the tribunal
53 At Mr Kraues' request, the Tribunal issued to Corestaff NT a summons to produce documents dated 19 March 2015. That summons required production of:
All documents and records detailing transfer of monies via Corestaff accounts to the Applicant pursuant to the relevant 'Terms and Schedule of Fees: Migration Agent Regulation (1998)' said to be the payment for block of work under the retainer agreement with the following miners: [42 names identified].
54 On 22 September 2015, Mr Seigel (the General Manager (WA) of Corestaff) emailed a bundle of documents to the Tribunal. These documents consisted primarily of the signed authorisations given by the miners for Corestaff to deduct instalments from their salary for payment to "Kraues Law Client Trust Account", with the payment remittance to be emailed to kurt@kraues.com.
55 The Authority filed a document entitled amended statement of facts, issues and contentions (ASFIC) on 7 October 2015. Despite its name, it was in fact a supplementary statement of facts, issue and contentions, stating that it was to be read with the original statement of facts, issues and contentions. It stated, in substance, that the ASFIC related to additional financial information before the Tribunal which came about as a result of documents produced by Corestaff NT in response to the summons for production. It stated that information was incomplete and foreshadowed that the Authority would request Corestaff NT to complete the information. The ASFIC contained a table (Attachment A) said to demonstrate Mr Kraues' "known reliance" on the retainer agreements to retain monies from the miners. The summary table indicated that the Authority contended that Mr Kraues had received in excess of $91,533.00 in instalments without having provided any immigration assistance.
56 On 23 October 2015, Mr Kraues filed his statement of facts, issues and contentions. This document did not suggest that Mr Kraues had not received amounts of money in relation to the miners; rather it was principally directed to an assertion that there was not a "cognizable client relationship sufficient to invoke Section 306(c) [sic]". It included a submission that a "client relationship cannot be established solely by virtue of the receipt of money".
57 Mr Seigel affirmed an affidavit on 10 November 2015. He stated that he had been shown Attachment A to the ASFIC and been asked to update and complete the information. He stated that Corestaff's records indicated that a total of $205,377.50 in deductions from 66 employees had been paid by Corestaff to Mr Kraues. Mr Seigel annexed a summary (Corestaff Summary) of those payments which identified each of the employees concerned, identified their payroll ID, the date and amount of the initial deduction, the period over which further instalments were deducted, the amount of the instalments, and the total amount deducted from the miners' wages. The Corestaff Summary was also called Attachment A and was evidently prepared from Attachment A to the ASFIC.
58 The Tribunal recorded at T[38]:
After several preliminary conferences, Mr Kraues' application was listed for hearing on 26 and 27 November 2015. On 11 November 2015, Mr Joel sought an adjournment on the ground of "totally new evidence" provided by the Authority which "utterly changes" the case.
59 Mr Joel submitted, at a directions hearing held on 18 November 2015, that the written statements of witnesses to be called by the Authority included matters not previously raised and he also sought a preliminary hearing on a jurisdictional issue. The final hearing was adjourned and preliminary argument on the Tribunal's jurisdiction was heard and determined, the Tribunal observing at T[40]:
Considering that it was Mr Kraues who sought the review, the assertion that the Tribunal had no jurisdiction to determine his application made little apparent sense. However, the matter was listed for preliminary argument on 26 February 2016 and parties were directed to file written submissions.
60 The jurisdictional issue raised by Mr Joel was whether the Tribunal could "make a new decision". He submitted the Tribunal could not deal with the matter because Mr Kraues did not provide immigration assistance and the necessary "nexus" between his conduct and the power of the Authority and the Tribunal was not established: T[41]. The Tribunal recorded at T[44]:
The submission concerning jurisdiction amounts to saying that s 303 of the Act and the Code of Conduct cannot operate unless immigration assistance has been provided. In effect, that would allow a migration agent to avoid the power given to the Authority (and so the Tribunal) by failing to do the very thing he or she was engaged to do. As I understand it, that is precisely what Mr Kraues seeks to do.
61 The Tribunal rejected Mr Joel's submissions, stating at T[46] to [48]:
By s 317, the Authority has a broad power to "do all things necessarily or conveniently done for, or in connection with, the performance of its functions".
The Authority has power to investigate complaints in relation to the provision of immigration assistance by registered migration agents. It does not rely on the actual provision of immigration assistance. The complaint may be - as it was here - that the agent failed to provide that assistance.
Nor does a finding that an agent has breached his or her obligations under the Code of Conduct rely on the provision of immigration assistance.
62 The Tribunal noted, at T[49], that it had jurisdiction even if the Authority's decision was void or voidable, referring to Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307. It concluded, at T[50] to [52]:
Mr Kraues disagrees with the Authority's decision. He is entitled to seek review by the Tribunal. He has done so. It is, without doubt, a decision reviewable by the Tribunal. If the Tribunal concludes that the Authority had no jurisdiction to make that decision, it can set it aside in accordance with subsection 43(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act).
