Hartnett v Migration Agents Registration Authority [2004] FCAFC 269 (7 October 2004)

Last Updated: 7 October 2004

FEDERAL COURT OF AUSTRALIA

Hartnett v Migration Agents Registration Authority [2004] FCAFC 269

ADMINISTRATIVE LAW - suspension of migration agent’s licence pursuant to s 303 of the Migration Act 1958 (Cth) – migration agent’s Code of Conduct – clause 2.18 of the Code of Conduct – failure to act in a timely manner – whether a failure to comply with a statutory deadline – clause 2.9 of the Code of Conduct – whether agent made misleading statements in support of an application under the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth)


WORDS AND PHRASES – "application"



Migration Act 1958 (Cth) ss 119, 121, 122, 275, 276, 280, 287 303, 314
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Administrative Decisions (Judicial Review) Act 1977 (Cth)

Migration Agents Regulation 1998 (Cth) schedule 2, cll 2.1, 2.4, 2.9, 2.18, 6.2
Migration Regulations 1994 (Cth) reg 2.44

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 considered
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 applied
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 considered

Gore-Browne on Companies (Boyle & Sykes) (44^th ed)
Palmer’s Company Law (24^th ed)
Macquarie Dictionary (3^rd ed)
Shorter Oxford Dictionary (4^th ed)





BEAU TIMOTHY JOHN HARTNETT v MIGRATION AGENTS REGISTRATION AUTHORITY

Q 48 OF 2004




MADGWICK, FINKELSTEIN AND DOWSETT JJ
7 OCTOBER 2004
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 48 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	BEAU TIMOTHY JOHN HARTNETT APPELLANT
AND:	MIGRATION AGENTS REGISTRATION AUTHORITY RESPONDENT
JUDGES:	MADGWICK, FINKELSTEIN AND DOWSETT JJ
DATE OF ORDER:	7 OCTOBER 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

(1) the appeal be allowed;

(2) the orders made by Marshall J be set aside;

(3) the order of suspension against Mr Hartnett be set aside;

(4) the finding that Mr Hartnett’s conduct was contrary to clauses 2.9 and 2.1(b) of the Code of Conduct be set aside;
(5) the matter be remitted to the Tribunal for further consideration in accordance with law; and
(6) the respondent pay the applicant’s costs of this appeal and of the proceedings before Marshall J.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 48 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	BEAU TIMOTHY JOHN HARTNETT APPELLANT
AND:	MIGRATION AGENTS REGISTRATION AUTHORITY RESPONDENT

JUDGES:	MADGWICK, FINKELSTEIN AND DOWSETT JJ
DATE:	7 OCTOBER 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

BACKGROUND

1 The appellant ("Mr Hartnett") was admitted as a solicitor of the Supreme Court of Queensland on 17 February 1992 and, on 14 October 1994, was registered as a migration agent pursuant to the Migration Act 1958 (Cth) (the "Act"). On 15 October 2002 the respondent ("MARA") determined that Mr Hartnett’s registration as a migration agent should be suspended for a period of one year. He applied to the Administrative Appeals Tribunal (the "Tribunal") for review of that decision but was unsuccessful. From that decision he appealed to this Court. His appeal was unsuccessful at first instance. He now appeals from that decision.

REGISTRATION AND DISCIPLINE OF MIGRATION AGENTS

2 Part 3 of the Act is headed ‘Migration agents and immigration assistance’. Section 276 defines "immigration assistance" as follows:

‘(1) For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:

(a) preparing, or helping to prepare, the visa application or cancellation review application; or
(b) advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or
(c) preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or
(d) representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.

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

(a) preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or
(b) advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or
(c) representing the other person in proceedings before a court or review authority that relates to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.

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

(a) does clerical work to prepare (or help prepare) an application or other document; or
(b) provides translation or interpretation services to help prepare an application or other document; or
(c) advises another person that the other person must apply for a visa; or
(d) passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.

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

3 It is of some significance in this matter that the term "immigration assistance" includes only:

· acting or assisting in a visa application;
· acting or assisting in a cancellation review application; and
· acting or assisting in nominating or sponsoring a visa applicant.

4 The terms "cancellation review applicant" and "cancellation review application" are defined in s 275 as follows:

‘In this Part, unless the contrary intention appears:

cancellation review applicant means an applicant for:

(a) review of a decision to cancel a visa held by the applicant; or
(b) revocation under section 137L of the cancellation of a visa held by the applicant; or
(c) review of a decision under that section not to revoke such a cancellation.

cancellation review application, in relation to a cancellation review applicant, means the application by the applicant.

...’

5 Section 280 provides:

(1) Subject to this section, a person who is not a registered agent must not give immigration assistance.

...

(1A) ...

(2) This section does not prohibit a parliamentarian from giving immigration assistance.

(3) This section does not prohibit a lawyer from giving immigration legal assistance.

(4) This section does not prohibit an official from giving immigration assistance in the course of his or her duties as an official.

(5) This section does not prohibit an individual from giving immigration assistance if the assistance is:
(a) not given for a fee or other reward; and

(b) not given in his or her capacity as an employee of, or a voluntary worker for, another person or organisation; and
(c) not given in the course of, or in association with, the conduct of a profession or business.

(6) This section does not prohibit an individual from giving immigration assistance in his or her capacity as:
(a) a member of a diplomatic mission; or
(b) a member of a consular post; or

(c) a member of office of an international organisation.

(7) ...’

6 Section 275 defines the term "registered agent" to mean ‘an individual registered as a migration agent under section 286’. That section forms part of Division 3 which deals with such registration. MARA is the relevant registration authority. (See s 287.)

7 Pursuant to s 303, MARA may:

‘(a) cancel the registration of a registered agent by removing his or her name from the register; or
(b) suspend his or her registration; or
(c) caution him or her;

if it becomes satisfied that:

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

(e) the agent becomes bankrupt; or

(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g) an individual related by employment to the agent is not a person of integrity; or
(h) the agent has not complied with the Code of Conduct prescribed under section 314.’

8 A Code of Conduct has been prescribed pursuant to s 314.

THE VISA CANCELLATION

9 MARA suspended Mr Hartnett’s registration pursuant to s 303(b) upon the ground that it was satisfied that he had not complied with the Code of Conduct. In so doing it acted in response to a complaint received from Alain Daniel Ruthenberg, a citizen of Brazil. Mr Ruthenberg came to Australia in the mid-1990s to further his education. He enrolled at Bond University and now holds the degree of Master of Business Administration in that university. In 1999, he applied for a temporary business visa and retained the appellant to act on his behalf in that regard. Such a visa was issued for employment with a company, "Saxby Bridge Pty Ltd". The visa was subject to a condition that:

‘The holder must not change employer or occupation in Australia without the permission in writing of the Secretary ... .’

