Hartnett v Migration Agents Registration Authority

6 As at 10 February 2000, Mr Hartnett was aware that Mr Ruthenberg held agency agreements with Bond University and Gold Coast Institute of Technology, with respect to the recruitment of international students. 7 On 17 February 2000, Ms Buttigieg-Pocock met with Mr Ruthenberg and gave him a letter dated that day, which Mr Ruthenberg had requested, to assist his endeavours in locating another employer to take over his sponsorship for the purposes of his business visa. 8 On 18 February 2000, Mr Hartnett and Ms Buttigieg-Pocock attended a meeting with Mr Ruthenberg. At that point in time, both Ms Buttigieg-Pocock and Mr Hartnett were aware that Mr Ruthenberg had established a business as an education agent and that he wished to apply for a skilled independent visa. They spoke with Mr Ruthenberg about his intention to leave his employment with Saxby Bridge. They also discussed the option of transferring his sponsorship to another approved employer or enrolling at university to procure qualifications to enable him to apply to remain permanently in Australia. 9 On 7 March 2000, Ms Buttigieg-Pocock had a telephone conversation with Mr Ruthenberg in which she referred to the possibility of him applying for a student visa to enable him to leave Saxby Bridge and resuming studies. 10 On 13 March 2000, Mr Ruthenberg telephoned Ms Buttigieg-Pocock. He told her that he had not worked for Saxby Bridge since 9 March 2000 and that Saxby Bridge wanted a formal letter of resignation from him. He was advised to defer his resignation as long as possible to find a new sponsor or apply for a temporary student visa. 11 Ms Buttigieg-Pocock advised Mr Ruthenberg that if Saxby Bridge had notified the Department of Immigration and Multicultural Affairs ("DIMA") of his resignation it was desirable to lodge an application for a student visa within 28 days. 12 Mr Ruthenberg composed a letter of resignation, which Mr Hartnett suggested should be dated 31 March 2000. After 31 March 2000 he ceased looking for an alternative sponsor and decided to apply for a student visa. He lodged his resignation on 5 April 2000. 13 On 7 April 2000, Mr Hartnett incorporated a company for Mr Ruthenberg named Australia Go Pty Ltd ("Australia Go") for the purpose of running a student recruitment business. 14 On 27 April 2000, Mr Hartnett wrote to Mr Ruthenberg confirming his instructions to apply for a student visa and confirming that he faced difficulty in so doing whilst Mr Ruthenberg remained in Australia. 15 On 28 April 2000, Mr Hartnett lodged an application for a student visa on behalf of Mr Ruthenberg, on the basis of exceptional circumstances, whilst Mr Ruthenberg remained in Australia. The application was unsuccessful. 16 On 14 June 2000, Mr Hartnett had a telephone conversation with Mr Ruthenberg. During the conversation Mr Ruthenberg told him that he was assisting students from Brazil to enrol at the Academy of Safe Therapies and that the students were required to see a DIMA officer. Mr Hartnett advised Mr Ruthenberg not to attend upon the DIMA officer with the students, because he was at risk of having his business visa cancelled on account of his resignation from his sponsored employment at Saxby Bridge. 17 From 14 June 2000 until the cancellation of the business visa, Mr Ruthenberg received $6,673.30 in commission from Australian educational bodies. Mr Hartnett was aware that Mr Ruthenberg was in receipt of commission. 18 On 28 June 2000, Mr Hartnett made a file note in relation to Mr Ruthenberg. The file note referred to "20 students", "money starting to come in the next week or two", "any arrangements to pay referral" and "$2,997.32 finalise by Friday". 19 On 28 July 2000, DIMA issued a "Notice of Intention to Cancel" ("NOIC") Mr Ruthenberg's business visa on the basis that he had failed to comply with visa condition 8107 that he not change his employment without notifying DIMA. The NOIC requested a written response by 11 August 2000. Mr Hartnett received the NOIC on 1 August 2000. On 9 August 2000 Mr Hartnett advised Mr Ruthenberg of its receipt. 20 In early August 2000, Ms Buttigieg-Pocock and Mr Hartnett advised Mr Ruthenberg to lodge an application for a student visa in Europe on the basis that he held a European Economic Community ("EEC") passport. 21 On 11 August 2000, Mr Hartnett made an oral request, followed by a request in writing, to the relevant DIMA case officer for an extension of time until 25 August 2000 within which to respond to the NOIC. On 18 August 2000, DIMA confirmed in writing that an extension of time had been granted until 25 August 2000. 22 On 14 August 2000, Mr Hartnett took instructions from Mr Ruthenberg with respect to the NOIC. Mr Ruthenberg told Mr Hartnett that he did not personally undertake any work and that his girlfriend, Ms Mendoza, was responsible for the administration of Australia Go. Mr Hartnett advised Mr Ruthenberg that it was important to obtain a letter from the Academy of Safe Therapies explaining the circumstances leading up to the issuing of the NOIC. Mr Hartnett drafted a letter, which was signed by a Mr Talbot from the Academy, and later sent to DIMA. The letter contained assertions that Mr Ruthenberg "did not work for Australia Go" and that he "was not employed at all". 23 The extended date for the response to the NOIC came and went, on 25 August 2000, without anyone from Mr Hartnett's firm contacting DIMA. 24 On 28 August 2000, Ms Buttigieg-Pocock telephoned a Mr Mirfassihi of DIMA and told him that the submission in response to the NOIC was being finalised and asked whether it would be accepted if sent on 29 August 2000. Mr Mirfassihi may have agreed to a further extension, however, the evidence on this point was unclear. 25 On 29 August 2000, Mr Hartnett informed DIMA in correspondence of that date that Mr Ruthenberg was: "making a positive contribution to the Australian economy in respect of the expert of education services to international students …" 26 The response to the NOIC was not provided until after the close of business on 29 August 2000. It was sent to a DIMA facsimile number, which was not the facsimile number of Mr Mirfassihi. 27 The Authority received a letter, dated 1 October 2001, from Mr Ruthenberg in which he complained about Mr Hartnett's conduct.

