Abassi and Minister for Immigration and Border Protection
[2025] ARTA 560
•14 May 2025
Abassi and Minister for Immigration and Border Protection [2025] ARTA 560 (14 May 2025)
Applicant/s: Hussam Suleiman Saed Abassi
Respondent: Minister for Immigration and Border Protection
Tribunal Number: 2024/0697
Tribunal: General Member J Ross
Place:Sydney
Date:14 May 2025
Decision:The Tribunal affirms the decision under review.
.....................[SGD]...................................................
General Member J Ross
Catchwords
MIGRATION AGENTS – registration – cancellation of registration as a migration agent – breaches of prescribed Code of Conduct – whether the applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance – whether the Tribunal should exercise its discretion to cancel the Applicant’s registration – what is the appropriate sanction – decision under review affirmed
Legislation
Migration Act 1958 (Cth) ss 289A–294, s 303, s 316, s 314(2)
Migration (Migration Agents Code of Conduct) Regulations 2021 (Cth) s 13, s 29
IMMI 18/003: Specified courses and exams for registration as a migration agent Instrument 2018
Cases
Australian Broadcasting Authority v Bond (1990) 170 CLR 321
Briginshaw v Briginshaw (1938) 60 CLR 362
Drake v Minister of Immigration and Ethnic Affairs(1979) 2 ALD 60
Kearney and Migration Agents Registration Authority [2024] AATA 1989
Re Peng v Department of Immigration and Multicultural Affairs and AAT [1998] AATA 12
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Statement of Reasons
INTRODUCTION
The Applicant in this matter, Mr Hussam Suleiman Saed Abassi (Mr Abassi), applied to the Tribunal for review of a decision by the Respondent, the Migration Agents Registration Authority (the Authority), to cancel his registration under s 303(1)(a) of the Migration Act 1958 (the Act) by removing his name from the register (reviewable decision).
This was because the Respondent found that Mr Abassi had breached ss 13 and 29 of the Migration (Migration Agents Code of Conduct) Regulations 2021 (Code of Conduct) and also found that Mr Abassi was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance.
I am satisfied that Mr Abassi is not a person of integrity or a fit and proper person to give migration assistance. I am also satisfied that Mr Abassi has breached the Code of Conduct.
For the reasons set out below, I have decided that the decision of the Authority should be affirmed.
THE ISSUE FOR DETERMINATION
The issues for determination are:
(a)is Mr Abassi a person of integrity or a fit and proper person to give immigration assistance
(b)did Mr Abassi breach s 13 and/or s 29 of the Code of Conduct, and
(c)what is the appropriate disciplinary action to be taken under s 303 of the Act?
THE FACTS AND LEGISLATION
The facts of this matter are somewhat convoluted and are not necessarily best understood by setting them out in chronological order. Due to the interplay between various events, a narrative is provided below to the making of:
(a)the decision to register Mr Abassi as a migration agent, and
(b)the decision to cancel that registration.
Paragraphs [8] – [23] below consist of facts that are not in dispute between the parties.
Decision to register Mr Abassi as a migration agent
Sections 289A–294 of the Act contain a range of requirements which if not met prevent an applicant from being registered as a migration agent. These requirements relevantly include:
(a)not meeting the academic and vocational requirements in s 289A of the Act
(b)not being a fit and proper person to give immigration assistance or not being a person of integrity (s 290 of the Act).
The Migration (IMMI 18/003: Specified courses and exams for registration as a migration agent) Instrument 2018 made under regulation 5(4) of the Migration Agents Regulations 1998 specifies course and examination requirements for the registration as a migration agent.
The Authority is responsible for administering the registration of migration agents. Its functions set out in s 316 of the Act relevantly include taking appropriate disciplinary action against registered migration agents.
On 18 December 2022, Mr Abassi lodged his application for registration as a migration agent with the Authority. To support his application, Mr Abassi provided the following:
(a)In relation to requirements, Mr Abassi provided test results of a Test of English as a Foreign Language internet-based Test (TOEFL iBT) taken on 6 December 2022 with the Educational Testing Service (ETS) which recorded an overall score of 100.
