FEDERAL COURT OF AUSTRALIA

Woods v Migration Agents Registration Authority [2004] FCA 1622

ADMINISTRATIVE LAW- appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – Administrative Appeals Tribunal confirmed a decision of the Migration Agents Registration Authority – questions of law – migration agent’s registration cancelled – not a person of integrity – not a fit and proper person – agent failed to comply with the Code of Conduct – whether evidence supported findings – whether correct test applied in respect of conflict of interest –ss 290(2), 303(g) and (f) and 314(1) of the Migration Act 1958 (Cth).

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth) ss 290(2), 303(g) and (f) and 314(1)

Migration Agents Regulations 1998

Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 considered

Australian Securities & Investment Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 referred to

Birdseye v Australian Securities & Investment Commission (2003) 76 ALD 321 referred to

Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 referred to

Hughes and Vale Pty Ltd & Anor v State of New South Wales & Ors (No. 2) (1955) 93 CLR 127 considered

Lilienthal v Migration Agents Registration Authority [2001] AATA 797 referred to

Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558 considered

Parks Holdings Pty Ltd v CEO of Customs [2004] FCA 820 considered

Ping, L. S. and Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 referred to

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 referred to

Minister for Immigration & Multicultural & Indigenous Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Re MIMA; Ex parte Durairajasingham (2002) 168 ALR 407 referred to

JAMES MALCOLM WOODS v MIGRATION AGENTS REGISTRATION AUTHORITY

V 647 of 2004

CRENNAN J

9 DECEMBER 2004

MELBOURNE

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs including reserved costs.

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

REASONS FOR JUDGMENT

1                     The applicant appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 11 May 2004.  The Tribunal affirmed a decision of the Migration Agents Registration Authority (“MARA”) of 28 June 2002 to cancel the applicant’s registration as a Migration Agent under Part 3 of the Migration Act 1958 (Cth) (“the Act”).  MARA was exercising its powers under s 303(a) of the Act.

2                     Prior to 25 June 2002, the applicant was the principal of a firm of solicitors trading under the name of Law Partners.  The applicant was also registered as a Migration Agent under Part 3 of the Act.  The present appeal arises from certain events occurring in 1998.  The full details of those events are set out in the Tribunal’s reasons for decision. 

Factual Background

3                     The following summary is based on the findings of fact made by the Tribunal.  At the relevant time, the applicant owned held 97% of the firm “Law Partners Pty Ltd” through which he conducted an extensive business as a solicitor and migration agent.  At some time prior to August 1998, the applicant engaged the services of Mr Alan Huang (“Huang”), who was not a lawyer but a registered migration agent, to ‘attract business from Chinese persons’.  The appeal arises from events concerning the applicant’s conduct in the handling of an application on behalf of a Mr Zhai (“Zhai”), who is a Chinese citizen, for a sub-class 457 Business Visa (“the Visa”). 

4                     On 26 August 1998 Li Li Fang (“Li”) who was acting on behalf of Mr Zhai approached Huang for assistance with Zhai’s Visa.  It appears from the evidence before the Tribunal that Huang was either employed by or otherwise engaged by Law Partners, the applicant’s firm.  Zhai’s initial visa application had been rejected and another migration agent had already filed an appeal to the Federal Court on Zhai’s behalf when Li contacted Huang.  Some discussions followed between Huang and Li to the effect that Li agreed to retain the services of Law Partners to assist with Zhai’s appeal.  According to the evidence before the Tribunal, Huang advised Li that the appeal would be ‘principally handled’ by him under the applicant’s supervision. 

5                     On 28 August 1998, upon advice from Huang, Li agreed on behalf of Zhai to incorporate the firm Hua Fu Enterprises (Australia) Pty Ltd (“the Company”).  According to the terms of incorporation, Law Partners Investments (Far East) Pty Ltd (Law Partners’ investment vehicle) was to hold a 25 per cent share in the company.  The Tribunal noted that the Minutes of the first Directors and Shareholders meeting recorded that both Zhai and the applicant attended.  However, neither the applicant, nor Zhai (who was then resident in China) were present.  A joint bank account was also set up in the Company’s name with the applicant, Huang and Zhai as authorised operators.  Zhai later transferred certain monies into the joint account, again on Huang’s advice.

6                     The applicant gave evidence before the Tribunal that it was Law Partners’ practice to encourage clients to acquire a company so as to demonstrate an ongoing connection with Australia for the purposes of enhancing their qualifications for their business visa applications.  This company was then used to acquire a business as a going concern and Law Partners, as shareholders in the company, would then claim 25% of the realised value of the business when it was eventually sold.  The applicant conceded that as the clients provided 100% of the capital they would also suffer 100% of any loss associated with any particular venture.

