119 The Tribunal is mindful of the requirements that it be satisfied according to the test laid down in Briginshaw v Briginshaw (1938) 60 CLR 336. The Tribunal is also conscious that in the present case its task has some features which require some special vigilance. In particular, the Tribunal refers to the fact that Mr Osei did not give evidence and has made no submissions, the fact that Mr Bautista had knowingly put forward a false claim as the basis of the protection visa application and had subsequently given false, sworn evidence to support it to the Refugee Review Tribunal and subsequently still had sworn a false declaration in support of an application to the Minister for review. In addition, Mrs Bautista was, this Tribunal readily infers, fully aware of the falsity of the basis of the protection visa application and fully aware of her husband's conduct in support of the application. She also swore a statutory declaration in support of the Minister's review. Notwithstanding the Tribunal is satisfied to the requisite degree in relation to its findings, as set out in this decision.
February 2001
120 While not of paramount importance, the Tribunal is not satisfied that the omission to instigate a review of the Department's refusal of the sponsored visa application was caused solely by an oversight/error in the offices of Caprock/Osei. It accepts the evidence of Mr and Mr Bautista that when it was discovered, on 16 February, that the 15 February deadline had passed there was, to some degree at least, a sense of panic in those offices. A solution had to be found. The terms of retainer document signed by Mrs Bautista on 8 February 2001 contains her instructions to Caprock to prepare and lodge an application for a review of decision to the Migration Review Tribunal. The Caprock file notes of discussion with Mrs Bautista on 8 February 2001 discussed the Department's decision and the options to either lodge another application or to apply for a review by 15 February 2001. The Tribunal is satisfied that Mrs Bautista gave instructions for the latter to occur.
121 Mr Osei has stated that the time elapsed because of the lack of instructions which had to include instructions from the sponsor, Mr Tagle, whom Caprock had been advised as at 8 February 2001 was unwilling to continue with his sponsorship. Mr Osei, in this respect, relies upon a file note of a discussion on 6 February 2001 when Mrs Bautista apparently advised Caprock of this matter, which matter was reiterated in Caprock's letter to Mrs Bautista of 9 February. Caprock prepared an application for review but says it was never lodged because of lack of instructions from the nominating sponsor.
122 Mrs Bautista says that she had with her, when she went to Mr Osei's office on 16 February, the review application forms and the required letter from the sponsoring company. Mrs Bautista's evidence is that she went to the office and spoke to the secretary and told her that she had the money and the applications and it was then realised that the date had lapsed.
123 It seems clear that the Bautistas had been told more than once that the review date expired on 15 February 2001. It seems clear that, at least initially, the sponsor was believed to be reluctant to continue with his sponsorship of the Bautistas and that this was the case as at 8 February 2001. It also appears clear that the Bautistas gave instructions to Mr Osei to pursue the review. It seems that it was left to the Bautistas to obtain the necessary signatures from Mr Tagle. It appears that there was no follow up from Caprock after the letter of 9 February 2001. The result was that it was on 16 February that the signed review forms were returned by the Bautistas to Mr Osei in conference and it was in these circumstances that the date was allowed to expire and it was in these circumstances that the "panic" which Mr and Mrs Bautista speak of occurred.
124 Not only had the review date been missed, but as noted in the conference notes of 8 February 2001, the bridging visa which the Bautistas had was due to expire on 22 February 2001.
125 In this situation of crisis the Tribunal accepts that Mr Osei said to the Bautistas words to the effect "Instead of panicking, we should think of solutions to the problem".
126 The Tribunal accepts the evidence of Mr and Mrs Bautista that it was in this context that it was Mr Osei who thought of the solution which in part involved making an application for a protection visa. That was the only application which could then theoretically be made and which could be made before the bridging visa expired. If made, it would permit the Bautistas to stay in Australia while that application was being processed. The Tribunal accepts the Bautista's evidence that the protection visa application was Mr Osei's idea and it rejects his statements in the correspondence to the effect that it was the Bautistas who thought of it. The Tribunal accepts the evidence that the Bautistas did not know what a protection visa was, in the sense of how it could possibly apply to them.
127 The Tribunal accepts the clear evidence that on 16 February the Bautistas spent a very considerable period of time in conference with Mr Osei and, as reflected in his file notes for that day, it was he who drafted the draft statement of claim for the protection visa application. It was this application which was based upon a false premise that there was any relevant relationship between the Bautista family on the one hand and President Estrada's family on the other.
128 The Tribunal accepts, contrary to the evidence of Mr and Mrs Bautista, that they were advised, either on the 16th and/or certainly the 19th February that the protection visa application had no likelihood of success unless corroborative evidence of this relationship could be supplied by the Bautistas in the form of birth certificates and the like. The contemporaneous documentary evidence of file notes, correspondence and signed acknowledgment clearly so establishes. It rejects the evidence to the contrary from Mr and Mrs Bautista.
129 Contrary to the assertions of Mr Osei, the Tribunal finds that it was on 19 February 2001, following the initial conference on 16 February 2001, that the Bautistas returned with certain Internet articles relating to harassment of the Estrada family, which had been obtained by the Bautistas' daughter in the period between 16 and 19 February. In this respect, the Tribunal rejects the suggestion by Mr Osei that the articles were brought in on 16 February and it rejects that a one-page file note, which is in evidence, of a conference between 11 am and 12.30 pm is in fact a file note of a conference on 16 February 2001. The date has been changed. The Tribunal finds that that conference took place on 19 February as deposed to by Mrs Bautista. The conference on 16 February took most of the day. When the Bautistas came for the conference on 16 February, no-one contemplated that a protection visa application would be made and there was, as at that date, no necessity or warrant for bringing in articles from the Internet concerning Mr Estrada. Those documents were prompted by what occurred at Mr Osei's office on 16 February. The Tribunal finds the articles were brought in and that part of the conference was held on 19 February, not 16 February as the file notes purport to reflect.
130 The Tribunal also finds that on 16 February 2001 there was discussion between the Bautistas and Mr Osei concerning the investment by the Bautistas of a sum of money in Lloyds International School. So much is acknowledged by all participants.
131 Contrary to the statements by Mr Osei, the Tribunal finds that the question of such investment was suggested by Mr Osei and suggested by him on 16 February 2001. It was not a suggestion which emanated from the Bautistas. In this respect the Tribunal accepts their evidence. It was not some form of investment which they had been considering and discussing since September 2000. They had not, as Mr Osei suggests in the correspondence, had prior accounting advice in relation to such an investment. They deny it. There was no call for such an investment being considered by them prior to 16 February. There is no evidence to suggest they did consider it prior to 16 February, and there is certainly no evidence of any accountant giving them any advice in relation to such an investment, nor indeed, any evidence that any of the books of account or records of either the school or Caprock International Pty Limited being made available to them for any accountant's advice. In this respect, the Tribunal rejects the propositions put forward by Mr Osei.
132 The statutory declaration sworn by Mrs Bautista in support of the application for Ministerial review, on a proper reading, is not inconsistent with her evidence as to how this investment came to be considered, or when. Her version there set out perhaps omits some features relevant for present purposes, but is certainly not, in the Tribunal's opinion, inconsistent with what she asserts took place on 16 February.
133 The suggested investment by Mr Osei, as recounted by Mr and Mrs Bautista, had a number of features. One was that the investment had to be of a 10% interest in a business. The second was that the investment had to be in place for 18 months. A third aspect of the conversation was that Mr Osei kept referring to a book on immigration law.
