Australian Immigration Daily News

How is the Office of the Migration Agents  Registration Authority to interpret the concept of “fit and proper person” under section 290 of the Migration Act? 

Is it possible to become a Registered Migration Agent even if you have a history of criminal convictions in Australia? 

Suppose a conviction is “spent”? What does that term mean? And can a “spent” conviction be taken into account when the MARA considers an application from a person seeking to become a RMA? 

And suppose the MARA has refused an application for registration and the applicant has appealed the refusal to the Administrative Appeals Tribunal?  Can the Tribunal consider matters that were not relied on, in the first instance, by the MARA when it made its decision to refuse the application? 

These issues, of course of professional interest and curiosity to all RMAs, were all “ventilated” in a case that was decided this week (24 October) by the Federal Court, Haque v Migration Agents Registration Authority (2016) FCA 1249. (Not to be totally silly about this, but unlike Australia, American lawyers do not commonly use the term “ventilated” when referring to issues that have been dealt with in a legal proceeding; rather, in the backward legal practice that I am accustomed to in America, the term “ventilated” is usually understood to mean “opening  a window”!) 

On the face of the evidence in this case, one would think initially that the applicant did not have a prayer of becoming registered as an RMA. 

His history was that he applied to be registered in July 2011. Some years before, in 2004, he had been convicted of intentionally causing injury to his wife  as a result of assaulting her in a domestic dispute.  The Victorian Magistrates’ Court recorded a conviction against the applicant in relation to this charge. However, the Court adjourned sentencing for 12 months upon receiving an undertaking from the applicant to be of good behaviour and to pursue medical treatment for a psychological disorder. The applicant complied with these conditions, and the proceedings was dismissed a year after the conviction was recorded. 

Subsequently, in March 2010, the applicant was charged with a number of offences resulting from an incident in which he drove a car at an acquaintance. In May 2012, he was found guilty by a jury in the Victorian County Court of the charge “of reckless conduct endangering serious injury”. He was sentenced to a community corrections order for a period of 12 months and was required to undergo mental health assessment and treatment.   The applicant’s applications to the Victorian Court of Appeal and the High Court of Australia to appeal against his conviction and sentence for this offence were both refused. 

When it came time for the applicant to fill out his application for registration, he answered a question on the application form that asked whether there had ever been a finding of guilt against him for a criminal offence in Australia by ticking the box stating “No.”.  

No surprise then that against this background, the MARA refused this person’s applicant to become an RMA, and no surprise that the Tribunal affirmed the refusal. 

At the Tribunal stage, it weighed heavily against the applicant that he had not disclosed the 2004 conviction (arising from the assault upon his wife) on his application form.  Again, no surprise there, right? If a visa applicant similarly failed to disclose a conviction on an application, it would also likely have fatal consequences for the applicant, wouldn’t it? So “what’s sauce for the goose is sauce for the gander”, as they say! That old Perry Mason adage that visa applicants should always tell the truth, the whole truth and nothing but the truth, applies with equal force to applicants for registration as RMAs. 

Also in the proceedings before the AAT, it emerged that the applicant had “a significant lack of understanding of English”.  More trouble? 

So was the applicant able to overcome these difficulties through his appeal to the Federal Court?

 In a word, no. 

He argued that in the “conclusion” section of its decision, the AAT had not referred to section 290 of the Act (the section that provides that the AAT is bound to consider whether an applicant is a fit and proper person). Good luck with that argument –it got nowhere, as the AAT had set out this section in an earlier part of its decision and had referred extensively to legal authorities concerning the meaning of the term “fit and proper person”. 

The applicant also argued that he had been “pardoned” for the offence involving driving the car at his acquaintance, and because he had been “pardoned”, that offence was “spent” and could not be considered by the MARA when it determined whether he was a fit and proper person.  

However, as it turned out, the applicant had not been “pardoned” at all, or ever!  There had simply been a recognition by the sentencing judge that the applicant had been “very much repentant”  and had “apologized to the court” for the motor vehicle incident.  

However, the Federal Court stated very clearly that saying you’re sorry for having committed an offence is not the same in the law as being “pardoned”.   The Federal Court found that since the applicant had not been pardoned, the offence was not “spent”, and could in fact be taken into account by the MARA when it considered the registration application. 

He also argued that because the MARA had not considered his weak English language skills to be a reason for refusal of his application for registration, the Tribunal could not rely on that reason to affirm the refusal. The Court rejected this argument, finding that  “it is axiomatic that the AAT stands in the shoes of the decision-maker” and was not limited in its consideration only to the material that had been before the AAT. 

Lastly, the applicant argued that the AAT could only make an adverse finding against him if it was satisfied beyond reasonable doubt that he not a fit and proper person. 

The Court made short work of this argument as well, noting that the criminal standard of proof to a reasonable doubt does not apply to proceedings in the AAT, which is not a court of law. 

In short, what we see in this case the story of an applicant who was determined to pursue every available avenue of appeal in his quest to become an RMA, but who really didn’t have a proverbial leg to stand on.  

He was doomed from the start by his criminal record, and his failure to disclose it on his application. 

Wasn’t he?