10 The following version of events is based upon the view of the evidence taken by the Tribunal. It seems that Mr Ruthenberg became disillusioned with Saxby Bridge and resigned in March 2000. He consulted Mr Hartnett concerning the effect of his resignation upon his visa. Mr Hartnett identified two alternative courses which Mr Ruthenberg might take. One option was to find another employer acceptable to the Secretary. The second was to enrol at an educational institution and apply for an appropriate student visa. It seems that Mr Ruthenberg decided to adopt the latter course. We infer this from the fact that Mr Hartnett applied on his behalf for such a visa. (See AB (Vol 1) 127-129.)

11 By this time, Mr Ruthenberg had decided that there were business opportunities in assisting overseas students to study in Australia. Bond University had indicated that it wished to retain him to recruit students, primarily, perhaps entirely, from overseas. Other educational institutions had also approached him. At the request of Bond University, Mr Ruthenberg caused Mr Hartnett to incorporate a company called Australia Go Pty Ltd ("Australia Go"). This occurred on 7 April 2000. Mr Ruthenberg intended that the company would undertake his education-related business activities. Mr Hartnett understood that Mr Ruthenberg was the managing director of Australia Go. It entered into agency agreements with persons in other countries who effectively carried out the recruiting process, referring candidates to Australia Go for advice as to appropriate educational institutions in Australia and perhaps for assistance in dealing with them.

12 On 28 July 2000, the Department of Immigration and Multicultural Affairs (the "Department") gave notice of intention to cancel Mr Ruthenberg’s visa. The grounds were his resignation from his employment with Saxby Bridge and his activities in connection with Australia Go. He again retained Mr Hartnett to act for him. The notice required that Mr Ruthenberg make any submissions concerning the proposed cancellation by 11 August 2000. Mr Hartnett sought an extension until 25 August 2000, which extension was granted. The relevant response was not sent until 5.26 pm on 29 August. However it was sent to the wrong fax number and not received by the relevant officer until 31 August. By the time that the submission was received by the relevant officer Mr Ruthenberg’s visa had been cancelled and notification of cancellation dispatched. Nonetheless the officer re-considered the matter in light of the submissions but affirmed the cancellation. One of Mr Hartnett’s employees, Ms Buttigieg-Pocock, said that on 28 August, an officer of the Department had agreed to accept the submissions on 29 August. The officer disputed this assertion.

MR RUTHENBERG’S COMPLAINT

13 On 1 October 2001, Mr Ruthenberg lodged a complaint with MARA concerning Mr Hartnett’s conduct as a migration agent. MARA notified Mr Hartnett of the complaint and received submissions from him concerning it. Having considered those submissions it made the following findings:

‘(a) On 1 October 2001 the Authority received a complaint from Alain Ruthenberg (the "Complainant"); and

(b) On 15 October 2001 the Authority published the complaint to the Agent and received a response on 5 November 2001. Further material including the Agent’s file was received by the Authority on 9 November 2001; and

(c) On 2 July 2002 the Authority considered the matter at its meeting. The Authority resolved pursuant to Section 309(2) of the Migration Act 1958 to invite the agent to lodge a submission as to why the Authority should not caution him, cancel or suspend his registration for his breach of Clauses 2.1(b), 2.3, 2.4, 2.18 and 6.2 of the Code of Conduct as at 1 April 1998; and

(d) The Authority found that the Agent failed to deal with his client competently, diligently, fairly and without any conflict of interest that would affect the legitimate interests of his client in contravention of clause 2.1(b) of the Code of Conduct as at 1 April 1998; and

(e) The Authority found that the Agent failed to have due regard to his client’s dependence on his knowledge and experience in contravention of clause 2.4 of the Code of Conduct as at 1 April 1998;

(f) The Authority found that the Agent failed to act in a timely manner after the client provided all the necessary information and documentation in time for statutory deadlines in contravention of clause 2.18 of the Code of Conduct as at 1 April 1998;

(g) The Authority found that the Agent failed to keep all documents to which the client was entitled securely and in a way that would ensure confidentiality while the Agent was giving services to the client and until the earlier of two years after the date of the last action or when the documents were given to the client or dealt with in accordance with his client’s instructions, in contravention of clause 6.2 of the Code of Conduct as at 1 April 1998;

(h) The Authority considered the matter at its meeting on 15 October 2002. Based on the material before it the Authority decided to suspend the Agent’s registration for a one year period as it was satisfied that pursuant to section 303(h) of the Act, the Agent had not complied with the Code of Conduct prescribed under section 314 of the Act.’

MARA’S DECISION

14 MARA concluded that Mr Hartnett had breached the Code of Conduct in three respects. Firstly, he had breached cl 2.1 of the Code which then provided:

‘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 interest of the client.’

15 MARA also considered that cl 2.4 was relevant to this aspect of the case. It provides:

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

16 The alleged breach arose out of the advice given by Mr Hartnett to Mr Ruthenberg concerning the consequences of the latter’s resignation from employment with Saxby Bridge and his subsequent actions in connection with Australia Go. As we have observed, Mr Ruthenberg’s visa was subject to the condition that:

‘The holder must not change employer or occupation in Australia without the permission in writing of the Secretary ... .’

17 Mr Ruthenberg was aware of this condition. There is no reason to believe that he did not understand it. Nonetheless, MARA found:

‘On 30 August 2000 Mr Ruthenberg’s 457 [visa] was cancelled on the basis that he had left his employer and has established the company Australia Go and was recruiting overseas students.

The Agent was aware that the client had left his employment and the Agent had incorporated the company for Mr Ruthenberg. There is no record on the file that the Agent ever discussed any difficulties that may flow from this situation for the client.

The Agent has noted in his responses to the Authority dated 2 November 2001 and 20 December 2001:

"at the time of Mr Ruthenberg’s pending resignation from Saxby Bridge he was advised of the options available to him and the condition which applied to his visa. Mr Ruthenberg made informed decisions and took some calculated risks which unfortunately impacted adversely on his immigration status."

"Mr Ruthenberg made a decision to defer notifying DIMA to afford him as much time as possible to arrange sponsorship from another employer. Further correspondence is located on the file and/or files."

There is nothing on the files to support these assertions. File notes kept by the Agent and Melissa Buttigieg are generally detailed but they focus on decisions of the client and not advice given. While they do suggest discussion of the difficulties involved in leaving sponsored employment, the need to find an alternate sponsor and returning to university the issue of the company incorporation does not arise.