134 The Tribunal rejects the statements by Mr Osei to the effect that the investment in the school had nothing to do with a visa application. Such a suggestion is, in the Tribunal's opinion, patently false. Not only is such a suggestion inconsistent with the evidence of Mr and Mrs Bautista as to the conversation, it is inconsistent with the conversation taking place in the situation of "panic" on 16 February 2001. Further, as has now become apparent, what Mr Osei was speaking about was an application for a Business Investment Visa Class 845.213, which requires that an applicant have an "ownership interest" in one or more established main businesses in Australia for a period of 18 months immediately preceding the making of the visa application. So much is specified in Schedule 2 of the Migration Regulations 1994 which were in force at the relevant time of this discussion. This is the visa class referred to by Caprock in its letter to the Minister of 21 December 2001. The Tribunal has gone to the Regulations, and in particular, Regulation 1.11.1C. There is provision that a business is a main business in relation to an application for a visa if the value of the applicant's ownership interest is or was at least 10% of the total value of the business. According to Mr and Mrs Bautista, Mr Osei was telling them that the business of the school was worth $1.5 million and accordingly, 10% would equate to $150,000.
135 The recollection of the Bautistas of the conversation correlates with what turns out to be the relevant Migration Act and Regulation provisions and the Tribunal concludes that it was these provisions which Mr Osei was referring to and which he showed them in the "migration book" referred to in their evidence. The suggestion by Mr Osei to the contrary is rejected.
136 In the context of this potential investment, the Tribunal is satisfied that Mr Osei gave to Mr and Mrs Bautista an assurance in relation to the outcome of a visa application in the event that they invested in the College. Initially, the form of such assurance was put by Mr and Mrs Bautista as "a very big chance". It was so described in the complaint to the Office of the Legal Services Commissioner on 27 February 2002. The complaint to MARA described the assurance in the same terms. Mr Bautista's interview spoke in terms of "a great big chance". Mrs Bautista's interview told of a "very big chance". Mr Bautista, in his evidence, however, said that he was told "It's 100 per cent success". He reiterated that the phrase "100 per cent" was used. Mrs Bautista, in her evidence used the same phrase of "100 per cent chance".
137 Under the Migration Act 1958 the provisions which are referred to above have to be satisfied by an applicant at the time the application for a visa is made. At the time that a decision is to be made on the visa application, certain additional criteria are required to be satisfied by the applicant. These additional criteria relate to the Applicant's score on the Business Skills Points Test, public interest criteria and the like.
138 The Tribunal is satisfied that an assurance was given by Mr Osei in relation to the prospects of success of a visa application in the event that Mr and Mrs Bautista invested in his company. Mr Osei's assertions to the contrary are rejected. The Tribunal is not satisfied that he said to Mr and Mrs Bautista words to the effect that they had a 100 per cent chance, but it is satisfied that he said to them words to the effect that they would have "a very big chance". In so concluding, the Tribunal takes into account the discrepancy between the Bautistas' version of the assurance as first given and their evidence and it takes into account the objective fact that other criteria over and above the fact of the investment had to be satisfied when a decision was being made in relation to the application. The Tribunal also takes into account the fact that it seems clear that Mr Osei had in front of him the relevant migration criteria, which he was showing to Mr and Mrs Bautista, and such criteria would have readily revealed the additional tests which needed to be satisfied at the time the application was being decided.
139 The Bautistas invested $150,000. That represented 10% of what Mr Osei was claiming to be the value of his business. It seems clear that before such investment took place, Mr and Mrs Bautista had no independent accounting or legal advice. They were not provided with any books or records which would, in any sense, justify the investment. They were not advised by Mr Osei to obtain any such independent legal or accounting advice. In so concluding the Tribunal accepts the evidence of Mr and Mrs Bautista and rejects the assertions of Mr Osei to the contrary. It also rejects, for the reasons stated elsewhere that he had the impression they already had any relevant accounting advice.
140 The discussions between the Bautistas and Mr Osei were in terms of them investing in his business, which the Bautistas understood to be Lloyds International School. Such a proposition is consistent with the statements by Mr Osei about the Bautistas wanting to invest in the school. It is consistent with what the Bautistas thought they were investing in.
141 The school was a business carried on by Caprock International Pty Limited. The investment by the Bautistas was not in the school itself, but by Mrs Bautista, acquiring shares in Caprock International Pty Limited. It is not known by this Tribunal what the assets and liabilities of that company are, or were at the relevant time. It is known that the company apparently also carried on business as Caprock Migration Consultants, but there is no evidence before this Tribunal as to the assets and liabilities of the company and, accordingly, no judgment can be made as to the worth of the investment which Mrs Bautista made. Likewise, the Bautistas did not make any such assessment before making the investment and it seems clear that they accepted the assurances which were given to them by Mr Osei as to the "worth" of the "business".
142 The Tribunal also finds that the form of the investment was not one which the Bautistas fully or relevantly understood. Not only did they have no independent legal or accounting advice in relation to the structure of the investment, it seems clear that Mr Osei did not relevantly explain it to them and the Tribunal accepts their evidence that, in substance, they did not understand it.
143 What in fact occurred, according to the records in evidence, was that prior to this investment, there were two issued ordinary shares of $1 each in the company. On 27 February 2001 Mr and Mrs Osei passed a resolution altering the Articles of Association of the company so that the A class shares had one vote for every 1,500 shares and, on a winding up, were entitled to, as structured, 10% of the surplus assets and in the meantime were entitled, as structured, to 10% of all dividends declared. Mrs Bautista was allotted 150,000 A class shares. In addition to the two issued ordinary shares, a further 449 ordinary shares were allotted to both Mr and Mrs Osei. The end result was that, according to these records, for the $150,000 investment, Mrs Bautista acquired a 10% voting right, a right to 10% of the declared dividends and a right to 10% of the surplus assets on the winding up (assuming the net assets of the company were worth $1.5 million as Mr Osei seems to have been asserting). The Tribunal is satisfied she did not understand this structure, but that she trusted Mr Osei that the investment that she made was going to satisfy the requirements of the Migration Act about which he had spoken. The fact the investment was structured to be 10% and that this was a requirement for a class 845.213 visa is further reason to reject Mr Osei's assertion that the investment in the school had nothing to do with a visa application.
144 The Tribunal is satisfied that the investment proposed by Mr Osei for the Bautistas in the "school" was part of a two-pronged strategy devised by him on 16 February 2001, when faced with a situation where the previous visa application refusal could not be reviewed because of the lapse of time and where there was a need for urgent action to protect the interests of the Bautistas in relation to the looming expiry of their bridging visa on 22 February 2001. The strategy was to immediately lodge a protection visa application, which Mr Osei knew was doomed to failure unless the Bautistas could come up with some corroborative evidence of the relationship being asserted in the application. The immediate lodgment of the protection visa application would protect the interests of the Bautistas in the short term, while such an application and any review process was in train. The longer term strategy involved an investment for 18 months in a relevant business, such an interest being of a 10% nature. That is what Mr Osei advised and that is how the investment was structured. His suggestions to the contrary are plainly false and are rejected.
