New South Wales Bar Association v Osei [2006] NSWADT 35 (3 February 2006)

Last Updated: 3 February 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL LEGAL SERVICES DIVISION

CITATION: New South Wales Bar Association v Osei [2006] NSWADT 35


PARTIES: APPLICANT
The Council of the New South Wales Bar Association
RESPONDENT
Kofi Ameyaw Osei



FILE NUMBERS: 042010, 042039 and 042040

HEARING DATES: 15/08/2005-18/08/2005

SUBMISSIONS CLOSED: 12/09/2005



DECISION DATE: 03/02/2006

BEFORE: Officer D QC - Judicial MemberRobinson WL QC -Judicial MemberMara A - Non Judicial Member





LEGISLATION CITED: Legal Profession Act 1987
Migration Act 1958 (Cth)

CASES CITED: A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253
Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Bonds & Securities (Trading) Pty Limited v Glomex Mines NL (1971) 1 NSWLR 879
Cameron v Bar Association of New South Wales (2002) NSWSC 191
Law Society of New South Wales v Harvey (1976) 2 NSWLR 154
Malfanti v Legal Profession Disciplinary Tribunal (CA (NSW), 23 August 1993, unreported)
Murphy v New South Wales Bar Association (2001) NSWSC 1191
New South Wales Bar Association v Abdul-Karim (2003) NSWADT 205
New South Wales Bar Association v Amor-Smith (2003) NSW ADT 239
New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279
New South Wales Bar Association v Murphy [2002] NSWCA 138; (2002) 55 NSWLR 23
New South Wales Bar Association v Somosi (2001) NSWSC 285
New South Wales Bar Association v Stevens (2003) NSWSC 261
New South Wales Bar Association v Young (2003) NSWSC 228
O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204
Re Mayes and Legal Practitioners Act (1974) 1 NSWLR 19
Tyrrell v Bank of London (1862) 10 HLC 26

APPLICATION: Professional Misconduct - improperly induce client to invest funds
Professional Misconduct - mislead client
Professional Misconduct - mislead Law Society/Bar Association/LSC
Unsatsifactory Professional Conduct - fail to advance and protect the interests of client

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
P Skinner, Barrister

RESPONDENT REPRESENTATIVE: RESPONDENT
No appearance

ORDERS: 1.Information 042010 is dismissed
2.The Respondent is guilty of professional misconduct in providing false and misleading responses to the Bar Council by letter dated 28 June 2002 as particularised in Grounds 1 and 2 of Information 042039
3. The Respondent is guilty of unsatisfactory professional conduct in failing to advance and protect the interests of his clients when he appeared for them in the Refugee Review Tribunal on 10 September 2001 as particularised in Information 042040
4. The matters 042039 and 042040 are listed on Thursday, 2 March 2006 at 9.30a.m. for directions in relation to penalty


Reasons for Decision:

REASONS FOR DECISION

Background

1 Kofi Ameyaw Osei was admitted as a barrister of the Supreme Court of New South Wales on 7 February 1992. He was issued with a Practising Certificate on 8 March 1992 and held a Practising Certificate continuously until 30 June 2004 when his Practising Certificate expired. It has not been renewed.

2 At all relevant times the Barrister carried on his practice from premises known as Downing Chambers, 9th Floor, 307 Pitt Street, Sydney. That was his Chambers address as notified to the Bar Association, that appeared on his Barrister's letterhead and stationery, that appeared on the Chambers and in the foyer of the building and was otherwise so utilised by him as the relevant address for his practice as a barrister.

3 The Barrister was also a registered Migration Agent under the Migration Act 1958. The Barrister and his wife were shareholders and directors in Caprock International Pty Limited which, at least from 1997 to 2004, also carried on business from Level 9, 307 Pitt Street, Sydney. Its business included carrying on business as Caprock Immigration Consultants.

4 Lloyds International College was an educational institution owned and operated by Caprock International Pty Limited. It was a college which operated in Sydney for international students and, apparently, was a fully accredited English college and a fully accredited business and information technology college. Courses were delivered to a large number of overseas students and it operated its classrooms, laboratories, IT workshop, offices and other facilities out of premises, including at 307 Pitt Street, Sydney.

5 Alberto Bautista, aged 43, his wife Jocelyn, aged 40, and their three teenage children arrived in Sydney from the Philippines on 1 November 1999. They possessed three month tourist visas which were due to expire in January 2000. In January 2000 their tourist visas were extended until 30 June 2000. The Bautista family consulted Mr Osei/Caprock International Pty Limited/Caprock Immigration Consultants. There is an issue in this case as to the capacity in which Mr Osei acted from time to time, and whether it was as a barrister or as a migration agent.

Grounds of Complaint

6 There are three Informations by the Council of the New South Wales Bar Association against Mr Osei. The first is No. 042010 and alleges that the practitioner was guilty of professional misconduct on two grounds, which were particularised as follows:

"Ground 1
The practitioner knowingly and deliberately mislead Mr Alberto Bautista and Ms Jocelyn Bautista when, on or about 22-27 February 2001, he advised them that investment in the organisation Lloyds International College in which the practitioner held an interest would assure Mr and Mrs Bautista of success in their migration applications.
Particulars
(a) As at 22 February 2001 and all material times Lloyds International College was a business conducted under that name by Caprock International Pty Limited, ACT [sic] 060 771 556, ("Caprock"). Its principal place of business was level 9, 37 Pitt Street, Sydney.
(b) As at 22 February 2001 and all material times Caprock also conducted a business known as Caprock Immigration Consultants, principally from Level 9, 37 Pitt Street, Sydney.
(c) Prior to 27 February 2001 the practitioner owned one of the two ordinary shares issued in Caprock.
(d) As at 22 February 2001 and all material times the practitioner was a director of Caprock.
(e) As at 22 February 2001 and all material times Mr Alberto Bautista and Ms Jocelyn Bautista were clients of Caprock Immigration Consultants. As at 22 February 2001 their immigration status in Australia was that they and their three daughters held a Bridging Visa valid for 35 days from 18 January 2001, the date of a letter to them from the Department of Immigration and Multicultural Affairs ("the Department") advising them of the refusal of their application for a Temporary Business Entry (Class UC) Visa, lodged on their behalf with the Department by Caprock Immigration Consultants on 22 June 2000.
(f) On 22 February 2001 Caprock Immigration Consultants lodged on behalf of Mr Bautista and his family an application for a Protection (Class XA) Visa.
(g) At all material times the practitioner let it be known to Mr and Mrs Bautista that he was a barrister, as well as a registered Migration Agent.
(h) On or about 22 February 2001 the practitioner advised Mr and Mrs Bautista that investment in Lloyds International College by purchasing a 10% interest in the business would ensure that the Department would grant to them and their family a Visa allowing them to stay in Australia.
(i) Acting upon the advice of the practitioner, on 27 February 2001 Mr an Mrs Bautista purchased from their bank and provided to the practitioner a bank cheque for the sum of $150,000.00 payable to Lloyds International College.
(j) After appropriate process in respect of the application for a Protection Visa and a further application by Caprock Immigration Consultants for the exercise of the Minister's discretion, the Department rejected all Visa applications by and on behalf of Mr and Mrs Bautista and their family.
Ground 2
The practitioner improperly induced Mr Alberto Bautista and Ms Jocelyn Bautista, on or about 22-27 February 2001, to invest funds in the sum of $150,000.00 for which they received 150,000 shares in Caprock International Pty Limited, ACN 060 771 556, a company in which the practitioner and his wife held a controlling interest.
Particulars
(a) Particulars (a) to (j) in Ground 1, above, are repeated.
(b) The bank cheque provided to the practitioner on 27 February 2001 specified the payee as Lloyds International College. Without the informed consent of Mr and Mrs Bautista the cheque was applied to the capital of Caprock by way of the issue of 150,000 ‘A' Class shares in Caprock to Mrs Bautista."

7 In relation to this Information the Barrister, through his then solicitor, Mr Cuddy, filed a Reply dated 7 May 2004 in the following terms (relevantly):

"Ground 1
The practitioner denies this ground.
The practitioner admits particulars subtended to this ground, as follows:
(a) that at February 2001, Caprock was the proprietor of the College, but not otherwise,
(b), (c), (d),
(e) but only as at 22 February 2001,
(f)
(i) that Mr and Mrs Bautista provided a bank cheque for the sum of $150,000 payable to the College, but not otherwise,
(j)
The practitioner does not admit particulars (g), (h) subtended to this ground.
The practitioner denies that the purchase of the shares in Caprock was done with his advice or that he received the subscription price for the shares.
Ground 2
The practitioner denies this ground.
The practitioner repeats his answers given in respect of particulars repeated from Ground 1 in (a).
In answer to particulars (b), the practitioner admits:-
3. The cheque was applied to the capital of Caprock, and paid into the Lloyd International College account.
150,000 A Class shares in Caprock were issued to Mrs Bautista
The practitioner denies he was the payee of the cheque, and otherwise does not admit this particular."

8 By Information 042039 the Bar Association alleged that the practitioner was guilty of professional misconduct upon two further grounds particularised as follows:

"Ground 1
The practitioner provided a misleading and false response to the Bar Council by stating in his letter dated 28 June 2002 that he did not take part in the preparation of the application for a protection visa made by Mr Alberto Bautista and his wife and three daughters in February 2001 when in fact he drafted the Statement of Claim that formed the basis of that application.
Particulars
(a) As at 22 February 2001 and all material times Caprock International Pty Ltd, ACN 060 771 556, (‘Caprock') conducted a business known as Caprock Immigration Consultants, principally from Level 9, 37 Pitt Street, Sydney.
(b) Prior to 27 February 2001 the practitioner owned one of the two ordinary shares issued in Caprock.
(c) As at 22 February 2001 and all material times the practitioner was a director of Caprock.
(d) As at 22 February and all material times the practitioner was a registered Migration Agent.
(e) As at 22 February 2001 and all material times Mr Alberto Bautista and Ms Jocelyn Bautista were clients of Caprock Immigration Consultants. As at 22 February 2001 their immigration status in Australia was that they and their three daughters held a Bridging Visa valid for 35 days from 18 January 2001, the date of a letter to them from the Department of Immigration and Multicultural Affairs ("the Department") advising them of the refusal of their application for a Temporary Business Entry (Class UC) visa, lodged on their behalf with the Department by Caprock Immigration Consultants on 22 June 2000.
(f) On 22 February 2001 Caprock Immigration Consultants lodged on behalf of Mr Bautista and his family an application for a Protection (Class XA) Visa. The application was in the form of a three page document entitled ‘statement of claim'
(g) The practitioner had taken instructions from Mr Bautista and his family in a conference on 16 February 2001, making a file note of those instructions.
(h) The practitioner acknowledged to the Migration Agents Registration Authority when being investigated in relation to the application for protection visa that he had taken part in assisting the drafting of the statement of claim.
(i) In a letter from the practitioner to Bar Council dated 28 June 2002 the practitioner stated:

‘5.3 I did not personally prepare any of the applications ...’