(b)In relation to qualifications, Mr Abassi stated that he had a Graduate Diploma in Australian Migration Law and Practice from Western Sydney University awarded on 17 September 2019.[1] He also stated he successfully completed the Capstone Assessment with Legal Training Australia Pty Ltd which was awarded on 31 October 2022.[2]
(c)In relation to disclosures, Mr Abassi made one disclosure which was that in January 2020 he had been the subject of an investigation by an educational institution on the grounds of academic misconduct.[3] That academic institution was the College of Law.
[1] Exhibit 2 ST4 at page 112.
[2] Ibid at page 114.
[3] Ibid at page 113.
On 18 January 2023, Mr Abassi was advised that his registration as a migration agent had been approved under s 289 of the Act and was effective from that date. He was also advised to visit the Authority’s website for important information about his new role and responsibilities such as the Code of Conduct and the Ethnical Framework and Occupational Competency Standards.
Decision to cancel the Applicant’s registration as a migration agent
Section 303(1) of the Act provides for the Authority to cancel the registration of a registered migration agent if it becomes satisfied that:
(d) the agent's application for registration was known by the agent to be false or misleading in a material particular; or
(e) the agent becomes bankrupt; or
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g) an individual related by employment to the agent is not a person of integrity; or
(h) the agent has not complied with the Code of Conduct prescribed under section 314.
Section 314(2) of the Act provides that a migration registered agent must conduct themselves in accordance with the prescribed Code of Conduct. It relevantly provides in s 13(1) that a migration agent must act professionally, competently, diligently, ethically, honestly and with integrity. It also imposes in s 29 a duty on migration agents to notify the Authority of changes in circumstances relevant to the agent’s continued registration.
On 9 March 2023, ETS notified Mr Abassi by email that it had cancelled his test score from the 6 December 2022 TOEFL iBT test.[4] He was informed that this was because the score validation process identified that unauthorised recording devices/software were open during the test session in violation of ETS’ policy.[5] He was also informed that if the scores from the test were reported to any institution they will be notified of the cancellation. Mr Abassi did not notify the Authority of the cancellation.[6]
[4] Exhibit 1 AT6 at page 34.
[5] Ibid.
[6] Ibid.
On 22 March 2023, ETS notified the Authority that they had cancelled the Applicant’s 6 December 2022 TOEFL iBT test scores.[7]
[7] Exhibit 1 AT7 at page 34.
On 19 September 2023, the Authority issued a notice under s 309 of the Act advising Mr Abassi that it was considering cautioning him or suspending or cancelling his registration and inviting him to make a submission by 17 October 2023.[8]
[8] Exhibit 1 AT8 at pages 36-44.
The reasons provided in the notice for this action were:
(a)cheating on the 2020 College of Law exam
(b)cheating on the English test, and
(c)failing to notify the Authority that his English test score had been cancelled.[9]
[9] Ibid.
On 13 November 2023, Mr Abassi submitted a response to these reasons about which I go into further detail below.
On 19 January 2024, the Authority decided to cancel the Applicant’s registration as a migration agent being satisfied that the Applicant:
(d)breached s 13(1) and s 29 of the Code of Conduct, and
(e)is not a person of integrity or is otherwise not a fit and proper person to provide immigration assistance as per paragraph 303(1)(f) of the Act.[10]
[10] Exhibit 1 AT12 at pages 101-103.
Allegations that came to light after the making of the cancellation decision
In preparing this matter for hearing, the Respondent discovered four previous unsuccessful attempts by Mr Abassi to complete the TOEFL iBT test prior to the 6 December TOEFL iBT test:
(a)6 February 2022 Mr Abassi sat an TOEFL iBT test and was advised by ETS on 4 March 2022 that there was no reportable score because he accessed a cell phone during the break.[11]
(b)24 February 2022 Mr Abassi sat an TOEFL iBT test and was advised by ETS on 12 April 2022 that there was no reportable score because he may have received assistance during the test.[12]
(c)2 May 2022 Mr Abassi sat an TOEFL iBT test and was advised by ETS on 9 September 2022 that there was no reportable score because he had unauthorised software operating during the test.[13]
(d)22 November 2022 Mr Abassi sat an TOEFL iBT test and was advised by ETS on 15 December 2022 that there was no reportable score because he may have received assistance during the test.[14]
[11] Exhibit 3 FST1 page 126.