The statutory context 28 Section 303 of the Migration Act 1958 (Cth) ("the Act") provides that: "Discretionary cancellation or suspension of registration etc.

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

(d) the agent's application for registration was known by the agent to be false or misleading in a material particular; or

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

(g) an individual related by employment to the agent is not a person of integrity; or

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

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

29 Section 314 of the Act provided that: "Code of Conduct for migration agents

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

(2) A registered agent must conduct himself or herself in accordance with the prescribed Code of Conduct." 30 The Code of Conduct is found in Sch 2 to the Migration Agents Regulations 1998. So far as is material, it provides as follows: "Part 1 Introduction

1.1 The Code is intended to regulate the conduct of migration agents.

1.2 The Migration Agents Registration Authority (the Authority) is responsible for administering the Code.

1.3 A person who wants to operate as a migration agent must register with the Authority.

1.4 The Code applies to an individual who is listed in the Register of Migration Agents kept by the Authority under section 287 of the Migration Act 1958(theMigration Act ).

1.5 To ensure compliance with the Code, the Authority may impose an administrative sanction if a breach of the Code is found to have occurred.

1.6 An administrative sanction may range from a warning through to suspension of registration or the ultimate sanction of cancellation of registration.

1.7 Accordingly, the Code does not impose criminal sanctions.

1.8 However, there are a number of offences under the Migration Actand the Migration Regulations 1994 (the Migration Regulations) that also deal with the kind of activity covered by the Code. These activities include misleading statements and advertising, practising when unregistered and misrepresenting a matter. Provisions of the Crimes Act 1914 and the Trade Practices Act 1975 may also apply to these activities.

1.9 The Code is not intended to displace any duty or liability that a migration agent may have under the common law, or the statute law of the Commonwealth, a State or a Territory, in relation to a matter covered by the Code. The provisions of the Code should be read in the light of this principle.

