Khalsa and Migration Agents Registration Authority [2002] AATA 12 (29 November 2002)

Last Updated: 11 February 2003

DECISION AND REASONS FOR DECISION [2002] AATA 1240

ADMINISTRATIVE APPEALS TRIBUNAL Nº N2002/690

GENERAL ADMINISTRATIVE DIVISION

Re: Ram Ravi Singh Khalsa

Applicant

And: Migration Agents Registration Authority

Respondent

DECISION

Tribunal: P.J. Lindsay, Senior Member

Date: 29 November 2002

Place: Sydney

Decision: The decision under review is set aside and the matter remitted to the respondent with a direction to reconsider the application for repeat registration on the basis that the applicant is a fit and proper person to give immigration assistance and a person of integrity in accordance with s.290 of the Migration Act 1958.

(sgd) P.J. Lindsay

Senior Member

© Commonwealth of Australia (2002)CATCHWORDS Migration agent - registration - repeat registration refused by Migration Agents Registration Authority - whether applicant a fit and proper person to give immigration assistance - whether applicant a person of integrity - whether applicant breached migration agents' Code of Conduct - decision set aside.

Administrative Appeals Tribunal Act 1975, s.35.

Migration Act 1958 ss.74, 276, 280, 283, 287, 288, 289, 290, 291, 299, 306, 306B, 309, 314

Migration Regulations 1994, reg. 2.23, Schedule 2, Subclass 050 Bridging (General)

Migration Agents Regulations 1999, Schedule 2, Code of Conduct

Kumar [1998] IRTA 12428

Blake [1998] IRTA 12717

Lal [2001] MRTA 5091

Hanna v Migration Agents' Registration Authority (1999) 94 FCR 358

Prasad and Migration Agents' Registration Authority (2002) AATA 423

Briginshaw v Briginshaw (1938) 60 CLR 334

Saufatu [1995] IRTA 5192

Cunliffe and anor v Commonwealth of Australia (1994) 182 CLR 272

REASONS FOR DECISION

P.J. Lindsay, Senior Member

1. Mr Ram Ravi Singh Khalsa has applied for review of a decision by the Migration Agents Registration Authority (the Authority) made on 10 May 2002 (the reasons for which were amended on 13 May 2002). The Authority's decision was to refuse Mr Khalsa's application for repeat registration as a migration agent. At the hearing, Mr C. Colborne of counsel appeared for Mr Khalsa and Ms S. Hanstein, solicitor represented the Authority. Mr Khalsa gave evidence at the hearing, and evidence was given on his behalf by five witnesses.

2. The Tribunal had before it the documents (T documents) lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and the following documents tendered at the hearing :

-Exhibit A1: A statement made by Mr Khalsa dated 8 August 2002;

-Exhibit A2: A statement made by Mr Sukhvinder Singh Bagga dated 9 August 2002;

-Exhibit A3: An affidavit by Mr Mark Anthony Robinson sworn 12 August 2002;

-Exhibit A4: A letter dated 12 August 2002 signed by Mr Nicholas Poynder;

-Exhibit A5: An undated statement by Mr Karam Ramrakha;

-Exhibit A6: Comprising a document dated 27 August 2001 and entitled Professional Advice given by Mr Khalsa and a document dated 27 August 2001 entitled Instructions and Authority in relation to Application for Protection Visa. The Advice and Instructions were in respect of one of Mr Khalsa's clients. On 9 August 2002 the Tribunal made orders under s.35 of the AAT Act. The orders: prohibit publication of the name of the client in respect of this proceeding; and other than for the purpose of this proceeding, prohibit the Authority and its lawyers and those who instruct them, from disclosing evidence given by the applicant and the client in this proceeding that would reveal `confidential information' within the meaning of the Code of Conduct relating to the client's application for a bridging visa, his application to join the Lie class action and an application to the Minister.

BACKGROUND

3. Mr Khalsa was born in the United States on 28 February 1943. He is an Australian citizen. He graduated in 1986 as Bachelor of Economics from Macquarie University. Mr Khalsa does not have an Australian law degree nor is he a lawyer (T25 p.92). In December 1996 he successfully completed the Australian Immigration Law and Practice Training Course for Migration Agents conducted by the Faculty of Law at the University of New South Wales. He received a credit grade of 74 per cent. It was an approved course for demonstrating knowledge to be registered as a migration agent. Mr Khalsa's twelve months registration as a migration agent under s.299 of the Migration Act 1958 (the Act) commenced from 2 May 1997 (T7). Thereafter the Authority has renewed Mr Khalsa's registration on an annual basis. Mr Khalsa joined the Migration Institute of Australia in December 1997 and began attending the seminars it offered in subjects of interest to migration agents.

4. On 3 October 2001 the Authority informed Mr Khalsa (T30) that it had received information from the Migration Review Tribunal (MRT) relating to his conduct as a migration agent in a case recently heard by the MRT. Enclosed with the letter was a copy of a decision by the MRT to affirm a decision that one of Mr Khalsa's clients was not entitled to the grant of a Bridging E (Class WE) Visa. The Tribunal's order under s.35 of the AAT Act, to which reference was made earlier, relates to this client. The Authority noted that the MRT's decision raised matters relating to clauses 2.1, 2.3, 2.4 and 2.23 of the Migration Agents' Code of Conduct. Mr Khalsa was invited to respond, so he sent the Authority a submission dated 24 October 2001 (T31) wherein he emphasised that at all times he had acted in the best interest of his client and in compliance with clauses 2.1, 2.3, 2.4 and 2.23 of the Code. He explained that he lodged the bridging visa application because, had he waited until the client became a member of the class action, the client would by that time have been removed from Australia. Mr Khalsa also referred to his client's instructions, received during the hearing before the MRT, that the client wanted Mr Khalsa's advice regarding prospects for success to remain confidential. In relation to a question from the MRT about his knowledge of certain aspects of the Act and Regulations, Mr Khalsa admitted that he answered that he had not read either recently, but later in amplification in his letter to the Authority dated 24 October 2001 (T31) said:

...I was instructed by my client to lodging [sic] the Bridging Visa and again was acting according to 2.1 of the Code of Conduct. During the hearing, my Client indicated that he wanted to keep my advice regarding the chance of success private. Also, during the hearing I was asked several question by the Member which made it very hard to comply with my Client's wishes. One question when [sic] the member asked when I had last read the Act was most hard and accordingly, I answered that I had not read it recently or after the recent changes. I felt that to have answered differently would not have been in the best interest of my Client. I did not point out to the Member that my Client had been advise that the application may be considered as vexatious. Accordingly, I was complying with 2.1 and 2.4 by protecting my Client.

