Federal Court of Australia

Yildiz v Migration Agents Registration Authority [2021] FCA 1550

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The applicant appeals a decision of the Administrative Appeals Tribunal dated 30 July 2020 which affirmed a decision of the Migration Agents Registration Authority (the Authority) of 12 October 2018 to cancel the applicant’s registration as a migration agent.

2    An appeal to this court from a decision of the Tribunal lies under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), and is an appeal on a question of law. Although termed an “appeal”, a proceeding under s 44 of the Act invokes this court’s original jurisdiction, and is in the nature of judicial review: see generally, Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 at [15] (Gaudron, Gummow, Hayne and Callinan JJ).

3    The applicant was self-represented before this court. However, she was represented by solicitors and counsel before the Tribunal. The fact that the applicant was represented before the Tribunal is relevant to a number of issues that the applicant raises before this court.

Procedural history

4    The applicant’s notice of appeal was filed on 27 August 2020. The grounds of appeal and questions of law stated in the notice are somewhat disordered. Many of the claims in the notice of appeal go to the merits of the Tribunal’s decision. As I will subsequently address, there is an issue as to whether any question of law is raised.

5    The proceeding was initially listed for hearing on 26 July 2021, and procedural orders had been made for the filing of documents in the lead up to the hearing. Those procedural orders were varied at a case management hearing on 25 June 2021, as the applicant had been unable to prepare for the hearing, and had been unable to file written submissions as ordered. Upon the applicant confirming to the court that she wished to retain the upcoming hearing date, the applicant was ordered on 25 June 2021 to file and serve any amended notice of appeal, and written submissions by 12 July 2021. The applicant failed to comply with the procedural orders as varied, and on the subsequent application of the applicant, the 26 July 2021 hearing date was vacated. At a case management hearing on 27 August 2021 the hearing was re-fixed for 7 December 2021, and the applicant was ordered to file and serve any amended notice of appeal and an outline of submissions by 25 October 2021. No submissions were filed on behalf of the applicant by the due date. The respondent filed written submissions, as ordered, on 15 November 2021. These submissions were responsive to the notice of appeal, but not to any submissions filed by the applicant.

6    On Friday 3 December 2021, the applicant sent two emails to my chambers, copied to the respondent’s solicitors, that contained 29 attachments, some of which were identical, including documents, images of documents, and other emails, and a 34 page written submission. On Monday 6 December 2021, after 6.00pm, the applicant sent a third email to my chambers. This email contained 37 links to files in a OneDrive cloud account. The documents included Optus mobile telephone accounts, various copy emails, copy correspondence from the applicant, and a scanned express post envelope. All this material was presented in an unfiltered, disorganised way. The applicant sent a fourth email to my chambers on the morning of the hearing that attached a further copy of her written submissions, and a form of unsworn affidavit in the name of the applicant that purported to list some of the documents that were emailed to my chambers, but which was otherwise devoid of material content. For reasons to which I will refer later, I declined to permit this material to be tendered at the hearing.

7    The hearing proceeded on 7 December 2021. I heard the applicant and counsel for the respondent, and gave the applicant an opportunity to make submissions in reply.

The legislative background

8    Section 280 of the Migration Act 1958 (Cth) proscribes the giving of immigration assistance (as defined by s 276) by persons who are not registered migration agents. Part 3 of the Act provides for a scheme for the registration and regulation of migration agents. Under s 287 of the Act, a Register of Migration Agents must be kept by the Migration Agents Registration Authority, which is the Minister, who has delegated functions and powers to officers of the Department: see, s 275 and s 320.

9    Section 314(1) of the Migration Act provides that the regulations may prescribe a code of conduct for migration agents. Section 314(2) provides that a migration agent must conduct himself of herself in accordance with the prescribed code of conduct. Regulation 8 of the Migration Agents Regulations 1998 (Cth) prescribes the Code of Conduct set out in Schedule 2 of the Regulations (the Code), which includes the following provisions –

Part 1 - Introduction

…

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.

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.

2.1A    A registered migration agent must not accept a person as a client if the agent would have any of the following conflicts of interest:

(a)    the agent has had previous dealings with the person, or intends to assist the person, in the agent’s capacity as a marriage celebrant;

(d) [sic]    there is any other interest of the agent that would affect the legitimate interests of the client.

…

2.8    A registered migration agent must:

(a)    within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing to the client; and

(b)    act in accordance with the client’s instructions; and

(c)    keep the client fully informed in writing of the progress of each case or application that the agent undertakes for the client; and

(d)    within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client’s case or application.

2.9    A registered migration agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.

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

…

2.15    A registered migration agent must not intimidate or coerce any person for the benefit of the agent or otherwise. For example, a registered migration agent must not engage in any of the following:

(a)    undue pressure;

(b)    physical threats;

(c)    manipulation of cultural or ethnic anxieties;

(d)    threats to family members in Australia or overseas;

(e)    untruthful claims of Departmental sanctions;

(f)    discrimination on the grounds of religion, nationality, race, ethnicity, politics or gender.