(a) to establish a proper standard for the conduct of business as a migration agent;

(b) to set out the minimum attributes and abilities that a person must demonstrate to perform as a migration agent under the Code, including:

(ii) knowing the provisions of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, in sufficient depth to offer sound and comprehensive advice to a client, including advice on completing and lodging application forms;

(iii) completing continuing professional development as required by the Migration Agents Regulations 1998;

(iv) being able to perform diligently and honestly;

(v) being able and willing to deal fairly with clients;

(vi) having enough knowledge of business procedure to conduct business as a migration agent, including record keeping and file management;

(vii) properly managing and maintaining client records;

(c) to set out the duties of a migration agent to a client, an employee of the agent, and the Commonwealth and its agencies;

(d) to set out requirements for relations between agents;

(e) to establish procedures for setting and charging fees by migration agents;

(f) to establish a standard for a prudent system of office administration;

(g) to require a migration agent to be accountable to the client;

(h) to help resolve disputes between a migration agent and a client.

1.11 The Code does not list exhaustively the acts and omissions that may fall short of what is expected of a competent and responsible migration agent.

1.12 However, the Code imposes on a migration agent the overriding duty to act at all times in the lawful interests of the agent's client. Any conduct falling short of that requirement may make the agent liable to cancellation of registration.

1.13 If a migration agent has a contract in force with a client that complies with this Code, but the Code is amended in a way that relates to the content of the contract:

(a) the agent is not in breach of this Code solely because the contract does not comply with the amended Code; but

(b) the agent must do everything practicable to vary the contract to ensure that it complies with the amended Code.

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

(b) deal with his or her client competently, diligently and fairly. … 2.4 A migration agent must have due regard to a client's dependence on the agent's knowledge and experience. … 2.9 While a migration agent cannot be responsible for misinformation provided by a client, an agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate. … 2.18 A migration agent must act in a timely manner if the client has provided all the necessary information and documentation in time for statutory deadlines. For example, in most circumstances an application under the Migration Act or Migration Regulations must be submitted before a person's visa ceases to be in effect."

The conduct 31 The Authority was satisfied, pursuant to s303(h) of the Act, that Mr Hartnett had not complied with the Code of Conduct prescribed under s314. In a decision issued on 15 October 2002, the Authority referred to four examples of breaches of the Code by Mr Hartnett with respect to Mr Ruthenberg. They were: "(i) [Mr Hartnett] had failed to deal with Mr Ruthenberg competently, diligently and without any conflict of interest that would [affect] the legitimate interest of Mr Ruthenberg in contravention of clause 2.1(b) of the Code of Conduct.

(ii) [Mr Hartnett] failed to have due regard to Mr Ruthenberg's dependence on his knowledge and experience in contravention of clause 2.4 of the Code of Conduct.

(iii) [Mr Hartnett] failed to act in a timely manner after Mr Ruthenberg provided all the necessary information and documentation in time for statutory deadlines in contravention of clause 2.18 of the Code of Conduct.

(iv) [Mr Harnett] contravened clause 6.2 of the Code of Conduct in relation to the keeping of documents securely in connection with the provision of services to Mr Ruthenberg." 32 Mr Hartnett applied to the AAT for review of the Authority's decision. It was unnecessary for the AAT to deal with the fourth contravention, referred to above. 33 The AAT dealt with three aspects of Mr Harnett's conduct in assessing Mr Hartnett's contraventions of the Code, referring to them as the first conduct, second conduct and third conduct.

AAT's findings on the first conduct 34 The AAT found that Mr Hartnett did not provide adequate and particularised advice to Mr Ruthenberg to the effect that his involvement with Australia Go was or could be an activity that constituted a breach of his visa condition, and that his visa would be liable to cancellation ("the first conduct").

35 The AAT found that Mr Hartnett was aware, at least as at 31 March 2000, that it was Mr Ruthenberg's intention to establish a business as an education recruitment agent. It also found that Mr Hartnett did not "(explain) expressly to Mr Ruthenberg, in simple terms, that if it was established that he was engaged in work activities for Australia Go his visa could be cancelled." It further found that: "any advice which may have been given in relation to the risks of Mr Ruthenberg working, was not conveyed with sufficient definity (sic)."

