FEDERAL COURT OF AUSTRALIA

Hanna v Migration Agents Registration Authority [1999] FCA 1657

MIGRATION – appeal from decision of Administration Appeals Tribunal affirming decision of Migration Agents Registration Board for error of law – where Board issued a caution to the applicant under s 303 of the Migration Act 1958 (Cth) for breach of cl 17 of the Code of Conduct for migration agents – statutory interpretation of cl 17 – regard to be had to penal nature of sanctions such that caution should be used before introducing language the legislature had not chosen to use – whether requirement to act in a timely manner limited to cases where client has provided necessary information and documentation in time for legislative deadlines

Migration Act 1958 (Cth) ss 303, 316(d)

Administrative Appeals Tribunal Act (1975) (Cth) s 44

Migration Agents Regulations, Schedule, Code of Conduct

Briginshaw v Briginshaw (1938) 60 CLR 336 followed

Marshall v Watson (1972) 124 CLR 640 cited

Austin v Federal Commissioner of Taxation [1932] VLR 335 cited

Davis Jenkins & Co Ltd v Davis (Inspector of Taxes) (1968) AC 1097 cited

Scott v Lowe (1981) Tas R 37 cited

Gifford Statutory Interpretation 1990

Pearce Statutory Interpretation in Australia 1996

Bennion Statutory Interpretation 3^rd ed. 1997

FAYEZ PHILIPPE HANNA v

MIGRATION AGENTS REGISTRATION AUTHORITY

N 502 OF 1999

TAMBERLIN J

SYDNEY

26 NOVEMBER 1999

THE COURT ORDERS THAT:

1.         The application is allowed with costs.

2.         The decision of the Administrative Appeals Tribunal is set aside.

3.         The matter is remitted to the Administrative Appeals Tribunal for determination in accordance with law.

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

REASONS FOR JUDGMENT

1                     The applicant appeals from a decision of the Administrative Appeals Tribunal (“the AAT”) given on 18 March 1999 affirming the decision of the Migration Agents Registration Board (“MARB”) which issued a “caution” to the applicant under s 303 of the Migration Act 1958 (Cth) (“the Act”).  MARB is the predecessor to the Migrations Agents Registration Authority (“MARA”), the respondent to this appeal.  The appeal is brought on the basis that the AAT erred in law in making its determination: see s 44 of the Administrative Appeals Tribunal Act (1975) (Cth).

2                     The caution was imposed pursuant to the Code of Conduct set out in the Schedule to the Migration Agents Regulations assented to on 17 September 1992.  The Code is prescribed pursuant to s 314 of the Act which states that a registered agent must conduct himself or herself in accordance with the prescribed Code of Conduct.  The Code contains the following relevant provisions under the headings “OBJECTIVES”:

“3. The Code is not intended to list exhaustively the acts and omissions that may fall short of what is expected of a competent and responsible migration agent.

4. However, the Code imposes on a registered agent the overriding duty to act at all times in the lawful interests of the agent’s client and, any conduct falling short of that requirement may render the agent liable to deregistration.”

3                     Under the heading “STANDARDS OF PROFESSIONAL CONDUCT”, cl 5 of the Code provides that:

“On all occasions a migration agent must act in accordance with the law and in the legitimate interests of his or her client.”

4                     The AAT was not satisfied on the standard set out in Briginshaw v Briginshaw (1938) 60 CLR 336 and that the inaction of the applicant fell within cl 5, but the provisions of that clause are relevant to the interpretation of cl 17, in respect of which a breach was found.

5                     Clause 17 of the Code is the central provision in this appeal and reads:

“An agent must act in a timely manner where the client has provided all the necessary information and documentation in time for legislative deadlines.  For example, in most circumstances, an application under the Migration Act or Migration Regulations must be submitted before a person’s visa expires.”  (Emphasis added)

6                     Another clause of the Code referred to in submissions is cl 19 which provides that:

“It is the duty of an agent to ascertain the correct fee for an application under the Migration Act or Migration Regulations, to advise the client of the fee and, where the agent is lodging the fee on behalf of the client, the need for the client to provide it by a requisite date to the agent, so that the interests of the client are not prejudiced.   An agent also has a duty to advise the client that payment of the fee has been made.” (Emphasis added)

7                     These latter two provisions also appear under the heading “STANDARDS OF PROFESSIONAL CONDUCT”.

8                     Section 303 of the Migration Act provides as follows:

“303 Discretionary cancellation or suspension of registration etc.