7                     In early September 1998 a document entitled ‘Business Commencement and Management Retainer’ was prepared in English by Huang and given to Zhai.  The document purported to retain Law Partners as ‘legal representative to assist Zhai in finding, commencing and managing a business in order to allow him to make a visa application to reside temporary (sic) or permanently in Australia.’  According to the evidence before the Tribunal, Zhai and Li were not provided with a translation of the document nor any assistance regarding its interpretation.  Further, neither the applicant, nor any other person at Law Partners advised Zhai to seek independent legal advice concerning this document.

8                     On 31 October 1998 Zhai and Li attended Law Partner’s offices for a meeting with Huang and his assistant Mr Wu.  During the meeting, Huang advised Zhai that he should immediately acquire a business to satisfy the Visa application.  It appears the applicant was not present during this discussion.  A few days later, on 4 November 1998, Huang put forward a proposal to Zhai about a restaurant-café he had heard was for sale called the Paragon Café.  Huang advised that he knew the owners of the restaurant and made certain representations concerning the turnover and operation of the restaurant.  Huang advised Zhai that the purchase price of the restaurant was $250,000 and the price was not negotiable. 

9                     On 5 November 1998 Zhai and Li again met Huang at the offices of Law Partners.  Huang introduced Zhai and Li to a person called Chang whom he said was interested in purchasing the restaurant as a joint venture with Zhai.  The vendors were also present at the meeting.  Neither the applicant nor any other person at Law Partners attended the meeting.

10                  Huang indicated that the purpose of the meeting was to sign a contract for the purchase of the proposed restaurant.  Huang advised Zhai and Li that once the restaurant was purchased the Visa application could proceed.  It seems that the contract was initially presented to Zhai and Chang on the basis that a deposit of $180,000 was payable upon signing the contract and the balance of the purchase price could be the subject of a loan over which the business would be offered as security.  At some point during the meeting, further discussions ensued between the vendors and Huang and the proposed contract was altered.  The final version of the contract provided that the business would only be transferred upon full payment of the $250,000 asking price.  Zhai and Chang both signed the amended contract.  Neither the applicant nor any other solicitor or employee of Law Partners attended the meeting.  Huang also asked Li to sign two cheques drawn on the Company’s account for the sums of $15,000 and $75,000.  The $15,000 cheque was made out to cash (it was later discovered that the funds were drawn by Huang), while the $75,000 cheque was made payable to the vendors of the café.

11                  In oral evidence before the Tribunal the applicant claimed that ‘he was not involved in the purchase of the Café’ and ‘he could not say whether Zhai purchased the Café to support his visa application.’

12                  On 9 November 1998 Zhai and Li attended the Paragon Café for the first time and were disappointed with what they saw.  They immediately returned to Law Partners where they met with Mr Geary, another solicitor engaged by Law Partners.  Mr Geary informed Zhai and Li that despite a three-day cooling off period contained in the contract because the purchase price was over $200,000 they could not be released from the contract.  It was also alleged that the applicant refused to meet with them to discuss the contract.

13                  On 11 November 1998, the applicant attended the Paragon Café with Zhai and Li and two other persons.  The applicant ‘advised Zhai to return to China and submit the visa application (from China) as was required by the [Department of Immigration and Multicultural Affairs].’

14                  On 20 October 1998 Zhai and Li again attended at Law Partners offices where they were presented with a number of documents to sign purportedly associated with the transfer of the Paragon Cafe.  The documents had not been translated but upon requests from Li, a person employed by Law Partners assisted with the interpretation of the documents.  Li and Zhai also met with the applicant to sign a shareholders agreement that provided for the Company to own and operate the Paragon Café and for 25% of the shares in the Company to be held by Law Partners’ investment company.  The Tribunal noted that MARA found that despite references in the records of those meetings to the contrary, neither the applicant nor Huang had advised Zhai and Li to obtain independent legal advice in relation to those documents.

15                  On 8 December 1998 a representative of Law Partners advised Zhai that the ‘representations made prior to signing the [contract of purchase of the restaurant] may prove wrong.’  On the same day Li advised the applicant by fax that Zhai was not prepared to pay the balance on the purchase price.  However Li later agreed to sign the loan documents including consent to execution of a Bill of Sale over the restaurant as security for the loan.

16                  It appears that the Paragon Café ceased to be operational sometime in early December.  The applicant gave evidence that he was involved in preparing the relevant documents to effect the legal transfer of the restaurant.  The evidence before the Tribunal also included letters and memoranda from the applicant to Zhai and Chang concerning the restaurant.  On 22 January 1999 the applicant wrote to Zhai and Chang on behalf of Law Partners to outline his concerns regarding the future operation of the restaurant:

“What concerns me is that having put in a significant effort over say 12 or 18 months for little or no reward then you may turn around and blame Law Partners for these problems ….

