Howard and Migration Agents Registration Authority [2002] AATA 1249 (5 December 2002)

Last Updated: 9 December 2002

DECISION AND REASONS FOR DECISION [2002] AATA 1249

ADMINISTRATIVE APPEALS TRIBUNAL ) No N2001/1637; N2002/266

)

GENERAL ADMINISTRATIVE DIVISION )

Re MARGARET HOWARD

Applicant

And MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Ms G Ettinger - Senior Member

Date 5 December 2002

Place Sydney

Decision File N2002/266 The Tribunal affirms the decision under review being the decision made on 14 February 2002 by the Migration Agents Registration Authority to refuse the Applicant, Miss Margaret Howard's application for registration as a migration agent. File N2001/1637 It is noted that the decision of the Migration Agents Registration Authority of 23 October 2001 to cancel Miss Margaret Howard's registration as a migration agent lapsed on 26 October 2001. That application is dismissed. File N2001/1637; N2002/266 The application, (dealt with in a separate decision, Howard and Migration Agents Registration Authority [2002] AATA 1245 to have Miss Margaret Howard's identity made confidential for purposes of publication pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 is refused.

[SGD] Ms G Ettinger

Senior Member

CATCHWORDS

Migration agent - registration -- cancellation of registration - refusal to register Applicant as a migration agent - Applicant failed to comply with designated clauses of the relevant Codes of Conduct for migration agents - Applicant failed to comply, whether such failure is sufficient to warrant cancellation of registration - Applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance - decision affirmed.

Legislation

Migration Act 1958 - ss 4, 290, 303, 314

Migration Agents Regulations 1998 - Schedule 2 Code of Conduct (as at 1 August 1996, 1 April 1998 and 1 July 2000)

Case Law

Howard and Migration Agents Registration Authority [2002] AATA 1245

Howard v Migration Agents Registration Authority [2001] AATA 978

Briginshaw v Briginshaw (1938) 60 CLR 336

De Vere and Migration Agents Registration Board (AAT 13278, 11 September 1998)

Hakaoro and Minister for Immigration and Multicultural Affairs [1998] 26 AAR 534

Hughes and Vale Pty Ltd and Anor v State of New South Wales and Ors [No.2] (1955) 93 CLR 127

Sosrohadipoespito and Migration Agents Registration Authority [2001] AATA 293

Lilienthal and Migration Agents Registration Authority (2001) 66 ALD 249; (2002) 34 AAR 371

Griffiths and Migration Agents Registration Authority [2002] AATA 247

Story v National Companies & Securities Commission (1988) 13 NSWLR 661

Cunliffe and Anor v Commonwealth of Australia (1944) 182 CLR 272

Re Peng and Department of Immigration and Multicultural Affairs (AAT 12543, 19 January 1998)

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

Hughes and Vale Pty Ltd and Anor v the State of New South Wales and Ors (No2) (1955) 93 CLR 127

Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321

Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 34 ALD 324

REASONS FOR DECISION

5 December 2002 Ms G Ettinger - Senior Member

BACKGROUND

1. The matters for review before the Administrative Appeals Tribunal ("the Tribunal") were:

* File N2001/1637 related to the cancellation on 23 October 2001 by the Migration Agents Registration Authority ("MARA"), the Respondent in these proceedings, of the Applicant, Miss Margaret Howard's registration as a migration agent pursuant to section 303(a) of the Migration Act 1958 ("the Act") for breaches of the Migration Agents Code of Conduct (section 303(h)), as follows: Clauses 5, 23, 28 and 28A of the Code of Conduct as at 1 August 1996, Clause 8.1 of the Code of Conduct as at 1 April 1998, and Clauses 2.3, 6.3 and 9.3 of the Code of Conduct as at 1 July 2000. MARA held that Miss Howard had not complied with the Code of Conduct pursuant to section 314 of the Act. Further MARA was satisfied pursuant to section 303(f) of the Act that Miss Howard was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance. Miss Howard's registration as a migration agent then lapsed on 26 October 2001.

* File N2002/266 related to the application of Miss Howard appealing against the refusal of the Respondent dated 14 February 2002, to register her as a migration agent pursuant to section 290(1) and sections 303(f) and (h) of the Migration Act 1958 because it was satisfied that Miss Howard was not a fit and proper person to give immigration assistance. In doing so, MARA found that Miss Howard had breached Clauses 5, 23, 28 and 28A of the Code of Conduct as at 1 August 1996, and Clauses 2.3 and 9.3 of the Code of Conduct as at 1 July 2000.

2. The Tribunal was mindful that MARA's grounds for cancellation of Miss Howard's registration as a migration agent, and its grounds for refusal of re-registration were substantially the same. The only differences appeared to be that in the decision to cancel the registration Clause 8.1 of the Code of Conduct as at 1 April 1998, and Clauses 6.3 of the Code of Conduct as at 1 July 2000 were also considered. The Tribunal noted that these did not raise new issues, that is issues other than those discussed in relation to the considerations of Clauses 5, 23, 28 and 28A of the Code of Conduct as at 1 August 1996, and Clauses 2.3 and 9.3 of the Code of Conduct as at 1 July 2000.

3. In addition to the abovenamed, the following Clauses were raised in the decision to cancel Miss Howard's registration.

* Clause 8.1 of the Code of Conduct as at 1 April 1998

* Clause 6.3 of the Code of Conduct as at 1 July 2000

Clause 8.1 of the Code of Conduct as at 1 April 1998

This Clause relates to a migration agent having a duty to exercise effective control of her office for the purpose of giving immigration advice and assistance. I was satisfied that that this matter was amply covered in the section below which deals with breaches of the Code of Conduct.

Clause 6.3 of the Code of Conduct as at 1 July 2000

This Clause relates to the duties of a migration agent to respond to a request of MARA within a reasonable time. I was satisfied that that this matter was amply covered in the section below which deals with breaches of the Code of Conduct.

4. Having considered the above, the Tribunal notes that it was essentially reviewing the decision to refuse re-registration to Miss Howard in Matter N2002/266, and found from the specific Clauses of the Code of Conduct which it has discussed further on in this decision, arising out of that decision of MARA, that it was satisfied to the requisite standard that the decision of MARA should be affirmed.

5. The Tribunal was satisfied that the earlier decision (23 October 2001), to cancel Miss Howard's registration was taken on very similar grounds, noting that MARA, had not in its reasons, dealt specifically Clause 8.1 of the Code of Conduct as at 1 April 1998 and Clause 6.3 of the Code of Conduct as at 1 July 2000. The Tribunal was satisfied that had it been reviewing the decision to cancel Miss Howard's registration made on 23 October 2001, which was essentially made on the same grounds as the decision to not re-register on 14 February 20002, it would not have come to any other decision. Accordingly the Tribunal has chosen to dismiss the application of 23 October 2001 without further inquiry.

6. In relation to the decision of MARA to cancel Miss Howard's registration on 23 October 2001, the Tribunal, on 14 November 2001, heard the application for a Stay of the operation of the cancellation of Miss Howard's registration as a migration agent. It published a decision granting a Stay with certain conditions on 30 November 2001, in the decision Howard v Migration Agents Registration Authority [2001] AATA 978. As relevant the Stay indicated:

"That Ms Margaret Howard only give migration advice and assistance subject to the supervision of Mr Harold Baker, solicitor, providing Mr Baker remains a registered Migration Agent and is willing and able to give such supervision;

That Ms Margaret Howard submit all files concerning migration matters to Mr Harold Baker to be inspected and countersigned before matters are lodged or advice is given;

That Mr Baker have access to Ms Howard's files and supervise and countersign all transactions related to incoming money or expenditure of migration clients' money; and

That Ms Howard inform Mr Baker in full about her clients.

Liberty to apply."

7. The Tribunal was misled by Miss Howard and her representative Mr T Nyman, solicitor, on 14 November 2001 when the Stay Hearing took place, in that neither disclosed to the Tribunal that Ms Howard's registration had expired on 26 October 2001 that is, previous to the date of the Stay Hearing. This in fact rendered the Stay nugatory.

8. After the Hearing of the substantive matter on 17 and 18 July 2002, the Tribunal on 30 July 2002, heard an application from the Applicant's counsel, Ms M Tzannes, requesting that orders be made under section 35 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") that Miss Howard's name be suppressed in publication of this decision. A decision refusing that application was published on 4 December 2002.

9. Miss Howard was represented at the substantive hearing and at the application for an order pursuant to section 35 of the AAT Act, by Ms M Tzannes of counsel, instructed by Nyman Gibson and Co. The Respondent was represented by Ms S Hamer, solicitor of the Australian Government Solicitor.

ISSUES FOR DETERMINATION

10. The issue for determination by the Tribunal was the claim by Miss Howard against the decision of MARA made on 14 February 2002 to refuse registration to her as a migration agent pursuant to section 290(1) of the Act. In deciding whether this was the correct and preferable decision, the Tribunal had to consider:

(a) Whether the Applicant failed to comply with designated clauses of the relevant Codes of Conduct for migration agents prescribed by the Migration Agents Regulations 1988 pursuant to section 314(1) of the Act, the clauses being Clause 5, 23, 28 and 28A of the Code of Conduct applicable as at 1 August 1996 and Clauses 2.3, and 9.3 of the Code of Conduct applicable at 1 July 2000.

(b) If the Applicant did so fail, was such failure sufficient to warrant cancellation of her registration by MARA as a migration agent on 23 October 2001, and refusal to grant re-registration 14 February 2002; and

(c) whether the Applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance pursuant to section 290 of the Act.

11. As noted above, the Tribunal has already dealt with the decision of MARA to cancel Miss Howard's registration.

12. The Tribunal was also asked at the conclusion of the substantive hearing to consider exercising its discretion under section 35 of the AAT Act to suppress the name of Miss Howard from publication in its decisions. A separate decision on application refusing it was published on 4 December 2002 (Howard and Migration Agents Registration Authority [2002] AATA 1245).

RELEVANT STATUTORY PROVISIONS AND REGULATIONS

13. The provisions of the Act relevant to this application are:

"4(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

...

290(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

...

290(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

...

(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

...

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

...

303 Discretionary cancellation or suspension of registration etc.

The Migration Agents Registration Authority may:

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

...

if it becomes satisfied that

...

(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or

...

(h) the agent has not complied with the Code of Conduct prescribed under section 314.

314 Code of Conduct for migration agents

(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."

14. The relevant clauses of the Code of Conduct are:

code of conduct as at 1 august 1996

" Clause 5

On all occasions a migration agent must act in accordance with the law and in the legitimate interest of his or her client.

Clause 23

There is no statutory scale of fees. Nonetheless, an agent is expected to set a fee that is reasonable in the circumstances of the case. A migration agent must provide a statement of fees at the start of work for a client in the form of charges per hour, or per particular service and an estimation of the likely time to be taken in performing a service....

Clause 28

An agent must keep separate accounts for:

* The agent's operating expenses (the "operating account"); and

* monies paid by clients to the agent for fees and disbursements (the "clients' account").

The agent must hold fees paid by a client in the clients' account until the work that the agent has been contracted to do for that client has been completed. The agent may, at any time, withdraw money from the clients' account for disbursements that are required to be paid to the Department of Immigration and Multicultural Affairs, or any other agency, on behalf of the client.

Clause 28A

An agent must keep records of the clients' account, including:

* the date and quantum of each deposit made to the clients' account, including an indication of the purpose of the deposit and the client on whose behalf the deposit is made; and

* each withdrawal made from the clients' account; and

* receipts for any payment made by the client to the agent; and

* copies of invoices or accounts rendered in relation to the account."

An agent must make the records of the clients' account available for inspection on request by the Migration Agents Registration Board.

CODE OF CONDUCT AS AT 1 JULY 2000

"Clause 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.

Clause 9.3

If the Authority gives a migration agent details of a complaint made to the Authority about:

(a) the work or services carried out by the agent or the agent's employees; or

(b) any other matter relating to the agent's compliance with this Code - the agent must respond properly to the Authority, within a reasonable time specified by the Authority when it gives details to the agent."

evidence before the tribunal

15. The Tribunal had before it documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), the T-documents, and Supplementary T-documents (Exhibit R1).

16. The Applicant and the Respondent each tendered additional written material marked as exhibits as follows:

Item Date Exhibit Number

List of certificates of Margaret Howard Various dates Exhibit A1

Various witness statements Various dates Exhibit A2

Applicant's Statement of Facts, Issues and Contentions 8 February 2002 Exhibit A3

Letter from R Fitzgerald to the Applicant 2 February 1997 Exhibit A4

Unsigned statement of account from R Fitzgerald to R Tangherian Undated Exhibit A5

Telephone bill of the Applicant for August to September 1997 12 September 1997 Exhibit A6

Affidavit of R Tangherian 15 February 2002 Exhibit R2

Decision of MARA refusing Margaret Howard's application for registration 14 February 2002 Exhibit R3

Letter of the Law Society of New South Wales 22 March 2002 Exhibit R4

Respondent's Statement of Facts and Contentions 20 February 2002 Exhibit R5

17. Oral evidence was given at the Hearing by the Applicant Miss Howard, Mr Richard Fitzgerald, private investigator and friend of the Applicant, Ms Roubina Tangherian, the Complainant, and Ms Yolanda Sarkassian, solicitor, and sister of the Complainant.

evidence of miss margaret howard - the applicant

18. Miss Howard whose date of birth is 19 February 1931, and whose statutory declarations were before the Tribunal at T40 and PT47 (dated 11 December 2000), PT95 (3 October 2001), gave oral evidence before the Tribunal on oath. She has been a legal practitioner since 1964, and her Practising Certificate expired on 30 June 2001.

