Marino and Migration Agents Registration Authority [2003] AATA 69 (24 July 2003)

Last Updated: 9 September 2003

DECISION AND REASONS FOR DECISION [2003] AATA 694

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1477

GENERAL ADMINISTRATIVE DIVISION	)
	Re	PAUL MARINO

Applicant

And

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal

Ms N Bell, Member

Date 24 July 2003

Place Sydney

Decision

The Tribunal affirms the decision under review.

[Sgd] N Bell

Member

CATCHWORDS

MIGRATION: Migration Agent - registration as non-fee charging agent - refusal of application for registration - whether Applicant fit and proper person or person of integrity -decision affirmed.

LEGISLATION

Migration Act 1958 section 290

Prostitution Control Act 1994 (Vic) sections 10, 22(1), 22(3)

CASE LAW

Department of Public Prosecutions v Glazner [2001] VSCA 204.

Prasad v Migration Agents Registration Authority [2002] AATA 423

Cunliffe v Commonwealth of Australia (1994) 182 CLR 272

Minister for Immigration and Multicultural v SRT [1999] FCA 1197

REASONS FOR DECISION

24 July 2003

Ms N Bell, Member

1. This is an application by Mr Paul Marino ("the Applicant") for review of the decision dated 14 June 2001 by the Migration Agents Registration Authority ("the Respondent") to refuse the Applicant's application for registration as a migration agent. The Respondent refused on the basis that the Applicant is not a fit and proper person to be a migration agent.

2. The Applicant had originally applied for registration as a not for profit basis agent and paid the appropriate application fee for that category of qualification. Later the Applicant informed the Respondent by telephone and in writing that he wished to apply as a fee-charging agent. He did not, however, forward any additional application fee.

3. On 17 May 2002 the Tribunal decided that it had jurisdiction to review the decision to refuse the Applicant's registration as a non fee-charging agent, which is the decision under review.

BACKGROUND

4. A number of matters are not in dispute between the parties. In 1999 the Applicant was convicted of two counts of assisting in the carrying on of a prostitution service reckless as to whether section 22(1) is being contravened, in breach of section 22(3) of the Prostitution Control Act 1994 (Vic) ("the PC Act"). He was fined amounts of $300 and $2000 and sentenced to imprisonment for six months, suspended for 12 months. On appeal from conviction and sentence the County Court on 17 February 2000 varied the sentence to fines of $300 and $5000 with a stay of three months on the payment of fines.

5. The Applicant associated with Mr Garry Glazner, who was convicted, after a trial lasting over three weeks, on five counts of being an unlicensed prostitution service provider contrary to section 22 of the PC Act, and two counts of living on the earnings of prostitution contrary to section 10 of the PC Act. Mr Glazner was sentenced to an effective total term of 18 months imprisonment, wholly suspended for a period of two years and fined a total of $31,000.00. This was varied by the Court of Appeal in November 2001 to an effective total term of 30 months imprisonment wholly suspended for two and a half years and fines of $31,000.

6. In District of Public Prosecutions v Glazer [2001] VSCA 204 Buchanan J A in his reasons for judgement:

"6. The sentencing judge found that in his hotel trade the respondent employed striptease artists and as a consequence conceived the idea of providing prostitution services as a person licensed to do so under the Act. The respondent made a substantial financial commitment to the business of brothel keeper before discovering that obtaining a licence was not a quick or simple process. He launched and maintained his business without a licence. The respondent obtained sex workers from an agent in Thailand at a cost of $18,000 to $20,000 for each worker. The sentencing judge said that due to the respondent's considerable financial outlay, he could not afford to wait for the grant of the licence. It is to be noted, however, that the respondent's breaches of the Act were flagrant. He may have desired to obtain a licence, but in the end he was determined to conduct brothels with or without a licence. The Thai women employed by the respondent were able to work in Australia as a result of the manipulation of Commonwealth immigration laws. The sentencing judge says that there was no suggestion in the material before the Court that the respondent forced the Thai women into the sex industry. He exploited them in a sense that he induced them to work for him by offering money, for which they had a demonstrated need. The respondent does not appear to have physically abused his workers, but he exercised a close control over their domestic and working conditions.