…

Part 5 — Fees and charges

…

5.2    A registered migration agent must:

(a)    before starting work for a client, give the client:

(i)    an estimate of charges in the form of fees for each hour or each service to be performed, and disbursements that the agent is likely to incur as part of the services to be performed; and

(ii)    an estimate of the time likely to be taken in performing the services; and

(b)    as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of:

(i)    the estimate of fees; and

(ii)    the estimate of the time likely to be taken in performing the services; and

(c)    give the client written confirmation (an Agreement for Services and Fees) of:

(i)    the services to be performed; and

(ii)    the fees for the services; and

(iii)    the disbursements that the agent is likely to incur as part of the services; and

(d)    give the client written notice of any material change to the estimated cost of providing a service, and the total likely cost because of the change, as soon as the agent becomes aware of the likelihood of a change occurring.

…

Part 6 - Record keeping and management

6.1    A registered migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing:

(a)    a copy of each client's application; and

(b)    copies of each written communication between:

(i)    the client and the agent; and

(ii)    the agent and any relevant statutory authority; and

(iii)    the agent and the Department regarding the client; and

(c)    file notes of every substantive or material oral communication between:

(i)    the client and the agent;

(ii)    the agent and any relevant statutory authority; and

(iii)    the agent and the Department regarding the client.

6.1A    A registered migration agent must keep the records mentioned in clause 6.1 for a period of 7 years after the date of the last action on the file for the client.

…

Part 10 - Termination of services

…

10.2    A client is entitled to ask a registered migration agent (orally or in writing) to return any document that belongs to the client. The agent must return the document within 7 days after being asked.

…

10.5    On completion of services, a registered migration agent must, if asked by the client, give to the client all the documents:

(a)    given to the agent by the client; or

(b)    for which the client has paid.

10.6    If the client terminates the instructions, a registered migration agent must take all reasonable steps to deliver all documents quickly to the client or any other person nominated by the client in writing. If the agent claims a lien on any documents, the agent must take action to quantify the amount claimed and tell the client in a timely manner.

…

10    Section 303 of the Migration Act confers disciplinary powers upon the Authority, providing –

(1)    The Migration Agents Registration 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:

(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.

11    A decision of the Authority is reviewable by the Tribunal pursuant to s 306 of the Migration Act.

The review by the Tribunal

12    Upon the applicant making her application to the Tribunal for review of the Authority’s decision to cancel her registration as a migration agent, by order dated 8 July 2019 the Tribunal made procedural directions, which included the following directions relating to documents to be filed by the applicant –

1.    On or before 19 August 2019, the Applicant must give to the Tribunal and the Respondent:

(i)    a signed statement of evidence from the Applicant;

(ii)    a signed statement of evidence from all witnesses proposed to be called at the hearing;

(ii)    all reports, records and any other documents on which the Applicant intends to rely at the hearing; and

(iii)    a Statement of Facts and Contentions.

13    The applicant confirmed at the hearing before me that she was represented by solicitors who filed the application for review on her behalf, and that she was represented by counsel at the hearing before the Tribunal. The hearing before the Tribunal took place over three days on 5 March, and 13 and 14 May 2020. The court book in this proceeding includes a professionally prepared statement of facts issues and contentions on behalf of the applicant that was before the Tribunal. The Tribunal’s statement of reasons record that there were numerous statements of the applicant before the Tribunal, and that the applicant also gave evidence in person at the hearing, and that on the second day the applicant’s evidence was given via video-conference.

14    The Tribunal’s reasons are published as Yildiz and Migration Agents Registration Authority [2020] AATA 3744. I will make reference to several paragraphs of the Tribunal’s reasons in summarising the background to this appeal. At [4]-[6], the Tribunal referred to the circumstances of the review. Four independent complaints had been received by the Authority in respect of the applicant. The Authority sent notices to the applicant under s 308 of the Migration Act in respect of each of them, including by putting the substance of the complaints to the applicant for response. The background to these complaints, including the responses to the complaints from the applicant, was summarised by the Tribunal at –

(a)    [22]-[23] in respect of the first complaint, from Mr H;

(b)    [25]-[26] in respect of the second complaint, from Mr U;

(c)    [28] and [36] in respect of the third complaint, from Mr S; and

(d)    [38]-[39] in respect of the fourth complaint, from Mr J.

