Adrian Phillip Joel v Migration Agents Registration Board & Ors [1997] FCA 989 (11 September 1997)

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - requirement that Migration Agents Registration Board give reasons for decision to consider disciplinary action against a registered migration agent - whether it was arguable that Board had not complied with requirement.

Acts Interpretation Act Commonwealth 1901 (Cth) - s 25D

Judiciary Act 1903 (Cth) - s 39B

Migration Act 1958 (Cth) - s 303, s 309(2), s 310

Administrative Decisions (Judicial Review) Act 1977 (Cth) - s 5, s 6

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

ADRIAN PHILLIP JOEL v MIGRATION AGENTS REGISTRATION BOARD, PAMELA O'NEIL, KEVIN POWER, STEPHEN KARIS, ANGELA CHAN, and TARA SIMPSON

NG 713 OF 1997

FOSTER J

11 SEPTEMBER 1997

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 713 of 1997

BETWEEN:	adrian phillip joel AppLICant
AND:	migration agents registration board First Respondent pamela o'neil Second Respondent kevin power Third Respondent stephen karis Fourth Respondent angela chan Fifth Respondent tara simpson Sixth Respondent
JUDGE:	FOSTER J
DATE OF ORDER:	11 SEPTEMBER 1997
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for interlocutory relief be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 713 of 1997

BETWEEN:	adrian phillip joel AppLICant
AND:	migration agents registration board first Respondent pamela o'neil Second Respondent kevin power Third Respondent stephen karis Fourth Respondent angela chan Fifth Respondent tara simpson Sixth Respondent

JUDGE:	FOSTER J
DATE:	11 SEPTEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(Extempore)

The applicant in these proceedings is a solicitor and registered migration agent. The respondents are the Migration Agents Registration Board ("the Board") established under s 315 of the Migration Act 1958 (Cth) ("the Act") and, apparently, the current members of that Board.

The Board, pursuant to its powers under s 303 of the Act, is currently considering cautioning the applicant or cancelling or suspending his registration. In these circumstances it is required to take the steps provided for in s 309(2) of the Act. That section provides as follows:

"If the Board is considering the cancellation or suspension of a registered agent's registration, or the cautioning of the agent, it must inform the agent of that fact and the reasons for it and invite the agent to make a submission on the matter."

The applicant asserts in these proceedings that the Board has failed to comply with this section in that it has not provided him with the reasons why it has entered upon the considerations in question. He seeks, inter alia, final orders under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) or under s 39B of the Judiciary Act 1903 (Cth) that the respondents furnish reasons in accordance with the section and that they be restrained from any further consideration of the matter under s 310 of the Act until such reasons have been furnished and the applicant has been allowed at least thirty days to make submissions in relation to them.

The application before me is for interlocutory relief in these proceedings. An order is sought in the following terms:

"That until further order of the Court, the respondents or any of them, be restrained from undertaking, causing or permitting any further consideration or determination of the matter before the respondents relating to the applicant pursuant to section 310 of the Migration Act 1958."

The application is supported by two affidavits of the applicant annexing correspondence between him and the Board relating, inter alia, to the question of the provision of the relevant reasons. It is submitted by the applicant and denied by the respondent that this material indicates the existence of a serious issue to be tried. The affidavit of 3 September 1997 annexes a letter from Mr Boyd, the secretary of the Board, to the applicant. It reads as follows:

"Dear Mr Joel,

I refer to your registration as a migration agent.

The attached three complaints have been received concerning immigration assistance you provided to [two named persons] and various applicants' [sic] for Territorial Asylum visas. Before these matters are referred to the Migration Agents Registration Board I would like to provide you with the opportunity to comment on the issues raised in the complaints. Copies of any documentation you wish to forward with your response should be certified."

It appears that this letter follows a procedure whereby the secretary can invite a response at a preliminary stage from the agent in respect of whom a complaint is made. This response may be regarded as adequate and result in the matter not being referred to the Board at all.

There was enclosed with the letter a detailed written complaint concerning the applicant from Mr Phillipps, a Senior Member of the Immigration Review Tribunal. The letter requested the board to investigate:

"... the behaviour of Mr Joel regarding the circumstances surrounding the lodgment and carriage by him on behalf of a number of applications [sic] for Territorial Asylum Class BE (sub-class 800) visas."