7. The respondent carried on business at premises in Tope Street, South Melbourne, behind the facade of a person licensed under the Act. The business closed when the permit granted to the licensee expired. The respondent thereupon took over the business of another licensed prostitution service provider in City Road, South Melbourne, relegating the licence holder to a subservient role. Once again the respondent acted as if he were the licensee and received the bulk of the proceeds of the business. the respondent also provided the services of prostitutes at unlicensed premises in Ferrars Street, South Melbourne, and escort services from the Clifton Hotel."

7. The women who worked for Mr Glazner resided in shared rooms in premises occupied by Mr Glazner at the Clifton Hotel, 99 High Street, Kew and 320 Ferrars Street, South Melbourne. A Thai woman, Thepthong Julkhampha, also resided with the women and cooked for them. The women were sometimes moved between Melbourne and Sydney. In around early December 1998 upon Mr Glazner becoming aware that police were interested in his activities, the women in Melbourne were moved to Sydney.

8. There is no dispute that the Applicant worked as a manager at the City Road brothel from approximately February 1998 to September 1998, that he was placed in this position by Mr Glazner and had day to day involvement in the business including counting the daily takings. In addition, the Applicant transported the women employed by Mr Glazner between the premises in which they resided and the brothels.

9. There is also no dispute that the Applicant travelled to Thailand with Mr Glazner for eight to ten days in October 1998. The Applicant also travelled to Melbourne from Sydney with Mr Glazner and a Thai woman who was employed by Mr Glazner in October 1998 to provide prostitution services.

10. In addition, in December 1998 the Applicant travelled to Sydney from Melbourne with Thai women being relocated to Sydney, who worked for Mr Glazner. In addition the Applicant visited Injai Saithong, a Thai woman who was detained whilst working as a prostitute at 466 City Road, South Melbourne and who lived at the Clifton Hotel, on 14 occasions between 12 April 1998 and 17 May 1998 at an Immigration Detention Centre in Maidstone.

ISSUES AND LEGISLATION

11. The issue to be considered by the Tribunal is whether the Applicant is a fit and proper person to give immigration assistance and/or whether the Applicant is not a person of integrity. Section 290 of the Migration Act 1958 ("the Act") provides:

"290 Applicant must not be registered if not a person of integrity or

not fit and proper

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

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

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

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

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

(ii) a person of integrity;

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

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

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

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

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

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

290(3) In considering whether it is satisfied that an individual to whom the applicant is related by employment is not a person of integrity, the Migration Agents Registration Authority must take into account each of the following matters, so far as the Authority considers it relevant to the question whether the individual is not a person of integrity:

(a) any conviction of the individual of a criminal offence (except a conviction that is spent under Part VIIC of the Crimes Act 1914);

(b) any criminal proceedings that the individual is the subject of;

(c) any inquiry or investigation that the individual is or has been the subject of;

(d) any disciplinary action that a professional association is taking, or has taken, against the individual;

(e) any bankruptcy (present or past) of the individual."

12. The Respondent raised the Applicant's convictions and his involvement in Mr Glazner's activities, which include Immigration malpractice, bringing women of Thai nationality to Australia to provide prostitution services and restricting their movement, to demonstrate that the Applicant is not a fit and proper person nor a person of integrity.

13. The Applicant denies the extent of his involvement in Mr Glazner's activities as contended by the Respondent and maintains that, notwithstanding his plea of guilty to the offences of which he was convicted, he did not breach the PC Act.

APPLICANT'S EVIDENCE

14. The Applicant told the Tribunal that from 1996 to 2000 he was operating three mobile phone shops in Melbourne. He said that when he was 22 he met Mr Glazner, aged 60, through one of his mobile phone shops. He said he began to frequent one of Mr Glazner's brothels, which is where he met and formed a relationship with Ms Saithong, a sexual service provider. He said that he already had an interest in the prostitution industry before he met Mr Glazner, which later developed into an interest in migration.

15. The Applicant said that most of the staff in the prostitution industry are employed through referral. He said that he secured the position of manager of the City Road brothel and became registered under the PC Act as the previous manager was going on leave. He said, however, that, although he was registered as a manager from February to December 1998, that does not mean he was running the brothel. He said that Ms Srisawang was running the brothel as a licensed manager and he, the Applicant, was simply a friend of Mr Glazner who helped out when it got busy.