36 It concluded that: "the first conduct was in breach of clause 2.1(b), and/or clause 2.4 of the Code of Conduct, in that [Mr Hartnett] did not deal with his client competently and that he did not have due regard to his client's dependence on his knowledge and experience."

AAT's findings on the second conduct 37 The AAT found in respect of Mr Hartnett's response to the NOIC on behalf of Mr Ruthenberg ("the second conduct") that: "[Mr Hartnett] by virtue of Ms Buttigieg-Pocock's actions and his omission to ensure that the submission was received and directed to the right address, did not act in a timely manner and was in breach of cl 2.1(b) of the Code of Conduct." 38 The parties agreed that the reference to cl 2.1(b) was intended to be a reference to cl 2.18, which imposes a duty on a migration agent to act in a timely manner.

AAT's findings on the third conduct 39 The AAT found that when Mr Hartnett drafted the letter to be signed by Mr Talbot, of the Academy of Safe Therapies, which was submitted to DIMA on 29 August 2000 in response to the NOIC, he knew it contained assertions that were false, inaccurate or misleading ("the third conduct"). 40 The AAT found that: "[Mr Hartnett] had knowledge that Mr Ruthenberg was engaged in activities which might be construed as work … in its normal sense." 41 The AAT further found that "Mr Hartnett had full knowledge of [Mr Ruthenberg's] involvement in Australia Go", extending back prior to 14 June 2000. 42 In conclusion, the AAT found that Mr Hartnett: "…knowingly made false, inaccurate and/or misleading assertions and that such conduct is in breach of clause 2.9 and clause 2.1(b) of the Code of Conduct in that he did not deal with his client competently."

Penalty 43 The AAT observed that under s303, upon it being satisfied that Mr Hartnett has not complied with the Code of Conduct, it was empowered to cancel or suspend his registration as a migration agent, or caution him. 44 The AAT considered the fact that a suspension may have a serious effect on the livelihood and reputation of Mr Hartnett. However, it noted that Mr Hartnett was: "in breach of the standards of professional conduct required of migration agents …" 45 The AAT further observed that: "By far the most serious breach relates to [Mr Hartnett] making written assertions which he knew to be untrue. That is not to say that the other breaches are at the lower end of the scale of seriousness." It considered that suspension of registration for one year was an appropriate penalty.

The application to the Court 46 The application before the Court ("the appeal") is made pursuant to s44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). Section 44(1) of the AAT Act provides that: "A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding." (emphasis supplied) 47 Under s44(4) of the AAT Act, the Court: "shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision." 48 Section 44(5), without limiting s44(4), allows the Court to make an order: "affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence." 49 Order 53 rule 3(2)(b) of the Federal Court Rules provides that the notice of appeal shall state the question or questions of law to be raised on the appeal.

50 The following principles may be distilled from recent Full Court authority on the question as to what constitutes a question of law for the purposes of s44 of the AAT Act:

· the questions stated must truly be pure questions of law because the existence of a question of law is the subject matter of the appeal itself;

· the question must be stated with precision as a true question of law;

· it begs the question of law to commence it with the words "whether the Tribunal erred in law", if the question is not a question of law; no formulation such as "erred in law" or "was open on a matter of law" can turn a question into a question of law if it is not such a question;

· whether the AAT failed to give proper consideration to the evidence before it is a question of fact, not a question of law.

· whether the evidence was capable of supporting the AAT's conclusion is not a question of law;

· it is impermissible to frame a question in a way which assumes the existence of legal obligations or duties or assumes that a particular statutory construction is the proper construction;

· questions which raise issues of construction of legislation without assuming the correctness of any particular construction will be properly characterised as questions of law;

· whether the AAT has overlooked a submission "worthy of serious consideration" is a question of law;

· a question whether the AAT denied procedural fairness is a question of law. See: Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 and Australian Securities and Investment Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244; (2003) 202 ALR 450 and (as to the question of procedural fairness) see also: Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8] per Gray ACJ and North J.

