Seymour v The Migration Agents Registration Authority

THE RELEVANT LEGISLATION 4 The legislative scheme which provides for the registration of migration agents is to be found in Part 3 of the Act. Part 3 contains the following provisions which are of relevance on this appeal. Section 290 provides: "290(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; (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Authority must take into account: (a) the extent of the applicant's knowledge of migration procedures; and (b) [repealed] (c) any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not: (i) a fit and proper person to give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 subject of and that the Authority considers relevant to the application; and (e) any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and (f) any disciplinary action that is being taken, or has been taken against the applicant that the Authority considers relevant to the application; and (g) any bankruptcy (present or past) of the applicant; and (h) any other matter relevant to the applicant's fitness to give immigration assistance. (3) … (4) To avoid doubt, this section applies to all applicants (not just first time applicants)." Section 312 of the Act requires registered agents to notify MARA in writing within 14 days after certain events occur which may have a bearing on the fitness and propriety of the agent. These events include the conviction of the agent of an offence under a law of the Commonwealth or of a State or Territory: see s 312(1)(e).

THE TRIBUNAL'S DECISION 5 The reasoning of the Tribunal commenced with an uncontroversial explanation, based on authority, of what is meant by fitness and propriety in an occupational licensing context. The Tribunal then turned its attention to the 2004 contempt conviction. It did so in order to deal with Mr Seymour's contention that the contempt proceeding was not criminal in nature and he had not been convicted of a criminal offence. The Tribunal recorded that: "16. At paragraph 12 of his judgment, Buddin J referred to AG for New South Wales v Whiley (1993) 31 NSWLR 314 where the NSW Court of Appeal said: 'a conviction for contempt of court is a conviction for an offence which is criminal in nature …' His Honour went on to say at paragraph 14: 'The Migration Agents Registration Authority may, pursuant to s 303 of the Migration Act 1958 (Cth), cancel or suspend (for a period not exceeding five years) an agent's registration if it becomes satisfied of the existence of various matters …One of the matters that is included in that list is any conviction of the person of a criminal offence. That being so, it is common ground that the offender may well have his registration cancelled or at least suspended.' He added at paragraph 15: 'The question of what action (if any) is taken by the Authority as a consequence of these proceedings, is a matter entirely for it. As it is quite possible that the Authority will take action against the offender it is accordingly appropriate that I should take into account in his favour, the fact that a conviction for this offence may well have a significant impact upon his capacity, especially given his age, to earn an income.' 17. During the course of these proceedings the Applicant submitted that the conviction (to use Buddin J's term in paragraph 15 of his judgment) was not of a criminal offence." (Emphasis added) The Tribunal then embarked on a lengthy analysis of authorities dealing with the distinction between civil and criminal contempt. The Tribunal concluded that, although the matter was not free from doubt, the proceeding before Buddin J was criminal in nature. 6 The Tribunal next dealt with the allegation that Mr Seymour had failed to disclose the drink driving conviction when he made his initial application for registration. It found that the offence itself had no material bearing on the "fitness and propriety" question. What was, however, relevant was Mr Seymour's failure to make disclosure of the conviction. The Tribunal noted a number of favourable testimonials provided by referees for Mr Seymour and then expressed its conclusions as follows: "37. Notwithstanding his referees views as to his character, and I note that at least one was most discomforted when the full import of Buddin J's decision was made known to him, the Applicant cannot escape his history. He is a person who in 1982 was struck off as a solicitor. In 1994, for reasons not explained to me, he gave undertakings to the Supreme Court of NSW that he would not in future act or purport to act as a solicitor. In [2004] he was convicted and sentenced to 9 months imprisonment, suspended upon entering into a good behaviour bond, for purporting to act as a solicitor in breach of his undertakings. 38. As far as I am concerned, those facts alone would be sufficient to render the Applicant not a fit and proper person whether the contempt was criminal or civil. Added to those facts are the other facts that the Applicant committed his contempt not only after giving undertakings but within 12 months of proceedings regarding other alleged similar breaches of his undertaking, albeit those proceedings were resolved in his favour. Then, although having previously argued that the similar contempt proceedings were criminal, he declined to notify the Respondent of his conviction for contempt on 3 June 2004. Previously, he had neglected to inform the Respondent himself of a conviction in 1990 for a driving offence. 39. Taken altogether, I find that the Applicant is not a person of integrity nor is he a fit and proper person for the purposes of s 290 of the Act." (Emphasis added in para [38]).

