21 As previously recorded, the Bautista family arrived in Australia from the Philippines in November 1999 on a three month tourist visa, which was due to expire in January 2000. In January 2000 the tourist visa was extended for six months, due to expire in June 2000. This extension of the visa was obtained by the Bautista family with the assistance of a Filipino solicitor, Lolita Farmer.
22 On 16 February 2000 the Bautistas met Mr Osei through a friend, who had been the Bautistas' neighbour in the Philippines. The Bautistas met with Mr Osei for advice on lodging a Temporary Business Entry Visa. Between February and June 2000 the Bautistas made payments of fees towards this visa application totalling some $6,000.
23 On 22 June 2000 an application for such a visa was lodged with the Department of Immigration and Multicultural Affairs. The sponsor was a Mr Tagel.
24 On 18 January 2001 the Department of Immigration and Multicultural Affairs refused the said visa application.
25 On 24 January 2001 Caprock Immigration Consultants, on Caprock International Pty Limited letterhead, advised the sponsor, Mr Tagle, and Mrs Bautista of the decision and also advised that any review application to the Migration Review Tribunal had to be made within 28 days from 18 January 2001, in default of which any such application would be statute barred.
26 There was difficulty between the Bautistas and the sponsor, the latter, apparently, not wishing to continue the sponsorship. Mr Osei appreciated that the last day for lodging an application for review was 15 February 2001. Caprock again wrote to Mrs Bautista on 9 February 2001 requesting urgent instructions by 15 February. This letter followed a conference with Mrs Bautista on 8 February 2001.
No such application was lodged. The circumstances of such failure to do so are referred to below.
(b) Discussions of 16 February 2001
27 The discussions which occurred on this day are important to an understanding of what transpired between the parties, and to three of the grounds of complaint before this Tribunal. The details of the discussions will be referred to below. For present purposes it is sufficient to record the following.
28 On 16 February 2001 the time for lodging with the Migration Review Tribunal an application for review of the refusal, dated 18 January 2001, of the temporary business entry - 457 subclass visa had expired. The Bautistas held a bridging visa, valid for 35 days from 22 January 2001 and unless things changed, at the end of that period they were liable to be deported. Discussions took place between Mr and Mrs Bautista and Mr Osei on 16 February 2001 at Mr Osei's said offices. Mr Osei kept notes of the discussions which are in evidence.
29 The exhibits include a letter from Caprock Immigration Consultants, dated 16 February 2001 to Mr Bautista, confirming instructions to prepare an urgent protection visa application for himself and his dependants. The letter continues:
"We confirm our advice in conference today that the application is not likely to succeed in the absence of evidence in support of your claim". The letter goes on to confirm that Mr Bautista would attend Caprock's office in conference on Monday (19 February).
30 Other notes, apparently also dated 16 February 2001, speak of articles from the Internet about Mr Estrada (the former President of the Philippines) and that succeeding in the protection visa application would not be easy and would fail unless there was evidence of the relationship. The note records instructions to prepare and lodge (the application). The said notes are in the handwriting of Mr Osei.
31 Also dated 16 February 2001 in Mr Osei's handwriting is a document headed "Draft Statement of Claim". It is clearly the forerunner of a formal application for a protection visa which was lodged with the Department of Immigration and Multicultural Affairs.
32 Though the evidence in relation to the discussions on 16 February 2001 given by Mr and Mrs Bautista and the documentary material, some of which has emanated from Mr Osei, requires close scrutiny, and which is discussed below, this Tribunal is satisfied that on that day several matters of substance were discussed between the parties. The first matter of substance was that the time for the lodging of the application for review of the refusal of 18 January 2001 had expired and that the Bautistas would shortly become exposed to the risk of deportation.
33 The second matter discussed was the fact that as at 16 February 2001 the only application for a visa which could then be made, in substance, was a protection visa. What was discussed was a visa to permit the Bautistas to stay in Australia upon the basis that Mr Bautista's late mother was a cousin to the former President of the Philippines Joseph Estrada's mother, and that by virtue of the family relationship and the political landscape in the Philippines, Mr Bautista and his family were at risk of persecution, intimidation, harassment and violence if they returned to the Philippines.
34 The claim in the protection visa application was false and was known by the Bautistas to be false at the time it was made. They have readily admitted as such and did do in the evidence before this Tribunal.
35 It was, however, in this context that instructions were given to Mr Osei to prepare the protection visa application and no doubt in this context that he wrote to them that the application had no likelihood of success because of the absence of corroborating evidence of the relationship between Mr Bautista's mother and President Estrada. A letter of instruction, signed by Mr Bautista on 19 February 2001 and addressed to Caprock Immigration Consultants, confirms the advice that the application has "no hope of success because of lack of corroborative evidence such as birth certificates linking me to former President Estrada". The document nevertheless instructs Caprock Immigration Consultants to make the application "because my sister will forward the supporting documents later".
36 The other matter of significance discussed on 16 February 2001, this Tribunal finds, is a longer term strategy to assist in the Bautistas being able to remain in Australia. Because of the passing of the time limit for the review application on 15 February the Bautistas needed both a short term strategy (the protection visa) and a longer term strategy in the foreshadowed probability that the short term strategy would fail because it was based on a falsehood and based on a premise which had no corroborative evidence to support it. The long term strategy was an application for an Established Business in Australia visa, subclass 845, which required before the application could be made an investment of certain proportions in a business in Australia. The details of this discussion and the Tribunal's findings are set out below.
37 The protection visa application was lodged with the Department on 22 February 2001.
(c) The Bautistas' Investment
38 On 27 February 2001 the Bautistas paid to Lloyds International College the sum of $150,000. An application for 150,000 A Class shares was signed by Mrs Bautista and addressed to the company and subsequently and there was a meeting of directors of the company which resolved to issue those shares to Mrs Bautista. It also resolved that she be appointed a director. The Articles of Association of the company were also altered so as to entitle the A Class shareholders to certain voting rights, dividend rights and, on a winding up, to receive a distribution of all surplus assets remaining after the repayment of the paid-up share capital, each right being expressed in terms of the fraction of 1:1500. The detail and significance is discussed below.
39 A share certificate in Caprock International Pty Limited was issued to Mrs Bautista. The company's record thereafter reflected the above position, as did the relevant records of ASIC.
(d) Refusal of Protection Visa
40 On 7 June 2001 the Department of Immigration and Multicultural Affairs refused the protection visa applications. Caprock Immigration Consultants was instructed to prepare an application for review by the Refugee Review Tribunal. By letter dated 19 June 2001 to Mr Bautista, he was advised by Caprock that "If you do not provide the documentary evidence to prove your relationship with former President Estrada, your application will fail again".
41 On 27 June 2001 the application for review was lodged with the Refugee Review Tribunal.
42 On 3 September 2001 the hearing of the review application was listed before the said Refugee Review Tribunal. The hearing was adjourned to 10 September 2001.
43 On 10 September 2001 the hearing before the Tribunal took place. The Bautistas were represented by Mr Osei. What occurred on that occasion is the subject of the third Information and concerned Mr Osei's conduct before that Tribunal. This Tribunal has received in evidence a transcript of the hearing before the Review Tribunal and has also had the benefit of listening to a transcript of the said proceedings. There is no doubt that Mr Osei was acting for Mr and Mrs Bautista at the review hearing. It was made clear by the Tribunal Member, at the very beginning of the hearing that the procedure would be that the Tribunal Member would ask the Bautistas questions and give them an opportunity to expand on their beliefs. The Tribunal Member said: "At the end of the hearing, I will give you and your advisor opportunities to make any final remarks that you wish to make". Later, and before asking the foreshadowed questions, the Tribunal Member asked Mr Osei whether he had any preliminary matters or submissions to make at that stage. Mr Osei replied in the negative.
44 After some questions were put to Mr Bautista by the Tribunal Member, an exchange occurred in the following terms between the Tribunal Member, Mr Russell, and Mr Osei:
"Mr Russell: Mr Bautista, I don't accept your claim that this individual was murdered in November 2000 because according to the information that was sent to you in [sic] your advisor by the Tribunal on 20 August this year, according to the son of one of the - sorry, to one of the son's [sic] of Estrada, Estrada's family has received death threats but there was no documentation that any murders or death threats occurred with respect to any of the immediate or extended family of Estrada and therefore, I suggest that your claims are at odds with that independent evidence. Would you like to comment? Mr Bautista: I have some documents here with me. I'll like to show the document, please.
Mr Russell: That's fine, but first of all, could you please reply to my comment?
Mr Osei, please, I'll wait.
Mr Osei: No, no, but you mentioned ---
Mr Russell: Mr Osei, please.
Mr Osei: But you mentioned advisor. Excuse me, sir.
Mr Russell: Excuse me, I gave you leave to make representations at the end --- Mr Osei: Well, I'm seeking leave because ---
Mr Russell: No ... No, it's refused ---
Mr Osei:--- because you mentioned my name - you mentioned advisor and you had sent documents to him - an adviser. I would like to ---
Mr Russell: Mr Osei! Excuse me - I'll wait - you can make your representations at the end.
Mr Osei: If you are not going to give me an opportunity then I will be submitting that these proceedings ---
Mr Russell: Excuse me!
Mr Osei: --- are not being held fairly.
Mr Russell: That's fine.
Mr Osei: I would like to take my leave. Can you give us time so I can seek instructions from my client. You don't want to give me ---
Mr Russell: No.
Mr Osei: Excuse me.
Mr Russell: The hearing is proceeding. I will give you representation time at the end of the hearing as indicated.
Mr Osei: Then don't make assertions that you have send documents to the adviser without me having the opportunity to comment. This is a denial of the rules of natural justice. You are denying us procedural fairness, sir.
Mr Russell: Well, guess what?
Mr Osei: What.
Mr Russell: Documents were sent to you and the applicant on 20 aug. Do you deny that?
Mr Osei: No, but I would like to comment on that.
Mr Russell: You will have a chance at the end of the hearing. Thank you! Could you please answer my question?
Mr Osei: You are putting things to the applicant - I am sitting here - you are making claims for the applicant ---
Mr Russell: Mr Osei! One more statement and you will leave the rooms.
Mr Osei: I am quite happy to go if you give me an opportunity to confer with my client. Now ---
Mr Russell: No.
Mr Osei: --- is this going to be a kangaroo tribunal or are you going to give us, the applicant, a fair opportunity to state his case?
Mr Russell: Mr Osei, I have given you a chance.
Mr Osei: You aren't giving me a chance
Mr Russell: Okay. Would you please leave.
Mr Osei: You haven't given me ---
Mr Russell: Would you please leave.
Mr Osei: Can I have opportunity with my client?
Mr Russell: No.
Mr Osei: Why not?
Mr Russell: No.
Mr Osei: This is my application to the Tribunal. You, you are ---
Mr Russell: Can you please leave Mr Osei?
Mr Osei: You are holding this - can I have an opportunity with my client?
Mr Russell: No, Mr Osei.
Mr Osei: This is an application.