The alleged questions of law 51 Counsel for Mr Hartnett pressed five alleged questions of law at the hearing of the appeal. They are identified at paragraphs 2(d)(ii), (f), (g), (h) and (l) of the further amended notice of appeal.

Question 1 52 The first alleged question of law (which relates to what the AAT described as the third conduct) was: "Whether the Tribunal erred in its conclusion that the applicant breached clause 2.9 of the Code of Conduct where…in any event clause 2.9 is limited to statements made in support of an application under the Migration Actor Migration Regulations." 53 The breach of cl 2.9 was said to arise by Mr Hartnett's making of statements in support of Mr Ruthenberg's answer to the NOIC, when he knew those statements were misleading. 54 The applicant contended that cl 2.9 "on its true construction" was not applicable to the conduct of preparing a response to the NOIC as cl 2.9 only concerned "applications". 55 The question of law, as framed, suffers from the vice of assuming a particular construction of the Migration Regulations 1994("the 1994 Regulations") to be a correct construction. It is therefore not a properly framed question of law. 56 In the event that I am incorrect in my opinion concerning whether the question is a properly framed question of law, I now turn to consider the point raised in the alleged question of law. 57 As counsel for the Authority demonstrated, the word "application" is not defined in the Act, the Code, the Migration Agents Regulations or the 1994 Regulations. 58 I accept the submission of counsel for the Authority that the act of responding to an invitation in a NOIC, to show that the grounds for cancellation do not exist or that there is no reason why the visa should not be cancelled, may be described as the act of "applying". It is an application that a visa not be cancelled in response to a NOIC. Additionally, the response to the NOIC is, in any event, made "in support of" an application under the Act. 59 It is not to the point to say, as did counsel for Mr Hartnett, that the Code should be interpreted strictly as it has penal consequences. This submission begs the question why the strict interpretation contended for is the correct one. For the reasons set out above, the interpretation of cl 2.9 favoured by the Authority is the correct one. 60 In summary, the first alleged question of law is not in truth a question of law, but if it was, the answer to it does not reveal any error in the reasons for decision of the AAT. The question essentially requires one to examine the ordinary meaning of the word "application". As was said in Franks v Secretary, Department of Family and Community Services [2002] FCAFC 436; (2002) 125 FCR 212 at [49]. "An appeal lies to this Court from the AAT only on an error of law. Where a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words, that question is one of fact only, so long as it is reasonably open to hold that they do, that is, that different conclusions are reasonably open as to whether the facts of the particular case do or do not come within the particular statutory provision: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288."

Question 2 61 The second alleged error of law was: "Whether the Tribunal erred in failing to take into account relevant material in relation to the penalty to be imposed." 62 This question, as framed, suffers from the vice that it calls into question whether the AAT failed to give proper consideration to material before it and appears therefore to be a question of fact: see Saxby Bridge at [152] per Jacobson and Bennett JJ. 63 If I am in error in my characterisation of the question, I consider the question of law does not provide an answer that shows the AAT to have erred in any relevant way. The weakness of this point for Mr Hartnett is underscored by the fact that no oral submissions were advanced in favour of it at the hearing of the appeal. In the applicant's written outline of argument, provided prior to the hearing, it was submitted that the AAT failed to have regard to a recommendation of a conduct advisory panel that a caution be given. 64 Four reasons for rejecting the submission immediately spring to mind. First, the conduct advisory panel itself did not decide on a caution. Second, the hearing before the AAT was a de novo merits review. Third, the AAT was not bound to take into account the recommendation. Fourth, there is serious doubt, on the material before the AAT, whether the so-called recommendation was actually a recommendation as distinct from advice to the Authority regarding its options for dealing with the matter. The conclusion to the conduct panel's report states: "There are a number of steps the Authority may wish to take to finalise this matter.