15    In its statement of reasons the Tribunal summarised the evidence of the applicant in respect of each complaint at: [23]-[24] (first complaint); [26]-[27] (second complaint); [36]-[37] (third complaint); and [39]-[40] (fourth complaint). The Tribunal also referred to the evidence that was given in the Tribunal hearing by Mr S in respect of the third complaint, at [29]-[35]. The Tribunal referred at [41]-[45] more generally to evidence given by the applicant about her understanding of the role of a migration agent, and about her admitted shortcomings as an agent and her admitted breaches of the Code. The Tribunal referred at [46]-[47] to the applicant’s evidence that she considered herself to be competent, professional, and honest, that she was thorough and provided appropriate advice and documentation, and that she recognised that she could have done things better in respect of some of her clients, but that her clients also needed to take responsibility for their actions.

16    The Tribunal set out its consideration of some preliminary matters going to procedural fairness and to the standard of proof to be applied by the Tribunal. Counsel for the applicant had raised before the Tribunal an issue relating to the fact that not all complainants were to be called as witnesses and therefore were not available for cross examination. The issue relating to the standard of proof arose in part because one of the allegations made by the Authority was that the applicant had forged the signatures of Mr S and his wife on documents that were submitted to the Department. Mr S was called as a witness and gave evidence, but the other complainants were not. The Tribunal determined that it was not procedurally unfair to the applicant for three of the four complainants not to be called and be available for cross-examination, but that this feature went to the weight to be given to their evidence. Ultimately, the Tribunal did not make a finding of forgery of signatures.

17    The Tribunal concluded that the applicant’s breaches of the Code warranted cancellation of her registration as a migration agent. In relation to the issues on the review generally, the Tribunal found –

(a)    Notwithstanding the submissions on lack of procedural fairness on the ground that three of the four complainants were not available for cross-examination, there was sufficient material in the documentary evidence and the oral evidence from the one complainant and the applicant to be satisfied of various breaches of the Code: [89].

(b)    It was difficult to determine if the applicant had been a credible witness, because her oral and documentary evidence was “so scatological and overwhelmingly irrelevant to the questions raised”. Although this might have reflected a conscious attempt to be evasive and to bombard the Tribunal and the Authority with convoluted and erroneous information to cover her own failings, the Tribunal preferred the view that the applicant’s overwhelmingly informal and personal approach to her clients meant that she had no perspective on her obligations to be professional in her dealings as their migration agent. While the Tribunal held that the applicant had not been lying, it also held that she had not been a completely credible witness when regard was had to her own records and the records of the Department: [90].

(c)    The applicant had failed to maintain adequate client records in respect of all four complainants, which was “indicative of her attitude and conduct of her professional services as a migration agent”: [91]-[92].

(d)    Despite previous complaints, the applicant had not demonstrated a greater understanding of the Code, or her ability to adhere to it: [93].

(e)    The Tribunal was troubled by the applicant’s “tendency to blame her clients for her failings”, which was unprofessional and suggested a lack of capacity or ability to be a registered migration agent: [94].

18    As to the circumstances that were the subject of the four complaints, the Tribunal’s findings are summarised as follows –

(a)    In respect of the first complaint, the Tribunal found at [95]-[100] that the applicant –

(i)    had failed to act in accordance with the legitimate interests of her client, in breach of clause 2.1 of the Code: [95];

(ii)    had failed to confirm instructions and to act in accordance with instructions, in breach of clause 2.8 of the Code: [96];

(iii)    relatedly, in breach of clause 2.8 of the Code, had failed to respond to requests from the Department, failed to lodge documents on time, and had submitted documents after the termination of her retainer: [96];

(iv)    failed to return documents belonging to the client, in breach of clauses 10.2, 10.5 and 10.6 of the Code: [95];

(v)    had by her evidence at the hearing offered multiple excuses for her failure to provide documentation to a new migration agent who had been retained by the client that indicated “a disregard for her client’s wellbeing or her obligation as a registered agent under the Code and was not indicative of an individual who should have the privilege to charge for her services”: [98]; and

(vi)    had not been a party to the production of false claims to support the client’s protection visa application: [100].

(b)    In respect of the second complaint, the Tribunal found at [101]-[109] that the applicant –

(i)    had breached clause 2.1 of the Code in that she had not acted in the legitimate interests of the complainant, as she had not dealt with him competently, diligently and fairly, and had retained fees paid by the complainant without having provided the relevant services, which findings were based upon Departmental records, and the applicant’s own statements: [101]-[102];

(ii)    had maintained file notes in respect of the work for the complainant which the Tribunal described as “alarming” and which appeared to have been created to justify to the Authority the work that she had undertaken: [103];

(iii)    had failed to produce any documentary evidence to support her claims of hours worked on the file, or to show the work she had completed: [103];

(iv)    had misled the complainant by stating that she would lodge visa applications when this never eventuated: [103]; and

(v)    had, in breach of clause 5.2 of the Code, failed to provide the client with a service agreement: [105].