19. Miss Howard told me in her evidence that she commenced doing migration work shortly after her marriage and the adoption of her two children from India in 1974 and 1978. She said that she obtained registration as a migration agent in 1992 or 1993 when it first became necessary to do so.

20. Miss Howard told me that she first met the Complainant in this matter, Ms Roubina Tangherian before Christmas in December 1996 when Ms Tangherian was in Australia on a visit. I was mindful that the evidence regarding the introduction to Miss Howard was one of the many occasions during this Hearing where several versions of the same situation were given. As it happens nothing turns on whether Ms Tangherian saw notices regarding Miss Howard's practice at the Sydney Opera House where Miss Howard said that she put them, or whether she came to seek her advice as a result of some other source of information.

21. Miss Howard's evidence was that she recollected that Ms Tangherian wanted to emigrate from England to Australia with her son because Ms Tangherian's mother had remarried, and now lived in Australia. Miss Howard recalled that Ms Tangherian attended at her office accompanied by another person whom she now knew to be the Complainant's sister. Miss Howard said that she advised Ms Tangherian that as a beautician, the way to gain entry to Australia would be by way of a sponsorship, because that occupation was not on the list of "skills" in which Australia otherwise required immigrants. Miss Howard said that she did not have any salon in particular in mind because she did not attend beauty salons. She said however that she would introduce Ms Tangherian to Mr Richard Fitzgerald as he had contacts, and indeed called him on his mobile telephone on that occasion. There was no dispute between the parties that Mr Fitzgerald was present at that first meeting between Miss Howard, the Complainant and her sister.

22. Miss Howard denied categorically that Mr Haege (said to be a stockbroker and director of Fuss beauty salons), was present at that meeting, a stance she maintained right throughout the hearing. She said that after she had introduced Mr Fitzgerald, she had not taken part in further conversation, but thought that he would have told Ms Tangherian that he would assist with finding a sponsor. When asked whether that was the normal way of locating a sponsor, Miss Howard said that Ms Tangherian was her first client after being licensed, and that she had not done a job in this way before or since.

23. Miss Howard described Mr Fitzgerald as a private inquiry agent and mercantile agent whom she had known since the 1970s. She said they were both from England, shared premises, and that he used to do work for her clients and serve summons. Miss Howard said that she first met Mr Haege in 1996 at Darling Point, and knew him as a stockbroker, but did not know he had anything to do with Fuss Salons.

24. As to methods of payment; Miss Howard said that she did not charge for general preliminary advice such as she gave Ms Tangherian, but that Mr Fitzgerald was instructed by the Complainant to do work, and required a deposit to be paid in order to commence that work. When asked in cross-examination what Mr Fitzgerald was going to do for Ms Tangherian, Miss Howard replied that she only knew that he was instructed to find the Complainant a sponsor, but that she did not know anything else. "I don't get involved in his business" she said. She said that if he was interviewing a female client, she sat in with him, a remnant from his days in the police force in England.

25. As to sponsorship applications; Miss Howard told the Tribunal that there were three forms to be submitted. She said that she had sent a questionnaire for Ms Tangherian to complete and return. This was to be submitted with other forms, (Forms 1066, 1067 and 1068), but emphasised that the Complainant had to this day not returned the questionnaire. Miss Howard agreed in cross-examination that the questionnaire did not have to accompany the two other forms provided it was lodged separately, but that it was her practice to submit all three together. When asked why she had not communicated with Ms Tangherian about the questionnaire, Miss Howard replied that all the information requested in that document was within the Complainant's knowledge.

26. Again as to the sponsorship; Miss Howard told me that Mr Fitzgerald had obtained a letter from Fuss Salons accepting sponsorship for Ms Tangherian in July 1997, but that the Complainant had wanted to postpone her immigration on two separate occasions.

27. When asked at what date she considered she had been instructed to act for Ms Tangherian, Miss Howard said that it was after the letter dated 2 July 1997 from Fuss Salons. It was pointed out that this contradicted the contents of the letter at T6/80 dated 12 March 1997 in which Miss Howard had written as follows to Ms Tangherian:

"Dear Madam.

Re Immigration to Australia - yourself and your son.

The writer is in receipt of your fax dated 6 February 1997.

We have spoken to your Sponsors at great length and they are prepared to sponsor you to come to Australia and obtain residency for your son and yourself.

The writer has been in touch with the relevant Immigration sources and has received directions.

Kindly remit your cheque for $A5,000 that represents our fee. Further fees are payable to the Immigration Department with your application and that or your son.

We will advise the amount required by the Department when all the information is to hand to enable the application forms to be completed and forwarded to your for signature.

Yours faithfully,

M.E. Howard & Co"

28. Miss Howard told me that the $5,000 referred to in the letter at T6 was probably the fee for Mr Fitzgerald as she would not normally have charged that amount, rather approximately $2,000 or $2,500. Miss Howard said that she did not consider herself instructed by Ms Tangherian by way of the letter of 12 March 1997, because she said the client had first to agree. In that regard, I noted that there was at T9/84, a letter of authority for Miss Howard to act which was signed by Ms Tangherian, but not dated.

29. When questioned in cross-examination by Ms Hamer why Mr Fitzgerald had not been mentioned in the correspondence to Ms Tangherian of 12 March 1997, Miss Howard replied that Mr Fitzgerald ran his own business and that he would not have been involved until the letter from Fuss Salons issued on 2 July 1997.

30. When questioned about her migration practice and its reference resources, Miss Howard replied that she had Butterworths Service from 1993-1996 or possibly 1997/98, and that the Law Book Company ("LBC") had since become available in the past 12 months, [electronically], but that she had not yet used it. She said that she had not yet had instruction about how to use it. Miss Howard also said that she had the Ministerial Services Instructions ("MSI") but had not bought the Procedures Advice Manual ("PAMS"). Miss Howard told me that from 1998, the departmental website was her main resource for the migration practice. Ms Howard was aware that MARA had instructed migration agents in early 2002 that they were required to have the MSI and PAMS.

31. When questioned regarding her knowledge of the Migration Agents Code of Conduct, Miss Howard said that she kept it in her office reception as required, and notwithstanding it changed annually, she read it from time to time, and was required to keep up to date because to maintain her Practising Certificate as a solicitor, she had to complete 10 Mandatory Continuing Legal Education ("MCLE") points a year, and a further 10 points for her registration as a migration agent. Miss Howard also told me that she done a University of New South Wales Continuing Legal Education course "Australian Immigration Law and Practice" in March 1997 and received a distinction (Exhibit A1). She had undertaken the examination at the end of the course even though it had not been mandatory as part of completing the course she said.

32. When cross-examined regarding her knowledge of procedures with reference to the Code of Conduct dated 1 August 1996, in particular as related to charging clients, Miss Howard said that she knew it was similar to the Law Society's rules, but said in any case, she had not been paid by Ms Tangherian. She said that she could not remember sending the Complainant a statement of fees. Miss Howard also stated that she had not been instructed by Ms Tangherian to prepare documents, and that all she had done was tell the Complainant about the sponsorship scheme. Miss Howard said that after receiving the letter from Fuss Salons of 2 July 1997, Ms Tangherian had in any case postponed her plans to come to Australia.

33. Miss Howard also told me that she had misplaced the Complainant's file, and that it had been found after some time in the back of a credenza at her Darling Point home/office. She said that the Law Society trust account inspector had also asked her for the file. She added that she had closed her trust account in 2000, and that she operated differently now, obtaining a bank cheque for disbursements from clients in advance each time.

34. When asked by Ms Hamer whether her business had been in disarray, Miss Howard said: "I would not like to say my business was in disarray - no", and added that she was reasonably organised and normally would have had Ms Tangherian's file. Miss Howard said that after she left her Kings Cross office on 30 June 1997, she had no staff and did everything herself. She said that she must have had the Complainant's file in 1998 because she had filed correspondence in it in that year. I noted however that the file had therefore been missing for four years.

35. As to payment of the $5,000 from Ms Tangherian; Miss Howard said that although the money was paid into her personal ANZ account, it was Mr Fitzgerald's money. There was a withdrawal of $500 shown on the bank statement (T11/86), and I was mindful that Miss Howard stated that the $500 had been given to Mr Fitzgerald. She agreed this had not been not communicated to Ms Tangherian at any time by her, although it was possible Mr Fitzgerald had spoken to the Complainant about it, she said. She added that it had been difficult to contact Ms Tangherian in England because she was away in Iran some of the time. Ms Howard said that she did not try ringing her on the mobile number which had been provided in connection with the Complainant's queries about the Immigration Questionnaire (T17). When asked by Ms Hamer why she had not contacted Ms Tangherian with regard to any queries she had about the Questionnaire which at the time of the Hearing still had not been returned to her completed, Miss Howard said that all the information requested in the Questionnaire was personal information within the knowledge of Ms Tangherian.

36. I noted that Ms Tangherian requested a receipt for the $5,000 which she had paid on 28 August 1997. Miss Howard insisted that although the money had been paid to her into her account, it was not her money, and had been paid for services Mr Fitzgerald had rendered to Ms Tangherian. When asked in re-examination by Ms Tzannes why her receipt (T10 and S1/10) had been inaccurate, Miss Howard replied that in June 1997 (which she said was the date of the undated receipt), she did not have secretarial staff, and she did not have the accurate information.

37. I noted from T18/121, a letter dated 15 June 1998, that Ms Tangherian wrote to Miss Howard to withdraw her instructions, ask for a detailed statement of any cash disbursements which had been made on her behalf by Miss Howard, and request a refund. When this letter was drawn to her attention, Miss Howard said that the money paid by Ms Tangherian was not for her, but that Mr Fitzgerald had done whatever work it was that Ms Tangherian had requested.

38. When questioned about her letter to Ms Tangherian at T19/123, Miss Howard said that she did not send an account because she had not charged Ms Tangherian anything due to the fact she had not yet carried out work for her. Yet I noted that in her reply dated 30 June 1998, Miss Howard wrote to Ms Tangherian:

"I am in receipt of your letter (and facsimile) dated 15^th inst and I am now preparing an itemised account which will be sent to you as soon as it is completed, which is expected within the next fourteen days."

39. In reply to my questioning regarding why she had not replied to Ms Tangherian, Miss Howard told me that it was not her usual practice not to respond to letters. She said that she could not explain her actions in this regard, except that her computers were down at the time, and she had subsequently bought a Windows package. Miss Howard agreed in cross-examination that it was not the right thing to fail to respond to correspondence, whether it be related to legal practice or migration practice.

40. Miss Howard said that she did not have the original file which was in storage until February 2001.

41. It was noted that Miss Howard did not supply bank statements and other documents as requested by MARA (T39/173), until she gave all her files to Ron Kessels who on 20 July 2001 informed MARA that he was acting for Miss Howard (PT72/316). I noted that it took from November 2000 to July 2001 to supply documents as requested. Miss Howard's excuse was that she was busy and could not do all her work and attend to this request quickly as well.

42. As to Miss Howard's website; she said that she had two websites, and that after she had been alerted to the wording which MARA claimed in its letter dated 5 September 2001, (T87/349) did not comply with the Code of Conduct, she no longer used it. Miss Howard indicated that her responses to MARA were at T92 and T95.

43. In mitigation of the criticism of her, Miss Howard detailed some of the problems she had encountered in her life recently. She recounted how her son, who was adopted out of India aged seven days, had been very ill, and hospitalised when she received him. Recent events included him losing his temper and being charged with offences which were heard at Burwood Court in 1998. She also said that she had had difficult divorce proceedings involving her husband.

44. In re-examination, in reply to Ms Tzannes' questions about her relationship with Mr Fitzgerald, Miss Howard said that in 1996/97, she and Mr Fitzgerald had a professional relationship. She said that at that time he was financially embarrassed, and that he owed her money. He shared her house and office, and permitted her to share his office at Double Bay, she said. He was also diabetic, she said.

45. On the second day of the Hearing, Miss Howard was recalled to give further evidence after the other witnesses had given their evidence because of the unexpected appearance of documents which are now before the Tribunal as Exhibits A4 and A5. The document Exhibit A4 was a letter purportedly from Mr Fitzgerald to Miss Howard dated 2 February 1997 and Exhibit A5, an unsigned, undated account from Mr Fitzgerald to Ms Tangherian.

46. Ms Howard said that she had given the whole of the contents of her file regarding Ms Tangherian to Mr Kessels in 2001, adding that the account of Mr Fitzgerald (Exhibit A4) was given to Mr Kessels after the rest of the file because it had been located later. Miss Howard also said that she did not look at the file before she gave it to Mr Kessels, and did not therefore know what was in it. She also said that Mr Kessels had asked her about the two documents (Exhibits A4 and A5). I was curious as to how he could have known they were missing if they were not in the file handed to him.

47. In reply to my questions regarding their origin and why they had appeared at the Hearing on the second day, Miss Howard denied that the two documents Exhibits A4 and A5 were fabrications, and said that they had been on her desk all the time. She said that she had neglected to file them in time, that is between 1997- 2001, although she said that even without staff, she went through the papers on her desk weekly. Miss Howard also told me about difficulties she had been having, having moved out of her Potts Point office on 30 June 1997, and then moving to Darling Point and Double Bay, a combination of home and offices.

evidence of ms roubina tangherian - the complainant

48. Ms Tangherian gave evidence on affirmation by telephone link from London. Her affidavit dated 15 February 2002 was Exhibit R2 before the Tribunal. She recounted her recollections of the first meeting with Miss Howard, the appointment for which had been made by telephone. She told me that she attended upon Miss Howard with her sister Yolanda Sarkassian, and that after "we had been there for a while", Mr Haege and Mr Fitzgerald who were introduced as friends, joined the meeting. She said that she was told that Mr Haege would be a good contact for her because he was a director of Fuss Salons which had a school for beauticians, and needed employees; further that persons with training in Europe were valued in Australia. She said that she was told Mr Fitzgerald was a private agent who was resourceful and would help, and that Mr Haege would organise a sponsorship. She said that he arranged for her to see the manager of Fuss Salons at Paddington, whom she went to see some three to four days later.