I could have directed attention away from me by putting all blame on my Client, in that I was acting on his instructions. However, that would not have been in his best interest of my Client [sic] and would not have been according to 2.1 and 2.4. Had I told the Member that my client knew that the application had no chance of success, I would not have complied with 2.23 of the Code of Conduct as it would have been seen that Migration Agents would turn on their Clients when it is in their best interest. It is not always possible to maintain compliance with all the Code of Conduct and I feel that I did the best I could under the circumstances.

I assume that the Member was out to get me and I did the best I could under the circumstances.

...

5. By letter dated 20 March 2002 (T40) the Authority advised the applicant that his registration would expire on 1 May 2002. The letter went on "You are reminded that s.280(1) Migration Act 1958 specifies that a person who is not registered must not give immigration assistance." On 30 April 2002 the Authority acknowledged (T42) Mr Khalsa's letter of 24 October 2001 and told him that the MRT's complaint had been reviewed and it was considering whether to caution him, or suspend or cancel his registration due to possible breaches of clauses 2.4, 2.5 and 2.21 of the Code of Conduct. The Authority then set out the background to the complaint as it was required to do by s.309 (2) of the Act, as follows:

In a decision by the Migration Review Tribunal, the Tribunal presiding member commented that you appeared not to understand the requirements of the Migration Regulations for the visa which was the subject of review. In answer to a question from the Tribunal referring to the requirement of clause 050.212 of the Regulations, you stated that you had not read the "recent" Regulations. It appears that you were unaware that in order for your client to be eligible to qualify for a visa whilst part of a Class Action in the High Court, the applicant needed to be a member of that action at the time of his application for that visa. The presiding member states that a search of the Regulations indicates that the requirement to satisfy clause 050.212 at both the time of application and time of decision has been thus since the commencement of the current regulations, 1 September 1994. The member comments that "it is at least puzzling as to what Mr Khalsa might have meant when he replied that he had not read the "recent" Regulations".

Your apparent lack of understanding of the relevant regulations resulted in your client appearing before the MRT basing his claim for a visa on membership of a Class Action in the High Court. Such a claim was invalid as your client was not a member of the Class action at the time of the application.

It is open to the Authority, based on the evidence before it, to find that you have breached Clause 2.4 of the Code of Conduct in that you appear to have failed to have due regard to your client's dependence on your knowledge and experience.

It is also open to the Authority to be satisfied that, by your own admission, you have failed to take appropriate steps to maintain and improve your knowledge of the current versions of the Migration Act 1958, the Migration Regulations 1994 and other legislation relating to migration procedure in contravention of clause 2.5 of the Code of Conduct as at 1 July 2001.

The application to the MRT should not have proceeded without the necessary documentation providing proof of your client's membership of the Class Action at the time of the initial application. It is open to the Authority to be satisfied that you submitted an application under the Act and Regulations without the specified accompanying documentation in contravention of Clause 2.21 of the Code of Conduct as at 1 July 2001.

...

Mr Khalsa was invited to make a submission on the matter by 23 May 2002.

6. Mr Khalsa lodged his application form for repeat registration on 26 April 2002 (S2). Included was a submission responding to the Authority's enquiry into the complaint by the MRT. His explanation was that the Department was insisting on the client's lodging an application for a bridging visa or face removal from Australia. As his client had a fear of persecution in his country of origin, the only option was to lodge the visa application, even though the final part of the process for joining the class action had not yet been completed. Mr Khalsa acknowledged that, at the time of the MRT's hearing, he had not received evidence that his client had been received into the class action. The submission went on "I am also fully aware that there must be an application at the time of the Bridging Visa Application. However, in the best interest of my client and with his instructions, a Bridging Visa was lodged which under the strict interpretation of the legislation, would not be granted." Mr Khalsa said he did not tell the MRT that he had advised his client that he would not obtain a bridging visa because the application to join the class action had not yet been documented, because "... this would not do my client any good and may cause him future problems when he makes another application for a Bridging Visa which could and was granted [sic], I did not clear the matter up for the Tribunal member." (S2 p.25). He also expressed the view that the MRT was not justified in asking him about advice he had provided to his client. He said that this was a private matter between himself and his client. He tried to do the best by his client and abide by the Code of Conduct. Another basis for his submission was that he felt he had been put in "... a hard position of either diverting the Members unauthorised questioning by attacking the Member, attacking my client, or allowing the Member to attack me. I chose the third option which I believe was in accordance with the Code of Conduct" (S2 p.26). Mr Khalsa noted that his advice to his client had proven to be sound, because in the event the client had been granted a bridging visa.

7. The Authority responded on 3 May 2002 (S4) and told Mr Khalsa that it was considering whether to refuse his application on the basis that, contrary to s.290 of the Act, he was not a fit and proper person to give immigration assistance or a person of integrity, since it appeared to the Authority that he may have breached clauses 2.4, 2.5 and 2.21 of the Code of Conduct. Mr Khalsa was invited to make a submission. By separate letter dated 3 May 2002 (S5) the Authority informed Mr Khalsa that his registration had expired as he had allowed his registration to lapse, which of course was not the case. Under s.306B of the Act, Mr Khalsa had become an inactive agent. The letter contained a reminder that it is unlawful for a person to give immigration assistance if not registered as a migration agent.

8. On 10 May 2002 the Authority informed Mr Khalsa that, notwithstanding his submission of 26 April 2002, it had decided under s.290 of the Migration Act 1958 (the Act) to refuse his application for renewal of his registration. The Authority's decision was that Mr Khalsa had breached clauses 2.4, 2.5 and 2.21 of the Code of Conduct, and was not a fit and proper person to give immigration assistance or a person of integrity.

9. Mr Khalsa wrote to the Department on 20 May 2002 on behalf of Ms A.K. Suri in regard to her application for a special program visa (S11). The letter, which was on his business letterhead `Superior Migration', was signed by Mr Khalsa as the principal consultant, quoting his migration agent's registration number. The Department's response of 13 June 2002 (S12) noted that the Authority had refused his application for repeat registration on 10 May and that it would be contrary to the Act for it to correspond with him.