As for a declaration, Mr Joel apparently seeks to have the Authority's decision overturned not by merits review but by a declaration of invalidity which the Tribunal has no power to make. It has only the powers conferred by statute. It has no power to make declarations and, in particular, no power to make the declaration sought.
In any event, whether or not Mr Kraues provided immigration assistance to the complainants is not itself the question before the Tribunal, although, plainly, it is relevant. The question is whether his registration should be cancelled (or suspended or a caution given) because he [is] "not a person of integrity or is otherwise not a fit and proper person to give immigration assistance" or has not complied with the Code of Conduct: s 303(1).
63 In an affidavit affirmed on 13 July 2016, Mr Joel annexed the documents which he said had been produced as at that time in answer to the summons to produce. Mr Joel stated that there had been no production of financial records, as purportedly requested by the summons. He stated:
Such records are critical to the evidentiary analysis as to the meaning of the [Retainer] Agreement … The character of funds transmitted is in part determinative of the character of the [Retainer] Agreement.
64 This affidavit did not state that it was in issue that Mr Kraues had received amounts deducted from the miners' salary. Indeed, the paragraph above implies that there was no issue in that respect.
65 The final hearing before the Tribunal commenced with two days of evidence in April 2016. The hearing resumed on 15 August 2016 and Mr Seigel gave evidence by videolink from Western Australia.
66 Before the hearing resumed, Mr Joel filed submissions dated 12 August 2016. In those submissions he stated that the Tribunal had identified, orally, that the central issues were: (a) why Mr Kraues retained the client monies and (b) why were withdrawals made (presumably meaning: why were deductions made from miners' salaries). Mr Joel submitted that these issues exclude from consideration the question of whether there was "sufficient, or indeed any admissible evidence with respect to the transmission of client monies" to Mr Kraues.
67 Mr Joel also submitted that the summary tables (Attachment A to the ASFIC and the Corestaff Summary) could not be accepted as a substitute for production of the underlying records requested in the summons, that such a procedure was unfair, that the financial documents were being concealed, and that Mr Kraues was entitled to be made aware of the relevant documents.
68 In the course of examination in chief on 15 August 2015, Mr Seigel explained that the Corestaff Summary was provided by the Accounts Department of Corestaff and that:
… It's moneys that were deducted via a deduction authority that was signed by the employees that was paid into Mr Kraues' account. It was supplied by Mr Kraues for works done in relation to the 457 employees' permanent residency applications …
Well, what I can confirm to you is that a total of $205,377.50 was in total from the named employees was deducted via a signed deduction authority and it was distributed and paid into Mr Kraues's [sic] account. That's what our admin department has on record, and it's been audited and all the rest of it, so they're the facts…
69 The following evidence was also given by Mr Seigel :
MR LEERDAM (solicitor for the Authority): … the question was, in relation to the remainder of the miners for whom NDS appears next to their name and for which moneys have been recorded by your finance people as having been taken out, is it the case that there are financial deduction statements that CoreStaff holds in relation to them?--- Yes, that is correct …
70 Mr Seigel was cross-examined by Mr Joel. As to the provision of documents in response to the summons, Mr Seigel's evidence was as follows:
[MR JOEL] I'm seeking to establish where the records are as to the transmission of what you allege to be funds owned by the miners which are alleged to have been transmitted to Mr Kraues? ---
[MR SEIGEL] Well, the records are here in this printout, on this two-page landscape paper. It lists all the (indistinct) and the amount of $205,377.50. I'm not sure - am I not understanding something?
[MR JOEL] Yes. What I'm saying is that the critical records, which, as I understand, Mr Leerdam may well assert constitute client moneys, there must be a record of the transmission of those moneys to Mr Kraues, and I cannot---?
[MR SEIGEL] Yes, obviously.
[MR JOEL] I cannot locate them, with respect to the response that you or an officer has made in answering the summons. What have you got to say about that? ---
[MR SEIGEL] Look, Mr Joel, I'm going to maintain my politeness. The reality is, Mr Joel, that moneys were deducted - if you're saying you want to see the actual transactions from the CoreStaff account into the Kraues account, happy to provide them. Not a problem at all. If we have misinterpreted the actual information that you wanted, and we haven't gone to the bank and got printouts of all of those, please accept my sincere apologies. I'm more than happy to contact the bank and have our people and the bank provide all those transactions for you. Not a problem at all.
71 Mr Joel accepted that the offer was reasonable.
72 Mr Seigel's undertaking to provide further evidence was adopted by the parties and the Tribunal.
73 On 22 August 2016, the Tribunal made directions for the filing of final written submissions after receipt of the bank records.