Refugee Review Tribunal Hearing
145 The relevant portion of the transcript of this hearing is set out above. Nothing, in the Tribunal's opinion, can be plainer than that such conduct by Mr Osei had the inevitable consequence that he would be ejected from the Tribunal's hearing. He was warned of such on more than one occasion. He was told that he could make relevant submissions at the conclusion of the evidence. He was requested, on more than one occasion, to desist from interrupting. Mr Osei's explanation, as put forward to the Bar Council on 28 June 2002, was that he attempted to restrict and to channel the questions asked by the Tribunal Member and sought to make submissions "all of which were refused". Factually, that explanation is not accurate. The Tribunal has read the further explanations put forward on behalf of Mr Osei; for example, as contained in the letter of Stewart Cuddy & Mockler of 8 July 2003. There it is asserted that Mr Osei was seeking to advance the Bautistas' case and that he was not given the opportunity to do so in relation to a matter of critical importance to the Bautistas' application. It is asserted on behalf of Mr Osei that should that have been left to be dealt with during addresses, the interests of the Bautistas would have been neither advanced nor protected.
146 The Tribunal is firmly of the opinion that the conduct by Mr Osei in this respect is without justification. It is one thing to forcefully seek to advance the client's interests; it is another to behave in such a manner which will inevitably lead to one's expulsion from the hearing room, thereby leaving the client without any representation at all. Further, the repeated manner in which Mr Osei sought to speak, notwithstanding warnings and advice from the Tribunal Member to the contrary, demonstrates a totally inappropriate and improper regard by him for the Tribunal Member and the procedure which he was entitled to, and was, adopting.
147 In addition, there is absolutely no justification at all for Mr Osei referring to the Tribunal as a "kangaroo tribunal".
148 The Tribunal finds, in this regard, Mr Osei's behaviour to be disgraceful.
Ministerial Review
149 Mr Osei, in his letter of 28 June 2002 to the New South Wales Bar Association, was responding to what were then five complaints. One of the complaints was that he had failed to properly or adequately advise Mr and Mrs Bautista in relation to rights and options for successful migration applications. In response to that complaint, Mr Osei said: "I did not personally prepare any of the applications or submissions to the Minister".
150 Mr Osei now concedes that he authored the file note of 16 February 2001 and the draft Statement of Claim for the protection visa. He also accepts that he settled the statutory declarations of the Bautistas that accompanied the submission to the Minister. So much is clear, when one considers the original typed draft statutory declaration of Mrs Bautista and Mr Osei's hand-written alterations, which were then incorporated into the final document sworn by her. Such process is verified by the evidence of Mrs Bautista, in particular.
151 When the Bar Association asked Mr Osei for an explanation, he sought to restrict his phrase "submissions" to the contents of the letter of December 2001. It was put forward by solicitors for Mr Osei that the reference to "did not personally prepare any of the application or the submissions to the Minister" was made in the context of a general response to an assertion of having failed to properly and adequately advise the Bautistas, and that he was trying to point out that he had not personally prepared the formal applications, these being matters within the responsibility of Mrs Osei.
152 It is said, on Mr Osei's behalf, that he did not have available the file notes of his conference with the Bautistas on 16 February, or the draft statement of claim as they had, apparently, been produced to MARA. It is said, on his behalf, that "personally prepare" is not the same as "taking part in the preparation of".
153 The Tribunal will deal with these submissions below. For present purposes, it is plain that Mr Osei personally was involved in the preparation of the form of the statutory declarations which accompanied the submission to the Minister, dated 21 December 2001. It was part of the submission. To claim otherwise is sophistry.
A. Information 042010
154 This Tribunal is not satisfied that Mr Osei "knowingly and deliberately misled" Mr and Mrs Bautista as alleged. For reasons already given, it is satisfied that he gave them an assurance that the investment would give them, in effect, a "very big chance" of success. The Tribunal finds that when he gave such an assurance Mr Osei was not referring to the protection visa application. Mr Osei thought that such an application had virtually no chance of success at all (unless Mr and Mrs Bautista provided some co-operative evidence). The fact that he so thought is amply demonstrated not only by his contemporaneous file notes but by his letter of advice to Mr Bautista dated 16 February 2001 and, further, by the acknowledgment signed by Mr Bautista on 19 February 2001. Contrary to some of the evidence and assertions, in complaints, by Mr and Mrs Bautista the assurance was not being given in relation to any application to the Minister for the exercise of his discretion in the event that the appeal process in relation to the protection visa application was unsuccessful. Not only was the ministerial discretion one ?at large', but an application to the Minister for the exercise of such a discretion was predicated upon a finding by the Department and on review by the Refugee Review Tribunal that the basic ground for a refugee visa had been refused. In these circumstances, the Tribunal is not satisfied that the assurance was given in respect of any application to the Minister.
155 The assurance which the Tribunal has found was given was one which was given, in the Tribunal's opinion, in relation to the second leg of the strategy which this Tribunal has found was initiated, namely the business visa application as detailed above. This is an inference capable of being drawn from Mr Bautista's interview and it is consistent with parts of Mr Bautista's oral evidence and the oral evidence of Mrs Bautista before this Tribunal, recounted above, where she said that she understood the "100% chance" to relate to a visa in the investment category.
156 The Tribunal is not satisfied that such an assurance in relation to such a visa application was false or misleading, let alone deliberately so. It is clear from the Migration Act 1958 and the Regulations that a relevant investment of 10% of the total value of a business, as there set out, held for a period of 18 months supports such a visa application being made and was a necessary pre-requisite at the time such a visa application came to be determined. While the Tribunal does not have before it any evidence to objectively determine that the value of the Bautistas' investment was relevantly 10% of the value of the business, that was certainly being asserted by Mr Osei to the Bautistas.
157 The evidence does not satisfy the Tribunal and it is noted that the investment was, in the above circumstances, withdrawn by the Bautistas before any such business visa application was made. The investment was made on 27 February 2001 and was required, by the Regulations, to be held for 18 months before the visa application could be made. In February 2002 the Bautistas were apprehensive, following consultation with another solicitor, that their application to the Minister for the exercise of his discretion would be unsuccessful and that they would then be at risk of being deported before the 18 month period had expired and they had an opportunity to make the business visa application. They were apprehensive that if they were so deported they would have, at the least, difficulty in recovering their investment and hence complained to MARA with a view to, inter alia, recovering that investment.
158 Ground 1 of this information is dismissed.
159 As to Ground 2, the Tribunal is satisfied that Mr Osei improperly induced Mr and Mrs Bautista to make the investment which they did. As found by this Tribunal, the suggestion and impetus for the investment was, contrary to his denial, made by Mr Osei himself. It was made by him on 16 February 2001 in circumstances where Mr and Mrs Bautista were in a position of particular vulnerability and in a position of readily being able to be influenced. Mr Osei was not only a migration agent, but he was also a barrister of which fact he had advised the Bautistas. As at 16 February they were his clients. They were, partially through Mr Osei's office's fault, facing the very real prospect of being deported from the country together with their children. Mr Osei suggested the investment in a company of which he was a director and in which he and his wife held the sole shares. Mr and Mrs Bautista did not have any independent legal or accounting advice and, as found by this Tribunal, Mr Osei did not, contrary to his assertions, advise them to get any. Mr and Mrs Bautista thought they were investing in Lloyds International College. They arranged for a bank cheque to this entity. In fact, the cheque was applied to the capital of Caprock International Pty Ltd. A class shares were issued in that company to Mrs Bautista. The Tribunal is satisfied that Mrs Bautista did not understand the legal significance of the investment as it was carried out and did not appreciate the potential financial implications. The Tribunal is not satisfied that she understood or that her husband understood the distinction between the college on the one hand and a proprietary company on the other. The Tribunal is satisfied that there was no explanation by Mr Osei of the distinction and no relevant explanation by him of the rights which Mrs Bautista was acquiring. Mr and Mrs Bautista trusted Mr Osei and he knew it.