Mr Russell: Mr Osei! Do you want me to have a hearing officer remove you?
Mr Osei: I don't want you to ---
Mr Russell: Can you please leave then because you are disturbing this hearing.
Mr Osei: Well - can I seek some instructions from my client?
Mr Russell: No, that is denied.
Mr Osei: It is denied?
Mr Russell: Uh hmm.
Mr Osei: Well, he doesn't want to attend this hearing.
Mr Russell: Could you please leave, Mr Osei?
Mr Osei: Yes, but I just want an opportunity ---
Mr Russell: No, that's refused. The hearing will proceed
Mr Osei: This is not fair. What you are doing is not fair.
Mr Russell: That's right.
Mr Osei: And you are exceeding the powers, sir ---
Mr Russell: Could you please leave Mr Osei? I have given you enough opportunity ---
Mr Osei: You haven't given me an opportunity to answer the questions that you are putting to my client that affects me.
Mr Russell: I gave you the opportunity to do that at the end of the hearing. If you don't like that, you can leave.
Mr Osei: Okay, I will take that, but I think that if you are going to put things to my client ---
Mr Russell: Mr Osei, you have disturbed this hearing, please leave.
Mr Osei: I am taking that. I am taking that, to respond to that ---
Mr Russell: I have asked you to leave. Do you want me to get the hearing officer?
Mr Osei: No, I don't want you, but you said - no - if you don't want me to stay I will leave - but at the end of the day ---
Mr Russell: Could you please send the security guard to room number 9 to have an adviser removed, thank you.
Mr Osei: You are not giving me the opportunity to respond?
Mr Russell: Could you please answer my question, Mr Bautista?
Mr Bautista: Could you please repeat the question?
Mr Russell: As I suggested to you before, documents were sent to your advisor on 20 August this year which indicate that only the son of Mr Estrada has indicated that the immediate family has received death threats. There is no evidence that either the immediate family members or extended family members have in fact been murdered or received any death threats, and therefore I suggest to you that your claims are at odds with that evidence. Would you like to comment?
Unknown: We don't actually have a security guard here at the moment?
Mr Russell: Well, I would like somebody then to remove the advisor because he has disturbed the hearing and he has refused to leave when I asked him to leave.
Mr Osei: For the purposes of the record, I have sought - you have sought - you have sought ---
Mr Russell: Mr Osei, could you please leave - I have asked you many times.
Mr Osei: Yes, I will leave - but for the purposes of the record I want to state unequivocally to ---
Mr Russell: You have already made your representations.
Mr Osei: Please, can you let me ---
Mr Russell: No, Mr Osei, that is refused. Could you please leave?
Mr Osei: I will leave but I just want to state on the record ---
Mr Russell: Could you please answer my question.
Mr Osei: I would like to seek opportunity to speak to my client ---
Mr Russell: That has been refused.
Mr Osei: Can you seek leave that you would like to speak to your advisor?
Unknown: Please can you leave the room?
Mr Osei: Yes, I am leaving."
45 The said exchange is the foundation of the charge particularised in Information 042040, set out above. 46 After the hearing, and on 10 September 2001, the Tribunal faxed a letter to Kofi Osei Caprock Immigration Consultants, giving until 14 September 2001 to make any submissions to the Tribunal in the matter and advising that a copy of the hearing tape could be obtained. No such submissions were lodged.
47 On 16 October 2001 the Refugee Review Tribunal handed down its decision affirming the decision not to grant protection visas to Mr and Mr Bautista and their children. The basis of the decision was that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution. It described as "implausible" key aspects of the applicants' claims and rejected the claim that the family, friends and associates of the applicant had been harassed, discriminated against and persecuted by the then current government in the Philippines. There were other criticisms of the applicant's case.
(e) Further Applications and Submission to the Minister
48 On 22 October 2001 the Bautistas had a conference with Mr Osei concerning them joining a class action in the matter of Li v The Minister for Multicultural Affairs through solicitors Adrian Joel & Co. On 23 October the Bautistas signed a fee agreement with Adrian Joel & Co and on the same date applied for a bridging visa on the basis that they were joining the class action. On 5 December 2001 the Bautistas' bridging visa applications were refused on the basis that there was no evidence of them having been joined in the class action. It appears that Adrian Joel & Co had not joined them. On 19 December 2001 the High Court dismissed the Li class action.
49 On 21 December 2001 the Bautistas made application for bridging visas on the basis that a submission was being made to the Minister for Multicultural Affairs for his intervention following the Review Tribunal's refusal of the appeal in relation to the protection visa. The submission to the Minister is dated 21 December 2001 and is on the letterhead of Caprock International Pty Limited and seeks that the Minister exercise the discretion granted to him under s.417 of the Migration Act 1958 by substituting a more favourable decision in respect of their unsuccessful application for a protection visa which was subsequently affirmed by the Refugee Review Tribunal. The submission to the Minister deals not only with the (false) claim by Mr Bautista about him fearing for his life if he returned to the Philippines, but also with other matters thought to be relevant to the Minister's discretion, including that the family was financially stable and had assets in Australia including the fact that Mrs Bautista was a shareholder and director of Lloyds International College, in which she had invested $150,000 and had an ownership interest of 10% of the business that employs over 40 Australian citizens.
50 The submission appealed to the Minister to consider the case also on the basis as though an application had been made under subclass 845. This was the ?long term strategy' visa application discussed on 16 February 2001 (supra) details of which are referred to below.
51 The submission to the Minister was accompanied by statutory declarations of Mr and Mrs Bautista, dealing not only with the protection visa aspect but also with aspects of financial security. Mrs Bautista's statutory declaration in the latter regard says:
"My eldest daughter, Mitzi Gay was studying Information Technology and we saw how financially profitable colleges in Sydney were. My husband and I discussed it and we decided to buy shares and invest money in a school named Lloyds International College. We were then issued certificates to show that we have 10% ownership of the college."
52 The documents in evidence include drafts of what became the statutory declarations accompanying the application to the Minister. These drafts contain handwritten alterations which became incorporated into the statutory declarations. When one compares the handwritten alterations with the handwritten conference notes acknowledged by Mr Osei to be in his handwriting, it is clear, in the Tribunal's opinion, that the handwritten alterations on what became Mrs Bautista's statutory declaration, were in the handwriting of Mr Osei.
53 In a letter from Mr Osei to the Bar Council dated 28 June 2002, he stated that "I did not personally prepare any of the applications, nor the submissions to the Minister" and "I did not draft or settle the ministerial submission. By administrative error, the submission went over my number 71062". This is a reference to Mr Osei's agent number, which appeared on the bottom of the letter to the Minister, where it was signed on behalf of Caprock Immigration Consultants.
54 In a letter to the Bar Council dated 7 May 2004 on behalf of Mr Osei, it was acknowledged, however, that the practitioner took instructions from Mr and Mrs Bautista in relation to the preparation of the letter to the Minister. It was also said, in the said letter, that Mr Osei "was only involved in settling part of the drafts of the material to be the basis of the statutory declarations which accompany the submission itself".
55 The preparation of the said submission by Caprock Immigration Consultants to the Minister for Immigration, dated 21 December 2001 forms the basis of Ground 2 of Information 042039.
(f) Complaint to Migration Agents Registration Authority
56 On 8 February 2002 Mr Bautista complained to the Migration Agents Registration Authority about the conduct of Mr and Mrs Osei and Caprock International Immigration Consultants.
57 The full terms of the complaint are in evidence. Due to some important differences between the terms of the complaint and the subsequent evidence from the Bautistas it is relevant to set out some of the terms of the complaint in detail. The complaint alleges that it was Mr Osei who told them that:
"The only way we could stay legally here in Australia is if we lodge an application for protection visa. Kofi Osei strongly advised us that this was the only option ..."
58 Also, the complaint alleges that when Mr Osei was looking at the Bautistas' files he saw that they had AUD$250,000 in Term Deposits in the Commonwealth Bank and:
"He also told us that if we invest money in his company (Lloyds International College, where my eldest daughter Mitzi Gay was studying) he assured us that we have a very big chance in staying here because of our investment. He explained to us that if we own or invest at least 10% in an Australian owned business (which he said has a turnover of AUD$1.5 million a year) the DIMA has no right to refuse our application and because that was written in a book (Investment Category) that he showed us, we were convinced that it is the law here in Australia and that he was telling the truth."
The complaint goes on to say: "He convinced us that we should lodge the application for protection visa ... to buy us time because the investment should be at least 18 months old at the time of the application. We were confused, yet convinced at the same time, that we were doing the right thing and making the right choice so we agreed to whatever he told us. And since he was a barrister, we also had faith in him that he was making the right steps for us and he knew more about the law here in Australia than us."
59 The complaint goes on to deal with the payment of the $150,000, together with an additional $5,000 "to his accountant for making the appropriate arrangements regarding the transfer of shares". The complaint goes on to deal also with the refusal of the protection visa application and the application for review, and an apparently heated argument between Mr Bautista and Mr Osei, following Mr Osei's walking out of the Refugee Review Tribunal's hearing. 60 The complaint goes on to say:
"Kofi Osei still assured us that because of our investment we have a big chance of getting a visa if we appeal to the Minister. He explained that if the Minister sees that we have an investment he would give special attention to our application."
61 The complaint records the fact that the Bautistas were advised that officers from the Department were looking for them, apparently on the basis that their visas had expired and that a bridging visa had not been granted and records the distress that this caused the family.
62 The complaint records that on 24 January 2002 Mr Bautista spoke to Mrs Osei, who apparently said that if the Minister suddenly refused the application for the exercise of his discretion that they would have to leave Australia, but that even if they went back to the Philippines the Department had no right to refuse a visa because of their investment in Australia. Mr Bautista said in the complaint:
"I did not expect this kind of answer from her because this was not what we had been told by her husband - that we have a big chance when we appeal to the Minister regarding our application. Now it seems that they too have lost hope in our application. It also seems that if we go back to the Philippines they will be the ones to benefit from our investment. On January 31, 2002 we went to their office to talk to Liba Osei and to tell her that we feel hopeless and that we want to get our investment from them (ever since we had made that investment, we have not received a single cent from them as dividends). She told us that she had no power to decide on that so we have to wait for Kofi Osei when he gets back on February 18, 2002."
63 On 15 March 2002 Caprock International Pty Limited, over the signature of Mr Osei, responded to a letter from the Professional Standards, Migration Agents Registration Authority of 21 February 2002, which forwarded to Mr Osei the said complaint. The response annexed a large number of documents and also included a chronology
64 Relevantly, in a document enclosed with the said letter and entitled "Heads of Complaint and our Response", Mr Osei asserted:
"B1.1 It is clear from the above evidence that Mr Bautista provided the documents and written instructions to lodge the protection visa application despite advice to the contrary. In fact, we discouraged him from pursuing the application. The above evidence clearly repudiates the allegation that "Kofi created the statement of claim sent to DIMA". C1.3 In or around mid-September 2000 Mr and Mrs Bautista approached us wanting to invest in Caprock International trading as Lloyds International College. They told us they had done their independent research and believed that colleges were profitable business in Australia. Following the initial approach negotiations and arrangements were put in place in order for Mrs Bautista to purchase shares in the company. Mrs Bautista was advised to seek independent legal advice prior to purchase.