That letter pointed to possible breaches of cll 4, 5, 6 and 7 of the Code of Conduct for Migration Agents ("the Code"). Reference was made to thirteen specified cases before the Tribunal in which it was suggested that the applicant had committed Code breaches. There was also a reference to over 100 applications lodged by the applicant in 1995 for Territorial Asylum Class BE (sub-class 800) visas. Numerous other allegations of a specific nature were made in respect of particular applications and the procedures adopted by the applicant in respect of his clients and their cases.

On 20 February 1997, the applicant forwarded by facsimile a letter to Mr Boyd seeking what he described as "proper particulars of the alleged complaints". This request for particulars is lengthy and I do not set it out. It is annexure C to the affidavit of 3 September. In answer to this letter Mr Parrinder, on behalf of the Board, sent to the applicant a letter dated 12 March 1997 which stated in part:

"While the Board understands your wish to provide a detailed response to each of the issues raised in the complaint, the Board invites you to provide a preliminary response at this time on the basis of your own knowledge of the matters to enable the complaint to be considered as soon as possible. If you choose to follow this course of action, the Board will consider your submissions and, in the event that it considers further enquiries are necessary, the Board will contact you again. When any further information requested by the Board has been considered a decision will be taken and you will be informed of the outcome."

On 22 April 1997 the applicant sent to Mr Boyd a lengthy submission - about 247 pages including annexures - dealing with "the issues which [he] believed might concern the complaints ... made against [him] in a general sense".

This, he said in his affidavit, was in reply to Mr Boyd's request in the first letter. This material is not before me. On 6 June the applicant sent a further submission of fourteen pages. He was subsequently advised that it had been distributed to Board members.

By letter dated 7 July 1997, received by the applicant on 15 July 1997, Mr Boyd on behalf of the Board advised the applicant that the complaints made against him by members of the Refugee Review Tribunal and the Immigration Review Tribunal had been considered by the Board at its meeting on 12 to 13 June 1997.

One complaint had been dismissed as unsubstantiated but it was indicated in the letter that:

"... the Board is of the view that the lodgement of the applications for Territorial Asylum could be considered a breach of Migration Agents Code of Conduct, namely Clause 6 (sound knowledge) OR Clause 14 (lodgement of vexatious applications). The Board considers that the applications were without foundation as there was no instrument signed by a Minister stating that Territorial Asylum had been granted."

The letter went on to state:

"The Board is now considering whether to caution you, or to cancel or suspend your registration as a migration agent pursuant to section 303(f) of the Migration Act 1958 (the Act).

In accordance with Section 309(2), the Board invites you to lodge a submission detailing why the Board should not caution you, or cancel or suspend your registration. Please provide your comments within 14 days from the date of this letter."

In addition to certain other requests, it was indicated that the Board members wished to meet with the applicant at the next Sydney meeting of the Board on 31 July 1997. I should add that this meeting with the applicant when, of course, the applicant would be able to make oral submissions, has been postponed to the Board's Sydney meeting in October, a previous arrangement to meet the applicant at the September meeting having been abandoned.

This letter drew a response from the applicant by facsimile on 16 July in which he complained of the shortness of time to respond, given that he had been overseas. He complained that his letter of 20 February requesting particulars had not been answered and sought an urgent response. He also sought further particulars of the Code breaches alleged in the Board's letter and made the following assertion which is germane to his present application:

"Under the Act the Board is to provide me at this stage with proper reasons for the Board's view as stated in the second paragraph of your letter of 7 July, 1997 in accordance with section 309(2) of the Act. There are no such reasons in your letter. The said reasons should include a reference to:

a) formulated charges or grounds of complaint;

b) the evidence and findings on that evidence; and

c) proper reasons for the decision under section 309(2) of the Act."

He also requested information as to "how the Board dealt with my written submissions, if it dealt with them at all". He sought a period of two months to lodge his submission after receipt of the requested information. A faxed reply from Mr Boyd indicated that his letter would be considered by the Board at the July meeting and any interview with him would be deferred to the next meeting. As I have indicated, there has been a further deferral of this interview until the October meeting.

On 28 August Mr Boyd forwarded a letter to the applicant on behalf of the Board advising that his letter had been considered by the Board at it meeting on 31 July. The letter responded to the applicant's request for reasons pursuant to s 309(2) as follows:

"In paragraph 3 of your letter to the Board dated 16 July 1997 you request full reasons why the Board has written to you pursuant to section 309(2) of the Migration Act. The Board is of the view that the decision to write to you pursuant to section 309 does not satisfy the principle laid down by the High Court in Australian Broadcasting Tribunal v Bond in that, generally, for a decision to come within the ADJR Act, it must have a quality of finality, not being merely a step taken on the way to a possible making of an ultimate decision and it must have the quality of being a substantive, as distinct from procedural, determination.