The Agent says the client took calculated risks. This suggests the Agent knew the course the client intended to pursue but failed to caution him in writing. Given the nature of the consequences which were likely to occur and in fact have occurred (ie the 457 visa was cancelled and the client has lost his rights to apply for further temporary visas onshore) a prudent agent would have provided detailed written advice setting out the options and possible consequences.

In the circumstances the Authority finds that the Agent breached clauses 2.1(b) and 2.4 of the Code.’

18 It seems that the perceived breach was Mr Hartnett’s failure to provide written advice.

19 The second aspect of Mr Hartnett’s conduct which MARA found to be unsatisfactory was his failure to respond in a timely way to the notice of intention to cancel Mr Ruthenberg’s visa. Clause 2.18 of the Code of Conduct provides:

‘A migration agent must act in a timely manner if the client has provided all necessary information and documentation in time for statutory deadlines. For example, in most circumstances an application under the Migration Act or Migration Regulations must be submitted before a person’s visa ceases to be in effect.’

20 MARA concluded that Mr Hartnett’s failure to forward his submissions within the prescribed time, as extended, was a breach of cl 2.18.

21 MARA also concluded that a third aspect of Mr Hartnett’s conduct breached cl 6.2 of the Code which provides:

‘A migration agent must keep all documents to which a client is entitled securely and in a way that will ensure confidentiality while the agent is giving services to the client and until the earlier of:

(a) 2 years after the date of the last action on the file for the client; or
(b) when the documents are given to the client or dealt with in accordance with the client’s written instructions.’

22 It seems that Mr Hartnett had mislaid certain documents from his file concerning Mr Ruthenberg’s matter.

23 As a result of these findings MARA suspended Mr Hartnett’s registration as a migration agent for a period of one year.

REVIEW BY THE TRIBUNAL

24 Mr Hartnett sought review of that decision in the Tribunal. The Tribunal disposed of the matter in a way which differed in some respects from that adopted by MARA. At [3] of its reasons, the Tribunal identified the following findings by MARA:

‘(i) the applicant had failed to deal with Mr Ruthenberg competently, diligently and without any conflict of interest that would affect the legitimate interests of Mr Ruthenberg in contravention of clause 2.1(b) of the Code of Conduct;

(ii) the applicant failed to have due regard to Mr Ruthenberg’s dependence on his knowledge and experience in contravention of clause 2.4 of the Code of Conduct;

(iii) the applicant failed to act in a timely manner after Mr Ruthenberg provided all the necessary information and documentation in time for statutory deadlines in contravention of clause 2.18 of the Code of Conduct; and

(iv) the applicant contravened clause 6.2 of the Code of Conduct in relation to the keeping of documents securely in connection with the provision of services to Mr Ruthenberg.’

25 At [7], the Tribunal noted that MARA had abandoned reliance upon the matters identified in [3(iv)] and indicated that it would refer to each of the remaining aspects as the "first conduct", the "second conduct" and the "third conduct". The Tribunal purported to deal with the first of these matters at [115] – [123], the second at [124] – [127], and the third at [128] – [131]. However, as will be seen, the subject matter dealt with under those three headings varied in some respects from that set out in [3(i)], [3(ii)] and [3(iii)]. We will identify the three points considered by the Tribunal as:

·	the "Inadequate Advice" point;
·	the "Late Lodgment" point; and
·	the "Misleading Statements" point.

Inadequate Advice

26 At [115], the Tribunal identified this aspect as:

‘... did the applicant properly and competently advise Mr Ruthenberg that his involvement with Australia Go was or could be an activity that constituted a breach of his visa condition, as a result of which the visa would be liable to cancellation?’

27 Both Mr Hartnett and his former employee, Ms Buttigieg-Pocock, gave evidence that Mr Ruthenberg had been advised of the risks involved in ‘... working without regularising his visa status ...’. At [120] the Tribunal concluded that ‘... any advice which may have been given in relation to the risks ... was not conveyed with sufficient definity [sic]’ and at [123] that:

‘... the applicant did not provide adequate and particularised advice to Mr Ruthenberg to the effect that his visa would be liable to cancellation. I find therefore that the first conduct was in breach of clause 2.1(b) and/or clause 2.4 of the Code of Conduct, in that he did not deal with his client competently and that he did not have due regard to his client’s dependence on his knowledge and experience.’

28 This finding differs from MARA’s finding on the first aspect of the case which was that Mr Hartnett should have given written advice. However there is no appeal against the Tribunal’s findings in this regard.

Late Lodgment

29 At [124] – [127] the Tribunal referred to the late lodgment of submissions as the "second conduct". However at [7], it had identified the "second conduct" as arising under cl 2.4 of the Code of Conduct (reliance upon the migration agent) and the "third conduct" as arising under cl 2.18 (timely conduct). This inconsistency is of no significance in dealing with the late lodgment point but is of some relevance to our consideration of the Tribunal’s decision concerning the third aspect of the case at [128] – [131]. We will return to that matter at a later stage. As to late lodgment, the Tribunal said at [125] – [127]:

‘125. Whilst some criticism may be levelled at the applicant’s behaviour in not notifying his client for 12 days after the faxed receipt of the NOIC was received in his office (on the applicant’s evidence) or for something like 15 days (on the respondent’s evidence), it is the case that, on 11 August 2000, the applicant had requested and been granted an extension of time.

126. There was clearly some misunderstanding or breakdown in communication between [the Department] and Ms Buttigieg-Pocock as to whether the submission would be accepted by DIMA on 29 August 2000. However, irrespective of that, the fact remains that the response was not provided until after close of business on 29 August 2000 and to compound matters, it was sent to the incorrect facsimile number. I find that [Mr Hartnett], by virtue of Ms Buttigieg-Pocock’s actions and his omission to ensure that the submission was received and directed to the right address, did not act in a timely manner and was in breach of clause 2.1(b) of the Code of Conduct.

127. Whilst I accept that the applicant’s conduct or omission falls short of exemplary, I am not persuaded that such conduct or omission is of such a nature that it constitutes a failure to deal with his client competently and diligently.’

Misleading Statements

30 Clause 2.9 of the Code of Conduct provides that:

‘While a migration agent cannot be responsible for misinformation provided by a client, an 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.’