To this end, in consideration of Law Partners continuing to assist in the operations of the business as previously agreed, you agree to:

1.      release and discharge Law Partners Solicitors from all liability in connection with any legal work carried out on my behalf;

2.      confirm my complete satisfaction with the manner in which Law Partners handled my legal case;

3.      bring no action against Law Partners in any forum whatsoever and agree that this release and discharge may be pleaded as a bar to any such action;

4.      make no complaint to the Law Institute of Victoria, the Victorian Lawyers RPA, the Legal Ombudsman, the Legal Practice Board, the Migration Agents Registration Authority or any other consumer or complaints organisation regarding Law Partners and further agree that this release may be shown in full answer to any such complaint;

5.      keep secret all dealings between myself and Law Partners and to make no public comment regarding Law Partners.”

17                  Shortly thereafter Zhai and Chang terminated the retainer with Law Partners and instructed other solicitors.  On 8 February 1999 the applicant wrote to the solicitors acting for Zhai and Chang and advised them that Law Partners would no longer be involved in the operation of the restaurant.  Zhai and Chang later sold the café for $50,000 and brought a complaint against the applicant for professional misconduct before the Legal Professional Tribunal of Victoria (“the LPT”) and MARA.

LPT’s decision

18                  On 25 June 2002, the LPT decided to cancel the applicant’s practising certificate and prohibited him from reapplying for a practising certificate for a period of eight years calculated from 16 August 2002. 

19                  The LPT found, inter alia, that the applicant was guilty of three charges of misconduct.  The LPT determined that the following findings of fact were relevant to the penalty to be applied:

“The Tribunal did not accept [the applicant’s] sworn evidence as to various matters concerning his dealings with Zhai and Chang;

we did not believe some statements made by [the applicant] to the Legal Ombudsman in the course of her investigation;

failing to give advice to Zhai and Chang concerning various conflicts of interest which arose from arrangements made by Law Partners with Zhai and Chang;

failing to advise Zhai and Chang to obtain independent legal advice;

failing to ensure that they obtained independent legal advice;

writing a letter dated 3 December 1998 to Li and Zhai containing statements he knew were false;

intermingling the business affairs of Zhai and Chang with his business affairs;

failing to explain important documents to Zhai;

having Zhai and Chang execute a shareholder’s agreement on 20 November 1998 when he knew that no explanation had been given to them about the agreement or about conflicts of interest arising from the agreement and knowing that they had no opportunity to obtain independent legal advice before executing it;

failing to assess adequately or at all the business of City Paragon Café;

failing to exercise control and supervision of Huang;

failing to give advice to Zhai or Chang as to their positions and rights under the contract for the purchase of the business after he became aware of the contact entered into by them, after the events of 5,6,9 and 11 November 1998 failing to recommend or insist that Zhai seek independent advice as to either his rights under the contract or his rights against [the applicant’s] and Law Partners;

writing a letter dated 22 January 1999 to Li demanding comprehensive releases and secrecy as a condition for Law Partners continuing to carry out its retainer and thereby attempting to conceal its wrong doing.

We did not accept [the applicant’s] sworn evidence concerning alleged conversations with Power of the Law Institute about Law Partners’ arrangements with Huang as to his remuneration, nor did we accept his evidence that he believed that the arrangement with Huang was simply a way of structuring Huang’s remuneration which did not involve income sharing from Law Partner’s legal practice.”

MARA’s decision

20                  A complaint was also made to MARA concerning the applicant’s conduct as a migration agent in relation to the same events, which were the subject of complaint before the LPT.  In making its determination MARA had regard to the evidence before the LPT and the LPT’s reasons for decision.  On 28 June 2002 MARA exercised its discretion under s 303 of the Act to make the following determination:

“(a)      it was satisfied that the Applicant was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance within s 303(f);

(b)       it was satisfied that an individual related by employment to the Applicant was not a person of integrity within s 303(g);

(c)        it was satisfied that the Applicant had not complied with the Code of Conduct prescribed under s 314(1) as in force from time to time; and

(d)       to exercise the powers given to MARA by s 303(a) of the Migration Act to cancel the registration of the Applicant by removing his name from the Register kept by MARA under s 287(1).”

(“MARA’s decision”)

Tribunal’s Decision

21                  The matter came before the Tribunal on 10 July 2002 by way of an application for review of MARA’s decision.  An appeal from a decision of MARA lies to the Tribunal pursuant to s 306 of the Act.  On 11 May 2004, the Tribunal decided as follows:

“1.       The decision under review in so far as it was decided that an individual related by employment to the applicant was not a person of integrity within s 303(g) of the Migration Act 1958 (“the Act”), is set aside and in substitution it is decided that relevant persons were not related by employment.

2.         The remaining parts of the decision namely:

(i)                 the applicant was not a person of integrity or was not a fit and proper person to give immigration assistance within s 303(f) of the Act; and

(ii)               the applicant had not complied with the Code of Conduct prescribed under s 314(1) of the Act; and

(iii)             to cancel the registration of the applicant as a registered migration agent by removing his name from the Register,

are affirmed.”

This appeal is confined to paragraph 2 of the Tribunal’s decision.