The Migrations Agents Registration Authority may:

(a)       cancel the registration of a registered 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:

(d)       the agent’s application for registration was known by the agent to be false or misleading in a material particular; or

(e)        the agent becomes bankrupt; or

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

(g)       an individual related by employment to the agent is not a person of integrity; or

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

Note:      If the Migration Agents Registration Authority is considering cautioning a registered agent, or suspending or cancelling a registered agents’ registration, it must invite the registered agent to make a submission.  See sections 309 and 310.”

The conduct which was found to have breached cl 17

9                     The Senior Member who heard the application in the AAT, found that there had been a breach of the standards prescribed by cl 17 above but there had been no breach of those contained in cl 5.

10                  The essential reasoning and basis for this conclusion are set out in the following extract.

“As to the so-called APEC test, that is the Australian Pharmacy Examining Council Test, exhibit A2, at page 73 is a letter forwarded by Ms Ishac to that body which clearly asks that the body forward to AMI Migration Consultants any materials relating to the APEC examination.  That letter appears to have been replied to relatively swiftly because in the section 37 documents at page 35 there is a copy of a letter from the executive office of the Australian Pharmacy Examining Council dated 14 October 1996 which encloses certain material to be completed by Ms Al-Ammar and Mr Amin in order that they could sit for the examination held in March 1997.  What then seems to be clear is that no further action was taken until 3 December 1996 when the applicant’s firm made contact with the Australian Pharmacy Examining Council and asked what was happening regarding the said applications.

I refer in this regard to the documents at page 62 of the section 37 documents.  It would also seem clear from the evidence that the inquiry was no doubt occasioned by agitation on behalf of the complainant’s wife asking just what had happened.  The applicant claimed both in evidence today and exhibit A2, page 8 thereof, that the letter from APEC confirming eligibility for the examination and which was dated 14 October 1996 was not received in his office until 2 December 1996.  That particular paragraph contrasts somewhat with the letter from the Australian Pharmacy Examining Council to the Migrant Agent’s Registration Board which is dated 17 October ’97 which states that the applicant’s firm rang that body on 3 December seeking progress.

It seems to me strange why they would ring on 3 December if they received a letter on 2 December.  Either way what it does reveal is that, having written a letter to the Pharmacy Examining Council which was received by them on 20 September 1997 [sic], there was no follow up until on or about 2 December 1996.  In other words, it seems to me a lack of efficient follow up led to delays.  In all of these, with delays there would also seem somehow a failure to keep the complainant as client informed of just what was happening.  Looking at the code of conduct again, in my opinion, any breach of clause 5 does not, on the standards of proof which would need to be shown in order to make a finding which would affect a person’s practice of his livelihood – to have been made out.  As to standards of proof I would simply say, refer to the well-known principles in Briginshaw and Briginshaw.

So far as clause 17 is concerned it seems to me that whereas the applicant has had a proper knowledge of the law and procedures he has failed to act in a timely manner in that his follow up procedures are not what one would expect in a body which is charged with meeting deadlines.  So far as penalty is concerned I must first of all consider that I am reviewing a decision of a body which is peculiarly charged with the overseeing of migration agents.  At one stage it would seem the body considered various options open to it including an option of an informal reprimand in the form of writing to the agent, as they put it, spelling out the areas where he had allegedly been deficient.  In my opinion, that course is not open to me under section 303 of the Act.

Although in many ways it may be an appropriate course in these proceedings.  I have of course to make my own mind up.  But I should be guided by the findings of the appropriate registration authority.  As I have said earlier, it seems to me that the applicant has been, in the second matter – the APEC matter – guilty of delay, and in that regard the penalty of caution is not excessive.  I therefore affirm the decision under review.”

11                  For present purposes it is not necessary to consider any further background material because the questions raised are essentially questions of legal interpretation, and the approach taken by the AAT is sufficiently set out in the above quotation.

12                  The original Notice of Appeal was lodged on 31 May 1999 and the only grounds then raised were that the decision of the AAT was biased and was against the principles of natural justice. 

13                  When the matter came on for hearing before me on 23 November 1999, an application was made to amend the Notice of Appeal to raise the following grounds.

14                  Under cl 4:

“(1)     The Tribunal erred in its interpretation of cause [sic] 17 of the Migration Agents Code of Conduct. The Tribunal interpreted the clause as applying to any case where an agent failed to act in a timely manner.  The Tribunal should of interpreted the clause as only applying where there is statutory deadline and where the client had provided the agent with all the documentation and information necessary to make the application.

(2)       The Tribunal erred in failing to have regard to a relevant consideration in that it failed to have regard to whether the client had provided the Applicant with all the necessary information and documentation to apply for the Australian Pharmacy Examining Council examination.  In particular, it failed to have regard to whether the client had provided him with the results of the Occupational English Test.