[12] Exhibit 3 FST2 page 127.
[13] Exhibit 3 FST3 page 128.
[14] Exhibit 3 FST3 page 129.
Mr Abassi sat these tests under a different profile to the 6 December 2020 test.
Since the cancellation of his registration, Mr Abassi has obtained a score on an alternative English test with a sufficient score. In the hearing, the Respondent confirmed that the Applicant’s English competency is not an issue in these proceedings.
Allegation of false representation as a registered migration agent
Section 283 is an offence provision that provides that a person who is not a registered migration agent must not directly or indirectly represent that they are a migration agent.
Evidence was produced during the hearing by the Respondent to attempt to demonstrate that Mr Abassi continues to represent himself to the public as a registered migration agent.[15]
[15] Exhibits 4 and 5.
ISSUE
The issues for the Tribunal in reviewing the Authority’s cancellation decision are:
(a)firstly, whether the Tribunal is satisfied that either of the grounds in s 303(1) that are said to be engaged have been made out, and
(b)secondly, whether the discretion in that section should be exercised to cancel or suspend Mr Abassi’s registration or caution him.
It is well accepted that the Tribunal’s determination is not whether the decision the decision-maker made was the correct or preferable one on the material before them but whether the decision is the correct or preferable one on the material before the Tribunal.[16]
[16] In Shi v Migration Agents Registration Authority (2008) 235 CLR 286 [Shi] at [35] Kirby J refers to the observations of Bowen CJ and Deane J in Drake v Minister of Immigration and Ethnic Affairs (1979) 2 ALD 60.
This is significant given the allegations and further information that have come to light after the making of the reviewable decision and have now been put as evidence before the Tribunal. Therefore, I am tasked with making the correct or preferable decision on the evidence that was available in the hearing.
THE PARTIES’ CONTENTIONS
Applicant’s submission
In the hearing, the Mr Abassi’s representative, Mr Levingston, crystallised the issues to five main points of:
(i)whether Mr Abassi engaged in conduct which can be properly characterised as ‘cheating’ during his 6 December 2022 TOEFL iBT test;
(ii)the prior evidence of cheating with respect to the 2020 College of Law exam that is conceded by reason of the admissions made by Mr Abassi in his communications with the Authority;
(iii)whether prior evidence and subsequent contact with ETS, in relation to ETS tests conducted on 6 and 24 February 2022, 2 May 2022 and 22 November of 2022 constitutes evidence of cheating;
(iv)whether the evidence of having cheated on 6 December 2022 is sufficiently reliable to ground a finding of cheating and sufficient to drive the cancellation of his registration as a migration agent on the 19 of January 2024; and
(v)whether the failure to disclose the cancellation of Mr Abassi’s ETS score on 9 March 2023 was a breach of his continuous disclosure obligations and whether that breach constituted a lack of candour or arose in different circumstances.
In place of a witness statement for evidence in chief, Mr Abassi relied on the documents AT11 pages 93 to 98 which consist of his response to the s 309 notice. A summary of that response is that:
(a)he was unaware of the cancellation of his TOEFL iBT test result until receiving the notice. He said this was because he did not receive an email from ETS and had not logged into his ETS account since receiving the score. Upon receiving the notice, he checked his personal email which he had not been using for some time and found in his junk mail the email from ETS of 9 March 2023. He further said that this means he has not breached the Code of Conduct
(b)he has not cheated or attempted to gain an unfair disadvantage by using unauthorised recording software as he is not well versed in IT matters and has never used such a device or software in his life. He further said that the human proctor had approved his test submission on the day of the test
(c)he considers the delay in ETS advising of its decision to cancel the test and the subsequent delay in the Authority notifying its cancellation decision denied him the ability to challenge ETS’ ‘unfair, unjust, unreasonable and bias decision’
(d)he had been investigated by the College of Law in 2020 for collusion on a test, and had been suspended from taking the Capstone Assessment for 18 months, although this was reduced to 6 months following an appeal. On appeal the College of Law Appeals Committee found that although it was serious academic misconduct it was not the worst possible category of collusion. He said it had been accepted that he was under a lot of stress at that time. He said that he did ask the College to refrain from reporting the academic misconduct but that was because they determined that it did not fall into the most severe category of collusion. He also said he would have disclose the ‘allegation’ as part of his application for registration to the Authority even if they had agreed not to inform the Authority, and
(e)the sanction of cancellation would have a significant impact on his livelihood. He said that after migration to Australia in 2012 he could not find employment due to his age and being seen as overqualified. Therefore, he decided to switch professions from banking to becoming a migration agent at considerable expense. He further said that due to his age (over 60) and various health issues, starting afresh again is not an option for him.
