Lilienthal v Migration Agents Registration Authority [2002] FCA 93

FEDERAL COURT OF AUSTRALIA

Lilienthal v Migration Agents Registration Authority [2002] FCA 93

MIGRATION – Migration agents – Registration – Appeal against decision of Administrative Appeals Tribunal affirming decisions of Migration Agents Registration Authority cancelling and refusing registration of a migration agent – Whether statutory provisions conferring jurisdiction on Authority apply to conduct of agent in respect of all clients – Whether jurisdiction only applies where there has been a prior finding about the agent – Meaning of "person of integrity" – Ambit of para (h) of s 290(1) of Migration Act – Nature of agent's obligation towards Department. Migration Act 1958 ss 276, 290 GARY IAN LILIENTHAL v MIGRATION AGENTS REGISTRATION AUTHORITY N1434 of 2001 WILCOX J 4 FEBRUARY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1434 of 2001

BETWEEN: GARY IAN LILIENTHAL

APPLICANT

AND: MIGRATION AGENTS REGISTRATION AUTHORITY

RESPONDENT

JUDGE: WILCOX J

DATE OF ORDER: 4 FEBRUARY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal against the decision of the Administrative Appeals Tribunal be dismissed. 2. The applicant, Gary Ian Lilienthal, pay the costs of the respondent, Migration Agents Registration Authority. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1434 of 2001