31 At [128], the Tribunal, purported dealing with the "third conduct", found:

‘128. In relation to the third conduct, the applicant accepted that he drafted a letter on behalf of the Academy, and that the letter was submitted to DIMA on 29 August 2000 in response to the NOIC. The issue for determination is whether at the time the applicant knew or believed that certain assertions in that letter were false, inaccurate and/or misleading. The assertions in question are that Mr Ruthenberg "did not work for Australia Go" and he "was not employed at all".’

32 This conduct was not the basis of any finding made by MARA; nor was it identified by the Tribunal as part of the subject-matter which it was considering as outlined at [3] and [7] of its reasons. However the appellant does not complain of any denial of procedural fairness in this regard. Nonetheless, these circumstances may explain certain difficulties which emerge from the way in which the Tribunal treated this aspect of the matter. It arose out of a letter forwarded by Mr Hartnett to the Department with the submissions dated 29 August 2000. The letter was from the Academy of SAFE Therapies ("AOST"), apparently an educational institution with which Mr Ruthenberg had dealings. It is headed ‘ALAIN RUTHENBERG – AUSTRALIA GO PTY LTD’. The writer makes certain observations concerning Mr Ruthenberg and the nature of his activities in connection with Australia Go and then continues:

‘Recently Alain Ruthenberg attended at AOST with Elisa and Nicole, fellow Brazilians. Elisa and Nicole expressed to us that while they had recently completed an English language course they wanted the reassurance of Alain’s company whilst they completed their enrolment.

I am aware that the Department has suggested that Alain has changed employer or occupation in Australia. My understanding is that whilst Alain has established Australia Go he does not work for the company. The recruitment of students in fact takes place overseas by registered agents. Further I understand that Alain is presently awaiting the finalisation of an application by him for a further Student Visa and that at the present time he is not employed at all.

I have observed the strength of Alain’s social ties within the Gold Coast community as well as having some understanding of his wide network of business contacts.

I believe that Alain has made huge personal sacrifices to come to Australia and pursue his tertiary studies. It would be most unfortunate if Alain’s attendance at AOST with Elisa and Nicole was wrongly considered as work and activity that would normally attract remuneration. In this regard, new students are accompanied by currently enrolled students all the time. This role of accompanying a new student as a friend can not be replaced by a paid worker for example.

AOST wishes Alain every success with the completion of his studies at Bond University.

I urge the Department not to exercise any discretion that would result in Alain’s visa being cancelled.’

33 It is common ground that Mr Hartnett drafted this letter intending that it be signed on behalf of AOST and forwarded to the Department with the submissions to be made on behalf of Mr Ruthenberg. Of this matter the Tribunal said at [129] – [131]:

‘129. It was conceded by the applicant, when pressed, that he knew that the letter formed an important part of the response to the NOIC and he knew that it would be relied on by DIMA. For the reasons enumerated elsewhere in these reasons, I find that the applicant had knowledge that Mr Ruthenberg was engaged in activities which might be construed as work. Whilst he asserted in cross examination that he was using the "work" in the sense of that definition in the Migration Regulations, the letter did not have the status of a legal opinion. It was a letter to be signed by someone employed by the Academy. The letter does not suggest that the term "work" is being used other than in its normal sense.

130. At the end of the day, it matters little whether the term "work" was used in the general sense or in terms of the definition in the Migration Regulations. I find that Mr Hartnett had full knowledge of the applicant’s involvement in Australia Go. I reject his assertion that he first became aware that Mr Ruthenberg was intending to personally assist international students with placements on 14 June 2000, given his contact with Mr Ruthenberg over the previous few months.

131. Whilst it was contended that the applicant was following the instructions which he took from Mr Ruthenberg, I accept Mr Ruthenberg’s evidence that the applicant dictated in his words what he proposed to write to DIMA. Further, the dictated notes do not, in their entirety, reflect accurately Mr Ruthenberg’s instructions and are at odds with the applicant’s knowledge of the true state of events. In making those assertions, I find that the applicant knowingly made false, inaccurate and/or misleading assertions and that such conduct is in breach of clause 2.9 and 2.1(b) of the Code of Conduct in that he did not deal with his client competently.’

Determination of the Tribunal

34 Having regard to its findings the Tribunal determined that Mr Hartnett’s registration should be suspended for one year.

PROCEEDINGS AT FIRST INSTANCE ON APPEAL

35 The grounds of appeal were diffuse. The learned primary Judge doubted whether any of them raised a question of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). There was much to be said for that view. Nonetheless, in dismissing the appeal, his Honour considered the merits of some of the grounds. Before us counsel for Mr Hartnett has refined the arguments so as to identify more clearly the legal issues raised. It will therefore be easier for us to address the matter than it was at first instance. As we have observed, there is no appeal concerning the Inadequate Advice point.

THE PRESENT APPEAL

36 The present appeal concerns only the Tribunal’s findings in connection with the Late Lodgment and Misleading Statements points.

Late Lodgment

37 Mr Hartnett’s criticism of this aspect of the Tribunal’s decision is not easy to follow. This is partly due to an apparent error in the Tribunal’s reasons. At [126] and [127] of the reasons, the Tribunal said:

‘126. ... I find that the applicant, by virtue of Ms Buttigieg-Pocock’s actions and his omission to ensure that the submission was received and directed to the right address, did not act in a timely manner and was in breach of clause 2.1(b) of the Code of Conduct.

127. Whilst I accept that the applicant’s conduct or omission falls short of exemplary, I am not persuaded that such conduct or omission is of such a nature that it constitutes a failure to deal with his client competently and diligently.’

38 Clause 2.1(b) of the Code provides that a migration agent must:

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

39 There was no suggestion of unfairness or conflict of interest. Hence the finding in [127] that Mr Hartnett’s conduct did not constitute a failure to deal with his client competently and diligently excluded a finding that he had breached cl 2.1(b). It is common ground that the reference to cl 2.1(b) in [126] should be to cl 2.18 which provides that a migration agent must:

‘... act in a timely manner if the client has provided all the necessary information and documentation in time for statutory deadlines. For example, in most circumstances an application under the Migration Act or Migration Regulations must be submitted before a person’s visa ceases to be in effect.’

40 For reasons which we will discuss in considering the Misleading Statements point, it may be arguable that the Code regulates only conduct by a migration agent in connection with immigration advice. Mr Hartnett’s response on Mr Ruthenberg’s behalf to the notice of proposed cancellation would not fall within the definition of that term. However that point is not raised in connection with this aspect of the case. Mr Hartnett rather complains:

· that the Tribunal did not identify the statutory deadline which had been breached;
· that the finding of a breach of cl 2.18 was inconsistent with the finding that he had not failed to act competently and diligently; and
· that the time in which Mr Hartnett was to lodge the submissions had been extended to midnight on 29 August 2000 and that it was lodged within that extended time frame.