Ground 2
The practitioner provided a misleading and false response to the Bar Council by stating in his letter dated 28 June 2002 that he did not take part in the preparation of the submissions by Caprock Immigration Consultants to the Minister for Immigration dated 21 December 2001 when in fact he participated in the preparation of a statutory declaration of Ms Jocelyn Bautista in support of the submissions.
Particulars
(a) Particulars (a) to (f) in Ground 1, above, are repeated.
(b) On 7 June 2001 the application was refused by the Department.
(c) On 16 October 2001 an appeal by the Bautistas to the Refugee Review Tribunal was rejected.
(d) By letter dated 22 December 2001 to the Minister for Immigration and Multicultural Affairs submissions were made on behalf of the Bautista family by Caprock Immigration Consultants.
(e) In a letter from the practitioner to Bar Council dated 28 June 2002 the practitioner stated:

‘5.3 I did not personally prepare any of the applications nor the submissions to the Minister.’

and later in the same letter:

‘I did not draft or settle the ministerial submission. By administrative error the submission went over my number 71062.'

(f) In a letter on behalf of the practitioner by his solicitors to Bar Council dated 7 May 2004 it was acknowledged however that the practitioner took instructions from Mr and Mrs Bautista in relation to the preparation of that letter, and that he:

‘... was only involved in settling part of the drafts of the material to be the basis for the statutory declarations which accompanied the submission itself.'

9 By a further Information No. 042040 the Bar Association alleged that the practitioner had been guilty of unsatisfactory professional conduct on the grounds particularised as follows:

"Ground
The practitioner failed to advance and protect the interests of Mr Alberto Bautista and Mrs Jocelyn Bautista when, on 10 September 2001, he appeared with them and on their behalf in the Refugee Review Tribunal.
Particulars
(a) The practitioner was engaged for a fee by Mr and Mrs Bautista to appear with them and on their behalf in the hearing by the Refugee Review Tribunal on 10 September 2001 of the Bautistas' application for review of the decision by the Department of Immigration and Multicultural Affairs refusing to grant to them protection (Class XA) visas.
(b) In the hearing the practitioner interjected when warned not to by the Tribunal, and when warned that his leave to appear would be withdrawn if he continued to interject, continued to do so. When his leave to appear was then withdrawn he initially refused to depart the hearing room, only doing so upon the intervention of an officer of the Tribunal at the request of the Tribunal.
(c) Once ejected from the hearing room the practitioner departed the building leaving the Bautistas unrepresented and unable to be advised by him.
(d) After the hearing on 10 September 2001, the Tribunal faxed to the practitioner a letter giving him until 14 September 2001 to lodge final written submissions on behalf of his clients. He did not do so.
(e) Nonetheless, he charged the Bautistas a fee for his acting for an [sic] on their behalf."

The Hearing - in the Absence of Mr Osei

10 Matter No. 042010 was originally listed for hearing in the Tribunal over three days commencing 14 December 2004. Mr Cuddy, solicitor, represented Mr Osei in those proceedings.

11 The Bar Association then wished to file fresh Informations, involving a further three complaints and wished to lead evidence from five fresh witnesses. Their witness statements were provided to Mr Cuddy.

12 The Informations in No. 042039 and 042040 were filed on 24 December 2004 and sent to Mr Cuddy as solicitor for Mr Osei, upon the assumption that he had instructions to accept service. He did not suggest otherwise, and never has done.

13 On 16 February, Mr Cuddy appeared for the Respondent at a directions hearing in the Tribunal and consented to the said two new Informations being joined to the hearing of Information 042010 and he consented to the three Informations being set down for hearing on 15 August 2005. He further consented to replies being filed for the two new Informations by 8 April and that the Respondent's affidavits be filed by 27 May.

14 By letter dated 8 April 2005 Mr Cuddy advised the Registrar and the solicitors for the Applicant that:

"We did not file responses in relation to the two later Informations as we have not received instructions from our client and we have given him notice that we cease to act on his behalf.
Please remove this firm as the address for service of Mr Osei."

15 By letter dated 19 April 2005 to the Tribunal, Mr Osei, then apparently Deputy Minister for Trade and Industry, Republic of Ghana, asserted that the proceedings by the Bar Association involved conduct by Mr Osei in his capacity, not as a barrister, but as a Migration Agent and that the very same complaints had been investigated by the Migration Agents Registration Authority ("MARA") and he had been cleared of any wrongdoing. He asserted that he did not hold a Practising Certificate in New South Wales or elsewhere within the Commonwealth of Australia and he did not propose to apply for one, either then or at any time in the future. He indicated that he was prepared to undertake, as appropriate, that he would not then or in the future seek to practise as a barrister, solicitor or legal practitioner in New South Wales or anywhere else within the Commonwealth of Australia. He asked that on that basis the then current proceedings be terminated.

16 By letter dated 22 April 2005 the Ghana Consulate General, Sydney, asserted that Mr Osei "asserts and claims diplomatic immunity in respect of the proceedings in the Tribunal". The Department of Foreign Affairs and Trade, by letter of 27 April 2005, advised the solicitors for the Bar Association that Mr Osei had not been accredited to Australia as a diplomat and that accordingly, "it is very unlikely that he enjoys any diplomatic privileges or immunities in Australia". The said letter advised that pursuant to Convention:

"An honorary consular officer enjoys immunity from jurisdiction of the judicial or administrative authorities of Australia in respect of acts performed in the exercise of consular functions, with limited exceptions."

The letter further advised that "the entitlement to claim immunity generally ceases when the person leaves the territory".

17 In the present case, it is noted that no-one appeared before this Tribunal on behalf of Mr Osei to advance any claim for diplomatic immunity. It is also noted that none of the conduct complained of was in any way linked to or associated with the performance by any person of any consular function and indeed, on the evidence before this Tribunal, the complained of conduct occurring as alleged in 2001 and 2002 was at a time when Mr Osei had no consular status at all. Any claim for diplomatic immunity is rejected.

18 On 19 May 2005 this Tribunal made orders permitting the Bar Association to proceed with the said hearing and for it to be conducted despite the Barrister's foreshadowed failure to appear.

19 When the matter came on for hearing on 15 August 2005 Mr Osei did not appear and the hearing proceeded in his absence.

20 The Tribunal received some 28 exhibits (including affidavits) and heard oral evidence from Alberto Bautista, Hyun Ya Kim, Roderick James Murray, Jocelyn Bautista and Messrs Seo and Karamoah.

Overview

(a) General

21 As previously recorded, the Bautista family arrived in Australia from the Philippines in November 1999 on a three month tourist visa, which was due to expire in January 2000. In January 2000 the tourist visa was extended for six months, due to expire in June 2000. This extension of the visa was obtained by the Bautista family with the assistance of a Filipino solicitor, Lolita Farmer.

22 On 16 February 2000 the Bautistas met Mr Osei through a friend, who had been the Bautistas' neighbour in the Philippines. The Bautistas met with Mr Osei for advice on lodging a Temporary Business Entry Visa. Between February and June 2000 the Bautistas made payments of fees towards this visa application totalling some $6,000.

23 On 22 June 2000 an application for such a visa was lodged with the Department of Immigration and Multicultural Affairs. The sponsor was a Mr Tagel.

24 On 18 January 2001 the Department of Immigration and Multicultural Affairs refused the said visa application.

25 On 24 January 2001 Caprock Immigration Consultants, on Caprock International Pty Limited letterhead, advised the sponsor, Mr Tagle, and Mrs Bautista of the decision and also advised that any review application to the Migration Review Tribunal had to be made within 28 days from 18 January 2001, in default of which any such application would be statute barred.

26 There was difficulty between the Bautistas and the sponsor, the latter, apparently, not wishing to continue the sponsorship. Mr Osei appreciated that the last day for lodging an application for review was 15 February 2001. Caprock again wrote to Mrs Bautista on 9 February 2001 requesting urgent instructions by 15 February. This letter followed a conference with Mrs Bautista on 8 February 2001. No such application was lodged. The circumstances of such failure to do so are referred to below.

(b) Discussions of 16 February 2001

27 The discussions which occurred on this day are important to an understanding of what transpired between the parties, and to three of the grounds of complaint before this Tribunal. The details of the discussions will be referred to below. For present purposes it is sufficient to record the following.

28 On 16 February 2001 the time for lodging with the Migration Review Tribunal an application for review of the refusal, dated 18 January 2001, of the temporary business entry - 457 subclass visa had expired. The Bautistas held a bridging visa, valid for 35 days from 22 January 2001 and unless things changed, at the end of that period they were liable to be deported. Discussions took place between Mr and Mrs Bautista and Mr Osei on 16 February 2001 at Mr Osei's said offices. Mr Osei kept notes of the discussions which are in evidence.

29 The exhibits include a letter from Caprock Immigration Consultants, dated 16 February 2001 to Mr Bautista, confirming instructions to prepare an urgent protection visa application for himself and his dependants. The letter continues: "We confirm our advice in conference today that the application is not likely to succeed in the absence of evidence in support of your claim". The letter goes on to confirm that Mr Bautista would attend Caprock's office in conference on Monday (19 February).

30 Other notes, apparently also dated 16 February 2001, speak of articles from the Internet about Mr Estrada (the former President of the Philippines) and that succeeding in the protection visa application would not be easy and would fail unless there was evidence of the relationship. The note records instructions to prepare and lodge (the application). The said notes are in the handwriting of Mr Osei.

31 Also dated 16 February 2001 in Mr Osei's handwriting is a document headed "Draft Statement of Claim". It is clearly the forerunner of a formal application for a protection visa which was lodged with the Department of Immigration and Multicultural Affairs.

32 Though the evidence in relation to the discussions on 16 February 2001 given by Mr and Mrs Bautista and the documentary material, some of which has emanated from Mr Osei, requires close scrutiny, and which is discussed below, this Tribunal is satisfied that on that day several matters of substance were discussed between the parties. The first matter of substance was that the time for the lodging of the application for review of the refusal of 18 January 2001 had expired and that the Bautistas would shortly become exposed to the risk of deportation.

33 The second matter discussed was the fact that as at 16 February 2001 the only application for a visa which could then be made, in substance, was a protection visa. What was discussed was a visa to permit the Bautistas to stay in Australia upon the basis that Mr Bautista's late mother was a cousin to the former President of the Philippines Joseph Estrada's mother, and that by virtue of the family relationship and the political landscape in the Philippines, Mr Bautista and his family were at risk of persecution, intimidation, harassment and violence if they returned to the Philippines.

34 The claim in the protection visa application was false and was known by the Bautistas to be false at the time it was made. They have readily admitted as such and did do in the evidence before this Tribunal.

35 It was, however, in this context that instructions were given to Mr Osei to prepare the protection visa application and no doubt in this context that he wrote to them that the application had no likelihood of success because of the absence of corroborating evidence of the relationship between Mr Bautista's mother and President Estrada. A letter of instruction, signed by Mr Bautista on 19 February 2001 and addressed to Caprock Immigration Consultants, confirms the advice that the application has "no hope of success because of lack of corroborative evidence such as birth certificates linking me to former President Estrada". The document nevertheless instructs Caprock Immigration Consultants to make the application "because my sister will forward the supporting documents later".

36 The other matter of significance discussed on 16 February 2001, this Tribunal finds, is a longer term strategy to assist in the Bautistas being able to remain in Australia. Because of the passing of the time limit for the review application on 15 February the Bautistas needed both a short term strategy (the protection visa) and a longer term strategy in the foreshadowed probability that the short term strategy would fail because it was based on a falsehood and based on a premise which had no corroborative evidence to support it. The long term strategy was an application for an Established Business in Australia visa, subclass 845, which required before the application could be made an investment of certain proportions in a business in Australia. The details of this discussion and the Tribunal's findings are set out below.

