Smith v New South Wales Bar Association

REASONS FOR JUDGMENT The applicant has appealed, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), from a decision of the Administrative Appeals Tribunal ("the AAT") that the applicant is not a fit and proper person to give immigration assistance. As a consequence of that decision the applicant's application for registration as a migration agent was required to be refused pursuant to s 294(2) of the Migration Act 1958 (Cth) ("the Act"). The applicant applied for registration as a migration agent pursuant to s 288(1) of the Act. The application was referred to the Migration Agent's Registration Board ("the Board") pursuant to s 291. Section 294(2)(a) provides that the Board must not register the applicant as a migration agent if it is satisfied that: "the applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance." The Board was satisfied that the applicant was "not a person of integrity or was otherwise not a fit and proper person to give immigration assistance". The applicant sought review of the Board's decision before the AAT. In the hearing before the AAT the parties were represented by counsel in a hearing that took place over four days. At the conclusion of the evidence the parties agreed that it was appropriate to file written submissions in relation to the evidence. That occurred. No further hearing was sought by either party. In due course the AAT handed down its decision in respect of the seven matters which were alleged against the applicant and which were in issue before the AAT. After setting out, in some detail, the evidence relied upon by the parties in respect of the seven matters the AAT concluded as follows. "Of the seven specific matters which were the subject of complaint before this Tribunal adverse findings have been made against Mr Laba Sarkis in relation to only two - those of Habkouk and Sheikh. 168. The findings which have been made about these two matters are still quite sufficient, in the Tribunal's opinion, to demonstrate clearly a persistent lack of willingness on the part of Mr Laba Sarkis to be bound by the principles and guidelines established in the Code of Conduct to which he agreed to be bound. In the Habkouk matter Mr Laba Sarkis refused to refund his client's money which he was aware had been repayable by him for a period of more than two years. He gave conflicting, at times evasive, and unconvincing accounts of the reasons for his actions. In the Sheikh matter Mr Laba Sarkis also breached a number of provisions of the Code, and his failure to lodge the Sheikhs' application on time resulted in substantial hardship for his clients. Even more troubling was his submission, which was at best misleading and at worst dishonest, made to the Department about the reasons why there had been such a failure. These reasons made no mention of the fact that it was Mr Laba Sarkis himself who had been at fault, and that the Sheikhs had provided the requisite fee in time for him to lodge the application within the prescribed deadline. It can only be assumed that in failing to disclose this fact, Mr Laba Sarkis had in mind the protection of his own situation rather than that of his clients. He also implied that it was his secretary's fault, rather than his, that the application had been lodged after the deadline. 169. Mr Laba Sarkis was not an impressive witness. He seemed incapable of answering questions with candour or in a way which gave the Tribunal confidence in either the accuracy or reliability of his description of events. The lack of attention to detail, and the maintenance of basic record keeping and office accounting procedures demonstrated in the Habkouk and Sheikh matters, further indicated that Mr Laba Sarkis does not possess the professional capacities and skills expected and required of a person acting as a migration agent. 170. While not finding that Mr Laba Sarkis lacked integrity in the manner alleged by the respondent in the Kim matter, and in other respects, the Tribunal is still comfortably satisfied on the basis of all of the evidence before it that Mr Laba Sarkis is not a fit and proper person to give immigration assistance. As such Mr Laba Sarkis is not a person who can be registered as a migration agent, pursuant to section 296 of the Act. Accordingly, the decision under review is affirmed." In his appeal against the decision the applicant contended that the AAT erred in law in three respects. First, it was contended that the AAT denied natural justice to the applicant by failing, prior to its final decision, to afford him the opportunity to address it on the question of whether or not he was a fit and proper person to give immigration advice after, and in the light of, the findings of fact that it had made against him. Put another way the applicant contends that the AAT ought to have adopted a two stage procedure before concluding he was not a fit and proper person for the purposes of s 294(2)(a). It was next contended that the AAT had not taken into account the matters it was required to take into account under s 295. Those matters, so it was said, related in substance to the evidence adduced as to the applicant's knowledge of migration procedures and his fitness to give immigration advice. Finally, the applicant submitted that the AAT wrongly determined the matter on the basis of his fitness for practice as at 1993-4 rather than at the present time. In support of the applicant's contention that he was denied natural justice his counsel pointed to the complexity of the issues which confronted the applicant in the course of the AAT hearing, the fact that the issues involved disparate fact situations ranging over a period of many years and the general unfairness of requiring the applicant to respond to the case that he was not a fit and proper person without knowing the facts upon which the AAT proposed to rely