EVIDENCE

10. On the basis of the material in the T documents, the Tribunal is satisfied that the client came to Australia in April 1998 on a student visa. In October 1999 he applied for a protection visa. On the basis of the application he was granted a Bridging A visa, but it was cancelled in November 1999 because he was found to have breached its conditions. He then applied, without success, for a Bridging E visa. An application to the MRT in December 1999 led to the grant of a Bridging E visa, which required him to leave Australia on 16 July 2000 but he did not do so. The application for a protection visa was refused by a delegate of the Minister and the Refugee Review Tribunal (RRT) affirmed the decision on 29 March 2000. The client was detained on 22 August 2001 in the course of a compliance operation by the Department of Immigration and Multicultural Affairs (the Department). Mr Khalsa visited him in the Villawood Detention Centre on 24 August 2001 and received instructions to act as his migration agent in relation to an application for a protection visa. The instructions and advice to the client dated 27 August 2001 were admitted in evidence as Exhibit A6. The advice was in relation to an application for a protection visa and canvassed a number of options including departing from Australia, appealing to the Minister, and becoming a member of a class action while applying for a bridging visa in the interim.

11. The following is from Mr Khalsa's statement dated 8 August 2002 (Exhibit A1) regarding the discussion he had when he saw the client in detention on 24 August:

11. My client told me that he feared returning to India and wanted to obtain a protection visa and be released from detention. He also told me that he had previously made an application for a protection visa, which had been refused by a DIMA Officer, the Refugee Review tribunal and by the Minister under section 417.

12. I advised him [the client] that his only chance of obtaining a protection visa was by joining a class action case and this could provide a basis for his possible release.

13. Among other things, my client instructed me to confirm his eligibility to join the Lie class action in the High Court and, if eligible, arrange for him to join it, apply for a Bridging "E" Visa and, if necessary, make a further application to the Minister under s.417 of the Migration Act. ...

12. Mr Khalsa explained in cross-examination that he assessed the client's chance of being granted a bridging visa at 25 per cent once he was a member of the class action. The client also gave evidence at the hearing. He told the Tribunal that at his initial meeting with Mr Khalsa, he was advised that he had no chance of obtaining a bridging visa. Mr Khalsa suggested, the client said, that it might be possible to get a bridging visa if he could join the class action case. He said Mr Khalsa told him that even if he joined the class action, Mr Khalsa was not sure of his chances of getting the visa.

13. Mr Khalsa sent the Department a fax on 27 August 2001 noting that he would make an application for a Bridging E visa once it was established that his client could join the class action in the Lie case. To that end, Mr Khalsa made enquiries of the Refugee Review Tribunal and the department about possible barriers to his client's joining the class action. He also noted:

If there is a problem with him being able to join the Lie Class Action case, I will seek new instructions. However, at this stage I do not see much chance unless he can join the Lie Class Action Case. (T30, p.125)

Mr Khalsa asked that his client be given some time in order to see whether he could join the class action.

14. At about 4.00pm on 10 September 2001 the Department telephoned Mr Khalsa and said that the client would be removed from Australia if he did not lodge an application for a Bridging E visa the next day. Under cross-examination at the Tribunal's hearing, Mr Khalsa said he was not sure whether, after receiving the Department's telephone call, he spoke with the client but he thought he called a friend of the client. The friend said he was going to go to the detention centre to see the client. Mr Khalsa asked the friend to tell the client about the information just received from the Department and also tell him that at this stage, there was no chance of an application for a bridging visa being successful. The next day the friend told Mr Khalsa that he had spoken to the client and the client had said for Mr Khalsa to lodge the application. On 11 September 2001 Mr Khalsa lodged the application for a Bridging E (class WE) visa on the ground "member of class action - now joining" (T30 p.125) and provided the Department with a copy of an invoice dated 4 September 2001 which was issued to the client by the solicitors conducting the class action. It recorded the receipt of fees for "... preparation of documents for your inclusion in Lie High Court Class Action" (T30 p.125).

15. In answer to Ms Hanstein, the applicant explained that his advice that the client had no chance of success in his application for a Bridging E visa, was on the basis that the client was not a member of the class action at the time of lodging the visa application. Mr Khalsa said that he did not make file notes recording his discussions with the client's friend or confirm the client's instructions conveyed to him by the friend. He also admitted that he was aware that the Code of Conduct required migration agents to keep file notes of communications with clients. When Ms Hanstein asked Mr Khalsa whether he agreed that the application for the bridging visa was grossly unfounded, he said that it needed to be lodged to keep the client from being removed from Australia.

16. Mr Khalsa was informed on 17 September 2001 that the Bridging Visa application had not been granted, on the ground that "contrary to claims he is not a member of the Lie class action." (T30 p.126). Further, he was informed that the client would be removed from Australia if an application to the MRT were not lodged within three days. An application to the MRT was lodged on 19 September 2001 and it was listed for hearing on 26 September 2001.

17. Immediately prior to the hearing before the MRT, Mr Khalsa made enquiries of the solicitors conducting the class action to determine whether the client had been made a member of the class action. On 26 September he made another enquiry and the solicitors informed him that the papers had not yet been returned by the High Court. In his statement Mr Khalsa said (Exhibit A1):

27. I advised my client verbally on the day of and before the MRT hearing that he had almost no chance of obtaining a Bridging Visa as a result of these MRT proceedings because he needed to be a member of the Lie Class Action case and we had no evidence that he was a member. I told him that the only hope was if the Tribunal Member makes an inquiry with DIMA in Canberra and is advised that he is a member of the class action. I said that in those circumstances the Tribunal may deem that the Act gives power to consider it relevant that he is now a member of the Lie class action case. However, the Tribunal is not required to make such inquiry and it was my view that most Members will not do so.

28. I knew that Subclass 050 required that my client had to be a member of a court action at the time he lodged the Bridging Application. But I also understood that, if he met the criteria for the visa at the time of the MRT decision, the MRT could grant a visa, without the need for a further application. My view of the law was based on r 2.23 and a Tribunal decision I had read that dealt with that provision. At the time of the hearing, I could not remember that r 2.23 was the regulation in question and I was more concerned with obtaining evidence that my client was in the Lie Class Action case.