16. The Applicant said that his background is in accounting but he was not running any of the business. He said that he saw how migration matters were conducted and decided he wanted to learn about it. Later, however, he said he had no involvement at all in the migration matters of women working for Mr Glazner and had no involvement at all in the securing of their protection visas. The Applicant said that he was working for Ms Smith at City Road and was paid by her. She, as the licensee, paid him and he was never paid by Mr Glazner.

17. The Applicant said he spent a great deal of time with Mr Glazner but kept out of his business dealings. The only time he knew anything about Mr Glazner's dealings with migration matters was after a hearing at the Immigration Review Tribunal. He said that at the start he did not know anything about Mr Glazner's migration dealing and that in 1997/98 migration issues were not as publicised as they are now.. He said that he also kept away from Mr. Glazner's contractual arrangements with the Thai women and, as far as he could see, the women were free to come and go as they pleased.

18. He said that he began a relationship with Ms Saithong but did not know whether she had any kind of contract with Mr. Glazner. He said that most of the staff of Thai women had been in Australia for six to 12 months before Mr Glazner met them.

19. The Applicant said that Mr Glazner's case lasted over three weeks and that he, the Applicant, pleaded guilty to the charges against him on his barrister's advice. He said he pleaded guilty because he did not want to become embroiled in the three week trial and because he had been asked to "go witness" against Mr Glazner.

20. The Applicant said that he made a decision to leave the prostitution industry between September and November 1998 and advised the Department of Fair Trading accordingly.

21. He maintained that he should be regarded as a fit and proper person to be a migration agent because his convictions arose when he was only 22 or 23 and his life has changed, he has learned a great deal and he is simply interested in becoming knowledgable about migration law. He stressed that migration law is very broad and he is particularly interested in the skilled migration area. He noted that he began his migration studies when he had cancelled his manager's licence in 1998.

22. In cross-examination the Applicant told the Tribunal that he is now employed by a financial broking and consulting business owned by Alex Ilieff. He said that he has been with him officially for two years and works purely on a commission basis, last year earning $25,000 working full-time.

23. The Applicant said that when he made his initial application to the Respondent he had limited funds and could not afford the fee-paying option. He said that at present he simply wants to see whether the Tribunal considers him to be a fit and proper person. He will then decide whether he wants to be a fee charging migration agent. The Applicant said that he has studied real estate but is no longer registered as a real estate agent having had a "corporation" licence, which has now expired.

24. The Applicant said that since being in Sydney he has visited brothels regularly and in particular a brothel at 57 Reservoir Street, Surry Hills run by Damien Schaeffer, known to the Applicant through the brothel industry in Melbourne. He said that he and Mr Schaeffer are friends, that he recently had lunch with him and saw him at the brothel about two months ago.

25. The Applicant said that he has discussed entering the brothel industry in Sydney with a range of brothel owners. He said that when he first came to Sydney and was working for himself as a finance broker, he targeted brothels as a specialised area. He said that he has particular expertise in how brothels are run and was therefore able to target the industry for financial services.

26. The Applicant told the Tribunal that he has seen Korean and Japanese women but no Thai women working at the Surry Hills brothel. He said that he is friends with Jason Stevens, the owner of the Surry Hills brothel building and is also friends with his girlfriend.

27. The Applicant initially refused to answer when asked in cross-examination whether he had any business dealings with Jason Stevens. Eventually the Applicant said that he and Mr Stevens are business associates and have discussed the possibility of him entering the brothel industry in New South Wales. He said he is currently considering taking an active role in the brothel industry in New South Wales. The Applicant said that 18 months ago he worked as a receptionist on a casual basis, on weekends, at the Surry Hills brothel for a period of two to three months.

28. The Applicant said that he first came into contact with the Surry Hills brothel as a client and then became friendly with the receptionist who helped him attain the casual employment. He told the Tribunal that he advertises financial services in certain magazines that specialise in prostitution services. He also said that he knows as a matter of general knowledge that the Korean and Japanese women at the Surry Hills brothel are on working holiday visas.

29. The Applicant denied that the reason he wanted to be a migration agent was to obtain visas for women to work in brothels. He told the Tribunal that he is interested only in the skilled business migration area.

30. In relation to Ms Saithong, who the Applicant visited in a detention centre, he said that he understood she had been detained because she did not have a working visa. He said that Ms Saithong's detention in April 1998 was his first experience of migration issues. During cross examination, the Applicant said that Ms Saithong never discussed her working arrangements with him, that they "did not go that deep" and did not discuss much.