22                  The Tribunal’s determination involves a hearing de novo such that in determining whether to affirm MARA’s decision, the Tribunal was required to ‘stand in MARA’s shoes’.  The Tribunal correctly referred to its role as involving a hearing de novo in its reasons for decision.  The question for determination before the Tribunal was whether on the evidence before the Tribunal MARA had correctly exercised its discretion under s 303 of the Act to cancel the applicant’s registration.  In determining whether MARA had acted correctly the Tribunal was required to take account of certain factors listed under s 290(2) of the Act, which provides:

“(2)      In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:

(a)   the extent of the applicant’s knowledge of migration procedure; and

(b)   whether the applicant has a qualification prescribed by the regulations or a knowledge of migration procedure that the Authority considers to be sound; and

(c)    any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:

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

(ii)               a person of integrity;

(except a conviction that is spent under Part VIIC of the Crimes Act 1914); and

6.      any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and

7.      any disciplinary action that a professional association is taking, or has taken, against the applicant that the Authority considers relevant to the application; and

8.      any bankruptcy (present or past) of the applicant; and

9.      any other matter relevant to the applicant’s fitness to give immigration assistance.”

(emphasis added)

23                  The Tribunal noted that, ‘in our review of the decision we would need to be satisfied that one or more of the other decisions under review should be affirmed.’  The Tribunal then went on to determine upon a review of the evidence before it that the applicant was not a person of integrity or not otherwise a fit and proper person to give immigration assistance.  In making this determination the Tribunal made reference to the proceedings before the LPT as it was required to do pursuant to s 290(2)(e) of the Act.  At paragraph 293 of its decision the Tribunal stated:

“We reaffirm that we have conducted a hearing de novo where we will have regard to the evidence and findings of [the LPT] but ultimately the findings that we make will be in the exercise of discretions available to us and the powers given to us by the Act and the Administrative Appeals Tribunal Act 1975 (“the AAT Act”).”

24                  The Tribunal made the following findings.  First, the Tribunal noted that the applicant did not call any persons in the proceedings before it that may have assisted him.  It noted that:

“Despite his frequent references to the successful nature of his immigration practice not one client – past or present – was called as a witness in support of his fitness, propriety and integrity as a migration agent.  Many witnesses were called who spoke of the personal attributes of (the applicant).

…

It is his professional reputation that is the subject of this part of the review and he has chosen or omitted to call persons who have previously engaged him in migration applications.”

Secondly, the Tribunal went on to consider the evidence put forward by the applicant.  It stated that it ‘took a dim view’ of certain of the documents which the applicant attempted to rely upon, including an unsigned affidavit of Zhai that the applicant had drafted.  Zhai did not give evidence before the LPT and the Tribunal rejected the applicant’s submission that the unsworn affidavit should be accepted as Zhai’s ‘evidence’.  The Tribunal summarised the relevant evidence before it in considerable detail.

Thirdly, the Tribunal considered whether the duties and responsibilities owed by migration agents to their clients were any different from those duties and responsibilities owed by lawyers.  It concluded that:

“…having regard to the objectives of the Act, the intention of Parliament as evident by the Minister’s speech upon introduction of the Act, the numerous decisions of superior courts referring to the vulnerability of migration applicants and the duty generally of a professional seeking reward and – not insignificantly – the prescription of a Code of Conduct applicable to migration agents – that the standard of conduct of migration agents are no less than the standard of conduct owed by lawyers.”  (emphasis added)

25                  Finally, cl 8.2 of the Code states:

“A migration agent must properly supervise the work carried out by staff for the agent.”

Having regard to this provision, the Tribunal determined that ‘(it) had no doubt that the applicant did fail to exercise the duty he owed as a migration agent to effectively control his office (refer cl 8.1 and cl 8.2 of the Code) by allowing Huang to act in the manner that he did as a contracted person.’  The Tribunal also appeared to attach some importance to the fact that the applicant continued to engage Huang’s services for some time after the events concerning Zhai and Chang.  It stated ‘we would have thought it would be appropriate for a person of fitness, propriety and integrity to immediately dismiss him, such was the disgraceful and dishonourable conduct that he displayed.’

The proceeding in this court

26                  On 20 May 2004, the applicant issued two proceedings, a notice of appeal under s 44 of the AAT Act and an application for an order for review of MARA’s decision under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth).  The applicant filed a notice of discontinuance in relation to the latter proceeding on 8 July 2004. 

27                  The application is made pursuant to s 44 of the AAT Act. Section 44(1) of the AAT Actprovides that:

“A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.”

28                  Under s 44(4) of the AAT Act, the Court:

“shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.”

29                  Section 44(5), without limiting s 44(4), allows the Court to make an order:

“affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence.”