18. The MRT considered that before it could grant the bridging visa, it had to be satisfied both at the date of the primary application and at the date of decision, that one of the criteria in subclause 050.212 in Schedule 2 of the Migration Regulations 1994 had been satisfied. In this case the criterion was the client's joining the class action in Lie v Refugee Review Tribunal, a matter then pending in the High Court. Consequently, the MRT decided that the application must fail, because there was no evidence that the client had in fact been joined in the class action by the time of the visa application. The following passage from the MRT's decision (T30 p.128) is relevant to the complaint made to the Authority that has led to its refusing the Applicant's application for repeat registration.

It is the Tribunal's view that it is appropriate to make a comment regarding the role the representative [Mr Khalsa} played in this case.

The visa applicant's representative appeared not to understand the requirements of the Migration Regulations for the visa which is the subject of this review. In answer to a question from the tribunal referring to the requirement of clause 050.212 of the Regulations, he said that he had not read the `recent' regulations. A search of the Regulations indicates that the requirement to satisfy clause 050.212 at both the time of application and time of decision has been thus since the commencement of the current regulations 1 September 1994.. So, it is at least puzzling as to what Mr Khalsa might have meant when he replied that he had not read the `recent' Regulations.

Mr Khalsa's explanation for his answer to the MRT that he had not read the recent regulations was that he was aware that subclause 050.212 was not the only regulation relevant to bridging visa applications and that he had not gone over the recent legislative changes (S2 p.26). The MRT's decision was to affirm the decision under review, finding that the client was not entitled to the grant of a Bridging E visa.

19. During cross-examination Mr Khalsa said he thought that if the client had been joined into the class action by the time of the MRT's hearing, the MRT could have granted the bridging visa on the basis of a change in circumstances. In support of this contention, he relied on s.74 of the Act and reg.2.23 of the Migration Regulations 1994. Section 74 provides:

Further applications for bridging visa

(1) Subject to subsection (2), if:

(a) an eligible non-citizen who is in immigration detention makes an application for a bridging visa; and

(b) the Minister refuses to grant the visa;

the eligible non-citizen may make a further application for a bridging visa.

(2) Unless the further application for a bridging visa is made in prescribed circumstances, the further application may be made not earlier than 30 days after:

(a) if the eligible non-citizen did not make an application for review of the decision to refuse to grant the visa--the refusal; or

(b) if the eligible non-citizen made an application for such review--the application is finally determined.

Reg. 2.23 states:

Further application for bridging visa (Act, s 74)

For the purposes of subsection 74(2) of the Act (which deals with a further application for a bridging visa), the prescribed circumstances are that the Minister is satisfied that, although the non-citizen has not made a further application for a Bridging E (Class WE) visa after being refused a visa of that class, the non-citizen now satisfies the criteria for the grant of a visa of that class.

20. Mr Khalsa's evidence was that he thought the MRT could approve the visa application notwithstanding that the client was not a member of the class action at the time of applying for the bridging visa, provided the client was a member of the class action when it heard the case. This would be a change in circumstances between the time of the Department's decision and the hearing, so the MRT could then deem a fresh application to have been made which would comply with subclause 050.212(1). Mr Khalsa said he had seen an MRT decision that supported his view. He conceded at the Tribunal's hearing, however, that his understanding of the relevant regulations had changed. He now thought that in a situation such as the client's, the MRT would be unable to grant the visa. Instead the MRT could inform the Department that the visa applicant had now satisfied the visa criteria and the Department under s.74(2) could invite the person to make another application.

21. Mr Khalsa told the Tribunal that he had been formally retained to act as a migration agent for Ms Amrit Suri, although he dealt with her brother, Mr Sukhvinder Singh Bagga in relation to her application. In cross-examination, he acknowledged, that at the time he wrote the letter of 20 May 2002 (S11) to the Department, he was aware that his application for repeat registration as a migration agent had been refused. Mr Khalsa said that he told Mr Bagga that he could no longer act for Ms Suri. Mr Khalsa also helped a Sikh community school, the Waheguru Simran Society (the Society), with immigration matters, on a no fee basis. The Society had written to the Department about its desire to participate in a special program to sponsor overseas teachers to Australia. The letter of 20 May 2002 was a submission on behalf of Ms Suri and the Society. Ms Suri's application could be granted if the program were approved. In answer to Ms Hanstein, Mr Khalsa said that he wrote the letter on `Superior Migration' letterhead, and included references to his being a registered migration agent and quoted his registration number, because he was following up an earlier submission he had made under letterhead. He thought the Department would not respond to a third party pursuing the matter. Mr Khalsa said, had the Department responded to him, as his letter requested, his passing on any information received to either Ms Suri or the Society would not amount to the provision of immigration assistance. A day or two after sending the letter, Mr Khalsa realised he should not have included information in the header and footer of the letter that referred to his being registered as a migration agent. He did point out that he has not sent any other letters containing these details, except in relation to promoting a newsletter about events in India, which he proposed to sell to members of the Sikh community in Australia.

22. The Tribunal also noted that the applicant's statement (Exhibit A1) included the following:

...

(5) ... I completed 19 points of Continuing Professional Development, (CPD) in the year before my registration in May 2001 and 25 points in the year before my registration in May 2002. The legal requirement for CPD is 10 points in the year prior to re-registration.

(6) I was a Migration Agent from 2 May 1997 to 1 May 2002. During those five years I have handled over 300 matters. None of my clients have complained to MARA about my services.

(7) As a Migration Agent, I have been the subject of 2 complaints, neither of which were made by clients.

(8) The first related to my conduct in respect of a Federal Court proceeding. That complaint was investigated by MARA and as a result, no action was taken.

(9) The second complaint is the subject of these proceedings.

...

Mr Nicholas Poynder

23. Nicholas Poynder is an experienced barrister who practises in Sydney who gave evidence by telephone. Approximately 60 per cent of his practice involves immigration work.

24. In his letter to the Tribunal dated 12 August 2002, which was admitted in evidence as Exhibit A4, Mr Poynder remarked that Mr Khalsa had referred three clients to him for advice who had been refused protection visas by the Refugee Review Tribunal. In Mr Poynder's view, he considered Mr Khalsa to have been "perfectly competent" in the way he handled the cases and he saw nothing to suggest that he lacked a good understanding of migration law and judicial review. Mr Poynder in cross-examination said that if someone researched a matter and came up with an answer plainly inconsistent with the regulations, such a person would not demonstrate a good understanding of migration law.