THE TRIAL JUDGE'S DECISION 7 The applicant purported to exercise his right, conferred by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), to appeal to this Court on a question of law. Each of the eight questions of law which were contained in the notice of appeal was prefaced by the words "did the AAT err in law …" As has often been pointed out by this Court (see, for example, Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524, 527 and Birdseye v ASIC (2003) 38 AAR 55 at 58-62) questions so phrased are not questions of law. It does not appear that any attempt was made to amend the notice before or during the trial. When the issue was raised on the hearing of this appeal an attempt was made to reframe the questions so that the requirements of s 44 were satisfied. No formal application for amendment was made and ruled on. The Court has proceeded to deal with the appeal on the basis that it would be possible to draft appropriate questions so as to satisfy the jurisdictional requirement of s 44. Neither at trial nor on the hearing of the appeal did the Respondent seek to contend that the Court lacked jurisdiction to deal with the proceeding before it because of the absence of appropriately drafted questions of law. 8 Having regard to the grounds relied on at the hearing of this appeal it is not necessary to set out in detail the learned primary Judges' reasons. Suffice it to say that his Honour held that: · The 2004 conviction was for a criminal offence. · It was "a criminal offence" within the meaning of s 290(2)(c) and was a matter which the Tribunal was bound to take into account when determining Mr Seymour's fitness and propriety to give immigration assistance. · Mr Seymour was required, by s 312(1)(e) to notify the Authority of the 2004 conviction and had not done so. · The Tribunal was entitled to have regard to Mr Seymour's failure to advise the Board of his drink driving conviction when he made his application in 1993. 9 His Honour concluded his reasons by examining the reasoning adopted by the Tribunal in the course of coming to what it regarded as being the correct and preferable decision: cf Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409. His Honour said: "137. I am of opinion, having regard to the reasons it gave, that when the tribunal made its evaluation of Mr Seymour at [37] - [38] it did so on a separate and independent basis from the vexed question of whether the contempt was a criminal offence. That is clear because the tribunal at [38] put the question of the nature of the contempt to one side and referred to the objective facts before Buddin J and the seriousness which his Honour attached to the conduct of Mr Seymour as reflected in the substantial sentence imposed. There is no error of law in what the tribunal did in this regard. 138. It was for the tribunal to form its own state of satisfaction under s 290(1) as to the fitness and propriety or integrity of Mr Seymour. In doing so, it took into account matters under s 290(2)(c) and (h) independently of one another; that is, first, it considered that the contempt was a criminal offence thus enlivening ss 290(2)(c) and 312(1)(e) but secondly, and separately, it considered the objective facts revealed by the judgment of Buddin J, thus acting under s 290(2)(h). (We would interpolate that the Tribunal was not "acting under s 290(2)(h)" when it made its order. It was acting under s 290(1), taking into account, as it was bound to do, the otherwise relevant matters. Nothing turns on this point for the purposes of the appeal). … 143. I am satisfied that in [38] the tribunal was expressing an independent and free standing reason for being satisfied, pursuant to s 290(1), that Mr Seymour was not a fit and proper person regardless of the proper characterisation of whether his contempt was a criminal offence. Since there is no error of law in the way in which the tribunal arrived at this conclusion, even if it and I be wrong as to the nature of the contempt, the tribunal's decision should stand …"

THE APPEAL TO THIS COURT 10 At the hearing of the appeal counsel for the appellant abandoned two grounds appearing in the notice of appeal and sought leave to add two fresh grounds. The Court reserved its decision on the application but permitted counsel to advance argument on the two proposed grounds. It is appropriate that leave be granted given that the respondent is not prejudiced by the late amendment and that the new grounds were confined to construction issues. 11 The appellant submitted that the appeal raised two questions. They were: · Did the orders made by Buddin J constitute a conviction of a criminal offence for the purposes of s 290(2)(a) of the Act; and · Whether the primary Judge "erred in failing to hold that the [Tribunal] erred in the way it concluded that the decision to refuse to reregister [Mr Seymour] was the correct or preferable decision under s 290(1) of the Act".