30                  The following principles may be distilled from recent authorities on the question as to what constitutes a question of law for the purposes of s 44 of the AAT Act:

·        the questions stated must truly be pure questions of law because the existence of a question of law is the subject matter of the appeal itself;

·        the question must be stated with precision as a true question of law;

·        whether the AAT failed to give proper consideration to the evidence before it is a question of fact, not a question of law; and

·        whether the evidence was capable of supporting the AAT’s conclusion is not a question of law.

31                  On 2 June 2004, the Court refused to grant the applicant’s notice of motion seeking a stay of the Tribunal’s decision (but reserved the question of costs) and expedited the trial of the proceeding to be heard on 10 July 2004. 

32                  On 10 June 2004, the applicant filed an amended notice of appeal under the AAT Act.

33                  The amended notice of appeal raises three questions of law on the appeal:

“(a)      Whether the Tribunal misunderstood the test to be applied in considering whether the applicant was not a person of integrity or was not a fit and proper person to give immigration assistance at the time of its decision by disregarding and/or failing to consider his conduct and/or his character and/or his reputation together with his knowledge and ability as a migration agent in the period of nearly six years since the events giving rise to the matters relied upon by it for the purposes of affirming the decision to cancel the registration of the applicant as a migration agent.

(b)       Whether the Tribunal failed to take into account of (sic) relevant or material considerations being the the (sic) applicant’s conduct and/or his character and/or his reputation together with his knowledge and ability as a migration agent in the period of nearly six years since the events giving rise to the matters relied upon by it for the purposes of affirming the decision to cancel the registration of the Applicant as a migration agent. (original underlining)

(c)        Whether the Tribunal applied the wrong test and/or asked the wrong question in considering whether the Applicant was not a person of integrity or was not a fit and proper person to give immigration assistance by holding that the standard of conduct to be required of migration agents is no less than that owed by legal practitioners.”

The statutory framework

34                  Section 290(2) of the Act has been set down in paragraph 22 above.  Section 303 of the Act provides that:

“Discretionary cancellation or suspension of registration etc.

The Migration 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:

            . . .

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

            . . .

10.               the agent has not complied with the Code of Conduct prescribed under section 314.

35                  Section 314 of the Act provides that:

“Code of Conduct for migration agents

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

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

36                  The Migration Agents Code of Conduct (“the Code”) that applied at the time of the events was to be found in Sch 2 of the Migration Agents Regulations 1998.  So far as is material, it provided as follows:

“Part 1           Introduction

1.1              The Code is intended to regulate the conduct of migration agents.

1.2              The Migration Agents Registration Authority (the Authority) is responsible for administering the Code.

1.3              A person who wants to operate as a migration agent must register with the Authority

1.4              The Code applies to an individual who is listed in the Register of Migration Agents kept by the Authority under section 287 of the Migration Act 1958 (the Migration Act).

1.5              To ensure compliance with the Code, the Authority may impose an administrative sanction if a breach of the Code is found to have occurred.

1.6              An administrative sanction may range from a warning through to suspension of registration or the ultimate sanction of cancellation of registration.

1.7              Accordingly, the Code does not impose criminal sanctions.

1.8              However, there are a number of offences under the Migration Act and the Migration Regulationsthat also deal with the kind of activity covered by the Code.  These activities include misleading statements and advertising, practising when unregistered and misrepresenting a matter.  Provisions of the Crimes Act 1914 and the Code and the Trade Practices Act 1975 may also apply to these activities.

1.9              The Code is not intended to displace any duty or liability that a migration agent may have under the common law, or the statute law of the Commonwealth, a State or a Territory, in relation to a matter covered by the Code.  The provisions of the Code should be read in the light of this principle.

1.10          The aims of the Code are:

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

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

(i)                 being of 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 migration agent, including record keeping and file management;

(vii)           properly managing and maintaining client records;

(c)                to set out the duties of a migration agent to a client, an employee of the agent, and the Commonwealth and it agencies:

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

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

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

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

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

1.12          However, the Code imposes on a migration agent the overriding duty to act at all times in the lawful interests of the agent’s clients.  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 migration agent must always:

(a)               act in accordance with the law and the legitimate interests of his or her client; and

(b)               deal with his or her client competently, diligently, fairly and without any conflict of interest that would affect the legitimate interests of the client.

. . .

2.4       A migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.”

(emphasis added)

It can be observed in passing that the current Code, which came into operation on 20 December 2002, contains provisions prohibiting a migration agent from accepting as clients persons with whom the agent ‘intends to be, involved . . . in a business activity that is relevant to the assessment of a visa application . . .’ (Part 2, 2.1A(c)).