Mr Mark Robinson

25. An affidavit of Mark Robinson sworn on 12 August 2002 was admitted in evidence (Exhibit A3). Mr Robinson has practised as a barrister for over nine years and before that, as a litigation solicitor for about five years. He has known Mr Khalsa for about four years and deposed as follows:

2. The applicant has explained to me what the present proceedings relate to and has provided me with copies of correspondence between him and the Migration Agents' Registration Authority as well as the Refugee Review Tribunal transcript dated 26 September 2001.

3. In a number of matters, the applicant has briefed me direct or by way of a solicitor to provide judicial review advice in relation to Federal Court and migration matters on behalf of his clients and I have given him such advice. Accordingly, I consider I am in a position to form an impression as to his apparent knowledge of migration law in Australia.

4. In relation to the matters in which he has briefed me or caused me to be briefed, I consider the applicant to be competent as a migration agent in that he demonstrated a proper understanding of the relevant migration law.

5. In my opinion he is of good character and reputation as a migration agent.

26. In cross-examination, Mr Robinson explained that the areas of migration law to which his affidavit referred, were refugee matters and did not involve bridging visas or the criteria for bridging visas. When asked to enumerate the matters in which he has had dealings with the applicant, Mr Robinson said he had done so on four occasions. He explained that barristers rely on migration agents for their proficiency in the Act and the regulations. He expects those who instruct him, whether solicitor migration agents or others, to have a reasonable grasp of the Act and regulations. In addition, he said that Mr Khalsa has come to him in chambers to discuss two or three matters that Mr Khalsa was personally running in the courts. Mr Robinson described these discussions as practitioner to practitioner, and he found Mr Khalsa to be someone in whom he had confidence. He said that, unlike other migration agents with whom he had worked, Mr Khalsa is a professional whom he can trust and from whom he would take instructions directly.

Mr Karam Ramrakha

27. Mr Karam Ramrakha is a registered migration agent and a solicitor practising in New South Wales since December 1982. He has known the applicant for twelve years in both legal and community matters. In his undated statement (Exhibit A5) Mr Ramrakha said:

5. I recommended that he [Mr Khalsa] undertake a migration course taught through the University of New South Wales, which I understand he passed and as a result became a Registered Migration Agent.

6. Accordingly, I have been able to assess his knowledge of legal issues, including Migration Law.

7. I have found him to be a competent Migration Agent with good knowledge of Migration Law and related matters. He appeared to me industrious and dedicated. In my opinion he is a person of good character.

8. I see he is a regular attendant at MIA lectures.

9. In my opinion he is of good character and reputation.

28. Mr Ramrakha said in answer to Ms Hanstein that he has formed his opinion about Mr Khalsa's competence in migration law from general discussions with him about immigration issues and one or two specific client matters. He would not describe Mr Khalsa as an expert in migration law. But he said on one occasion, while he was on leave from the office, he arranged for Mr Khalsa to provide his office with advice on any immigration matter that might crop up. Mr Ramrakha agreed that it would be a basic error for a migration agent not to know that in an application for a Bridging E visa, the applicant must satisfy a time of application criterion.

Mr Sukhvinder Singh Bagga

29. Mr Bagga is the brother of Ms Amrit Suri, for whom Mr Khalsa has acted in relation to her visa application. Mr Bagga made a statement dated 9 August 2002 (Exhibit A2):

3. In about May this year, Ram Ravi [the applicant] told me that his Migration Agents Licence had been cancelled and he was going to fight it in court, but that he could not practice in the meantime.

4. Amrit received a letter from the Department in May 2001 asking for information. I asked Ram Ravi what was happening. It may have been then that he told me about his licence. He said he had not received a response to a letter he had sent to Canberra. I said it was getting urgent. He said he could not do anything and said I should send a letter to Canberra on my sister's behalf. I could not understand what Ram Ravi was saying I should do and I asked him to do it, which he did.

30. In reply to Ms Hanstein, Mr Bagga said that he was stressed when Mr Khalsa told him that he was no longer registered as a migration agent because he did not know how to pursue his sister's visa application. He said he insisted that Mr Khalsa write the letter of 20 May 2002 chasing up the Department (S11), because he did not understand what was involved. He said Mr Khalsa did not charge a fee for writing the letter.

LEGISLATION

31. Part 3 of the Act deals with migration agents and the provision of immigration assistance. Section 280 of the Act provides that only persons who are registered as migration agents may give immigration assistance, and it states:

Restrictions on giving of immigration assistance

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

Penalty: 50 penalty units.

(1A) An offence against subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

...

(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.

32. In relation to giving `immigration assistance', s.276(1) of the Act relevantly provides:

(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....

33. Section 283 imposes a penalty on a person who falsely claims to be a migration agent:

False representation that a person is a registered agent

(1) A person who is not a registered agent must not directly or indirectly represent that he or she is such an agent.

(2) A person must not directly or indirectly represent that another person who is not a registered agent is such an agent.

Penalty: Imprisonment for 2 years.

Division 3 of Part 3 deals with the registration of migration agents. Individuals may apply to the Authority for registration as a migration agent: s.288 of the Act. The Authority is required by s.287 to maintain a register of the individuals who are registered as migration agents. The period of registration is set out in s.299 of the Act:

(1) Subject to sections 300, 302 and 303 and subsection (3), the registration of a registered agent lasts for 12 months after the registration.

(3) If the registration of a registered agent is suspended for a period, the current period of the agent's registration is extended by a period equal to that period of suspension.

Section 289 relevantly states in relation to registration:

(1) The Migration Agents Registration Authority must register an applicant by entering his or her name in the Register, unless section 290, 290A, 291, 292, 293 or 294 prohibits registration of the applicant.

Note: If the Migration Agents Registration Authority is considering refusing a registration application because of one or more of those sections, it must give the applicant a chance to make a further submission supporting the application. See sections 309 and 310.

(2) The Migration Agents Registration Authority do so as soon as possible. [sic]

...

(4) Subject to subsection 300(3), if the Migration Agents Registration Authority enters in the Register the name of an applicant who is already registered, the later registration takes effect at the end of the existing registration (unless the existing registration is cancelled before it would end under section 299).

Section 290 "Applicant must not be registered if not a person of integrity or not fit and proper" is of particular relevance to this proceeding:

(1) An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:

(a) the applicant is not a fit and proper person to give immigration assistance; or

(b) the applicant is not a person of integrity; or

(c) the applicant is related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship.

