Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: Council of New South Wales Bar Association v Annan [2014] NSWCATOD 41
• Hearing dates: 4,5 November 2013
• Decision date: 30 April 2014
• Jurisdiction: Occupational Division
• Before: D Patten, Principal Member; P Blacket SC, Senior Member; C Bennett ,General Member

Decision

Finding of Professional misconduct.

• Catchwords: Barrister acting as Migration agent - concoction of documents-false statements to Migration Agents Review Authority-Practice as Migration Agent whilst disqualified.
• Legislation Cited: Legal Profession Act 2004, Migration Act (Commonwealth)
• Cases Cited: Allinson v General Council of Medical Education and Registration [1894] 1QB750
• Category: Principal judgment
• Parties: Council of Bar Association of NSW (Applicant); Ebenezer Eyeson-Annan (Respondent)
• Representation: Counsel; M Johnston (Applicant); Hicksons Lawyers (Applicant); J Annan (Respondent in person)
• File Number(s): 102013,102023

reasons for decision

1 These two matters by direction of the Tribunal were heard together. In the earlier (102013) the Council of the Bar Association (the Council) in its Amended Application sought a finding that John Annan (Mr Annan) has engaged in professional misconduct and the making of consequential orders.

2 The grounds of the application are not without complication. Mr Annan a practising barrister was also prior to 12 November 2007 a registered Migration Agent. On that date he was disqualified by the Migration Agents Review Authority (MARA) from acting as a Migration Agent for 2 years and until it was satisfied that he had complied with certain conditions. The misconduct relied upon by the Council was allegedly committed both before and after 7 November 2007 and involves the falsification of documents provided to MARA and the giving of false information to it.

3 The later application 102023 alleges that between November 2007 and January 2008 Mr Annan practised as a Migration Agent whilst disqualified from doing so, falsely represented himself to a client as a Migration Agent without disclosing his disqualification gave false advice to that client in relation to a pending hearing before the Migration Review Tribunal (MRT) and gave false evidence to the Federal Magistrates Court as the Federal Circuit Court was then known..

4 By a formal Reply in each matter Mr Annan denied any wrong doing. In the later proceedings he also alleged that he had been denied natural justice by the Council in that he had not been afforded the right to make submissions in accordance with S 591 of the Legal Profession Act 2004.

5 It is necessary that we refer to the facts in some detail. Before doing so we should mention that Mr Annan appeared for himself at the hearing of the proceedings. Mr M Johnston of counsel appeared for the Council.

6 It appears that on 17 October 2006 MARA exercised its powers under S308 of the Migration Act and by notice required Mr Annan to produce a number of documents. The notice itself is not in evidence but MARA's letter of 8 February 2007 effectively restates the operative provisions of the notice whilst reviewing Mr Annan's response. The letter omitting formal parts statutory and regulatory references is in these terms:

4

Attached to the letter was a schedule containing some 29 items

"Schedule 1 - Transactions from Client's Account."

Mr Annan replied to the letter on 7 May 2007:

RE: 9474560-3626

"I refer to the above matter and wish to thank you for your patience in granting me time to recover from my illness before responding to your letter dated 8 February 2007.

Please find enclosed the following documents:-

-. Records for transactions listed in Schedule 1 of your letter.

- An amended version of my standard contract.

- Evidence of name of account which includes the words "Clients' Accounts".

- Change of wording in standard contract which indicates that, by signing the contract, the client acknowledges receipt of the 1RMAP.

Thank you.

7 Accompanying that letter were 24 documents purportedly issued by Mr Annan. each of which was titled Tax Invoice/Receipt. These documents on their face related to many but not all of the entries in the Schedule referred to above. Four of those documents are relevant to these proceedings viz.

John Eyeson Annan BA (Hons) LLB

Barrister-at-Law

Registered Migration Agent No. 9474560

ABN: 64 410 637 804

NSW Office Address

Suite 1, Level 8, 377 Sussex St. Sydney NSW 2000

NSW Postal Address

PO Box K822 Haymarket Sydney NSW 1240

Tel: [phone] Fax: [phone]

Mobile: [phone]

Email: [e-mail]

Tax Invoice/Receipt

INVOICE NO:004571

DATE: 05/12/2006

Liability limited by a Scheme approved under Professional Standards Legislation

Mr Eduardo Santos 18B Rosal St, Merville Sub Naxoto Metro Manila Philippines

ITEM	DESCRIPTION	AMOUNT
1	To: Parent Visa Application	2305.00
	Application fee $1305
	Prof Fee $1000.00
	GST INCLUDED TOTAL	$2305.00
	DEPOSIT PAID
	TOTAL OUTSTANDING

John Eyeson Annan BA (Hons) LLB

Barrister-at-Law

Registered Migration Agent No. 9474560

ABN: 64 410 637 804

NSW Office Address

Suite 1, Level 8, 377 Sussex St. Sydney NSW 2000

NSW Postal Address

PO Box K822 Haymarket Sydney NSW 1240

Tel: [phone] Fax: [phone]

Mobile: [phone]

Email: [e-mail]

Tax Invoice/Receipt

INVOICE NO:004571

DATE: 05/12/2006

Mr Eduardo Santos 18B Rosal St, Merville Sub Naxoto Metro Manila Philippines

ITEM	DESCRIPTION	AMOUNT
1	To: Parent Visa Application	$2000.00
	Application fee $1305
	Prof Fee $695.00
	GST INCLUDED TOTAL	$2000.00
	DEPOSIT PAID
	TOTAL OUTSTANDING