49. When asked in cross-examination by Ms Tzannes what Mr Haege had said at the meeting, Ms Tangherian replied that he had not said much. She said the five of them sat around and just had a conversation.

50. When asked whether any other options were discussed with her by Ms Howard, Ms Tangherian said that Miss Howard asked her about her background. She said that Miss Howard told her that because she, (Ms Tangherian), was a beautician, she would not qualify for migration other than by way of being sponsored for employment. Ms Tangherian said that Mr Fitzgerald confirmed what Miss Howard said about migration to Australia. When asked in cross-examination whether she had previously had difficulty in finding a sponsor, Ms Tangherian denied any difficulty, and said that she had not previously sought a sponsor.

51. When asked whether Mr Fitzgerald had indicated what work he would do for her, Ms Tangherian replied that he did not say he would do any work whatsoever for her. She said that she was in Miss Howard's office, thought she was dealing with Miss Howard, and did not know the office was shared.

52. Ms Tangherian said that later, after that first meeting, Mr Fitzgerald invited her to his home with Yolanda, her sister, but not to his office, so that she had no idea where his office was located. She said that it was a social visit; he introduced them to his son and showed them equipment that he sold. She said they did not discuss any work he was going to do for her, and did not discuss any financial aspects of any work.

53. Ms Tangherian said that Mr Fitzgerald telephoned her quite often on a social basis when she was back in London, and told her he would visit her there. She said the only aspect of business discussed with Mr Fitzgerald was when she was becoming frustrated with not receiving replies to correspondence with Miss Howard, and had mentioned that to Mr Fitzgerald. She recalled that his answer had been that his was a social call only, and Miss Howard's business was her own business.

54. When asked whether she had requested Mr Fitzgerald to find out why her brother had been refused entry into Australia, Ms Tangherian said that she had not. She said that there was no point in doing so, and denied she had asked Mr Fitzgerald to go to Canberra and try and find out the reasons. She agreed in cross-examination that at the meeting with Miss Howard in December 1996, she had been asked about her brother and everyone else in the family. The Complainant said that Mr Fitzgerald told her that he had been to Canberra, and dated it at a time when Ms Tangherian said she had been very upset because after many attempts at contact, she had not heard from Miss Howard. Ms Tangherian also said that she recalled a letter written by Miss Howard in which Miss Howard had said that Mr Fitzgerald had been in Canberra and had attempted to contact her on his mobile telephone. She said that she had no call at all from Mr Fitzgerald and that the evidence was a fabrication.

55. When asked in cross-examination whether she had consulted Mr Fitzgerald about getting her son into King's School, Ms Tangherian said that she told Miss Howard in December 1996 that she had already been offered a place for her son well before December 1996, and well before he was school age. When further questioned about the letter of offer from the school dated 24 July 1997, (Supplementary T-documents p.9), Ms Tangherian said that she had an earlier letter.

56. Ms Tangherian denied in cross-examination that she had instructed Mr Fitzgerald to make inquiries regarding certain business premises for her: "No, not at all", she said.

57. Ms Tangherian said that she had sent Miss Howard the full $5,000 as requested, to carry out services for her. She said that she had telephoned to find out what the payment would cover, and tried to negotiate paying half the amount as a down payment first. She said that she had been told by Miss Howard that the full amount was required in advance at the one time. In reply to a question from Ms Hamer, Ms Tangherian said that there was no mention that any of the $5,000 was for Mr Fitzgerald.

58. When asked by Ms Hamer about the Immigration Questionnaire (PT13/104) which had been sent to her, Ms Tangherian said that she could not complete it herself, and became very frustrated because she required assistance from Miss Howard in completing it, which she did not receive. In cross-examination, Ms Tzannes took Ms Tangherian through each page of the Questionnaire, most of which the Complainant agreed concerned personal information relating to her which she could answer. I was mindful however that there were a number of questions for which she claimed to require advice, such as questions 14, 20, 23, and another which involved a translation from Persian. The Complainant said that she had obtained all the relevant forms including a form from the police and (re question 13), a letter from her ex-husband agreeing that she could take her son with her to Australia.

59. The Complainant agreed she had returned (from Australia) to London early in 1997, and that she had not received a letter of sponsorship from Fuss Salons until the letter dated 2 July 1997, followed by another dated 4 September 1997 (T14). She said that she did not worry about not receiving a letter of sponsorship sooner because she had left it to Miss Howard and was not concerned at that time.

60. Ms Tangherian said that she became very unsettled and upset with the lack of response to her letters and questions from Miss Howard, and eventually wrote withdrawing her instructions. She said she had no idea Miss Howard had moved offices. She said that she had never received a detailed account of services rendered, either from Miss Howard or Mr Fitzgerald. Neither had she received any of the $5,000 back, she said.

61. The Complainant denied she had been quoted the price of $250 per hour for work Mr Fitzgerald would do for her, and said that it was a fabrication. She also denied that she had been quoted $9,000 - $10,000 as the costs for immigration work to be done for her. Ms Tangherian also denied that she had been asked by Mr Fitzgerald to pay the $5,000 to Miss Howard and not to him, because he was travelling overseas. Ms Tangherian said that she had a low opinion of Mr Fitzgerald and felt that he had betrayed what she had thought was a friendship. When referred in cross-examination to paragraph (b) of T70/310, the Statutory Declaration of Mr Fitzgerald dated 20 July 2001, Ms Tangherian said that she was shocked when she read it because it was all fabrication. In that paragraph, Mr Fitzgerald had deposed as follows:

"I attended the office and I was introduced to Roubina Tangherian. I was informed by Miss. Howard that Roubina Tangherian was seeking employment in Sydney as a Beauty Therapist and that she had had some difficulty in obtaining such a position. In addition, Roubina Tangherian wanted some investigation work to be carried out on her behalf."

62. Ms Tangherian said that the situation surrounding the payment of the $5,000 and the immigration contact had caused her financial and emotional distress, and she felt let down. She said that that was the reason she reported Miss Howard's conduct to the NSW Law Society. The Complainant said: "I don't want them to do this to anyone else." When questioned about her letter to MARA dated 5 February 2001, (T56), Ms Tangherian said that Mr Fitzgerald was not involved in her dealings with Miss Howard. She had written as follows:

"5. Mr Fitzgerald never quoted me any amount of money for any kind of job for me. At that stage he was not introduced to me as a colleague either, in fact his calls were all social. I did not need him to find me a business sponsor since I already was provided with one since the first day I went to Mrs Howard's office.

6. I was never told Mr Fitzgerald has any activities in my immigration process, until I received a fax from Mrs Howard dated 30 May 1998 (photocopy enclosed) stating Mr Fitzgerald as a colleague and she was in Canberra with him in my matter. This fax came shortly after a telephone conversations with Mr Fitzgerald I strongly complained and suggested to withdraw from her service. I this fax (sic) she totally ignored the fact that she has not contacted me instead she is trying to turn the tables towards my direction. I was truly disturbed by this so wrote a letter which I Faxed and posted to her on 15 jun 1998 (copy enclosed).

Mr Hage had already agreed to sponsor me while I was in Australia at Mrs Howards office on the day my sister and I visited in December 1996. He has sent me 2 letters, one on 2 July 1997 and the other on 4 September 1997 re: management appointment (copies enclosed).

...

10. Mr Fitzgerald's calls were all social calls and some of these calls were taken by my friend who was staying with me at the time. I never received a call from Canberra by Mr Fitzgerald and he never left any massages (sic) for me regarding my immigration matters. ..."

63. Ms Tangherian denied in reply to Ms Tzannes in cross-examination that she had changed her plans regarding immigration to Australia and wanted a refund, and that she saw the complaint as a way of achieving that purpose.

evidence of ms yolanda sarkassian - solicitor and sister of the complainant

64. Ms Sarkassian whose affidavit was before the Tribunal at PT80/332, gave oral evidence on oath. She told me that she and Ms Tangherian attended the initial meeting with Miss Howard at her Potts Point offices in December 1996, after the Complainant and Miss Howard had discussed her sister's situation on the telephone. She said that during the course of the first interview, Mr Fitzgerald and Mr Haege joined them, and were introduced as friends. She said that she understood from the introduction that Mr Fitzgerald knew about immigration matters, and that Mr Haege was a director of Fuss Salons, and would be a sponsor for her sister Roubina. She confirmed to Ms Tzannes in cross-examination that the above named persons were present at that first meeting.

65. I noted also Ms Sarkassian's description of Mr Haege in reply to cross-examination. She agreed she had only seen once. The description accorded with Mr Fitzgerald's description when he gave his oral evidence. I noted however that Ms Tzannes stopped at asking Ms Sarkassian whether he had a moustache, noting that Mr Fitzgerald described Mr Haege had a "short clipped moustache" in 1996.

66. I noted Ms Tangherian and Ms Sarkassian both gave evidence that Mr Haege did not do a lot of the talking at the December 1996 meeting with Miss Howard, but noted Ms Sarkassian's evidence that Mr Haege had told the meeting he had connections with Miss Howard and Mr Fitzgerald. I was mindful of Ms Tzannes' submission later in the hearing that if I did not accept that Mr Haege had not been at the December 1996 meeting, then the evidence of the Complainant was that he had not done much of the talking so he cannot have contributed much to the meeting.

67. Ms Sarkassian described the meeting, saying that when Mr Fitzgerald and Mr Haege entered the room, Miss Howard who had been sitting behind her desk moved from that position, and Mr Fitzgerald took over the meeting which consisted of "chit chat", but also how to arrange Ms Tangherian's sponsorship and immigration. She said it was explained that Fuss Salons would have to interview Ms Tangherian and then advertise a position in a newspaper. Ms Sarkassian said that she could not recall exactly at what point Miss Howard had said that the process would cost $5,000, but thought it was during that meeting. She said that she and Roubina went to "the house" for a social visit, and that she remembered seeing Mr Fitzgerald there. Ms Sarkassian said that she did not recall seeing Miss Howard again except at a social occasion later, a bar-b-que to which she and her other sister had been invited after Roubina had returned to London.

68. As to Fuss Salons; Ms Sarkassian said that she accompanied Roubina to Fuss Salons at Paddington for an interview where they were told the procedure was Fuss Salons would advertise a position, Roubina would reply, and as a result be offered a working visa.

69. Ms Sarkassian could not recall whether Ms Tangherian had visited Australia in December 1997, and said that although she generally visited each year, she had not been here for approximately three years.

70. Ms Sarkassian said that she had conversations regarding immigration with Roubina during 1997 because Roubina was trying to resolve the situation with Miss Howard. Ms Sarkassian said that she tried telephoning Miss Howard, but that there was never any reply, and that Miss Howard did not return her calls. She said that she was only able to speak with Mr Fitzgerald who informed her he had nothing to do with the matter, and hung up. She said that on one occasion she had a heated conversation with Mr Fitzgerald on that count. When asked by Ms Tzannes whether Ms Tangherian had complained at that time about the lack of response regarding the sponsorship, Ms Sarkassian said no, adding that she did not know what was going on at that time, and was trying to contact Miss Howard to find out.

71. When cross-examined regarding the King's School issue for Ms Tangherian's son, Ms Sarkassian said that she, her mother and her sister Melody went to the King's School in 1997. She said she did not know whether Mr Fitzgerald was involved in arranging anything with the King's School, but knew that Roubina had had contact with the School before 1997.

72. When questioned regarding what impact the problems with Miss Howard had on her family, Ms Sarkassian said that the situation was difficult because Roubina was a single mother, and the family was trying to help her.

evidence of mr RICHARD barry fitzgerald - private inquiry agent & commercial agent

73. Mr Fitzgerald whose affidavit dated 20 July 2001 was T70/310 before the Tribunal, gave oral evidence on oath. Mr Fitzgerald who told me he was very unwell, and about to undergo surgery on his eyes, wore a large pair of dark sunglasses over his spectacles in the Hearing, and told me that he could not remove them because he would otherwise develop migraine. He claimed not to be able to see or read any documents, so in order to ensure he was fully informed, Ms Tzannes read the relevant documents to him.

74. By way of background, Mr Fitzgerald told me he had been in the police force in England, and explained in detail how he had been part of various elite forces. He referred to the onerous tasks he had been required to perform there, and referred several times during his evidence to oaths of office he had taken.

75. When questioned regarding the nature of his relationship with Miss Howard, Mr Fitzgerald said that he would answer in two ways, firstly: "I am terribly in love with Miss Howard", and secondly that in 1996: "I was not in love with her". Mr Fitzgerald said that he had known Miss Howard for 25 years, that each had been subject to a "hideous divorce" and that he had worked for Miss Howard serving summons and otherwise assisting with her clients in her practice.

76. When asked what his financial position was in December 1996, Mr Fitzgerald said it was "embarrassing", and that he had been through a horrendous time with kidney failure. He said that he owed Miss Howard some $4,500 at the time for telephone calls and other facilities of hers which he had used. When asked how this fitted in with paragraph (aa) of PT70/312, his Statutory Declaration where he had written:

"(aa) I was indebted to M/s Howard for legal work on my behalf, to the tune of $6,000, and for the overseas telephone calls I had rung up on her telephone system, and as far as I know to this day my indebtedness was paid in full at that time."