160 The conduct by Mr Osei in the above respects may be condemned and worthy of severe censure but it does not, in the Tribunal's opinion, amount to professional misconduct either under s.127 of the Legal Profession Act 1987 or under the general law. The conduct was not accompanied by any established misrepresentation either as pleaded in relation to the Bautistas prospects of success with a visa application or as to the ?worth' of the investment. The conduct did not take place directly in the course of Mr Osei's professional practice. He was in this respect acting as a migration advisor. In the Tribunal's opinion, it could not be said that his conduct was sufficiently closely connected with his practice, albeit not occurring in the course of such practice, for it to be said to constitute professional misconduct (compare New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 at paragraph 56). Nor in the Tribunal's opinion could it be said that the conduct manifests the absence of qualities which are incompatible with or essential for the conduct of practice. In the relevant sense, in the Tribunal's opinion, while the conduct may be worthy of censure, it could not be said that it demonstrates that Mr Osei was not of good fame and character or a person not fit and proper to remain on the roll of legal practitioners. As explained by Kitto J in Ziems (1957) 97 CLR 279 at 298:
"But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar: and to draw the dividing line is by no means always an easy task."
161 In the present case, while the task is not easy the Tribunal is of the opinion that Mr Osei's conduct, particularly absent the abovementioned factors of misrepresentation as to visa prospects and absent evidence of significant undervalue of the investment, does not constitute unfitness for the Bar or relevant lack of good fame and character.
162 The second ground of this information is dismissed.
B. Information 042039
163 The Tribunal is satisfied that the alleged conduct took place. The distinction sought to be drawn by Mr Osei that he did not personally prepare the formal applications which were matters that were within the responsibility of Mrs Osei is rejected as any relevant or credible explanation for what he wrote to the Bar Association on 28 June 2002. The Statement of Claim which he drafted formed the very basis of the application. On the evidence he spent the better part of 16 February 2001 in conference with the Bautistas during which he compiled the file notes which formed the basis of the Statement of Claim which he drafted. While he may not have had available to him his file notes at the time he wrote to the Bar Council on 28 June 2001 the Tribunal does not accept that he did not recall the substance of that conference or what he did during and following it, or that he took the file notes and that they formed the basis of the Statement of Claim which he drafted. It was a conference which had occurred relevantly recently, it was a conference which took place in an atmosphere of some crisis, it was a conference which took place in circumstances where he had advised the client that the protection visa had no or little chance of success and it was a conference which occupied the better part of the day. Further, in the Tribunal's opinion, the events of February 2001 would have been relatively fresh in Mr Osei's mind, he having been involved in the complaint which Mr and Mrs Bautista made to MARA on 8 February 2002, which complaint Mr Osei responded to, in detail, by his letter of 15 March 2002 to the Professional Standards, Migration Agents Registration Authority. The Tribunal rejects the explanations made by and on behalf of Mr Osei and finds that his response to the Bar Council as alleged in Ground 1 of this information is established and that his response was false and misleading and constitutes professional misconduct. The Courts have, on numerous occasions, emphasised the importance of practitioners being frank and honest with, relevantly, the Bar Council and have emphasised the significance and seriousness with which the Courts view a breach by practitioners of this obligation. In the present case, Mr Osei has offered no plausible or credible explanation at all for what was patently a false and misleading statement to the Bar Council. The Tribunal finds that Mr Osei wilfully contravened the prohibition in s.152(5) of the Act which prohibits a legal practitioner from misleading or obstructing the Bar Council in the exercise of its relevant functions under the Act. Not only was the contravention wilful in the Tribunal's opinion and in the above circumstances, it amounted to professional misconduct.
164 The Tribunal finds that the second ground of this information is established. In the Tribunal's opinion the distinction which the barrister seeks to draw between a ministerial submission on the one hand and the statutory declarations which accompanied the submission is, in substance, no distinction at all. The statutory declarations form part of, and indeed on one view an integral part of, the submission itself. The barrister acknowledges that he was involved in settling part of the draft of the material that was the basis for the statutory declarations which accompanied the submission itself and, indeed, so much is clear from the handwriting notations on the drafts which are in evidence. His involvement is attested to by, in particular, Mrs Bautista. The submissions to the Minister were for his exercise of discretion in relation to a protection visa which was itself based on a falsehood. The correspondence from the barrister dated 28 June 2002 can readily be seen as an attempt by the practitioner to distance himself from any responsibility either in relation to the original application or the subsequent submissions to the Minister. The Tribunal is of the opinion that not only is this ground of the information established and the response of the barrister misleading and false, it was wilfully so. In the Tribunal's opinion the terms of the letter are clear and, contrary to the submissions of the barrister, unambiguous. The letter to the Minister was written on 21 December 2001 and the response to the Bar Council on 28 June 2002. In the interim, as referred to above, there had been the complaint to MARA and the mediation following on that complaint. In the Tribunal's opinion, the false and misleading response was a response wilfully so made. In all the circumstances, the Tribunal is of the opinion that the barrister's behaviour in this regard was not only wilful, but also constituted professional misconduct.
C. Information 042040
165 The Tribunal is of the opinion that the complaint made in this information is established. The Tribunal has already expressed its view on the conduct of Mr Osei at the hearing of the Refugee Review Tribunal. In the Tribunal's opinion, nothing has been put forward by Mr Osei which would in any way justify his conduct. It fell short of the standard of competence and diligence that a member of the public is entitled to expect from a reasonably competent legal practitioner.
166 The only significant question which arises in relation to this information, in the Tribunal's opinion, is whether or not the conduct of Mr Osei was conduct "occurring in connection with the practice of law" within the definition in s.127(2) of the Legal Profession Act 1987. Mr Osei asserts that he was acting as a migration agent and not as a barrister. In the Tribunal's opinion the words "in connection with" are words of wide import. Such words have consistently been so interpreted by the Courts. In the present case, clearly, the distinction is between conduct occurring in the course of professional practice and acts which may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. At the other end of the scale is conduct which occurs outside the course of practice or "otherwise than in connection with the practice of law" as provided for by s.127(1)(b) of the definition of professional misconduct.
167 In the present case, Mr Osei was a barrister. He was known by the Bautistas to be one and indeed that was one of the reasons why they originally engaged him. The terms of the engagement set out above have many of the hallmarks of the engagement of a legal practitioner. Indeed, those terms of engagement expressly envisage the retention of a legal consultant. Mr Osei represented Mr Bautista at the hearing for all purposes analogous to that of a legal practitioner. After the hearing the Bautistas received an invoice in terms consistent with barristerial practice.
168 Unsatisfactory professional conduct will usually occur in the course of professional practice if for no other reason than that the definition requires conduct which falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner. It may well be that the incidence of conduct occurring not in the course of professional practice which meet this requirement of the definition of unsatisfactory professional conduct is, by reason of this requirement, limited. In the present case, however, the Tribunal is of the opinion that the conduct which did occur occurred in connection with the practice of law. Indeed, were it not for the name under which Mr Osei appeared at the hearing, advisor, there could be little doubt that it occurred in the course of professional practice. The connection between the practice of law and the conduct in the present case is so close that the Tribunal is firmly of the opinion that it falls within the definition in s.127(2).
169 There can be no doubt for reasons already expressed that Mr Osei's conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.