John Eyeson Annan BA (Hons) LLB

Barrister-at-Law

Registered Migration Agent No. 9474560

ABN: 64 410 637 804

NSW Office Address

Suite 1, Level 8, 377 Sussex St. Sydney NSW 2000

NSW Postal Address

PO Box K822 Haymarket Sydney NSW 1240

Tel: [phone] Fax: [phone]

Mobile: [phone]

Email: [e-mail]

Tax Invoice/Receipt

INVOICE NO:134750

DATE: 04/08/2006

Mr Choosak Thongsuk 306 Bondi Rd Bondi NSW 2136

ITEM	DESCRIPTION	AMOUNT
1	MRT - Review Application	$1400.00
	To prepare and lodge
	professional Fee	$1950.00
	GST INCLUDED TOTAL	$3350.00
	DEPOSIT PAID
	TOTAL OUTSTANDING

John Eyeson Annan BA (Hons) LLB

Barrister-at-Law

Registered Migration Agent No. 9474560

ABN: 64 410 637 804

NSW Office Address

Suite 1, Level 8, 377 Sussex St. Sydney NSW 2000

NSW Postal Address

PO Box K822 Haymarket Sydney NSW 1240

Tel: [phone] Fax: [phone]

Mobile: [phone]

Email: [e-mail]

Tax Invoice/Receipt

INVOICE NO:134765

DATE: 19/06/2006

Ms Neelam Lal 2 Yerribool Close Prestons NSW 2170

ITEM	DESCRIPTION	AMOUNT
1	Spouse Visa Application on Domestic Violence Grounds	$3000.00
	GST INCLUDED TOTAL	$3000.00
	DEPOSIT PAID	$3000.00
	TOTAL OUTSTANDING

8 Each of the 4 documents stipulates an amount which corresponds to a credit in Mr Annan's account with Commonwealth Bank Hurstville branch 062184.

9 In response to the material provided by Mr Annan he was required to appear before officers of the authority "to answer questions relevant to your continued registration." The interview was conducted on 18 July 2007 by Mr Brad Abbott and Ms Serena Kloucek.

10 Mr Annan was extensively questioned upon each of the documents reproduced above. In relation to the one addressed to Mr Thongsuk the transcript of the interview records:

Abbott: That says you've received $3,350 on that day, and we have an invoice that you received that much from Mr Tongsuk, but you're telling me that that was not correct.

Eyeson-Annan: Usually, usually it says about the transaction on that day, does not mean that it wasn't for one client.

Abbott: So that's just a coincidence, it it?

Eyeson-Annan: Yes, could have been, because when I went back and checked it, I say yeah, this would have been made. But I could have banked for two or three or four clients, 200, 100, 1000, 2000.

Abbott: Okay

Eyeson-Annan: And then so in their bank statement to show as one deposit.

Abbott: Right.

Eyeson-Annan: Yes.

Abbott: So that's just a coincidence that that $3350 invoice on the 4th of August '06 there was that amount deposited into your bank account on the 4th of August'06.

Eyeson-Annan: Yes, I would think so, from what we have seen.

Abbott: Okay. And with your invoice numbers, they're just randomly generated.

Eyeson-Annan: Yes. I have no control over them.

Abbott: You have no control over what your office staff does.

Eyeson-Annan: They do what numbers. No, I do.

Abbott: This is pretty important.

Eyeson-Annan: But the invoice numbers I haven't. You thought of them as something that was important for me to do.

Abbott: Well I thought .....

Eyeson-Annan: We give this one

Abbott: This is a bit full, yeah.

Eyeson-Annan: I would have to, what do you said, every invoice number.

Abbott: Well, I think, we'll come to that a bit later. You also need some sort of central location. I'm extremely surprised you don't have a central location besides the bank account, that you can't tell me for what three clients this 3,000-

Eyeson-Annan: Well, in that respect I am a bit careful about keeping things on my computer.

Abbott: Right. But you can't tell me this is just an example, I know it's a couple of years ago, but the $3,350 that was deposited you can't tell me what clients that relate to. How would you tell?

Eyeson-Annan: I thought it's related to this client, when I looked at the file to respond to you. But if I--

Abbott: Sorry., go on. If Mr Phuongsuk came to you and say, I can't recall how much I paid you, how would you work out what he paid you?

Eyeson-Annan: Oh, I don't think he could do that.

Abbott: Well, what if he terminated your services? What if you were told to refund? What if you decided to give him a refund or?

Eyeson-Annan: Before the conclusion of the MRT matter.

Abbott: Well, if for whatever reason he wanted to know for his taxation purposes, he wanted to know how much he had paid in. He disputed he lodged a complaint to us and said, if he came to us and said he paid you $3,350 and he charged me $1,400 when I already paid for the MRT review, you've got no recourse. We've got a receipt here saying that he's paid twice for the RMT review.

Eyeson-Annan: He would have to be meant but I didn't think

Abbott: Just looking after you protecting yourself

Eyeson-Annan Someone like that would do that.

Abbott: You should have some control over what. So you can't provide any answers on how the invoice numbers are generated? You have no idea how the office assistants generate invoice numbers. To me if to clients came in I'd give that person invoice number 100, the next person invoice number 101.

Eyeson-Annan" I think I have confidence in myself to not to mix up invoice numbers or they would know maybe which last invoice number was, and maybe I have to have a hard copy of some approved receipts as well as these things.

11 With regard to the invoice addressed to Mr Lal the transcript of the record of interview reveals:

Abbott: Yeah. Okay, if we turn to Ms Neelam Lal, N-e-e-l-a-m, surname L-a-l. So this resulted from the bank statement 1324. We asked you for your 7.4 records, the $3,000 on it was 19th and 20th of June, so it's got the $3,000 at the bottom of the page there.