BETWEEN: GARY IAN LILIENTHAL

APPLICANT

AND: MIGRATION AGENTS REGISTRATION AUTHORITY

RESPONDENT

JUDGE: WILCOX J

DATE: 4 FEBRUARY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

WILCOX J: 1 This is an application, instigated by filing a notice of appeal, whereby the applicant, Gary Ian Lilienthal, challenges a decision of the Administrative Appeals Tribunal. 2 The matter came before the Tribunal, constituted by Deputy President Purvis, by way of application for review of three decisions of the Migration Agents Registration Authority, constituted under the Migration Act 1958. Two of these decisions related to cancellation of Mr Lilienthal's registration as a migration agent. The third was a deemed refusal, by the Authority, to register him as a migration agent as from 7 January 2001. 3 In this Court Mr Lilienthal has acted on his own behalf. Pursuant to directions made by me, he filed and served a document entitled "Appellant's Outline of Written Submissions". This document is lengthy and makes numerous references to the transcript of the hearing before the Tribunal. Overwhelmingly, the raised matters are of fact, rather than law. 4 When the hearing commenced this morning, I pointed out to Mr Lilienthal that the Court had power only to deal with submissions of error of law: see s 44 of the Administrative Appeals Tribunal Act 1975. Mr Lilienthal accepted this. He thereupon put a number of points, which he expressed as propositions of law and argued with some references to authority and to the transcript. I will deal with each of them separately. 5 Mr Lilienthal's first point, which was also raised in his outline of submissions, is that the provisions concerning registered migration agents contained in the Migration Act apply only to the conduct of a registered agent in relation to an alien who is located inside Australia, as distinct from an alien who is outside Australia or a person who, although an alien, has the right of permanent residence in Australia. 6 Mr Lilienthal sought to justify this distinction by reference to the decision of the High Court of Australia in Cunliffe v Commonwealth of Australia (1994) 182 CLR 272. In particular, he referred to various comments made in the judgment of Mason CJ. He highlighted a sentence at 295: "The point is that Part 2A seeks to regulate the provision of immigration assistance to aliens and to no one else." 7 I need not set out all of the references made to Cunliffe by Mr Lilienthal. Mr Lilienthal accepted that, in that case, the High Court held the statutory provisions relating to the registration of migration agents all to be constitutionally valid. The provisions have been relocated since the decision in Cunliffe. Instead of being contained in Part 2A of the Act, as they then were, they are now contained in Part 3. However, it is common ground between the present parties that there is no substantial difference between the two sets of provisions; certainly no such difference as would make Cunliffe inapplicable to the present Part 3. 8 Once the conclusion is reached that all the relevant provisions of the Migration Act are constitutionally valid, the only possible basis for the distinction argued by Mr Lilienthal can be something expressed or implicit in those provisions. I invited Mr Lilienthal to indicate to me anything in the Migration Act which expresses or implies such a distinction. He frankly indicated there was no material to which he could point. I see no such material. The statutory provisions govern migration agents, in relation to their activities on behalf of clients with the Department of Immigration and Multicultural Affairs, whether those clients are aliens located inside Australia or aliens located outside Australia or even non-citizen permanent residents of Australia. There is no substance in Mr Lilienthal's first point. 9 The second matter which was put, and which is also undoubtedly a question of law, relates to the proper construction of s 290 of the Migration Act. Section 290(1) and (2) read as follows: "(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; or (b) the applicant is not a person of integrity; or (c) the applicant is related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship. (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 procedure; and (b) whether the applicant has a qualification prescribed by the regulations or a knowledge of migration procedure that the Authority considers to be sound; and (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 the 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 a professional association is taking, or has 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." 10 It will be noted that subs (1) is in mandatory terms. It forbids the registration of an applicant as a migration agent if the Migration Agents Registration Authority is satisfied of any one of three matters. The first of those matters is that the applicant is "not a fit and proper person to give immigration assistance". The second matter is that the applicant "is not a person of integrity". The third matter has no relevance to the present case. 11 The contention put to the Tribunal on behalf of the Migration Agents Registration Authority was that the evidence indicated Mr Lilienthal was not a fit and proper person to give immigration assistance and was not a person of integrity. The issue for the Tribunal to determine was whether or not that contention was correct. 12 Subsection (2) of s 290 sets out the matters which the Authority, and therefore the Tribunal on an application for review, must take into account in resolving these issues. It will be noted the listed matters include para (h) which reads: "any other matter relevant to the applicant's fitness to give immigration assistance." 13 Mr Lilienthal submitted to me that para (h) should be read subject to the canon of construction which is generally referred to as ejusdem generis rule. That canon is to the effect that, if it is possible to discern from other statutory provisions a particular genus or category of actions or things, then a general statement will be construed in such a way as to be confined to actions or things which share that genus. 14 I asked Mr Lilienthal to identify the relevant genus. He answered that each of the other paragraphs refers to a situation where there had been a prior decision, by somebody, regarding the applicant for registration. 15 I have difficulty in accepting there is such a genus. For example it is difficult to see how it accommodates para (a): "The extent of the applicant's knowledge of migration procedure." 