1.5 The allegation that Kofi Osei assured them that if they invest in the company they have a big chance of staying in Australia because of their investment is incorrect. At no time did I assure the Bautistas of that. After all, they were making application for a protection visa and the criterion for the grant of protection visa had nothing to do with investment.
1.6 In relation to the allegation that if they owned at least 10% in an Australian company with a turnover of $1.5 million a year DIMA had no right to refuse their application because it is written in a book is nonsensical. In any event the allegation is denied. At no time did I make any such representation prior and subsequent to their investment.
1.8 The allegation that Kofi Osei advised that the investment should be at least 18 months old prior to application, again is nonsensical. At the relevant time they could not lodge any substantive application for a visa in the investment category because of the provisions of s.48 of the Migration Act.
1.9 We deny the allegation that a few days after the lodgment of the protection visa we issued a share certificate worth $150,000 in the name of Caprock International Pty Limited. We reiterate that negotiations and arrangements were ongoing for months prior to the issue of the shares in February 2001.
1.11 We deny Kofi Osei made representations to Mr Bautista that if the Minister sees that they have investment he would give special attention to their application. Again, that is incorrect, given that they had not lodged their application for a protection visa and the Minister does not assess primary applications. The allegation is false because there cannot be any application before the Minister."
65 A mediation was held of this dispute between Mr Osei and the Bautistas on 21 March 2002. It further appears that on that occasion the Bautistas agreed to withdraw the complaints which they had made to the Migration Agents Registration Authority, against Mr Osei, upon receipt of $150,000 representing the original investment. It appears, in substance, that the shares previously held by Mrs Bautista in Caprock International Pty Limited were transferred to a new investor who had been located and who paid the $150,000, which in turn was passed through to Mrs Bautista. Contrary to what Mr Osei asserted to this Tribunal in his letter of 19 April 2005 (paragraph 15 supra) he had not "been cleared of any wrongdoing". (g) Minister's Refusal
66 By letter dated 12 June 2002 the Minister refused to exercise his discretion to change the refusal of the protection visa application.
Evidence Generally
67 As with the terms of the complaint it is, in the Tribunal's opinion, desirable to set out in some detail the evidence of Mr and Mrs Bautista. This is because this evidence, in parts, is not clear and, in parts, is not consistent either internally or the one with the other. By so setting it out and as it occurred, these characteristics will be revealed.
Alberto Bautista - Interviewed 31 July 2002
68 On the above date an interview took place between Mr Bautista and Ms R. MacDougal, solicitor, and Ms Helen Barrett, Deputy Director, Professional Conduct, New South Wales Bar Association. A transcript of that interview is in evidence before the Tribunal.
69 The interview seems to make clear that, in Mr Bautista's view, it was due to a mistake in the offices of Caprock that the time limit for the review of the initial refusal of the sponsored visa application was accidentally allowed to expire. It was in this context, Mr Bautista said, that Mr Osei, having reviewed the file, told them "For the meantime, we will apply for a protection visa and at the same time you can invest in my college".
70 The transcript of interview reveals that it was Mr Osei who suggested that they invest in his college because it had a turnover of $1.5 million per annum. Mr Bautista said:
"I think that was in investment category, and you must at least have 10% share so we invested $150,000 and at least you must have $100,000 left for your financial support here in Australia".
When asked where the figure of $1.5 million came from, Mr Bautista said on more than one occasion words to the effect "In the book he is always showing it to us, immigration book, a book which he described as "Immigration Law of Australia" was the name of the book".
Mr Bautista said that he did not see or ask to see any documents in relation to the college as he trusted Mr Osei. He wasn't advised by Mr Osei to obtain legal advice about the proposed transaction and he did not speak to anyone about it before he handed over the money. Mr Bautista said that he handed over the money without enquiring because he trusted Mr Osei and because he was showing them the book and reading the turnover figure and he was always telling them that this was their big chance to settle in Australia.
71 At this time they were also advised to apply for a protection visa. It was Mr Osei's idea. Mr Bautista suggests that a copy of a newspaper article was obtained by his eldest child from the Internet and inferentially, on the evening following a discussion with Mr Osei about a protection visa.
72 Mr Bautista spoke in terms of being advised that "This will be your great big chance because you are just not a refugee you have investment here and later on we will appeal that to the Minister. That's what he told us, a refugee with investment here". He was told he would be successful.
73 Mr Bautista readily acknowledged that the whole fundamental basis of the refugee/protection visa application was knowingly false and that there was no relationship with Mr Estrada at all.
74 Mr Bautista says that he signed the document dated 19 February 2001 headed "Instructions to Caprock Immigration Consultants to make application" stating that he had been advised that the application for a protection visa had no hope of success because of the lack of corroborative evidence such as birth certificates because he had no choice and he trusted Mr Osei.
75 At one stage during the interview Mr Bautista says, when asked the question "You were quite happy to sign a document acknowledging that the application for a protection visa would not be successful?" he said "Because what I am thinking the investment will be the one to be approved". At page 43 of the transcript Mr Bautista seems to be drawing a distinction between an untruthful protection visa application and an investment which will be the one to be approved and which would be successful.
76 In relation to the letter to the Minister dated 21 December 2001 Mr Bautista said that it was Mr Osei's idea to appeal to the Minister and that he spent a considerable period of time talking to Mr Osei and giving him instructions as to the content of the letter. He acknowledges that some aspects of the letter are factually false and that the accompanying statutory declaration which he signed on oath was false when it dealt with the alleged relationship of his late mother, which was the foundation of the protection application. He acknowledges that he read the statutory declaration before he signed it, he knew it was not correct and he signed it, knowing it to be not correct because "I had no choice", "because I think this is needed in our application"
Alberto Bautista - Oral Evidence
77 Mr Bautista gave evidence before this Tribunal.
78 It is of considerable importance in the resolution of the issues in this case to weigh the credibility of the evidence of Mr and Mrs Bautista and the assertions of Mr Osei. So far as Mr Bautista is concerned, special care, in the Tribunal's opinion, needs to be taken because Mr Bautista has, as he has acknowledged, in the past made an application for a protection visa which he knew to be founded on a falsehood and when that application was unsuccessful, he gave evidence to the Refugee Review Tribunal, on oath, and again reiterated the false basis of the application. Further, when that review was unsuccessful, he gave instructions for an application to be made to the Minister for his intervention which application was again based on the same falsehood and further was supported by a statutory declaration signed by Mr Bautista which he knew, at the time of signing, was false in a very material respect. His explanation as to why he signed such a declaration amounts to no more than an assertion that he thought it was in his interests at the time to swear to the falsehood.
79 Mr Bautista's demeanour in the witness box and his answers were often vague and evasive. His demeanour gave the clear impression of a person who was uncomfortable giving evidence and who was evasive. The Tribunal is of the opinion that his evidence and demeanour in the witness box adds to, rather than detracts from the hesitation and caution with which this Tribunal should, because of the above factors, regard his evidence.
80 Mr Bautista says that at the time he first met Mr Osei at his offices, in relation to a visa, Mr Osei told him that he was an immigration consultant and a barrister.
81 Mr Bautista gave evidence about various matters which, in these proceedings, are not contentious and in this respect it is not necessary to here record his evidence.
82 Mr Bautista confirmed that he signed an agreement in February 2000 with Caprock International Pty Limited relating to the provision of services. As submitted by Mr Skinner on behalf of the Bar Association, many aspects of the agreement read as if they related to legal services. Indeed, the document expressly refers to the provision of services by the consultants "legal or otherwise". Charges were to be at an hourly rate or a daily rate of $1,500 for "investigation hearing". Disbursements were to be charged, as was a cancellation fee in the event of a matter not being reached or being adjourned, vacated or settled. There was provision for the rendering of "feenotes" and there was express provision that the "company's consultant" would be entitled to immunity from suit in accordance with the law relating to "advocate's immunity".
83 Mr Bautista said that Mr Osei was negligent in allowing the time limit for the review of the refusal of the business visa application to expire in early 2001 and that he complained about it. Mr Osei, at that time, "asked us to invest in the school, Lloyd International". At another point of his evidence, Mr Bautista said that Mr Osei said: "Since you've got the money you might as well invest in my college". Mr Osei apparently told them the business was doing good and earning $1.5 million per year, and while Mr Bautista asked for some proof to confirm that, Mr Osei was not able to give it to them. The inconsistency with Mr Bautista's interview referred to above (para 69) is patent.
84 Mr Bautista thought that the investment was 10%. Mr Bautista, in his oral evidence, seemed to be very hesitant in many of his answers but ultimately linked the investment to an investment category of visa and he referred to being shown a book on Immigration Law in Australia saying that he had to own a 10% share in a business. Mr Osei apparently showed the book to Mr Bautista and also read it to him and his wife. Mr Bautista's evidence was that if he entered into this investment he was advised by Mr Osei that it's "100 per cent success and this is based on the book, The Immigration Law of Australia". Mr Osei (according to Mr Bautista) used the phrase "100 per cent". Mr Bautista concurred with the proposition that he understood that the protection visa application was a different thing to the investment visa application which involved investment in the Lloyds International College.
85 In relation to the statutory declaration which accompanied the letter of 21 December 2001 to the Minister, Mr Bautista says that Mr Osei drafted it. Mr Bautista was in Mr Osei's office and was being asked questions about money and assets in the Philippines and he provided some documents to Mr Osei which detailed the assets of his wife and the family assets in the Philippines. Mr Osei was writing everything down.
86 Mr Bautista's evidence in relation to the investment visa was that he was told that the investment had to be there for eighteen months and that Mr Osei said "There is no way in which we can properly stay in Australia and so for the meantime we are going to lodge a protection visa while we are still waiting for this eighteen month investment category". When Mr Osei was talking about 100 per cent chance of success, he was talking about the business investment category, not the protection visa, about which Mr Bautista had been advised it would be very difficult to succeed unless they came up with some further evidence.
Jocelyn Bautista - Interviewed 31 July 2002
87 Mrs Bautista was also interviewed by Ms McDougall and Ms Barrett. Mrs Bautista confirmed that, in her view, it was a mistake in Caprock's office which led to the appeal time limit on the business sponsored visa application expiring. It was then that Mr Osei, while looking through the Bautistas' Term Deposit Records, suggested that as they had $250,000 in their account, they ought to invest in his college.
88 It is clear from the interview with Mrs Bautista that she and her husband had been looking to invest money in Australia since shortly after they arrived in 2000. That was the reason why they had met their first sponsor, who was involved in the Asian Grocery business. Mrs Bautista was interested in setting up a Grocery with an Asian restaurant, she having not inconsiderable cooking expertise.