Eyeson-Annan: M'hmm.

Abbott: So from the client file we could see that you're assisting with a spouse visa application, domestic violence grant. So the invoice you gave us was at folio 1379, could I refer you to it. Have you got the tag for Lai? I think it's the blue tag. That's at 05001379.

Eyeson-Annan: Yes.

Abbott: Yes, so that's invoice, we've already spoken about this invoice number because it's the same as another one, 13765 on the 9th you have June [06). So we have on your client file there's a 956 form dated the 28th of April '06 entered into, there was a service agreement dated the 28t of April '06, and a visa was granted on the 8th of the Ninth '06. That's at folio 2461. At folio 09002461.

Eyeson-Annan: Yeah.

Abbott: She was granted a permanent visa, and that was on 8th of November 2006, sorry, 8th of September 2006. Does that accord with your recollection and you want to have a look at a geat letter?

Eyeson-Annan: Okay.

Abbott: So looking at the contract on the next page, 2390, so that's just your service grant of Ms Lal. You'll see that that was signed on the 28th of April '06 and that accords with your file notes.

Eyeson-Annan: 28th of April '06.

Abbott: Okay, so that's the front page of that service agreement to help her with spouse application, which accords with the decision she was granted. On page 3 of the contract, indicates that she was paid, that she paid $10,000 on the 28th of the Fourth '06.

Eyeson-Annan: M'hmm, the date of the contract.

Abbott: So she gave you $1,000 up-front and $2000.

Eyeson-Annan: M'hmm.

Abbott: So what happened to that $1,000?

Eyeson-Annan: What happened to it?

Abbott: This is money paid up-front for services yet to be performed.

Eyeson-Annan: For services it has to be performed.

Abbott: So it's taken on trust. Can you recall this matter? What happened to that money?

Eyeson-Annan: In terms of?

Abbott: Where did you put it?

Eyeson-Annan: Oh, I see. It doesn't appear until it's late 10 days.

Abbott: It doesn't appear in the clients account. If we look at that date, the 28th of April '06.

Eyeson-Annan: Oh, I see. It doesn't appear until it's late

Eyeson-Annan: The reason I made some Court appearances for this man. And that may have been part of my Court work for her, it was related to the domestic violence matter as well. I appeared for her in Liverpool Court, I believe, in relation to an AVO application she wanted an order on her husband. And I appeared for her in relation to that, on my recollection.

Abbott: So this contract is -

Eyeson-Annan: That may have been for a Court appearance which was related to the migration matter. So maybe that's why I did it immediately to question that.

Abbott: When did you appear in Court for her?

Eyeson-Annan: I don't know when, but I did appear for her in Court.

Abbott: So that $3,000 included.

Eyeson-Annan: I think yeah, it included the work for the whole service, it wasn't just for application or domestic violence order. For support and services in relation to domestic violence application. I remember that I'm appearing for her.

Abbott: I refer you to folio 2466, in the front, second page.

Kloucek: It's in the front.

Abbott: It's a draft, it's a tax invoice it's not a draft, this was on your client file.

Eyeson-Annan: M'hmm.

Abbott: It indicates that $1,000 has been paid on 28th of the Fourth, '06 as a deposit for a migration service. That doesn't seem to accord with your Court appearance that you just told us that that was what it was for.

Eyeson-Annan: Yes, I'm saying that the Court appearance was related to the whole domestic violence matter, which was their migration service. But I didn't specify there.

Abbott: Okay. Well, why is it deposited if it relates to a Court appearance? Was the Court appearance before or after the 28th of April'06?

Eyeson-Annan: Definitely after.

Abbott: Definitely after.

Eyeson-Annan: Definitely after.

Abbott: Would you have entered into another agreement?

Eyeson-Annan: No, I did not. I did not do a cost disclosure cost agreement and listen to a legal matter. I took it as a set migration matter altogether.

Abbott: Okay, and you didn't deposit it in the clients account.

Eyeson-Annan: No, I didn't because, as I say that's subclass matter was purely that are legal. And that's why I didn't.

Abbott: If you can flick over to the next page, front page. This is a final invoice on 19th of June'06, folio 09002467. That indicates that you were paid $3,000 on 19th of June 2006.

Eyeson-Annan: No, by doing that I'm saying that all up that's how much she paid, because there's no total I found in here.

Abbott: Well, how come the $3,000 was deposited in your bank account in June 2006?

Eyeson-Annan: As I said, it doesn't mean that that will refer to only one client, it could have been something else.

Abbott: Well, no. look at the balance. There was no money in your account. So this is another coincidence that it just happens to match up with your tax invoice.

Eyeson-Annan: I don't understand what you claim.

Abbott: Okay. You've got an invoice here for the 19th of June 2006 for $3,000. You told me that that related to the deposit on 19 th of June 2006, that that money paid on this date was deposited into your account on the 19th of June 2006.

Eyeson-Annan: No, but the invoice shows that on the 28th of April that that invoice was paid.

Abbott: I'm not concerned with that invoice, I'm concerned with the final invoice that says $3,000 was paid to you on 19th of June 2006. Nowhere in that it says $1,000 was previously paid.

Eyeson-Annan: On this invoice, no it doesn't, it doesn't. It was a final invoice.

Abbott: Well, see, but Ms Lal if she had both of these that appears she's paid $4,000 to you. She paid $1,000 on the 28th of the Fourth, and this last invoice says she paid $3,000 on the 19th of June.

Eyeson-Annan What I'm saying is that on this invoice it says that she's paid up, up-to-date.

Abbott You're referring to the top page 090024677.

Eyeson-Annan Yes.

