Haque v Migration Agents Registration Authority

Federal Court of Australia|2016-10-24|Before: Tracey J

The appeal be dismissed.
The applicant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

TRACEY J 1 The applicant, Dr Zahidul Haque, has, for some time, wished to become a migration agent. To this end he applied to the first respondent, the Migration Agents Registration Authority ("MARA"), to be registered as an agent. The requirement that he be registered was imposed by the Migration Act 1958 (Cth) ("the Migration Act"). MARA rejected the application on the ground that Dr Haque was not a fit and proper person to perform the work of a migration agent. Dr Haque exercised his right to appeal to the Administrative Appeals Tribunal ("the AAT") against MARA's decision. The AAT affirmed that decision. Dr Haque then appealed to this Court against the AAT's decision. 2 For the reasons which follow that appeal must be dismissed. 3 Dr Haque made his application for registration to MARA on 27 July 2011. The form on which his application was made required him to state whether there had ever been a finding of guilt against him for a criminal offence in Australia (other than a spent conviction). Dr Haque marked the "no" box adjacent to this question. The next question asked whether he was the subject of any criminal proceedings in any country. He marked the "yes" box adjacent to this question. Later in the form he declared that the information which he had provided was complete, correct and up to date in every detail. 4 In 2004 Dr Haque had been convicted, in the Victorian Magistrates' Court, of intentionally causing injury to his wife. He had assaulted her in the course of a domestic dispute. The Court recorded a conviction. It adjourned sentencing for 12 months and ordered that Dr Haque be released upon giving an undertaking to be of good behaviour and to pursue medical treatment for a psychological disorder. Dr Haque complied with these conditions and, on the expiry of the 12-month period, the proceeding was dismissed. 5 On 24 March 2010 Dr Haque was charged with a number of offences arising from an incident in which he drove his motor vehicle towards a man with whom he was acquainted. The incident occurred when the victim was about to enter his own vehicle which was parked on the side of a roadway. Two of the charges were tried in the Victorian County Court. On 10 May 2012 Dr Haque was found guilty by a jury of the charge of reckless conduct endangering serious injury. He was found not guilty of the other charge (of reckless conduct endangering life). He was sentenced to serve a community corrections order for a period of 12 months commencing on 30 August 2012 and he was required, during that period, to undergo mental health assessment and treatment. Dr Haque applied to the Court of Appeal for leave to appeal against his conviction and sentence. That application was refused by Priest JA. On 6 May 2013, Dr Haque lodged an application for special leave to appeal from Priest JA's orders in the High Court. That application was refused on 9 October 2013. 6 It was in these circumstances that, on 27 June 2013, MARA advised Dr Haque that his application for registration as a migration agent had been refused. 7 Dr Haque then applied to the AAT seeking review of MARA's decision. 8 The AAT had before it a large number of documents which Dr Haque had submitted to MARA. It also had before it extensive written submissions which had been filed by Dr Haque. 9 Having considered the material the AAT determined to affirm MARA's decision. It summarised its reasons (at [79]-[82]) as follows: "79. While I have not taken into account the circumstances of Dr Haque's 2004 conviction, I have found that at the time he lodged his application for registration as a migration agent, that conviction was not spent. Therefore, he was required to disclose the fact of the conviction on his application form. He did not do so. Furthermore, I have found his explanations for not doing so difficult to understand. In attempting to justify not declaring that conviction, Dr Haque's explanation disclosed a significant lack of understanding of the English language. 80. As for his conviction in 2012, Dr Haque again misstated the factors he said should be taken into account in ameliorating his conduct. Although he disclosed that conviction to MARA, he attempted to maintain that substantive appeals were on foot to both the Supreme Court of Victoria and the High Court. In fact no substantive appeal proceeded in either court as leave and special leave to appeal were refused. He also sought to claim that his conviction was not for a serious offence, although the penalty for that offence was a maximum of five years imprisonment. Dr Haque attempted to convince me that he had been pardoned by Judge Hicks when, in reality, he merely indicated to his Honour that he was repentant. 81. I have also taken into account the fact that Dr Haque does have a significant psychological problem. I am not aware if he continues to receive treatment but it seems to me that he probably should. Additionally, it is very clear that Dr Haque does not have a sound grasp of the English language. 82. I have found that Dr Haque is not a fit and proper person to provide immigration advice. Whether he is a person of integrity also remains questionable. It follows that I find the decision made by MARA on 27 June 2013 refusing Dr Haque's application for registration as a migration agent was the correct decision. I affirm that decision"