89 Mrs Bautista says that Mr Osei did not suggest that they should get any independent advice about investing in Lloyds. They did not consult any other solicitor. They trusted Mr Osei. This evidence is consistent with the Bautista's letter of 1 July 2002 to the Bar Association, when they asserted that they did not seek independent legal advice before making the investment and they were not advised to seek independent accounting or financial advice. This is contrary to the assertion by Mr Osei in his letter of 28 June 2002 to the Bar Association that prior to the investment, Mrs Bautista was advised to obtain her own accounting and legal advice and that he formed the view that she had already obtained accounting advice.
90 The interview with Mrs Bautista is clear that it was Mr Osei who suggested the protection visa because they could not lodge an application for review, they being out of time. They did not know what a protection visa was and they were advised that it was the only application they could then make.
91 The interview with Mrs Bautista seems clear that in relation to the protection visa they were told that they had a "very big chance" because they were not just refugees but were also investors and that when the Minister saw the application and that they had invested in a certain business which had a turnover of $1.5 million, they would have a very big chance of being successful. They were not told that the protection visa was not likely to succeed. If they had been told that, there was no chance at all of them investing their money in this company.
92 Mrs Bautista was interviewed about matters which are not in controversy and it is unnecessary to here set out the detail of that aspect of her interview.
93 There was a discussion with Mr Osei about appealing to the Minister, following the refusal of the review process to the Refugee Review Tribunal. There was a discussion with Mr Osei on 18 December and a couple of days later they returned to sign some of the documents. It was Mr Osei who was making the notes as a result of the interviews that formed the basis of the statutory declaration by her in support of the letter.
94 In about the first week of January 2002, Mrs Bautista and her husband became worried because they heard that the Immigration officers were looking for them. She discussed the application with her husband and "We were afraid that this application is really hopeless, that before we go back to the Philippines we want our money back". It was another solicitor whom they consulted who told them that the application was hopeless and that is why they approached Mr Osei to get their money back and ultimately made a complaint to MARA, with a view to achieving that outcome.
95 Having read the interview as a whole, it certainly does not become apparent that Mrs Bautista understood the distinction, on the one hand, between the protection visa as possibly being hopeless and based on a falsity and the necessity for an investment to be in place for eighteen months before an application could be made on an investment business basis.
Jocelyn Bautista - Oral Evidence
96 Mrs Bautista gave evidence before the Tribunal. Her evidence was clear and forthright and she answered all questions in a manner which instilled some confidence in the veracity of her answers. She was an impressive witness.
97 Mrs Bautista said that Mr Osei originally introduced himself to her as a barrister who was willing to help with all the immigration procedures. Her husband having signed the agreement with Caprock Immigration Consultants for work to be done, and as referred to above, she understood that Mr Osei was giving the Bautista family legal services and no other barrister or solicitor was ever engaged by Caprock to provide such services.
98 The time limit for the review expired on 15 February 2001. They went back to the office on 16 February, spoke to a secretary and it was then realised that the time limit had expired. Mr Osei then came out of his office and they then had a meeting with him. He was reviewing the Bautista's records and he came across some certificates of term deposits and he suggested that instead of setting up a small business "Why don't you just invest in my business. You need to invest a bigger amount". The reference to the small business was the original idea of a sponsored business visa, coupled with the idea of setting up an Asian Grocery with a small restaurant. When he suggested investing in his business he said that if the Bautistas invested 10% in his business, which was worth $1.5 million, they would have 100 per cent chance of getting a visa. They were not shown any business records of the business. They received no advice about the structure of the company and while Mrs Bautista knew something about ordinary shares, she did not know about different classes of shares. She didn't know anything about Mr Osei's investment in the company or what differing rights were attached to differing shares.
99 She became a director of the company. Mr Osei said "a Marketing Director". He didn't tell her why and he didn't mention that it had anything to do with the visa application.
100 He did mention that the investment had to be for at least eighteen months and the reference to "100 per cent chance", she understood to be 100 per cent chance of getting a visa in the investment category.
101 Mr Bautista gave evidence about a meeting with accountants, when various minutes, and the like, were signed, together with other documents and the cheques were handed over.
102 Mr Osei suggested that the only visa application they were able to lodge at that time was for a protection visa, otherwise there was no lawful basis for them to stay in Australia. Mr Osei made notes about his discussion concerning the protection visa application (which are in evidence) and "When the discussion had been finalised, he instructed us to come back but that in the meantime we should have done some research about President Estrada". All the matters that went into the claim for a protection visa were discussed with Mr Osei, who took notes. Their eldest daughter provided some material from the Internet on the impeachment of Mr Estrada, but Mrs Bautista's evidence was that it was not given to Mr Osei because "... he just started writing notes from their discussions". It also wasn't given to him because Mr Osei had more ideas about what was to go into the application than they did.
103 The evidence of Mrs Bautista and the documents would indicate that the initial visit and instructions to Mr Osei was on 8 February 2001. They went back and saw him on the 16th, one day late for the review to be lodged and on that day they spent approximately the whole day with him. It was a Friday. They returned to see him on 19 February, the Monday, when they signed a waiver about the protection application being without hope of success. This visit on the 19th was about an hour and a half long.
104 Mrs Bautista is sure that Mr Osei had advised them that the protection visa would be approved and when it was rejected, Mr Bautista was really reluctant to go to the Refugee Review Tribunal hearing.
105 After that Tribunal rejected the review, one of the steps taken was to obtain a bridging visa application based on ministerial intervention, and it was in this context that the letter to the Minister of 21 December 2001 was written. By this time she had already lost interest in the application because another solicitor they had consulted had told them it was hopeless.
106 Mr Osei prepared the statutory declaration that accompanied the letter to the Minister. She saw him do it. In the sense that they provided some documents, it was Mr Osei who said that he would change and modify them and prepare the final statutory declarations, and that is what happened. One can see, on the documents they prepared, Mr Osei's handwriting, where he altered her statutory declaration.
107 Mrs Bautista's evidence was that at a later point of time she heard that the Immigration people were looking for her and she was worried that they would be deported back to the Philippines and that if this happened, they would not be able to get her investment of $150,000 back. It was for this reason that she made the complaint that she did to MARA, to make sure that she got the money back.
Further or Oral Evidence Hyun Ya Kim
108 Mrs Kim was at one time a director of Caprock International Pty Limited. She invested $150,000 in the Lloyds College but it had nothing to do with any visa application. She and her husband were interested in investing in the educational industry and they made contact with Mr Osei for the purpose of discussing with him investment in the college.
109 The evidence from ASIC indicates that she was appointed a director on 20 December 2000 and that she receive $150,000 B Class shares at some time between March and September 2001. Mr Seo
110 Evidence of a transcript of an interview with Mr Seo on 17 August 2004 was admitted through the evidence of Mr Hymen, who was involved in the interview. Mr Seo, in March 2002, effectively acquired the 150,000 A Class shares which Mrs Bautista was disposing of.
Roderick Murray
111 Mr Murray provided what he described as his assessment of the "working value" of Lloyds College as at 7 December 2000. He swore an affidavit. He gave oral evidence. He expressly advised, in his affidavit, that he was not an accountant and could not provide a detailed and proper accounting evaluation of the college. What he did was to provide an estimate of the start-up and replacement costs of the college.
112 Mr Murray gave evidence that the college was on Floors 1 and 5 of 307 Pitt Street and that Mr Osei's office was on Floor 9. He recalls that the board in the foyer of the building listed the college as Levels 1 and 5, that Caprock was listed at Level 9, and he remembers a reference on either that board, or the door to Mr Osei's premises, to the word "Chambers".
Kwame Adofo Koramoah
113 Mr Adofo Koramoah commenced working for Caprock Immigration Consultants in about November 2001. It was on the 9th floor of 307 Pitt Street, where Mr Osei also practised as a barrister in a separate, but adjoining, part of the premises. His job was to do research in relation to the law and legal issues. He was involved in the Bautista matter when they were in the process of seeking to have the Minister intervene. His recollection of precisely his involvement is, at this point in time, unclear. He was working under Mr Osei as a barrister, to get his twelve week placement, required for a Practising Certificate.
114 He recalls that in the lobby of the building there is a sign indicating "Dowling Chambers", as well as "Caprock Immigration Consultants". In the office there was a sign for "Dowling Chambers" as well as "Caprock Immigration Consultants".
Kofi Osei - Correspondence
115 While the Tribunal has not had the benefit of any evidence or submissions at the hearing on behalf of Mr Osei, it has fully taken into account and given due weight to the correspondence, in evidence, from himself to MARA, to the Bar Association and correspondence from his solicitors, Mess Stewart Cuddy & Mockler to the Bar Association and his reply filed in proceedings 042010.
116 In considering this material the Tribunal is conscious of the fact that in two respects the correspondence from Mr Osei to the Bar Council has, at its lowest, been acknowledged by him to be not fully accurate. Grounds 1 and 2 of the information 042039 set out above demonstrate the acknowledged inaccuracies.
117 While the Tribunal has taken into account the totality of the said material, it is, in its opinion, important to highlight some aspects of it:
(a) Mr Osei asserts that the failure to lodge an application for review of the sponsorship visa application was due to a lack of instructions prior to the expiry date, rather than any error or omission by him or his staff.
(b) Mr Osei asserts that it was Mr and Mrs Bautista who, in September 2000, approached him wanting to invest in Caprock International trading as Lloyds International College. He asserts that they said they had done independent research. Mrs Bautista was advised to seek independent legal advice and these arrangements were finalised on 27 February 2001 when the company received funds from Mrs Bautista.
(c) Mr Osei denies that any suggested investment in Caprock/Lloyds emanated from him and asserts that it was the suggestion of Mr and Mrs Bautista and it originated in September 2000. In this respect he draws attention to the original draft statutory declaration prepared for submission to the Minister in December 2001 (prepared by Mr and Mrs Bautista) (in terms as set out in the final statutory declaration extracted, in para 50, above).
(d) Mr Osei repeatedly denies that he said anything to Mr and Mrs Bautista to the effect that their investment would have any impact, let alone a big chance on them staying in Australia. He says this in the context that at the time they were applying for a protection visa and the criteria for the grant of such a visa had nothing to do with investment. At no time, Mr Osei says, did he make any representation concerning their investment and any visa application, either to the Department or in relation to the Minister.
(e) He asserts that the investment of $150,000 did represent 10% of the voting and income producing capital of the company at that time.
(f) Mr Osei asserts that at all relevant times he was appearing and acting as a migration agent and not as a barrister. This, he asserts, relates not only to advice and correspondence and applications, but also relates to his appearance before the Refugee Review Tribunal. He did not there appear other than as an advisor (migration agent) and the transcript of the proceedings does not suggest to the contrary.
(g) Mr Osei asserts that he certainly did not suggest to Mr and Mrs Bautista that they apply for protection visas but that such a suggestion emanated from Mr and Mrs Bautista, who had independently sought advice as to the possibility of a protection visa and had obtained material which was used for the purpose of making such an application.