Abbott No, that-

Eyeson-Annan No, I'm referring to this one

Abbott The reference number at the top right is 09, for the tape, 09002467.

Eyeson-Annan Yes, because I'm saying she's not owing anything.

Abbott Where does that say that she's paid you $1,000 previously?

Eyeson-Annan Because she had her previous invoice m relation to that.

Abbott Where does this invoice, at the top page, say that $1,000 was paid to you previously?

Eyeson-Annan It doesn't say on the invoice, but there's a previous invoice saying that she has paid.

Abbott Okay So now here she's paid you, do you not agree that that indicates she paid you $1,000 on the 28th of the Fourth and paid you $3,000.

Eyeson-Annan No, I think she paid me $2,000 on that occasion.

Abbott Okay.

Eyeson-Annan: But there may be, I see here, that's how much she has paid so far And she had nothing outstanding That's what I believe it to be.

Abbott Okay: Before you said that the 19in ot June deposit ot $3,000 related to Ms Lai, and that that was withdrawn the next day and that was the work you performed for Ms Lal.

Eyeson-Annan: Well, looking at the invoice that's what I believe it should say two.

Abbott: Now you're claiming she only paid you $2,000 on the 19th of June.

Eyeson-Annan: Yes

Abbott: Why was $3,000 deposited?

Eyeson-Annan: What I'm saying is that there could have been another deposit.

Abbott: From another client.

Eyeson-Annan: Yes, that could have been.

Abbott: Okay, we asked for those records that related to that.

Eyeson-Annan: I provided the records to the best of my ability and power.

Abbott: Well, this is -

Eyeson-Annan: More than a year, almost a year ago.

Abbott: I have concerns -

Eyeson-Annan: Lots of.

Abbott: Okay, the $3,000 withdrawn the next day.

Eyeson-Annan: M'hmm.

Abbott: Has to relate, there's only $3,000 in your account, it has to relate to a deposit the previous day.

Eyeson-Annan: M'hmm, yes, I don't dispute that.

Abbott: So that was two clients you deposited on well, two. Three, how many have gone, made up as $3,000? You performed the work, the following day you withdraw the amount. That's probably a confusing question. So this deposit was $3,000. How was it, when it just says, deposit, what does that mean? Was that taken personally down to the bank or?

Eyeson-Annan: Yes. It could mean that or it could mean through the EFTPOS.

Abbott: Okay. Why was -

Eyeson-Annan: That looks like it was taken to the bank.

Abbott: The visa wasn't granted until 8th of September 2006.

Eyeson-Annan: M'hmm.

Abbott: So why have you withdrawn the funds for that client prior to the visa being granted?

Eyeson-Annan: Sometimes you need money for disbursements, expenses, and so on. Sometimes we have people who, business clients, and they want their money for banking in the client as well. And I know about five or some practitioners, people who refer clients to them actually they take their money, take out their commission and then give it again what the agent is due. I don't do that. I like to deposit the money first then take it down and then give them whatever I have to give them. And maybe that's why I had to take money out in order to pay some money.

Abbott: If the services haven't been performed, that's not your money.

Eyeson-Annan: It was ongoing. I believed that I was entitled to it. I had done most of the work before then this was ever counted. So by the time, by September, maybe there was nothing further to do for a while before the visa was granted because mostly, but maybe most of our primary client is satisfied.

Abbott: That most of your work had been done. Again, if your work had been done and you took it out the next day, why did it go in your clients account if you already performed the work?

Eyeson-Annan: Because I believed that that's where I should put it first because it related to a client, then take it out.

Abbott: After you performed the work.

Eyeson-Annan: If you perform the work you can put it anywhere?

Abbott: If you performed the work it is your money.

Eyeson-Annan: Oh.

Abbott: If you're taking money up-front. Mr Eyeson-Annan, you're a solicitor, you should know how money in trust works.

Eyeson-Annan: I'm a barrister.

Abbott: Barrister.

Eyeson-Annan: I know how to operate a transfer account.

Abbott: Well, you weren't a solicitor before that?

Eyeson-Annan: No, never I went straight to be a barrister. I've never prepared a trade account.

12 The two invoices addressed to Mr Santos were the subject of questioning as follows:

Abbott: Okay, so this 2,305 on 5th of December 2005 relates to Eduardo Santos, does it?

Eyeson-Annan: Yes, I believe so

Abbott: Okay, so this invoice at 05001394 should be 6th of the Twelfth '05

Eyeson-Annan: M'hnrm

Abbott: Please refer to folio 05001392 That should be two pages to the rear of that It's another Eduardo Santos invoice for $2,000 That's also dated the 5th of the Twelfth 2006

Eyeson-Annan: It's the same thing

Abbott: No, one's foi 2,305, one's for 2,000 I did ask you for two records on the 5th of December 2005, one for a deposit of 2,305 and one for a debit of $2,000 and you've given me these two invoices which accord to figures I don't know why-

Eyeson-Annan: The date that is right

Abbott: Well, I don't know why have you given me an invoice for $2,000 when I've asked for, I wanted a debit Sorry, I'll explain it again So I understand the 2,305, well, I don't understand the date, but that was money received from Eduardo Santos, was it?

Eyeson-Annan: M'hrnrn

Abbott: So $2,305 And you're telling me 5th of December'05

Eyeson-Annan: Fifth of December'05 These are bound transactions

Abbott: Right

Eyeson-Annan: Yes

Abbott: The Fifth of December '05 there was a deposit into your clients account of 2,305 So you went to Mr Eduardo's file and you somehow matched the 3,205 to the name Eduardo Santos How did you do that?

Eyeson-Annan: (No verbal reply)

Abbott: How did you know that that deposit related to Eduardo Santos?