As stated in its letter of 7 July 1997, the Board is considering whether the lodgment with the IRT of territorial asylum applications which had no chance of success constitutes a breach of Clauses 6 or 14 of the Migration Agents Code of Conduct."

This letter also responded to the applicant's complaints of lack of specificity by stating that the Board was currently dealing with the thirteen cases referred to in Mr Phillipps' letter. A reference to the Board noting that over 100 similar applications had been lodged in 1995 was cleared-up at the hearing before me by its being made plain by the Board's representative that these applications were not the subject of investigation. Mr Boyd also stated that the Board had "taken into account matters raised by Mr Phillipps and your response of 22 April 1997". The letter sought the applicant's response within twenty-one days.

I am satisfied that this letter sufficiently indicates that the Board considered that its obligation to provide reasons pursuant to s 309(2) had been fulfilled and that it was not intending to provide further reasons.

In light of these facts, I turn to the question whether the applicant has demonstrated the existence of a serious question to be tried as to whether the respondents have failed to comply with s 309(2) of the Act. It is not suggested that the Board has failed to inform the applicant of the fact that it is considering cancellation, suspension or caution. It is, rather, contended that it has failed to give reasons for taking that course. Of course, it cannot seriously be submitted that there has been a failure to provide any reasons at all. The correspondence clearly negatives any such proposition. What is put is that it is reasonably arguable that the reasons given are so inadequate as not to qualify as reasons within the meaning of the section. Additionally, reliance is placed upon s 25D of the Acts Interpretation Act 1901 (Cth) ("the AI Act") which provides:

"Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression `reasons', `grounds' or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based."

It is submitted on behalf of the applicant that, at this point in the proceedings, the Board has failed to give reasons in that it has not set out its findings and referred to the relevant evidence as required by this section. In particular, as I understand the argument, it is submitted that it is reasonably arguable that, in order to comply with the section, the Board should have responded in a formal written adjudicatory way to the submissions already made by the applicant.

For the Board it is submitted that s 25D of the AI Act has no bearing upon the Board's obligation under s 309(2) of the Act. It is put that the Board, in providing reasons why it is considering cancellation, suspension or caution is not giving written reasons for a decision within the meaning of s 25D, it is merely putting the agent on notice as to the factors which have caused it to enter upon its considerations. This may be contrasted with the actual decision of the Board to cancel, suspend or caution under s 303 of the Act if satisfied that the agent has not complied with the code of conduct proscribed under s 314 (see s 303(h)). Section 305 requires the Board, when it decides to cancel or suspend the registration of a registered agent under s 303, to publish a statement setting out its decision. This statement must set out the Board's findings on any material questions of fact and refer to the evidence or any other material on which the findings of fact were based. Accordingly, where s 305 applies, s 25D of the AI Act is redundant. Clearly, however, if s 305 did not apply, s 25D would prescribe the minimum content of a decision made under s 303. I am quite satisfied that this view of the operation of the section is correct as a matter of construction. There is no need, as was conceded in argument by the respondents, to have recourse to the decision in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 to reach this result. I consider the proposition that s 25D of the AI Act imposes its requirements on the Board when acting under s 309(2) of the Act to be, in effect, unarguable. I am further satisfied that the contention that the reasons given cannot satisfy the requirements of the subsection is equally unarguable. The correspondence identifies the thirteen cases referred to in Mr Phillipps' letter as being the material which has caused the Board to enter upon its considerations. The basis of concern is similarly made clear, being failure to comply with clauses of the Code referred to. Attention is also directed to the fact that the Board considered that the applications for Territorial Asylum could be considered in breach of the Code, as being without foundation in that there was no instrument signed by a Minister stating that Territorial Asylum had been granted. It may well be that more information could have been provided. However, in my view, what was provided was clearly sufficient to satisfy the requirements of s 309(2). The converse, in my opinion, is unarguable.

Accordingly, I find that the applicant has failed to demonstrate the existence of a serious issue to be tried. I therefore dismiss this application for interlocutory relief with costs.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated: 11 September 1997

Counsel for the Applicant:	M A Robinson
Solicitor for the Applicant:	Maddens
Ms D Watson, Solicitor, instructed by the Australian Government Solicitor appeared on behalf of the respondents.
Date of Hearing:	10 September 1997
Date of Judgment:	11 September 1997