170 The Tribunal finds that this ground of complaint is established.
119 The Tribunal is mindful of the requirements that it be satisfied according to the test laid down in Briginshaw v Briginshaw (1938) 60 CLR 336. The Tribunal is also conscious that in the present case its task has some features which require some special vigilance. In particular, the Tribunal refers to the fact that Mr Osei did not give evidence and has made no submissions, the fact that Mr Bautista had knowingly put forward a false claim as the basis of the protection visa application and had subsequently given false, sworn evidence to support it to the Refugee Review Tribunal and subsequently still had sworn a false declaration in support of an application to the Minister for review. In addition, Mrs Bautista was, this Tribunal readily infers, fully aware of the falsity of the basis of the protection visa application and fully aware of her husband's conduct in support of the application. She also swore a statutory declaration in support of the Minister's review. Notwithstanding the Tribunal is satisfied to the requisite degree in relation to its findings, as set out in this decision.
February 2001
120 While not of paramount importance, the Tribunal is not satisfied that the omission to instigate a review of the Department's refusal of the sponsored visa application was caused solely by an oversight/error in the offices of Caprock/Osei. It accepts the evidence of Mr and Mr Bautista that when it was discovered, on 16 February, that the 15 February deadline had passed there was, to some degree at least, a sense of panic in those offices. A solution had to be found. The terms of retainer document signed by Mrs Bautista on 8 February 2001 contains her instructions to Caprock to prepare and lodge an application for a review of decision to the Migration Review Tribunal. The Caprock file notes of discussion with Mrs Bautista on 8 February 2001 discussed the Department's decision and the options to either lodge another application or to apply for a review by 15 February 2001. The Tribunal is satisfied that Mrs Bautista gave instructions for the latter to occur.
121 Mr Osei has stated that the time elapsed because of the lack of instructions which had to include instructions from the sponsor, Mr Tagle, whom Caprock had been advised as at 8 February 2001 was unwilling to continue with his sponsorship. Mr Osei, in this respect, relies upon a file note of a discussion on 6 February 2001 when Mrs Bautista apparently advised Caprock of this matter, which matter was reiterated in Caprock's letter to Mrs Bautista of 9 February. Caprock prepared an application for review but says it was never lodged because of lack of instructions from the nominating sponsor.
122 Mrs Bautista says that she had with her, when she went to Mr Osei's office on 16 February, the review application forms and the required letter from the sponsoring company. Mrs Bautista's evidence is that she went to the office and spoke to the secretary and told her that she had the money and the applications and it was then realised that the date had lapsed.
123 It seems clear that the Bautistas had been told more than once that the review date expired on 15 February 2001. It seems clear that, at least initially, the sponsor was believed to be reluctant to continue with his sponsorship of the Bautistas and that this was the case as at 8 February 2001. It also appears clear that the Bautistas gave instructions to Mr Osei to pursue the review. It seems that it was left to the Bautistas to obtain the necessary signatures from Mr Tagle. It appears that there was no follow up from Caprock after the letter of 9 February 2001. The result was that it was on 16 February that the signed review forms were returned by the Bautistas to Mr Osei in conference and it was in these circumstances that the date was allowed to expire and it was in these circumstances that the "panic" which Mr and Mrs Bautista speak of occurred.
124 Not only had the review date been missed, but as noted in the conference notes of 8 February 2001, the bridging visa which the Bautistas had was due to expire on 22 February 2001.
125 In this situation of crisis the Tribunal accepts that Mr Osei said to the Bautistas words to the effect "Instead of panicking, we should think of solutions to the problem".
126 The Tribunal accepts the evidence of Mr and Mrs Bautista that it was in this context that it was Mr Osei who thought of the solution which in part involved making an application for a protection visa. That was the only application which could then theoretically be made and which could be made before the bridging visa expired. If made, it would permit the Bautistas to stay in Australia while that application was being processed. The Tribunal accepts the Bautista's evidence that the protection visa application was Mr Osei's idea and it rejects his statements in the correspondence to the effect that it was the Bautistas who thought of it. The Tribunal accepts the evidence that the Bautistas did not know what a protection visa was, in the sense of how it could possibly apply to them.
127 The Tribunal accepts the clear evidence that on 16 February the Bautistas spent a very considerable period of time in conference with Mr Osei and, as reflected in his file notes for that day, it was he who drafted the draft statement of claim for the protection visa application. It was this application which was based upon a false premise that there was any relevant relationship between the Bautista family on the one hand and President Estrada's family on the other.
128 The Tribunal accepts, contrary to the evidence of Mr and Mrs Bautista, that they were advised, either on the 16th and/or certainly the 19th February that the protection visa application had no likelihood of success unless corroborative evidence of this relationship could be supplied by the Bautistas in the form of birth certificates and the like. The contemporaneous documentary evidence of file notes, correspondence and signed acknowledgment clearly so establishes. It rejects the evidence to the contrary from Mr and Mrs Bautista.
129 Contrary to the assertions of Mr Osei, the Tribunal finds that it was on 19 February 2001, following the initial conference on 16 February 2001, that the Bautistas returned with certain Internet articles relating to harassment of the Estrada family, which had been obtained by the Bautistas' daughter in the period between 16 and 19 February. In this respect, the Tribunal rejects the suggestion by Mr Osei that the articles were brought in on 16 February and it rejects that a one-page file note, which is in evidence, of a conference between 11 am and 12.30 pm is in fact a file note of a conference on 16 February 2001. The date has been changed. The Tribunal finds that that conference took place on 19 February as deposed to by Mrs Bautista. The conference on 16 February took most of the day. When the Bautistas came for the conference on 16 February, no-one contemplated that a protection visa application would be made and there was, as at that date, no necessity or warrant for bringing in articles from the Internet concerning Mr Estrada. Those documents were prompted by what occurred at Mr Osei's office on 16 February. The Tribunal finds the articles were brought in and that part of the conference was held on 19 February, not 16 February as the file notes purport to reflect.
130 The Tribunal also finds that on 16 February 2001 there was discussion between the Bautistas and Mr Osei concerning the investment by the Bautistas of a sum of money in Lloyds International School. So much is acknowledged by all participants.
131 Contrary to the statements by Mr Osei, the Tribunal finds that the question of such investment was suggested by Mr Osei and suggested by him on 16 February 2001. It was not a suggestion which emanated from the Bautistas. In this respect the Tribunal accepts their evidence. It was not some form of investment which they had been considering and discussing since September 2000. They had not, as Mr Osei suggests in the correspondence, had prior accounting advice in relation to such an investment. They deny it. There was no call for such an investment being considered by them prior to 16 February. There is no evidence to suggest they did consider it prior to 16 February, and there is certainly no evidence of any accountant giving them any advice in relation to such an investment, nor indeed, any evidence that any of the books of account or records of either the school or Caprock International Pty Limited being made available to them for any accountant's advice. In this respect, the Tribunal rejects the propositions put forward by Mr Osei.
132 The statutory declaration sworn by Mrs Bautista in support of the application for Ministerial review, on a proper reading, is not inconsistent with her evidence as to how this investment came to be considered, or when. Her version there set out perhaps omits some features relevant for present purposes, but is certainly not, in the Tribunal's opinion, inconsistent with what she asserts took place on 16 February.
133 The suggested investment by Mr Osei, as recounted by Mr and Mrs Bautista, had a number of features. One was that the investment had to be of a 10% interest in a business. The second was that the investment had to be in place for 18 months. A third aspect of the conversation was that Mr Osei kept referring to a book on immigration law.