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

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

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

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

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

(ii) a person of integrity;

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

(d) any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and

(e) any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and

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

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

(h) any other matter relevant to the applicant's fitness to give immigration assistance.

Section 291 deals with the effect of refusing a registration application:

An applicant must not be registered if he or she has been refused registration as a migration agent within 12 months before his or her application.

Under s.303 of the Act, the Authority at its discretion may cancel or suspend a migration agent's registration; or it may instead decide to caution the migration agent:

The Migration Agents Registration Authority may:

(a) cancel the registration of a registered agent by removing his or her name from the register; or

(b) suspend his or her registration; or

(c) caution him or her;

if it becomes satisfied that:

(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.

Note: If the Migration Agents Registration Authority is considering cautioning a registered agent, or suspending or cancelling a registered agent's registration, it must invite the registered agent to make a submission. See sections 309 and 310.

34. The Tribunal's jurisdiction in this matter is found in s.306:

Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division.

35. On the expiry of his registration Mr Khalsa became an inactive agent : s.306B of the Act,

For the purposes of this Division:

(a) if a person ceases to be a registered agent because the person's period of registration expires under section 299:

(i) the person becomes an inactive agent at the time of the cessation; and

(ii) the person remains an inactive agent until the end of the period of 2 years after the cessation or until the person again becomes a registered agent, whichever happens first; and

Code of Conduct

36. Section 314 of the Act provides for a Code of Conduct as follows:

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

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

It is convenient here to set out the relevant clauses in the Code of Conduct, which is found in Schedule 2 to the Migration Agents Regulations 1998:

Part 2 Standards of professional conduct

2.1 A migration agent must always:

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

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

...

2.3 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.

2.5 A migration agent must:

(a) take appropriate steps to maintain and improve his or her knowledge of the current versions of:

(i) the Migration Act 1958; and

(ii) the Migration Regulations 1994; and

(iii) other legislation relating to migration procedure; and

(iv) portfolio policies and procedures; and

(b) maintain a professional library that includes those materials.

Note An agent must satisfy the requirements for continuing professional development set out in Schedule 1 to the Migration Agents Regulations 1998.

...

2.17 If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) the agent:

(a) must not encourage the client to lodge the application; and

(b) must advise the client that, in the agent's opinion, the application is vexatious or grossly unfounded; and

(c) if the client still wishes to lodge the application -- must obtain written acknowledgment from the client of the advice given under paragraph (b).

...

2.21 A migration agent should not submit an application under the Migration Act or Migration Regulations without the specified accompanying documentation. For example, in a marriage case, threshold documentation would include a marriage certificate and evidence that the sponsor is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, without which assessment of the case could not proceed (unless the agent has a reasonable excuse or the client has requested the agent to act despite incomplete documentation).

...

2.23 A migration agent must take all reasonable steps to maintain the reputation and integrity of the migration industry

...

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

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

(b) copies of each written communication between:

(i) the client and the agent; and

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

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

(i) the client and the agent; and

(ii) the agent and an official of any relevant statutory authority.

SUBMISSIONS

37. For the applicant, it was submitted that the text of reg. 2.23 was difficult to construe, and its interpretation by the MRT and the Immigration Review Tribunal in cases such as Kumar [1998] IRTA 12428, Blake [1998] IRTA 12717 and Lal [2001] MRTA 5091 may have led to Mr Khalsa's misunderstanding it. Mr Colborne submitted that the principal purpose of the application for the bridging visa and application to the MRT was to provide what the Department required, in order that the client not be removed from Australia. He also submitted that, in the event, Mr Khalsa's misunderstanding the law in relation to sub-clause 050.212 did not affect the client's cause. Clause 2.4 of the Code of Conduct was not breached because the client gained from Mr Khalsa's experience and knowledge. There was no breach of clause 2.5 because Mr Khalsa had attended more than the minimum number of CPE hours in his last year as a registered migration agent. That no client had lodged a complaint about Mr Khalsa during his five years of practice, demonstrated that he had taken appropriate steps to maintain and improve his knowledge of the Act, regulations and migration policies and procedures.

38. Mr Colborne also submitted that evidence of the client's membership of the class action was not "accompanying documentation" as referred to in clause 2.21 of the Code of Conduct. Mr Colborne emphasised that in construing the Code of Conduct, the Tribunal should be mindful that the severe penalty of refusing re-registration demands that an interpretation of the relevant standard of conduct not be ambiguous or uncertain; he cited Hanna v Migration Agents' Registration Authority (1999) 94 FCR 358. If clause 2.21 had been breached, Mr Khalsa had a reasonable excuse in that he had to lodge the visa application to meet the Department's requirements, even though the evidence of membership was not then available. Mr Khalsa's use of his migration agency's letterhead after he was no longer a registered migration agent was inadvertent, completed without charge, was clerical work undertaken for a friend, and did not constitute "immigration assistance."

39. Ms Hanstein submitted that the basis of Mr Khalsa's interpretation of reg. 2.23 was clearly wrong. Moreover, this failing demonstrated his inability to find and apply the relevant legislative provisions and regulations, and that the Tribunal should be satisfied that he was not a fit and proper person to give immigration assistance or a person of integrity. Ms Hanstein, as did Mr Colborne, referred the Tribunal to Deputy President Handley's decision in Prasad and Migration Agents' Registration Authority (2002) AATA 423 for guidance as to the meaning of "fit and proper person to give immigration assistance" and "person of integrity". Ms Hanstein further submitted that Mr Khalsa's actions in relation to the application for the bridging visa breached clauses 2.3, 2.4, 2.17 and 2.21 of the Code of Conduct and that Mr Khalsa contravened s.283 of the Act by representing himself to be a registered migration agent after he had become aware that his registration had ceased.

FINDINGS AND CONSIDERATION

40. Mr Khalsa's application is for review of the Authority's decision under s.290 of the Act not to renew his registration as a migration agent. The Authority so decided because it was satisfied that Mr Khalsa was not a fit and proper person to give immigration assistance and was not a person of integrity, on the grounds that he breached clauses 2.4, 2.5 and 2.21 of the Code of Conduct. During the hearing the solicitor acting for the Authority raised an additional complaint, being the breach of clauses 2.17 and 6.1 of the Code.