In closing submissions, Mr Levingston submitted that ‘cheating’ on the 6 December 2022 TOEFL iBT test was detected by ETS during routine investigation of their systems where it was noticed that there were recurring discrepancies of virtual machines being used by a number of people. It was claimed that this does not specifically target Mr Abassi, but even if it did, the mere presence of the software is not enough to enliven ETS exercising its discretion to cancel the results.
On prior tests cancellations, Mr Levingston submitted that there has been a conflation of the recording of ‘no score’ and the ability to cancel any test score. By that he meant there is a difference between a fully articulated cancellation as opposed to no score for breaching a test rule. Further, Mr Levingston submitted that because ETS will not fully disclose its security processes (as it claims to do so would enable test takers to reverse engineer their process), the information provided by ETS does not assist the Tribunal in determining the questions as to whether Mr Abassi ‘cheated’. It was further submitted in the hearing that the lack of insight into ETS’ processes for detecting cheating makes it difficult to ascertain if Mr Abassi was actually cheating.
Mr Levingston attempted to contrast this situation with Mr Abassi’s instance of proven misconduct of cheating at the College of law which he submitted was clear and unequivocal. Mr Levingston also submitted that he disclosed that misconduct on his application which met the requirement of candour. He further submitted that Ms Abassi did not disclose the prior interactions with ETS to the Authority because they were merely that he did not have a reportable score and not notices of cancellation or cheating. He further submitted it was not an adverse finding that impacted upon Mr Abassi’s integrity or characterised him as not being a fit or proper person.
Mr Levingston further submitted that the Respondent is trying by inference to claim that because Mr Abassi cheated on his College of Law exam, he therefore cheated on all his exams with ETS.
Respondent’s submission
In the hearing, the Respondent submitted that the issue before the Tribunal is the Applicant’s fitness and propriety due to various honesty and integrity concerns.
The Respondent further submitted that in considering whether Mr Abassi is not a person of integrity or is otherwise not a fit or proper person to give immigration assistance it is necessary to consider the relevant paragraphs of s 290(2) of the Act:
(e) any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and
(f) any disciplinary action that is being taken, or has been taken, against the applicant that the Authority considers relevant to the application; and
(h) any other matter relevant to the applicant's fitness to give immigration assistance.
The Respondent relied on Shi for authority that the list in s 290(2) is not exhaustive and that there are good reasons why the Tribunal ‘should consider the most recent material bearing upon the question of an agent’s integrity and their fitness to provide immigration assistance’.[17]
[17] 235 CLR 286 at [149].
In relation to the 2020 College of Law incident, the Respondent submitted that this conduct ‘was not such that the Authority considered that the Applicant was not, based on this conduct alone, not a person of integrity or a fit and proper person’.[18] However, the Respondent also submitted that it becomes particularly pertinent in considering the TOEFL iBT test events which followed.[19] It was further submitted that Mr Abassi’s request to the College of Law that they not report the incident to the Authority brings into question his remorse and insight into his conduct.[20]
[18] Respondent’s updated Statement of Facts, Issues and Contentions at [36].
[19] Ibid at [37].
[20] Ibid at [37].