in that regard. It was said to be inherently unfair for the applicant to have to contest his fitness for practice and, at the same time, put submissions and evidence in relation to an adverse outcome on the basis of fact findings against him which he was contesting. Counsel sought to rely upon what was said in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 272 per Deane J where his Honour referred to the unreality of expecting a person while maintaining the reliability of his or her evidence on an issue to have to set out to establish why that evidence was honestly mistaken. The problem with reliance upon Smith and, in particular, the passage to which I have just referred, is that it relates to the issue of unfairness in circumstances where a party has not been fairly apprised of the case that he or she has to meet. Smith was a case in which an adverse finding was made on the evidence in respect of a specific complaint of which no notice was given. In the present case that was far from the situation confronting the applicant. The matters in respect of which the adverse findings were made against the applicant were known to, and in issue between, the parties at the hearing before the AAT. The matters were the subject of detailed evidence and written submissions by the parties after the conclusion of the hearing. The fact findings that were made by the AAT were findings based upon those written submissions in respect of the matters in issue. I agree with the submission of counsel for the respondent that the AAT's conclusions "fell squarely within the scope of the outcomes contemplated by the competing written submissions of the parties". Further, in the course of the hearing the applicant addressed the issues raised in the seven matters in the context of whether the criteria set out in s 294(2)(a) had been made out. Finally, at no stage during or after the hearing did the applicant's counsel request the AAT to conduct a two stage procedure, that is, to hand down a decision on the findings of fact in relation to the seven matters in issue and then afford the applicant an opportunity to address on the question of whether those findings justified the refusal of the applicant's application for registration. It is well established that the rules of natural justice require fairness according to all the circumstances of the particular case: see Boucher v Australian Securities Commission (1996) 71 FCR 122 at 128. The requirement for procedural fairness was described in the following terms in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 127 ALR 699 at 715 per Northrop, Miles and French JJ: "Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision maker. It also extends to require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question." In my view in the present case the AAT was not required to advise of the adverse conclusions at which it had arrived prior to handing down its decision. The conclusions were open on the material before the AAT and were well within the scope of the outcomes which were the subject of the submissions of the parties. Indeed, in the present case the findings related to the very matters in issue between the parties. Further, if there were special circumstances which the applicant wished to put forward which were embarrassing in the sense discussed by Deane J in Smith at 272 then it was incumbent upon the applicant to apply to the AAT for a two stage hearing. In the absence of any such request, and its refusal, there is simply no basis for contending that the hearing was conducted unfairly or in breach of the rules of natural justice. Even if such a request had been made, and was refused, I doubt that the refusal would have constituted a denial of natural justice in the present case. The second and related ground relied upon by the applicant concerned whether the Board had failed to take into account the matters required to be taken into account under s 295(b) and (d). Those matters related to the extent of the applicant's knowledge of migration procedure and any other matter relevant to the applicant's fitness to give immigration advice. In my view there is no substance in this point. The requirement to consider the matters set out in s 295 was referred to by the AAT in its decision. Further, matters relevant to s 295 were addressed in the evidence and were raised, either explicitly or implicitly, in the course of submissions. In those circumstances the fact that the AAT did not specifically refer to the matters as a discrete issue in its reasons for decision does not have the consequence that it did not have regard to them: see Kioa v West (1985) 159 CLR 550 at 570, 588, 604, 630 and 634. I would add that it is not surprising that the AAT did not outline the detail of the matters in its reasons. When regard is had to the generality of the matters relied upon by the applicant under s 295(b) and (d), the paucity of detail given in relation to them and the strong findings made by the AAT in relation to whether the applicant was a fit and proper person to give immigration assistance the particular matters were unlikely to have been given much weight by the AAT. Finally, it was contended that the events relied upon by the AAT in refusing the applicant's application for registration were approximately four years old. Consequently, so it was said, the AAT had not properly exercised its jurisdiction by having regard to whether the applicant was a fit and proper person to give immigration assistance as at the date of its hearing or of its decision, being 23 October 1997. It is quite clear from the decision of the AAT that it viewed its task as having to decide the issues arising under s 294(2)(a) as at the date of the hearing on a review which was by way of a hearing de novo. That is precisely what it did. For the above reasons the application is to be dismissed with costs.