37 The protection visa application was lodged with the Department on 22 February 2001.

(c) The Bautistas' Investment

38 On 27 February 2001 the Bautistas paid to Lloyds International College the sum of $150,000. An application for 150,000 A Class shares was signed by Mrs Bautista and addressed to the company and subsequently and there was a meeting of directors of the company which resolved to issue those shares to Mrs Bautista. It also resolved that she be appointed a director. The Articles of Association of the company were also altered so as to entitle the A Class shareholders to certain voting rights, dividend rights and, on a winding up, to receive a distribution of all surplus assets remaining after the repayment of the paid-up share capital, each right being expressed in terms of the fraction of 1:1500. The detail and significance is discussed below.

39 A share certificate in Caprock International Pty Limited was issued to Mrs Bautista. The company's record thereafter reflected the above position, as did the relevant records of ASIC.

(d) Refusal of Protection Visa

40 On 7 June 2001 the Department of Immigration and Multicultural Affairs refused the protection visa applications. Caprock Immigration Consultants was instructed to prepare an application for review by the Refugee Review Tribunal. By letter dated 19 June 2001 to Mr Bautista, he was advised by Caprock that "If you do not provide the documentary evidence to prove your relationship with former President Estrada, your application will fail again".

41 On 27 June 2001 the application for review was lodged with the Refugee Review Tribunal.

42 On 3 September 2001 the hearing of the review application was listed before the said Refugee Review Tribunal. The hearing was adjourned to 10 September 2001.

43 On 10 September 2001 the hearing before the Tribunal took place. The Bautistas were represented by Mr Osei. What occurred on that occasion is the subject of the third Information and concerned Mr Osei's conduct before that Tribunal. This Tribunal has received in evidence a transcript of the hearing before the Review Tribunal and has also had the benefit of listening to a transcript of the said proceedings. There is no doubt that Mr Osei was acting for Mr and Mrs Bautista at the review hearing. It was made clear by the Tribunal Member, at the very beginning of the hearing that the procedure would be that the Tribunal Member would ask the Bautistas questions and give them an opportunity to expand on their beliefs. The Tribunal Member said: "At the end of the hearing, I will give you and your advisor opportunities to make any final remarks that you wish to make". Later, and before asking the foreshadowed questions, the Tribunal Member asked Mr Osei whether he had any preliminary matters or submissions to make at that stage. Mr Osei replied in the negative.

44 After some questions were put to Mr Bautista by the Tribunal Member, an exchange occurred in the following terms between the Tribunal Member, Mr Russell, and Mr Osei:

"Mr Russell: Mr Bautista, I don't accept your claim that this individual was murdered in November 2000 because according to the information that was sent to you in [sic] your advisor by the Tribunal on 20 August this year, according to the son of one of the - sorry, to one of the son's [sic] of Estrada, Estrada's family has received death threats but there was no documentation that any murders or death threats occurred with respect to any of the immediate or extended family of Estrada and therefore, I suggest that your claims are at odds with that independent evidence. Would you like to comment?
Mr Bautista: I have some documents here with me. I'll like to show the document, please.
Mr Russell: That's fine, but first of all, could you please reply to my comment?
Mr Osei, please, I'll wait.
Mr Osei: No, no, but you mentioned ---
Mr Russell: Mr Osei, please.
Mr Osei: But you mentioned advisor. Excuse me, sir.
Mr Russell: Excuse me, I gave you leave to make representations at the end ---
Mr Osei: Well, I'm seeking leave because ---
Mr Russell: No ... No, it's refused ---
Mr Osei:--- because you mentioned my name - you mentioned advisor and you had sent documents to him - an adviser. I would like to ---
Mr Russell: Mr Osei! Excuse me - I'll wait - you can make your representations at the end.
Mr Osei: If you are not going to give me an opportunity then I will be submitting that these proceedings ---
Mr Russell: Excuse me!
Mr Osei: --- are not being held fairly.
Mr Russell: That's fine.
Mr Osei: I would like to take my leave. Can you give us time so I can seek instructions from my client. You don't want to give me ---
Mr Russell: No.
Mr Osei: Excuse me.
Mr Russell: The hearing is proceeding. I will give you representation time at the end of the hearing as indicated.
Mr Osei: Then don't make assertions that you have send documents to the adviser without me having the opportunity to comment. This is a denial of the rules of natural justice. You are denying us procedural fairness, sir.
Mr Russell: Well, guess what?
Mr Osei: What.
Mr Russell: Documents were sent to you and the applicant on 20 aug. Do you deny that?
Mr Osei: No, but I would like to comment on that.
Mr Russell: You will have a chance at the end of the hearing. Thank you! Could you please answer my question?
Mr Osei: You are putting things to the applicant - I am sitting here - you are making claims for the applicant ---
Mr Russell: Mr Osei! One more statement and you will leave the rooms.
Mr Osei: I am quite happy to go if you give me an opportunity to confer with my client. Now ---
Mr Russell: No.
Mr Osei: --- is this going to be a kangaroo tribunal or are you going to give us, the applicant, a fair opportunity to state his case?
Mr Russell: Mr Osei, I have given you a chance.
Mr Osei: You aren't giving me a chance
Mr Russell: Okay. Would you please leave.
Mr Osei: You haven't given me ---
Mr Russell: Would you please leave.
Mr Osei: Can I have opportunity with my client?
Mr Russell: No.
Mr Osei: Why not?
Mr Russell: No.
Mr Osei: This is my application to the Tribunal. You, you are ---
Mr Russell: Can you please leave Mr Osei?
Mr Osei: You are holding this - can I have an opportunity with my client?
Mr Russell: No, Mr Osei.
Mr Osei: This is an application.
Mr Russell: Mr Osei! Do you want me to have a hearing officer remove you?
Mr Osei: I don't want you to ---
Mr Russell: Can you please leave then because you are disturbing this hearing.
Mr Osei: Well - can I seek some instructions from my client?
Mr Russell: No, that is denied.
Mr Osei: It is denied?
Mr Russell: Uh hmm.
Mr Osei: Well, he doesn't want to attend this hearing.
Mr Russell: Could you please leave, Mr Osei?
Mr Osei: Yes, but I just want an opportunity ---
Mr Russell: No, that's refused. The hearing will proceed
Mr Osei: This is not fair. What you are doing is not fair.
Mr Russell: That's right.
Mr Osei: And you are exceeding the powers, sir ---
Mr Russell: Could you please leave Mr Osei? I have given you enough opportunity ---
Mr Osei: You haven't given me an opportunity to answer the questions that you are putting to my client that affects me.
Mr Russell: I gave you the opportunity to do that at the end of the hearing. If you don't like that, you can leave.
Mr Osei: Okay, I will take that, but I think that if you are going to put things to my client ---
Mr Russell: Mr Osei, you have disturbed this hearing, please leave.
Mr Osei: I am taking that. I am taking that, to respond to that ---
Mr Russell: I have asked you to leave. Do you want me to get the hearing officer?
Mr Osei: No, I don't want you, but you said - no - if you don't want me to stay I will leave - but at the end of the day ---
Mr Russell: Could you please send the security guard to room number 9 to have an adviser removed, thank you.
Mr Osei: You are not giving me the opportunity to respond?
Mr Russell: Could you please answer my question, Mr Bautista?
Mr Bautista: Could you please repeat the question?
Mr Russell: As I suggested to you before, documents were sent to your advisor on 20 August this year which indicate that only the son of Mr Estrada has indicated that the immediate family has received death threats. There is no evidence that either the immediate family members or extended family members have in fact been murdered or received any death threats, and therefore I suggest to you that your claims are at odds with that evidence. Would you like to comment?
Unknown: We don't actually have a security guard here at the moment?
Mr Russell: Well, I would like somebody then to remove the advisor because he has disturbed the hearing and he has refused to leave when I asked him to leave.
Mr Osei: For the purposes of the record, I have sought - you have sought - you have sought ---
Mr Russell: Mr Osei, could you please leave - I have asked you many times.
Mr Osei: Yes, I will leave - but for the purposes of the record I want to state unequivocally to ---
Mr Russell: You have already made your representations.
Mr Osei: Please, can you let me ---
Mr Russell: No, Mr Osei, that is refused. Could you please leave?
Mr Osei: I will leave but I just want to state on the record ---
Mr Russell: Could you please answer my question.
Mr Osei: I would like to seek opportunity to speak to my client ---
Mr Russell: That has been refused.
Mr Osei: Can you seek leave that you would like to speak to your advisor?
Unknown: Please can you leave the room?
Mr Osei: Yes, I am leaving."

45 The said exchange is the foundation of the charge particularised in Information 042040, set out above.

46 After the hearing, and on 10 September 2001, the Tribunal faxed a letter to Kofi Osei Caprock Immigration Consultants, giving until 14 September 2001 to make any submissions to the Tribunal in the matter and advising that a copy of the hearing tape could be obtained. No such submissions were lodged.

47 On 16 October 2001 the Refugee Review Tribunal handed down its decision affirming the decision not to grant protection visas to Mr and Mr Bautista and their children. The basis of the decision was that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution. It described as "implausible" key aspects of the applicants' claims and rejected the claim that the family, friends and associates of the applicant had been harassed, discriminated against and persecuted by the then current government in the Philippines. There were other criticisms of the applicant's case.

(e) Further Applications and Submission to the Minister

48 On 22 October 2001 the Bautistas had a conference with Mr Osei concerning them joining a class action in the matter of Li v The Minister for Multicultural Affairs through solicitors Adrian Joel & Co. On 23 October the Bautistas signed a fee agreement with Adrian Joel & Co and on the same date applied for a bridging visa on the basis that they were joining the class action. On 5 December 2001 the Bautistas' bridging visa applications were refused on the basis that there was no evidence of them having been joined in the class action. It appears that Adrian Joel & Co had not joined them. On 19 December 2001 the High Court dismissed the Li class action.

49 On 21 December 2001 the Bautistas made application for bridging visas on the basis that a submission was being made to the Minister for Multicultural Affairs for his intervention following the Review Tribunal's refusal of the appeal in relation to the protection visa. The submission to the Minister is dated 21 December 2001 and is on the letterhead of Caprock International Pty Limited and seeks that the Minister exercise the discretion granted to him under s.417 of the Migration Act 1958 by substituting a more favourable decision in respect of their unsuccessful application for a protection visa which was subsequently affirmed by the Refugee Review Tribunal. The submission to the Minister deals not only with the (false) claim by Mr Bautista about him fearing for his life if he returned to the Philippines, but also with other matters thought to be relevant to the Minister's discretion, including that the family was financially stable and had assets in Australia including the fact that Mrs Bautista was a shareholder and director of Lloyds International College, in which she had invested $150,000 and had an ownership interest of 10% of the business that employs over 40 Australian citizens.

50 The submission appealed to the Minister to consider the case also on the basis as though an application had been made under subclass 845. This was the ‘long term strategy' visa application discussed on 16 February 2001 (supra) details of which are referred to below.

51 The submission to the Minister was accompanied by statutory declarations of Mr and Mrs Bautista, dealing not only with the protection visa aspect but also with aspects of financial security. Mrs Bautista's statutory declaration in the latter regard says:

"My eldest daughter, Mitzi Gay was studying Information Technology and we saw how financially profitable colleges in Sydney were. My husband and I discussed it and we decided to buy shares and invest money in a school named Lloyds International College. We were then issued certificates to show that we have 10% ownership of the college."