Eyeson-Annan: The deposit? Like I explained before, I looking go to my records and I go to the file

Abbott: Sorry, what records?

Eyeson-Annan: My bank butts

Abbott: Of the deposit

Eyeson-Annan: Okay but that's the deposit in the bank directly into a bank So you've got a deposit book, have you?

Eyeson-Annan: It's directly into the bank

Abbott: It's directly into the bank

Eyeson-Annan: Paid by the client or paid by yourself?

Which one are you listening at?

Abbott: 1318, that's the next page in So the $2,305 We've asked for records that you've given us the receipt, invoice dated 5th of December 2006

Eyeson-Annan: You asked for documentation to a debit, a withdrawal or a deposit

Abbott: I asked about the 5th of December deposit and 5th of December phone transfer so that credit on the 2,305 and the debit of 2,000 Okay, how did you know that that 2,305 related to Eduardo Santos?

Eyeson-Annan: Because that was the money paid

Abbott: How did you know that related to Eduardo Santos?

Eyeson-Annan: How did I know that?

Abbott: How did you know? I said I want your 7 4 records for that figure, that transaction

Eyeson-Annan: The two or just the one?

Abbott: I asked for both, but how did you know they both related to Eduardo Santos?

Eyeson-Annan: Because they were done on the same day, the transfer and the deposit

Abbott: Okay

Eyeson-Annan: So I figured that if in the deposit and the transfer related, yeah, the transfer would have been in relation to Santos

Abbott: How do you know it was Santos though?

Eyeson-Annan: And then add the deposit

Abbott: What records did you consult to determine that that money related to Santos? How did you know to go to Santos' file and get this invoice?

Eyeson-Annan: From the deposit

Abbott Okay: It doesn't mention his name there at all

Eyeson-Annan: No, it doesn't, it doesn't

Abbott: So how did you know to go to Santos' file?

Eyeson-Annan: Because I have a record I went to the date

Abbott: But what record do you have9

Eyeson-Annan: This was my deposit book record

Abbott: Okay, so you deposited that money

Eyeson-Annan: Yes

Abbott: We asked for records of your deposit book You didn't provide it to us We asked for all records indicating the client on whose behalf the deposits were made to the clients account, and the purpose of such deposits

Eyeson-Annan: I understood that to mean you wanted me to-

Abbott: All records, it doesn't specify So you have a master list back at your work that if-

Eyeson-Annan: Sometimes, but I mainly rely on bank statement and my cheque butts.

13 Towards the end of the interview Mr Abbott said:

Abbott: I've got no doubt monies moving in and our of your client account, sometimes it's not being done properly and I think we've established that But the issue I have is I think you may have fabricated the invoices to suit the deposits because you haven't been maintaining proper records So l put that to you I have no doubt there's money coming in and out from your clients I'm not saying that you've stolen the clients' money, because it's clear you haven't But we haven't got any complaints that you've done so, and that's the first thing we hear about If you took money from a client and it wasn't yours, they'd come running to us straightaway There's no allegation there that you've done that There's no doubt you're doing work for your clients We haven't received complaints about your capacity as a, your knowledge also I'm concerned that you may have, your recordkeeping is abysmal, your financial control is terrible You can't tell me what money is coming and going Before you said you haven't got a record of how much money you've got coming into your business, except for the bank statements, but you can't tell me who they belong to So if you were audited by the Tax Department and God knows, but that concern is that they fit too nicely to what I've asked for And so, but I'll go away and review the transcript The next step is to send a copy of the transcript to you for you to have a look through it and verify that it's an accurate recording of what went on And then we can set our options from there But you maintain that those invoices that you've given us were all prepared on the date they were dated?

14 Mr Annan replied "Yeah on the date they were dated but some of the dates are wrong as I pointed out to you and yes they were"

15 With regard to the Thongsuk matter Mr Annan subsequently provided a deposit slip recording that on 4August 2006 the sum of $3250 was deposited to his account. However the slip recorded that $1350 was attributable to a Mr Choy and only $2000 to Mr Thongsuk.

16 It was the Councils assertion in respect of this matter that as the service of "MRT-Review Application" was not a service performed by Mr Annan but rather one performed by a Migration Agent previously retained by Mr Thongsuk, Mr Annan would not have charged a fee of $1400 for that service on 4 August 2006. This circumstance would be powerful evidence that the document purporting to be invoice 134750 was a concoction particularly when regard is had to the extremely lax financial records maintained by Mr Annan.

17 As to the two invoices addressed to Mr Santos the Council points to the fact that each is dated 5 December 2006 whereas the deposit to which invoice 05001394 relates was made on 5 December 2005 and records produced by Mr Annan include a Retaining of Service Agreement dated 17 January 2006.

18 The amount on the invoice to Ms Lal dated 19 June 2006 viz $3000 matches a deposit of that amount into Mr Annan's bank account but a hand written invoice addressed to Ms Lal was produced by Mr Annan. It was dated 28 April 2006 was not numbered and recorded a fee of $3000 for Migration Services, a deposit paid of $1000 and a balance outstanding of $2000.

19 We turn now to the second application relating to Mr Annan's client Ms Ae Sook Kim. She affirmed an affidavit on 10 June 2008 filed in the Federal Magistrates Court which was relied upon by the Council and upon which she was cross examined by Mr Annan.

20 Her Affidavit relates her dealings with Mr Annan including in the period after his deregistration as follows:

(1) I applied for a Business Skills visa on or about 25 September 2006. It was refused on 24April 2007.

(2) I was using a migration called Yong Hyun Park at the time. I lost confidence in my agent, so I found another one, called Myong Hyun, to represent me at the Migration Review Tribunal. My review application was lodged with the MRT on 23 May 2007.