16 Mr Lilienthal submitted the extent of an applicant's knowledge of migration procedure could only have been ascertained by an earlier examination. But it seems to me that para (a) requires the Registration Authority to act on its own judgment about the extent of an applicant's knowledge. It may, for example, be the position that a person has obtained a formal qualification, but the Registration Authority is satisfied the applicant's knowledge is so deficient as to make it necessary to conclude he is not a fit and proper person to give immigration assistance. In that case, application of the paragraph would not depend upon a prior decision by somebody else. 17 Mr Lilienthal also submitted that, if the matter that went to the issue of integrity or to the person being a fit and proper person to give immigration assistance is a matter that would constitute a criminal offence, then the Registration Authority is concerned only to inquire whether there had been a conviction or there was a pending criminal proceeding: see paras (c) and (d). Mr Lilienthal resisted the suggestion that the Authority would be entitled to have regard to alleged facts which, if proved, would constitute a criminal offence, but in respect of which a conviction had not been recorded. This might be because of difficulties in bringing the matter to trial or because the evidence was inadequate to satisfy a court beyond reasonable doubt; yet the Authority might reasonably be satisfied of the correctness of the allegation upon the balance of probabilities. 18 I doubt the correctness of Mr Lilienthal's submission about criminal conduct. It seems to me that paras (c) and (d) simply make relevant a conviction or criminal proceedings. They do not preclude the Authority from considering evidence of the conduct of the migration agent, whether or not it constitutes a criminal offence and whether or not there has been a conviction or a criminal proceeding is pending. 19 The effect of Mr Lilienthal's submission is that the Authority would be unable to embark on its own inquiry, at the time of considering a complaint, and then give effect to the conclusion it reached in that inquiry. The proposition is that para (h) only covers matters in respect of which there has been a prior determination by a public authority. This means that, if a person made a complaint to the Authority, no matter how heinous the conduct which the Authority, on inquiry, found proved, it could do nothing about it in terms of cancelling the migration agents' registration. That seems a nonsensical result, yet it would apply if Mr Lilienthal's submission were correct. 20 I do not think that there is a relevant genus in subs (2). I think Parliament has deliberately used language in para (h) sufficiently general to cover any other matter which can be regarded as relevant to integrity or fitness to give immigration assistance, whether or not that matter falls within, or overlaps, any of the preceding paragraphs. 21 Mr Lilienthal submitted that, if this were so, there would be no end to the Authority's inquiry; nobody is perfect. I accept that nobody is perfect. It may be difficult to say any person has complete integrity. However, Mr Lilienthal's submission overlooks that the ambit of the Registration Authority's inquiry is circumscribed by its statutory context. The Authority is not concerned with moral perfection in every aspect of life, but only those aspects of character and behaviour which go to fitness to give immigration assistance. For example, it seems to me that a migration agent's private sexual conduct, having no relationship to his or her work as a migration agent, would not be a matter within the purview of the Registration Authority. Although members of the person's family or friends might regard that sexual conduct as reprehensible, and going to moral integrity, that would not be a matter of integrity covered by s 290 of the Migration Act. I decline to read down para (h) in the way contended for by Mr Lilienthal and I reject his submission on this point. 22 Mr Lilienthal also submitted that the Tribunal misdirected itself about the standard of integrity required by registered migration agents. In its reasons for decision, the Tribunal quoted with approval a number of statements about the concept of integrity in the context of s 290. Particular reference was made to a statement contained in Re Peng v Department of Immigration and Multicultural Affairs and AAT (1998) AATA 12. The statement was there made that integrity means soundness of moral principle and character, uprightness, honesty. Mr Lilienthal does not challenge this definition of the term; his challenge really harks back to the width of para (h) of s 290(2). 23 Mr Lilienthal also criticises the present Tribunal's adoption of the following statement made in Peng: "The use of the word 'assistance', in my view, extends to not only help given to would-be applicants, but also help given to the Department in the administration of immigration programs. In that regard, frankness and truth are of primary importance." Mr Lilienthal says this statement is at odds with a statement made in Cunliffe at 330 by Brennan J. His Honour there said, in reference to the power of Parliament to enact what was then s 114T of the Migration Act: "… the power cannot be exercised, in theory or in practice, for any purpose save the protection of entrance applicants who might wish to engage the applicant's services." 24 I do not see any inconsistency between what was said by Brennan J and the statement made in Peng that "assistance" includes help given to the Department in the administration of immigration programs. The position may be compared with lawyers representing clients in a court. Lawyers are allowed to appear in court because of the desirability of litigants being represented by people trained in the law. Rules governing the conduct of lawyers are premised on that rationale. However, it is well understood that, in representing clients, a lawyer also owes duties to the court: to be frank, to avoid misleading the court and to assist in the efficient and expeditious disposal of the case. There is not thought to be any inconsistency between giving assistance to the court, in its carrying out its functions, and the primary obligation of the lawyer to represent the client. It seems to me this type of dual responsibility was being referred to in Peng. 25 In any event, I do not think anything turns upon the statement in Peng or its adoption by Deputy President Purvis in the present case. The critical aspect of his references to authorities concerned the concept of integrity which, as I have said, is not contentious. 26 Mr Lilienthal described his next point as relating to the Tribunal's findings about his credibility. Deputy President Purvis was critical of Mr Lilienthal in a number of respects and, in important matters, found he was not to be accepted on his oath. Mr Lilienthal complained to me about this. However, the Tribunal's findings about credibility were, of course, findings of fact. 27 Mr Lilienthal referred to two cases in support of his complaint; but neither of them is relevant. The first case, Malfanti v Legal Professional Disciplinary Tribunal, a decision of the New South Wales Court of Appeal which is apparently reported only in (1993) LPDR 4 at 17, deals entirely with the question whether a person against whom a complaint is made is compellable to give evidence. That is not this case, Mr Lilienthal elected to give evidence. He gave evidence-in-chief and then was cross-examined. 