N2000/508 and Migration Agents Registration Authority [2000] AATA 429 (11 May 2000)

Last Updated: 8 June 2000

DECISION AND REASONS FOR DECISION [2000] AATA 429

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/508

GENERAL ADMINISTRATIVE DIVISION )

Re APPLICANT N2000/508

Applicant

And MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

INTERLOCUTORY DECISION

Tribunal Deputy President A M Blow OAM, QC.,

Date 11 May 2000

Place Sydney

Decision The Tribunal orders as follows: 1. THAT the implementation and operation of the decision under review be stayed until the determination of the application for review or further order. 2. THAT until further order the caution given to the applicant not be shown in the Register of Migration Agents.

[Sgd A M Blow]

Deputy President

CATCHWORDS

Migration - migration agents - misconduct - caution - stay of implementation of decision.

Migration Act 1958 - ss.287(2)(h), 303(c)

Re Dekanic and Tax Agents' Board of New South Wales (1982) 6 ALD 240

Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184

Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685

REASONS FOR INTERLOCUTORY DECISION

30 May 2000 Deputy President A M Blow OAM, QC.,

1. These are my reasons for orders that I made on 11 May 2000. The applicant, who is a migration agent, applied under s.41(2) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") for an order staying the implementation of a decision made by the respondent on 1 February 2000. On that day the respondent, as a result of a complaint by one of the applicant's clients, decided to caution him pursuant to s.303(c) of the Migration Act 1958 ("the Act"), and to show that caution on the Register of Migration Agents for one year.

2. The complainant, through his solicitors, had complained that the applicant gave him bad advice as to a proposed visa application, as a result of which he had made two unnecessary trips to New Zealand for the purpose of making a visa application that could be made in Australia. The applicant furnished an explanation by letter dated 20 June 1999 to the effect that he had made a mistake in the advice he gave the complainant as a result of being unfamiliar with a new CD-Rom product that he had recently substituted for a loose-leaf publication.

3. Migration agents are required to conduct themselves in accordance with a Code of Conduct prescribed under s.314 of the Act. The respondent made findings on 1 February 2000 that the applicant, in providing incorrect advice to the complainant, had not complied with clauses 2.3 and 2.4 of that Code of Conduct, which read as follows:

"2.3 A migration agent's professionalism should be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.

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

4. During the hearing of the stay application, I was informed by Mr. Hurley, who represented the respondent, that the respondent had taken into account a number of other complaints against the applicant in deciding to caution him, and to record that caution in the Register of Migration Agents for a period of one year. The applicant informed me that he had received no notice that the respondent would be taking any other complaints into account when making its decision. Mr. Hurley did not dispute that. I am therefore reasonably satisfied that the applicant was denied procedural fairness in the proceedings before the respondent. At the final hearing of the application to this Tribunal, any lack of procedural fairness on the part of the respondent may be of little or no consequence, since this Tribunal will have to make a decision on the merits. However I think I should take into account in the applicant's favour the fact that, in deciding that the applicant's past conduct had been so serious as to warrant a caution, the respondent did not afford him procedural fairness. In Re Dekanic and Tax Agents' Board of New South Wales (1982) 6 ALD 240, Davies J took into account in the favour of an applicant seeking a stay the fact that the rules of natural justice had not been complied with by the board that made the decision then under review.

5. At the hearing of his stay application, the applicant said that he had not decided whether to challenge the findings that he had breached clauses 2.3 and 2.4, or whether only to challenge an imposition of a caution. I do not think it is appropriate for me to come to any conclusion as to whether the conduct complained of was capable of constituting breaches of clauses 2.3 and 2.4. However I think I should take into account in the applicant's favour the fact that it is by no means free from doubt that the conduct complained of was capable of constituting breaches of those clauses. One could argue that it does not follow that the provision of incorrect advice necessarily involves a failure to have due regard to a client's dependence on an agent's knowledge and experience contrary to clause 2.4. One could argue that the provision of incorrect advice on a single occasion does not necessarily establish that an agent does not have a sound working knowledge of the relevant legislation, or that that agent does not have a capacity to provide accurate advice. I think that this is a case in which it is appropriate to take into account in the applicant's favour the strength of the grounds upon which he might challenge the decision under review, just as a court can take into account the strength of the grounds of an appeal when entertaining an application for the enforcement of a judgment to be stayed pending appeal. See Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184; Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 at 695.

6. As I have said, the respondent decided to show its caution of the applicant on the Register of Migration Agents for a period of one year. Its power to caution him is conferred by s.303(c) of the Act. The requirement to record such a caution on the Register of Migration Agents is imposed by s.287(2)(h) of the Act. There does not appear to be any legislative basis in these sections or elsewhere for a caution to be recorded for a finite period. However I was informed by Mr. Hurley on behalf of the respondent during the hearing of the stay application that it is the practice of the respondent to record cautions for finite periods, and to decide for how long each caution should be recorded.

7. I am inclined to think that, because the Act makes no provisions for cautions to be recorded on the register for finite periods, each caution must be recorded permanently, or at least so long as the person cautioned remains registered as a migration agent. Once again, I should not express a final conclusion that this is the case, but should allow the parties to present argument as to this point at the final hearing in these proceedings. However I think it is very significant that the respondent might have misunderstood its powers. If, as I am inclined to think, the respondent did not have the power to record a caution for a limited period, and if it had interpreted the Act accordingly, it might well have decided that it was preferable not to caution the applicant, rather than to administer a caution which would be recorded against him for the rest of his career. I think that is a factor that should be taken into account in the applicant's favour when considering whether a stay should be ordered. If, on the other hand, the respondent does have the power to record a caution for a finite period, the applicant has quite convincingly made the point that most of that one year period is likely to elapse before a final decision can be made in these proceedings. If the respondent's view of the law is correct, and I grant a stay, this Tribunal can do justice by imposing a caution that is to be recorded during such further period as it thinks fit.

8. Initially I was inclined to think that there was no scope for the Tribunal to exercise its powers to make a stay order in a case involving a caution. Ordinarily the giving of a caution is an event which, once it has happened, cannot be delayed or suspended. However it is possible to make an effective order under s.41(2) of the AAT Act in the present context, because such an order will the effect of removing the record of the caution from the Register of Migration Agents.

9. Mr. Hurley submitted that I should not make any order because it was in the public interest that the caution given to the applicant be made known to people seeking information about migration agents. However it was not suggested that this was such a serious case that the applicant should not be practising as a migration agent. I expect he will take special care to ensure that he does not give incorrect advice, not only because he has come to the attention of the respondent, but also because he was sued by the complainant, whose claim for damages was later compromised. I think the various factors I have mentioned that weigh in favour of the applicant together outweigh the public interest argument put forward by Mr. Hurley and justify the making of a stay order.

10. For these reasons I ordered on 11 May 2000 as follows:-

1. THAT the implementation and operation of the decision under review be stayed until the determination of the application for review or further order.

2. THAT until further order the caution given to the applicant not be shown on the Register of Migration Agents.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President A M Blow OAM, QC.,

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 11 May 2000

Date of Reasons 30 May 2000

Counsel for the Applicant Applicant represented himself.

Representative for Resp. Mr D Hurley (Department of Immigration and Multicultural Affairs)