52 The documents in evidence include drafts of what became the statutory declarations accompanying the application to the Minister. These drafts contain handwritten alterations which became incorporated into the statutory declarations. When one compares the handwritten alterations with the handwritten conference notes acknowledged by Mr Osei to be in his handwriting, it is clear, in the Tribunal's opinion, that the handwritten alterations on what became Mrs Bautista's statutory declaration, were in the handwriting of Mr Osei.

53 In a letter from Mr Osei to the Bar Council dated 28 June 2002, he stated that "I did not personally prepare any of the applications, nor the submissions to the Minister" and "I did not draft or settle the ministerial submission. By administrative error, the submission went over my number 71062". This is a reference to Mr Osei's agent number, which appeared on the bottom of the letter to the Minister, where it was signed on behalf of Caprock Immigration Consultants.

54 In a letter to the Bar Council dated 7 May 2004 on behalf of Mr Osei, it was acknowledged, however, that the practitioner took instructions from Mr and Mrs Bautista in relation to the preparation of the letter to the Minister. It was also said, in the said letter, that Mr Osei "was only involved in settling part of the drafts of the material to be the basis of the statutory declarations which accompany the submission itself".

55 The preparation of the said submission by Caprock Immigration Consultants to the Minister for Immigration, dated 21 December 2001 forms the basis of Ground 2 of Information 042039.

(f) Complaint to Migration Agents Registration Authority

56 On 8 February 2002 Mr Bautista complained to the Migration Agents Registration Authority about the conduct of Mr and Mrs Osei and Caprock International Immigration Consultants.

57 The full terms of the complaint are in evidence. Due to some important differences between the terms of the complaint and the subsequent evidence from the Bautistas it is relevant to set out some of the terms of the complaint in detail. The complaint alleges that it was Mr Osei who told them that:

"The only way we could stay legally here in Australia is if we lodge an application for protection visa. Kofi Osei strongly advised us that this was the only option ..."

58 Also, the complaint alleges that when Mr Osei was looking at the Bautistas' files he saw that they had AUD$250,000 in Term Deposits in the Commonwealth Bank and:

"He also told us that if we invest money in his company (Lloyds International College, where my eldest daughter Mitzi Gay was studying) he assured us that we have a very big chance in staying here because of our investment. He explained to us that if we own or invest at least 10% in an Australian owned business (which he said has a turnover of AUD$1.5 million a year) the DIMA has no right to refuse our application and because that was written in a book (Investment Category) that he showed us, we were convinced that it is the law here in Australia and that he was telling the truth."

The complaint goes on to say:

"He convinced us that we should lodge the application for protection visa ... to buy us time because the investment should be at least 18 months old at the time of the application. We were confused, yet convinced at the same time, that we were doing the right thing and making the right choice so we agreed to whatever he told us. And since he was a barrister, we also had faith in him that he was making the right steps for us and he knew more about the law here in Australia than us."

59 The complaint goes on to deal with the payment of the $150,000, together with an additional $5,000 "to his accountant for making the appropriate arrangements regarding the transfer of shares". The complaint goes on to deal also with the refusal of the protection visa application and the application for review, and an apparently heated argument between Mr Bautista and Mr Osei, following Mr Osei's walking out of the Refugee Review Tribunal's hearing.

60 The complaint goes on to say:

"Kofi Osei still assured us that because of our investment we have a big chance of getting a visa if we appeal to the Minister. He explained that if the Minister sees that we have an investment he would give special attention to our application."

61 The complaint records the fact that the Bautistas were advised that officers from the Department were looking for them, apparently on the basis that their visas had expired and that a bridging visa had not been granted and records the distress that this caused the family.

62 The complaint records that on 24 January 2002 Mr Bautista spoke to Mrs Osei, who apparently said that if the Minister suddenly refused the application for the exercise of his discretion that they would have to leave Australia, but that even if they went back to the Philippines the Department had no right to refuse a visa because of their investment in Australia. Mr Bautista said in the complaint:

"I did not expect this kind of answer from her because this was not what we had been told by her husband - that we have a big chance when we appeal to the Minister regarding our application. Now it seems that they too have lost hope in our application. It also seems that if we go back to the Philippines they will be the ones to benefit from our investment.
On January 31, 2002 we went to their office to talk to Liba Osei and to tell her that we feel hopeless and that we want to get our investment from them (ever since we had made that investment, we have not received a single cent from them as dividends). She told us that she had no power to decide on that so we have to wait for Kofi Osei when he gets back on February 18, 2002."

63 On 15 March 2002 Caprock International Pty Limited, over the signature of Mr Osei, responded to a letter from the Professional Standards, Migration Agents Registration Authority of 21 February 2002, which forwarded to Mr Osei the said complaint. The response annexed a large number of documents and also included a chronology

64 Relevantly, in a document enclosed with the said letter and entitled "Heads of Complaint and our Response", Mr Osei asserted:

"B1.1 It is clear from the above evidence that Mr Bautista provided the documents and written instructions to lodge the protection visa application despite advice to the contrary. In fact, we discouraged him from pursuing the application. The above evidence clearly repudiates the allegation that "Kofi created the statement of claim sent to DIMA".
C1.3 In or around mid-September 2000 Mr and Mrs Bautista approached us wanting to invest in Caprock International trading as Lloyds International College. They told us they had done their independent research and believed that colleges were profitable business in Australia. Following the initial approach negotiations and arrangements were put in place in order for Mrs Bautista to purchase shares in the company. Mrs Bautista was advised to seek independent legal advice prior to purchase.
1.5 The allegation that Kofi Osei assured them that if they invest in the company they have a big chance of staying in Australia because of their investment is incorrect. At no time did I assure the Bautistas of that. After all, they were making application for a protection visa and the criterion for the grant of protection visa had nothing to do with investment.
1.6 In relation to the allegation that if they owned at least 10% in an Australian company with a turnover of $1.5 million a year DIMA had no right to refuse their application because it is written in a book is nonsensical. In any event the allegation is denied. At no time did I make any such representation prior and subsequent to their investment.
1.8 The allegation that Kofi Osei advised that the investment should be at least 18 months old prior to application, again is nonsensical. At the relevant time they could not lodge any substantive application for a visa in the investment category because of the provisions of s.48 of the Migration Act.
1.9 We deny the allegation that a few days after the lodgment of the protection visa we issued a share certificate worth $150,000 in the name of Caprock International Pty Limited. We reiterate that negotiations and arrangements were ongoing for months prior to the issue of the shares in February 2001.
1.11 We deny Kofi Osei made representations to Mr Bautista that if the Minister sees that they have investment he would give special attention to their application. Again, that is incorrect, given that they had not lodged their application for a protection visa and the Minister does not assess primary applications. The allegation is false because there cannot be any application before the Minister."

65 A mediation was held of this dispute between Mr Osei and the Bautistas on 21 March 2002. It further appears that on that occasion the Bautistas agreed to withdraw the complaints which they had made to the Migration Agents Registration Authority, against Mr Osei, upon receipt of $150,000 representing the original investment. It appears, in substance, that the shares previously held by Mrs Bautista in Caprock International Pty Limited were transferred to a new investor who had been located and who paid the $150,000, which in turn was passed through to Mrs Bautista. Contrary to what Mr Osei asserted to this Tribunal in his letter of 19 April 2005 (paragraph 15 supra) he had not "been cleared of any wrongdoing".

(g) Minister's Refusal

66 By letter dated 12 June 2002 the Minister refused to exercise his discretion to change the refusal of the protection visa application.

Evidence Generally

67 As with the terms of the complaint it is, in the Tribunal's opinion, desirable to set out in some detail the evidence of Mr and Mrs Bautista. This is because this evidence, in parts, is not clear and, in parts, is not consistent either internally or the one with the other. By so setting it out and as it occurred, these characteristics will be revealed.

Alberto Bautista - Interviewed 31 July 2002

68 On the above date an interview took place between Mr Bautista and Ms R. MacDougal, solicitor, and Ms Helen Barrett, Deputy Director, Professional Conduct, New South Wales Bar Association. A transcript of that interview is in evidence before the Tribunal.

69 The interview seems to make clear that, in Mr Bautista's view, it was due to a mistake in the offices of Caprock that the time limit for the review of the initial refusal of the sponsored visa application was accidentally allowed to expire. It was in this context, Mr Bautista said, that Mr Osei, having reviewed the file, told them "For the meantime, we will apply for a protection visa and at the same time you can invest in my college".

70 The transcript of interview reveals that it was Mr Osei who suggested that they invest in his college because it had a turnover of $1.5 million per annum. Mr Bautista said:

"I think that was in investment category, and you must at least have 10% share so we invested $150,000 and at least you must have $100,000 left for your financial support here in Australia".

When asked where the figure of $1.5 million came from, Mr Bautista said on more than one occasion words to the effect

"In the book he is always showing it to us, immigration book, a book which he described as "Immigration Law of Australia" was the name of the book".

Mr Bautista said that he did not see or ask to see any documents in relation to the college as he trusted Mr Osei. He wasn't advised by Mr Osei to obtain legal advice about the proposed transaction and he did not speak to anyone about it before he handed over the money. Mr Bautista said that he handed over the money without enquiring because he trusted Mr Osei and because he was showing them the book and reading the turnover figure and he was always telling them that this was their big chance to settle in Australia.

71 At this time they were also advised to apply for a protection visa. It was Mr Osei's idea. Mr Bautista suggests that a copy of a newspaper article was obtained by his eldest child from the Internet and inferentially, on the evening following a discussion with Mr Osei about a protection visa.

72 Mr Bautista spoke in terms of being advised that "This will be your great big chance because you are just not a refugee you have investment here and later on we will appeal that to the Minister. That's what he told us, a refugee with investment here". He was told he would be successful.

73 Mr Bautista readily acknowledged that the whole fundamental basis of the refugee/protection visa application was knowingly false and that there was no relationship with Mr Estrada at all.

74 Mr Bautista says that he signed the document dated 19 February 2001 headed "Instructions to Caprock Immigration Consultants to make application" stating that he had been advised that the application for a protection visa had no hope of success because of the lack of corroborative evidence such as birth certificates because he had no choice and he trusted Mr Osei.

75 At one stage during the interview Mr Bautista says, when asked the question "You were quite happy to sign a document acknowledging that the application for a protection visa would not be successful?" he said "Because what I am thinking the investment will be the one to be approved". At page 43 of the transcript Mr Bautista seems to be drawing a distinction between an untruthful protection visa application and an investment which will be the one to be approved and which would be successful.

76 In relation to the letter to the Minister dated 21 December 2001 Mr Bautista said that it was Mr Osei's idea to appeal to the Minister and that he spent a considerable period of time talking to Mr Osei and giving him instructions as to the content of the letter. He acknowledges that some aspects of the letter are factually false and that the accompanying statutory declaration which he signed on oath was false when it dealt with the alleged relationship of his late mother, which was the foundation of the protection application. He acknowledges that he read the statutory declaration before he signed it, he knew it was not correct and he signed it, knowing it to be not correct because "I had no choice", "because I think this is needed in our application"

Alberto Bautista - Oral Evidence

77 Mr Bautista gave evidence before this Tribunal.

78 It is of considerable importance in the resolution of the issues in this case to weigh the credibility of the evidence of Mr and Mrs Bautista and the assertions of Mr Osei. So far as Mr Bautista is concerned, special care, in the Tribunal's opinion, needs to be taken because Mr Bautista has, as he has acknowledged, in the past made an application for a protection visa which he knew to be founded on a falsehood and when that application was unsuccessful, he gave evidence to the Refugee Review Tribunal, on oath, and again reiterated the false basis of the application. Further, when that review was unsuccessful, he gave instructions for an application to be made to the Minister for his intervention which application was again based on the same falsehood and further was supported by a statutory declaration signed by Mr Bautista which he knew, at the time of signing, was false in a very material respect. His explanation as to why he signed such a declaration amounts to no more than an assertion that he thought it was in his interests at the time to swear to the falsehood.