31. The Applicant said that he spent the first few days of his 10 day trip to Thailand with Ms Saithong until they had a disagreement. He said he then spent the rest of the time with Mr Glazner who spoke with some women. The Applicant told the Tribunal that he did not know what the discussions were about. He said he had intended to stay in Asia and travel but as he did not have sufficient funds he returned with Mr Glazner. The Applicant initially said that by the time he went to Thailand in October 1998 he was no longer involved in the brothel and had surrendered his licence. On reflection the Applicant said that he may have suspended his licence shortly after he returned from Thailand. He said that on his return he did not manage the brothel but did some driving for the women working at the brothel. He repeated that he pleaded guilty to the charges against him because his lawyers suggested that he should.

32. The Applicant said that Mr Glazner was unaware that he was trying to leave the business and that he was not privy to Mr Glazner's business dealings in Thailand.

33. When asked about a discussion between Mr Glazner and a woman called Honey, at which he was present the Applicant said that he did not know that Mr Glazner had arranged for Honey to come to Australia from Thailand and had no recollection of driving to Sydney with Honey and Mr Glazner.

34. The Applicant conceded, in cross-examination, that he had a fair idea that Mr Glazner's activities were illegal. He said that from April 1998 when Ms Saithong went into detention he realised that things were not legal but that he continued to help out, having a manager's licence, and driving the women when necessary. He said he knew that there were women working illegally.

35. The Applicant also conceded that on one occasion he walked to his car with a man called Wayne, who was Honey's partner, and gave him a letter from his glove box. He said at the time he was not aware of the contents of the letter and that he was just the messenger. He conceded that the letter was a withdrawal of an application for refugee status.

36. In relation to the references tendered into evidence by the Applicant, he confirmed that none of the referees were available for cross-examination, stating that they are very busy people. The Applicant conceded that one of the referees is his sister and that the remaining references are from migration agents and are all drafted in the same terms having been written initially by one of the agents and circulated and signed amongst the others.

RESPONDENTS' EVIDENCE

37. The Respondent's evidence included documents produced by the Victorian police in response to a summons (Exhibit T2). The documents arose from the prosecution of the Applicant and of Mr Glazner and included statements by the licensee of the brothel at 466 City Road, South Melbourne, various brothel managers, various sexual service providers, immigration compliance officers and police.

38. In particular, the statement of Thepthong Julkhampha stated that most of the Thai women working for Mr Glazner at 39 Topp Street were "contract girls". These women did not get paid for the first 500 jobs, a job being a half hour sexual service, and after that received a percentage of their earnings. In addition they were required to work for Mr Glazner for one year. An alternative contract was that they perform 800 jobs with no payment and then are free. Ms Julkhampha's statement was also to the effect that the Thai women surrendered their passports to Mr Glazner, were given no keys to the premises in which they resided and were required to ask permission of Mr Glazner in order to leave the premises. The statement also said that Mr Glazner had placed steel bars on the windows of the premises in which they resided and that the premises were locked at night.

39. The statement of sexual service provider Arunsri Atcha details meeting Mr Glazner in Thailand and discussing with him the terms of the contract under which she would work in his brothel in Australia. Her statement details being brought to Australia by Mr Glazner and being driven to the casino in Melbourne from her residence by the Applicant. She also details meetings with a solicitor and Mr Glazner to devise a basis for an application by her for refugee status. Her statement confirmed the living and contract arrangements set out in Ms Julkhampha's statement.

40. The statement of sexual service provider Warithon Srisawang details meeting Mr Glazner and the Applicant at Sydney Airport after arriving from Thailand, and travelling with them by plane to Melbourne.

41. The statement of Wayne Jones, now the husband of Ms Srisawang, describes visiting the Ferrars Street premises as a client and the Applicant answering the door.. He also describes having been provided by the Applicant with a letter withdrawing Ms Srisawang's application for refugee status.

CONSIDERATION

42. Section 290 of the Act prohibits the registration of a person as a migration agent if the Respondent is not satisfied that the person is a fit and proper person to give immigration assistance or the person is not a person of integrity. The matters which, pursuant to section 290(2), must be taken into account by the Respondent in it's consideration of this question include any criminal conviction of the person relevant to the issue of his or her fitness or integrity. As to the question of whether the person is fit and proper, the Respondent is not limited in its consideration to the matters outlined in section 290 and may take into account any other matter relevant to that question.