1. Refer the fee disputes to mediation. 2. Send the attached 309 letter to the agent and subject to his response consider issuing a caution.…"

Question 3 65 The third alleged question of law (which refers to the third conduct) was: "… whether the Tribunal erred in its determination that a submission which was in fact provided to [DIMA] was not provided to it in a timely manner within the meaning of clause 2.1 of the Code of Conduct by reason of it going to a particular address of [DIMA] and after the close of business on the due date" 66 This alleged question of law is, in truth, a question of fact. The AAT determined that the submission in response to the NOIC was not delivered in a timely manner to DIMA because it arrived after ordinary work hours and was addressed to a facsimile number, which was not that of the relevant DIMA officer. That was an issue of fact for the AAT to determine, together with any mitigating factors, such as confusion as to the correct DIMA address to which Mr Hartnett's advisers were to respond. No question of law is raised.

Question 4 67 The fourth alleged question of law was: "Whether the Tribunal erred in failing to give adequate reasons for findings made by it." 68 The oral submissions made by counsel for Mr Hartnett on this point were somewhat vague. The written contentions stated that, "this ground is not being separately pursued." 69 Under the cover of this question, counsel for Mr Hartnett took issue with the finding that Mr Hartnett breached cl 2.9 of the Code by knowingly making a false statement. The false statement is found in the Academy of Safe Therapies letter, drafted for Mr Talbot by Mr Hartnett. Counsel said that Mr Hartnett did not make that statement, but that it was made by the Academy. Clause 2.9 also refers to the encouragement of the making of statements and it was submitted that this is all Mr Hartnett could be said to have done in breach of cl 2.9. 70 Again, this issue raises a pure question of fact. Mr Hartnett made a statement, which he prepared for the Academy. To that extent he breached cl 2.9. That he also procured the Academy representative to sign the statement means that he may have committed an additional breach of cl 2.9. The fact that the AAT did not record the further possible breach does not mean it gave inadequate reasons for its findings, in respect of the breach it recorded. 71 Counsel for Mr Hartnett referred the Court to the judgment of Spender J in Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCA 206. In Dolan, his Honour observed, at 216, that s43(2B) of the AAT Act "requires" the AAT to "expose its reasoning process for reaching particular conclusions and to make findings on material questions of fact". 72 The AAT in the instant case exposed its reasoning process for reaching its conclusions and findings on material questions of fact. The criticism of the AAT's reasons with respect to cl 2.9 of the Code is misplaced. No reasons were given on the question of "encouragement" because no finding was made on that issue. The AAT viewed Mr Hartnett's conduct, in drafting the Academy letter, as making the statements contained in the letter. It was open to it to so find. 73 On the assumption that question four raises a question of law, it does not raise a matter of any substance that identifies any appealable error in the reasons of the AAT.

Question 5 74 The fifth alleged question of law was: "Whether the Tribunal erred in failing to have any or any sufficient regard to the high degree of certainty which the seriousness of the matters for determination demanded in finding that the Applicant knowingly made false, inaccurate and/or misleading assertions to [DIMA]." 75 In answer to a question from the bench, counsel for Mr Hartnett conceded that the issue raised by this alleged question essentially raises whether the AAT failed to give proper consideration to the evidence before it. That is not a question of law: see Saxby Bridge at [52]. 76 In essence, the complaint appears to be that the AAT did not realise that, in considering whether cl 2.9 of the Code had been breached, it needed to be satisfied on the basis identified in Briginshaw v Briginshaw (1938) 60 CLR 336. 77 The AAT was aware of the grave consequences of its decision for Mr Hartnett. It acknowledged in its reasons for decision that it must be "reasonably satisfied" that a certain state of facts existed before finding that cl 2.9 of the Code had been breached. The fifth ground discloses no error of approach in the AAT.

Order 78 Having regard to the foregoing the Court will order that the appeal be dismissed with costs. I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate: Dated: 16 February 2004 Counsel for the Applicant: Mr John Logan SC with Mr Charles Wilson

Solicitor for the Respondent: Blake Dawson Waldron