28 The other case was the decision of the High Court in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28. This related to the Refugee Review Tribunal's treatment of an unrepresented party. The High Court said the Refugee Review Tribunal ought not to engage in conduct that has the effect of intimidating or overbearing a party. Mr Lilienthal told me he was not intimidated by the present Tribunal, but he was overborne. When I asked him what he meant by this, he said rulings were given about which he was unhappy. I asked him why that constituted overbearing conduct of the Tribunal. He responded that this was a case of apprehended bias. I asked him to demonstrate this from the transcript. He took me to one transcript reference which showed nothing of the sort. Mr Lilienthal then indicated he did not press that point. It seems to me there is nothing in his submissions about credibility or apprehended bias. 29 This brings me to Mr Lilienthal's final point, which he called lack of procedural fairness. The submission was based on the fact that two people who feature prominently in the evidence, a Mr Zilka and a Ms Duggua, were not called to give evidence. The Tribunal member found that neither of them was any longer in Australia. Ms Duggua is apparently British and had returned to the United Kingdom. Mr Zilka is an Israeli. His present whereabouts were said to be not known, but it was surmised he might be back in Israel. Whatever the position, the fact is that neither of these people gave evidence. One other witness, a Ms Hampton, gave evidence to the Tribunal by telephone. Mr Lilienthal submitted to me that, if Ms Hampton could give evidence by telephone, then Mr Zilka and Mr Duggua could have also given evidence by telephone. Perhaps they may have been able to do so; there is no evidence before me as to whether there would have been difficulties about that. If it is correct that Mr Zilka's whereabouts were unknown at the time of the Tribunal hearing, there is an obvious difficulty about his being required to give telephone evidence. 30 However, the question is not whether or not either of these witnesses could have given evidence, but whether their absence constituted a procedural defect. Nothing seems to turn on Ms Duggua's failure to give evidence. However, Mr Zilka's absence was significant. On several occasions, in his reasons for decision, the Deputy President referred to the fact that Mr Zilka had not given evidence. He did this in the context of refraining from making a finding about a particular matter because Mr Zilka had not been called. Mr Lilienthal submitted that, nonetheless, the Deputy President did exactly what he said he would not do; he made a finding which depended on the evidence of Mr Zilka, but of which there was no evidence. 31 When I asked Mr Lilienthal to identify those findings, he referred to the finding by the Tribunal member that he, Mr Lilienthal, had provided immigration assistance to Mr Zilka before becoming registered as a migration agent. This was the only finding he cited. 32 It was common ground before the Tribunal that Mr Lilienthal was first registered on 7 January, 1997. It was also common ground that Mr Zilka was introduced to Mr Lilienthal by a migration agent known as Ms Hotimsky. She was unable to take Mr Zilka's case because of other commitments. There was an issue as to whether or not there was a meeting between Ms Hotimsky and Mr Lilienthal on Saturday 21 December, 1996. It was accepted that, whatever the position about 21 December, there was certainly a meeting between Mr Lilienthal and Mr Zilka on the following Tuesday, 24 December, 1996. The evidence contains a copy of a fee and service agreement, dated that day, between Mr Lilienthal, who is described in that document as "Dr Gary I. Lilienthal, Legal Service Provider", and Mr Zilka. The agreement recites an agreement by Mr Lilienthal: "To provide client with assistance per the schedule." The schedule identifies the assistance as being the preparation and lodgement of: "The appropriate visa application with the Department of Immigration and Multicultural Affairs." 33 Mr Lilienthal gave evidence to the Tribunal that he assisted Mr Zilka in the preparation of a visa application on 24 December 1996, that is, before he became a registered migration agent. However, he submitted to me that this did not justify the Tribunal's finding about providing immigration assistance to Mr Zilka before he became registered. Mr Lilienthal pointed out the term "immigration assistance" is a term of art. The term is explained in s 276 of the Migration Act. Section 276(1), so far as is relevant, reads: "For the purposes of this Part a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by: (a) preparing, or helping to prepare, the visa application or cancellation review application; or (b) advising the visa applicant or cancellation review applicant about the visa application or cancellation review application …" 34 Mr Lilienthal gave evidence to the Tribunal that his role in preparing Mr Zilka's visa application was simply to translate the English words on the visa application form into Hebrew, which Mr Zilka could more easily understand, and to translate Mr Zilka's oral responses from Hebrew into English. In other words, Mr Lilienthal presented himself in evidence as being purely a translator or interpreter. The Tribunal did not accept this. The Tribunal thought he was acting as a person who was purporting to use his knowledge of migration procedure in order to assist Mr Zilka. 35 It seems to me this conclusion was amply justified, having regard to the terms of the fee and service agreement. As I have said, it was dated the same day as the date of preparation of the visa application. It provided for a fee of $225 per hour to be paid by Mr Zilka to Mr Lilienthal, $1,000 being immediately payable. It would be extraordinary, to say the least, for a person to agree to pay fees at this rate for assistance in the preparation and lodging of a visa application, but then use the payee simply as an interpreter; particularly in a case where the payee represented himself as an expert in the law. 36 No other submission concerning lack of procedural fairness was put by Mr Lilienthal. 37 There is no merit in any of the matters put by Mr Lilienthal to the Court. In saying that, I bear in mind the numerous matters raised in the outline of submissions, which I read before coming into court today. As I have said, they are overwhelmingly matters of fact, as to which the Court has no jurisdiction. Those that are truly propositions of law are either encompassed in the points that were orally raised today, and with which I have dealt, or are untenable matters which were not pressed. 38 The appropriate course is for me to order that the appeal against the decision of the Administrative Appeals Tribunal be dismissed. I so order. The applicant must pay the respondent's costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.