THE FIRST ISSUE 12 The appellant contended that his "conviction" for contempt was not a conviction for a "criminal" offence for the purposes of ss 290(2)(c) or 312(1)(c) of the Act. There was, therefore, so it was argued, no obligation on him to disclose to MARA that the charge had been laid or that the conviction had been recorded. Nor was the conviction one which MARA (or the Tribunal) was bound to take into account in determining whether he was a fit and proper person to give immigration assistance. Subsidiary arguments relied on alleged inconsistencies between the curial procedures for dealing with contempt and the requirements of the International Covenant on Civil and Political Rights and on the "spent convictions" provisions of the Crimes Act 1914 (Cth). 13 In our view it is unnecessary, for the purposes of disposing of this appeal, to determine whether or not the 2004 conviction constitutes a conviction for a criminal offence. This is because the Tribunal was satisfied that Mr Seymour was not a fit and proper person to give immigration assistance by reason of his conduct whether the relevant part of the conduct be characterised as "criminal" or not. So much is plain from a reading of paras [37] and [38] of the Tribunal's reasons which are set out above at [6]. In particular, reference is made to the first sentence of para [38] of the Tribunal's reasons. The Tribunal's use of the words "convicted" and "sentenced" in para [37] of its reasons merely reflects language drawn from the order and judgment of Buddin J to which reference was made earlier in the Tribunal's reasons: see at paras [11], [16] and [17]. As the Tribunal makes clear in the next sentence (the first in para [38]), the use of words was not intended to, nor does it, characterise the conduct on which the Tribunal relied as, necessarily, being criminal in nature. Like the primary judge we are satisfied that the Tribunal's finding that Mr Seymour was not a fit and proper person was founded on considerations other than those identified in s 290(2)(c) of the Act. The matters referred to in para [37] of the Tribunal's reasons were matters which the Tribunal was entitled to take into account (whether under s 290(2)(h) or otherwise) and it was open to the Tribunal, having regard to them, to reach the conclusion which it did. It may be noted in passing that it was "common ground" before Buddin J that the 2004 conviction was criminal in nature.

THE SECOND ISSUE 14 As we understood the argument developed by the appellant on the second issue it involved a series of further criticisms of the manner in which the Tribunal identified its task and reached its findings as to Mr Seymour's fitness and propriety. The appellant contended that the matters referred to in para [37] of the Tribunal's reasons could not be taken into account because they were not relevant. It was said that they were relevant, if at all, to what was said to be "the alterative issue as to whether the appellant was a person of integrity". This was a construction point. The argument commenced with the proposition that, although the Tribunal (at para [39]) found that Mr Seymour is "not a person of integrity nor is he a fit and proper person for the purposes of s 290 of the Act," its decision was narrowed to a finding that Mr Seymour "is not a fit and proper person to be registered as a migration agent". It was submitted that not all of the considerations identified in s 290(2) went to fitness. Some did. It was said, for example, that an applicant's inadequate knowledge of migration procedures (s 290(2)(a)) would go to the issue of fitness but not to propriety or integrity. Similarly s 290(2)(h) only required MARA and the Tribunal to take into account other matters going to an applicant's "fitness" as distinct from propriety or integrity. It was contended that matters of the kind referred to by the Tribunal in para [37] of its reasons did not bear on fitness but rather on integrity. 15 In our opinion this submission must fail. First, it overlooks the prefatory words of s 290(2) which require that the matters listed in its various paragraphs be taken into account in determining whether or not the decision-maker is satisfied that the agent (or proposed agent) is "not a fit and proper person or not a person of integrity". Secondly, it assumes that the matters identified in para [37] were taken into consideration pursuant to the requirements of s 290(2)(h). They may or may not have been. However, there is no reason, consistently with the language of s 290(1) and (2), why the matters could not have been considered for the purpose of determining whether Mr Seymour was not a fit and proper person to give immigration assistance. This is because s 290(2) does not expressly or impliedly constitute an exhaustive or exclusive list of the matters which the Tribunal may or must take into account when forming a judgment for the purposes of s 290(1)(a). In any event, we do not accept the argument that s 290(2)(h) does not comprehend matters going to questions of a person's "propriety" for the purposes of s 290(1)(a). A person whose propriety or integrity is questionable may well, for that reason, not be fit to provide immigration assistance. Whether this is so or not is a matter for MARA to decide on the evidence before it. Matters such as those adverted to in para [37] are certainly capable of informing a judgment as to a person's fitness and propriety to give immigration assistance. 16 The appellant further submits that the Tribunal erred when it took into account the fact that Mr Seymour had been struck off in 1982. It was said that it was precluded from so doing because the Board, in 1994, had found him to be a fit and proper person to be registered as a migration agent notwithstanding his disclosure of the circumstances which led to his exclusion from legal practice: "the [a]ppellant should not have to re-explain his history each year once his answer to this has been once accepted". These submissions must fail. The Tribunal is not bound by what the Board did over a decade earlier. Moreover, subsequent events, such as the 2004 conviction, may well lead a decision-maker, as it did in this case, to review an applicant's history. The Tribunal did not revive the 1982 striking-off decision in isolation. It did so as a logical starting-point for examining the 1994 Court order and the 2004 conviction for its breach. Together these events indicated that Mr Seymour had acted as a solicitor despite being struck off the roll and agreeing to orders that he should not so act again. He thereby demonstrated a willingness to disregard Court orders and the law regulating legal practitioners.

DISPOSITION 17 The appeal should be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Nicholson, Downes and Tracey.

Counsel for the Appellant: Mr T Hurley & Mr W Lowe