THE LEGISLATION 10 Regulation of persons acting as migration agents is dealt with in Part 3 of the Migration Act. It is a criminal offence for a person (subject to certain irrelevant exceptions) who is not a registered migration agent to give immigration assistance: see s 280(1). A person who wishes to become registered may apply to MARA: see s 288(1). MARA is required to register an applicant unless registration is prohibited under the Part: see s 289(1). Section 290 relevantly provides: "(1) An applicant must not be registered if the Migration Agents Registration Authority is satisfied that: (a) the applicant is not a fit and proper person to give immigration assistance; or (b) the applicant is not a person of integrity; or (c) … (2) In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account: (a) … (c) any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not: (i) a fit and proper person to give immigration assistance; or (ii) a person of integrity; (except a conviction that is spent under Part VIIC of the Crimes Act 1914); and (d) any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and … (h) any other matter relevant to the applicant's fitness to give immigration assistance." An unsuccessful applicant may apply to the AAT for review of an adverse decision by MARA: see s 306. 11 An appeal lies to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), on a question of law, from any decision made by the AAT.

THE PRESENT APPEAL 12 Dr Haque's application and written submissions in this Court suffered from many of the problems which confronted the AAT. They were prolix. They lacked clarity. They also sought to re-agitate untenable arguments relating to statutory construction which had been rejected by the AAT. These observations are not intended to be critical of Dr Haque. He is, as he said on a number of occasions, "not a lawyer". English is his second language and he was acting for himself. 13 That said, this Court can only intervene if a relevant question of law and related grounds are identified and established. The deficiencies in Dr Haque's application and written submissions made it very hard to identify any relevant question or ground. The problem remained after the conclusion of oral submissions. Despite repeated requests to Dr Haque to identify any passages in the AAT's reasons which bespoke legal error and to explain what that error was, Dr Haque failed to identify any part of the reasons which was errant. On the contrary, he expressly denied alleging error in respect of many passages in the reasons to which he referred in the course of submissions. 14 When considering applications made under s 44 of the AAT Act, the Court must not allow form to prevail over substance. Due allowance must be made for difficulties encountered by unrepresented litigants, particularly by those labouring under disabilities such as unfamiliarity with the law and the English language: see Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 at 341-2. As a result, I have closely analysed Dr Haque's written submissions. Having done so, I have concluded that they may be understood to raise certain questions of law relating to statutory construction. I will, therefore, endeavour to explain my understanding of those questions and my reasons for finding that the AAT did not err in dealing with them.

Ground 1 15 The first ground relied on by Dr Haque was that the AAT had affirmed MARA's decision "without proper invocation of the Migration Act." He asserted that the AAT had failed to disclose the relevant provision of the Migration Act pursuant to which it was satisfied that he was not a fit and proper person to give migration assistance. 16 It is true that, in the passages set out above at [9], in which the AAT summarised its conclusions, it did not specifically refer to the relevant provisions of the Act. Earlier in its reasons, however (at [15] and [16]), it set out the relevant parts of s 290 of the Migration Act. Later (at [41]-[44]), it quoted from a number of authorities on the meaning of the expression "fit and proper person". It then proceeded to make a series of findings relating to the fitness and propriety of Dr Haque to undertake work as a migration agent. These findings were reflected in the summary of the AAT's reasons to which reference has already been made. 17 Dr Haque did not submit that the AAT had misdirected itself about the meaning of the phrase "fit and proper person" in the context of s 290 of the Migration Act. 18 In these circumstances it cannot reasonably be suggested that the AAT erred by failing to mention s 290 in the concluding section of its reasons. There can be no doubt that it applied this section, as it was bound to do.