(c)    In respect of the third complaint, the Tribunal found at [110]-[120] that –

(i)    while it was satisfied that the complainant and his wife did not sign the forms that were submitted to the Department, it was unable to form any conclusive views as to whether the applicant had forged the signatures, and therefore contrary to the Authority’s reasons for the decision under review, made no finding that the applicant had breached clause 2.9 of the Code by forging signatures: [110]-[112];

(ii)    the applicant had nonetheless not dealt with the complainant competently, diligently and fairly in all aspects of her handling of the application, and had breached clause 2.1 of the Code: [113];

(iii)    in breach of clause 2.9A of the Code the applicant had misled the Authority in its investigation in respect of information about an application that she had made in Turkey on behalf of the complainant: [114]-[115];

(iv)    based upon evidence of WhatsApp messages passing between the applicant and the complainant’s brother, in breach of clause 2.15 of the Code the applicant had attempted to coerce and intimidate the complainant, by threatening him through his brother, in order to have the complainant withdraw his complaint against her: [116]-[120].

(d)    In respect of the fourth complaint, the Tribunal found that in breach of clause 6.1 of the Code that the applicant had failed to keep proper records: [92], [121].

19    As a consequence of these findings, the Tribunal found that the applicant had breached a number of clauses of the Code, which it listed at [122] –

•    2.1 - act in accordance with the legitimate interests of the client and deal with the client competently, diligently and fairly,

•    2.8 - confirm instructions in writing, act in accordance with instructions, keep client informed

•    2.9 A - not misleading or deceiving the Migration Agents Authority

•    2.15 - not intimidating or coercing persons for the agent’s benefit

•    5.2 - providing clients with service agreements in advance of starting work

•    6.1 - maintaining proper records

•    6.1 A - keeping records for a period of 7 years

•    10.2 - return of documents belonging to the client within 7 days of request

•    10.5 and 10.6 – on completion of services, give to the client all documents for which the client has paid; and after termination of instructions, deliver to the client or their nominated person all documents

20    The Tribunal concluded at [124] that the applicant was “not a person of integrity or otherwise not a fit and proper person to give migration assistance”. As to orders, the Tribunal stated at [126] that the applicant had committed a major breach of the Code. This was because –

… multiple clients had been impacted; continued registration of Ms Yildiz was not in the public interest; her actions had had a major effect on the migration outcome of her clients; her clients had suffered financial loss; she had misled the authority during the investigation; the Tribunal was not satisfied there was any potential to rectify any of her practices; she had repeatedly breached the Code; she had demonstrated reckless behaviour by attempting to intimidate a client into withdrawing a complaint; and the only penalty applicable to such breaches of the Code was cancellation of the registration.

21     The Authority’s decision to cancel the applicant’s registration was accordingly affirmed.

The grounds of appeal to this Court

22    By her notice of appeal to this court, the applicant’s grounds of appeal were not expressed as discrete numbered grounds, but were in the form of a narrative extending over three pages of the notice. The applicant then identified the following matters under the heading “Questions of law”, where “OMARA” is a reference to the Authority –

1.    I am not lawyer my pervious lawyer has emailed my refusal from AAT saying there was no jurisdictional arrow [sic]. I [can’t] offered [sic] a lawyer yet I found [OMARA] made mistake my case yet AAT meant to have independent body however felt they had judgement already before the case started any they just addressed the legal side how that case [itself].

2.    Evidence where clearly looked into not accepted evidence if I did not forwarded from my work email address which was achieved called the crazy Domaine that what they said. At least they could have accepted the evidence I have emailed. AAT did not have any of the client application or file from the department of home affairs.

3.    I was used by my client as scape goat to get a visa or they refund yet there were agent where involved before coming to my service.

4    Client 1 complaint was dismissed OMARA emailed me letter. Yet months later case was reopen. OMARA did not notify me of the complaint for me provide information. They put everything together instead case by case. This case should have [been] thrown out because OMARA did not notify me. I did breach some part of Code of Conduct I should have been given sanction there are case similar breach even more breaches then I OMARA has given sanction. What about OMARA responsibility in handling the case they massy work this had put impact on my cancelation.

5.    I can’t get a job it is on the web sight [sic] I was high respected Migration agent among community know here is cancellation when I apply for job they want to know.

23    The above paragraphs of the notice of appeal did not set out precisely any questions of law to be raised on the appeal: cf, Federal Court Rules 2011 (Cth), r 33.12(2)(b). However, in determining whether a question of law is sufficiently asserted in an application under s 44 of the Administrative Appeals Tribunal Act so as to engage the court’s jurisdiction, the court is not constrained by the questions as stated, or even by the four corners of the notice of appeal: Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [62(4)], [99] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ). Inelegant or confused drafting, particularly by an unrepresented litigant, do not deprive the court of jurisdiction: Luck v Secretary of the Department of Human Services [2015] FCAFC 111; 233 FCR 494 at [49] (Collier, Griffiths and Mortimer JJ).

