Aguilar v Lampero [2014] QCATA 256

CITATION: Aguilar v Lampero [2014] QCATA 256 PARTIES: Martin Aguilar (Appellant) v Vera Grace Lampero (Respondent) APPLICATION NUMBER: APL145-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Acting Senior Member Paratz DELIVERED ON: 3 September 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – DEBT OWING – whether grounds for leave to appeal – debt arising under the Migration Act – client seeking refund for monies paid to Migration Agent where no statement of services provided – whether a dispute resolution clause in an agreement is applicable Migration Act 1958 (Cth), s 313 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i), Schedule 3 Pickering v McArthur [2005] QCA 294 Dearman v Dearman (1908) 7 CLR 549 at 561 Fox v Percy (2003) 214 CLR 118 at 125-126 Chambers v Jobling (1986) 7 NSWLR 1 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 5 -- 2 REASONS FOR DECISION [1] Mr Aguilar was a Migration Agent. Ms Lampero engaged him to assist her in obtaining a Skilled - Independent visa (subclass 175). [2] The Tribunal, constituted by two Justices of the Peace, made an order on 3 March 2014 that Mr Aguilar trading as MLA Migration Consultancy is to pay Ms Lampero the sum of $2,000.00 within 14 days of the Order. [3] Mr Aguilar wants to appeal that Order. He says that the Tribunal made an error of law. His grounds are:1 The applicant submits that QCAT failed to apply the relevant law when it decided to order the Applicant to pay $2,000 to the Respondent and that the Applicant’s application for leave to appeal the decision should be granted on that basis. [4] Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary.2 Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal would be to the public advantage; or, where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.3 [5] Ms Lampero made payments to Mr Aguilar. No Visa was obtained. Ms Lampero complained to the Office of the Migration Agents Registration Authority (OMARA) about the conduct of Mr Aguilar and that Office made a decision on that complaint, and another complaint, on 25 February 2013. [6] OMARA found (in a 43 page decision of 201 paragraphs) that:4 200. I am satisfied that the Former Agent’s conduct has demonstrated: (a) A blatant disregard for, or a significant degree of indifference to the laws as evidenced by his failure to provide a response to the Authority’s notices; (b) A failure to act in the best interests of Ms L and Ms E which has resulted in no visa outcome; (c) A failure to act in the best interests of the complainants the subject of this decision, resulting in financial loss being suffered by each complainant; and (d) A pattern of behaviour in which the Former Agent exhibits a blatant disregard of his professional obligations as a registered migration agent. 201. I therefore conclude that the appropriate period for which the Former Agent ought to be barred is the maximum period of five years. 1 Submissions of Mr Aguilar filed 21 July 2014 – Part C p 1. 2 QCAT Act s 142(3)(a)(i). 3 Pickering v McArthur [2005] QCA 294 at [3]. 4 Decision of the Director, Professional Standards and Integrity Section, OMARA, 25 February 2013, paras 200 and 201, p 42-43. -- 2 of 5 -- 3 [7] In the course of its disciplinary decision, OMARA made reference to the fees paid to Mr Aguilar by Ms Lampero which were the subject of the Application:5 Ms L has confirmed that she did not receive a statement of services or a “final account” from the Former Agent, and taking into consideration the Former Agent’s omissions, it is unlikely that a positive visa decision will be made on her application. I am therefore satisfied that Ms L is entitled to recover the amount of $2,000 as a debt due pursuant to section 313(3) of the Act. [8] The Act that OMARA refer to is the Migration Act 1958 (Cth). Section 313 provides: Persons charged for services to be given detailed statement of services (1) A registered migration agent is not entitled to be paid a fee or other reward for giving assistance to another person (the assisted person) unless the agent gives the assisted person a statement of services. (2) A statement of services must set out: (a) particulars of each service performed; and (b) the charge made in respect of each service. (3) An assisted person may recover the amount of a payment as a debt due to him or her if he or she: (a) made the payment to a registered migration agent for giving immigration assistance; and (b) did not receive a statement of services before making the payment; and (c) does not receive a statement of services within the period worked out in accordance with the regulations. [9] The Tribunal made reference to those comments of OMARA as to the debt in the course of the hearing. [10] Mr Aguilar submits that the Tribunal decision relied on a decision by OMARA. [11] This argument of Mr Aguilar misapprehends the issues. OMARA did not make a decision