134 The Tribunal rejects the statements by Mr Osei to the effect that the investment in the school had nothing to do with a visa application. Such a suggestion is, in the Tribunal's opinion, patently false. Not only is such a suggestion inconsistent with the evidence of Mr and Mrs Bautista as to the conversation, it is inconsistent with the conversation taking place in the situation of "panic" on 16 February 2001. Further, as has now become apparent, what Mr Osei was speaking about was an application for a Business Investment Visa Class 845.213, which requires that an applicant have an "ownership interest" in one or more established main businesses in Australia for a period of 18 months immediately preceding the making of the visa application. So much is specified in Schedule 2 of the Migration Regulations 1994 which were in force at the relevant time of this discussion. This is the visa class referred to by Caprock in its letter to the Minister of 21 December 2001. The Tribunal has gone to the Regulations, and in particular, Regulation 1.11.1C. There is provision that a business is a main business in relation to an application for a visa if the value of the applicant's ownership interest is or was at least 10% of the total value of the business. According to Mr and Mrs Bautista, Mr Osei was telling them that the business of the school was worth $1.5 million and accordingly, 10% would equate to $150,000.
135 The recollection of the Bautistas of the conversation correlates with what turns out to be the relevant Migration Act and Regulation provisions and the Tribunal concludes that it was these provisions which Mr Osei was referring to and which he showed them in the "migration book" referred to in their evidence. The suggestion by Mr Osei to the contrary is rejected.
136 In the context of this potential investment, the Tribunal is satisfied that Mr Osei gave to Mr and Mrs Bautista an assurance in relation to the outcome of a visa application in the event that they invested in the College. Initially, the form of such assurance was put by Mr and Mrs Bautista as "a very big chance". It was so described in the complaint to the Office of the Legal Services Commissioner on 27 February 2002. The complaint to MARA described the assurance in the same terms. Mr Bautista's interview spoke in terms of "a great big chance". Mrs Bautista's interview told of a "very big chance". Mr Bautista, in his evidence, however, said that he was told "It's 100 per cent success". He reiterated that the phrase "100 per cent" was used. Mrs Bautista, in her evidence used the same phrase of "100 per cent chance".
137 Under the Migration Act 1958 the provisions which are referred to above have to be satisfied by an applicant at the time the application for a visa is made. At the time that a decision is to be made on the visa application, certain additional criteria are required to be satisfied by the applicant. These additional criteria relate to the Applicant's score on the Business Skills Points Test, public interest criteria and the like.
138 The Tribunal is satisfied that an assurance was given by Mr Osei in relation to the prospects of success of a visa application in the event that Mr and Mrs Bautista invested in his company. Mr Osei's assertions to the contrary are rejected. The Tribunal is not satisfied that he said to Mr and Mrs Bautista words to the effect that they had a 100 per cent chance, but it is satisfied that he said to them words to the effect that they would have "a very big chance". In so concluding, the Tribunal takes into account the discrepancy between the Bautistas' version of the assurance as first given and their evidence and it takes into account the objective fact that other criteria over and above the fact of the investment had to be satisfied when a decision was being made in relation to the application. The Tribunal also takes into account the fact that it seems clear that Mr Osei had in front of him the relevant migration criteria, which he was showing to Mr and Mrs Bautista, and such criteria would have readily revealed the additional tests which needed to be satisfied at the time the application was being decided.
139 The Bautistas invested $150,000. That represented 10% of what Mr Osei was claiming to be the value of his business. It seems clear that before such investment took place, Mr and Mrs Bautista had no independent accounting or legal advice. They were not provided with any books or records which would, in any sense, justify the investment. They were not advised by Mr Osei to obtain any such independent legal or accounting advice. In so concluding the Tribunal accepts the evidence of Mr and Mrs Bautista and rejects the assertions of Mr Osei to the contrary. It also rejects, for the reasons stated elsewhere that he had the impression they already had any relevant accounting advice.
140 The discussions between the Bautistas and Mr Osei were in terms of them investing in his business, which the Bautistas understood to be Lloyds International School. Such a proposition is consistent with the statements by Mr Osei about the Bautistas wanting to invest in the school. It is consistent with what the Bautistas thought they were investing in.
141 The school was a business carried on by Caprock International Pty Limited. The investment by the Bautistas was not in the school itself, but by Mrs Bautista, acquiring shares in Caprock International Pty Limited. It is not known by this Tribunal what the assets and liabilities of that company are, or were at the relevant time. It is known that the company apparently also carried on business as Caprock Migration Consultants, but there is no evidence before this Tribunal as to the assets and liabilities of the company and, accordingly, no judgment can be made as to the worth of the investment which Mrs Bautista made. Likewise, the Bautistas did not make any such assessment before making the investment and it seems clear that they accepted the assurances which were given to them by Mr Osei as to the "worth" of the "business".
142 The Tribunal also finds that the form of the investment was not one which the Bautistas fully or relevantly understood. Not only did they have no independent legal or accounting advice in relation to the structure of the investment, it seems clear that Mr Osei did not relevantly explain it to them and the Tribunal accepts their evidence that, in substance, they did not understand it.
143 What in fact occurred, according to the records in evidence, was that prior to this investment, there were two issued ordinary shares of $1 each in the company. On 27 February 2001 Mr and Mrs Osei passed a resolution altering the Articles of Association of the company so that the A class shares had one vote for every 1,500 shares and, on a winding up, were entitled to, as structured, 10% of the surplus assets and in the meantime were entitled, as structured, to 10% of all dividends declared. Mrs Bautista was allotted 150,000 A class shares. In addition to the two issued ordinary shares, a further 449 ordinary shares were allotted to both Mr and Mrs Osei. The end result was that, according to these records, for the $150,000 investment, Mrs Bautista acquired a 10% voting right, a right to 10% of the declared dividends and a right to 10% of the surplus assets on the winding up (assuming the net assets of the company were worth $1.5 million as Mr Osei seems to have been asserting). The Tribunal is satisfied she did not understand this structure, but that she trusted Mr Osei that the investment that she made was going to satisfy the requirements of the Migration Act about which he had spoken. The fact the investment was structured to be 10% and that this was a requirement for a class 845.213 visa is further reason to reject Mr Osei's assertion that the investment in the school had nothing to do with a visa application.
144 The Tribunal is satisfied that the investment proposed by Mr Osei for the Bautistas in the "school" was part of a two-pronged strategy devised by him on 16 February 2001, when faced with a situation where the previous visa application refusal could not be reviewed because of the lapse of time and where there was a need for urgent action to protect the interests of the Bautistas in relation to the looming expiry of their bridging visa on 22 February 2001. The strategy was to immediately lodge a protection visa application, which Mr Osei knew was doomed to failure unless the Bautistas could come up with some corroborative evidence of the relationship being asserted in the application. The immediate lodgment of the protection visa application would protect the interests of the Bautistas in the short term, while such an application and any review process was in train. The longer term strategy involved an investment for 18 months in a relevant business, such an interest being of a 10% nature. That is what Mr Osei advised and that is how the investment was structured. His suggestions to the contrary are plainly false and are rejected.