24    Counsel for the respondent submitted that it was difficult to identify what questions of law were raised by the applicant, and on what issues the court should focus. I accept this submission. This is particularly so because the notice of appeal in substantial part appears to cavil with the merits of the Tribunal’s decision by seeking to have this court review the evidence and to make its own findings as if upon a re-hearing. The applicant’s notice of appeal contained seven paragraphs under the heading “Findings of fact that the Court is asked to make”, which is a heading that is included in the relevant Form 75, downloadable from the Federal Court of Australia’s website. Under that heading, the applicant claimed –

Findings of fact that the Court is asked to make

1.    I want Australian Federal Court look into evidence.

2.    I want Australia Federal Court looked into case independent if I have breached Code of Conduct to [lose] my career reputation.

3.    If OMARA have handled the case ethically organised and investigated the case well and AAT looked independently into the case

4.    I want my career reputation back I want to be given a second change. I want clear my name.

5.    Tbook was not organised applications that was lodged was not included. Complaint that was made initially was [not] made directly by the client nor stat decs where written by the client done by family members. The process my complaint where handled by the OMARA case officer was done, why evidence emailed to OMARA was not included in TBook why did AAT left it last minute hearing to address the matter.

6.    Independent outcome while been looked into this case I think OMARA code of conduct it process should be addressed it was not breached only from me OMARA and client. There is an profession out there has strong code of conduct yet not enough support mechanism, a body such as department that protects the agents or proper training.

7.    I want these matters to be challenged by Federal Court I believe Federal Court will be independent in looking at the case where as AAT could explore or change or request evidence. They did not have jurisdiction even looking at the signature the applicant applicants signature looked original that what respondent stated at hearing yet he said the wife signature was fake.

25    As I mentioned earlier, at the hearing the applicant sought to tender a number of documents that had been sent to my chambers by email. Section 44(8) of the Administrative Appeals Tribunal Act permits the court to receive evidence on appeal which was not given in the proceeding before the Tribunal for the purpose of making findings of fact under s 44(7). The circumstances in which a court hearing an appeal from a Tribunal can make findings of fact under s 44(7) are limited, in that the findings of fact must not be inconsistent with findings of fact made by the Tribunal, and that it must appear to the court that it is convenient for the court to make the findings, having regard to matters listed in the provision –

Federal Court may make findings of fact

(7)      If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if:

(a)      the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and

(b)      it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to:

(i)      the extent (if any) to which it is necessary for facts to be found; and

(ii)      the means by which those facts might be established; and

(iii)      the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and

(iv)      the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(v)      the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and

(vi)      whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and

(vii)      such other matters (if any) as the Court considers relevant.

26    The power to make findings of fact under s 44(8) is related to the circumstances in which a court upon finding an error of law in the Tribunal’s decision might make an order in substitution for the Tribunal’s decision rather than remit the matter back to the Tribunal for re-determination according to law: see, Comcare v Etheridge [2006] FCAFC 27; 149 FCR 522 at [17] (Branson J, Spender J and Nicholson J agreeing); and see also, Repatriation Commission v Butcher [2007] FCAFC 36; 94 ALD 364 at [19] (Tamberlin, Nicholson and Tracey JJ). However, because an appeal from a decision of the Tribunal is on a question of law, in determining whether error is shown in the Tribunal’s decision the court should not usurp the fact-finding function of the Tribunal: see, Repatriation Commission v O’Brien (1985) 155 CLR 422 at 430 (Gibbs CJ, Wilson and Dawson JJ) (noting that this appeal was decided prior to the insertion of s 44(7)-(10) by the Administrative Appeals Tribunal Amendment Act 2005 (Cth)). This necessarily follows from the limitation in s 44(7)(a). The court’s power to admit further evidence is therefore fettered by the limited and discretionary circumstances in which the court on an appeal on a question of law might make findings of fact by way of disposition of the matter. The limitations on fact-finding by the court in s 44(7) of the Administrative Appeals Tribunal Act show that the powers to receive evidence and to make findings of fact are not in aid of permitting this court to determine for itself whether the applicant’s registration as a migration agent should be cancelled, as if on a re-hearing of the application that was before the Tribunal. Moreover, the power to make findings of fact does not alter the nature of the appeal as one that is a form of statutory judicial review on a question of law, and not an appeal on the merits.

27    Rule 33.29 of the Federal Court Rules contains procedural requirements to be followed by a party who seeks to have the court receive further evidence on appeal from a decision of the Tribunal. Those requirements were not followed by the applicant in relation to the proposed further evidence. Of relevance is the requirement in r 33.29(2), that an accompanying affidavit be filed, at least 21 days before the hearing, which states –

(a)    the facts relating to the grounds of the application;

(b)    any evidence necessary to establish the grounds of the application;

(c)    the evidence that the applicant wants the Court to receive;

(d)    why the evidence was not adduced in the Tribunal.