Mr Fitzgerald said that he had a debt collections business which he put through Miss Howard's business, and he paid her when he could.

77. In examination-in-chief by Ms Tzannes, Mr Fitzgerald was asked about the fact that Ms Tangherian had given evidence of not having received an account from him. He said that this was incorrect and referred to a document which was dated 2 February 1997, and which purported to be a copy of an account and was stamped "Copy" (Exhibit A4). The document was read to him. Mr Fitzgerald said that the account had been sent by facsimile to Ms Tangherian, and later when I asked the whereabouts of the original, Mr Fitzgerald added he had mailed the hard copy to the Complainant. When asked regarding the lack of a date or signature on the document, he said that it was his usual practice not to date or sign copies.

78. I was mindful that there was a further document, Exhibit A5, before the Tribunal. I commented on the pristine condition of the documents Exhibits A4 and A5, which Miss Howard had said had been given to Mr Kessels with the file she had supplied to him. In reply to a question from me regarding why the documents were so pristine, if they were indeed 1997 documents, Mr Fitzgerald said that his files were always in good order. He replied that he had been taught to work in that manner, but could not recall when the documents had been given to Mr Kessels. In re-examination he told Ms Tzannes that he had given the copies of the documents Exhibits A4 and A5 to her the previous day (the first day of hearing at the Tribunal).

79. When challenged in cross-examination by Ms Hamer with the proposition that Exhibits A4 and A5 had been recently created, Mr Fitzgerald denied vehemently they had been fabricated for the occasion. He said that in addition to the account rendered (Exhibit A4), Ms Tangherian owed him a further $124.20 which he had not yet followed up, partly because of events which had taken place, and partly because she had not yet terminated her contract with him. Mr Fitzgerald strongly denied in reply to Ms Hamer's questioning, that he had seen in Ms Tangherian an opportunity of making money and billing her for work he had not carried out.

80. In order to assist the Tribunal, and because of the conflicting evidence regarding whether Mr Haege was present at the first meeting between the Complainant and Ms Howard in December 1996, Mr Fitzgerald was asked by Ms Tzannes to describe Mr Haege, which he did.

81. Mr Fitzgerald also told me that Mr Haege who was his and Miss Howard's landlord at Darling Point, used to come to the house, but he did not know whether Miss Howard had mentioned Ms Tangherian to Mr Haege. Mr Fitzgerald recalled being telephoned by Miss Howard when he was at a doctor's surgery in King's Cross in December 1996, and joining her in the December 1996 meeting Miss Howard had conducted with Ms Tangherian and her sister. Mr Fitzgerald said that Mr Haege did not attend that meeting. Mr Fitzgerald said in re-examination in reply to Ms Tzannes that he had first spoken to Mr Haege about the Fuss Salons sponsorship in August 1997. I found that somewhat incredulous given that the first letter of sponsorship from Fuss was dated 2 July 1997.

82. When questioned regarding when he thought he had commenced working for Ms Tangherian, Mr Fitzgerald said that it was after the retainer had been received. He said he had two meetings with Ms Tangherian, not about immigration, only about investigations. Mr Fitzgerald said that he was instructed with regard to:

* finding a sponsor for Ms Tangherian;

* the refusal of immigration to Australia of her brother;

* the enrolment in King's School of Ms Tangherian's son; and

* to look for properties for the conduct of various activities by Ms Tangherian.

83. Mr Fitzgerald said that he would not have gone to the King's School regarding the Complainant's son, or to Canberra to try and find out information regarding Ms Tangherian's brother if he had not been so instructed, and paid accordingly. He said that he telephoned Ms Tangherian from Canberra to tell her he was unable to access the information he sought about her brother, and referred the Tribunal to the telephone records showing he had accessed Ms Tangherian's London telephone number four times on 29 August 1997 (Exhibit A6). He said that he subsequently found out that she was away in Teheran at that time. He said that he did not prepare written reports for Ms Tangherian, but telephoned to give her updates. He said that the telephone calls to Ms Tangherian were often social calls, and that he also spoke with another woman who answered the telephone at her end.

84. As to the sponsorship; Mr Fitzgerald said that he had carried out a lot of work and made many approaches regarding sponsorship for the Complainant which were unsuccessful before arriving at the Fuss Salons solution.

85. When Miss Howard's letter to Ms Tangherian of 12 March 1997 which is reproduced here was read to Mr Fitzgerald, he said that Miss Howard's business was her own, and he did not know anything about it.

"Dear Madam.

Re Immigration to Australia - yourself and your son.

The writer is in receipt of your fax dated 6 February 1997.

We have spoken to your Sponsors at great length and they are prepared to sponsor you to come to Australia and obtain residency for your son and yourself.

The writer has been in touch with the relevant Immigration sources and has received directions.

Kindly remit your cheque for $A5,000 that represents our fee. Further fees are payable to the Immigration Department with your application and that or your son.

We will advise the amount required by the Department when all the information is to hand to enable the application forms to be completed and forwarded to your for signature.

Yours faithfully,

M.E. Howard & Co"

86. When questioned by Ms Hamer regarding concern he had for Miss Howard in connection with the present proceedings, and the possibility that her migration agent's licence not be renewed, Mr Fitzgerald accepted that he was concerned. He denied however that he would lie on oath to assist Miss Howard in any way possible. He said that given his police background and the oaths taken in those positions, he would not lie for anybody.

character witness statements

87. Annexed to and undated Statutory Declaration of Miss Howard were various character references (Exhibit A2). They included, (in the order submitted to the Tribunal), statements by:

* Michael Brookes Evans, Barrister, 3 February 2002 - Mr Evans stated that he accepted Miss Howard's statements implicitly, that he knew Miss Howard because she had briefed him, and that he accepted the $5,000 paid by Ms Tangherian was paid for Mr Fitzgerald. He stated that:

"If M/s Howard gave an administrative receipt for the money she would be constrained in her dealings with it. If on the other hand, she gave a beneficial receipt for it on behalf of Mr Fitzgerald she would only be constrained by Mr Fitzgerald's instructions in dealing with the money."

I did not give any weight to Mr Evans views as he did not refer to any documents related to this matter, and in any case I have found later on in these reasons found that Miss Howard breached various clauses of the Code of Conduct in her handling of Ms Tangherian's funds.

* Mario Robert Napoli, solicitor, 23 January 2002 - Mr Napoli stated that he had handled elderly clients of Miss Howard's who had "universally expressed their fondness and admiration for her." He did not name those clients. Mr Napoli also stated that the allegations made regarding the Applicant were completely out of character.

* Russell Ernest Hughes - chartered accountant, 5 February 2002 - Mr Hughes stated that Miss Howard had acted for AWU and AWUN Housing Society Groups of which he was Secretary. He stated that she was reliable and painstaking and would have been responsible at that time for millions of dollars of mortgage money.

* Allan John Norton - accountant, 5 February 2002 - Mr Norton stated that he had known Miss Howard for approximately ten years and that he had met her in his capacity as trust account inspector for the New South Wales Law Society. Mr Norton said that he found Miss Howard to be responsible and ethical, and that he had never doubted her integrity.

* Peter Kenneth Charles MacLeod - CPA, 24 January 2002 - Mr MacLeod stated that he had known Miss Howard for ten years as a client of his accountancy practice, and that she had acted for him in his legal matters. He said that he had found her to be professional and that the matter before the Tribunal was out of character.

* Ross Warren Symonds - TV News Anchor, 8 February 2002 - Mr Symonds stated that Miss Howard had acted for him and his family for in excess of 20 years, and found her to be professional, prompt and absolutely honest.

* Patrick Anthony Barry - company director, 25 January 2002 - Mr Barry stated that he had known Miss Howard for approximately 14 years. He said that he had found Miss Howard honest and trustworthy but did not indicate what his connection with her entailed.

* Geoffrey Robert Perry - finance officer, 7 February 2002 - Mr Perry stated that Miss Howard had handled his private and business ventures and that he would have confidence in her doing so into the future.

* Matthew Ezra - company director, 7 February 2002 - Mr Ezra stated that he had engaged the Applicant in connection with a business sponsorship application and had been satisfied.

* Jason Chapman - company director, 5 February 2002 - Mr Chapman stated that he had known Miss Howard for two years and a half years as a solicitor and migration agent. He stated that he had utilised her services to assist with a business migration visa and was satisfied.

* Edward Joseph Brock - disabled pensioner, 5 February 2002 - Mr Brock stated that he had consulted Miss Howard with regard to immigration assistance for his wife who is Filipina. He had been satisfied with her services and mentioned in particular the financial arrangements which took into account his pensioner status.

* Steward Stanley Summers - medical practitioner, 26 January 2002 - Dr Summers stated that Miss Howard assisted one of his patients and carried out pro bono work in connection with obtaining a visa for a family member. He said that he found her to be reliable, helpful and honest.

* John Lawrence Flynn - profession unstated, 25 January 2002 - Mr Flynn was extremely grateful to Miss Howard for her assistance with his family for whom she did pro bono immigration work .

* Sari Ann-Kristina Alisalo - project manager, 8 February 2002 - Miss Alisalo stated that Miss Howard assisted with a business visa and that the service had been professional, prompt and absolutely honest.

88. In summary, the character references were all obtained in connection with the Tribunal Hearing, and dated in 2002. They predictably spoke well of Miss Howard. Some of the persons had had professional contact with Miss Howard, and the majority of those who mentioned her work stated that the actions complained of were out of character with what they knew of Miss Howard, and her integrity and professionalism. They can be given certain weight, but I was mindful of my duty to consider the totality of the evidence, and consider whether Miss Howard had breached the Migration Agents Code of Conduct and the Act.

SUBMISSIONS AND CONCLUSIONS

89. I must take into account all the evidence, submissions, relevant legislation, the Migration Agents Code of Conduct and relevant case law to make the correct and preferable decision regarding whether the refusal of Miss Howard's registration as a migration agent should be affirmed, set aside or varied.

* File N2001/1637 related to the cancellation on 23 October 2001 by MARA, of Miss Margaret Howard's registration as a migration agent pursuant to section 303(a) of the Act for breaches of the Migration Agents Code of Conduct (section 303(h)), as follows: Clauses 5, 23, 28 and 28A of the Code of Conduct as at 1 August 1996, Clause 8.1 of the Code of Conduct as at 1 April 1998, and Clauses 2.3, 6.3 and 9.3 of the Code of Conduct as at 1 July 2000. MARA held that Miss Howard had not complied with the Code of Conduct pursuant to section 314 of the Migration Act 1958. Further, MARA was satisfied pursuant to section 303(f) of the Act that Miss Howard was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance. Miss Howard's registration as a migration agent then lapsed on 26 October 2001.

* File N2002/266, related to the application of Miss Howard appealing against the refusal of the Respondent dated 14 February 2002, to register her as a migration agent pursuant to section 290(1) and sections 303(f) and (h) of the Migration Act 1958 because it was satisfied that Miss Howard was not a fit and proper person to give immigration assistance. In doing so, MARA found that Miss Howard had breached Clauses 5, 23, 28 and 28A of the Code of Conduct as at 1 August 1996, and Clauses 2.3 and 9.3 of the Code of Conduct as at 1 July 2000.

* Files N2001/1637 and N2002/266 - There was also the application of Ms Tzannes on Miss Howard's behalf at the close of submissions that Ms Howard's name be suppressed in publication of this decision. I therefore conducted a telephone conference on 30 July 2002 during which I heard submissions from both Miss Howard's counsel, and Ms Hamer for the Respondent. Not surprisingly, Ms Hamer opposed Ms Tzannes' application made on Miss Howard's behalf. My decision to refuse an application for confidentiality orders to be made pursuant to section 35 of the AAT Act in connection with the publication of Miss Howard's name was published separately on 4 December 2002.

90. In considering the parties' closing submissions, I was mindful that the representatives for both parties submitted, and it was clear that the evidence before me, consisted of very different versions of events relating to the complaints of Ms Tangherian. I moved then to consider the general submissions made on behalf of the parties before moving to specific points which I have dealt with under separate headings.

91. Ms Tzannes submitted that Miss Howard had been a solicitor for more than thirty years with an unblemished record, and that should she be found not to be a fit and proper person for purposes of registration as a migration agent, then the Law Society would also be dealing with her registration as a legal practitioner. I was mindful in considering that submission, that I was charged with considering alleged breaches of the Migration Act and Migration Agents Code of Conduct, and that any dealings with the Law Society were a separate issue, and are conducted in a different forum.

92. However Ms Tzannes undertook during the Hearing, to contact the New South Wales Law Society to ascertain the current status of Miss Howard's registration with that body. I was then informed that payment of the registration which had lapsed on 30 June 2001, was to be made by a third party, a finance provider, and that on payment of that fee, a renewed Practising Certificate would issue.

93. Ms Tzannes conceded that Miss Howard's conduct in relation to Ms Tangherian in not replying to Ms Tangherian had been less than perfect, and at best a misunderstanding, but not warranting a cancellation of her registration as a migration agent, which had effectively occurred after October 2001. Ms Tzannes submitted on behalf of Miss Howard that her lack of timely responses to MARA and to solicitors for Ms Tangherian "would not win a best practice award", but that it was not without explanation:

* Namely that Ms Tangherian's file had been lost and eventually retrieved from behind the credenza in 2001;

* That Miss Howard had suffered professional and life crises which had been disruptive and unsettling;

* There had been the hail storm of April 1999 and moves of premises;

* Miss Howard had been a solicitor since 1964, had her own practice since 1969, and had for many years handled large sums of money acting for various building societies. Ms Tzannes also referred me to the testimonials of various persons at Exhibit A2.