A statutory deadline

41 Where the Minister considers that there are grounds for cancelling a visa and is considering doing so, he or she must, pursuant to subs 119(1):

‘(a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or

(ii) there is a reason why it should not be cancelled.’

42 Subsection 119(2) requires that such notification be ‘... in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate’. Section 121 requires that an invitation under par 119(1)(b) specify how the visa-holder should respond to the invitation and, if he or she is to respond ‘... otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.’ Section 122 authorizes the making of regulations which prescribe periods of time relating to steps ‘... in considering the cancellation of a visa ... ’. Subsection 121(4) provides:

‘If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be given in the extended period.’

43 Regulation 2.44 provides:

‘(1) For the purposes of subsection 121 (2) of the Act (which deals with the time in which a holder must provide comments, other than at interview), the periods set out in subregulation (2) are prescribed.
(2) The periods referred to subregulation (1) begin when the visa holder is notified under subsection 119 (2), or receives an invitation under subsection 120 (2), as the case requires, and are:

(a) if the visa-holder is in Australia – 5 working days; or
(b) ...

(3) ...’

44 The relevant invitation was dated 28 July 2000 and required Mr Ruthenberg to respond by 11 August 2000. It invited him to apply for an extension if necessary but asserted that such an extension would only be allowed if there was a legitimate reason. The period allowed for the response was greater than the five working days specified in reg 2.44. Nonetheless the power to extend time conferred by subs 121(4) is sufficiently broad to permit the Minister to extend time when issuing the original invitation. There is no requirement that the visa-holder apply for any such extension as a condition precedent to its being granted. In those circumstances the time limit originally imposed by the Minister in this case, and subsequently extended, may be characterized as a time limit contemplated by s 121 and so accurately described as ‘statutory’. In any event the expression ‘statutory deadlines’ appears to be used in cl 2.18 in a fairly informal way. The example given in the clause asserts that an agent should, ‘in most circumstances’, make any appropriate application ‘before a person’s visa ceases to be in effect’, clearly contemplating a deadline imposed by expiry of the visa rather than by any particular statutory provision. We see no valid basis for criticism of the Tribunal’s decision in this regard.

Inconsistent findings

45 We turn to the second argument, namely that there is an inconsistency between the finding that Mr Hartnett’s failure to lodge the submissions within the extended time did not constitute want of competence or diligence for the purposes of subcl 2.1(b) and the finding that such conduct was in breach of cl 2.18. Whether the findings are inconsistent depends to some extent upon the precise meaning of subcl 2.1(b) and cl 2.18. The word "timely" is defined in the Shorter Oxford Dictionary (4^th ed) as:

‘Occurring, done, or made at an appropriate or suitable time; opportune. ... Occurring or appearing in good time; early. ...’

46 Broadly speaking, cl 2.18 requires that an agent take relevant action at an appropriate or suitable time. It would not be timely to fail to lodge a submission by a stipulated date. The notion of "timeliness" invites comparison between actual conduct and a specified time limit or standard. Want of competence or diligence for the purposes of cl 2.1(b) will usually be demonstrated by comparison of the impugned conduct with that of the reasonably competent and diligent migration agent, although statutory prescriptions may also be relevant. We have not been referred to any evidence concerning the conduct of a reasonably competent and diligent migration agent. It is no doubt arguable that cl 2.18 itself sets a standard of competence and reasonable diligence. If so, a breach of cl 2.18 might, at least in some circumstances, also constitute a breach of cl 2.1(b). However it does not follow that any breach of cl 2.18 would necessarily constitute a breach of cl 2.1(b). The criminal law is replete with examples of misconduct which may constitute more than one offence, depending upon which aspects of such conduct are alleged and proven. In the present case, the Tribunal was satisfied that Mr Hartnett’s conduct was untimely but not that he was incompetent or lacking in diligence. These were questions of fact. Mr Hartnett’s criticism raises no question of law.

The final deadline

47 As we have observed, Ms Buttigieg-Pocock claimed that an officer of the Department had agreed to a further extension to 29 August of the time in which to lodge the submissions. This was disputed by the officer. The Tribunal concluded at [126] that:

‘There was clearly some misunderstanding or breakdown in communication between [the Department] and Ms Buttigieg-Pocock as to whether the submission would be accepted by DIMA on 29 August 2000. However, irrespective of that, the fact remains that the response was not provided until after close of business on 29 August 2000 and to compound matters, it was sent to the incorrect facsimile number. I find that [Mr Hartnett], by virtue of Ms Buttigieg-Pocock’s actions and his omission to ensure that the submission was received and directed to the right address, did not act in a timely manner and was in breach of clause 2.1(b) of the Code of Conduct.’

48 In other words, the Tribunal concluded that Ms Buttigieg-Pocock and the departmental officer had misunderstood each other. This leads to the conclusion that there was no further extension of time, and that the submission was submitted after the specified date for submission, 25 August 2000. The Tribunal seems to have concluded that even if there had been an extension to 29 August, it would have expired at close of business on that day. On that view of the facts the Tribunal considered that the combination of lodgment after office hours on 29 August and use of the wrong fax number constituted conduct which was not timely.

49 Mr Hartnett submitted that the extension was until midnight on 29 August and that the meaning of the purported extension is a question of law which may be addressed on appeal to this Court. We disagree. It was for the Tribunal to decide the effect of the alleged conversation between Mr Buttigieg-Pocock and the relevant officer. Whatever words were used, they were, almost certainly, used with their ordinary meaning. That is a question of fact. See Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 394-7. Whether Mr Hartnett’s conduct amounted to a failure to meet the relevant deadline was also a question of fact.

50 If one proceeds upon the basis that there was no extension until 29 August, then the submission was late. In that case, there could be no criticism of the Tribunal’s conclusion. If one proceeds on the basis that it is relevant that Ms Buttigieg-Pocock thought that there had been such an extension, the submission was not, in the Tribunal’s view, submitted in a timely way so as to meet the extended deadline as she understood it. The latter view is that most favourable to Mr Hartnett and seems to be reflected in the Tribunal’s reasons. In either case, no question of law is raised for consideration in this Court.

Misleading Statements

51 Clause 2.9 requires that an agent ‘... 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.’ A statement made or encouraged by the migration agent will infringe if:

·	it is misleading or inaccurate;
·	it is in support of an application under the Act or Migration Regulations; and
·	the agent knows or believes it to be misleading or inaccurate.