Questions of law Nos. 1 and 2

37                  Counsel for the respondent submitted that the principle in Parks Holdings Pty Ltd v CEO of Customs [2004] FCA 820 (“Parks Holdings”) answered questions of law Nos. 1 and 2.  In Parks Holdings Goldberg J stated at [62/63]:

“The submissions of the applicant require the Court to trawl through the evidence in detail and to evaluate the evidence to determine whether it supports the Tribunal's findings.  But a court should approach such a task with caution.  The Tribunal is the ultimate determiner of the facts and it should only be in exceptional cases, where there is a clear case that there was no evidence to support a particular finding and conclusion, that the court should undertake that exercise.  If there be evidence supporting the Tribunal’s findings or conclusions then the Court should resist the temptation to consider the evidence going the opposite way for the purpose of establishing that there was no evidence upon which a finding would have been made.

… it does not follow that the absence of particular matters means that they were ignored by the Tribunal.  At all times the Court must be guided by the beacon that any identified error must be an error of law and that the Court ought to exercise an element of restraint before concluding that because a matter is not referred to in the Tribunal’s reasons, it did not take it into account.”

38                  Counsel for the respondent also submitted that the Tribunal had dealt with the evidence concerning the post-Paragon Café events.  The respondent further submitted that the applicant had already conceded the following:

(i)                  That the Tribunal had dealt with the applicant’s evidence about his business practices post the Paragon Café;

(ii)                That the Tribunal had referred to the applicant’s evidence of being involved in the drafting of proof of evidence dated March 1999 which proof contained errors and falsities;

(iii)               That the Tribunal had summarized assertions by the applicant at the Tribunal hearing in 2003 that evidence given by other persons to the Legal Professional Tribunal in 2001 was false.  The Tribunal also drew adverse inferences as to the applicant’s credit based on his attempt to rely on an unsigned affidavit of Mr Zhai;

(iv)              That the Tribunal had alerted the applicant during the hearing to the fact that ‘his refusal to concede the connection between the immigration assistance and the Café purchase reflected negatively upon his character and would be an indicator of whether he was a person of integrity and whether he was a fit and proper person to be registered as a migration agent’;

(v)                That the Tribunal dealt with the applicant’s evidence concerning the conflicts of interest which had arisen as a result of his involvement in the Paragon Café events.  The Tribunal also considered the applicant’s current understanding about conflicts of interest in the past.

In oral submissions, counsel for the applicant conceded that the applicant was now confining himself to taking issue with two points.  First, whether the Tribunal had considered his evidence as to the running of his migration practice at the time of the Tribunal hearing and secondly, whether the Tribunal had properly considered the witnesses called by the applicant on the issue of his integrity, fitness and propriety. 

39                  Counsel for the applicant submitted that the Tribunal ‘confined itself almost wholly to an assessment of the events of 1998 and how the Applicant responded in the hearing before it to the findings of “professional misconduct” that had been made by the [LPT]…’  Counsel for the applicant contended that the Tribunal had committed an error of law by drawing an adverse inference from the fact that the applicant did not put forward any clients as referees. 

40                  In response, counsel for the respondent submitted:

“The submission which has been made in the contentions to your Honour is that the weight of those was something for the [Tribunal], and the [Tribunal] has had regard to it because the [Tribunal] has expressly said, when making its conclusions, that it had regard to all the documents in the case, and [the witness statements] were part of the documents which were tendered in the case.”

Counsel for the respondent also submitted that the Tribunal made findings ‘adverse to the Applicant that were open to it to make in determining the merits of the case.’  Counsel for the respondent referred in written submissions to the Tribunal’s decision where it noted that it did not consider the evidence given by the applicant’s witnesses as to the ‘personal attributes of [the applicant]’ to be of assistance in determining ‘the attributes of [the applicant’s] character as a migration agent.’ 

41                  The applicant then submitted that the Tribunal made an error of law because it failed to deal with some of the ‘essential elements’ contained in the terms ‘fit and proper person’.  In essence the applicant submitted that the Tribunal had erred in law because it failed to consider the applicant’s ‘character and reputation’ and ‘conduct in practice since 1998’, a period of some six years. 

42                  Counsel for the applicant also claimed that, pursuant to s 290(2) of the Act, the Tribunal was obliged to take these two considerations into account because they were ‘matters relevant to the applicant’s fitness to give immigration assistance’:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.  Counsel for the applicant referred the Court to Lilienthal v Migration Agents Registration Authority [2001] AATA 797 where the tribunal stated:

“A consideration of whether or not a person is one of integrity cannot be disassociated from the character of that person.  It is on account of the above mentioned significant position occupied by a migration agent, that she or he is required to be a person of integrity and otherwise fit or proper to give immigration assistance. ”

Counsel for the applicant contended that there is a link between fitness and propriety such that ‘the concept of fit and proper can not be divorced from the conduct of the person who is engaging in the activities in question…’.  Counsel for the applicant then submitted that the Tribunal committed an error of law because it confined its consideration of the issue of ‘character as a migration agent’ to the ‘putative clients’ appreciation or acknowledgement of these matters.’