28    Counsel for the respondent did not place any reliance on the procedural irregularity that the applicant had not complied with r 33.29.

29    I heard lengthy submissions from the applicant as to why the court should receive into evidence the documents that she had emailed to my chambers. Counsel for the respondent opposed the tender on the basis that the documents did not relate to any ground on which error might be established. Having regard to s 44(7) of the Administrative Appeals Tribunal Act, I was not persuaded upon hearing the applicant that she sought to tender the documents for any purpose other than to invite the court to make findings of fact that were inconsistent with those of the Tribunal. I therefore declined to receive the documents into evidence in bulk, but reserved to the applicant the ability to seek to tender any individual document that might be relevant to a question of law raised by her appeal.

The applicant’s submissions

30    The applicant’s submissions did not expressly identify any questions of law. The applicant stated that she was appealing under “compelling and compassionate grounds”, and that she wanted to be re-registered as a migration agent. Over the course of 34 pages, the applicant’s submissions sought to assail the merits of the Tribunal’s decision, to address background personal circumstances, and to address the applicant’s claim that she is of good character. The applicant’s written submissions were comprised of a great number of broad-ranging factual assertions directed to undermining the Tribunal’s findings. One exception was a complaint that the Tribunal proceeded without three of the four complainants being available for cross-examination.

31    Of particular concern to the applicant, and which warrants special mention, was the claim by the Authority that she had forged the signatures of Mr S and his wife on documents that were submitted to the Department. In her written and oral submissions to the court, the applicant referred passionately to the injury to her reputation that had occurred in consequence of the Authority’s claims. However, I emphasise and make clear that, as I stated at [16] and [18(c)(i)] above, the allegations of forgery were not accepted by the Tribunal on review, and the Tribunal made no finding of forgery. The fact that the Tribunal made no such finding is recorded in the Tribunal’s published reasons, which are in the public domain.

Consideration

32    Taking a beneficial approach to the whole of the notice of appeal I will act on the submissions of counsel for the respondent that questions of law that might be distilled from the applicant’s material are as follows –

(a)    whether the Tribunal addressed relevant evidence;

(b)    whether the applicant was provided procedural fairness, in the manner of the hearing (by video link), in the opportunities to provide documents, in the documents that were placed before the Tribunal by the respondent, in the opportunity for cross-examination, in the opportunity to provide character references, and in the way closing submissions were made;

(c)    whether the Tribunal’s decision was affected by bias;

(d)    whether the Tribunal placed unreasonable weight on certain matters such that error of law is disclosed; and

(e)    whether the Tribunal’s determination that the appropriate consequence of its findings should be cancellation was affected by error of law.

33    I will now consider each of the issues identified in turn.

Whether the Tribunal addressed relevant evidence

34    The applicant made this allegation at the beginning of her notice of appeal, stating that “The Applicant appeals from Relevant evidence were not addressed”. The applicant also stated, at a later point, that “Many evidence could been looked into” by the Tribunal; and that “Evidence where clearly looked into not accepted evidence”.

35    I accept the submission of counsel for the respondent that in the absence of some coherent argument, or particulars, or some further description of the evidence that was before the Tribunal that was not addressed, it is impossible to evaluate this allegation. It is not possible to discern what it is suggested was missing, or not looked into, or how those claims interact with the Tribunal’s reasons and record, and whether any asserted evidence (i) was not considered and (ii) was important to the Tribunal’s decision. It appeared from the applicant’s oral submissions that she contended that the Tribunal had not been appraised of all relevant facts. However, in light of the fact that the applicant was at all times represented before the Tribunal by solicitors and counsel, and that she was afforded an opportunity by the Tribunal’s procedural orders to place material before the Tribunal, there is no merit in the suggestion that there was any error of law by the Tribunal.

Whether the applicant was provided procedural fairness

36    A number of the applicant’s complaints might be characterised as alleging a denial of procedural fairness. I will address these in turn.

The mode of the hearing (video link)

37    There is no substance in the applicant’s complaint that the hearing before the Tribunal proceeded by way of video link on the second and third days. I take judicial notice of the fact that there were COVID-19 restrictions in place at the relevant time. Section 33A of the Administrative Appeals Tribunal Act authorises the Tribunal to allow or require persons to participate in hearings “by telephone or by means of other electronic communications equipment”. There is nothing in the material before this court to suggest that counsel for the applicant objected to the hearing continuing by video link, and no error of law has been demonstrated.