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21 As previously recorded, the Bautista family arrived in Australia from the Philippines in November 1999 on a three month tourist visa, which was due to expire in January 2000. In January 2000 the tourist visa was extended for six months, due to expire in June 2000. This extension of the visa was obtained by the Bautista family with the assistance of a Filipino solicitor, Lolita Farmer.
22 On 16 February 2000 the Bautistas met Mr Osei through a friend, who had been the Bautistas' neighbour in the Philippines. The Bautistas met with Mr Osei for advice on lodging a Temporary Business Entry Visa. Between February and June 2000 the Bautistas made payments of fees towards this visa application totalling some $6,000.
23 On 22 June 2000 an application for such a visa was lodged with the Department of Immigration and Multicultural Affairs. The sponsor was a Mr Tagel.
24 On 18 January 2001 the Department of Immigration and Multicultural Affairs refused the said visa application.
25 On 24 January 2001 Caprock Immigration Consultants, on Caprock International Pty Limited letterhead, advised the sponsor, Mr Tagle, and Mrs Bautista of the decision and also advised that any review application to the Migration Review Tribunal had to be made within 28 days from 18 January 2001, in default of which any such application would be statute barred.
26 There was difficulty between the Bautistas and the sponsor, the latter, apparently, not wishing to continue the sponsorship. Mr Osei appreciated that the last day for lodging an application for review was 15 February 2001. Caprock again wrote to Mrs Bautista on 9 February 2001 requesting urgent instructions by 15 February. This letter followed a conference with Mrs Bautista on 8 February 2001.
No such application was lodged. The circumstances of such failure to do so are referred to below.
(b) Discussions of 16 February 2001
27 The discussions which occurred on this day are important to an understanding of what transpired between the parties, and to three of the grounds of complaint before this Tribunal. The details of the discussions will be referred to below. For present purposes it is sufficient to record the following.
28 On 16 February 2001 the time for lodging with the Migration Review Tribunal an application for review of the refusal, dated 18 January 2001, of the temporary business entry - 457 subclass visa had expired. The Bautistas held a bridging visa, valid for 35 days from 22 January 2001 and unless things changed, at the end of that period they were liable to be deported. Discussions took place between Mr and Mrs Bautista and Mr Osei on 16 February 2001 at Mr Osei's said offices. Mr Osei kept notes of the discussions which are in evidence.
29 The exhibits include a letter from Caprock Immigration Consultants, dated 16 February 2001 to Mr Bautista, confirming instructions to prepare an urgent protection visa application for himself and his dependants. The letter continues:
"We confirm our advice in conference today that the application is not likely to succeed in the absence of evidence in support of your claim". The letter goes on to confirm that Mr Bautista would attend Caprock's office in conference on Monday (19 February).
30 Other notes, apparently also dated 16 February 2001, speak of articles from the Internet about Mr Estrada (the former President of the Philippines) and that succeeding in the protection visa application would not be easy and would fail unless there was evidence of the relationship. The note records instructions to prepare and lodge (the application). The said notes are in the handwriting of Mr Osei.
31 Also dated 16 February 2001 in Mr Osei's handwriting is a document headed "Draft Statement of Claim". It is clearly the forerunner of a formal application for a protection visa which was lodged with the Department of Immigration and Multicultural Affairs.
32 Though the evidence in relation to the discussions on 16 February 2001 given by Mr and Mrs Bautista and the documentary material, some of which has emanated from Mr Osei, requires close scrutiny, and which is discussed below, this Tribunal is satisfied that on that day several matters of substance were discussed between the parties. The first matter of substance was that the time for the lodging of the application for review of the refusal of 18 January 2001 had expired and that the Bautistas would shortly become exposed to the risk of deportation.
33 The second matter discussed was the fact that as at 16 February 2001 the only application for a visa which could then be made, in substance, was a protection visa. What was discussed was a visa to permit the Bautistas to stay in Australia upon the basis that Mr Bautista's late mother was a cousin to the former President of the Philippines Joseph Estrada's mother, and that by virtue of the family relationship and the political landscape in the Philippines, Mr Bautista and his family were at risk of persecution, intimidation, harassment and violence if they returned to the Philippines.
34 The claim in the protection visa application was false and was known by the Bautistas to be false at the time it was made. They have readily admitted as such and did do in the evidence before this Tribunal.
35 It was, however, in this context that instructions were given to Mr Osei to prepare the protection visa application and no doubt in this context that he wrote to them that the application had no likelihood of success because of the absence of corroborating evidence of the relationship between Mr Bautista's mother and President Estrada. A letter of instruction, signed by Mr Bautista on 19 February 2001 and addressed to Caprock Immigration Consultants, confirms the advice that the application has "no hope of success because of lack of corroborative evidence such as birth certificates linking me to former President Estrada". The document nevertheless instructs Caprock Immigration Consultants to make the application "because my sister will forward the supporting documents later".
36 The other matter of significance discussed on 16 February 2001, this Tribunal finds, is a longer term strategy to assist in the Bautistas being able to remain in Australia. Because of the passing of the time limit for the review application on 15 February the Bautistas needed both a short term strategy (the protection visa) and a longer term strategy in the foreshadowed probability that the short term strategy would fail because it was based on a falsehood and based on a premise which had no corroborative evidence to support it. The long term strategy was an application for an Established Business in Australia visa, subclass 845, which required before the application could be made an investment of certain proportions in a business in Australia. The details of this discussion and the Tribunal's findings are set out below.
37 The protection visa application was lodged with the Department on 22 February 2001.
(c) The Bautistas' Investment
38 On 27 February 2001 the Bautistas paid to Lloyds International College the sum of $150,000. An application for 150,000 A Class shares was signed by Mrs Bautista and addressed to the company and subsequently and there was a meeting of directors of the company which resolved to issue those shares to Mrs Bautista. It also resolved that she be appointed a director. The Articles of Association of the company were also altered so as to entitle the A Class shareholders to certain voting rights, dividend rights and, on a winding up, to receive a distribution of all surplus assets remaining after the repayment of the paid-up share capital, each right being expressed in terms of the fraction of 1:1500. The detail and significance is discussed below.
39 A share certificate in Caprock International Pty Limited was issued to Mrs Bautista. The company's record thereafter reflected the above position, as did the relevant records of ASIC.
(d) Refusal of Protection Visa
40 On 7 June 2001 the Department of Immigration and Multicultural Affairs refused the protection visa applications. Caprock Immigration Consultants was instructed to prepare an application for review by the Refugee Review Tribunal. By letter dated 19 June 2001 to Mr Bautista, he was advised by Caprock that "If you do not provide the documentary evidence to prove your relationship with former President Estrada, your application will fail again".
41 On 27 June 2001 the application for review was lodged with the Refugee Review Tribunal.
42 On 3 September 2001 the hearing of the review application was listed before the said Refugee Review Tribunal. The hearing was adjourned to 10 September 2001.
43 On 10 September 2001 the hearing before the Tribunal took place. The Bautistas were represented by Mr Osei. What occurred on that occasion is the subject of the third Information and concerned Mr Osei's conduct before that Tribunal. This Tribunal has received in evidence a transcript of the hearing before the Review Tribunal and has also had the benefit of listening to a transcript of the said proceedings. There is no doubt that Mr Osei was acting for Mr and Mrs Bautista at the review hearing. It was made clear by the Tribunal Member, at the very beginning of the hearing that the procedure would be that the Tribunal Member would ask the Bautistas questions and give them an opportunity to expand on their beliefs. The Tribunal Member said: "At the end of the hearing, I will give you and your advisor opportunities to make any final remarks that you wish to make". Later, and before asking the foreshadowed questions, the Tribunal Member asked Mr Osei whether he had any preliminary matters or submissions to make at that stage. Mr Osei replied in the negative.
44 After some questions were put to Mr Bautista by the Tribunal Member, an exchange occurred in the following terms between the Tribunal Member, Mr Russell, and Mr Osei:
"Mr Russell: Mr Bautista, I don't accept your claim that this individual was murdered in November 2000 because according to the information that was sent to you in [sic] your advisor by the Tribunal on 20 August this year, according to the son of one of the - sorry, to one of the son's [sic] of Estrada, Estrada's family has received death threats but there was no documentation that any murders or death threats occurred with respect to any of the immediate or extended family of Estrada and therefore, I suggest that your claims are at odds with that independent evidence. Would you like to comment? Mr Bautista: I have some documents here with me. I'll like to show the document, please.
Mr Russell: That's fine, but first of all, could you please reply to my comment?
Mr Osei, please, I'll wait.
Mr Osei: No, no, but you mentioned ---
Mr Russell: Mr Osei, please.
Mr Osei: But you mentioned advisor. Excuse me, sir.
Mr Russell: Excuse me, I gave you leave to make representations at the end --- Mr Osei: Well, I'm seeking leave because ---
Mr Russell: No ... No, it's refused ---
Mr Osei:--- because you mentioned my name - you mentioned advisor and you had sent documents to him - an adviser. I would like to ---
Mr Russell: Mr Osei! Excuse me - I'll wait - you can make your representations at the end.
Mr Osei: If you are not going to give me an opportunity then I will be submitting that these proceedings ---
Mr Russell: Excuse me!
Mr Osei: --- are not being held fairly.
Mr Russell: That's fine.
Mr Osei: I would like to take my leave. Can you give us time so I can seek instructions from my client. You don't want to give me ---
Mr Russell: No.
Mr Osei: Excuse me.
Mr Russell: The hearing is proceeding. I will give you representation time at the end of the hearing as indicated.
Mr Osei: Then don't make assertions that you have send documents to the adviser without me having the opportunity to comment. This is a denial of the rules of natural justice. You are denying us procedural fairness, sir.
Mr Russell: Well, guess what?
Mr Osei: What.
Mr Russell: Documents were sent to you and the applicant on 20 aug. Do you deny that?
Mr Osei: No, but I would like to comment on that.
Mr Russell: You will have a chance at the end of the hearing. Thank you! Could you please answer my question?
Mr Osei: You are putting things to the applicant - I am sitting here - you are making claims for the applicant ---
Mr Russell: Mr Osei! One more statement and you will leave the rooms.
Mr Osei: I am quite happy to go if you give me an opportunity to confer with my client. Now ---
Mr Russell: No.
Mr Osei: --- is this going to be a kangaroo tribunal or are you going to give us, the applicant, a fair opportunity to state his case?
Mr Russell: Mr Osei, I have given you a chance.
Mr Osei: You aren't giving me a chance
Mr Russell: Okay. Would you please leave.
Mr Osei: You haven't given me ---
Mr Russell: Would you please leave.
Mr Osei: Can I have opportunity with my client?
Mr Russell: No.
Mr Osei: Why not?
Mr Russell: No.
Mr Osei: This is my application to the Tribunal. You, you are ---
Mr Russell: Can you please leave Mr Osei?
Mr Osei: You are holding this - can I have an opportunity with my client?
Mr Russell: No, Mr Osei.
Mr Osei: This is an application.
