any information which sheds light upon the presence or absence of the necessary characteristics in the migration agent. The list in s 290(2) is not exhaustive.

(I note that Kiefel J was in dissent in Shi but not upon this issue.)

128    Her Honour observed, at J[56], that the Tribunal rejected at T[52] Mr Kraues’ submissions that the question before it was whether Mr Kraues provided immigration assistance to the complainants. The Tribunal correctly considered that the question was “whether his registration should be cancelled (or suspended or a caution given) because he [is] ‘not a person of integrity or is otherwise not a fit and proper person to give immigration assistance’ or has not complied with the Code of Conduct: s 303(1)”.

129    The primary judge also considered that the Tribunal was correct in finding at T[47] that the function of investigating complaints “in relation to” the provision of immigration assistance under subs 316(1)(c) of the Act was not limited to the actual provision of immigration assistance: J[57]. Her Honour, referring to the well-known authorities making the point, noted that the phrase “in relation to” may connote different degrees of connection and that the remedial purpose of Pt 3 of the Act compels against Mr Kraues’ narrow construction. Her Honour referred to the explanation of Mason CJ explained in Cunliffe, that the purpose of Pt 3 was “to protect aliens [now, non-citizens] from incompetent and unscrupulous advisers through the introduction of a regulatory regime which is designed to ensure that those who advise and represent aliens are competent and are persons of integrity”. Her Honour then stated at J[61]:

To limit the jurisdiction of the Authority and therefore the Tribunal to investigating complaints about the provision of immigration assistance, which is the effect of the applicant’s submission, would be to undermine that purpose. Taking the example given by the Tribunal at [47], the applicant’s submission would mean, for example, that unscrupulous agents who failed to provide assistance could avoid complaints against them being investigated. In this regard, a construction which would best achieve the legislative purpose or object is to be preferred to any other interpretation: s 15AA of the Acts Interpretation Act 1901 (Cth).

130    Her Honour dealt extensively with the arguments for a narrow construction of the meaning of the phrase “in relation to” at J[57] to [64]. Her Honour’s analysis was correct.

131    The essence of the appellant’s case on appeal was that he was not in a relationship with the miners capable of attracting the operation of the obligations set out in the Code. His submissions included that he was not in a client / migration agent relationship and that he did not give immigration assistance. As it was put in written submissions for Mr Kraues: “all the applicant had done was accept money for a retainer service”; he had not performed any work (such as that contemplated by cl 3 of the contract) and so had not given any “immigration assistance”. It was perhaps at least implicitly submitted that the miners were, for these reasons, not clients for the purposes of the Code.

132    Section 314 authorises the making of a Code of Conduct for migration agents. It is repeated for convenience:

Code of Conduct for migration agents

  (1)     The regulations may prescribe a Code of Conduct for migration agents.

(2)     A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.

133    Clauses 1.10 and 1.11 of the Code provide:

Part 1 – Introduction

1.10     The aims of the Code are:

(a)     to establish a proper standard for the conduct of a registered migration agent;

(b)     to set out the minimum attributes and abilities that a person must demonstrate to perform as a registered migration agent under the Code, including:

    (i)     being a fit and proper person to give immigration assistance;

    (ia)     being a person of integrity and good character;

(ii)     knowing the provisions of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, in sufficient depth to offer sound and comprehensive advice to a client, including advice on completing and lodging application forms;

(iii)     completing continuing professional development as required by the Migration Agents Regulations 1998;

    (iv)     being able to perform diligently and honestly;

    (v)     being able and willing to deal fairly with clients;

(vi)     having enough knowledge of business procedure to conduct business as a registered migration agent, including record keeping and file management;

    (vii)     properly managing and maintaining client records;

(c)     to set out the duties of a registered migration agent to a client, an employee of the agent, and the Commonwealth and its agencies;

(d)     to set out requirements for relations between registered migration agents;

(e)     to establish procedures for setting and charging fees by registered migration agents;

(f)     to establish a standard for a prudent system of office administration;

(g)     to require a registered migration agent to be accountable to the client;

(h)     to help resolve disputes between a registered migration agent and a client.

1.11    The Code does not list exhaustively the acts and omissions that may fall short of what is expected of a competent and responsible registered migration agent.

134    The power provided by s 314 to prescribe a Code is not expressly or implicitly confined to prescribing standards of conduct in situations only where “immigration assistance” is in fact given – cf: Hartnett v Migration Agents Registration Authority (2004) 140 FCR 388 at [56]. As shown above, the terms of the Code extend further. There was no challenge to the validity of the Code. There is no warrant to read s 314 as limiting the matters to which the Code might be directed to situations in which immigration assistance is in fact given. Section 303(1) gives power to the Authority, amongst other things, to cancel a migration agent’s registration if it becomes satisfied that the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance (s 303(1)(f)) as well as if it becomes satisfied that the agent has not complied with the Code (s 303(1)(h)). Section 303(1)(f) provides for a general inquiry, not – like s 303(1)(h) – a specific inquiry into whether there has been a breach of the Code: Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [149]. The statutory scheme is directed to protection of those who might deal with migration agents. The Code prescribes standards of conduct directed to registered migration agents which is both directly and indirectly related to the giving of immigration assistance, as the primary judge correctly stated at J[93].