79 Mr Bautista's demeanour in the witness box and his answers were often vague and evasive. His demeanour gave the clear impression of a person who was uncomfortable giving evidence and who was evasive. The Tribunal is of the opinion that his evidence and demeanour in the witness box adds to, rather than detracts from the hesitation and caution with which this Tribunal should, because of the above factors, regard his evidence.

80 Mr Bautista says that at the time he first met Mr Osei at his offices, in relation to a visa, Mr Osei told him that he was an immigration consultant and a barrister.

81 Mr Bautista gave evidence about various matters which, in these proceedings, are not contentious and in this respect it is not necessary to here record his evidence.

82 Mr Bautista confirmed that he signed an agreement in February 2000 with Caprock International Pty Limited relating to the provision of services. As submitted by Mr Skinner on behalf of the Bar Association, many aspects of the agreement read as if they related to legal services. Indeed, the document expressly refers to the provision of services by the consultants "legal or otherwise". Charges were to be at an hourly rate or a daily rate of $1,500 for "investigation hearing". Disbursements were to be charged, as was a cancellation fee in the event of a matter not being reached or being adjourned, vacated or settled. There was provision for the rendering of "feenotes" and there was express provision that the "company's consultant" would be entitled to immunity from suit in accordance with the law relating to "advocate's immunity".

83 Mr Bautista said that Mr Osei was negligent in allowing the time limit for the review of the refusal of the business visa application to expire in early 2001 and that he complained about it. Mr Osei, at that time, "asked us to invest in the school, Lloyd International". At another point of his evidence, Mr Bautista said that Mr Osei said: "Since you've got the money you might as well invest in my college". Mr Osei apparently told them the business was doing good and earning $1.5 million per year, and while Mr Bautista asked for some proof to confirm that, Mr Osei was not able to give it to them. The inconsistency with Mr Bautista's interview referred to above (para 69) is patent.

84 Mr Bautista thought that the investment was 10%. Mr Bautista, in his oral evidence, seemed to be very hesitant in many of his answers but ultimately linked the investment to an investment category of visa and he referred to being shown a book on Immigration Law in Australia saying that he had to own a 10% share in a business. Mr Osei apparently showed the book to Mr Bautista and also read it to him and his wife. Mr Bautista's evidence was that if he entered into this investment he was advised by Mr Osei that it's "100 per cent success and this is based on the book, The Immigration Law of Australia". Mr Osei (according to Mr Bautista) used the phrase "100 per cent". Mr Bautista concurred with the proposition that he understood that the protection visa application was a different thing to the investment visa application which involved investment in the Lloyds International College.

85 In relation to the statutory declaration which accompanied the letter of 21 December 2001 to the Minister, Mr Bautista says that Mr Osei drafted it. Mr Bautista was in Mr Osei's office and was being asked questions about money and assets in the Philippines and he provided some documents to Mr Osei which detailed the assets of his wife and the family assets in the Philippines. Mr Osei was writing everything down.

86 Mr Bautista's evidence in relation to the investment visa was that he was told that the investment had to be there for eighteen months and that Mr Osei said "There is no way in which we can properly stay in Australia and so for the meantime we are going to lodge a protection visa while we are still waiting for this eighteen month investment category". When Mr Osei was talking about 100 per cent chance of success, he was talking about the business investment category, not the protection visa, about which Mr Bautista had been advised it would be very difficult to succeed unless they came up with some further evidence.

Jocelyn Bautista - Interviewed 31 July 2002

87 Mrs Bautista was also interviewed by Ms McDougall and Ms Barrett. Mrs Bautista confirmed that, in her view, it was a mistake in Caprock's office which led to the appeal time limit on the business sponsored visa application expiring. It was then that Mr Osei, while looking through the Bautistas' Term Deposit Records, suggested that as they had $250,000 in their account, they ought to invest in his college.

88 It is clear from the interview with Mrs Bautista that she and her husband had been looking to invest money in Australia since shortly after they arrived in 2000. That was the reason why they had met their first sponsor, who was involved in the Asian Grocery business. Mrs Bautista was interested in setting up a Grocery with an Asian restaurant, she having not inconsiderable cooking expertise.

89 Mrs Bautista says that Mr Osei did not suggest that they should get any independent advice about investing in Lloyds. They did not consult any other solicitor. They trusted Mr Osei. This evidence is consistent with the Bautista's letter of 1 July 2002 to the Bar Association, when they asserted that they did not seek independent legal advice before making the investment and they were not advised to seek independent accounting or financial advice. This is contrary to the assertion by Mr Osei in his letter of 28 June 2002 to the Bar Association that prior to the investment, Mrs Bautista was advised to obtain her own accounting and legal advice and that he formed the view that she had already obtained accounting advice.

90 The interview with Mrs Bautista is clear that it was Mr Osei who suggested the protection visa because they could not lodge an application for review, they being out of time. They did not know what a protection visa was and they were advised that it was the only application they could then make.

91 The interview with Mrs Bautista seems clear that in relation to the protection visa they were told that they had a "very big chance" because they were not just refugees but were also investors and that when the Minister saw the application and that they had invested in a certain business which had a turnover of $1.5 million, they would have a very big chance of being successful. They were not told that the protection visa was not likely to succeed. If they had been told that, there was no chance at all of them investing their money in this company.

92 Mrs Bautista was interviewed about matters which are not in controversy and it is unnecessary to here set out the detail of that aspect of her interview.

93 There was a discussion with Mr Osei about appealing to the Minister, following the refusal of the review process to the Refugee Review Tribunal. There was a discussion with Mr Osei on 18 December and a couple of days later they returned to sign some of the documents. It was Mr Osei who was making the notes as a result of the interviews that formed the basis of the statutory declaration by her in support of the letter.

94 In about the first week of January 2002, Mrs Bautista and her husband became worried because they heard that the Immigration officers were looking for them. She discussed the application with her husband and "We were afraid that this application is really hopeless, that before we go back to the Philippines we want our money back". It was another solicitor whom they consulted who told them that the application was hopeless and that is why they approached Mr Osei to get their money back and ultimately made a complaint to MARA, with a view to achieving that outcome.

95 Having read the interview as a whole, it certainly does not become apparent that Mrs Bautista understood the distinction, on the one hand, between the protection visa as possibly being hopeless and based on a falsity and the necessity for an investment to be in place for eighteen months before an application could be made on an investment business basis.

Jocelyn Bautista - Oral Evidence

96 Mrs Bautista gave evidence before the Tribunal. Her evidence was clear and forthright and she answered all questions in a manner which instilled some confidence in the veracity of her answers. She was an impressive witness.

97 Mrs Bautista said that Mr Osei originally introduced himself to her as a barrister who was willing to help with all the immigration procedures. Her husband having signed the agreement with Caprock Immigration Consultants for work to be done, and as referred to above, she understood that Mr Osei was giving the Bautista family legal services and no other barrister or solicitor was ever engaged by Caprock to provide such services.

98 The time limit for the review expired on 15 February 2001. They went back to the office on 16 February, spoke to a secretary and it was then realised that the time limit had expired. Mr Osei then came out of his office and they then had a meeting with him. He was reviewing the Bautista's records and he came across some certificates of term deposits and he suggested that instead of setting up a small business "Why don't you just invest in my business. You need to invest a bigger amount". The reference to the small business was the original idea of a sponsored business visa, coupled with the idea of setting up an Asian Grocery with a small restaurant. When he suggested investing in his business he said that if the Bautistas invested 10% in his business, which was worth $1.5 million, they would have 100 per cent chance of getting a visa. They were not shown any business records of the business. They received no advice about the structure of the company and while Mrs Bautista knew something about ordinary shares, she did not know about different classes of shares. She didn't know anything about Mr Osei's investment in the company or what differing rights were attached to differing shares.

99 She became a director of the company. Mr Osei said "a Marketing Director". He didn't tell her why and he didn't mention that it had anything to do with the visa application.

100 He did mention that the investment had to be for at least eighteen months and the reference to "100 per cent chance", she understood to be 100 per cent chance of getting a visa in the investment category.

101 Mr Bautista gave evidence about a meeting with accountants, when various minutes, and the like, were signed, together with other documents and the cheques were handed over.

102 Mr Osei suggested that the only visa application they were able to lodge at that time was for a protection visa, otherwise there was no lawful basis for them to stay in Australia. Mr Osei made notes about his discussion concerning the protection visa application (which are in evidence) and "When the discussion had been finalised, he instructed us to come back but that in the meantime we should have done some research about President Estrada". All the matters that went into the claim for a protection visa were discussed with Mr Osei, who took notes. Their eldest daughter provided some material from the Internet on the impeachment of Mr Estrada, but Mrs Bautista's evidence was that it was not given to Mr Osei because "... he just started writing notes from their discussions". It also wasn't given to him because Mr Osei had more ideas about what was to go into the application than they did.

103 The evidence of Mrs Bautista and the documents would indicate that the initial visit and instructions to Mr Osei was on 8 February 2001. They went back and saw him on the 16th, one day late for the review to be lodged and on that day they spent approximately the whole day with him. It was a Friday. They returned to see him on 19 February, the Monday, when they signed a waiver about the protection application being without hope of success. This visit on the 19th was about an hour and a half long.

104 Mrs Bautista is sure that Mr Osei had advised them that the protection visa would be approved and when it was rejected, Mr Bautista was really reluctant to go to the Refugee Review Tribunal hearing.

105 After that Tribunal rejected the review, one of the steps taken was to obtain a bridging visa application based on ministerial intervention, and it was in this context that the letter to the Minister of 21 December 2001 was written. By this time she had already lost interest in the application because another solicitor they had consulted had told them it was hopeless.

106 Mr Osei prepared the statutory declaration that accompanied the letter to the Minister. She saw him do it. In the sense that they provided some documents, it was Mr Osei who said that he would change and modify them and prepare the final statutory declarations, and that is what happened. One can see, on the documents they prepared, Mr Osei's handwriting, where he altered her statutory declaration.

107 Mrs Bautista's evidence was that at a later point of time she heard that the Immigration people were looking for her and she was worried that they would be deported back to the Philippines and that if this happened, they would not be able to get her investment of $150,000 back. It was for this reason that she made the complaint that she did to MARA, to make sure that she got the money back.

Further or Oral Evidence

Hyun Ya Kim

108 Mrs Kim was at one time a director of Caprock International Pty Limited. She invested $150,000 in the Lloyds College but it had nothing to do with any visa application. She and her husband were interested in investing in the educational industry and they made contact with Mr Osei for the purpose of discussing with him investment in the college.

109 The evidence from ASIC indicates that she was appointed a director on 20 December 2000 and that she receive $150,000 B Class shares at some time between March and September 2001.