In relation to the TOEFL iBT tests taken throughout 2022, the Respondent submitted that what is particularly salient about these matters is that Mr Abassi continued to re-enrol in the test despite having previous scores cancelled; he was on notice of the need to be vigilant about using unauthorised software prior to the December TOEFL iBT test; and he answered ‘No’ to the following questions in his application for registration:
Is there any other finding, event, conduct or fact which may affect your fitness, propriety and/or integrity to provide immigration assistance (other than disclosed in this application).
Have you been involved in any event, inquiry or investigation, or any other matter, that is relevant to your role in providing immigration assistance which may be of interest to the OMARA when determining whether you are a person of integrity or a fit and proper person to provide immigration assistance.[21]
[21] Ibid at [40].
In relation to the cancellation of the December TOEFL iBT test results, the Respondent submitted that Mr Abassi lack of awareness of the cancellation of the December Test until the date of the s 309 notice should not be accepted.[22] This is because Mr Abassi has not provided any evidence to verify he had not logged onto his account or that the email did in fact go to junk mail.[23] It is also because the amount of time and effort that Mr Abassi has expended to become registered as a migration agent supports the inference that he was aware that his TOEFL iBT test result had been cancelled but deliberately chose not to notify the Authority so that he could continue operating his business as a migration agent.[24] It is further submitted that this contention has greater force in light of the fact that Mr Abassi had requested the College of Law not to disclose his academic misconduct to the Authority ‘as a consequence of a bad record in my career’.[25]
[22] Ibid at [51].
[23] Ibid at [53].
[24] Ibid at [54]
[25] Ibid.
The Respondent submitted in the hearing that the fit and proper person test while having no fixed legal meaning is well understood and subject to established principles. It was further submitted that the phrase needs to be considered in its statutory context and that whether Mr Abassi is a fit and proper person is a question of fact to be determined objectively based on the evidence.
Further, it was submitted by the Respondent that in determining fitness and propriety it is not only relevant to consider whether improper conduct has occurred but if it is likely to occur in the future.
CONSIDERATION
Is Mr Abassi a person of integrity or is otherwise a fit and proper person to give immigration assistance?
As previously noted, s 303(1)(f) to the Act provides that the Respondent (or the Tribunal) may take one of three actions against a registered migration agent if satisfied that the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance.
Person of integrity
As pointed out in Kearney and Migration Agents Registration Authority[26] [Kearney], the syntax of s 290(1) is important. Like in that case, the Tribunal is being asked by the Respondent to make adverse credibility findings against the Applicant’s evidence in the hearing. In Kearney it was found that the applicant was a person of integrity but was not a fit a proper person to provide migration assistance. This was because Senior Member Morris considered it is not necessary to find that a person is both not a fit and proper person to give migration assistance and not a person of integrity.[27] In this case, I find this a difficult proposition because, as submitted by the Respondent in the hearing, honesty and integrity are central aspects of fitness and propriety.
[26] [2024] AATA 1989 at [235].
[27] Ibid at [244].
After reviewing the Applicant’s cross-examination, while at times Mr Abassi’s demeanour and behaviour seemed evasive or uncertain, I note he nonetheless answered the questions posed in an obliging way even if at times his explanations went beyond the question being asked. I therefore decline to make a finding that Mr Abassi is not a person of integrity based on his appearance as a witness. I will not find him to be an unsatisfactory witness as requested by the Respondent. This is also because when assessing the credibility of Mr Abassi as a witness, I must acknowledge that his behaviour and demeanour are influenced by his culture which is not the dominant one. His demeanour as a witness is therefore not a useful marker of credibility.
However, when assessing Mr Abassi’s conduct in relation to gaining the qualifications necessary to be registered as a migration agent, I find it difficult to separate integrity from fitness and propriety. It has also been said previously by the Tribunal that the statute clearly indicates that a person not of integrity would not be a fit and proper person to give immigration assistance.[28]
[28] Re Peng v Department of Immigration and Multicultural Affairs and AAT [1998] AATA 12 at [27].
I am satisfied that the evidence shows he was prepared to use unethical means to gain the qualifications required to be registered as a migration agent. Given that he repeated the unethical conduct shows that he had little regard or was recklessly indifferent to the requirements imposed on him by the educational institutions.