(3) I decided I needed someone more experienced, so I went and saw Mr John Eyeson-Annan, a barrister and migration agent. On 31 August 2007, I signed a form for the MRT, informing the MRT that Mr Eyeson-Annan was my new representative. I had total trust in Mr Eyeson-Annan for my case.

(4) In December 2007, I got a letter firom the MRT to attend a hearing for my case. I wanted to go to the hearing. I went and saw Mr Eyeson-Annan. During my meeting with him, words to the following effect were said:

ME: I want to go to the hearing and I want you to come with me.

MR EYESON-ANNAN: I cannot come with you because I have a personal problem. Most cases win anyway when people don't go to a hearing.

ME: I need you to come as my agent.

MR EYESON-ANNAN: I can introduce you to someone else to go.

ME: If you can't come I need a Korean. What do you need to win my case. I still want to go and for you to come.

MR EYESON-ANNAN: Don't worry. I'll prepare the documents. You need to show your business activities, tax, employees. You have to show you are conducting a business. Get a medical certificate from a doctor to get an extension of time.

ME: I am not sick so I can't get one.

(4) I signed a letter to request an extension of time. I also signed the hearing form to attend the hearing.

(5) In early January 2008, I was still worried about the hearing because I wanted Mr Eyeson-Annan to come with me. During my meeting with him, words to the following

effect were said:

ME: Here are documents. What do I need to do for the hearing. You are experienced. I need you to come.

MR EYESON-ANNAN: I can't come.

ME: I need you or a Korean.

MR EYESON-ANNAN: There is no point in you going to the hearing because you can't speak English. Come back and see me before 3pm on 10 January and bring photos of your business operations.

(6) I went to see Mr Eyeson-Annan on 10 January 2008. It was nearly 3pm. He had an interpreter in his office. He gave me a letter which had documents attached to it. During my meeting with him, words to the following effect were said:

MR EYESON-ANNAN: Sign this letter for the tribunal and take it there. You will need an interpreter if you go to a hearing. The interpreter can't interpret your business situation properly so don't go to the hearing. Just give this letter and documents and you will win without a hearing.

(7) The contents of the letter were not read to me by the interpreter. I was not given a copy of it. I had to rush to the MRT by taxi to get there before 3pm. The first time I saw a copy of that letter and had it read to me was when I saw my current lawyer on 20 May 2008.

21 The letter referred to in paragraph 5 of the affidavit was in these terms:

17* December 2007

44 Roberts Road

Cherrybrook NSW 2126

Dear Sir/ Madam

RE: AE SOOK KIM (D.O.B: 29/02/1964) - FILE NO:0714394 9. REQUEST FOR EXTENSION

I want to ask for more time to provide further documents that you asked for. The time was too short for me to do anything.

Thank you.

Yours faithfully,

AE SOOK KIM

22 Although undated it seems common ground that the letter referred to in paragraph 7 of Ms Kim's affidavit was in these terms.

MRS AE SOOK KIM

44 Roberts Road

Cherrybrook NSW 2136

Migration Tribunal Review

Level 11,83 Clarence Street

Sydney NSW 2^00

Dear Sir or Madam

RE: MY MRT MATTER - FILE NO.: 0714 39459

I would like to inform you that I do not want to attend the hearing of my case. Please make a decision from the information on my file including the information enclosed in this letter.

I want/to inform you that my English has been greatly improved and continuing my English lessons. My business is still operating successfully and I am in day to day control of the business. I perform duties such as negotiating with building constructors and owners, allocating duties to my workers, purchasing materials and equipments, consulting with the accountants, determining weekly programs and setting targets, managing the staffs and appointment of staffs. I employ three Australian permanent residents. Their names are EUN HEE JEON (Accountant/ Administration), HYUK HWAN CHOI (Painter), SOUNG OK CHOI (Sander) and TAE HYUNG KIM (Painter -my husband).

I also want to inform you that when immigration officers visited my office I was not informed that they would come and I was not prepared to be questioned without consulting my business file. I was also ill at the time. It was totally improper for them to do that and it looks like they were biased against me from the beginning. When I attended the interview, they expected me to remember what I have done two weeks earlier instead of asking me about the activities of my business.

If you want me to provide further information please let me know.

Yours sincerely

AE SOOK MIM

23 Ms Kim's application for review of the refusal to grant her a Business Skills visa was dismissed by the Migrant Review Tribunal. She then sought relief under s 476 of the Migration Act on a number of ground including "third party fraud" by Mr Annan.

24 This application was heard by Mr Scarlett FM. At the hearing Mr Annan gave oral evidence. He said that in December 2007 he received a letter from MARA relating to the pending proceedings involving Ms Kim and inviting her to attend a hearing. He said that he spoke to Ms Kim about the letter and told her that at the time he was suspended from acting as a migration agent. He denied giving advice as to the action she should take in response to the letter.

25 As to the letter he prepared when Ms Kim came to him again in January 2008 the transcript of proceedings before Mr Scarlett records:

In January you were aware, I think that Ms Kim lodged a letter with the Tribunal?-Yes.

And that she took that letter with some documents ?-Yes.

....and lodged it herself?-Yes.

Did you write that letter for her?-Yes. I dictated that letter for her. Yes, out of respect for her because she had come when I knew that she wasn't going to go. She didn't have an agent. Going back to December when I said I wouldn't go, she said, "It's either you or I'll get a Korean agent". I took that to mean that she would find her own Korean agent. Perhaps she wanted someone that she understood better, so I didn't make any effort to find her one. I could have found her another agent like I did previously for another Korean client and that fact will be on the Tribunal's file in relation to that person. When she came, on the day before and she brought some documents and she didn't have an agent - 5

Is this the day before the hearing ?-The day before the hearing.