94. Ms Tzannes submitted that at worst it might have been a "head in the sand" attitude in a long and unblemished career. To delay was not a hanging offence, and at worst, a caution or suspension might be the appropriate penalty she submitted. Ms Tzannes submitted that Miss Howard had been truthful and had admitted her mistakes. She submitted that it would be a personal tragedy if at the end of a long and unblemished career, Miss Howard was unable to be registered as a migration agent. She submitted that Miss Howard had suffered considerably, including by way of loss of reputation and loss of income since the decision of MARA in October 2001.

95. Ms Tzannes also submitted that Ms Tangherian had changed her mind about coming to Australia and that the complaint had been lodged as a ploy for getting a refund of the fees paid. She had complained first to the Law Society, Ms Tzannes submitted. I was mindful that Ms Tangherian denied that allegation when she was giving her evidence, and that I informed her I could not give her legal advice, and that this Tribunal did not have the power to order any refund to her. Given the totality of the evidence (oral evidence and the correspondence before the Tribunal), I rejected Ms Tzannes' proposition that the complaint was simply a ploy to obtain a refund because Ms Tangherian had changed her mind about wanting to come to Australia.

96. Ms Hamer's submission was that pursuant to section 290 of the Act, the Applicant could not be registered if she were found to not be a fit and proper person to give immigration advice. She drew to my attention that Mr Fitzgerald had been in a "shocking" financial situation at the end of 1996, and that he had acted with lack of integrity and was joined by Miss Howard, in that together they had fabricated evidence to mislead the Tribunal. She submitted that Ms Tangherian had brought the complaint out of concern for other people, and that she herself had nothing to gain from it and should be believed. Ms Hamer submitted that the documents before the Tribunal corroborated the evidence of the two sisters, and had not been challenged.

97. Ms Tzannes submitted and I agreed, that the standard of proof was the Briginshaw v Briginshaw (1938) 60 CLR 336 test.

98. I moved then to consider the various aspects of the case.

whether miss howard was instructed to act for ms tangherian

99. As one of the main points in contention was whether Miss Howard had acted for Ms Tangherian in an immigration matter, I was careful to consider all the evidence and submissions in that regard. Ms Tzannes submitted as to the circumstances surrounding the engagement of the Applicant, that although there were various versions of how the matter proceeded, it was uncontested that advice regarding immigration was given either by Miss Howard (Ms Tangherian's version), or Mr Fitzgerald. Ms Sarkassian's evidence had been that Mr Fitzgerald gave some advice, she submitted. Ms Tzannes, referring to Miss Howard's evidence, submitted that Miss Howard did not charge for initial advice, and only commenced charging a client when she prepared documents. Ms Tzannes submitted that Miss Howard did not contest that she had given preliminary immigration advice, but that she had not considered herself instructed in the Tangherian matter.

100. What was not in contention was that Ms Tangherian attended at Miss Howard's office in December 1996 seeking immigration advice. The Applicant's and the Complainant's versions regarding how Ms Tangherian came to consult Miss Howard were different, and as I find that inconsequential with regard to my decision making, I have chosen not to make comment upon it.

101. I was mindful however that after that meeting, and after Ms Tangherian had returned to England, Miss Howard wrote as follows to her on 12 March 1997 (T6):

"Dear Madam.

Re Immigration to Australia - yourself and your son.

The writer is in receipt of your fax dated 6 February 1997.

We have spoken to your Sponsors at great length and they are prepared to sponsor you to come to Australia and obtain residency for your son and yourself.

The writer has been in touch with the relevant Immigration sources and has received directions.

Kindly remit your cheque for $A5,000 that represents our fee. Further fees are payable to the Immigration Department with your application and that or your son.

We will advise the amount required by the Department when all the information is to hand to enable the application forms to be completed and forwarded to your for signature.

Yours faithfully,

M.E. Howard & Co"

102. Miss Howard told me that the $5,000 referred to in the letter was probably the fee for Mr Fitzgerald as she would not normally have charged that amount, but perhaps only $2,000 or $2,500. Miss Howard said that she did not consider herself instructed by Ms Tangherian by way of the letter of 12 March 1997, because she said the client had first to agree. Ms Tzannes submitted that the use of "we" in the letter was a habit arising out of legal practice and correspondence.

103. I was mindful also of Ms Tangherian's reply to that letter dated 13 May 1997 (T8), in which she wrote to Miss Howard:

"I note that you need your fee paid in full at one time and will be making the appropriate arrangements to get this to you without delay.

Perhaps you would be kind enough to confirm what will be covered for such fee - presumably it will cover your work involved in liaising with my sponsors, completion of all necessary forms and ... matters to the point when I will, hopefully, be granted residency both for myself and my son.

...

I am most grateful to you for all your help and introduction to my sponsors."

104. In regard to whether Miss Howard was instructed to act for Ms Tangherian, I further noted the "Authority to Act" (T9/84), for Miss Howard to act on Ms Tangherian's behalf signed by Ms Tangherian but not dated. It was presumed by the reference number to have been issued in 1997.

105. When in cross-examination by Ms Hamer Miss Howard was asked why Mr Fitzgerald had not been mentioned in the correspondence to Ms Tangherian of 12 March 1997, Miss Howard replied that Mr Fitzgerald ran his own business, and that he would not have been involved until the letter from Fuss Salons issued on 2 July 1997.

106. I was mindful also of Ms Tangherian's reply of 13 May 1997 to Miss Howard's letter of 12 March 1997. As relevant she wrote:

"Thank you for your letter of 12^th March which we have discussed the telephone. I note that you need your fee paid in full at this time and will be making the appropriate arrangements to get this to you without delay.

Perhaps you would be kind enough to confirm what will be covered in such fee - presumably it will cover your work involved in liaising with my sponsors, completion of all necessary forms and advancing matters to the point when I will, hopefully, be granted residency both for myself and my son.

Is there any further detail your require from me?

Perhaps you would advise me as to the likely timing and set out for me the formalities which must be undertaken.

Perhaps you would also indicate what action is being taken by my sponsors who, presumably will confirm to me the terms of my employment.

I note that you will also be advising me of the immigration fee so that I can ensure this is available to you at the appropriate time.

I am most grateful to you for all your help and introduction to my sponsors.

Yours sincerely

Mrs R Tangherian"

107. The above letters indicated to me that both Miss Howard and Ms Tangherian considered themselves to be contractually bound in the Complainant's immigration matter. Miss Howard's letter of 17 February 1997 to Ms Tangherian (S1/89), was also indicative of further work undertaken on the Complainant's behalf. In that letter Miss Howard stated that: "We advise that your fax was received and a photocopy was handed to Mr Paul Haig of Fuss Beauty Salons."

108. Ms Tzannes suggested that there could have been a total misunderstanding regarding fees, and who had been instructed to do work for Ms Tangherian.

109. I was however satisfied from the oral evidence of Ms Tangherian and Ms Sarkassian which I preferred over the evidence of Miss Howard and Mr Fitzgerald, that there had been no misunderstanding regarding who was instructed to handle Ms Tangherian's immigration matter. On the basis of the above quoted correspondence, I was satisfied on the balance of probabilities to conclude that Miss Howard had agreed to act for Ms Tangherian in her immigration matter, and that the Complainant understood that to be the case, and accordingly paid $5,000 to Miss Howard into her ANZ bank account. I do not want to go into contract law, but to me, the transactions and communications had strong indicia of a contractual agreement.

whether mr haege was present at the december 1996 meeting

110. I was mindful also, that there was conflict of evidence in relation to whether Mr Haege was present at the first meeting between Miss Howard and Ms Tangherian in December 1996. Both Miss Howard's and Mr Fitzgerald's evidence was that Mr Haege was not present at the December 1996 meeting with Ms Tangherian and Ms Sarkassian. However the Complainant and her sister gave evidence to the contrary.

111. I was mindful that Ms Tzannes questioned both the Complainant and her sister regarding their recollections of what contribution Mr Haege had made at that meeting, and subsequently submitted that he had not figured prominently in the retelling of the meeting by either witness. Even if he had been there she submitted, he had not contributed much.

112. Ms Hamer submitted that Ms Sarkassian had described Mr Haege accurately in her evidence, and that neither the Complainant nor she had any reason or advantage in fabricating evidence regarding whether Mr Haege had been present at the meeting of December 1996.

113. I was mindful that the description of Mr Haege as given by Mr Fitzgerald was corroborated by Ms Sarkassian (with the exception of whether Mr Haege had a moustache which was not put to her), and I noted from the evidence before me that she had only met Mr Haege on one occasion. I find that on balance, Mr Haege was at the meeting of December 1996. I did not accept that it was a "chance" meeting as Ms Tangherian's immigration requirements had been discussed by telephone before the meeting between Miss Howard and Ms Tangherian. A need for a sponsor in the beauty industry had been identified by Miss Howard previously, and as she and Mr Fitzgerald knew Mr Haege, their landlord, friend and a director of Fuss Salons, I find it was not unreasonable for him to have been invited to the meeting of December 1996. I find on the balance of probabilities that he attended the meeting between Miss Howard and the Complainant and Ms Sarkassian in December 1996. I find further that it was from that meeting that the interview at Fuss Salons Paddington, and the subsequent sponsorship was arranged.

whether mr fitzgerald was instructed to act for ms tangherian

114. I noted Mr Fitzgerald's evidence that he had been instructed by Ms Tangherian to:

* Find a sponsor: In that connection Mr Fitzgerald said that a letter from Fuss Salons arranged by him had issued on 2 July 1997, and again on 4 September 1997 (T14). Ms Tzannes submitted that no sponsorship letter issued until July 1997, after the amount of $5,000 had been paid, and that Ms Tangherian did not make any complaint about not having received it earlier. I was mindful that Ms Tangherian's evidence and that of her sister which was not rebutted, was that Ms Tangherian received a referral to Fuss Salons Paddington and attended there for interview some three to four days after the meeting of December 1996. As noted above, there was disagreement between the parties whether Mr Haege had been present at that meeting, the Applicant and Mr Fitzgerald maintaining he had not been present. No explanation was given by Miss Howard regarding how the arrangement of the interview with Fuss Salons Paddington some three to four days after the meeting of December 1996 was made, and I accepted the evidence of Ms Tangherian that it had been arranged through Mr Haege at the first meeting in Miss Howard's office in December 1996. Ms Tzannes submitted that notwithstanding Ms Tangherian's evidence regarding obtaining the sponsorship in December 1996, there was no letter of acceptance until 2 July 1997 after the $5,000 fee had been paid. I find however from the evidence, that although both Miss Howard and Mr Fitzgerald knew Mr Haege and introduced him to Ms Tangherian, that did not indicate to my satisfaction Mr Fitzgerald had been instructed to carry out any activities for the Complainant. In fact the correspondence from Miss Howard to Ms Tangherian which is detailed in the paragraphs above indicated to me that it was Miss Howard who was dealing with Ms Tangherian as to the sponsorship and her immigration matter.

* Deal with entry to the King's School for Ms Tangherian's son: Mr Fitzgerald indicated an offer to the King's School dated 24 July 1997 for Ms Tangherian's son was received. I accepted Ms Tangherian's evidence that she had booked her son in before he even began school, and Ms Sarkassian's evidence that she and her sister and mother had attended a meeting at the School in 1997 Accordingly, I find that in that regard Mr Fitzgerald was not instructed to act for Ms Tangherian in that regard.

* Attend to finding business premises: Mr Fitzgerald indicated that the search for suitable business premises had been the subject of telephone conversations between him and Ms Tangherian. Ms Tangherian denied that she had assigned such work to Mr Fitzgerald. There was no further evidence regarding business premises before me, and I accepted on the balance of probabilities that the Complainant had not instructed Mr Fitzgerald to find her business premises. I have found above that the $5,000 Ms Tangherian paid, was paid to Miss Howard into her ANZ bank account, and not to Mr Fitzgerald.

* Investigate why Ms Tangherian's brother had been denied entry into Australia: Mr Fitzgerald gave evidence that he had been to Canberra on Ms Tangherian's behalf and telephone records which indicated he had dialled her London number from Canberra on four occasions on 29 August 1997 (Exhibit A6) were tendered. Ms Tangherian said that she was not interested in why her brother had been denied entry, and was only interested in obtaining entry to Australia for herself and her son. In that regard, I accepted the submissions of the Respondent that a third party arriving at a Government Department in Canberra without authority would be unable to access records of another person. There was no documentary evidence before me which indicated Mr Fitzgerald had been instructed to find out information regarding Ms Tangherian's brother, and no written applications to any Government authority requesting such information were before the Tribunal. I preferred the evidence of Ms Tangherian and accordingly, I did not accept Mr Fitzgerald's evidence that he had gone to Canberra to find out information about Ms Tangherian's brother, on her behalf. I was satisfied that Mr Fitzgerald did not act for Ms Tangherian, and that the telephone calls he made to her were made on a social basis.

the payment of $5,000 by ms tangherian

115. It was not in dispute, and I accepted that Ms Tangherian paid $5,000 into Miss Howard's account at the ANZ Bank, the payment being cleared on 2 June 1997 (T11/86). It was also not in dispute that Miss Howard's account was not a separate account for migration matters, but a general account, and that at least a part of the $5,000 was spent by her at Woolworths, and other stores. Ms Tzannes referred to the bank statement at T11, submitting that Ms Howard had transferred $500 of the payment to Mr Fitzgerald, a further confirmation that he was instructed by Ms Tangherian.