Mr Abassi’s evidence in cross examination was that on receiving the notice from the Authority in September 2023 and then becoming aware of the 6 December 2002 test cancellation, his priority was to sit for a new exam to prove his English proficiency and then to reply to the Authority’s notice. The priority he affords to these two things displays a lack professional respect and regard for processes of the Authority considering instead that he could rectify the situation in his own way.
I am satisfied that in this regard this conduct demonstrates that Mr Abassi is not a person of integrity within the statutory context. The conduct does not display a ‘soundness of moral principle and character; uprightness; honesty’.[29]
[29] Re Peng v Department of Immigration and Multicultural Affairs and AAT [1998] AATA 12 at [26] per McMahon DP and endorsed in Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558; 34 AAR 371; [2002] FCA 93 at [22] per Wilcox J.
In summing up submissions in the hearing, Mr Levingston submitted that Mr Abassi’s failure to disclose the cancellation of the ETS score on 9 March 2023 did not arise from a lack of candour but rather from laziness and stupidity which he argued are traits that trouble all humans. I don’t doubt that these factors are also at play for the reasons provided by Mr Levingston. However, this does not alter my findings regarding Mr Abassi’s integrity.
Fitness and propriety
An issue that arises in relation to the four tests taken prior to 6 December 2023 by Mr Abassi is whether he was required to disclose the cancellations to the Authority in his application for registration as a migration agent. The Respondent submitted that he was. Consistent with my finding above regarding Mr Abassi’s integrity, I consider the fact that he had 4 prior test results cancelled by ETS as a ‘finding, event, conduct or fact’ that affects his fitness and propriety and/or integrity and would be of interest to the Authority in determining whether he is a person of integrity or a fit and proper person to provide immigration assistance.
Mr Abassi’s evidence in cross examination was that the failure to disclose on his registration form that ETS had determined he had violated their polices by receiving assistance during exams or using unauthorised software was because he did not regard that as ‘cheating’ or misconduct seemed a genuinely held belief even if misguided. Mr Abassi’s responses displayed that he did not appreciate the seriousness of receiving ‘no reportable score’ as opposed to a cancellation of a score which he appeared to regard as a more serious action.
Evidence tendered of Teleconference Minutes between the Authority, Department of Home Affairs and ETS on 13 August 2024 (Teleconference Minutes) displayed that ETS characterised the action it took in relation to the four test taken prior to 6 December 2023 as cancellations.[30] The difference appears to be that in the case of these tests the misconduct was picked up during the tests whereas for the 6 December 2023 test it was picked up during a compliance audit in relation to a group of test takers so the cancellation occurred after the test. In closing submissions Mr Levingston tried to undermine the evidence presented in the Teleconference Minutes as conflating no score decisions with cancellation decisions. However, I do not find this a convincing argument given the evidence also tendered of TOEFL iBT Information Bulletin 2022-2023[31] which described both actions under ‘ETS Score Cancellation Policies’.
[30] Exhibit 3 FST6, page 131.
[31] Exhibit 3 FST7, page 171-173.
It is well established that the expression ‘fit and proper person’ takes its meaning from the context in which it arises and from the activities in which the person is engaged and the ends served by those activities which is this case is the provision of migration assistance.[32]
[32] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
It is also well established that the concept should not be narrowly construed or confined and that fitness involves honesty.[33]
[33] Re Peng v Department of Immigration and Multicultural Affairs and AAT [1998] AATA 12 at [28] per quoting the judgement of a Full Court of the High Court in Hughes and Vale Pty Ltd and Anor v State of New South Wales and Ors (No. 2) [1955] HCA 28; (1955) 93 CLR 127 at [156] and Australian Broadcasting Tribunal v Bond and Ors [1990] HCA 33; (1990) 94 ALR 11, at [32] per Mason CJ.
The Tribunal has previously found that the word ‘assistance’ in relation to being a ‘fit and proper person to give immigration assistance’ extends not only to helping applicants but also to giving assistance to the Department.[34] It has also been found that the need for probity is not only for the protection of the migration agent’s clients but also for the honest and efficient administration of immigration matters.[35]
[34] Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12 at [26].