41. On review, the Tribunal's task is to determine whether it is satisfied that Mr Khalsa is not a fit and proper person or a person of integrity. In this regard, the Tribunal notes the following dictum of Rich J. from Briginshaw v Briginshaw (1938) 60 CLR 334 (at 350):

The phrase 'satisfy itself, so far as it reasonably can' obviously reflects the influence of the common expression `reasonable satisfaction' ... The nature of the allegation requires as a matter of commonsense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the Tribunal has reached both a correct and just conclusion.

Subsection 290(2) directs the decision-maker to take into account a number of matters in determining whether it is satisfied that the person is a fit and proper person or a person of integrity. In Mr Khalsa's case, the Authority submitted that the following paragraphs of s.290 were relevant: (a) the extent of his knowledge of migration procedure; (b) whether the Authority considered that knowledge to be sound; and (h) whether he has breached the Code of Conduct.

As to the meaning of the phrases "fit and proper person" and "person of integrity" the Tribunal had regard to the decision of Deputy President Handley in Prasad and Migration Agents' Registration Authority (2002) AATA 423, where he referred to his earlier decision on an application by the migration agent concerned, and said:

The Tribunal cited the discussion by Deputy President Purvis in Re SRH and Controller General of Customs (1995) 21 AAR 401, at 405, when he adopted the ordinary meaning of the word `integrity' as indicating `soundness of moral principle and character; uprightness, honesty'. He then went on to discuss the meaning of `fit and proper' in the context of the Income Tax Assessment Act, which he said emcompasses integrity, honesty, diligence and professionalism; these are the qualities relevant to integrity. The Tribunal then cited Deputy President Forgie in Hakaoro and Minister for Immigration and Multicultural Affairs (1998) 26 AAR 534, and her discussion of the need for a migration agent giving competent migration assistance to have a knowledge of migration procedure. While knowledge may not reflect on a person's integrity, it may mean that a person is not otherwise a fit and proper person to give immigration assistance. ... In [Re Lilienthal and Migration Agents Registration Authority [2001] AATA 797] Deputy President Purvis repeated his discussion of the word `integrity' in Re SRH (supra). He also cited the decision in Hughes and Vale Pty Ltd v State of New South Wales (No.2) (1955) 93 CLR 127 at 156, where the High Court discussed the meaning of the `fit' in a similar context, which it said involves: "Three things, honesty, knowledge and ability." The Deputy President emphasised that the concept of fitness and propriety is not however, to be narrowly construed or confined but is to be interpreted in the context of the activities in which the person is, or will be engaged and the ends to be served by these activities: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380.

43. The Tribunal finds that on 10 September 2001 Mr Khalsa advised his client, through a friend, that at that point in time an application for a bridging visa had no chance of success because the client was not then a member of the class action. In addition, the Tribunal finds that Mr Khalsa had advised the client that it may be considered vexatious to lodge the application at a time when the client had not been made a party to the class action (T31 p.131). The Tribunal finds that on 11 September 2001 Mr Khalsa lodged an application for a Bridging E (class WE) visa for his client. The visa application stated that the client was joining the Lie class action, but at the time of making the application, the client was still not a party to the class action.

44. The Tribunal accepts Mr Khalsa's evidence that he thought that reg 2.23 authorised the MRT to grant the visa if, at the time of the MRT's hearing, the client had joined the class action. The intended application of reg. 2.23 is not clear. Certainly, it is the case that the client's visa application was validly made, in that it was not lodged within thirty days of a previous refusal. However, the Tribunal can appreciate that there was some logic to the applicant's interpretation of reg 2.23. He said, if reg. 2.23 can authorise the MRT to grant a visa where the necessary criteria are satisfied at the date of its decision, despite there being no application or an invalid application, surely then it could do so in similar circumstances where a valid application had been lodged. The decisions by the MRT and the IRT that Mr Khalsa cited support his submission that the regulation's meaning is not free from doubt; the Tribunal notes the comments by the IRT in Saufatu [1995] IRTA 5192 about "An attempted resolution of the confused relationship between regulation 2.23 and section 74(2) ...". The Tribunal is satisfied that Mr Khalsa honestly held this view and did not intend to mislead the MRT when he said he thought a bridging visa application could be successful if a change in circumstances happened between the time of application for the visa and the time of the MRT's decision. The Tribunal also accepts his evidence that he had not read recent legislative changes which could have contained material relevant to bridging visa applications. He was aware that subclause 050.212 was not the only regulation relevant to these applications.

45. Admittedly, it is the case that Mr Khalsa no longer maintains his view about reg. 2.23. He now holds the opinion that the MRT pursuant to reg.2.23 could return the matter to the Department and the Department could invite a further visa application within the thirty days. Mr Ramrakha, an experienced solicitor and registered migration agent, said that it was a basic error not to know that a bridging visa application must comply with the time of application criteria of clause 050.212, but he was not asked for his opinion about the meaning of reg. 2.23. Against that, Mr Ramrakha's evidence was that he considered knowledge about Bridging E visas to be peripheral to the practice of a migration agent. Mr Poynder, a barrister with a substantial migration law practice, said that a migration agent would not have a good understanding of the law if the agent's interpretation of a regulation was inconsistent with its plain meaning. On balance the Tribunal rejects the Authority's submission that Mr Khalsa's understanding of reg. 2.23 and sub-clause 050.021 demonstrated his lack of ability to find and interpret the relevant law. Rather, the Tribunal finds that Mr Khalsa was cognisant of the relevant legislation and regulations. What then of Mr Khalsa's interpretation of reg. 2.23? Does it imply something less than a sound working knowledge of the Act and regulations, as required by clause 2.3 of the Code of Conduct? The Tribunal is mindful that he arrived at his view by taking into account an earlier MRT decision. Although his interpretation of reg. 2.23 appears to the Tribunal not to be the better view and its prospects for success before a court or tribunal may well have been slight, it was not egregiously unrealistic or fanciful. Also relevant to a consideration of the extent of Mr Khalsa's knowledge of migration procedure (s.290(2)(a)) is Mr Robinson's evidence that he expects migration agents who instruct him to have a reasonable grasp of the Act and regulations, and that he regards Mr Khalsa as an agent who understood what he was talking about. In these circumstances, the Tribunal is comfortably satisfied that Mr Khalsa's knowledge of the relevant law was sound, as was his method of acquiring that knowledge and, consequently, forming his opinion.