Yes?-So I said, "Well, I can't go for you". She asked, "Are you coming?" I said, "No, I can't go. If you don't have an agent you have to take this thing. I will do a cover letter for you and you have to take it yourself but I can't help

you any further".

Did ?-And I did that administratively, not in the context of giving her an advice. I did that as part of my administrative work. I was also her authorised recipient and that wasn't in my capacity as an immigration advisor.

Did you have any discussion with her on that day about whether she ought to go to the hearing?-Yes. She said she wouldn't go if I didn't go. So I said, "Well, then take your documents and the lady can go with you to the Tribunal to present your papers". She didn't want to go to the Tribunal hearing, and when I looked at the documents she had brought, she had brought two letters from her English teachers and on the very last paragraphs of (indistinct) letter I noticed them telling the Tribunal that she needed more time to improve her English. That clearly told me that she didn't want to go.

Did you give her any advice on that day?-No, I did not.

Did a member of your staff go to the Tribunal with her?-Yes.

Was that Angela?-Yes.

Is that her name?-Yes. I think she said she didn't know where to go or something.

There is also -1 will ask you this too. Do you remember in December of last year preparing a very short letter from Ms Kim seeking an extension of time?-Yes.

26 Mr Scarlett granted the relief sought by Ms Kim in the nature of certiorari and Mandamus. In his judgment he was scathing of the conduct of Mr Annam:

( 69) I am satisfied that the evidence shows that Mr Ebow Annan, formerly Mr Eyeson-Annan, acted dishonestly in his dealings with the First Applicant. I am of the view that his dishonest actions went beyond negligence and constituted fraud. Having heard his evidence and that of the First Applicant, where their accounts differ I prefer that of the First Applicant to that of Mr Ebow Annan.

(79) He advised the First Applicant not to attend the Tribunal hearing, informing her that her English was not good enough, an interpreter would not understand business dealings and people usually won when they did not attend. This advice was fraudulent. Any migration agent of any competence would be well aware that people who do not attend before the Migration Review Tribunal when the Tribunal has made it clear that "The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone "[30] have a relatively low chance of success. Whilst that fact alone may be evidence of negligence, in this case Mr Ebow Annan had withheld from the First Applicant that his registration had been suspended and had a motive for her not to attend the hearing.

(71) The First Applicant acted on that information by deciding not to attend the hearing and giving to the Tribunal a document advising that she was not going to attend. I am satisfied on the evidence that it had been the First Applicant's intention to attend the hearing until she received that advice from Mr Ebow Annan.

(72) In my view, the Applicants have shown that Mr Ebow Annan gave knowingly false information to the First Applicant, that she acted on that information to her detriment by not attending the hearing, and that his actions were dishonest in that he had a motive for her not to attend. An honest person in his position would have advised all his clients in November that his registration had been suspended and he was unable to continue to give them immigration advice. An honest person would have offered to refer them to other agents and would have advised them that he would not continue to act as their authorised recipient for correspondence. He did not do so in the case of the Applicants.

(73) The agent's conduct was fraudulent and it did undermine the statutory process that the Tribunal was required to undertake. The Tribunal's performance of its duties was stultified by fraud and there should be relief in the form of orders by way of certiorari and mandamus.

(74) It has not escaped my notice that Mr Ebow Annan was at all relevant times a barrister, even though his primary business seems to have been that of a migration agent. It is more a matter for the Bar Association then this Court to decide whether the roles of barrister and migration agent can successfully coexist, although there are a number of solicitors who manage to perform both functions honestly and competently. Several of them appear regularly in this Court and no challenge has been made to their integrity or competence.

(75) However, the behaviour of Mr Ebow Annan, as shown by the evidence that I have accepted, appears to be a long way below the high standard expected of barristers in Australia. It is hard to believe that Mr Ebow Annan could seriously have believed that the decision of the Migration Agents Registration Authority handed down on 12th November 2007 could in some way have been quarantined from his role as a barrister.

(76) I propose to direct that a copy of this decision be forwarded to the Director of Professional Conduct of the New South Wales Bar Association

27 Mr Annan swore two affidavit in these proceedings each dated 22 April 2013 upon which he was cross examined by Mr Johnston. In relation to matter 102103 his affidavit stated

(1) In the matter of Mr Eduardo Santos, I was ready to lodge the application for a Parent Visa, but the client's sponsor stopped me from doing so because she had just received information that her father had failed his medical examination in The Philippines due to a heart condition. The money which was deposited for the purpose of the Parent visa was withdrawn so that the application could be lodged at a later date. No further action was taken until my suspension.

(2) In the matter of Mr Choosak Thongsuk, I explained at the interview with MARA that I was not the agent who lodged the MRT application. In relation to the invoice, my office staff made a mistake when preparing it. The cheque butt showed that the deposit was for Thongsuk and another client. The MRT decision which showed that the client's application fee was paid by another agent was in the file that I provided to MARA. I did not try to hide anything from MARA. The staff member Ms Yumi Hirata, who prepared the invoice assumed that the amount was for the same person.

(3) Ms Yumi Hirata the staff member who prepared the invoice, wrote a letter to the Bar Council as follows, "for the MRT matter, John told me to make an invoice for that matter, but I assumed it was a new case. I didn't know that the client had already lodged his application. But John didn't realize that I made the mistake at the time. However the Bar Council failed to take the letter of Miss Yumi Hirata into consideration.