[35] Ibid.
In this context, I cannot be satisfied that Mr Abassi is a fit and proper person to give immigration assistance. He has not been honest and transparent in his dealings with the Authority. He has taken it upon himself to decide what constitutes reportable in an attempt to prevent the Authority from receiving information which could jeopardise him gaining and then maintaining his migration agent licence.
Did Mr Abassi breach s 13 and/or s 29 of the Code of Conduct?
As stated above, Mr Levingston submitted that Mr Abassi’s failure to disclose the cancellation of the ETS score on 9 March 2023 did not arise from a lack of candour but rather from laziness and stupidity.
Mr Levingston explained in similar terms his failure to update his LinkedIn profile and his dealings with the National Disability Insurance Scheme (NDIS).
Mr Abassi’s evidence when being cross-examined was that he may have overlooked removing references to his registration of a migration agent on LinkedIn when he removed reference from Facebook and his website. He claimed it was a mistake.
I am not persuaded that the LinkedIn profile screenshots provided as evidence prove that Mr Abassi is continuing to hold himself out as a migration agent. The explanation provided by Mr Abassi is reasonable in the absence of further evidence that he was advertising his services as a migration agent after the notification of the cancellation of his registration.
Likewise, the screenshot of the NDIS provider finder page was not persuasive as evidence that Mr Abassi uses his gmail address on a regular basis for business. The explanation he gave that his gmail address was provided as part of initial registration is reasonable in the absence of further evidence. The screenshot was also not probative evidence of the other matters being claimed by the Respondent regarding Mr Abassi’s truthfulness.
However, Mr Abassi’s evidence in cross examination regarding his failure to disclose the cancellation of the ETS score in breach of his obligations under the Code of Conduct because the notice from ETS ended up in his junk mail is less persuasive. When cross-examined on whether notification of previous attempts from ETS had gone to junk mail Mr Abassi responses were equivocal stating variously that they did not or he did not know or he did not remember. However, when it came to the notice from ETS regarding the 6 December TOEFL iBT test exam cancellation, Mr Abassi was more certain about it going to junk mail. In the absence of further evidence from the Applicant to show that the notice of the 6 December 2022 exam cancellation went to junk mail, I find it implausible that it went to junk mail when the other emails Mr Abassi received from ETS did not. I can therefore only conclude that Mr Abassi has not complied with the Code of Conduct because he failed to notify the Authority of changes in circumstances relevant to his continue registration in breach of section 29 of the Code of Conduct.
Mr Abassi’s evidence showed a lack of appreciation of the significant duties imposed on migration agents under the Code of Conduct. This was displayed in his evidence in cross examination where he clearly distinguished the College of Law misconduct as something wrong that required disclosure (but still requested the College of Law not to disclose the misconduct to the Authority) from the failure to disclose the 6 December 2022 exam cancellation. His lack of honesty and judgement in this regard illustrates that the Authority and Department would be unable to rely on these traits in future dealings.
Consistent with my finding that Mr Abassi has demonstrated that he is neither a person of integrity nor a fit and proper person, I am satisfied that Mr Abassi has not acted professionally, ethically, honestly and with integrity in breach of s 13 of the Code of Conduct.
Appropriate disciplinary action
I am satisfied that the disciplinary powers in s 303 have been enlivened.
When considering the appropriateness of the disciplinary action to be taken in this case, the Respondent submits that it is necessary to consider among other things:
(a)the seriousness of the conduct
(b)the lack of remorse
(c)the extent to which the sanction may be harsh, unjust or oppressive in the circumstances
(d)the need for specific and general deterrence, and
(e)the maintenance of public confidence
In the hearing, Mr Levington referred the Tribunal to the principles in Briginshaw[36] that establish where a sanction might be of an extreme nature, the Tribunal must be satisfied that its findings are based on a high degree of satisfaction and not on a degree of concern or unease.[37] However, this does not mean that such satisfaction cannot be gained from inference and circumstance.[38]
[36] Briginshaw v Briginshaw (1938) 60 CLR 362.