46. The Tribunal finds that the client applied to join the Lie class action on 4 September 2001 and that the process for joining him as a party was in train but not completed by 11 September 2001 when the visa application was lodged. So, at the time of lodging the visa application, Mr Khalsa knew the application could not succeed unless the client became a party to the class action before the MRT's decision. The Tribunal finds that Mr Khalsa had furnished such advice and told the client that the application may be vexatious. Since Mr Khalsa did not obtain written acknowledgment of that advice, the Tribunal finds that he breached clauses 2.17 and 6.1 of the Code of Conduct. The Tribunal is mindful of the exigencies that might be faced by a busy migration agent. However, clients of migration agents are best protected from unscrupulous or incompetent agents if the agents are required to confirm their advice in writing and note any risks assumed by following the advice. The observations by Mason CJ in Cunliffe and anor v Commonwealth of Australia (1994) 182 CLR 272 about the system of registering migration agents are germane in this regard: "[it] seeks to achieve that object by protecting aliens from incompetent and unscrupulous advisers, through the introduction of a regulatory regime which is designed to ensure that those who advise and represent are competent and are persons of integrity." Where advice has been relayed between agent and client through a third party, agents too would be prudent to obtain their client's written acknowledgment of instructions and advice.

47. As for the Authority's decision that Mr Khalsa acted in breach of clause 2.21 of the Code of Conduct by submitting the bridging visa application "without the specified accompanying documentation", the Tribunal notes that there was no evidence as to the nature of the specified accompanying documentation. The Tribunal accepts the applicant's submission based on the judgment of Tamberlin J in Hanna v Migration Agents Registration Authority (1999) 94 FCR 358:

... where a provision is directed to the prescription of standards of conduct, which, if breached, may be visited with severe consequences, the duty should be clearly spelt out. The necessity to add any words or qualification to the language used may well produce uncertainty as to the circumstances in which the clause operates.

But even assuming that, on lodging the visa application, Mr Khalsa would have had to produce a document establishing that the client was then a member of the Lie class action, the Tribunal finds he had a reasonable excuse for not doing so. The Tribunal accepts that he thought that membership of the class action at the time of the MRT's hearing was sufficient to attract the application of reg. 2.23. Here the client's application was lodged together with a solicitor's account for the preparation of documents to include the client in the class action. In this context the Tribunal accepts that it was reasonable for Mr Khalsa to consider that production of proof of joining the case could be made later but prior to the MRT hearing the matter.

48. The Tribunal does not agree with the Authority that Mr Khalsa's conduct in lodging the visa application and appearing on the client's behalf before the MRT, reflected a lack of understanding on his part of the relevant law. The application was made on the basis of Mr Khalsa's interpretation of the regulations, including reg. 2.23. The Tribunal accepts his evidence that he acted in the best interest of his client. Mr Khalsa advised his client that there was no chance of success as at 11 September 2001. But it was Mr Khalsa's opinion that subsequent developments could alter those prospects and, accordingly, the Tribunal finds that there was no lack of regard on his behalf as to his client's dependence on his knowledge and experience in proceeding to lodge the application. Accordingly, he did not breach clause 2.4 of the Code of Conduct.

49. There is next the issue regarding the letter that Mr Khalsa wrote to the Department on `Superior Migration' letterhead and signed as a migration agent. A month earlier Mr Khalsa had written to the Department about Ms Suri's application. The Tribunal accepts Mr Bagga's evidence and finds that when he approached Mr Khalsa to chase up Ms Suri's visa application, Mr Khalsa told him that he was no longer registered. Further, the Tribunal finds that when asked by Mr Bagga for help, Mr Khalsa did so, without charge, because Mr Bagga is his friend, the honorary work he did in the Sikh community gave him close ties with the Waheguru Simran Society, and because he wanted to ensure that the Department replied to him, hoping that he could thereby keep the matter moving along. However, writing the letter, apparently in the capacity as a migration agent, and requesting the Department to contact him if additional information was required, was a contravention of s.283 of the Act. There was an indirect representation that he was a registered agent. Although the Tribunal accepts that Mr Khalsa acted inadvertently, he nevertheless contravened that provision. Despite this, the Tribunal does not accept that his conduct amounted to a contravention of s.280 of the Act, which reserves the provision of immigration assistance to registered migration agents. No fee was charged for writing the letter. The circumstances in which the letter was written point to it being the product of a personal and community relationship and, accordingly, the Tribunal is satisfied that Mr Khalsa's assistance was not given in the course of or in association with his migration agent business.

50. In reviewing the Authority's decision not to renew Mr Khalsa's registration, the Tribunal has found that, in two instances, Mr Khalsa's conduct has fallen below the relevant standard set in s.283 of the Act and clauses 2.17 and 6.1 of the Code of Conduct. The Tribunal is satisfied that neither infringement involved dishonesty. Mr Khalsa thought he was acting in the best interest of the client and Ms Suri. The Tribunal finds the letter of 20 May 2001 to the Department was not written with the intention of deceiving. The Department would probably be the last body a person would intentionally try to mislead about their registration status. Taking account also of the evidence of Mr Robinson, Mr Poynder and Mr Ramrahka, the Tribunal is not comfortably satisfied that Mr Khalsa is not a person of integrity. As for the breaches of the Code of Conduct, the Tribunal accepts Mr Colborne's submission that they are technical breaches that need to be assessed in the context of a migration agent of five years standing with an unblemished record. The applicant had attended considerably more than the minimum number of CPE hours in his final twelve months of registration (Exhibit A1). Mr Khalsa's failure not to record his advice occurred on an occasion when there was a need to act quickly in response to recent information from the Department. It is also relevant that Mr Khalsa had already given the client advice generally about an application for a protection visa, noting the options available including an application for a bridging visa. His knowledge of migration law has been attested to by a number of witnesses, including the client, and the Tribunal is not comfortably satisfied that Mr Khalsa's breaches of the Code of Conduct demonstrate that he is not a fit and proper person to give immigration assistance. The Authority should perhaps have cautioned Mr Khalsa for not complying with the Code of Conduct, which appears a more appropriate sanction than effectively disqualifying him from practice. The Tribunal is satisfied that s.290(1)(a) and (b) of the Act are not impediments to Mr Khalsa's re-registration and accordingly the decision under review should be set aside.

I certify that this and the preceding pages are a true copy of the decision and reasons for decision herein of:

Signed:

.........................................................................................................................

Associate

Date of Hearing 13 August 2002

Date of Decision 29 November 2002

Counsel for Applicant Mr C. Colborne

Solicitor for Respondent Ms S. Hanstein, Blake Dawson Waldron