Refugee Review Tribunal Hearing
145 The relevant portion of the transcript of this hearing is set out above. Nothing, in the Tribunal's opinion, can be plainer than that such conduct by Mr Osei had the inevitable consequence that he would be ejected from the Tribunal's hearing. He was warned of such on more than one occasion. He was told that he could make relevant submissions at the conclusion of the evidence. He was requested, on more than one occasion, to desist from interrupting. Mr Osei's explanation, as put forward to the Bar Council on 28 June 2002, was that he attempted to restrict and to channel the questions asked by the Tribunal Member and sought to make submissions "all of which were refused". Factually, that explanation is not accurate. The Tribunal has read the further explanations put forward on behalf of Mr Osei; for example, as contained in the letter of Stewart Cuddy & Mockler of 8 July 2003. There it is asserted that Mr Osei was seeking to advance the Bautistas' case and that he was not given the opportunity to do so in relation to a matter of critical importance to the Bautistas' application. It is asserted on behalf of Mr Osei that should that have been left to be dealt with during addresses, the interests of the Bautistas would have been neither advanced nor protected.
146 The Tribunal is firmly of the opinion that the conduct by Mr Osei in this respect is without justification. It is one thing to forcefully seek to advance the client's interests; it is another to behave in such a manner which will inevitably lead to one's expulsion from the hearing room, thereby leaving the client without any representation at all. Further, the repeated manner in which Mr Osei sought to speak, notwithstanding warnings and advice from the Tribunal Member to the contrary, demonstrates a totally inappropriate and improper regard by him for the Tribunal Member and the procedure which he was entitled to, and was, adopting.
147 In addition, there is absolutely no justification at all for Mr Osei referring to the Tribunal as a "kangaroo tribunal".
148 The Tribunal finds, in this regard, Mr Osei's behaviour to be disgraceful.
Ministerial Review
149 Mr Osei, in his letter of 28 June 2002 to the New South Wales Bar Association, was responding to what were then five complaints. One of the complaints was that he had failed to properly or adequately advise Mr and Mrs Bautista in relation to rights and options for successful migration applications. In response to that complaint, Mr Osei said: "I did not personally prepare any of the applications or submissions to the Minister".
150 Mr Osei now concedes that he authored the file note of 16 February 2001 and the draft Statement of Claim for the protection visa. He also accepts that he settled the statutory declarations of the Bautistas that accompanied the submission to the Minister. So much is clear, when one considers the original typed draft statutory declaration of Mrs Bautista and Mr Osei's hand-written alterations, which were then incorporated into the final document sworn by her. Such process is verified by the evidence of Mrs Bautista, in particular.
151 When the Bar Association asked Mr Osei for an explanation, he sought to restrict his phrase "submissions" to the contents of the letter of December 2001. It was put forward by solicitors for Mr Osei that the reference to "did not personally prepare any of the application or the submissions to the Minister" was made in the context of a general response to an assertion of having failed to properly and adequately advise the Bautistas, and that he was trying to point out that he had not personally prepared the formal applications, these being matters within the responsibility of Mrs Osei.
152 It is said, on Mr Osei's behalf, that he did not have available the file notes of his conference with the Bautistas on 16 February, or the draft statement of claim as they had, apparently, been produced to MARA. It is said, on his behalf, that "personally prepare" is not the same as "taking part in the preparation of".
153 The Tribunal will deal with these submissions below. For present purposes, it is plain that Mr Osei personally was involved in the preparation of the form of the statutory declarations which accompanied the submission to the Minister, dated 21 December 2001. It was part of the submission. To claim otherwise is sophistry.
A. Information 042010
154 This Tribunal is not satisfied that Mr Osei "knowingly and deliberately misled" Mr and Mrs Bautista as alleged. For reasons already given, it is satisfied that he gave them an assurance that the investment would give them, in effect, a "very big chance" of success. The Tribunal finds that when he gave such an assurance Mr Osei was not referring to the protection visa application. Mr Osei thought that such an application had virtually no chance of success at all (unless Mr and Mrs Bautista provided some co-operative evidence). The fact that he so thought is amply demonstrated not only by his contemporaneous file notes but by his letter of advice to Mr Bautista dated 16 February 2001 and, further, by the acknowledgment signed by Mr Bautista on 19 February 2001. Contrary to some of the evidence and assertions, in complaints, by Mr and Mrs Bautista the assurance was not being given in relation to any application to the Minister for the exercise of his discretion in the event that the appeal process in relation to the protection visa application was unsuccessful. Not only was the ministerial discretion one ?at large', but an application to the Minister for the exercise of such a discretion was predicated upon a finding by the Department and on review by the Refugee Review Tribunal that the basic ground for a refugee visa had been refused. In these circumstances, the Tribunal is not satisfied that the assurance was given in respect of any application to the Minister.
155 The assurance which the Tribunal has found was given was one which was given, in the Tribunal's opinion, in relation to the second leg of the strategy which this Tribunal has found was initiated, namely the business visa application as detailed above. This is an inference capable of being drawn from Mr Bautista's interview and it is consistent with parts of Mr Bautista's oral evidence and the oral evidence of Mrs Bautista before this Tribunal, recounted above, where she said that she understood the "100% chance" to relate to a visa in the investment category.
156 The Tribunal is not satisfied that such an assurance in relation to such a visa application was false or misleading, let alone deliberately so. It is clear from the Migration Act 1958 and the Regulations that a relevant investment of 10% of the total value of a business, as there set out, held for a period of 18 months supports such a visa application being made and was a necessary pre-requisite at the time such a visa application came to be determined. While the Tribunal does not have before it any evidence to objectively determine that the value of the Bautistas' investment was relevantly 10% of the value of the business, that was certainly being asserted by Mr Osei to the Bautistas.
157 The evidence does not satisfy the Tribunal and it is noted that the investment was, in the above circumstances, withdrawn by the Bautistas before any such business visa application was made. The investment was made on 27 February 2001 and was required, by the Regulations, to be held for 18 months before the visa application could be made. In February 2002 the Bautistas were apprehensive, following consultation with another solicitor, that their application to the Minister for the exercise of his discretion would be unsuccessful and that they would then be at risk of being deported before the 18 month period had expired and they had an opportunity to make the business visa application. They were apprehensive that if they were so deported they would have, at the least, difficulty in recovering their investment and hence complained to MARA with a view to, inter alia, recovering that investment.
158 Ground 1 of this information is dismissed.
159 As to Ground 2, the Tribunal is satisfied that Mr Osei improperly induced Mr and Mrs Bautista to make the investment which they did. As found by this Tribunal, the suggestion and impetus for the investment was, contrary to his denial, made by Mr Osei himself. It was made by him on 16 February 2001 in circumstances where Mr and Mrs Bautista were in a position of particular vulnerability and in a position of readily being able to be influenced. Mr Osei was not only a migration agent, but he was also a barrister of which fact he had advised the Bautistas. As at 16 February they were his clients. They were, partially through Mr Osei's office's fault, facing the very real prospect of being deported from the country together with their children. Mr Osei suggested the investment in a company of which he was a director and in which he and his wife held the sole shares. Mr and Mrs Bautista did not have any independent legal or accounting advice and, as found by this Tribunal, Mr Osei did not, contrary to his assertions, advise them to get any. Mr and Mrs Bautista thought they were investing in Lloyds International College. They arranged for a bank cheque to this entity. In fact, the cheque was applied to the capital of Caprock International Pty Ltd. A class shares were issued in that company to Mrs Bautista. The Tribunal is satisfied that Mrs Bautista did not understand the legal significance of the investment as it was carried out and did not appreciate the potential financial implications. The Tribunal is not satisfied that she understood or that her husband understood the distinction between the college on the one hand and a proprietary company on the other. The Tribunal is satisfied that there was no explanation by Mr Osei of the distinction and no relevant explanation by him of the rights which Mrs Bautista was acquiring. Mr and Mrs Bautista trusted Mr Osei and he knew it.