(3)       The Tribunal erred by construing its powers as not permitting it to direct the Board to give the Applicant an informal caution.”

15                  Although the amendment was not consented to by the respondent, no prejudice was asserted on its part and it is clear from the written submissions filed by it that it was in a position to argue the substituted grounds of appeal.  Accordingly, I granted leave to amend the Notice of Appeal.

16                  As foreshadowed, the primary question concerns the interpretation and application of cl 17 of the Code of Conduct. 

17                  The applicant submits that the AAT misinterpreted cl 17 of the Code of Conduct primarily because, in the present case, it is common ground that there was no relevant “legislative deadline” by reference to which the alleged delay was related.  The applicant submits that the expression “where the client has provided all the necessary information and documentation in time for legislative deadlines,” operates to delimit the requirement that an agent must act in a “timely manner”, so that the clause will only be enlivened in circumstances where a relevant legislative deadline applies and where the client has provided all necessary information and documentation in time to meet that legislative deadline.  Support for this interpretation, so it is said, is reinforced by the example given in cl 17 itself of the need to submit an application before a visa expires.  This is because in many situations that expiry will render the applicant an unlawful non-citizen liable to detention and removal from Australia, and the application for a visa permit will become otiose.  Therefore, in a real and relevant sense, any delay in following through an application may destroy or frustrate the prospect of the client in achieving residence.  A provision for the expiry of a visa is a deadline fixed by primary or delegated legislation. 

18                  The submission for the respondent is that it is not essential that there should be a legislative deadline, and that the clause imposes a general duty to act in a timely manner regardless of whether there is a legislative deadline.  On the respondent’s case, the clause should be interpreted to read either with the insertion of words such as “any applicable” before the reference to “legislative deadlines”, or alternatively by the insertion of words “if any” after the words “legislative deadlines”.  The respondent submits that it would be absurd for there to be a duty to act in a timely manner only in circumstances where there are “legislative deadlines” applicable.  The respondent says that the clear purpose behind the Code of Conduct is to protect the public interest against sub-standard conduct by migration agents, and that in such circumstances a reading should be given to cl 17 which effects that purpose by imposing appropriate standards and facilitating their enforcement.

19                  In response to this latter submission the applicant says that pars 3 and 4 of the Objectives set out in the Code make it clear that the Code is not intended to exhaustively list all acts and omissions, and that the Code imposes on a registered agent an overriding duty to act at all times in the lawful interest of the client’s agent, and any conduct falling short of that requirement may render the agent liable to deregistration.  This, it is said, is given force by the Standard prescribed in cl 5.  The applicant says that instances of untimely conduct which do not constitute a breach of cl 17 may be caught by the requirements of cl 5 which requires a migration agent to act in accordance with the law and the legitimate interests of his or her client.  This is because any significant failure to act in a timely manner could cause prejudice, delay, and inconvenience to a client, and the agent would not in these circumstances be acting in accordance with the legitimate interests of the client. 

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

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

22                  This approach is encapsulated by Bennion, Statutory Interpretation 3^rd ed. 1997 at p 637 as the principle against doubtful “penalisation” which the learned author describes in the following terms:

“It is a principle of legal policy that a person should not be penalised except under clear law (in this Code called the principle against doubtful penalisation).  The court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle.  It should therefore strive to avoid adopting a construction which penalises a person where the legislator’s intention to do so is doubtful, or penalises him or her in a way which was not made clear”.

23                  Although the present Code of Conduct is in the nature of delegated legislation, the above principles, in my view are apposite.  Bennion points out at the foot of that page that the expression “penal” need not be given a strictly criminal meaning, but that a law which inflicts severe detriment, hardship or deprivation of any kind is in essence penal. He also later notes that the principle against doubtful penalisation applies where there is statutory interference with economic interests or with status or reputation: see p 652, 657.  In the present case, the exposure of an agent, as a consequence of breach, may affect him significantly in the practice of his profession, the gaining of his livelihood and in his reputation.

24                  On a natural and ordinary interpretation of the language used, clause 17 is directed at an obligation to act in a timely manner in specific circumstances where the agent has received all necessary information and documentation within times prescribed by legislative guidelines.  The example given supports this view because it instances a situation in which the deadline is the expiry of a visa and this time is prescribed by legislation.  There is no reason shown for ignoring the terms of the qualification to the obligation, or for including words which are not used.

25                  It seems to me that the meaning and operation of cl 17 can be made more clear if the clause “where the client has provided” etc. is placed at the beginning of the sentence.  This makes it evident that cl 17 envisages that it will operate only in circumstances where all the necessary material has been provided and there is a relevant legislative deadline.  Nevertheless as a matter of syntax the second clause in the sentence under consideration is directed to qualify the obligation of the agent to act in a timely manner by setting out the circumstances in which that obligation arises. 