Opportunities to provide documents and gaps in the documents that were placed before the Tribunal by the respondent

38    The applicant’s complaints about missing documents were referred to by the Tribunal at [65] of its statement of reasons when summarising the submissions of counsel for the Authority –

Mr Yuile asserted that much had been made during the hearing of missing documents and that Ms Yildiz had failed to produce any documents she claimed were not provided to the Tribunal by the respondent in the T-documents in this matter. The delegate’s original decision made much of the lack of documentary evidence provided by Ms Yildiz to support her contention in respect of the numerous allegations against her. Additionally, at no stage had she produced handwritten notes or diary entries corroborating the work she allegedly had undertaken on behalf of the numerous clients, emphasising that Ms Yildiz had had the T-documents since February 2019 but had at no stage specified which documents were missing or produced any of the allegedly missing documents.

39    There is no further consideration of the matter in the Tribunal’s reasons.

40    There was no coherent, ordered submission by the applicant developing a claim that the applicant was denied a reasonable opportunity to place material before the Tribunal, or to seek to have the Tribunal require further identified documents produced from the custody of the Authority. I am not persuaded that there is any foundation for a claim that there was any error of law in this regard.

Cross-examination

41    I referred earlier to the fact that counsel for the applicant advanced a submission before the Tribunal that the Tribunal should not rely on material relevant to the four complaints without having the complainants present and available for cross-examination, and that to do so would be procedurally unfair. The Tribunal did not accept this submission, holding that it was open to it to proceed without particular witnesses appearing before the Tribunal. The Tribunal accepted that what weight would then be given to the statements of those complainants found within the documents was a matter for the Tribunal to decide. When the Tribunal came to deal with the evidence, the Tribunal stated at [89] that “The Tribunal considers that the substantial evidentiary material before it, together with the oral testimony of Mr S and Ms Yildiz, were sufficient to establish where and how she had breached the Code”.

42    The function of the Tribunal is to undertake administrative review of decisions that are referred to it. In doing so, it is not a court bound by the rules of evidence, but it undertakes an inquisitorial review process. The Tribunal stands in the shoes of the original administrative decision-maker and its function is to make the correct or preferable decision on the basis of the available material: Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 at 424-425 (Brennan J). Section 2A of the Administrative Appeals Tribunal Act provides by way of exhortation that –

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

(a)    is accessible; and

(b)    is fair, just, economical, informal and quick; and

(c)    is proportionate to the importance and complexity of the matter; and

(d)    promotes public trust and confidence in the decision-making of the Tribunal.

43    The Tribunal may conduct hearings, as it did in this case, at which the parties are entitled to be represented by another person: s 32, s 34J. Ordinarily the hearing of a proceeding before the Tribunal must be in public: s 35(1). The procedure of the Tribunal is within its discretion, and in this respect, s 33(1) of the Administrative Appeals Tribunal Act provides –

(1)    In a proceeding before the Tribunal:

(a)    the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

(b)    the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

(c)    the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

44    The Tribunal has power to take evidence on oath or affirmation, and may summon a person to appear before the Tribunal to give evidence: s 40(1), s 40A(1). In undertaking its review function, there are conditions implied by common law rules of statutory interpretation that the Tribunal will act reasonably in determining questions of procedure, and in determining whether or not to exercise the powers that are conferred upon it. There is also an implied condition that the Tribunal will accord procedural fairness. The latter obligation is reinforced by the exhortation in s 2A that the mechanism of review will be fair, and by the requirement in s 39 that the Tribunal ensure that every party have a reasonable opportunity to present his or her case. The duty to accord procedural fairness does not involve the extension of the opportunity of cross-examination to any party against whom evidence is called, but it may in particular circumstances do so: Rawson Finances Pty Ltd v Federal Commissioner of Taxation [2013] FCAFC 26; 296 ALR 307 at [73] (Jessup J).

45    I am not persuaded by the submissions advanced by the applicant, or by the material before the court, that the Tribunal’s obligation to accord procedural fairness involved requiring the three relevant complainants to attend for cross-examination as a condition on which relevant material would be considered.

46    In respect of the issues that stemmed from the first complaint by Mr H, the Tribunal’s reasons at [95]-[100] turned on objective evidence in the nature of documents that were referred to in the Authority’s reasons, a lengthy extract from which the Tribunal adopted and set out at [97]. The reasons also turned on significant inconsistencies in various explanations given by the applicant in relation to her conduct, the rejection of those explanations, and a finding that the applicant had submitted handwritten notes on which the Authority did not place weight because of doubts about whether the notes were accurate and contemporaneous, as they appeared to have had dates altered, and information added. The reasons of the Tribunal do not appear to depend upon any weight being given to statements in the complaint by Mr H that were not otherwise supported by the objective circumstances.