Mr Russell: Mr Osei! Do you want me to have a hearing officer remove you?
Mr Osei: I don't want you to ---
Mr Russell: Can you please leave then because you are disturbing this hearing.
Mr Osei: Well - can I seek some instructions from my client?
Mr Russell: No, that is denied.
Mr Osei: It is denied?
Mr Russell: Uh hmm.
Mr Osei: Well, he doesn't want to attend this hearing.
Mr Russell: Could you please leave, Mr Osei?
Mr Osei: Yes, but I just want an opportunity ---
Mr Russell: No, that's refused. The hearing will proceed
Mr Osei: This is not fair. What you are doing is not fair.
Mr Russell: That's right.
Mr Osei: And you are exceeding the powers, sir ---
Mr Russell: Could you please leave Mr Osei? I have given you enough opportunity ---
Mr Osei: You haven't given me an opportunity to answer the questions that you are putting to my client that affects me.
Mr Russell: I gave you the opportunity to do that at the end of the hearing. If you don't like that, you can leave.
Mr Osei: Okay, I will take that, but I think that if you are going to put things to my client ---
Mr Russell: Mr Osei, you have disturbed this hearing, please leave.
Mr Osei: I am taking that. I am taking that, to respond to that ---
Mr Russell: I have asked you to leave. Do you want me to get the hearing officer?
Mr Osei: No, I don't want you, but you said - no - if you don't want me to stay I will leave - but at the end of the day ---
Mr Russell: Could you please send the security guard to room number 9 to have an adviser removed, thank you.
Mr Osei: You are not giving me the opportunity to respond?
Mr Russell: Could you please answer my question, Mr Bautista?
Mr Bautista: Could you please repeat the question?
Mr Russell: As I suggested to you before, documents were sent to your advisor on 20 August this year which indicate that only the son of Mr Estrada has indicated that the immediate family has received death threats. There is no evidence that either the immediate family members or extended family members have in fact been murdered or received any death threats, and therefore I suggest to you that your claims are at odds with that evidence. Would you like to comment?
Unknown: We don't actually have a security guard here at the moment?
Mr Russell: Well, I would like somebody then to remove the advisor because he has disturbed the hearing and he has refused to leave when I asked him to leave.
Mr Osei: For the purposes of the record, I have sought - you have sought - you have sought ---
Mr Russell: Mr Osei, could you please leave - I have asked you many times.
Mr Osei: Yes, I will leave - but for the purposes of the record I want to state unequivocally to ---
Mr Russell: You have already made your representations.
Mr Osei: Please, can you let me ---
Mr Russell: No, Mr Osei, that is refused. Could you please leave?
Mr Osei: I will leave but I just want to state on the record ---
Mr Russell: Could you please answer my question.
Mr Osei: I would like to seek opportunity to speak to my client ---
Mr Russell: That has been refused.
Mr Osei: Can you seek leave that you would like to speak to your advisor?
Unknown: Please can you leave the room?
Mr Osei: Yes, I am leaving."
45 The said exchange is the foundation of the charge particularised in Information 042040, set out above. 46 After the hearing, and on 10 September 2001, the Tribunal faxed a letter to Kofi Osei Caprock Immigration Consultants, giving until 14 September 2001 to make any submissions to the Tribunal in the matter and advising that a copy of the hearing tape could be obtained. No such submissions were lodged.
47 On 16 October 2001 the Refugee Review Tribunal handed down its decision affirming the decision not to grant protection visas to Mr and Mr Bautista and their children. The basis of the decision was that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution. It described as "implausible" key aspects of the applicants' claims and rejected the claim that the family, friends and associates of the applicant had been harassed, discriminated against and persecuted by the then current government in the Philippines. There were other criticisms of the applicant's case.
(e) Further Applications and Submission to the Minister
48 On 22 October 2001 the Bautistas had a conference with Mr Osei concerning them joining a class action in the matter of Li v The Minister for Multicultural Affairs through solicitors Adrian Joel & Co. On 23 October the Bautistas signed a fee agreement with Adrian Joel & Co and on the same date applied for a bridging visa on the basis that they were joining the class action. On 5 December 2001 the Bautistas' bridging visa applications were refused on the basis that there was no evidence of them having been joined in the class action. It appears that Adrian Joel & Co had not joined them. On 19 December 2001 the High Court dismissed the Li class action.
49 On 21 December 2001 the Bautistas made application for bridging visas on the basis that a submission was being made to the Minister for Multicultural Affairs for his intervention following the Review Tribunal's refusal of the appeal in relation to the protection visa. The submission to the Minister is dated 21 December 2001 and is on the letterhead of Caprock International Pty Limited and seeks that the Minister exercise the discretion granted to him under s.417 of the Migration Act 1958 by substituting a more favourable decision in respect of their unsuccessful application for a protection visa which was subsequently affirmed by the Refugee Review Tribunal. The submission to the Minister deals not only with the (false) claim by Mr Bautista about him fearing for his life if he returned to the Philippines, but also with other matters thought to be relevant to the Minister's discretion, including that the family was financially stable and had assets in Australia including the fact that Mrs Bautista was a shareholder and director of Lloyds International College, in which she had invested $150,000 and had an ownership interest of 10% of the business that employs over 40 Australian citizens.
50 The submission appealed to the Minister to consider the case also on the basis as though an application had been made under subclass 845. This was the ?long term strategy' visa application discussed on 16 February 2001 (supra) details of which are referred to below.
51 The submission to the Minister was accompanied by statutory declarations of Mr and Mrs Bautista, dealing not only with the protection visa aspect but also with aspects of financial security. Mrs Bautista's statutory declaration in the latter regard says:
"My eldest daughter, Mitzi Gay was studying Information Technology and we saw how financially profitable colleges in Sydney were. My husband and I discussed it and we decided to buy shares and invest money in a school named Lloyds International College. We were then issued certificates to show that we have 10% ownership of the college."
52 The documents in evidence include drafts of what became the statutory declarations accompanying the application to the Minister. These drafts contain handwritten alterations which became incorporated into the statutory declarations. When one compares the handwritten alterations with the handwritten conference notes acknowledged by Mr Osei to be in his handwriting, it is clear, in the Tribunal's opinion, that the handwritten alterations on what became Mrs Bautista's statutory declaration, were in the handwriting of Mr Osei.
53 In a letter from Mr Osei to the Bar Council dated 28 June 2002, he stated that "I did not personally prepare any of the applications, nor the submissions to the Minister" and "I did not draft or settle the ministerial submission. By administrative error, the submission went over my number 71062". This is a reference to Mr Osei's agent number, which appeared on the bottom of the letter to the Minister, where it was signed on behalf of Caprock Immigration Consultants.
54 In a letter to the Bar Council dated 7 May 2004 on behalf of Mr Osei, it was acknowledged, however, that the practitioner took instructions from Mr and Mrs Bautista in relation to the preparation of the letter to the Minister. It was also said, in the said letter, that Mr Osei "was only involved in settling part of the drafts of the material to be the basis of the statutory declarations which accompany the submission itself".
55 The preparation of the said submission by Caprock Immigration Consultants to the Minister for Immigration, dated 21 December 2001 forms the basis of Ground 2 of Information 042039.
(f) Complaint to Migration Agents Registration Authority
56 On 8 February 2002 Mr Bautista complained to the Migration Agents Registration Authority about the conduct of Mr and Mrs Osei and Caprock International Immigration Consultants.
57 The full terms of the complaint are in evidence. Due to some important differences between the terms of the complaint and the subsequent evidence from the Bautistas it is relevant to set out some of the terms of the complaint in detail. The complaint alleges that it was Mr Osei who told them that:
"The only way we could stay legally here in Australia is if we lodge an application for protection visa. Kofi Osei strongly advised us that this was the only option ..."
58 Also, the complaint alleges that when Mr Osei was looking at the Bautistas' files he saw that they had AUD$250,000 in Term Deposits in the Commonwealth Bank and:
"He also told us that if we invest money in his company (Lloyds International College, where my eldest daughter Mitzi Gay was studying) he assured us that we have a very big chance in staying here because of our investment. He explained to us that if we own or invest at least 10% in an Australian owned business (which he said has a turnover of AUD$1.5 million a year) the DIMA has no right to refuse our application and because that was written in a book (Investment Category) that he showed us, we were convinced that it is the law here in Australia and that he was telling the truth."
The complaint goes on to say: "He convinced us that we should lodge the application for protection visa ... to buy us time because the investment should be at least 18 months old at the time of the application. We were confused, yet convinced at the same time, that we were doing the right thing and making the right choice so we agreed to whatever he told us. And since he was a barrister, we also had faith in him that he was making the right steps for us and he knew more about the law here in Australia than us."
59 The complaint goes on to deal with the payment of the $150,000, together with an additional $5,000 "to his accountant for making the appropriate arrangements regarding the transfer of shares". The complaint goes on to deal also with the refusal of the protection visa application and the application for review, and an apparently heated argument between Mr Bautista and Mr Osei, following Mr Osei's walking out of the Refugee Review Tribunal's hearing. 60 The complaint goes on to say:
"Kofi Osei still assured us that because of our investment we have a big chance of getting a visa if we appeal to the Minister. He explained that if the Minister sees that we have an investment he would give special attention to our application."
61 The complaint records the fact that the Bautistas were advised that officers from the Department were looking for them, apparently on the basis that their visas had expired and that a bridging visa had not been granted and records the distress that this caused the family.
62 The complaint records that on 24 January 2002 Mr Bautista spoke to Mrs Osei, who apparently said that if the Minister suddenly refused the application for the exercise of his discretion that they would have to leave Australia, but that even if they went back to the Philippines the Department had no right to refuse a visa because of their investment in Australia. Mr Bautista said in the complaint:
"I did not expect this kind of answer from her because this was not what we had been told by her husband - that we have a big chance when we appeal to the Minister regarding our application. Now it seems that they too have lost hope in our application. It also seems that if we go back to the Philippines they will be the ones to benefit from our investment. On January 31, 2002 we went to their office to talk to Liba Osei and to tell her that we feel hopeless and that we want to get our investment from them (ever since we had made that investment, we have not received a single cent from them as dividends). She told us that she had no power to decide on that so we have to wait for Kofi Osei when he gets back on February 18, 2002."
63 On 15 March 2002 Caprock International Pty Limited, over the signature of Mr Osei, responded to a letter from the Professional Standards, Migration Agents Registration Authority of 21 February 2002, which forwarded to Mr Osei the said complaint. The response annexed a large number of documents and also included a chronology
64 Relevantly, in a document enclosed with the said letter and entitled "Heads of Complaint and our Response", Mr Osei asserted:
"B1.1 It is clear from the above evidence that Mr Bautista provided the documents and written instructions to lodge the protection visa application despite advice to the contrary. In fact, we discouraged him from pursuing the application. The above evidence clearly repudiates the allegation that "Kofi created the statement of claim sent to DIMA". C1.3 In or around mid-September 2000 Mr and Mrs Bautista approached us wanting to invest in Caprock International trading as Lloyds International College. They told us they had done their independent research and believed that colleges were profitable business in Australia. Following the initial approach negotiations and arrangements were put in place in order for Mrs Bautista to purchase shares in the company. Mrs Bautista was advised to seek independent legal advice prior to purchase.