Grounds 2 and 3 19 There is a good deal of overlap between Dr Haque's second and third grounds. Both raise questions as to whether his 2004 and 2012 convictions were "spent" convictions. If they were, MARA and the AAT were not required to take them into account when determining whether he was or was not a fit and proper person to give immigration assistance: see s 290(2)(c) of the Migration Act. 20 Dr Haque sought to contend (as he had done in the AAT) that his 2004 conviction had been "dismissed" by the Magistrates' Court in 2005. 21 The AAT examined the proceedings in the Magistrates' Court having regard to the provisions of ss 70 and 72 of the Sentencing Act 1991 (Vic) ("the Sentencing Act"). At [20]-[21] of its reasons it explained that: "20. Despite Dr Haque's denials that he was ever convicted of a criminal offence in 2004, a certified extract from the Magistrates' Court at Sunshine on 9 March 2004 records that Dr Haque was convicted with Intentionally Cause Injury which occurred at Footscray on 6 February 2004. The court order was as follows: With conviction, Adjourned to SUNSHINE MAGISTRATES' COURT on 08/03/2005 at 10:00am. Accused released upon giving [an] Undertaking starting on 09/03/2004. To appear before adjourned date if called upon during the period of adjournment. Accused to be of good behaviour during the period of adjournment. TO CONTINUE TO ATTEND DR CSIZMADIA OR HIS NOMINEE AT THE WERRIBEE MERCY HOSPITAL FOR COUNSELLING AND TREATMENT AND TO OBEY ALL HIS LAWFUL DIRECTIONS. TO COMPLY WITH ALL PRESCRIBED MEDICATIONS AS DIRECTED. 21. That extract also records that Dr Haque pleaded guilty and that he consented to a summary hearing. The Magistrates' Court made a further order on 8 March 2005 whereby it dismissed the matter on the ground that there had been compliance with a bond/undertaking. The order made on 8 March 2005 also noted that he had pleaded guilty to the offence as charged and then recorded the words STRIKE OUT. As I understand what happened, a conviction was recorded against Dr Haque for the offence of intentionally causing injury. However sentencing was adjourned for a period of 12 months on an undertaking to be of good behaviour and to continue to receive medical treatment and counselling. Upon Dr Haque complying with that undertaking, the matter was then struck out. That simply means that no further sentence was to be imposed on him. The conviction, nevertheless, stands on his record." This analysis is plainly correct. 22 Dr Haque also submitted that his 2004 conviction had been dismissed in 2005 under s 76 of the Sentencing Act. This section applies where a court is satisfied that a person is guilty of an offence. One option available to the court, for which the section provides, was that it could dismiss the charge without recording a conviction against Dr Haque. It did not follow this course. It proceeded instead under ss 70 and 72 of the Sentencing Act by imposing what amounted to a 12-month good behaviour bond. It did not invoke s 76. 23 In any event, the conviction was "spent" by the time the AAT came to make its decision. As a result, the AAT did not take the 2004 conviction into account when determining whether Dr Haque was a fit and proper person to give immigration assistance (reasons at [74]). It did, however, take into account Dr Haque's failure to disclose the conviction when he applied to MARA for registration. This failure was attributable to Dr Haque's mistaken belief that his 2004 conviction had been dismissed. The AAT accepted that the mistake was "understandable" having regard to the terms of the Magistrates' Court orders in 2004 and 2005 (reasons at [51]). It does not appear that Dr Haque's failure to disclose his 2004 conviction to MARA weighed heavily in the AAT's decision that he was not a fit and proper person to provide migration assistance. 24 Dr Haque also submitted that the AAT had erred by taking his 2012 conviction into account. This was because, so he contended, that conviction was "spent" at the time the AAT made its decision. 25 In order to understand Dr Haque's submission it is necessary to set out some of the provisions of the Crimes Act 1914 (Cth). Section 85ZL provides that "spent", "in relation to a conviction", has the meaning given it in s 85ZM. Section 85ZM provides that: "(1) For the purposes of this Part, a person shall be taken to have been convicted of an offence if: (a) the person has been convicted, whether summarily or on indictment, of the offence; (b) the person has been charged with, and found guilty of, the offence but discharged without conviction; or (c) the person has not been found guilty of the offence, but a court has taken it into account in passing sentence on the person for another offence. (2) For the purposes of this Part, a person's conviction of an offence is spent if: (a) the person has been granted a pardon for a reason other than that the person was wrongly convicted of the offence; or (b) the person was not sentenced to imprisonment for the offence, or was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended." The term "waiting period" is defined in s 85ZL to mean, relevantly, "the period of 10 years beginning on the day on which the person was convicted of the offence." 