74 On 31 August 2016, Mr Seigel sent by email partially redacted bank statements indicating that a total of $203,397.50 had been paid, by 51 transactions, from an account in the name of "Corestaff Admin Pty Ltd" to Kraues Law. The total amount was slightly lower than the amount which had been recorded in the Corestaff Summary. The difference of $1,980 was explained in the email in the following way:
By way of correction, in my affidavit of 10 November 2015 (see also Annexure A), I stated at paragraph 3.2 that a total of $205,377.50 in deductions were paid to Kurt Kraues. This is $1980.00 more than the total indicated in the bank statements.
I would like to draw your attention to an accounting error that has been identified which relates to this amount of $1980.00. That amount has not been paid to Mr Kraues and will be returned to the people mentioned in the spread sheet under the heading of refund due to employee.
75 The entries in the bank statements attached to the email for each of the 51 transactions were not redacted, except for the balance in the account at those entries. Mr Kraues submitted that "[t]he critical entries were heavily masked". In fact, they were not. The descriptions for the 51 transactions totalling $203,397.50 were variously "WITHDRAWAL FOR … KRAUES RETAINER" or "WITHDRAWAL FOR … KRAUES" or "WITHDRAWAL FOR KRAUES LAW" and specifying the relevant end date of the week. The bank statements otherwise identified all transactions which had occurred over the period but with the amounts of those transactions (whether debit or credit) redacted and with the account balance redacted. These other transactions were not shown to have any particular significance to the issues on the appeal.
76 The Authority filed submissions on 22 September 2016. The Authority's submissions included (footnotes omitted):
The funds retained by the Applicant
9 The bank records provided by Mr Siegel on 31 August 2016, indicate that a revised total of $203,397.50 was paid into the Respondent's bank account deducted from the wages of 69 miners, and paid in lump sums on 51 separate occasions.
9.1 These transactions are identified in hand-writing and numbered 1 to 51 in the documents.
9.2 This amount is $1980 less than the figure of $205,377.50 referred to at [3.2] and Annexure A of Mr Seigel's affidavit dated 10 November 2015.
10 The Respondent contends that the Tribunal should accept this amount has been retained by the Applicant, as the bank statements properly comprise business records.
77 Mr Joel filed submissions on behalf of Mr Kraues on 6 October 2016. Those submissions addressed the bank statements which had been provided. The submissions did not dispute that funds had been transmitted to Mr Kraues. In fact, they accepted that he had received funds. For example, it was submitted:
Considering the above, it is submitted that it would be incorrect to ascribe the behaviour of the Applicant in accepting funds in the manner described as indicating he is not a "fit and proper person".
20.1 The Applicant has received Retainer Fees, which cannot be ascribed the character of professional fees, which he placed in a general account in accordance with clause 3 (g) (i) of the Fee Agreement.
20.2 Of particular significance is that the company that owned the money and transmitted it to the Applicant has never requested its return. There is no evidence before the Tribunal to establish the origin of the money apart from the fact that this company paid it to the Applicant.
20.3 It is now seriously asserted that the failure of the Applicant to repay the funds to a group of persons who have no legal entitlement to it should lead to continued cancellation of his licence. Considering the permanent damage done to the reputation of the Applicant, it is a matter of concern that the Respondent continues the publication of the claim that he has misappropriated the money and is without integrity.
78 Rather, the submissions were directed to assertions that the funds transmitted did not establish "a nexus to the provision of immigration assistance", that some funds were "transmitted to the Applicant" before miners had completed an authority for deductions, that the bank statements were not consistent with the Corestaff Summary, that there was "no evidence … to establish the origin of the money apart from the evidence that this company [Corestaff Admin] paid it to the Applicant". The submissions contained the following:
In answer to central questions presented by the Tribunal
24.1 In answer to the question why did the Applicant retain the monies and not return them - the answer has been explained above. The previous owner of the funds, as asserted by the Respondent, is Corestaff Admin Pty Ltd. They have not requested the return of any funds from the Applicant.
24.2 Withdrawals were made from the Applicant's general account, as the Applicant genuinely believed they comprised Retainer Fees (in the manner previously described in the Applicant's Legal Submission filed 15/8/2016) - the contractual construction issue. The previous owner of the money has not made any objection to the nature of such withdrawal.
24.3 There is not anything wrong or improper for the Applicant accepting payment by a third party in accordance with the relevant terms of the Fee Agreement.
79 The submissions included a submission that there was "no evidence that the funds transmitted comprised the Miners' Salaries paid by Corestaff Pty Ltd". The submissions suggested that other business or financial records would have existed but had not been produced. For example, it was submitted that it would have been possible to produce the payroll records and corresponding bank statements.
80 No application was made by Mr Kraues to re-open or to adduce evidence, or to recall Mr Seigel for further cross-examination. No application was made to require further production under the summons for production or to issue a further summons. The bank statements which were produced were relied upon by Mr Kraues in his submissions.