1.5 The allegation that Kofi Osei assured them that if they invest in the company they have a big chance of staying in Australia because of their investment is incorrect. At no time did I assure the Bautistas of that. After all, they were making application for a protection visa and the criterion for the grant of protection visa had nothing to do with investment.
1.6 In relation to the allegation that if they owned at least 10% in an Australian company with a turnover of $1.5 million a year DIMA had no right to refuse their application because it is written in a book is nonsensical. In any event the allegation is denied. At no time did I make any such representation prior and subsequent to their investment.
1.8 The allegation that Kofi Osei advised that the investment should be at least 18 months old prior to application, again is nonsensical. At the relevant time they could not lodge any substantive application for a visa in the investment category because of the provisions of s.48 of the Migration Act.
1.9 We deny the allegation that a few days after the lodgment of the protection visa we issued a share certificate worth $150,000 in the name of Caprock International Pty Limited. We reiterate that negotiations and arrangements were ongoing for months prior to the issue of the shares in February 2001.
1.11 We deny Kofi Osei made representations to Mr Bautista that if the Minister sees that they have investment he would give special attention to their application. Again, that is incorrect, given that they had not lodged their application for a protection visa and the Minister does not assess primary applications. The allegation is false because there cannot be any application before the Minister."
65 A mediation was held of this dispute between Mr Osei and the Bautistas on 21 March 2002. It further appears that on that occasion the Bautistas agreed to withdraw the complaints which they had made to the Migration Agents Registration Authority, against Mr Osei, upon receipt of $150,000 representing the original investment. It appears, in substance, that the shares previously held by Mrs Bautista in Caprock International Pty Limited were transferred to a new investor who had been located and who paid the $150,000, which in turn was passed through to Mrs Bautista. Contrary to what Mr Osei asserted to this Tribunal in his letter of 19 April 2005 (paragraph 15 supra) he had not "been cleared of any wrongdoing". (g) Minister's Refusal
66 By letter dated 12 June 2002 the Minister refused to exercise his discretion to change the refusal of the protection visa application.
Evidence Generally
67 As with the terms of the complaint it is, in the Tribunal's opinion, desirable to set out in some detail the evidence of Mr and Mrs Bautista. This is because this evidence, in parts, is not clear and, in parts, is not consistent either internally or the one with the other. By so setting it out and as it occurred, these characteristics will be revealed.
Alberto Bautista - Interviewed 31 July 2002
68 On the above date an interview took place between Mr Bautista and Ms R. MacDougal, solicitor, and Ms Helen Barrett, Deputy Director, Professional Conduct, New South Wales Bar Association. A transcript of that interview is in evidence before the Tribunal.
69 The interview seems to make clear that, in Mr Bautista's view, it was due to a mistake in the offices of Caprock that the time limit for the review of the initial refusal of the sponsored visa application was accidentally allowed to expire. It was in this context, Mr Bautista said, that Mr Osei, having reviewed the file, told them "For the meantime, we will apply for a protection visa and at the same time you can invest in my college".
70 The transcript of interview reveals that it was Mr Osei who suggested that they invest in his college because it had a turnover of $1.5 million per annum. Mr Bautista said:
"I think that was in investment category, and you must at least have 10% share so we invested $150,000 and at least you must have $100,000 left for your financial support here in Australia".
When asked where the figure of $1.5 million came from, Mr Bautista said on more than one occasion words to the effect "In the book he is always showing it to us, immigration book, a book which he described as "Immigration Law of Australia" was the name of the book".
Mr Bautista said that he did not see or ask to see any documents in relation to the college as he trusted Mr Osei. He wasn't advised by Mr Osei to obtain legal advice about the proposed transaction and he did not speak to anyone about it before he handed over the money. Mr Bautista said that he handed over the money without enquiring because he trusted Mr Osei and because he was showing them the book and reading the turnover figure and he was always telling them that this was their big chance to settle in Australia.
71 At this time they were also advised to apply for a protection visa. It was Mr Osei's idea. Mr Bautista suggests that a copy of a newspaper article was obtained by his eldest child from the Internet and inferentially, on the evening following a discussion with Mr Osei about a protection visa.
72 Mr Bautista spoke in terms of being advised that "This will be your great big chance because you are just not a refugee you have investment here and later on we will appeal that to the Minister. That's what he told us, a refugee with investment here". He was told he would be successful.
73 Mr Bautista readily acknowledged that the whole fundamental basis of the refugee/protection visa application was knowingly false and that there was no relationship with Mr Estrada at all.
74 Mr Bautista says that he signed the document dated 19 February 2001 headed "Instructions to Caprock Immigration Consultants to make application" stating that he had been advised that the application for a protection visa had no hope of success because of the lack of corroborative evidence such as birth certificates because he had no choice and he trusted Mr Osei.
75 At one stage during the interview Mr Bautista says, when asked the question "You were quite happy to sign a document acknowledging that the application for a protection visa would not be successful?" he said "Because what I am thinking the investment will be the one to be approved". At page 43 of the transcript Mr Bautista seems to be drawing a distinction between an untruthful protection visa application and an investment which will be the one to be approved and which would be successful.
76 In relation to the letter to the Minister dated 21 December 2001 Mr Bautista said that it was Mr Osei's idea to appeal to the Minister and that he spent a considerable period of time talking to Mr Osei and giving him instructions as to the content of the letter. He acknowledges that some aspects of the letter are factually false and that the accompanying statutory declaration which he signed on oath was false when it dealt with the alleged relationship of his late mother, which was the foundation of the protection application. He acknowledges that he read the statutory declaration before he signed it, he knew it was not correct and he signed it, knowing it to be not correct because "I had no choice", "because I think this is needed in our application"
Alberto Bautista - Oral Evidence
77 Mr Bautista gave evidence before this Tribunal.
78 It is of considerable importance in the resolution of the issues in this case to weigh the credibility of the evidence of Mr and Mrs Bautista and the assertions of Mr Osei. So far as Mr Bautista is concerned, special care, in the Tribunal's opinion, needs to be taken because Mr Bautista has, as he has acknowledged, in the past made an application for a protection visa which he knew to be founded on a falsehood and when that application was unsuccessful, he gave evidence to the Refugee Review Tribunal, on oath, and again reiterated the false basis of the application. Further, when that review was unsuccessful, he gave instructions for an application to be made to the Minister for his intervention which application was again based on the same falsehood and further was supported by a statutory declaration signed by Mr Bautista which he knew, at the time of signing, was false in a very material respect. His explanation as to why he signed such a declaration amounts to no more than an assertion that he thought it was in his interests at the time to swear to the falsehood.
79 Mr Bautista's demeanour in the witness box and his answers were often vague and evasive. His demeanour gave the clear impression of a person who was uncomfortable giving evidence and who was evasive. The Tribunal is of the opinion that his evidence and demeanour in the witness box adds to, rather than detracts from the hesitation and caution with which this Tribunal should, because of the above factors, regard his evidence.
80 Mr Bautista says that at the time he first met Mr Osei at his offices, in relation to a visa, Mr Osei told him that he was an immigration consultant and a barrister.
81 Mr Bautista gave evidence about various matters which, in these proceedings, are not contentious and in this respect it is not necessary to here record his evidence.
82 Mr Bautista confirmed that he signed an agreement in February 2000 with Caprock International Pty Limited relating to the provision of services. As submitted by Mr Skinner on behalf of the Bar Association, many aspects of the agreement read as if they related to legal services. Indeed, the document expressly refers to the provision of services by the consultants "legal or otherwise". Charges were to be at an hourly rate or a daily rate of $1,500 for "investigation hearing". Disbursements were to be charged, as was a cancellation fee in the event of a matter not being reached or being adjourned, vacated or settled. There was provision for the rendering of "feenotes" and there was express provision that the "company's consultant" would be entitled to immunity from suit in accordance with the law relating to "advocate's immunity".
83 Mr Bautista said that Mr Osei was negligent in allowing the time limit for the review of the refusal of the business visa application to expire in early 2001 and that he complained about it. Mr Osei, at that time, "asked us to invest in the school, Lloyd International". At another point of his evidence, Mr Bautista said that Mr Osei said: "Since you've got the money you might as well invest in my college". Mr Osei apparently told them the business was doing good and earning $1.5 million per year, and while Mr Bautista asked for some proof to confirm that, Mr Osei was not able to give it to them. The inconsistency with Mr Bautista's interview referred to above (para 69) is patent.
84 Mr Bautista thought that the investment was 10%. Mr Bautista, in his oral evidence, seemed to be very hesitant in many of his answers but ultimately linked the investment to an investment category of visa and he referred to being shown a book on Immigration Law in Australia saying that he had to own a 10% share in a business. Mr Osei apparently showed the book to Mr Bautista and also read it to him and his wife. Mr Bautista's evidence was that if he entered into this investment he was advised by Mr Osei that it's "100 per cent success and this is based on the book, The Immigration Law of Australia". Mr Osei (according to Mr Bautista) used the phrase "100 per cent". Mr Bautista concurred with the proposition that he understood that the protection visa application was a different thing to the investment visa application which involved investment in the Lloyds International College.
85 In relation to the statutory declaration which accompanied the letter of 21 December 2001 to the Minister, Mr Bautista says that Mr Osei drafted it. Mr Bautista was in Mr Osei's office and was being asked questions about money and assets in the Philippines and he provided some documents to Mr Osei which detailed the assets of his wife and the family assets in the Philippines. Mr Osei was writing everything down.
86 Mr Bautista's evidence in relation to the investment visa was that he was told that the investment had to be there for eighteen months and that Mr Osei said "There is no way in which we can properly stay in Australia and so for the meantime we are going to lodge a protection visa while we are still waiting for this eighteen month investment category". When Mr Osei was talking about 100 per cent chance of success, he was talking about the business investment category, not the protection visa, about which Mr Bautista had been advised it would be very difficult to succeed unless they came up with some further evidence.
Jocelyn Bautista - Interviewed 31 July 2002
87 Mrs Bautista was also interviewed by Ms McDougall and Ms Barrett. Mrs Bautista confirmed that, in her view, it was a mistake in Caprock's office which led to the appeal time limit on the business sponsored visa application expiring. It was then that Mr Osei, while looking through the Bautistas' Term Deposit Records, suggested that as they had $250,000 in their account, they ought to invest in his college.
88 It is clear from the interview with Mrs Bautista that she and her husband had been looking to invest money in Australia since shortly after they arrived in 2000. That was the reason why they had met their first sponsor, who was involved in the Asian Grocery business. Mrs Bautista was interested in setting up a Grocery with an Asian restaurant, she having not inconsiderable cooking expertise.