Mr Seo

110 Evidence of a transcript of an interview with Mr Seo on 17 August 2004 was admitted through the evidence of Mr Hymen, who was involved in the interview. Mr Seo, in March 2002, effectively acquired the 150,000 A Class shares which Mrs Bautista was disposing of.

Roderick Murray

111 Mr Murray provided what he described as his assessment of the "working value" of Lloyds College as at 7 December 2000. He swore an affidavit. He gave oral evidence. He expressly advised, in his affidavit, that he was not an accountant and could not provide a detailed and proper accounting evaluation of the college. What he did was to provide an estimate of the start-up and replacement costs of the college.

112 Mr Murray gave evidence that the college was on Floors 1 and 5 of 307 Pitt Street and that Mr Osei's office was on Floor 9. He recalls that the board in the foyer of the building listed the college as Levels 1 and 5, that Caprock was listed at Level 9, and he remembers a reference on either that board, or the door to Mr Osei's premises, to the word "Chambers".

Kwame Adofo Koramoah

113 Mr Adofo Koramoah commenced working for Caprock Immigration Consultants in about November 2001. It was on the 9th floor of 307 Pitt Street, where Mr Osei also practised as a barrister in a separate, but adjoining, part of the premises. His job was to do research in relation to the law and legal issues. He was involved in the Bautista matter when they were in the process of seeking to have the Minister intervene. His recollection of precisely his involvement is, at this point in time, unclear. He was working under Mr Osei as a barrister, to get his twelve week placement, required for a Practising Certificate.

114 He recalls that in the lobby of the building there is a sign indicating "Dowling Chambers", as well as "Caprock Immigration Consultants". In the office there was a sign for "Dowling Chambers" as well as "Caprock Immigration Consultants".

Kofi Osei - Correspondence

115 While the Tribunal has not had the benefit of any evidence or submissions at the hearing on behalf of Mr Osei, it has fully taken into account and given due weight to the correspondence, in evidence, from himself to MARA, to the Bar Association and correspondence from his solicitors, Mess Stewart Cuddy & Mockler to the Bar Association and his reply filed in proceedings 042010.

116 In considering this material the Tribunal is conscious of the fact that in two respects the correspondence from Mr Osei to the Bar Council has, at its lowest, been acknowledged by him to be not fully accurate. Grounds 1 and 2 of the information 042039 set out above demonstrate the acknowledged inaccuracies.

117 While the Tribunal has taken into account the totality of the said material, it is, in its opinion, important to highlight some aspects of it:

(a) Mr Osei asserts that the failure to lodge an application for review of the sponsorship visa application was due to a lack of instructions prior to the expiry date, rather than any error or omission by him or his staff.
(b) Mr Osei asserts that it was Mr and Mrs Bautista who, in September 2000, approached him wanting to invest in Caprock International trading as Lloyds International College. He asserts that they said they had done independent research. Mrs Bautista was advised to seek independent legal advice and these arrangements were finalised on 27 February 2001 when the company received funds from Mrs Bautista.
(c) Mr Osei denies that any suggested investment in Caprock/Lloyds emanated from him and asserts that it was the suggestion of Mr and Mrs Bautista and it originated in September 2000. In this respect he draws attention to the original draft statutory declaration prepared for submission to the Minister in December 2001 (prepared by Mr and Mrs Bautista) (in terms as set out in the final statutory declaration extracted, in para 50, above).
(d) Mr Osei repeatedly denies that he said anything to Mr and Mrs Bautista to the effect that their investment would have any impact, let alone a big chance on them staying in Australia. He says this in the context that at the time they were applying for a protection visa and the criteria for the grant of such a visa had nothing to do with investment. At no time, Mr Osei says, did he make any representation concerning their investment and any visa application, either to the Department or in relation to the Minister.
(e) He asserts that the investment of $150,000 did represent 10% of the voting and income producing capital of the company at that time.
(f) Mr Osei asserts that at all relevant times he was appearing and acting as a migration agent and not as a barrister. This, he asserts, relates not only to advice and correspondence and applications, but also relates to his appearance before the Refugee Review Tribunal. He did not there appear other than as an advisor (migration agent) and the transcript of the proceedings does not suggest to the contrary.
(g) Mr Osei asserts that he certainly did not suggest to Mr and Mrs Bautista that they apply for protection visas but that such a suggestion emanated from Mr and Mrs Bautista, who had independently sought advice as to the possibility of a protection visa and had obtained material which was used for the purpose of making such an application.

FINDINGS AND CONCLUSIONS

118 The Tribunal has already, in the course of discussing the evidence and submissions, made certain findings and reached certain conclusions which are set out above.

119 The Tribunal is mindful of the requirements that it be satisfied according to the test laid down in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. The Tribunal is also conscious that in the present case its task has some features which require some special vigilance. In particular, the Tribunal refers to the fact that Mr Osei did not give evidence and has made no submissions, the fact that Mr Bautista had knowingly put forward a false claim as the basis of the protection visa application and had subsequently given false, sworn evidence to support it to the Refugee Review Tribunal and subsequently still had sworn a false declaration in support of an application to the Minister for review. In addition, Mrs Bautista was, this Tribunal readily infers, fully aware of the falsity of the basis of the protection visa application and fully aware of her husband's conduct in support of the application. She also swore a statutory declaration in support of the Minister's review. Notwithstanding the Tribunal is satisfied to the requisite degree in relation to its findings, as set out in this decision.

February 2001

120 While not of paramount importance, the Tribunal is not satisfied that the omission to instigate a review of the Department's refusal of the sponsored visa application was caused solely by an oversight/error in the offices of Caprock/Osei. It accepts the evidence of Mr and Mr Bautista that when it was discovered, on 16 February, that the 15 February deadline had passed there was, to some degree at least, a sense of panic in those offices. A solution had to be found. The terms of retainer document signed by Mrs Bautista on 8 February 2001 contains her instructions to Caprock to prepare and lodge an application for a review of decision to the Migration Review Tribunal. The Caprock file notes of discussion with Mrs Bautista on 8 February 2001 discussed the Department's decision and the options to either lodge another application or to apply for a review by 15 February 2001. The Tribunal is satisfied that Mrs Bautista gave instructions for the latter to occur.

121 Mr Osei has stated that the time elapsed because of the lack of instructions which had to include instructions from the sponsor, Mr Tagle, whom Caprock had been advised as at 8 February 2001 was unwilling to continue with his sponsorship. Mr Osei, in this respect, relies upon a file note of a discussion on 6 February 2001 when Mrs Bautista apparently advised Caprock of this matter, which matter was reiterated in Caprock's letter to Mrs Bautista of 9 February. Caprock prepared an application for review but says it was never lodged because of lack of instructions from the nominating sponsor.

122 Mrs Bautista says that she had with her, when she went to Mr Osei's office on 16 February, the review application forms and the required letter from the sponsoring company. Mrs Bautista's evidence is that she went to the office and spoke to the secretary and told her that she had the money and the applications and it was then realised that the date had lapsed.

123 It seems clear that the Bautistas had been told more than once that the review date expired on 15 February 2001. It seems clear that, at least initially, the sponsor was believed to be reluctant to continue with his sponsorship of the Bautistas and that this was the case as at 8 February 2001. It also appears clear that the Bautistas gave instructions to Mr Osei to pursue the review. It seems that it was left to the Bautistas to obtain the necessary signatures from Mr Tagle. It appears that there was no follow up from Caprock after the letter of 9 February 2001. The result was that it was on 16 February that the signed review forms were returned by the Bautistas to Mr Osei in conference and it was in these circumstances that the date was allowed to expire and it was in these circumstances that the "panic" which Mr and Mrs Bautista speak of occurred.

124 Not only had the review date been missed, but as noted in the conference notes of 8 February 2001, the bridging visa which the Bautistas had was due to expire on 22 February 2001.

125 In this situation of crisis the Tribunal accepts that Mr Osei said to the Bautistas words to the effect "Instead of panicking, we should think of solutions to the problem".

126 The Tribunal accepts the evidence of Mr and Mrs Bautista that it was in this context that it was Mr Osei who thought of the solution which in part involved making an application for a protection visa. That was the only application which could then theoretically be made and which could be made before the bridging visa expired. If made, it would permit the Bautistas to stay in Australia while that application was being processed. The Tribunal accepts the Bautista's evidence that the protection visa application was Mr Osei's idea and it rejects his statements in the correspondence to the effect that it was the Bautistas who thought of it. The Tribunal accepts the evidence that the Bautistas did not know what a protection visa was, in the sense of how it could possibly apply to them.

127 The Tribunal accepts the clear evidence that on 16 February the Bautistas spent a very considerable period of time in conference with Mr Osei and, as reflected in his file notes for that day, it was he who drafted the draft statement of claim for the protection visa application. It was this application which was based upon a false premise that there was any relevant relationship between the Bautista family on the one hand and President Estrada's family on the other.

128 The Tribunal accepts, contrary to the evidence of Mr and Mrs Bautista, that they were advised, either on the 16th and/or certainly the 19th February that the protection visa application had no likelihood of success unless corroborative evidence of this relationship could be supplied by the Bautistas in the form of birth certificates and the like. The contemporaneous documentary evidence of file notes, correspondence and signed acknowledgment clearly so establishes. It rejects the evidence to the contrary from Mr and Mrs Bautista.

129 Contrary to the assertions of Mr Osei, the Tribunal finds that it was on 19 February 2001, following the initial conference on 16 February 2001, that the Bautistas returned with certain Internet articles relating to harassment of the Estrada family, which had been obtained by the Bautistas' daughter in the period between 16 and 19 February. In this respect, the Tribunal rejects the suggestion by Mr Osei that the articles were brought in on 16 February and it rejects that a one-page file note, which is in evidence, of a conference between 11 am and 12.30 pm is in fact a file note of a conference on 16 February 2001. The date has been changed. The Tribunal finds that that conference took place on 19 February as deposed to by Mrs Bautista. The conference on 16 February took most of the day. When the Bautistas came for the conference on 16 February, no-one contemplated that a protection visa application would be made and there was, as at that date, no necessity or warrant for bringing in articles from the Internet concerning Mr Estrada. Those documents were prompted by what occurred at Mr Osei's office on 16 February. The Tribunal finds the articles were brought in and that part of the conference was held on 19 February, not 16 February as the file notes purport to reflect.

130 The Tribunal also finds that on 16 February 2001 there was discussion between the Bautistas and Mr Osei concerning the investment by the Bautistas of a sum of money in Lloyds International School. So much is acknowledged by all participants.

131 Contrary to the statements by Mr Osei, the Tribunal finds that the question of such investment was suggested by Mr Osei and suggested by him on 16 February 2001. It was not a suggestion which emanated from the Bautistas. In this respect the Tribunal accepts their evidence. It was not some form of investment which they had been considering and discussing since September 2000. They had not, as Mr Osei suggests in the correspondence, had prior accounting advice in relation to such an investment. They deny it. There was no call for such an investment being considered by them prior to 16 February. There is no evidence to suggest they did consider it prior to 16 February, and there is certainly no evidence of any accountant giving them any advice in relation to such an investment, nor indeed, any evidence that any of the books of account or records of either the school or Caprock International Pty Limited being made available to them for any accountant's advice. In this respect, the Tribunal rejects the propositions put forward by Mr Osei.