116. The Applicant's evidence, and subsequently the submission of Ms Tzannes was that Miss Howard was not instructed in the Tangherian matter, and generally did not charge a client until she was completing documents. The submission was made that she had been unable to undertake further work in connection with Ms Tangherian's immigration, because Ms Tangherian had not completed and returned the Immigration Questionnaire which was required to be lodged along with two other documents.

117. In that regard, I accepted the submissions of the Respondent that the Questionnaire was not required before documents could be lodged. I was mindful also of Ms Tzannes' submissions, and her cross-examination of Ms Tangherian regarding the proposition that the replies to questions in the Questionnaire were within the knowledge of Ms Tangherian. There is no doubt in my mind that some of the questions were indeed within her knowledge, but I noted also from her evidence that she required assistance with others, and was awaiting that assistance from Miss Howard. The evidence which I accepted, indicated that the relevant assistance had not been given. I accepted also from the evidence before me that other documents relevant to Ms Tangherian's immigration application could have been lodged separately and earlier than the questionnaire.

118. As to questions regarding the payment of the $5,000; Ms Tzannes also made submissions that the letter of Ms Tangherian of 13 May 1997 (T8/82) inquiring of Miss Howard regarding the brief to her could have been because Mr Fitzgerald had indicated he was going to be overseas, and that the evidence before the Tribunal was that Mr Fitzgerald and Miss Howard had agreed that their debts to each other would be satisfied utilising the payment to Mr Fitzgerald from Ms Tangherian. Ms Tzannes also submitted that Ms Tangherian may have been attempting to create a trust situation - her sister being a solicitor.

119. I was also mindful of the letter of 12 March 1997 (T6) of Miss Howard to the Complainant indicating that she had contacted a sponsor as detailed above, and accepted that Miss Howard had been instructed. Further strength to that was the indication given by Ms Tangherian in her reply of 13 May 1997 (T8/82) in reply to the letter at T6.

120. I have noted in the paragraphs above, Mr Fitzgerald's evidence that he had been instructed by Ms Tangherian, and my findings with regard to each item. That is not repeated here except to say that he alleged he was asked to find her a sponsor; deal with entry to the King's School for Ms Tangherian's son; attend to finding business premises and investigate why Ms Tangherian's brother had been denied entry into Australia. Nowhere in the documents was there authority for Mr Fitzgerald to act for Ms Tangherian, and no indication of what work he might have done, except to telephone her a few times. I accepted Ms Tangherian's evidence on each of the above points, which added up to Mr Fitzgerald not having been asked to act for her, and not in fact having done so.

121. Ms Hamer referred to the two documents, Exhibits A4 and A5 which she submitted were fabricated, noting that Miss Howard and Mr Fitzgerald's evidence regarding these corroborated each other. Ms Hamer submitted it was implausible that the 1997 account (Exhibit A5), had remained on Miss Howard's desk unfiled for four years.

122. I noted that Exhibits A4 and A5 were tendered by Ms Tzannes on the second day of hearing. When I asked her about them, Ms Tzannes told me that she had received them from the Applicant on the previous day, the first day of hearing. I was mindful of Miss Howard's evidence about the letters when she was recalled to give further evidence on the second day of hearing. She first told me that the letters had been in a bundle given to Mr Kessels when he undertook to represent her, but also said that they had been discovered at a later time. I asked some questions about Exhibits A4 and A5, as I was somewhat sceptical of how they had come into existence. After hearing all the evidence, I considered the evidence regarding their creation and sudden appearance to be entirely implausible, and I find that the letter and the account at Exhibits A4 and A5 were fabricated for purposes of this Hearing, with both Miss Howard and Mr Fitzgerald implicated.

the case law

123. The parties referred me to case law which I have considered below:

De Vere and Migration Agents Registration Board (AAT 13278, 11 September 1998)

124. Ms Tzannes submitted that there had to be caution with regard to imposing a double standard, as in the case of Miss Howard who was both a migration agent and a solicitor. She submitted that in De Vere (supra), a much more serious situation prevailed than here as there had been 105 letters written to which the solicitor had given no explanation. He had also been bankrupted.

125. Ms Hamer confirmed that De Vere was a solicitor as Miss Howard is, and asked that I reject Ms Tzannes' argument regarding double standards. Ms Hamer submitted that the standard for a fit and proper person was a high one, the duties and responsibilities of migration agents drawing them to work for a vulnerable clientele, often disadvantaged and often non-English speaking. Ms Hamer also noted that there were similarities to the case of Miss Howard in that de Vere had also failed to respond to MARA.

126. Notwithstanding Miss Howard's stance that she was not instructed in the Tangherian immigration matter, I was satisfied from the letter of 12 March 1997 to Ms Tangherian and the Complainant's reply of 13 May 1997 (T8), and all the further evidence before me, that she did indeed have instructions to act for the Complainant.

127. I noted that De Vere who had been held by Deputy President Forgie to not be a fit and proper person to be a migration agent, incurred problems with timeliness, one of the problems Miss Howard also exhibited. Deputy President Forgie stated at paragraph 99 of the decision:

"In view of the findings that I have made, I am not satisfied that Mr de Vere is a fit and proper person to give immigration assistance. In view of his tardiness, confusion and forgetfulness in dealing with his own affairs in relation to his role as a migration agent, he cannot be relied upon at this stage to fulfil the responsibilities of a migration agent. Those responsibilities require him to pay attention to detail, to comply with numerous and strict time requirements in relation to his clients' affairs and to recall with accuracy their instructions to him."

Hakaoro and Minister for Immigration and Multicultural Affairs [1998] 26 AAR 534

128. In this case Deputy President Forgie referred to Hughes and Vale Pty Ltd and Anor v State of New South Wales and Ors [No.2] (1955) 93 CLR 127 in which their Honours referred to the expression "fit and proper person" as follows:

"The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purposes is to give the widest scope for judgment and indeed for rejection. 'Fit' (or idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability: 'honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it."

129. I was mindful that the Tribunal affirmed the decision of the Respondent not to register Hakaoro as a migration agent. It had found Hakaoro to be a person of integrity, but was not satisfied that his knowledge of immigration was such that he should be registered. The Tribunal noted however, that in the future, if he undertook courses and improved his situation, that could be contemplated. I was mindful that in relation to Miss Howard, further on in this decision, I make a finding that she was in breach of Clause 2.3 of the Code of Conduct applicable at 1 July 2000 because of her lack of knowledge of immigration procedures demonstrated in the course of the Hearing of Ms Tangherian's complaint.

Sosrohadipoespito and Migration Agents Registration Authority [2001] AATA 293

130. Ms Tzannes submitted that this was a case where Senior Member Allen had referred to a low standard for migration agents. She submitted that the migration agent in that case had deliberately intended to deceive, a case to be distinguished from that of Miss Howard in whose case Mr Kessels had responded in full on behalf of Miss Howard.

131. Ms Hamer submitted that there was some parallel here in that Sosrohadipoespito had been abusive to MARA, whereas Miss Howard had failed to submit her telephone accounts to MARA when asked. She submitted that the case did not endorse low standards for migration agents.

132. I was mindful that Senior Member Allen set aside the decision of MARA to suspend Sosrohadipoespito's registration as a migration agent, and in substitution decided to cancel it from the date of his decision in the appeal. I was mindful that Senior Member Allen had certainly not endorsed low standards for migration agents. In that connection he said:

"40. I put to the Respondent's representative that considering all the matters before me, including the Applicant's attitude to MARA and his outbursts before the Tribunal, that the Applicant was not a fit and proper person to be accredited as a Migration Agent. The Respondent's representative conceded that I did indeed stand in the shoes of the decision-maker. When asked to address this specific matter, namely whether I should exercise my discretion and revoke his registration as a Migration Agent, the Applicant's argument in reply was unintelligible.

41. Taking all of the circumstances into account I acknowledge that there are undoubtedly other persons practicing as Migration Agents who should not be. It seems to me by reference to other matters that have come before me that the standards required for qualification as a Migration Agent are extremely low. In a recent matter before me the Applicant was, to my mind, functionally illiterate in written English yet his ability to be a Migration Agent was not controverted by the Respondent. That the standard of written communication by this Applicant is judged sufficient for a person who represents others is amazing. During the hearing of this matter the Applicant utilised the services of an interpreter to receive questions but replied directly in English.

42. Notwithstanding the low standard apparently required of Migration Agents, the Applicant has proved to me in these proceedings that he is incapable of adequately representing any person before a Government Department or Tribunal. His understanding of how to proceed is lacking and he appears to lack insight into how his attitudes and behaviour would disadvantage clients. In addition, as outlined above, he has shown himself to be either negligent or willing to subvert the system, and incapable of appreciating the real issues in these proceedings."

Lilienthal and Migration Agents Registration Authority (2001) 66 ALD 249; (2002) 34 AAR 371

133. In this case, Ms Tzannes submitted, Deputy President Purvis had found Lilienthal had breached the Code of Conduct in many instances. She emphasised that Lilienthal had been the subject of many complaints, whereas Miss Howard had only one complaint against her.

134. Ms Hamer on the other hand, submitted that one could take from Lilienthal (supra) that fitness and propriety should not be defined too narrowly. Miss Howard had done no due diligence she submitted, and given her conduct vis-à-vis Ms Tangherian and applying Lilienthal (supra), one could find she was not a fit and proper person to give immigration advice.

135. I was mindful that there had been multiple breaches of the Code of Conduct and misrepresentations by Lilienthal, and have quoted from the decision as appropriate below.

Griffiths and Migration Agents Registration Authority [2002] AATA 247

136. In her closing submissions, Ms Tzannes referred me to Griffiths (supra). I was mindful that Senior Member Muller as he then was (now Deputy President), set aside the decision of MARA to cancel Griffiths' registration as a migration agent and substituted a decision to suspend his registration for two years. In doing so, he stated:

"Mr Griffiths' character, integrity and general lack of compliance with the Code of Conduct is not as bad as it would have seemed to the Authority when it cancelled his registration. A significant number of the complaints and allegations against Mr Griffiths have not been substantiated during these proceedings.

Nevertheless, there are a large number of significant serious allegations of breaches of the Code of Conduct which have been substantiated. They have been set out at great length above ..."

Story v National Companies & Securities Commission (1988) 13 NSWLR 661

137. Ms Hamer referred me to Story (supra) with regard to the standards for a fit and proper person, referring to standards the public could expect as a minimum. She submitted that the revocation of the licence was for the benefit of the public protection in that case. I was mindful that the case was one which dealt with the licensing of a dealer in the securities industry.

submissions regarding the code of conduct for migration agents made pursuant to the migration agents regulations 1988 and the migration act 1958

138. Section 314 of the Act provides that the Regulations may prescribe a Code of Conduct for migration agents. As relevant section 314 follows:

"314 Code of Conduct for migration agents

(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."

139. The Tribunal was mindful that MARA's grounds for cancellation of Miss Howard's registration as a migration agent, and its grounds for refusal of re-registration were substantially the same. The only differences appeared to be that in the decision to cancel the registration Clause 8.1 of the Code of Conduct as at 1 April 1998, and Clause 6.3 of the Code of Conduct as at 1 July 2000 were also considered. The Tribunal noted that these did not raise new issues, that is issues other than those discussed in relation to the considerations of Clauses 5, 23, 28 and 28A of the Code of Conduct as at 1 August 1996, and Clauses 2.3 and 9.3 of the Code of Conduct as at 1 July 2000 relied on in the 2002 decision to refuse re-registration to Miss Howard.

code of conduct as at 1 august 1996

Clause 5

"On all occasions a migration agent must act in accordance with the law and in the legitimate interest of his or her client."

140. Ms Hamer submitted that Miss Howard had breached Clause 5 of the Code of Conduct:

* as it had always been Ms Tangherian's belief that Miss Howard was instructed in her migration matter;

* that Miss Howard had written to her about it (12 March 1997);

* that the $5,000 had been paid to Miss Howard on that basis and receipted, even though Miss Howard had never given her a detailed breakdown of what the costs were for;

* the $5,000 had been applied for Miss Howard's own use and benefit without the prior knowledge or consent of Ms Tangherian;

* that Miss Howard had failed to account to Ms Tangherian for the money, not replied to correspondence and failed to refund the moneys as requested by the Complainant.

141. Ms Tzannes submitted that Miss Howard had not breached Clause 5 of the Code of Conduct or if it was held she had, she had not intended to do so. Ms Tzannes submitted that Miss Howard relied on the submissions of Mr Kessels at PT75/321-322, who rejected on the Applicant's behalf, the allegation that the explanations given with regard to the payment of the money were a fabrication. Ms Tzannes also emphasised that Miss Howard never considered the $5,000 paid by Ms Tangherian to be trust money received on account of her own fees, adding that Miss Howard was aware of the arrangement between Mr Fitzgerald and the Complainant. The arrangements for payment of the money were, she submitted, agreed upon with Ms Tangherian because Mr Fitzgerald was travelling overseas, and once the moneys had been paid he could undertake his inquiries.

142. I have taken both submissions into account, and refer to the evidence given and submissions made, as well as my findings regarding the payment of the $5,000 by Ms Tangherian as discussed in the paragraphs above. I have found on the basis of the oral evidence of Ms Tangherian which I preferred to that of Miss Howard, and the correspondence at T6/80, T8, T9/84 that Miss Howard was instructed by Ms Tangherian, and that the Complainant signed, but did not date an authority for Miss Howard to act for her.

143. I find therefore that Miss Howard breached Clause 5 of the Code of Conduct in that she did not act in accordance with the law and the legitimate interests of her client in that she applied the moneys paid by Ms Tangherian to her personal account, and purchased items from Woolworths on a number of occasions with that money. She did not inform Ms Tangherian of how she would be applying the funds, did not reply to correspondence, and did not refund the money as requested when her contract was cancelled by Ms Tangherian. Further Miss Howard attempted to convince me that it was Mr Fitzgerald who was acting on the Complainant's behalf. For the reasons given above, I have not accepted that submission.