Question of law No. 3

43                  In relation to question of law numbered 3, counsel for the applicant submitted that the Tribunal applied the wrong standard by assessing the applicant’s conduct as a migration agent according to the standard applicable to solicitors.  Counsel for the applicant referred to the Tribunal’s conclusion set out above at paragraph 16 and contended that the:

“…analogy with a fully fledged profession can not be extended here to Migration Agents in view of the vast differences between the status of an agent and the legal and other professions for which tertiary education and a period of intensive practical experience is required before admission is granted to the profession …”

Counsel for the applicant also submitted that the applicant ought to have been assessed according to the Migration Agents Code of Conduct in 1998, that is at the time of the events leading to the conflict of interest.  It was further submitted that ‘this issue of the standard which the tribunal sought to apply was a matter which did in fact go directly to the exercise of power when it made the decision regarding lack of fitness and propriety and integrity.’

44                  Counsel for the respondent submitted that no question of law arises because it was ‘open to the Tribunal to make a finding of fact in determining the merits of the case that the avoidance of conflict of interests applied both to solicitors and migration agents without distinction.’ 

Consideration

45                  The Tribunal relied on established principles in authorities relevant to considering whether ‘a person is fit and proper’: for example, Hughes and Vale Pty Ltd and Anor v State of New South Wales and Ors (No. 2) (1955) 93 CLR 127 at 156 per Dixon CJ, McTiernan and Webb JJ:

“The expression ‘fit and proper person’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocations.  But their very purpose is to give the widest scope for judgment and indeed rejection.  ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things, honesty knowledge and ability: ‘honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it’ – Coke.”

46                  Reliance was also placed on Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 (“ABT v Bond”) at 380 per Toohey and Gaudron JJ:

“The expression ‘fit and proper person’ standing alone, carries no precise meaning.  It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities.  The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of he person who is or will be engaging in those activities.  However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur.  The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”

47                  There is no doubt the Tribunal understood the statutory framework, the relevant authorities and applicable principles.

48                  Also of assistance in this context is the decision of Wilcox J. in Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558 where his Honour dealt with s 290 of the Act at [10], [20] and [21]:

“It will be noted that subs (1) is in mandatory terms.  It forbids the registration of an applicant as a migration agent if the Migration Agents Registration Authority is satisfied of any one of three matters.  The first of those matters is that the applicant is ‘not a fit and proper person to give immigration assistance.’

. . .

I do not think that there is a relevant genus in subs (2), I think Parliament has deliberately used language in para (h) sufficient general to cover any other matter which can be regarded as relevant to integrity or fitness to give immigration assistance, whether or not that matter falls within, or overlaps, any of the preceding paragraphs .

. . . the ambit of the Registration Authority’s inquiry is circumscribed by its statutory context.  The Authority is not concerned with moral perfection in every aspect of life, but only those aspects of character and behaviour which go to fitness to give immigration assistance.”

49                  In essence, the applicant claims in respect of questions of law numbered 1 and 2 (that is, the relevant test was misunderstood and the relevant matters were not taken into account) that the Tribunal assessed the applicant’s character or reputation by reference to putative clients’ assessments rather than by the evaluation of his peers and the Tribunal failed to take into account the applicant’s character and reputation in relation to his conduct of an extensive migration practice since the events of 1998.  

50                  In the context of this submission, it needs to be noted that it had never been the case that the applicant was unable to conduct a migration practice by reason of lack of knowledge of migration procedure.  The Tribunal referred to many matters dealing with the applicant’s migration practice since the events of 1998.  For example, the Tribunal summarised the applicant’s own evidence about his business practices, which included referring to manuals he had prepared after the Paragon Café events. 

51                  The Tribunal also took into account:

·                   the applicant’s concession that he was involved in the drafting of proofs of evidence of Huang and Mr Wu after the Paragon Café events, which proofs contained errors and falsities;  

·                   the applicant’s assertions that evidence given by other persons to the Legal Profession Tribunal in 2001 was false;

·                   and drew an adverse inference from the fact that the applicant sought to rely on an unsigned draft affidavit of Zhai before the Tribunal;  

·                   the applicant’s oral evidence as to his understanding about conflicts of interest;

·                   the evidence of the appellant’s colleague, Mr Neil Ogge; and

·                   the applicant’s future plans in relation to the running of a migration practice. 

In relation to this last point, the Tribunal noted:

            “. . .(the appellant) said that were he permitted to practice he would do so as a sole practitioner in a small office and would seek to re‑establish his credibility.  He said that his practice had over 2,000 current clients prior to the invention of the LPT and MARA and he conducted ‘the biggest migration practice’.  He said that he had ‘no other problems’ in practice but did agree that the café purchase was a disaster.”

52                  Ultimately, the Tribunal made adverse findings in determining the merits of the case after consideration of all of the evidence including the evidence relating to the applicant’s personal attributes.