26                  This conclusion does not mean that the narrow scope of cl 17 allows migration agents a charter to otherwise act in an untimely manner free from sanctions.  It is relevant to bear in mind the operation of cl 5 of the Code of Conduct which is in general terms and in my view is sufficiently wide to catch instances of untimely conduct which do not come within cl 17.  Clause 17 identifies specific circumstances in which delay by an agent is likely to have a direct and severe consequences, and the provision aims to ensure that such delay does not occur.  I do not accept the submission of the respondent that in order to come within cl 5 it is necessary that the interests of the client must in fact have been prejudiced.  It seems to me that the notion underlying the expression “legitimate interests” includes the interests of clients in having their case progress with diligence, efficiency and timeliness.  Accordingly, it is not the case that unless cl 17 applies the Code does not provide for the monitoring or sanctioning of untimely conduct by migration agents.

27                  In the course of argument, reference was made on behalf of the applicant to a number of cases in which clauses were considered beginning with the expression “where”.  In these cases the Courts took the view that the meaning of the word “where” could be  properly expressed by other expressions such as “whenever” or “if” or “in a case in which”: see Austin v Federal Commissioner of Taxation [1932]  VLR 335 at 339 per Lowe J; Davies Jenkins & Co Ltd v Davies (Inspector of Taxes) [1968] AC 1097 at 1118 and Scott v Lowe (1981) Tas R 37 at 48.  However, these cases, of course, depend on their legislative context.  Two of them were taxation cases and the last mentioned one was a case concerning breath analysis.  Little if any guidance in my view can be obtained from any of these cases.  The true meaning of cl 17 must be derived from the context in which it occurs having regard to the objectives  and the other provisions of the Code.

28                  Accordingly, for the above reasons cl 17 on its true construction is not applicable in the present circumstances and the reasoning of the AAT discloses a reviewable error of law in relation to this aspect.

29                  Two other matters are raised in the Amended Notice of Appeal.  The first is that the AAT erred in failing to have regard to a relevant consideration, namely whether the client had provided the applicant with all necessary information and documentation to apply for the Australian Pharmacy Examining Counsel examination.  In my view this ground has no substance because the operative breach found by the AAT was that no action had been taken by the applicant to progress the application of the client in the period 30 September 1996 to 3 December 1996.  This breach was antecedent to the lodging of the application.

30                  The third matter raised is the submission that the AAT erred in reaching its conclusion that under s 303 of the Act it was not an available option to issue an informal reprimand in the form of a letter to the agent spelling out the areas in which the agent was allegedly deficient. 

31                  Section 303 quoted earlier, specifically provides for three courses of action where it is established that the agent has not complied with the Code of Conduct.  These are cancellation or suspension of registration of the agent or alternatively cautioning the agent.  The power to impose a sanction under s 303 is discretionary and it would be open to the MARA, previously MARB, not to impose any sanction in any particular case if the circumstances so warrant.  It is therefore suggested that as a matter of construction it was open to the AAT to apply a lesser sanction than a caution.  The applicant also points to s 316(d), which provides that one of the functions of MARA is to take appropriate disciplinary action against registered agents. 

32                  In my view, the AAT conclusion is the correct one.  The fact that three specific consequences are spelt out in s 303 indicates that there is no general discretion in the MARA to impose such other sanctions as it considers appropriate.  If it were otherwise then reference would have been made to such a power enabling the MARA to impose such “lesser” or otherwise sanction as it may see fit.  The implication of such a power would introduce uncertainty and a degree of arbitrariness into the sanctions which could be imposed. Accordingly, I do not think such an implication can or should be made.  Further, the provision in s 316(d) is of no assistance to the applicant because s 316 simply describes the general functions of the MARA, but the specific sanction powers are granted in s 303.  In terms that section gives MARA power to take specific courses of action if there is non-compliance.  The power does not extend further than that.  Accordingly, this third submission must be rejected.

33                  As a final matter, the applicant submitted that not only should the decision of the AAT be set aside, but the matter should not be remitted for further consideration.  Counsel said that the evidence before the AAT did not permit a finding that the applicant had failed to comply with his obligations under cl 17.  In the circumstances, of this case I do not consider that this is an appropriate course to take.  The matter should be remitted to the AAT for reconsideration in accordance with law having regard to these reasons for judgment.

Conclusion

34                  In my view, The AAT has erred in law in the interpretation of cl 17 of the Code of Conduct and the appropriate order is that the application is allowed with costs and the matter is remitted to the AAT for determination in accordance with these reasons.

Associate:

Dated:              26 November 1999