as to, or make any orders as to, a debt owing. It commented on Ms Lampero’s ability to seek to recover the monies paid, in the course of discussion about disciplinary proceedings. [12] The Migration Act by s 313 provides a cause of action in law. It gives a client the right to recover monies paid to a migration agent as a debt, where the appropriate statement of services has not been given. [13] The application in the Tribunal by Ms Lampero was an action to recover a debt. The Tribunal has jurisdiction as to minor civil disputes. The definition of a “minor civil dispute” means “a claim to recover a debt or a liquidated 5 Decision of the Director, Professional Standards and Integrity Section, OMARA, 25 February 2013 ,para 64, p 18. -- 3 of 5 -- 4 demand of money, with or without interest, of up to the prescribed amount”. The claim of $2,000 is within the prescribed amount. [14] Mr Aguilar argues that the Tribunal relied on a decision of OMARA and that it should have considered the matter as a question of Contract Law and had regard to a “Representation Agreement”. He alternatively argues that the Representation Agreement provides for reference of a dispute to the Australian Commercial Disputes Resolution Centre (ACDRC), and that the Ms Lampero has no right to seek any refund until she engages in arbitration with ACDRC.6 [15] There are a number of difficulties with Mr Aguilar’s arguments. [16] The principal difficulty is that the Tribunal did not rely on the decision of OMARA. The Tribunal assessed whether a debt was due under the Migration Act. Mr Aguilar was asked about a Statement of Services and he said that he could not produce it on the hearing. This is apparent from the following exchange:7 Mills JP: She’s come to QCAT. She’s recovering that as a debt from you because you have failed to comply with your obligations under the Migration Act. Mr Aguilar: Yeah Mills JP: What can you say about that? Mr Aguilar: Well the statement of services is incorporated into the – the service agreement and once I issue a receipt in the – in the service agreement it says specifically the 2000 for example is.. CarpenterJP: Have you got a copy of that service agreement there? Mr Agular: I-I didn’t bring it, but I can provide the Tribunal.. Carpenter JP: No its too late now, We’re here today. Mr Aguilar: yeah. Mills JP: I mean, you’re well aware what the claim is about. One would have thought that that is the most critical piece of evidence to come to the tribunal today with. Carpenter JP: absolutely [17] The Tribunal then went to find that it was satisfied that there was a debt owing, saying:8 Mr Aguilar, the Tribunal has looked at this matter and it goes down to credibility, and credibility means that how you’ve presented your case, what evidence you’ve put forward to highlight your case and we didn’t find anything that you could give us that was consistent with what it should have been in order to look against this $2,000 claim. 6 Submissions of Mr Aguilar filed 21 July 2014 – p 3 – 4. 7 Transcript p 1-9 line 36. 8 Transcript p 1-14 line 28. -- 4 of 5 -- 5 [18] It had regard to the evidence of Ms Lampero and Mr Aguilar as well as to the comments of OMARA. The finding that there was a debt owing was a finding of mixed law and fact. [19] The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.9 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.10 [20] There is nothing in the transcript that persuades me that the Tribunal should have taken a different view of the facts. [21] I note two difficulties with Mr Aguilar’s reliance on the Representation Agreement. He has attached a copy of it to his submission in this application. The first notable issue is that the Agreement is signed by the client, but is not actually signed by the Migration Agent. The second issue is that I am unaware of any organisation known as “ACDRC”, and Mr Aguilar has provided no material as to such an organisation – presumably the intent was to refer to an organisation known as the Australian Commercial Disputes Centre (ACDC), but if Mr Aguilar wants to rely on a contractual provision as a bar to proceedings, he would have to establish that the clause is certain, which this clause may not be. [22] However, I do not consider that it is necessary to go further into the issues as to the Representation Agreement, as the ability to recover the debt arose under the Migration Act, and the Tribunal was satisfied that the provisions of that Act giving rise to the debt were made out. [23] There is no question of general importance upon which further argument, and a decision of the Appeal Tribunal would be to the public advantage; and there is no reasonable argument that the decision is attended by error. [24] Leave to appeal should therefore be refused, and I order accordingly. 9 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 10 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 5 of 5 --