47    In relation to the circumstances arising from the complaint made by the second complainant Mr U, the Tribunal’s reasons at [101]-[109] turned on departmental records, an admission by the applicant that she had withheld a refund of moneys from the client to teach the client a lesson, the applicant’s own file notes which the Tribunal described at [103] as “alarming”, the absence of any documentary evidence that the applicant had entered into a service agreement with Mr U, and admissions made by the applicant during the course of her evidence. In these circumstances, it does not appear that the Tribunal’s consideration turned in any meaningful way on the statements in the complaint made by Mr U.

48    In relation to the circumstances arising from the fourth complaint, which was made by Mr J, the adverse findings of the Tribunal are set out in [92] of its statement of reasons, and are limited to finding that there was a failure to maintain proper records.

49    For the above reasons, I am not persuaded that the obligation to accord procedural fairness to the applicant required the Tribunal to order that Mr H, Mr U, or Mr J attend to give evidence and to be cross-examined as a condition of acting on the material before it, or that its failure to do so was material to the outcome of the review.

The opportunity to provide character references

50    Any complaint by the applicant that she was denied the opportunity to furnish character references is unsustainable in the face of the procedural directions to which I referred at [12] above, and the fact that the applicant was represented by solicitors and counsel before the Tribunal.

The way closing submissions were made

51    The applicant complains that closing submissions in the case were done orally at the close of the hearing, and not in writing later. There was no error of law apparent on the material before this court in the Tribunal proceeding in this way. There is nothing to indicate that counsel for the applicant sought the opportunity before the Tribunal to make written submissions at the close of the hearing that were in addition to the statement of facts, issues and contentions that was filed on behalf of the applicant.

Bias

52    Bias falls into two broad categories: actual bias and apprehended bias. The allegation that the applicant makes, so far as it can be discerned from the notice of appeal, seems to embrace both actual and apprehended bias. This follows from statements made by the applicant in the notice of appeal such as –

   (a)    “AAT is independent body to assess the case however I did not felt the decision was fair”;

(b)    “They looked as if they where [sic] doing their job yet they have decided before the hearing”;

(c)    “I felt they made their mind”; and

(d)    “AAT meant to have independent body however felt they had judgement already before the case started”.

53    There is no basis to think that there was any reasonable apprehension of bias, or actual bias. As to reasonable apprehension of bias, the applicant’s material before this court does not identify any feature of the review before the Tribunal that could possibly support a reasonable apprehension of bias. The applicant’s own claims about her perception of pre-judgment go nowhere. As to actual bias, which in this case would amount to a claim of actual pre-judgment, this is a serious allegation that must be proven by evidence. In Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 Gleeson CJ and Gummow J stated at [72] –

The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

54    In the present case, there is no evidence of apprehended or actual bias because there is nothing more than the applicant’s assertions about her impressions.

Did the Tribunal err in failing to attribute weight to certain matters?

55    The applicant alleges that the Tribunal failed to place weight on various features of the review –

… see I felt AAT did not [put] wait [sic] on client not attending ATT [sic] not putting wait [sic] on the evidence OMARA did not look into or put into Tbook. AAT did not put any wait [sic] on the time to the hearing beginning of the case in February 2019 decided on 3 days yet they given 1 day 15 March 2020 hearing was finished early due to member having personal engagement …

56    I have already rejected the complaint that the Tribunal made findings based on the material without the complainants giving evidence. The suggestion that the Authority failed to place documents in its possession before the Tribunal is not supported by the material before the court. The reference to the fact that the hearing before the Tribunal had to be adjourned over after the first day is not capable of being developed into the identification of any question of law that might be the subject of appeal to the court.

Cancellation

57    Finally, the applicant made statements to the effect that the cancellation of her registration was harsh, and sought to rely upon a number of anecdotal instances of migration agents whose conduct in contravention of the Code led to lesser penalties than cancellation.

58    The decision to cancel the applicant’s registration upon making the findings of contravention was a discretionary decision to which the principles in House v The King (1936) 55 CLR 499 apply. No specific error in the Tribunal’s evaluation of the seriousness of the applicant’s contraventions and the protection of the public interest has been shown. Further, having regard to the Tribunal’s findings and to its consideration of the public interest, I am not persuaded that the Tribunal’s decision to affirm the cancellation of the applicant’s registration was unreasonable or plainly unjust such that some error of principle should be inferred.

Conclusion

59    The appeal should be dismissed with costs.

Post script

60    Yesterday, 9 December 2021 at 2:10 pm, and after a draft of these reasons for judgment had been prepared, the applicant emailed to my chambers a document purporting to be an affidavit. The affidavit did not appear to have been sworn. No signature of a person qualified to witness the affidavit was present. Much of the content of the affidavit appeared to be in the form of further submissions. No leave was given to the applicant to rely upon any further material following the hearing. Accordingly, I have not had regard to the additional document: see Frugtniet v Secretary, Department of Social Services [2021] FCAFC 127 at [85] and the cases cited therein.

Associate:

Dated:    10 December 2021