132 The statutory declaration sworn by Mrs Bautista in support of the application for Ministerial review, on a proper reading, is not inconsistent with her evidence as to how this investment came to be considered, or when. Her version there set out perhaps omits some features relevant for present purposes, but is certainly not, in the Tribunal's opinion, inconsistent with what she asserts took place on 16 February.

133 The suggested investment by Mr Osei, as recounted by Mr and Mrs Bautista, had a number of features. One was that the investment had to be of a 10% interest in a business. The second was that the investment had to be in place for 18 months. A third aspect of the conversation was that Mr Osei kept referring to a book on immigration law.

134 The Tribunal rejects the statements by Mr Osei to the effect that the investment in the school had nothing to do with a visa application. Such a suggestion is, in the Tribunal's opinion, patently false. Not only is such a suggestion inconsistent with the evidence of Mr and Mrs Bautista as to the conversation, it is inconsistent with the conversation taking place in the situation of "panic" on 16 February 2001. Further, as has now become apparent, what Mr Osei was speaking about was an application for a Business Investment Visa Class 845.213, which requires that an applicant have an "ownership interest" in one or more established main businesses in Australia for a period of 18 months immediately preceding the making of the visa application. So much is specified in Schedule 2 of the Migration Regulations 1994 which were in force at the relevant time of this discussion. This is the visa class referred to by Caprock in its letter to the Minister of 21 December 2001. The Tribunal has gone to the Regulations, and in particular, Regulation 1.11.1C. There is provision that a business is a main business in relation to an application for a visa if the value of the applicant's ownership interest is or was at least 10% of the total value of the business. According to Mr and Mrs Bautista, Mr Osei was telling them that the business of the school was worth $1.5 million and accordingly, 10% would equate to $150,000.

135 The recollection of the Bautistas of the conversation correlates with what turns out to be the relevant Migration Act and Regulation provisions and the Tribunal concludes that it was these provisions which Mr Osei was referring to and which he showed them in the "migration book" referred to in their evidence. The suggestion by Mr Osei to the contrary is rejected.

136 In the context of this potential investment, the Tribunal is satisfied that Mr Osei gave to Mr and Mrs Bautista an assurance in relation to the outcome of a visa application in the event that they invested in the College. Initially, the form of such assurance was put by Mr and Mrs Bautista as "a very big chance". It was so described in the complaint to the Office of the Legal Services Commissioner on 27 February 2002. The complaint to MARA described the assurance in the same terms. Mr Bautista's interview spoke in terms of "a great big chance". Mrs Bautista's interview told of a "very big chance". Mr Bautista, in his evidence, however, said that he was told "It's 100 per cent success". He reiterated that the phrase "100 per cent" was used. Mrs Bautista, in her evidence used the same phrase of "100 per cent chance".

137 Under the Migration Act 1958 the provisions which are referred to above have to be satisfied by an applicant at the time the application for a visa is made. At the time that a decision is to be made on the visa application, certain additional criteria are required to be satisfied by the applicant. These additional criteria relate to the Applicant's score on the Business Skills Points Test, public interest criteria and the like.

138 The Tribunal is satisfied that an assurance was given by Mr Osei in relation to the prospects of success of a visa application in the event that Mr and Mrs Bautista invested in his company. Mr Osei's assertions to the contrary are rejected. The Tribunal is not satisfied that he said to Mr and Mrs Bautista words to the effect that they had a 100 per cent chance, but it is satisfied that he said to them words to the effect that they would have "a very big chance". In so concluding, the Tribunal takes into account the discrepancy between the Bautistas' version of the assurance as first given and their evidence and it takes into account the objective fact that other criteria over and above the fact of the investment had to be satisfied when a decision was being made in relation to the application. The Tribunal also takes into account the fact that it seems clear that Mr Osei had in front of him the relevant migration criteria, which he was showing to Mr and Mrs Bautista, and such criteria would have readily revealed the additional tests which needed to be satisfied at the time the application was being decided.

139 The Bautistas invested $150,000. That represented 10% of what Mr Osei was claiming to be the value of his business. It seems clear that before such investment took place, Mr and Mrs Bautista had no independent accounting or legal advice. They were not provided with any books or records which would, in any sense, justify the investment. They were not advised by Mr Osei to obtain any such independent legal or accounting advice. In so concluding the Tribunal accepts the evidence of Mr and Mrs Bautista and rejects the assertions of Mr Osei to the contrary. It also rejects, for the reasons stated elsewhere that he had the impression they already had any relevant accounting advice.

140 The discussions between the Bautistas and Mr Osei were in terms of them investing in his business, which the Bautistas understood to be Lloyds International School. Such a proposition is consistent with the statements by Mr Osei about the Bautistas wanting to invest in the school. It is consistent with what the Bautistas thought they were investing in.

141 The school was a business carried on by Caprock International Pty Limited. The investment by the Bautistas was not in the school itself, but by Mrs Bautista, acquiring shares in Caprock International Pty Limited. It is not known by this Tribunal what the assets and liabilities of that company are, or were at the relevant time. It is known that the company apparently also carried on business as Caprock Migration Consultants, but there is no evidence before this Tribunal as to the assets and liabilities of the company and, accordingly, no judgment can be made as to the worth of the investment which Mrs Bautista made. Likewise, the Bautistas did not make any such assessment before making the investment and it seems clear that they accepted the assurances which were given to them by Mr Osei as to the "worth" of the "business".

142 The Tribunal also finds that the form of the investment was not one which the Bautistas fully or relevantly understood. Not only did they have no independent legal or accounting advice in relation to the structure of the investment, it seems clear that Mr Osei did not relevantly explain it to them and the Tribunal accepts their evidence that, in substance, they did not understand it.

143 What in fact occurred, according to the records in evidence, was that prior to this investment, there were two issued ordinary shares of $1 each in the company. On 27 February 2001 Mr and Mrs Osei passed a resolution altering the Articles of Association of the company so that the A class shares had one vote for every 1,500 shares and, on a winding up, were entitled to, as structured, 10% of the surplus assets and in the meantime were entitled, as structured, to 10% of all dividends declared. Mrs Bautista was allotted 150,000 A class shares. In addition to the two issued ordinary shares, a further 449 ordinary shares were allotted to both Mr and Mrs Osei. The end result was that, according to these records, for the $150,000 investment, Mrs Bautista acquired a 10% voting right, a right to 10% of the declared dividends and a right to 10% of the surplus assets on the winding up (assuming the net assets of the company were worth $1.5 million as Mr Osei seems to have been asserting). The Tribunal is satisfied she did not understand this structure, but that she trusted Mr Osei that the investment that she made was going to satisfy the requirements of the Migration Act about which he had spoken. The fact the investment was structured to be 10% and that this was a requirement for a class 845.213 visa is further reason to reject Mr Osei's assertion that the investment in the school had nothing to do with a visa application.

144 The Tribunal is satisfied that the investment proposed by Mr Osei for the Bautistas in the "school" was part of a two-pronged strategy devised by him on 16 February 2001, when faced with a situation where the previous visa application refusal could not be reviewed because of the lapse of time and where there was a need for urgent action to protect the interests of the Bautistas in relation to the looming expiry of their bridging visa on 22 February 2001. The strategy was to immediately lodge a protection visa application, which Mr Osei knew was doomed to failure unless the Bautistas could come up with some corroborative evidence of the relationship being asserted in the application. The immediate lodgment of the protection visa application would protect the interests of the Bautistas in the short term, while such an application and any review process was in train. The longer term strategy involved an investment for 18 months in a relevant business, such an interest being of a 10% nature. That is what Mr Osei advised and that is how the investment was structured. His suggestions to the contrary are plainly false and are rejected.

Refugee Review Tribunal Hearing

145 The relevant portion of the transcript of this hearing is set out above. Nothing, in the Tribunal's opinion, can be plainer than that such conduct by Mr Osei had the inevitable consequence that he would be ejected from the Tribunal's hearing. He was warned of such on more than one occasion. He was told that he could make relevant submissions at the conclusion of the evidence. He was requested, on more than one occasion, to desist from interrupting. Mr Osei's explanation, as put forward to the Bar Council on 28 June 2002, was that he attempted to restrict and to channel the questions asked by the Tribunal Member and sought to make submissions "all of which were refused". Factually, that explanation is not accurate. The Tribunal has read the further explanations put forward on behalf of Mr Osei; for example, as contained in the letter of Stewart Cuddy & Mockler of 8 July 2003. There it is asserted that Mr Osei was seeking to advance the Bautistas' case and that he was not given the opportunity to do so in relation to a matter of critical importance to the Bautistas' application. It is asserted on behalf of Mr Osei that should that have been left to be dealt with during addresses, the interests of the Bautistas would have been neither advanced nor protected.

146 The Tribunal is firmly of the opinion that the conduct by Mr Osei in this respect is without justification. It is one thing to forcefully seek to advance the client's interests; it is another to behave in such a manner which will inevitably lead to one's expulsion from the hearing room, thereby leaving the client without any representation at all. Further, the repeated manner in which Mr Osei sought to speak, notwithstanding warnings and advice from the Tribunal Member to the contrary, demonstrates a totally inappropriate and improper regard by him for the Tribunal Member and the procedure which he was entitled to, and was, adopting.

147 In addition, there is absolutely no justification at all for Mr Osei referring to the Tribunal as a "kangaroo tribunal".

148 The Tribunal finds, in this regard, Mr Osei's behaviour to be disgraceful.

Ministerial Review

149 Mr Osei, in his letter of 28 June 2002 to the New South Wales Bar Association, was responding to what were then five complaints. One of the complaints was that he had failed to properly or adequately advise Mr and Mrs Bautista in relation to rights and options for successful migration applications. In response to that complaint, Mr Osei said: "I did not personally prepare any of the applications or submissions to the Minister".

150 Mr Osei now concedes that he authored the file note of 16 February 2001 and the draft Statement of Claim for the protection visa. He also accepts that he settled the statutory declarations of the Bautistas that accompanied the submission to the Minister. So much is clear, when one considers the original typed draft statutory declaration of Mrs Bautista and Mr Osei's hand-written alterations, which were then incorporated into the final document sworn by her. Such process is verified by the evidence of Mrs Bautista, in particular.

151 When the Bar Association asked Mr Osei for an explanation, he sought to restrict his phrase "submissions" to the contents of the letter of December 2001. It was put forward by solicitors for Mr Osei that the reference to "did not personally prepare any of the application or the submissions to the Minister" was made in the context of a general response to an assertion of having failed to properly and adequately advise the Bautistas, and that he was trying to point out that he had not personally prepared the formal applications, these being matters within the responsibility of Mrs Osei.

152 It is said, on Mr Osei's behalf, that he did not have available the file notes of his conference with the Bautistas on 16 February, or the draft statement of claim as they had, apparently, been produced to MARA. It is said, on his behalf, that "personally prepare" is not the same as "taking part in the preparation of".

153 The Tribunal will deal with these submissions below. For present purposes, it is plain that Mr Osei personally was involved in the preparation of the form of the statutory declarations which accompanied the submission to the Minister, dated 21 December 2001. It was part of the submission. To claim otherwise is sophistry.