52 As we have said, the statements in question were contained in the letter from AOST to the Department dated 21 August 2000 and forwarded to the Department with Mr Hartnett’s submissions on behalf of Mr Ruthenberg. The relevant statements appear in the first paragraph on p 2 of the letter which reads:

‘I am aware that the Department has suggested the Alain has changed employer or occupation in Australia. My understanding is that whilst Alain has established Australia Go he does not work for the company. The recruitment of students in fact takes place overseas by registered agents. Further I understand that Alain is presently awaiting the finalisation of an application by him for a further Student Visa and that at the present time he is not employed at all.’

53 The allegedly false assertions were that Mr Ruthenberg ‘does not work for’ Australia Go and that he was ‘not employed at all’.

A statement made or encouraged by the migration agent

54 The Tribunal considered that as Mr Hartnett dictated the letter with the intention that it be forwarded to the Department and so forwarded it, the statements were effectively made by him. We agree. If that view be incorrect, it would nonetheless be difficult to avoid the conclusion that he encouraged such statements.

Made in support of an application under the Act or Regulations

55 A more difficult question is whether the statements were made in support of an application under the Act or Migration Regulations (the "Regulations"). The letter was certainly written and forwarded for the purpose of supporting Mr Hartnett’s submissions. However Mr Hartnett argues that such submissions did not concern or, themselves, constitute an application under the Act or Regulations as contemplated by cl 2.9.

56 As we have pointed out above, the Act provides that only a migration agent may give immigration assistance. It says nothing, as far as we can see, about any other work which may be undertaken by a migration agent in connection with the Act. The term "immigration assistance" has the quite limited meaning to which we have previously referred, involving specific applications (for visas or for reviews of cancellation decisions). Any conduct falling within that definition could reasonably be classified for the purposes of cl 2.9 as being in support of an application under the Act or Regulations. It is at least arguable that the Code of Conduct (including cl 2.9) regulates only those activities expressly or necessarily entrusted to migration agents by the Act, namely conduct in connection with the applications identified in subss 276(1) and (2). However Mr Hartnett’s argument does not go so far. He rather submits that an application for the purposes of cl 2.9 must be an application contemplated by the Act and Regulations. He further submits that the response contemplated by ss 119 and 121 of the Act cannot be so characterized. MARA submits that cl 2.9 should not be construed as applying only to statements made in support of an application prescribed or contemplated by the Act or Regulations. It refers to the Macquarie Dictionary (3^rd ed) which defines the word "application" to mean:

‘The act of applying ... (or) requesting ... a written or spoken request or appeal’.

57 MARA’s argument poses certain conceptual difficulties. Clause 2.9 speaks of ‘... statements in support of an application... ’. In order to apply the clause, one must identify an application and a statement supporting it. MARA points only to the submissions as comprising the relevant "application", presumably for a decision that the visa not be cancelled. Quite apart from any other difficulty with this approach, it is difficult to accept that such submissions can, in ordinary English usage, be described as an "application". However it is important that the word be construed in the context in which it appears.

58 There is an obvious similarity between the wording of cl 2.9 and the expression ‘a decision of an administrative character made ... under an enactment’ in the Administrative Decisions (Judicial Review) Act 1977 (Cth). In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, at 336, Mason CJ considered the meaning of the latter expression. His Honour observed (Brennan and Deane JJ concurring at 365 and 369 respectively), that:

‘First, the reference in the definition ... to "a decision of an administrative character made ... under an enactment" indicates that a reviewable decision is a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision.’

59 Similarly, Toohey and Gaudron JJ at 377 held that:

‘A decision under an enactment is one required by, or authorized by, an enactment. ... If an enactment requires that a particular finding be made as a condition precedent to the exercise of or refusal to exercise a substantive power, a finding to that effect is readily characterized as a decision "under an enactment". However, it is otherwise with respect to findings which are not themselves required by an enactment but merely bear upon some issue for determination or some issue relevant to the exercise of a discretion. Findings of that nature are not themselves "decisions under an enactment"; they are merely findings on the way to a decision under an enactment.’

60 It is difficult to avoid the conclusion that the words ‘... an application under the Migration Act or Migration Regulations ...’ contemplate an application which is required or authorized by the Act or Regulations. However MARA’s argument focuses upon the meaning of the word "application". It submits that the word has its ordinary meaning and no particular legal meaning. In those circumstances, MARA submits, determination of that meaning is a question of fact, with the consequence that the Tribunal’s decision raises no question of law which can be the subject of appeal to this Court. In Agfa-Gevaert, the High Court (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) established the following propositions (at 396-7):

·	the meaning of a word will be affected by the phrase in which it occurs, and the construction of a phrase will be affected by the meaning attributable to its individual words;
·	if a phrase is used in a sense different from that which it has in ordinary speech, construction of it is a reviewable question of law; and
·	whether a statute uses an expression in any sense other than that attributed to it in ordinary speech is a question of law.

61 In our view, the meaning of the word "application" in cl 2.9 must take its meaning from the context in which it appears, namely the phrase ‘... in support of an application under the Migration Act or Migration Regulations ...’. The word cannot be construed as including any act which might, in common parlance, be so described. Its meaning is narrowed by the context. The present question is as to the extent of such narrowing. That is a question of law.

62 Only applications "under" the Act or Regulations are included for the purposes of cl 2.9. Bond suggests that a relevant application will be one which is required or authorized by the Act or Regulations. The Act and Regulations expressly prescribe the making of certain "applications". Subject to the reservation expressed above as to the ambit of operation of the Code of Conduct, there can be little doubt that those applications are within the class identified in cl 2.9. The process in which Mr Hartnett was engaged when he made the allegedly false statements did not involve any such application. He was responding to a notification that the Minister proposed to cancel Mr Ruthenberg’s visa and to an invitation to ‘show ... that ... those grounds [for cancellation] do not exist’ or that ‘there is a reason why [the visa] should not be cancelled’ (s 119). Section 121 speaks of a "response" from the visa-holder. Neither section speaks of the visa-holder "applying" for or "requesting" any action by the Minister, although the response might well be worded in the form of a request that the visa not be cancelled. We doubt whether the style of the response can determine whether or not it is an application for the purposes of cl 2.9.

63 The better view is that the applications contemplated by cl 2.9 are those identified as such in the Act and Regulations. It follows that the statements were not made in support of any application, and that no breach of cl 2.9 is demonstrated. The Tribunal’s findings in connection with the Misleading Statements point must be set aside.