135    Certain of the obligations imposed by the Code, which Mr Kraues was found to have breached, did not depend upon the giving of immigration assistance. Thus, Mr Kraues was found to have breached cll 2.23 and 5.1 which provided:

Part 2 – Standards of professional conduct

…

2.23     A registered migration agent must take all reasonable steps to maintain the reputation and integrity of the migration advice profession.

…

Part 5 – Fees and charges

5.1     There is no statutory scale of fees. However, a registered migration agent must set and charge a fee that is reasonable in the circumstances of the case.

136    Clause 2.23 does not depend upon immigration assistance in fact being given. The same might be the case with respect to cl 5.1. As the primary judge observed at J[96]: “the obligation to set a fee that is reasonable in the circumstances of the case under cl 5.1 is an obligation that may apply before any contractual arrangement is entered into between a person and a migration agent”. Clause 5.1 does not in its terms turn on whether a person is a “client”.

137    The Tribunal also found that Mr Kraues breached obligations imposed by the Code with respect to persons described in the Code as “clients”. Thus, the Tribunal concluded that Mr Kraues also failed to comply with cll 2.1, 5.5, 7.1, 7.2, 7.4 and 7.5.

138    As mentioned, Mr Kraues submitted he could not have breached these clauses because the miners were not his “clients” within the meaning of the Code. The primary judge rejected this argument. As to the meaning of the word “client”, her Honour concluded at J[106]:

… [I]n my view it is consistent with the purposes of the Act being to protect the vulnerable against unscrupulous migration agents and to maintain public confidence in the integrity of migration agents, for a common sense approach to be taken to the question of whether a person is a “client” for the purposes of the Code, having regard to the reality of the relationship between the parties. Any other construction would leave open the door to permitting migration agents to structure their agreements with those seeking their advice so as to avoid the obligations that they would otherwise owe to such persons. In other words, the purposes of the Act suggest an approach to construction of the Code which gives effect to substance over form.

139    Her Honour had noted, at J[105], that the definition of “client” in s 306C only applied to Div 3A in Pt 3. That section provided:

Clients

For the purposes of this Division, if a registered migration agent gave, or anticipated giving, immigration assistance to another person:

(a)    the other person is a client of the registered migration agent and, if the registered migration agent dies, the other person remains a client of the deceased registered migration agent; and

(b)    if the registered migration agent becomes an inactive migration agent--the other person remains a client of the inactive migration agent and, if the inactive migration agent dies, the other person remains a client of the deceased inactive migration agent.

140    Division 3A is directed to ensuring that clients of inactive or deceased migration agents are not disadvantaged. Her Honour continued:

… Senior Member Dwyer in Hudson v Migration Agents Registration Authority [2004] AAT 1007 (Hudson) at [96] decided to adopt the s 306C meaning of the word “client” generally for the purposes of the Code, as contended for by the migration agent. I note in this regard that no contrary submission was apparently made in that case by the Authority. However, while it is not necessary to decide the point, I would be slow to imply that the Code, in the context of defining obligations between migration agents and clients, intended to adopt a definition of “client” employed otherwise only in the limited and special circumstances with which Division 3A is concerned.

141    If s 306C applied generally to the Code this would have some significance given it includes as a “client” a person to whom a migration agent “anticipated giving” immigration assistance. By its express terms, s 306C, a definitional provision, has a limited operation, applying only to Div 3A. As noted at [49] above, the provision is also picked up by s 305B which is in Div 3. Section 306C does not purport to supply the definition of “client” for all purposes of the Act or for the purposes of the Code.

142    However, the miners were clients of Mr Kraues, having retained him to act as their agent. The fact that he did nothing in return for the “retainer fees” he received, or did not proceed to charge the miners even more for the performance of specific work (“block work”), did not have the consequence that the miners were not clients of his within the purview of the Code.

143    There is no warrant for concluding that a person can only be a “client” within the meaning of the Code if “immigration assistance” as defined by the Act is in fact given to that person. If that were correct, it would mean that an unscrupulous migration agent could avoid the operation of the scheme set up by the Act by taking money on the false premise that they would later provide immigration assistance, but then render no service. One purpose of the regime has been identified at [52] above. The words of the statute and the Code should receive the interpretation that would best achieve the statutory object: s 15AA of the Acts Interpretation Act 1901 (Cth).

144    Even if Mr Kraues were correct and he was merely being retained to give “immigration assistance” at some future time, those who retained him to be available to provide that assistance are appropriately referred to as a “client” within the meaning of the Code. The Code and s 314 are capable of being breached where no “immigration assistance” is in fact given.

conclusion

145    The appeal should be dismissed with costs.

Associate:

Dated:    2 April 2019