(4) In the matter of Ms Leedam Lai, (sic) I acted for her in relation to two matters, one of which was a court matter, i.e. an AVO application and the other a spouse application. However, I considered the two matters to be related to each other. Her spouse application was on domestic violence grounds. The invoices presented to MARA represent the fact that I acted for her in two matters although the distinction did not appear on the face of the invoices. I explained this at the interview with MARA, but they failed to consider these facts. I did not fabricate any invoices in question.

(5) I did not fabricate any invoices in question.

28 In respect of Matter 102023 concerning Ms Kim the affidavit stated

(1) I did not practise as a Migration Agent whilst suspended. I informed Ms Ae Sook Kim in December 2007 that I could no longer act for her because I had a problem as I had been suspended. I did not add that I had been suspended for two years. ~ I told the client that I would refer her to another agent to continue with her case but she said that she would look for a Korean agent. I had no further contact with her until she came to my office the day before the hearing.

(2) I did not tell the client to come to my office on 10 January 2008, one day before the hearing at the MRT. I did not advise her to obtain a medical certificate.

(3) I admit that I dictated a cover a letter for her in her own name. I did not do so in a capacity as a Migration Agent but rather out of my sympathy and kindness to her. At the same time I was upset that she had been unable to get a Korean

speaking migration agent. I was also her authorised recipient even after my suspension.

(4) The client admitted I told her that I would refer her to another agent back in December 2007. When the client came to my office in December, I said " I cannot represent you any more as I have a personal problem, I have been suspended and I will refer you to another agent". Kim Said "I will get my own Korean agent".

(5) When the client came to my office on 10 January 2008 the following conversation took place: Kim said "I have more documents; if you cannot go then I will not go". I said "why didn't you get your own Korean agent like you said you would". Kim gave no answer. I said " I am not allowed to go and the tribunal will close soon and so take your documents with your cover letter that you will not attend". She did not answer.

(6) I did not advise her that she would "win without a hearing". I never said that to her. This explains her unwillingness to appoint a Korean speaking agent and then to appear at my office just one day before the hearing.

(7) I believe that the obligations were mutual and complimentary (sic). The client failed to get a Korean speaking agent as she said she would.

(8) She did not ask me to get her a Korean speaking agent.

29 In cross examination Mr Annan said that at the time of his suspension he had about 10 migration clients. Asked whether he had written to them he said " I think I did write to some. He said he arranged for one client to consult a Korean Agent but could not remember any names. He conceded that he did not write to Ms Kim after she saw him in December 2007 following his receipt of the notice of hearing. He maintained that he told her he was suspended and not merely facing "a personal problem"

30 He conceded that he prepared, and gave to Ms Kim to sign, the letter reproduced above which Ms Kim took to MARA on 10 or 11 January 2008. When Mr Johnston suggested it would have been prudent of him not to prepare a letter at all he replied ' yes but it was an act of kindness - I felt sorry for her"

31 During Mr Johnston's cross examination Mr Annan continued to deny that the four questioned invoices were concocted but conceded that the dates on the Santos invoices were incorrect.

32 We formed an unfavourable opinion of Mr Annan as a credible witness. His answers were frequently unresponsive and vague. He was extremely reluctant to concede anything against his perceived interests. We would be very hesitant about accepting his testimony in the absence of corroboration.

33 In our opinion the only rational explanation for the four apparently anomalous invoices is that they were concocted for the purpose of explaining bank entries. It is quite impossible to accept that the two invoices addressed to Mr Santos were accidentally postdated by 12 months. We are satisfied to the requisite standard that the four invoices were concocted by Mr Annan with intent of deceiving Mara. It follows from that finding that he also gave false oral and written explanation to Mara.

34 As to his relationship with Ms Kim in the period following his suspension we are satisfied to the requisite standard that at least in preparing the two letters in his office and giving them to Ms Kim to sign he was acting as a Migration Agent. Once his licence was suspended he had a clear duty to notify his clients to that effect and return their papers.

35 We also take into account the various serious findings made against Mr Annan by Federal Magistrate Scarlett.

36 As a discrete matter we need to deal with Mr Annan's assertion that an alleged failure by the Council to give him the opportunity to make submissions denied him natural justice. He relied on s591 of the Legal Profession Act:

591 Rules of procedural fairness

The rules of procedural fairness, to the extent that they are not inconsistent with the provisions of this Act or the regulations, apply in relation to the investigation of complaints and the procedures of the Commissioner and the Councils under this Chapter.

37 Mr Annan asserts that the Council failed to give him the opportunity to make submissions upon the complaint which forms the basis of the later proceedings before us and indeed this may have been so. However by the time the Council came to consider the later complaint which again concerned the conduct of Mr Annan as a Migration Agent he had been given the opportunity to make submissions regarding the earlier complaint and his practicing certificate had been cancelled.

38 So far as the proceedings before us are concerned there is no basis upon which Mr Annan could contend that he has been denied natural justice or otherwise prejudiced. All the material relied upon by the Council has been available to him for a considerable period and he has had full opportunity to present his case and make submissions. The defence based on an asserted denial of natural justice should be rejected.

39 Having regard to the above findings we are satisfied to the requisite standard that Mr Annan satisfies the test propounded in Allinson v General Council of Medical Education and Registration [1894] 1QB750. In our opinion his conduct would be regarded as disgraceful or dishonorable by his peers of good repute and competency.

40 We find Mr Annan guilty of professional misconduct. In light of that finding the parties should be given the opportunity to make submissions as to the orders which will follow. The matter will be listed for directions on 4 June 2014. We contemplate that a further date for hearing will then be fixed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

Amendments

07 May 2014 - corrected paragraph numbering
Amended paragraphs: 6 - 40

Decision last updated: 07 May 2014