Hartnett v Migration Agents Registration Authority - [2004] FCA 50 - FCA 2004 case summary — Zoe

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Hartnett v Migration Agents Registration Authority

[2004] FCA 50

Federal Court of Australia|2004-02-16|Before: Marshall J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2004-02-16

Before

Marshall J

Source

Original judgment source is linked above.

Judgment (73 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The applicant, Mr Beau Hartnett, has appealed from a decision of the Administrative Appeals Tribunal ("the AAT") made on 7 August 2003, affirming a decision of the respondent, the Migration Agents Registration Authority ("the Authority") to suspend his registration as a migration agent for one year.

[2]

Factual background 2 The following factual background may be discerned from the findings of fact made by the AAT. 3 Mr Hartnett is a solicitor and a registered migration agent. One of his former clients was Mr Alain Ruthenberg. Mr Ruthenberg is a citizen of Brazil who retained Mr Hartnett's services with respect to an application for a temporary business entry long stay visa ("the business visa"). The application was approved on 1 June 1999, on the basis that Mr Ruthenberg's employer, Saxby Bridge, was approved as his business sponsor. 4 Ms Buttigieg-Pocock, at all material times, was a law clerk employed by Mr Hartnett's firm. She became a registered migration agent on 5 March 2001. She worked under the supervision of Mr Hartnett during the period January 2000 to 3 September 2001. 5 In a proposal dated 10 January 2000, provided by Mr Ruthenberg to Mr Hartnett, a joint venture was suggested between Mr Ruthenberg and Mr Hartnett's firm, Haynes Hartnett. Concerning that proposal, the AAT said that: "That document refers to Mr Ruthenberg entering into agency agreements with schools and universities and the fact that Mr Ruthenberg would be entitled to earn commission from the university in which the student was enrolled."

[3]

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.

[66]

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."

[69]

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.