160 The conduct by Mr Osei in the above respects may be condemned and worthy of severe censure but it does not, in the Tribunal's opinion, amount to professional misconduct either under s.127 of the Legal Profession Act 1987 or under the general law. The conduct was not accompanied by any established misrepresentation either as pleaded in relation to the Bautistas prospects of success with a visa application or as to the ?worth' of the investment. The conduct did not take place directly in the course of Mr Osei's professional practice. He was in this respect acting as a migration advisor. In the Tribunal's opinion, it could not be said that his conduct was sufficiently closely connected with his practice, albeit not occurring in the course of such practice, for it to be said to constitute professional misconduct (compare New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 at paragraph 56). Nor in the Tribunal's opinion could it be said that the conduct manifests the absence of qualities which are incompatible with or essential for the conduct of practice. In the relevant sense, in the Tribunal's opinion, while the conduct may be worthy of censure, it could not be said that it demonstrates that Mr Osei was not of good fame and character or a person not fit and proper to remain on the roll of legal practitioners. As explained by Kitto J in Ziems (1957) 97 CLR 279 at 298:
"But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar: and to draw the dividing line is by no means always an easy task."
161 In the present case, while the task is not easy the Tribunal is of the opinion that Mr Osei's conduct, particularly absent the abovementioned factors of misrepresentation as to visa prospects and absent evidence of significant undervalue of the investment, does not constitute unfitness for the Bar or relevant lack of good fame and character.
162 The second ground of this information is dismissed.
B. Information 042039
163 The Tribunal is satisfied that the alleged conduct took place. The distinction sought to be drawn by Mr Osei that he did not personally prepare the formal applications which were matters that were within the responsibility of Mrs Osei is rejected as any relevant or credible explanation for what he wrote to the Bar Association on 28 June 2002. The Statement of Claim which he drafted formed the very basis of the application. On the evidence he spent the better part of 16 February 2001 in conference with the Bautistas during which he compiled the file notes which formed the basis of the Statement of Claim which he drafted. While he may not have had available to him his file notes at the time he wrote to the Bar Council on 28 June 2001 the Tribunal does not accept that he did not recall the substance of that conference or what he did during and following it, or that he took the file notes and that they formed the basis of the Statement of Claim which he drafted. It was a conference which had occurred relevantly recently, it was a conference which took place in an atmosphere of some crisis, it was a conference which took place in circumstances where he had advised the client that the protection visa had no or little chance of success and it was a conference which occupied the better part of the day. Further, in the Tribunal's opinion, the events of February 2001 would have been relatively fresh in Mr Osei's mind, he having been involved in the complaint which Mr and Mrs Bautista made to MARA on 8 February 2002, which complaint Mr Osei responded to, in detail, by his letter of 15 March 2002 to the Professional Standards, Migration Agents Registration Authority. The Tribunal rejects the explanations made by and on behalf of Mr Osei and finds that his response to the Bar Council as alleged in Ground 1 of this information is established and that his response was false and misleading and constitutes professional misconduct. The Courts have, on numerous occasions, emphasised the importance of practitioners being frank and honest with, relevantly, the Bar Council and have emphasised the significance and seriousness with which the Courts view a breach by practitioners of this obligation. In the present case, Mr Osei has offered no plausible or credible explanation at all for what was patently a false and misleading statement to the Bar Council. The Tribunal finds that Mr Osei wilfully contravened the prohibition in s.152(5) of the Act which prohibits a legal practitioner from misleading or obstructing the Bar Council in the exercise of its relevant functions under the Act. Not only was the contravention wilful in the Tribunal's opinion and in the above circumstances, it amounted to professional misconduct.
164 The Tribunal finds that the second ground of this information is established. In the Tribunal's opinion the distinction which the barrister seeks to draw between a ministerial submission on the one hand and the statutory declarations which accompanied the submission is, in substance, no distinction at all. The statutory declarations form part of, and indeed on one view an integral part of, the submission itself. The barrister acknowledges that he was involved in settling part of the draft of the material that was the basis for the statutory declarations which accompanied the submission itself and, indeed, so much is clear from the handwriting notations on the drafts which are in evidence. His involvement is attested to by, in particular, Mrs Bautista. The submissions to the Minister were for his exercise of discretion in relation to a protection visa which was itself based on a falsehood. The correspondence from the barrister dated 28 June 2002 can readily be seen as an attempt by the practitioner to distance himself from any responsibility either in relation to the original application or the subsequent submissions to the Minister. The Tribunal is of the opinion that not only is this ground of the information established and the response of the barrister misleading and false, it was wilfully so. In the Tribunal's opinion the terms of the letter are clear and, contrary to the submissions of the barrister, unambiguous. The letter to the Minister was written on 21 December 2001 and the response to the Bar Council on 28 June 2002. In the interim, as referred to above, there had been the complaint to MARA and the mediation following on that complaint. In the Tribunal's opinion, the false and misleading response was a response wilfully so made. In all the circumstances, the Tribunal is of the opinion that the barrister's behaviour in this regard was not only wilful, but also constituted professional misconduct.
C. Information 042040
165 The Tribunal is of the opinion that the complaint made in this information is established. The Tribunal has already expressed its view on the conduct of Mr Osei at the hearing of the Refugee Review Tribunal. In the Tribunal's opinion, nothing has been put forward by Mr Osei which would in any way justify his conduct. It fell short of the standard of competence and diligence that a member of the public is entitled to expect from a reasonably competent legal practitioner.
166 The only significant question which arises in relation to this information, in the Tribunal's opinion, is whether or not the conduct of Mr Osei was conduct "occurring in connection with the practice of law" within the definition in s.127(2) of the Legal Profession Act 1987. Mr Osei asserts that he was acting as a migration agent and not as a barrister. In the Tribunal's opinion the words "in connection with" are words of wide import. Such words have consistently been so interpreted by the Courts. In the present case, clearly, the distinction is between conduct occurring in the course of professional practice and acts which may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. At the other end of the scale is conduct which occurs outside the course of practice or "otherwise than in connection with the practice of law" as provided for by s.127(1)(b) of the definition of professional misconduct.
167 In the present case, Mr Osei was a barrister. He was known by the Bautistas to be one and indeed that was one of the reasons why they originally engaged him. The terms of the engagement set out above have many of the hallmarks of the engagement of a legal practitioner. Indeed, those terms of engagement expressly envisage the retention of a legal consultant. Mr Osei represented Mr Bautista at the hearing for all purposes analogous to that of a legal practitioner. After the hearing the Bautistas received an invoice in terms consistent with barristerial practice.
168 Unsatisfactory professional conduct will usually occur in the course of professional practice if for no other reason than that the definition requires conduct which falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner. It may well be that the incidence of conduct occurring not in the course of professional practice which meet this requirement of the definition of unsatisfactory professional conduct is, by reason of this requirement, limited. In the present case, however, the Tribunal is of the opinion that the conduct which did occur occurred in connection with the practice of law. Indeed, were it not for the name under which Mr Osei appeared at the hearing, advisor, there could be little doubt that it occurred in the course of professional practice. The connection between the practice of law and the conduct in the present case is so close that the Tribunal is firmly of the opinion that it falls within the definition in s.127(2).
169 There can be no doubt for reasons already expressed that Mr Osei's conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.
170 The Tribunal finds that this ground of complaint is established.
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