A. Information 042010

154 This Tribunal is not satisfied that Mr Osei "knowingly and deliberately misled" Mr and Mrs Bautista as alleged. For reasons already given, it is satisfied that he gave them an assurance that the investment would give them, in effect, a "very big chance" of success. The Tribunal finds that when he gave such an assurance Mr Osei was not referring to the protection visa application. Mr Osei thought that such an application had virtually no chance of success at all (unless Mr and Mrs Bautista provided some co-operative evidence). The fact that he so thought is amply demonstrated not only by his contemporaneous file notes but by his letter of advice to Mr Bautista dated 16 February 2001 and, further, by the acknowledgment signed by Mr Bautista on 19 February 2001. Contrary to some of the evidence and assertions, in complaints, by Mr and Mrs Bautista the assurance was not being given in relation to any application to the Minister for the exercise of his discretion in the event that the appeal process in relation to the protection visa application was unsuccessful. Not only was the ministerial discretion one ‘at large', but an application to the Minister for the exercise of such a discretion was predicated upon a finding by the Department and on review by the Refugee Review Tribunal that the basic ground for a refugee visa had been refused. In these circumstances, the Tribunal is not satisfied that the assurance was given in respect of any application to the Minister.

155 The assurance which the Tribunal has found was given was one which was given, in the Tribunal's opinion, in relation to the second leg of the strategy which this Tribunal has found was initiated, namely the business visa application as detailed above. This is an inference capable of being drawn from Mr Bautista's interview and it is consistent with parts of Mr Bautista's oral evidence and the oral evidence of Mrs Bautista before this Tribunal, recounted above, where she said that she understood the "100% chance" to relate to a visa in the investment category.

156 The Tribunal is not satisfied that such an assurance in relation to such a visa application was false or misleading, let alone deliberately so. It is clear from the Migration Act 1958 and the Regulations that a relevant investment of 10% of the total value of a business, as there set out, held for a period of 18 months supports such a visa application being made and was a necessary pre-requisite at the time such a visa application came to be determined. While the Tribunal does not have before it any evidence to objectively determine that the value of the Bautistas' investment was relevantly 10% of the value of the business, that was certainly being asserted by Mr Osei to the Bautistas.

157 The evidence does not satisfy the Tribunal and it is noted that the investment was, in the above circumstances, withdrawn by the Bautistas before any such business visa application was made. The investment was made on 27 February 2001 and was required, by the Regulations, to be held for 18 months before the visa application could be made. In February 2002 the Bautistas were apprehensive, following consultation with another solicitor, that their application to the Minister for the exercise of his discretion would be unsuccessful and that they would then be at risk of being deported before the 18 month period had expired and they had an opportunity to make the business visa application. They were apprehensive that if they were so deported they would have, at the least, difficulty in recovering their investment and hence complained to MARA with a view to, inter alia, recovering that investment.

158 Ground 1 of this information is dismissed.

159 As to Ground 2, the Tribunal is satisfied that Mr Osei improperly induced Mr and Mrs Bautista to make the investment which they did. As found by this Tribunal, the suggestion and impetus for the investment was, contrary to his denial, made by Mr Osei himself. It was made by him on 16 February 2001 in circumstances where Mr and Mrs Bautista were in a position of particular vulnerability and in a position of readily being able to be influenced. Mr Osei was not only a migration agent, but he was also a barrister of which fact he had advised the Bautistas. As at 16 February they were his clients. They were, partially through Mr Osei's office's fault, facing the very real prospect of being deported from the country together with their children. Mr Osei suggested the investment in a company of which he was a director and in which he and his wife held the sole shares. Mr and Mrs Bautista did not have any independent legal or accounting advice and, as found by this Tribunal, Mr Osei did not, contrary to his assertions, advise them to get any. Mr and Mrs Bautista thought they were investing in Lloyds International College. They arranged for a bank cheque to this entity. In fact, the cheque was applied to the capital of Caprock International Pty Ltd. A class shares were issued in that company to Mrs Bautista. The Tribunal is satisfied that Mrs Bautista did not understand the legal significance of the investment as it was carried out and did not appreciate the potential financial implications. The Tribunal is not satisfied that she understood or that her husband understood the distinction between the college on the one hand and a proprietary company on the other. The Tribunal is satisfied that there was no explanation by Mr Osei of the distinction and no relevant explanation by him of the rights which Mrs Bautista was acquiring. Mr and Mrs Bautista trusted Mr Osei and he knew it.

160 The conduct by Mr Osei in the above respects may be condemned and worthy of severe censure but it does not, in the Tribunal's opinion, amount to professional misconduct either under s.127 of the Legal Profession Act 1987 or under the general law. The conduct was not accompanied by any established misrepresentation either as pleaded in relation to the Bautistas prospects of success with a visa application or as to the ‘worth' of the investment. The conduct did not take place directly in the course of Mr Osei's professional practice. He was in this respect acting as a migration advisor. In the Tribunal's opinion, it could not be said that his conduct was sufficiently closely connected with his practice, albeit not occurring in the course of such practice, for it to be said to constitute professional misconduct (compare New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at paragraph 56). Nor in the Tribunal's opinion could it be said that the conduct manifests the absence of qualities which are incompatible with or essential for the conduct of practice. In the relevant sense, in the Tribunal's opinion, while the conduct may be worthy of censure, it could not be said that it demonstrates that Mr Osei was not of good fame and character or a person not fit and proper to remain on the roll of legal practitioners. As explained by Kitto J in Ziems [1957] HCA 46; (1957) 97 CLR 279 at 298:

"But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar: and to draw the dividing line is by no means always an easy task."

161 In the present case, while the task is not easy the Tribunal is of the opinion that Mr Osei's conduct, particularly absent the abovementioned factors of misrepresentation as to visa prospects and absent evidence of significant undervalue of the investment, does not constitute unfitness for the Bar or relevant lack of good fame and character.

162 The second ground of this information is dismissed.

B. Information 042039

163 The Tribunal is satisfied that the alleged conduct took place. The distinction sought to be drawn by Mr Osei that he did not personally prepare the formal applications which were matters that were within the responsibility of Mrs Osei is rejected as any relevant or credible explanation for what he wrote to the Bar Association on 28 June 2002. The Statement of Claim which he drafted formed the very basis of the application. On the evidence he spent the better part of 16 February 2001 in conference with the Bautistas during which he compiled the file notes which formed the basis of the Statement of Claim which he drafted. While he may not have had available to him his file notes at the time he wrote to the Bar Council on 28 June 2001 the Tribunal does not accept that he did not recall the substance of that conference or what he did during and following it, or that he took the file notes and that they formed the basis of the Statement of Claim which he drafted. It was a conference which had occurred relevantly recently, it was a conference which took place in an atmosphere of some crisis, it was a conference which took place in circumstances where he had advised the client that the protection visa had no or little chance of success and it was a conference which occupied the better part of the day. Further, in the Tribunal's opinion, the events of February 2001 would have been relatively fresh in Mr Osei's mind, he having been involved in the complaint which Mr and Mrs Bautista made to MARA on 8 February 2002, which complaint Mr Osei responded to, in detail, by his letter of 15 March 2002 to the Professional Standards, Migration Agents Registration Authority. The Tribunal rejects the explanations made by and on behalf of Mr Osei and finds that his response to the Bar Council as alleged in Ground 1 of this information is established and that his response was false and misleading and constitutes professional misconduct. The Courts have, on numerous occasions, emphasised the importance of practitioners being frank and honest with, relevantly, the Bar Council and have emphasised the significance and seriousness with which the Courts view a breach by practitioners of this obligation. In the present case, Mr Osei has offered no plausible or credible explanation at all for what was patently a false and misleading statement to the Bar Council. The Tribunal finds that Mr Osei wilfully contravened the prohibition in s.152(5) of the Act which prohibits a legal practitioner from misleading or obstructing the Bar Council in the exercise of its relevant functions under the Act. Not only was the contravention wilful in the Tribunal's opinion and in the above circumstances, it amounted to professional misconduct.

164 The Tribunal finds that the second ground of this information is established. In the Tribunal's opinion the distinction which the barrister seeks to draw between a ministerial submission on the one hand and the statutory declarations which accompanied the submission is, in substance, no distinction at all. The statutory declarations form part of, and indeed on one view an integral part of, the submission itself. The barrister acknowledges that he was involved in settling part of the draft of the material that was the basis for the statutory declarations which accompanied the submission itself and, indeed, so much is clear from the handwriting notations on the drafts which are in evidence. His involvement is attested to by, in particular, Mrs Bautista. The submissions to the Minister were for his exercise of discretion in relation to a protection visa which was itself based on a falsehood. The correspondence from the barrister dated 28 June 2002 can readily be seen as an attempt by the practitioner to distance himself from any responsibility either in relation to the original application or the subsequent submissions to the Minister. The Tribunal is of the opinion that not only is this ground of the information established and the response of the barrister misleading and false, it was wilfully so. In the Tribunal's opinion the terms of the letter are clear and, contrary to the submissions of the barrister, unambiguous. The letter to the Minister was written on 21 December 2001 and the response to the Bar Council on 28 June 2002. In the interim, as referred to above, there had been the complaint to MARA and the mediation following on that complaint. In the Tribunal's opinion, the false and misleading response was a response wilfully so made. In all the circumstances, the Tribunal is of the opinion that the barrister's behaviour in this regard was not only wilful, but also constituted professional misconduct.

C. Information 042040

165 The Tribunal is of the opinion that the complaint made in this information is established. The Tribunal has already expressed its view on the conduct of Mr Osei at the hearing of the Refugee Review Tribunal. In the Tribunal's opinion, nothing has been put forward by Mr Osei which would in any way justify his conduct. It fell short of the standard of competence and diligence that a member of the public is entitled to expect from a reasonably competent legal practitioner.

166 The only significant question which arises in relation to this information, in the Tribunal's opinion, is whether or not the conduct of Mr Osei was conduct "occurring in connection with the practice of law" within the definition in s.127(2) of the Legal Profession Act 1987. Mr Osei asserts that he was acting as a migration agent and not as a barrister. In the Tribunal's opinion the words "in connection with" are words of wide import. Such words have consistently been so interpreted by the Courts. In the present case, clearly, the distinction is between conduct occurring in the course of professional practice and acts which may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. At the other end of the scale is conduct which occurs outside the course of practice or "otherwise than in connection with the practice of law" as provided for by s.127(1)(b) of the definition of professional misconduct.

167 In the present case, Mr Osei was a barrister. He was known by the Bautistas to be one and indeed that was one of the reasons why they originally engaged him. The terms of the engagement set out above have many of the hallmarks of the engagement of a legal practitioner. Indeed, those terms of engagement expressly envisage the retention of a legal consultant. Mr Osei represented Mr Bautista at the hearing for all purposes analogous to that of a legal practitioner. After the hearing the Bautistas received an invoice in terms consistent with barristerial practice.

168 Unsatisfactory professional conduct will usually occur in the course of professional practice if for no other reason than that the definition requires conduct which falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner. It may well be that the incidence of conduct occurring not in the course of professional practice which meet this requirement of the definition of unsatisfactory professional conduct is, by reason of this requirement, limited. In the present case, however, the Tribunal is of the opinion that the conduct which did occur occurred in connection with the practice of law. Indeed, were it not for the name under which Mr Osei appeared at the hearing, advisor, there could be little doubt that it occurred in the course of professional practice. The connection between the practice of law and the conduct in the present case is so close that the Tribunal is firmly of the opinion that it falls within the definition in s.127(2).

169 There can be no doubt for reasons already expressed that Mr Osei's conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.

170 The Tribunal finds that this ground of complaint is established.