64 We should refer to one other matter. Counsel for Mr Hartnett pointed out that it is arguable that the prohibition against encouraging misleading statements is not limited to statements in support of an application. We are not sure that counsel for MARA adopted that argument, but in any event, we consider that such a view of the clause should be rejected. There would be no point in limiting the operation of cl 2.9 to statements made by an agent in support of an application whilst imposing a wider prohibition upon encouraging misleading statements. We consider that the clear intention was to extend the prohibition on making misleading statements to include encouraging such statements. In both cases the prohibition is limited to statements in support of an application.

65 We should also say something about the Tribunal’s reliance on cl 2.1(b). In our view, such reliance was misconceived. Relevantly, the clause requires that an agent deal with his or her client "competently". The word "competent" is defined in the Shorter Oxford Dictionary to mean:

‘Having adequate skill, properly qualified, effective.’

66 For present purposes it is appropriate to adopt the meaning ‘having adequate skill’. Clause 2.1(b) uses the word "competently" to describe the way in which a migration agent’s work is to be performed, that is "with appropriate skill". To describe wilful dishonesty as absence of appropriate skill does violence to language. This is particularly so given the presence in the Code of cl 2.9.

67 It is not strictly necessary that we say anything about the other issues which arise in connection with the Misleading Statements point, namely whether or not the relevant statements were misleading or inaccurate and whether or not Mr Hartnett knew that they were misleading or inaccurate. However, given his status, both as a solicitor and a migration agent, it is appropriate that we say something about these matters.

Misleading or inaccurate

68 The relevant passage in the Tribunal’s reasons at [128] – [131] is set out above. The statements in question were that Mr Ruthenberg did ‘not work for’ Australia Go and that he ‘was not employed at all’. Mr Hartnett asserted that he had used the word "work" in the sense in which it is defined in the Regulations. Regulation 1.03 provides:

‘... work means an activity that, in Australia, normally attracts remuneration.’

69 The Tribunal rejected Mr Hartnett’s assertion, saying at [129]:

‘... the letter did not have the status of a legal opinion. It was a letter to be signed by someone employed by the Academy. The letter does not suggest that the term "work" is being used other than in its normal sense.’

70 In the third paragraph on p 2 of the letter, the following passage appears:

‘I believe that Alain has made huge personal sacrifices to come to Australia and pursue his tertiary studies. It would be most unfortunate if Alain’s attendance at AOST with Elisa and Nicole was wrongly considered as work and activity that would normally attract remuneration. ... This role of accompanying a new student as a friend can not be replaced by a paid worker for example.’

71 The words ‘work and activity that would normally attract remuneration’ appear to us to be a clear reference to the definition of the term "work" in the Regulations. In those circumstances we doubt whether the Tribunal was correct in observing that, ‘[t]he letter does not suggest that the term "work" is being used other than in its normal sense’.

72 The statement that Mr Ruthenberg did ‘not work for the company’ describes the relationship between him and his company. It may be that at some places in the evidence and perhaps in the Tribunal’s reasons, it was not thought necessary to distinguish between Mr Ruthenberg and the company. In particular, although it seems to have accepted that the student recruitment business was being conducted by the company, such activities are often referred to as if they were the activities of Mr Ruthenberg. Similarly, it seems probable that income derived from these activities was derived by the company. Nonetheless, on occasions, such income is referred to as if it belonged to Mr Ruthenberg. Obviously, in considering whether or not Mr Ruthenberg was working for Australia Go, it was necessary to consider both the nature of the company’s activities and the nature of the activities undertaken by him in connection with its operation. It was also necessary to look at any legal relationship between him and the company.

73 The statement that Mr Ruthenberg did ‘not work for the company’ was capable of at least two interpretations. If the definition of "work" in the Regulations were adopted, then the question was whether or not Mr Ruthenberg was performing work which, in Australia, would normally attract remuneration. He was managing director of the company, although there is no evidence as to the means by which he was appointed or his duties. It seems that he "managed" the company, but we were referred to very little evidence as to what he actually did. Mr Ruthenberg gave evidence concerning his activities, but the extent to which the Tribunal accepted it is unclear.

74 At [60] the Tribunal observed:

‘Between the time of incorporation of Australia Go and the [Notice of Intention to Cancel] [Mr Ruthenberg] had performed a little work, helping students enrol and advising them what documents they required. [Mr Ruthenberg] spent one to two hours per day "that was work, but not work". [Mr Ruthenberg] had regularly advised [Mr Hartnett] of the nature of [Mr Ruthenberg’s] business activities and [Mr Hartnett] knew that [Mr Ruthenberg] was involved in establishing a network of agents.’

75 Presumably the Tribunal accepted at least those aspects of Mr Ruthenberg’s evidence. In a statement provided to the Tribunal, he estimated that between 14 June 2000 and the end of August in that year, he worked for about ten hours. The work which he there described was similar to conduct described in Mr Hartnett’s submissions on his behalf. However Mr Hartnett stressed the occasional and limited nature of such activities, suggesting that it was social rather than commercial. The Tribunal concluded only that Mr Ruthenberg’s activities ‘... might be construed as work’. It gave no reasons for concluding that it was work (if it in fact reached that conclusion) nor for rejecting the characterization adopted by Mr Hartnett in his submissions to the Department. Given the limited amount of time devoted by Mr Ruthenberg to those activities, Mr Hartnett’s suggestion that they were social rather than commercial was not inherently improbable.

76 If we were dealing with a large public company, there would be no difficulty in inferring that the work performed by its managing director would normally be remunerated in Australia. This may not be so in the case of the managing director of a new and very small, proprietary company. Certainly it would be by no means uncommon, in those circumstances, for a director to perform duties on a gratuitous basis. It may be less common for a person who actually performs the usual functions of a managing director to do so, but in the absence of any substantial evidence as to Mr Ruthenberg’s duties, it is difficult to draw the inferences necessary to justify the conclusion that he was doing work which would normally be remunerated.

77 As we have said, there are two ways of construing the expression ‘does not work for the company’. The words "work for" not infrequently describe the relationship of employer and employee without necessarily saying anything about the work actually performed. In other words the expression "work for" may well mean "employed by". The accepted view concerning the status of a director is set out at par 27.2.4 of Gore-Browne on Companies (Boyle & Sykes), where the learned authors observe:

‘The cases also contain some discussion as to whether a director of a company is, or can be, an ‘employee’ of the company. The answer to this question depends very much on the particular context for which it is required; a particular director may, for instance, be an ‘employee’ for the sake of a statutory provision referring to employees, but not for the sake of an employees’ pension scheme. Thus, in the last resort, the question may chiefly be one of construction of the word ‘employee’ in its immediate context. Subject to this warning, it may be suggested that usually a director who performs no more than the tasks of a director pure and simple (attending board meetings, and the like) will not be considered an employee of the company, whereas if he is appointed to some executive post such as managing director, or if he works full-time or part-time for the company so as to be part of its ‘labour force’, these activities may make him an ‘employee’ even though he is also a director.’