43. The Respondent, in its submissions to the Tribunal, referred to the decision of Prasad v Migration Agents Registration Authority [2002] AATA 423 and, in particular, to the following passage in that decision:

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

44. The Respondent submitted that the role played by registered migration agents is central to the integrity of Australia's migration programs. This is because migration agents advise and represent a particularly vulnerable group of consumers whose English language skills are limited, whose motivation to remain in Australia is extremely high and who have little or no knowledge of Australian administrative and legal processes. In this regard, the Respondent referred the Tribunal to the decision of the High Court in Cunliffe v Commonwealth of Australia (1994) 182 CLR 272 in which Mason CJ said:

"The acknowledged purpose sought to be achieved by Pt 2A is to bring about an improvement in ``standards of professional conduct and quality of service" on the part of migration agents, that being the statutory object according to the minister's second reading speech. Part 2A seeks to achieve that object by protecting aliens from incompetent and unscrupulous advisers through the introduction of a regulatory regime which is designed to ensure that those who advise and represent aliens are competent and are persons of integrity."

45. The Tribunal accepts these submissions as sound and has had regard to the passages from the decisions cited above.

46. There is no dispute that the Applicant was convicted after pleading guilty to two counts of assisting in the carrying on of a prostitution service providing business reckless as to whether the service provider was licensed. The Applicant maintained to the Tribunal that he was not in fact guilty of these offences and had entered his plea for other reasons. However, it is not available to him to now seek to retract that admission of guilt.

47. The Tribunal has no option but to adopt Buchanan J's findings in Glazner [supra] in relation to the activities of Mr Glazner.

48. There is no dispute that the Applicant associated with Mr Glazner and worked, as a manager, in the brothels run by him. He travelled to Thailand with Mr Glazner and also accompanied him and a woman who had just arrived from Thailand from Sydney Airport to Melbourne. He also transported the Thai women working in the brothels when required. He formed a close relationship with one of the sexual service providers working at the brothel and, when she was placed in detention, visited her some 14 times.

49. The Applicant urged the Tribunal to accept that he has changed his life and has learnt a great deal. However, his evidence was that he is now actively negotiating his entry into the brothel industry in New South Wales.

50. While the Applicant denied any knowledge of the arrangements under which the Thai women worked in the brothels run by Mr Glazner, he was nevertheless, on his own evidence, present during discussions between Mr Glazner and others concerning the arrangements for withdrawal of an application for refugee status. The Applicant was in a close relationship with one of Mr Glazner's Thai sexual service providers, took part in the running of the business at least to the extent that he counted the day's takings and now professes to have particular expertise in how brothels are run. These matters do not sit well with the Applicant's insistence on his lack of awareness of Mr Glazner's activities.

51. More disturbing is the Applicant's admission that he "had a fair idea" that Mr Glazner's activities were illegal and that, at least from the time of Ms Saithong's detention in April 1998, he knew that the women were working illegally. The Tribunal notes the Applicant's evidence was that he did not cancel his manager's licence until he returned from Thailand in October 1998 and even then did some driving for Mr Glazner.

52. As per Prasad (supra), "integrity, honesty, diligence and professionalism" with "soundness of moral principle and character" are required of the Applicant in order to be registered as a migration agent. The Applicant's renewed plans for involvement in the brothel industry, coupled with his knowledge of the unlawfulness of Mr Glazner's activities and his continued association with him for more than six do not support the view that the Applicant meets the requirements set out in Prasad [supra].

53. At best, the Applicant's judgement was poor and there is no evidence to suggest that it has improved since the time of his convictions. It would be, keeping in mind the particular vulnerability of the consumers of a migration agent's services, against the purpose of the regulatory scheme as described by Mason J in Cunliffe [supra] to allow the Applicant to advise and represent members of that vulnerable group.

54. For the reasons outlined above the Tribunal considers the Applicant not to be a fit and proper person to give immigration assistance. It follows that, pursuant to section 290 of the Act he must not be registered as a migration agent.

DECISION

55. The Tribunal affirms the decision under review.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N. Bell, Member

Signed: A. Krilis

Associate

Date/s of Hearing 30 April 2003

Date of Decision 24 July 2003

Representative for the Applicant Self

Solicitor for the Respondent Ms Sharon Hanstein