Clause 23

"...A migration agent must provide a statement of fees at the start of work for a client in the form of charges per hour, or per particular service and an estimation of the likely time to be taken in performing a service...."

144. The Respondent's submission was that Miss Howard had breached Clause 23 of the Code of Conduct because she had failed to provide a statement of fees for the Complainant at the start of the work for the Complainant.

145. Ms Tzannes submitted as Mr Kessels had already on behalf of Miss Howard, that she had not given a statement of fees because she was in no position to do so. The first meeting with Ms Tangherian had been an introductory one where she gave information and for which she did not charge; indeed her evidence had been that she did not charge until she had done work for a client and considered in this case she had not so done.

146. I was mindful that the submission of Mr Kessels on behalf of Miss Howard was based on admissions different from the evidence I heard from Miss Howard at the Hearing. He wrote to MARA on 27 July 2001 (T15/320) in relation to Clause 23 as follows:

"The agent accepts that the documentation referred to by MARA in their letter of 21 June 2001 and her own file ... indicates that the complainant believed that she had instructed the agent to complete certain immigration work. She further accepts that her letters (and the receipt) given to the complainant would indicate to the complainant and to MARA that she had accepted those instructions and had commenced to act for the complainant.

The agent admits that her actions in dealing with the accepting of the initial instructions of the complainant did not comply with the relevant provisions of the Code. ..."

147. On the basis of the evidence before me, as noted above, I find that Miss Howard was instructed by Ms Tangherian. It was not disputed that she did not provide a statement of fees and I accepted that evidence, but not for the reasons put forward by Miss Howard in her evidence. I find that she breached Clause 23 of the Code of Conduct in regard to her dealings with Ms Tangherian, and that had she adhered to what was put forward by Mr Kessels, her reasoning would have been more plausible. Instead Miss Howard denied to me that she was instructed to carry out immigration work for Ms Tangherian. She agreed with Mr Fitzgerald's evidence in relation to documents Exhibits A4 and A5 which I have found to be fabricated documents, gave evidence that they had been on her desk since 1997, and had her counsel, Ms Tzannes tender these to the Tribunal. These untruths have compounded her situation, and must be taken into account when considering whether she is a fit and proper person to be licensed as a migration agent.

Clause 28

"An agent must keep separate accounts for:

* The agent's operating expenses (the "operating account"); and

* monies paid by clients to the agent for fees and disbursements (the "clients' account").

The agent must hold fees paid by a client in the clients' account until the work that the agent has been contracted to do for that client has been completed. The agent may, at any time, withdraw money from the clients' account for disbursements that are required to be paid to the Department of Immigration and Multicultural Affairs, or any other agency, on behalf of the client."

Clause 28A

"An agent must keep records of the clients' account, including:

* the date and quantum of each deposit made to the clients' account, including an indication of the purpose of the deposit and the client on whose behalf the deposit is made; and

* each withdrawal made from the clients' account; and

* receipts for any payment made by the client to the agent; and

* copies of invoices or accounts rendered in relation to the account."

148. The Respondent contended that Miss Howard breached Clauses 28 and 28A of the Code of Conduct in that she failed to operate a separate client account for moneys paid by clients for costs and disbursements.

149. Ms Tzannes submitted that the Applicant relied on the submissions of Mr Kessels to MARA made on Miss Howard's behalf (PT75/321). She also submitted that the Applicant agreed "she was naïve in not obtaining written authority of the complainant prior to dispersing the fund to Mr Fitzgerald. She was in fact relying on the agreement reached between the Complainant, the Applicant and Mr Fitzgerald."

150. I was satisfied that Miss Howard did not keep a trust account with regard to her migration practice. I have no knowledge of, and make no finding as to her legal practice. I was satisfied from the evidence before me and the bank statements at T11 that Miss Howard simply banked Ms Tangherian's $5,000 paid on account of immigration work (unspecified), into her personal ANZ bank account, and disbursed it as she saw fit for purchases at Woolworths and other destinations. I noted the submissions of Mr Kessels with regard to problems in Miss Howard's professional and personal life, and did not accept that they were adequate excuses for not keeping accurate financial records and maintaining a trust account for the migration practice. Accordingly I find that Miss Howard breached Clauses 28 and 28A of the Code of Conduct.

code of conduct as at 1 JULY 2000

Clause 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."

151. I was mindful of Ms Hamer's submission regarding a breach of Clause 2.3 of the Code of Conduct dated 1 July 2000 which requires a migration agent to have a sound knowledge of the Migration Act. (Clause 2.3 of the Code of Conduct of 1 July 2000 had an equivalent in Clause 6 of the Code of Conduct dated 1 August 1996.) The Respondent submitted that Miss Howard demonstrated a lack of understanding of immigration procedures in handling the sponsorship of Ms Tangherian, and did not proceed with the application adequately.

152. Ms Hamer submitted that Miss Howard had operated in disregard of the Code of Conduct for Migration Agents. Her evidence that been that she had skim read the Code of Conduct, and that she had become aware only recently that she was required to keep a separate client account for her migration clients.

153. Ms Tzannes submitted that the Applicant relied on the submissions of Mr Kessels made on her behalf (PT75/323). She submitted that notwithstanding the lack of reference to a letter of sponsorship in the Migration Act and Regulations, the fact that this issued was not meaningless, but a sign of a willing sponsor which allowed Miss Howard then to proceed with the application. It was also to inform Ms Tangherian of the interest of the sponsor, she submitted. Ms Tzannes submitted on behalf of Miss Howard that she denied that she did not have a sound knowledge of migration law and practice. She emphasised the Distinction gained by Miss Howard in 1997 for an eight day course, "Australian Immigration Law and Practice" of the University of New South Wales (Exhibit A1).

154. I noted all the evidence and submissions on Miss Howard's knowledge of migration law and procedure, and accepted that she had undertaken a course of study in 1997. However the evidence surrounding her access to legal databases indicated that Miss Howard did not value those as part of her practice. She replied in cross-examination that she had the Ministerial Services Instructions ("MSI") but had not bought the Procedures Advice Manual ("PAMS"). She said that she was aware that MARA had instructed migration agents in early 2002 that they were required to have the MSI and PAMS. I noted Miss Howard's evidence that from 1998, the departmental website was her main resource for the migration practice.

155. From the above submissions and evidence, and the evidence regarding what work Miss Howard had performed for Ms Tangherian, I formed the view that Miss Howard's knowledge of migration law and practice and procedures was less than adequate, and given the history of this matter and delays as detailed in the sections above, I find that she did not demonstrate a capacity to provide accurate and timely advice as required in Clause 2.3. Accordingly I find that Miss Howard breached Clause 2.3 of the Code of Conduct.

Clause 9.3

"If the Authority gives a migration agent details of a complaint made to the Authority about:

(a) the work or services carried out by the agent or the agent's employees; or

(b) any other matter relating to the agent's compliance with this Code - the agent must respond properly to the Authority, within a reasonable time specified by the Authority when it gives details to the agent."

156. Ms Hamer drew my attention to Clause 9.3 of the Code of Conduct of 1 July 2000, and submitted Miss Howard had breached that Clause in that she had not responded to a request of MARA in a timely fashion. Ms Hamer submitted that Miss Howard had been requested by MARA to supply information relating to telephone accounts and bank accounts in November 2000, and had not done so until July 2001, on the basis that Ms Tangherian's file had been missing and only retrieved in July 2001.

157. Ms Tzannes submitted that Miss Howard relied on the submissions of Mr Kessels who accepted on behalf of Miss Howard that she had been tardy in replying to MARA, explaining that she had put files in storage, and that delays had occasioned as a result. She had agreed he wrote, (PT75/324) that: "The agent has already expressed her remorse for not dealing with this matter in a more diligent manner and accepts that it does not reflect well upon her."

158. Ms Tzannes also submitted that originally the Applicant had objections to providing information on leases and telephones which she considered private, and where she felt MARA was seeking information beyond the lawful limit. However those hesitations were made on a bona fide basis she submitted, and not with the intention of deliberately thwarting the authority of MARA.

159. I found on the basis of the submissions and evidence that Miss Howard obfuscated, delayed and did not respond to MARA in a timely manner, and accordingly breached Clause 9.3 of the Code of Conduct.

submissions regarding section 290 and section 303 of the migration act 1958

160. I was mindful that the Migration Agents Registration scheme administered by the Migration Registration Authority is one that:

"seeks to achieve that object [effective administration of the Act] by protecting aliens from incompetent and unscrupulous advisers through the introduction of a regulatory scheme, which is designed to ensure that those who advise and represent aliens are competent and are persons of integrity." (Cunliffe and Anor v Commonwealth of Australia (1944) 182 CLR 272 at 294).

161. To ensure effective and proper administration of the Act the Respondent is entitled to be able to rely upon the honesty of those registered as migration agents.

162. I was mindful that section 290 of the Act is a mandatory section which states that an applicant must not be registered as a migration agent if MARA is satisfied that that person is not a fit and proper person to give immigration assistance or the person is not a person of integrity. As relevant section 290 of the Act follows:

"290(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)...

290(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

...

(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

...

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

..."

163. Section 303 deals with the discretionary cancellation or suspension of registration as migration agent and follows as relevant:

"303 Discretionary cancellation or suspension of registration etc.

The Migration Agents Registration Authority may:

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

...

if it becomes satisfied that

...

(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or

...

(h) the agent has not complied with the Code of Conduct prescribed under section 314."

164. Section 303 of the Act enables the Respondent to cancel a registration by removing the agent's name from the register, if it becomes satisfied that the migration agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance. That is in fact what occurred with regard to Miss Howard by decision of the Respondent dated 23 October 2001 followed by a refusal to re-register her by decision of 14 February 2002.

165. Section 290 of the Act is mandatory in its operation. I had thus to satisfy myself to the requisite standard in this matter, inter alia, as to whether the Applicant is a fit and proper person or a person of integrity in order to qualify to give immigration assistance. "Integrity" means "soundness of moral principle and character, uprightness; honesty" (see Re Peng and Department of Immigration and Multicultural Affairs (AAT 12543, 19 January 1998)).

166. I agreed with, and have relied on the statements made in both those regards with Deputy President McMahon in Peng (supra).

167. In Peng (supra) at paragraph 26 Deputy President McMahon stated:

"The use of the word "assistance," in my view, extends not only to help given to would-be applicants, but also help given to the Department in the administration of immigration programs. In that regard, frankness and truth are of primary importance... If these standards are important in relation to individual application, how much more important are they in relation to those who will, in the course of their practice, make many representations to the Department on behalf of those seeking to deal with immigration matters. The requirement to display integrity and fitness in order to qualify for registration as a migration agent [and here read remain so registered], has an element of mutuality. The need for probity is not only for the protection of the clients, but also for the open, honest and efficient administration of immigration matters in which the agent is involved."

168. In Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155 - 156 it was said:

"The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia".

169. A consideration of whether or not a person is one of integrity cannot be disassociated from the character of that person. It is on account of the above mentioned significant position occupied by a migration agent, that she or he is required to be a person of integrity or otherwise fit and proper to give immigration assistance. The responsibilities entailed in the rendering of assistance, extends not only to prospective visa or migration applicants, but also to the Department administering the legislation.

170. With regard to "fit and proper":

"... with respect to an office is said to involve three things, honesty, knowledge and ability; "honesty to execute if truly, without malice, affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it". (Hughes and Vale Pty Ltd and Anor v the State of New South Wales and Ors (No2) (1955) 93 CLR 127 at 156.)

171. This concept of fitness and propriety is not however to be narrowly construed or confined:

"The expression "fit and proper person", standing alone carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaged in those activities. However, depending on the nature of the activities, the question maybe whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that will not occur. The list is not exhaustive, but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to grant a finding that a person is not fit and proper to undertake the activities in question". (Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 at 380; Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 34 ALD 324 at 328).

172. There is thus an explicit link between fitness and propriety on the one hand, and character on the other. The establishment of good character is important in various areas of immigration practice.

173. In that connection, Ms Tzannes submitted that Miss Howard had a long and unblemished career and had handled large amounts of money in trust accounts for building societies. She submitted that Miss Howard had testimonials from generations of clients with regard to their satisfaction with her work. Ms Tzannes submitted that Miss Howard was a fit and proper person to be a migration agent and that she demonstrated the requisite knowledge, and knew of policies and plans, including PAMS and others.

174. Ms Tzannes said that the failure to respond to the Complainant was not a failure to respond to MARA. It had been an unfortunate incident she submitted, and was due to the fact that the Complainant's files had been misplaced before being found again. This had been due to professional and personal crises in Miss Howard's life, the hail storm of April 1999 and the fact that Miss Howard's life at the time was unsettled. Perhaps she had put "head in the sand" for the first time in a long and unblemished career Ms Tzannes submitted.

175. In making submissions regarding any delays which may have been occasioned in lodging documents for Ms Tangherian, Ms Tzannes pointed to the Complainant not having returned the completed Immigration Questionnaire. Ms Tzannes submitted that the questions were within her knowledge, and she could have returned it. It will be noted I concluded above that from the evidence before me, Ms Tangherian could indeed have returned the Questionnaire, and that clearly some of the answers to the questions were within her personal knowledge. However I concluded also from the evidence that she required assistance with some of the questions, and further that the Questionnaire did not have to be lodged with the other documents. They could have been lodged independently of the Questionnaire, and that in fact was not done by Miss Howard.