26 Dr Haque contended that his 2012 conviction was "spent" because the County Court had "accepted" his "pardon" and he had not been sentenced to imprisonment. From Dr Haque's written submissions, it appears that his references to "acceptance" of a "pardon" arise from some observations made by the sentencing judge. His Honour recorded that Dr Haque was "very much repentant", and had "apologis[ed] to the court for the incident". Thereafter, he said, "… I am prepared to accept that although you pleaded not guilty at your trial, that you have shown some contrition for your actions". It may be that Dr Haque understands "pardon" to have one of the meanings (the seventh sense) appearing in the Oxford English Dictionary: "[t]he excusing of a minor error or something caused, or presumed to have caused, offence; courteous forbearance or indulgence; acquittance of blame". This is the sense invoked when one begs another's pardon. Dr Haque may have believed that acceptance by the court of a genuine apology - a begging of its pardon - constituted the circumstance set out in s 85ZM(2)(a). If that is the submission, it cannot be accepted. "Pardon", of course, has a different meaning at law. Dr Haque was not pardoned. 27 Dr Haque is correct in saying that he was not sentenced to imprisonment following his 2012 conviction. That fact is not, however, enough for him to be able to claim the benefit of s 85ZM(2)(b). His submission overlooks or ignores the stipulation, in that paragraph, that the 10-year waiting period must have expired before a conviction becomes spent: cf Frugtniet v Australian Securities and Investments Commission [2016] FCA 995 at [39] (Bromberg J). 28 Under Ground 3 Dr Haque also submitted that the AAT could not conclude that he was not a fit and proper person to provide immigration assistance without also finding that he was not a person of integrity. That submission is based on a misconstruction of s 290(1) and (2)(c) of the Migration Act. The disjunctive "or" separates paragraphs (a) and (b) of sub-section (1) and the two sub-paragraphs of the latter provision. Once the AAT had formed an adverse judgment concerning Dr Haque's fitness and propriety under s 290(1)(a) it was not necessary for it to make findings under s 290(1)(b). 29 Dr Haque's written submissions may also be understood to complain that the AAT erred, in some way, by having regard to additional considerations including the adequacy of his command of the English language and his psychological health. I did not understand Dr Haque to argue that these considerations were irrelevant, in the sense of impermissible, considerations (an argument which, had it been advanced, would not have succeeded). Rather his submission appeared to be that, since MARA had not referred to those matters, neither could the AAT (citing Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344). 30 The paragraph in Zubair upon which Dr Haque relied ([34]) does not support his contention. Moreover, the contention is not consistent with other authority. It is axiomatic that the AAT stands in the shoes of the decision-maker (Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 143), and that it is not limited to considering the material available to, or the reasons given by, the original decision-maker (Yao v Minister for Immigration and Border Protection [2014] FCAFC 17 at [41]). The matters to which the AAT had regard were matters that it was entitled (if not required) to take into account pursuant to s 290(2)(h) of the Migration Act.

Ground 4 31 Dr Haque's fourth ground was that the AAT was required to, but did not, direct itself that it could only make an adverse finding if it was satisfied beyond reasonable doubt as to his fitness and propriety. 32 Dr Haque did not refer to any authority to support this contention. 33 The question before the AAT was whether it was satisfied that Dr Haque was not a fit and proper person to give immigration assistance. 34 A requirement of proof beyond reasonable doubt is an essential feature of the criminal justice system. The proceeding before the AAT was a civil proceeding. The civil curial standard of proof is the balance of probabilities (as tempered with the well-known admonition in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362). The AAT is not, however, a court of law. It may be doubted that the concepts of legal onus or burden of proof have any application to the work of the AAT: see Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [61]-[81]. Even if the AAT had been subject to evidentiary rules, on no view was it required to apply the criminal standard of proof when dealing with Dr Haque's appeal.

DISPOSITION 35 Dr Haque's appeal must be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

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