53                  It is clear from the way in which the Tribunal summarised the evidence that it considered the factual matters arising from the evidence of ten witnesses, which included evidence about the conduct of the applicant up to the time of the Tribunal hearing.  After dealing with that evidence in some detail the Tribunal found:

“A review of the evidence heard in these proceedings and the evidence of the LPT and also upon a review of our findings of fact, and the multitude of documents lodged, has caused us to conclude to our reasonable satisfaction that Mr Woods is not a fit and proper person to give immigration assistance.

. . .

We are satisfied that improper conduct has occurred, we cannot assume that it will not occur again and we certainly are of the opinion that the general community would not have confidence that it would not again occur (refer Bond)

. . .

In all of the circumstances we are satisfied that the . . . decision under review should be affirmed and his registration as a migration agent should be cancelled.”

54                  It appears clear to me that, far from misunderstanding the test to be applied, the Tribunal indicated it had a clear understanding of the test.  It is also clear that the Tribunal took into account relevant matters including the applicant’s conduct of a migration practice since the events of 1998 and the evidence of various persons including the applicant’s colleague and one assumes peer, Mr Ogge. 

55                  The reasons of an administrative decision‑maker should not be scrutinized in an over zealous fashion in order to glean some inadequacy in the way the reasons are expressed: Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996)185 CLR 259 at 272.  Whether the Tribunal failed to give proper consideration to the evidence before it is a question of fact not one of law: Birdseye v Australian Securities & Investment Commission (2003) 76 ALD 321; Australian Securities & Investment Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at [152].  Where a tribunal makes a wrong finding of fact within the jurisdiction, there is no error of law: ABT v Bond at 355-356; see also Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 at 1263 per Gummow J.  It should only be in exceptional cases where there is a clear case that there was no evidence to support a particular conclusion that the court should undertake the exercise of evaluating the evidence in circumstances where the Tribunal is the ultimate determiner of facts: Parks Holdings at [62].  This is not a case where there is no evidence to support a conclusion of fact nor was it a case where the conclusions drawn could be said not to have been open to the Tribunal.  It is not a jurisdictional error for an administrative decision‑maker to fail to refer to a piece of evidence: Ping, L.S. and Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 at 236 per Carr J. (Sheppard and Gummow JJ agreeing). 

56                  A Tribunal is not required to set out in its reasons a line-by-line refutation of the evidence led by the applicant which is contrary to its findings or conclusions: see Re MIMA; Ex parte Durairajasingham (2002) 168 ALR 407 at 422-423 per McHugh J.  The Tribunal had regard to the evidence and made findings of fact, which were open to it and were not perverse.  The Tribunal undertook the task of determining the facts without error in accordance with the principles referred to in the abovementioned authorities.

57                  The applicant’s complaint in essence in relation to question of law No. 3 was that the Tribunal applied the same standard in assessing the conduct of the applicant as a migration agent as the standard governing the practice of a solicitor.  It was argued that this was unrealistic, migration agents were not professionals in the sense in which solicitors were and that even if the ‘avoidance of conflicts of interest’ standards applied to both solicitors and migration agents, the evaluation of a migration agent’s awareness of such a conflict fell to be assessed within a separate and discrete disciplinary framework. 

58                  The respondent submitted that where the Tribunal made references in its reasoning to the standards applicable to solicitors, such references do not amount to any jurisdictional error.

59                  The reference in the Tribunal’s decision to the standard applicable to migration agents appears to be no more than a reference to the fact that avoiding a conflict of interest is as much a standard of professional conduct for a migration agent as it is for a solicitor.  This observation is entirely consonant with the express terms of cl 2.1 of the Code (as it was until 20 December 2002) extracted in paragraph 36 above. 

60                  Both groups, migration agents and solicitors, owe a duty to a client to act in accordance with the law and the legitimate interests of the client.  Avoiding conflicts of interest is a sub‑set of acting ‘in accordance with the law’ (cl 2.1(a) of the Code) as a conflict of interest, which may give rise to a breach of duty, may also constitute a breach of the law.  Given cl 2.1(a) of the Code, and the other matters to which the Tribunal referred, the Tribunal’s observation that the standard(s) of conduct for migration agents is no less than the standard(s) of conduct owed by lawyers, cannot amount to an error of law.  Accordingly, I accept the submission for the respondent that no ‘question of law’ within the meaning of s 44 of the AAT Actarises from the Tribunal’s decision.  It is noted that under the provisions of s 292 of the Act, the cancellation of the applicant’s registration is effectively for a period of five years.  Thus while the standard of conduct is no less than the standard applicable to solicitors, that standard has not been applied in a higher, different or inappropriate way, nor has the applicant been assessed by the Tribunal as anything other than a migration agent.  In his capacity as a solicitor the applicant had an eight‑year disqualification imposed in circumstances where the LPT took into account, inter alia, the same events subsequently considered by MARA.

Conclusion

61                  No errors were disclosed in the approach of the Tribunal in respect of any of the three questions of law raised on this appeal.  The appeal must be dismissed with costs.

Associate:

Dated:              9 December 2004