[37] Ibid.
[38] Ibid.
The seriousness of the conduct
The incident that resulted in the cancellation of Mr Abassi’s registration in isolation may not be of a sufficient degree of seriousness to trigger the extreme sanction under s 303(1)(a) of the Act. However, when combined with the College of Law incident; the previous test cancellations and his failure to disclose the cancellation of the December TOEFL iBT test the threshold of seriousness is achieved.
The conduct in question not only undermines the system that has been established for the registration and regulation of migration agents but also the system it relies on that has been established to ensure the integrity of online testing. This factor weighs against the imposing of a lesser sanction.
Lack of remorse
Mr Abassi has shown little remorse and responsibility for his situation in that he disputes any wrongdoing in relation to ETS test cancellations.
He also distinguished the four previous attempts at sitting the TOEFL iBT test from the 6 December 2023 test. He displayed little regard for the seriousness of the action taken by ETS and did not regard the action taken in relation to the four tests prior to 6 December 2023 as ‘cancellations’ despite clearly being characterised by ETS in such a way. I accept he may be remorseful about the situation he now finds himself in but that is different to accepting he is in error and that he should have never been registered as a migration agent in the first place because he lacked the necessary qualification. This factor also weighs against the imposing of a lesser sanction.
Impact
Mr Abassi has invested a significant amount time and expense establishing himself as a migration agent which he said has resulted in significant debts.[39] He gave evidence that being unable to continue with his career will have a severe impact on him and his family.[40] He also gave evidence that due to his age and health issues, starting afresh is not possible for him.[41] I consider this fact would weigh against imposing a sanction of cancellation and weighs towards the imposing of the lesser sanction of suspension for a period less than 5 years.
[39] Exhibit 1 AT at page 97.
[40] Ibid.
[41] Ibid.
Need for specific and general deterrence
The purpose of the Code of Conduct is to protect the clients of migration agents and strengthen the integrity of the immigration advice industry and Australia’s immigration system.[42]
Therefore, it is appropriate that the level of the sanction acts as a deterrent in both the specific and general sense. It is necessary that the sanction acts to deter Mr Abassi from repeating the conduct and others who might be tempted to engage in such conduct. Given that Mr Abassi knows now what is at stake, I accept that it may be unlikely that he will repeat his problematic conduct as whatever doubts he may have had about the requirements in the past those doubts should now be expelled. However, in relation to general deterrence, cancellation sends a clear message to the regulated community of the expected behaviours of a registered migration agent and the importance of compliance with their obligations. It is also important that a message is not sent to the broader community that registration can be obtained through such means as Ms Abassi deployed.
[42] Migration (Migration Agents Code of Conduct) Regulations 2021.
The factor also weighs against the imposing of a lesser sanction.
Maintenance of public conference
In summing up, the Respondent submitted that appropriate disciplinary action is measured for the purpose of ensuring the protection of the public in this context. It is not for the purpose of punishing the individual. The Respondent also pointed out that migration agents work with vulnerable members of the community and therefore it is important to ensure that agents are fit and proper people of integrity. In the circumstances of this case, it is also important that confidence is maintained in online testing which is a significant market in Australia for a range of courses and qualifications and necessary for maintaining the confidence in the Authority’s ability to administer the registration of migration agents.
The factor also weighs against the imposing of a lesser sanction.
Weighing up the factors above, cancellation is the appropriate response therefore the reviewable decision is affirmed.
Dates of hearing:
4 and 5 March 2025 Applicant’s Representative: Christopher Levingston & Associates Counsel for the Respondent:
Solicitors for the Respondent:
Alison Hammond
Australian Government Solicitor
EXHIBTS
Exhibit No 1: R1 – Amendment Tribunal Documents (AT) T1-T103
Exhibit No 2: R2 – Supplementary Tribunal Documents (ST) T104-124
Exhibit No 3: R3 – Further Supplementary Evidence Bundle (FST) T126-188
Exhibit No 4: R4 – Hussam Abassi LinkedIn page
Exhibit No 5: R5 – NDIS Screenshot
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