89 Mrs Bautista says that Mr Osei did not suggest that they should get any independent advice about investing in Lloyds. They did not consult any other solicitor. They trusted Mr Osei. This evidence is consistent with the Bautista's letter of 1 July 2002 to the Bar Association, when they asserted that they did not seek independent legal advice before making the investment and they were not advised to seek independent accounting or financial advice. This is contrary to the assertion by Mr Osei in his letter of 28 June 2002 to the Bar Association that prior to the investment, Mrs Bautista was advised to obtain her own accounting and legal advice and that he formed the view that she had already obtained accounting advice.
90 The interview with Mrs Bautista is clear that it was Mr Osei who suggested the protection visa because they could not lodge an application for review, they being out of time. They did not know what a protection visa was and they were advised that it was the only application they could then make.
91 The interview with Mrs Bautista seems clear that in relation to the protection visa they were told that they had a "very big chance" because they were not just refugees but were also investors and that when the Minister saw the application and that they had invested in a certain business which had a turnover of $1.5 million, they would have a very big chance of being successful. They were not told that the protection visa was not likely to succeed. If they had been told that, there was no chance at all of them investing their money in this company.
92 Mrs Bautista was interviewed about matters which are not in controversy and it is unnecessary to here set out the detail of that aspect of her interview.
93 There was a discussion with Mr Osei about appealing to the Minister, following the refusal of the review process to the Refugee Review Tribunal. There was a discussion with Mr Osei on 18 December and a couple of days later they returned to sign some of the documents. It was Mr Osei who was making the notes as a result of the interviews that formed the basis of the statutory declaration by her in support of the letter.
94 In about the first week of January 2002, Mrs Bautista and her husband became worried because they heard that the Immigration officers were looking for them. She discussed the application with her husband and "We were afraid that this application is really hopeless, that before we go back to the Philippines we want our money back". It was another solicitor whom they consulted who told them that the application was hopeless and that is why they approached Mr Osei to get their money back and ultimately made a complaint to MARA, with a view to achieving that outcome.
95 Having read the interview as a whole, it certainly does not become apparent that Mrs Bautista understood the distinction, on the one hand, between the protection visa as possibly being hopeless and based on a falsity and the necessity for an investment to be in place for eighteen months before an application could be made on an investment business basis.
Jocelyn Bautista - Oral Evidence
96 Mrs Bautista gave evidence before the Tribunal. Her evidence was clear and forthright and she answered all questions in a manner which instilled some confidence in the veracity of her answers. She was an impressive witness.
97 Mrs Bautista said that Mr Osei originally introduced himself to her as a barrister who was willing to help with all the immigration procedures. Her husband having signed the agreement with Caprock Immigration Consultants for work to be done, and as referred to above, she understood that Mr Osei was giving the Bautista family legal services and no other barrister or solicitor was ever engaged by Caprock to provide such services.
98 The time limit for the review expired on 15 February 2001. They went back to the office on 16 February, spoke to a secretary and it was then realised that the time limit had expired. Mr Osei then came out of his office and they then had a meeting with him. He was reviewing the Bautista's records and he came across some certificates of term deposits and he suggested that instead of setting up a small business "Why don't you just invest in my business. You need to invest a bigger amount". The reference to the small business was the original idea of a sponsored business visa, coupled with the idea of setting up an Asian Grocery with a small restaurant. When he suggested investing in his business he said that if the Bautistas invested 10% in his business, which was worth $1.5 million, they would have 100 per cent chance of getting a visa. They were not shown any business records of the business. They received no advice about the structure of the company and while Mrs Bautista knew something about ordinary shares, she did not know about different classes of shares. She didn't know anything about Mr Osei's investment in the company or what differing rights were attached to differing shares.
99 She became a director of the company. Mr Osei said "a Marketing Director". He didn't tell her why and he didn't mention that it had anything to do with the visa application.
100 He did mention that the investment had to be for at least eighteen months and the reference to "100 per cent chance", she understood to be 100 per cent chance of getting a visa in the investment category.
101 Mr Bautista gave evidence about a meeting with accountants, when various minutes, and the like, were signed, together with other documents and the cheques were handed over.
102 Mr Osei suggested that the only visa application they were able to lodge at that time was for a protection visa, otherwise there was no lawful basis for them to stay in Australia. Mr Osei made notes about his discussion concerning the protection visa application (which are in evidence) and "When the discussion had been finalised, he instructed us to come back but that in the meantime we should have done some research about President Estrada". All the matters that went into the claim for a protection visa were discussed with Mr Osei, who took notes. Their eldest daughter provided some material from the Internet on the impeachment of Mr Estrada, but Mrs Bautista's evidence was that it was not given to Mr Osei because "... he just started writing notes from their discussions". It also wasn't given to him because Mr Osei had more ideas about what was to go into the application than they did.
103 The evidence of Mrs Bautista and the documents would indicate that the initial visit and instructions to Mr Osei was on 8 February 2001. They went back and saw him on the 16th, one day late for the review to be lodged and on that day they spent approximately the whole day with him. It was a Friday. They returned to see him on 19 February, the Monday, when they signed a waiver about the protection application being without hope of success. This visit on the 19th was about an hour and a half long.
104 Mrs Bautista is sure that Mr Osei had advised them that the protection visa would be approved and when it was rejected, Mr Bautista was really reluctant to go to the Refugee Review Tribunal hearing.
105 After that Tribunal rejected the review, one of the steps taken was to obtain a bridging visa application based on ministerial intervention, and it was in this context that the letter to the Minister of 21 December 2001 was written. By this time she had already lost interest in the application because another solicitor they had consulted had told them it was hopeless.
106 Mr Osei prepared the statutory declaration that accompanied the letter to the Minister. She saw him do it. In the sense that they provided some documents, it was Mr Osei who said that he would change and modify them and prepare the final statutory declarations, and that is what happened. One can see, on the documents they prepared, Mr Osei's handwriting, where he altered her statutory declaration.
107 Mrs Bautista's evidence was that at a later point of time she heard that the Immigration people were looking for her and she was worried that they would be deported back to the Philippines and that if this happened, they would not be able to get her investment of $150,000 back. It was for this reason that she made the complaint that she did to MARA, to make sure that she got the money back.
Further or Oral Evidence Hyun Ya Kim
108 Mrs Kim was at one time a director of Caprock International Pty Limited. She invested $150,000 in the Lloyds College but it had nothing to do with any visa application. She and her husband were interested in investing in the educational industry and they made contact with Mr Osei for the purpose of discussing with him investment in the college.
109 The evidence from ASIC indicates that she was appointed a director on 20 December 2000 and that she receive $150,000 B Class shares at some time between March and September 2001. Mr Seo
110 Evidence of a transcript of an interview with Mr Seo on 17 August 2004 was admitted through the evidence of Mr Hymen, who was involved in the interview. Mr Seo, in March 2002, effectively acquired the 150,000 A Class shares which Mrs Bautista was disposing of.
Roderick Murray
111 Mr Murray provided what he described as his assessment of the "working value" of Lloyds College as at 7 December 2000. He swore an affidavit. He gave oral evidence. He expressly advised, in his affidavit, that he was not an accountant and could not provide a detailed and proper accounting evaluation of the college. What he did was to provide an estimate of the start-up and replacement costs of the college.
112 Mr Murray gave evidence that the college was on Floors 1 and 5 of 307 Pitt Street and that Mr Osei's office was on Floor 9. He recalls that the board in the foyer of the building listed the college as Levels 1 and 5, that Caprock was listed at Level 9, and he remembers a reference on either that board, or the door to Mr Osei's premises, to the word "Chambers".
Kwame Adofo Koramoah
113 Mr Adofo Koramoah commenced working for Caprock Immigration Consultants in about November 2001. It was on the 9th floor of 307 Pitt Street, where Mr Osei also practised as a barrister in a separate, but adjoining, part of the premises. His job was to do research in relation to the law and legal issues. He was involved in the Bautista matter when they were in the process of seeking to have the Minister intervene. His recollection of precisely his involvement is, at this point in time, unclear. He was working under Mr Osei as a barrister, to get his twelve week placement, required for a Practising Certificate.
114 He recalls that in the lobby of the building there is a sign indicating "Dowling Chambers", as well as "Caprock Immigration Consultants". In the office there was a sign for "Dowling Chambers" as well as "Caprock Immigration Consultants".
Kofi Osei - Correspondence
115 While the Tribunal has not had the benefit of any evidence or submissions at the hearing on behalf of Mr Osei, it has fully taken into account and given due weight to the correspondence, in evidence, from himself to MARA, to the Bar Association and correspondence from his solicitors, Mess Stewart Cuddy & Mockler to the Bar Association and his reply filed in proceedings 042010.
116 In considering this material the Tribunal is conscious of the fact that in two respects the correspondence from Mr Osei to the Bar Council has, at its lowest, been acknowledged by him to be not fully accurate. Grounds 1 and 2 of the information 042039 set out above demonstrate the acknowledged inaccuracies.
117 While the Tribunal has taken into account the totality of the said material, it is, in its opinion, important to highlight some aspects of it:
(a) Mr Osei asserts that the failure to lodge an application for review of the sponsorship visa application was due to a lack of instructions prior to the expiry date, rather than any error or omission by him or his staff.
(b) Mr Osei asserts that it was Mr and Mrs Bautista who, in September 2000, approached him wanting to invest in Caprock International trading as Lloyds International College. He asserts that they said they had done independent research. Mrs Bautista was advised to seek independent legal advice and these arrangements were finalised on 27 February 2001 when the company received funds from Mrs Bautista.
(c) Mr Osei denies that any suggested investment in Caprock/Lloyds emanated from him and asserts that it was the suggestion of Mr and Mrs Bautista and it originated in September 2000. In this respect he draws attention to the original draft statutory declaration prepared for submission to the Minister in December 2001 (prepared by Mr and Mrs Bautista) (in terms as set out in the final statutory declaration extracted, in para 50, above).
(d) Mr Osei repeatedly denies that he said anything to Mr and Mrs Bautista to the effect that their investment would have any impact, let alone a big chance on them staying in Australia. He says this in the context that at the time they were applying for a protection visa and the criteria for the grant of such a visa had nothing to do with investment. At no time, Mr Osei says, did he make any representation concerning their investment and any visa application, either to the Department or in relation to the Minister.
(e) He asserts that the investment of $150,000 did represent 10% of the voting and income producing capital of the company at that time.
(f) Mr Osei asserts that at all relevant times he was appearing and acting as a migration agent and not as a barrister. This, he asserts, relates not only to advice and correspondence and applications, but also relates to his appearance before the Refugee Review Tribunal. He did not there appear other than as an advisor (migration agent) and the transcript of the proceedings does not suggest to the contrary.
(g) Mr Osei asserts that he certainly did not suggest to Mr and Mrs Bautista that they apply for protection visas but that such a suggestion emanated from Mr and Mrs Bautista, who had independently sought advice as to the possibility of a protection visa and had obtained material which was used for the purpose of making such an application.
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