See also Palmer’s Company Law (24^th ed) at par 60-02.

78 As far as we can see, no attempt was made to identify with precision the duties actually performed by Mr Ruthenberg on behalf of the company, to ascertain the legal nature of his relationship with it or to identify the circumstances which led to his being described as "managing director". Again, in the absence of such evidence, any inference would be little more than speculation.

79 As to the expression ‘is not employed at all’, we understand MARA’s assertion to be only that Mr Ruthenberg was employed by Australia Go. For the reasons which we have already given, there are considerable difficulties in reaching that conclusion. Although it is not necessary for us finally to determine this aspect of the matter, out of fairness to Mr Hartnett we record that we are far from persuaded that the Tribunal gave appropriate attention to it.

The agent knows or believes the statements to be misleading or inaccurate

80 Mr Hartnett’s state of mind concerning the relevant statements depends, in a practical sense, upon whether or not they were, in fact, misleading or inaccurate. We have already explained our reasons for questioning the Tribunal’s conclusion that they were. Those considerations must inevitably raise doubts as to the Tribunal’s conclusion that Mr Hartnett had the requisite state of mind.

81 However there is another reason for doubting the Tribunal’s conclusion that Mr Hartnett knew that the statements were misleading or inaccurate. The Tribunal, in its reasons, appears to have assumed that the letter from AOST was forwarded to the Department on its own. However, as we have pointed out, it was forwarded under cover of Mr Hartnett’s submissions on behalf of Mr Ruthenberg and in company with a number of other letters. As far as we can see, Part C of the submissions (headed ‘Establishment of Australia Go Pty Ltd ACN 092 388 899’) discloses the relevant circumstances concerning the incorporation of Australia Go, the establishment and conduct of its business and Mr Ruthenberg’s involvement in it. We were not referred to any inaccuracy or omission, notwithstanding an invitation to counsel to identify any such shortcomings. Even if the statements in the AOST letter might, by themselves have been misleading or inaccurate, it seems that the totality of the documentation forwarded to the Department provided an accurate account of the relevant circumstances. It is difficult to see that any good purpose would have been served, from Mr Hartnett’s point of view, in making misleading or inaccurate statements in the letter when the truth appeared elsewhere in the submissions. This points strongly towards the conclusion that he considered the statements in the letter to be consistent with Mr Ruthenberg’s case as he was putting it to the Department, which version was apparently accurate. Some of the other letters forwarded with the submissions also revealed information concerning Mr Ruthenberg’s activities in connection with Australia Go. We are inclined to think that the Tribunal’s conclusion that Mr Hartnett knew or believed the statements to be misleading or inaccurate was based upon unsatisfactory foundations.

82 Although we have not reached any final conclusion as to either the correctness of the relevant statements or as to Mr Hartnett’s belief concerning them, we should say that our doubts go beyond mere differences of opinion as to matters of fact. We seriously doubt whether the Tribunal has appreciated many of the issues to which we have referred. This may well have led to a serious misunderstanding of the questions for its determination, an error of law.

Clause 2.1(a)

83 In argument counsel for MARA sought to rely upon cl 2.1(a) of the Code of Conduct as an alternative basis for a finding of breach arising out of the AOST letter. A similar submission was made to the Tribunal. Counsel did not identify any specific basis for alleging that Mr Hartnett’s conduct was unlawful. We will not further consider that aspect of the matter. Counsel submitted that for Mr Hartnett to make statements which he knew to be untrue would not be in Mr Ruthenberg’s legitimate interests. However, in our view, conduct which advances legitimate interests in an illegitimate way is not in breach cl 2.1(a), unless it is unlawful. The position may be otherwise if such conduct exposes the client to the risk that he will be held responsible for it. No real attempt was made to identify the precise way in which Mr Hartnett’s conduct allegedly infringed against cl 2.1(a). In those circumstances, and given the difficulties which we have identified in the facts of the case, any consideration of cl 2.1(a) would have to be remitted to the Tribunal. Having regard to these matters and to the length of time over which the proceedings have been outstanding, no good purpose would be served by doing so.

Briginshaw v Briginshaw

84 As is well known, in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362, Dixon J (as his Honour then was) said:

‘The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.’

85 It was submitted by Mr Hartnett that the Tribunal was obliged to apply the Briginshaw test in determining whether or not it was satisfied as to the allegations of misconduct made against Mr Hartnett, and that it failed to do so. The submission was made primarily in connection with the Misleading Statements point. It seems that the Tribunal was referred to the decision in Briginshaw and appears to have appreciated the serious consequences for Mr Hartnett of an adverse finding. (See [133].) Nonetheless our concerns regarding the Tribunal’s reasoning may suggest that the Tribunal did not appreciate the gravity of the matter. As we have concluded that the finding concerning the Misleading Statements point must be set aside, it is not necessary to consider the Briginshaw point further in connection with it. As to the Late Lodgment point, we cannot see that any question could arise as to the application of Briginshaw. The relevant facts appear to have been beyond dispute. As to the Inadequate Advice point, there is no appeal.

CONCLUSIONS AND ORDERS

86 The suspension was based upon the three aspects of misconduct which the Tribunal found to be established. The most serious of these, by far, was the Misleading Statements point. We consider that the Tribunal’s finding in that regard was wrong in law. The suspension order must be set aside. The Tribunal should reconsider the matter, having regard to its other findings, and dispose of it appropriately.

87 We order that:

(1) the appeal be allowed;

(2) the orders made by Marshall J be set aside;

(3) the order of suspension against Mr Hartnett be set aside;

(4) the finding that Mr Hartnett’s conduct was contrary to clauses 2.9 and 2.1(b) of the Code of Conduct be set aside;
(5) the matter be remitted to the Tribunal for further consideration in accordance with law; and
(6) the respondent pay the applicant’s costs of this appeal and of the proceedings before Marshall J.

I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Madgwick, Finkelstein and Dowsett.

Associate:


Dated: 6 October 2004

Counsel for the Appellant:	Mr S Gageler SC Mr C Wilson
Solicitor for the Appellant:	Harnett Lawyers
Counsel for the Respondent:	Mr P Bickford
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	10 August 2004
Date of Judgment:	7 October 2004