176. Ms Tzannes cited Senior Member Allen in Sosrohadipoespito (supra) in her argument that the Tribunal had held that high standards were not required of migration agents.

177. Ms Tzannes submitted that if there had been fabrication of any documents or evidence, and her submission on behalf of her client was that there had not, then there was a question of who had fabricated evidence. Ms Tzannes submitted that her client's evidence was that she had not fabricated any evidence.

178. I noted that Ms Hamer submitted that to the contrary, high standards of integrity were indeed required for registration by MARA. I was mindful of the discussion Ms Tzannes had raised by citing Sosrohadipoespito (supra), submitting that this was a case where Senior Member Allen had referred to a low standard for migration agents. She submitted that the migration agent in that case had deliberately intended to deceive, a case to be distinguished from that of Miss Howard in whose case Mr Kessels had responded in full on behalf of Miss Howard. Ms Hamer submitted that there was some parallel here in that Sosrohadipoespito had been abusive to MARA, whereas Miss Howard had failed to submit her telephone accounts to MARA when asked. She submitted that the case did not endorse low standards for migration agents.

179. I was mindful that Senior Member Allen had certainly not endorsed low standards for migration agents. In that connection he said:

"40. I put to the Respondent's representative that considering all the matters before me, including the Applicant's attitude to MARA and his outbursts before the Tribunal, that the Applicant was not a fit and proper person to be accredited as a Migration Agent. The Respondent's representative conceded that I did indeed stand in the shoes of the decision-maker. When asked to address this specific matter, namely whether I should exercise my discretion and revoke his registration as a Migration Agent, the Applicant's argument in reply was unintelligible.

41. Taking all of the circumstances into account I acknowledge that there are undoubtedly other persons practicing as Migration Agents who should not be. It seems to me by reference to other matters that have come before me that the standards required for qualification as a Migration Agent are extremely low. In a recent matter before me the Applicant was, to my mind, functionally illiterate in written English yet his ability to be a Migration Agent was not controverted by the Respondent. That the standard of written communication by this Applicant is judged sufficient for a person who represents others is amazing. During the hearing of this matter the Applicant utilised the services of an interpreter to receive questions but replied directly in English.

42. Notwithstanding the low standard apparently required of Migration Agents, the Applicant has proved to me in these proceedings that he is incapable of adequately representing any person before a Government Department or Tribunal. His understanding of how to proceed is lacking and he appears to lack insight into how his attitudes and behaviour would disadvantage clients. In addition, as outlined above, he has shown himself to be either negligent or willing to subvert the system, and incapable of appreciating the real issues in these proceedings."

180. Ms Hamer cited Hughes and Vale Pty Ltd (supra), where she submitted it had been held that a fit and proper person was one with honesty, integrity and ability. Miss Howard on the other hand, she submitted, had been dishonest in her dealings with the $5,000 belonging to Ms Tangherian which had been paid to her as a result of the request by the Applicant. Further she had misappropriated the funds by expending them on groceries. Ms Hamer submitted that Miss Howard should have known that pursuant to the Code of Conduct she should have kept a separate immigration account for her clients, and that as recently as July 2001, she had not indicated that she knew that. If indeed she did, then the submission of the Respondent was that she had disregarded it.

181. Ms Tzannes submitted that Miss Howard had excelled in the University of New South Wales course she had undertaken and submitted that the Act did not stipulate practical skills, although Miss Howard did in fact have these. Ms Hamer said it was accepted that Miss Howard completed a course on immigration and received a distinction, but submitted that this did not prove she had any practical skills. In fact the Applicant had given evidence that since being registered in 1993 or 1994, Ms Tangherian who consulted her in 1996, was her first migration client. Referring back to Hughes and Vale Pty Ltd (supra), Ms Hamer submitted that there may have been personal crises and other reasons such as moving offices which affected Miss Howard's performance, but she drew to my attention Mr Kessels' remarks at page PT75/321 which indicated that Miss Howard's affairs were in disarray. Ms Hamer submitted that even at 2001, her affairs were in disarray; there had been no response to MARA until July 2001, and Ms Tangherian's file could not be produced. Ms Hamer indicated also that Miss Howard had not replied to Ms Tangherian's solicitors in London, and even Ms Sarkassian who was in Sydney, had not been able to make contact with Miss Howard.

182. Ms Hamer submitted that Ms Tangherian had nothing to gain from referring the complaint about Miss Howard. Her evidence had been that she did not even expect to recover her funds, but that the complaint had been lodged due to her concern for other persons who might be involved with Miss Howard. Ms Hamer submitted that Mr Fitzgerald had been in a very poor financial situation in December 1996, and that he had acted with lack of integrity, and was joined in this by Miss Howard. Ms Hamer submitted together Miss Howard and Mr Fitzgerald has fabricated evidence and sought to mislead the Tribunal. Accordingly, she should not be permitted to practise as a migration agent, Ms Hamer submitted. Ms Hamer submitted that the documents before the Tribunal supported the arguments of the Complainant and her sister and these were unchallenged.

183. As to integrity; Ms Hamer referred me to section 290(1)(b) of the Act and the case of Peng (supra) which defined "honest", and which I have considered above. Ms Hamer submitted that the letters Exhibits A4 and A5 remained unconvincing, and that there was no evidence before me to satisfy me that there had been arrangements between Miss Howard and Mr Fitzgerald which those letters purported to demonstrate. She reminded me of Ms Tangherian's evidence which was that there had been no instructions to Mr Fitzgerald, and no account of costs submitted by Miss Howard as promised in her letter of August 1997. I was mindful that in the context of a person like Miss Howard, who was accustomed to handling funds in trust accounts, it was an unusual use of client money, to say the least.

184. As to section 290(1)(c) of the Act, Ms Hamer submitted that Miss Howard's business relationship with Mr Fitzgerald was an example of consorting with a person of no integrity. She said Miss Howard's support of Mr Fitzgerald's argument regarding the two documents at Exhibits A4 and A5 which were a fabrication, was indicative of this. She said that Miss Howard was in breach of section 290(1)(c) of the Act by associating with Mr Fitzgerald, a person without integrity. Ms Tzannes on the other hand, argued that section 290(1)(c) of the Act contemplated the Applicant being related by employment to an individual not of integrity, and that the employment contemplated by the Act did not apply to Miss Howard and Mr Fitzgerald's relationship. I noted those submissions, and did not make a finding in that regard as I have already found above that Miss Howard breached the various Clauses of the Code of Conduct as discussed. I have also found that both Miss Howard and Mr Fitzgerald were party to fabrication of two documents which were tendered at the Hearing. I moved then to further assess the credit of the witnesses.

credit of the witnesses

185. I was mindful that numerous instances of conflict of evidence arose in these proceedings. There was conflict regarding:

* whether Miss Howard had been instructed to act for Ms Tangherian - preferring the evidence before me which Miss Howard denied, I found she was;

* whether Miss Howard did in fact act for Ms Tangherian in the immigration matter - preferring the evidence before me which Miss Howard denied, I found she had;

* whether Mr Fitzgerald was instructed to act for Ms Tangherian - in reviewing the written (correspondence between Miss Howard and Ms Tangherian), and oral evidence, I found Mr Fitzgerald was not so instructed;

* and whether he in fact did act for her - I found Mr Fitzgerald did not act for Ms Tangherian and that Exhibits A4 and A5 were fabricated for the Hearing;

* whether Mr Haege was at the first meeting in December 1996 - I found from the evidence of Ms Tangherian and Ms Sarkassian that Mr Haege had been present;

* whether Ms Tangherian's $5,000 on the face of it paid into Miss Howard's bank account was paid to Miss Howard - I found from the correspondence and oral evidence of Ms Tangherian which I preferred over that of Miss Howard that the $5,000 were paid to Miss Howard;

* whether the documents Exhibits A4 and A5 were fabricated for purposes of this Hearing - I so found;

186. From the paragraphs above, it is abundantly clear that I was satisfied on balance that the evidence of Ms Tangherian and Ms Sarkassian was preferred over that of Miss Howard and Mr Fitzgerald. In doing so, it was necessary to make an assessment of the credibility of the Applicant and of those witnesses who were in conflict with her. Differences in evidence can be attributable to a number of factors, such as faulty recollection, innocent inaccurate recollection, misunderstanding of a question or surrounding circumstances, but may also be attributable to an intent to mislead, or deceive, or simply not tell the truth. Unfortunately Miss Howard misled the Tribunal with regard to the status of her registration as a migration agent at the time of the Stay Hearing in November 2001, and again in the Hearing of this substantive application, where she insisted she had not acted for Ms Tangherian and that the moneys paid by the Complainant were for Mr Fitzgerald. Miss Howard also sought to mislead the Tribunal with regard to the Exhibits A4 and A5, which I have, on the balance of probabilities, found to be fabrications. She was party to tendering what I have found to be fabricated documents. I cannot therefore find her to be a witness of truth.

187. I was also concerned that Miss Howard in this Hearing, contradicted a statement made to MARA on her behalf by Mr Kessels. Whereas Mr Kessels submitted in his documents at T75 to MARA that Miss Howard was confused about having a separate trust account for immigration moneys paid to her, at this Hearing Miss Howard maintained, notwithstanding very compelling evidence before the Tribunal and throughout this Hearing, that the money was paid to her ANZ account for Mr Fitzgerald.

188. In summary, Ms Hamer submitted that Miss Howard breached the terms of section 290 of the Act, and should not be registered as a migration agent because she had breached the Code of Conduct for Migration Agents as discussed in the paragraphs above. Ms Hamer submitted Miss Howard had been disorganised, lied to the Tribunal and to Ms Tangherian, and was therefore not a fit and proper person to be registered as a migration agent. Ms Hamer submitted that the impact of Miss Howard's actions on Ms Tangherian and future clients should be taken into account. Further she submitted, Miss Howard was in breach if section 290(1)(c) of the Act by associating with Mr Fitzgerald, a person without integrity.

189. Ms Tzannes on the other hand, argued that section 290(1)(c) of the Act contemplated employment and did not apply to the situation between Miss Howard and Mr Fitzgerald.

190. Ms Tzannes made submissions with regard to the tests in sections 290 and 303 of the Act, submitting that section (290)(2) of the Act had no application in this case. She submitted that registration had been refused on incorrect grounds, and further argued that the discretionary provisions of section 303 were irreconcilable with the mandatory provisions of section 290 of the Act.

191. Ms Tzannes also replied in relation to the submissions made with regard to the impact of Miss Howard's actions on Ms Tangherian, submitting that the Complainant did not migrate to Australia for reasons other than Miss Howard's actions.

192. I was mindful of Ms Tangherian's evidence on that point, which I accepted, noting that she relied on Miss Howard and her expertise, and may have been misled by the hospitality and friendship exhibited by Mr Fitzgerald. I noted further that ultimately she was upset at not receiving information regarding how her $5,000 was to be spent, and not receiving timely information from Miss Howard. She may well have had additional reasons for not coming to Australia which were not disclosed at the Hearing, but I was satisfied that she was particularly disturbed and upset at Miss Howard's actions towards her, to the extent of consulting solicitors in London for legal advice and making contact with Miss Howard via those.

193. In closing, Ms Hamer submitted that section 290(2)(h) of the Act provided a broad scope. I noted that it provided for the inclusion of "any other matters relevant to the applicant's fitness to give immigration assistance", other than those listed in sub-sections (a) to (g) of section 290(2) of the Act.

194. In considering all the evidence and submissions, I have already in the paragraphs above come to the conclusion that Miss Howard breached various clauses of the Code of Conduct as detailed above. They included Clauses 5, 23, 28 and 28A of the Code of Conduct as at 1 August 1996, and Clauses 2.3 and 9.3 of the Code of Conduct as at 1 July 2000. That alone would not necessarily render Miss Howard to not be a person of integrity, or otherwise not a fit and proper person to give immigration assistance.

195. However, taking into account other evidence, including her insistence that she did not act for Ms Tangherian when documentary evidence and the oral evidence clearly indicated that she did, involvement in the fabrication of documents for the Tribunal, and the lack of due diligence in accounting for moneys paid to her, have contributed to the finding made above for the reasons given there, that Miss Howard is indeed not a person of integrity, or a fit and proper person to give immigration assistance. In particular the handling of Ms Tangherian's $5,000 in having it paid into her general ANZ account, perhaps disbursing $500 to Mr Fitzgerald (her evidence), and spending at least a portion of it at Woolworths was dishonest.

196. I was satisfied that Miss Howard breached the Migration Agents Code of Conduct and has shown herself to be a person not of integrity and not fit and proper to give immigration assistance. For the reasons as detailed above, the decision not to re-register her as a migration agent was the correct decision, and that decision, which is the decision under review, is affirmed.

DECISION

197. File N2002/266 The Tribunal affirms the decision under review being the decision of the Migration Agents Registration Authority made on 14 February 2002 to refuse the Applicant, Miss Margaret Howard's application for registration as a migration agent.

File N2001/1637 It is noted that the decision of the Migration Agents Registration Authority of 23 October 2001 to cancel Miss Margaret Howard's registration as a migration agent lapsed on 26 October 2001. That application is dismissed.

File N2001/1637; N2002/266 The application, (dealt with in a separate decision, Howard and Migration Agents Registration Authority [2002] AATA 1245 to have Miss Margaret Howard's identity made confidential for purposes of publication pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 is refused.

I certify that 197 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed: H Sim .....................................................................................

Associate

Date/s of Hearing 17, 18 & 30 July 2002

Date of Decision 5 December 2002

Counsel for the Applicant Ms M Tzannes

Solicitor for the Applicant Nyman Gibson & Co

Solicitor for the Respondent Ms S Hamer, Australian Government Solicitor