Abedi and Migration Agents Registration Authority

Abedi and Migration Agents Registration Authority [2020] AATA 2477 (28 July 2020)
Division:GENERAL DIVISION
File Number(s): 2018/7643
Re:Sam Abedi
APPLICANT

AndMigration Agents Registration Authority
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:28 July 2020
Place:Sydney

The decision under review is affirmed.
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Senior Member A Poljak
CATCHWORDS
MIGRATION AGENTS REGISTRATION – suspension of applicant’s registration as migration agent – breaches of the Code of Conduct for migration agents prescribed under Migration Agents Regulations 1998 – whether breaches warrant a sanction – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 303, 304, 314
Migration Agents Regulations 1998 (Cth) sch 2
SECONDARY MATERIALS
Code of Conduct for Registered Migration Agents, Office of the Migration Agents Registration Authority, 18 April 2017
REASONS FOR DECISION
Senior Member A Poljak
28 July 2020

Mr Sam Abedi, the applicant, was first registered as a migration agent (MARN 1387882) on 11 December 2013. He has renewed his registration annually.
On 6 July 2017, following an investigation into a complaint matter (CMP-29417), the Office of the Migration Agents Registration Authority (MARA) found the applicant failed to issue statements of services to clients and breached clause 5.5 of the Code of Conduct for Registered Migration Agents; Schedule 2 of the Migration Agents Regulations 1998 (Cth) (the Code).
On 26 September 2017 and 8 November 2017, MARA received two further complaints (CMP-33370 and CMP-34121) concerning the applicant’s conduct as a migration agent.
Following an investigation into these two complaints, on 6 December 2018 a delegate of MARA found that the applicant had engaged in conduct contrary to his professional obligations under the Code, and that he was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance. The delegate decided to suspend the applicant’s registration as a migration agent for six months or until he had met specified conditions, in accordance with section 303 of the Migration Act 1958 (Cth) (the Act). This is the decision under review in these proceedings.
At hearing the respondent advised that it did not press findings regarding the applicant’s integrity or whether he was a fit and proper person. The issues to be determined in these proceedings are therefore:
(a)Whether each of the alleged breaches of the Code are established, and if so:
(i)whether the breaches warrant a sanction pursuant to section 303(1)(h) of the Act; and
(ii)the appropriate sanction to be imposed.
Summary of Complaints
CMP-33370
On 26 September 2017, MARA received a complaint from Mr Malekian who had engaged the applicant to prepare and lodge an onshore Partner Visa application (subclass 820/801). Mr Malekian alleged:
(a)The applicant incorrectly added Mr Malekian’s mother as a dependent in the visa application which later led to her being refused a temporary visa to enter Australia;
(b)The applicant failed to submit a Form 40SP when he lodged the Partner Visa application;
(c)The applicant appeared to be working in the best interests of the sponsor rather than Mr Malekian; and
(d)The applicant failed to provide a copy of his file within seven days after it was requested.
CMP-34121
On 8 November 2017, MARA received a complaint from Mr Aldari regarding the applicant’s conduct as a migration agent. Mr Aldari alleged:
(a)He was referred to the applicant by Mr Phillip Bashi, an unregistered migration agent;
(b)He paid the applicant $4,555.00 for services to lodge a Ministerial Intervention (MI) request after having received notification that his Safe Haven Enterprise Visa (SHEV) application was deemed invalid; and
(c)He was coerced into signing an agreement with the applicant in relation to the MI request.
Relevant Legislative Provisions
Subsection 303(1) of the Act provides, in part:
The Migration Agents Registration Authority may:
(a) cancel the registration of a registered migration agent by removing his or her name from the register; or
(b) suspend his or her registration; or
(c) caution him or her;
if it becomes satisfied that:
…
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
…
(h) the agent has not complied with the Code of Conduct prescribed under section 314.
Subsection 304(1) provides:
If the Migration Agents Registration Authority suspends the registration of a registered migration agent under section 303, the Migration Agents Registration Authority may:
(a) set a period of suspension of not more than 5 years; or
(b) set a condition or conditions for the lifting of the suspension.
Section 314 provides:
(1) The regulations may prescribe a Code of Conduct for migration agents.
(2) A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.
Breaches of the Code
The respondent contends that the applicant failed to act in the legitimate interest of his clients, mislead and failed to properly respond to MARA, beached his financial obligations, failed to maintain separate business and client accounts and failed to maintain proper records. The respondent alleges that this conduct was contrary to clauses 2.1, 2.3, 2.4, 2.8, 5.2, 5.5, 6.1, 6.2, 6.3, 7.1, 7.2, 7.4 and 9.3 of the Code, which provide:
2.1 A registered migration agent must always:
(a) act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client; and
(b) deal with his or her client competently, diligently and fairly.
However, a registered migration agent operating as an agent in a country other than Australia will not be taken to have failed to comply with the Code if the law of that country prevents the agent from operating in compliance with the Code.
2.3 A registered migration agent’s professionalism must be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.
2.4 A registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.
2.8 A registered migration agent must:
(a) within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing to the client; and
(b) act in accordance with the client’s instructions; and
(c) keep the client fully informed in writing of the progress of each case or application that the agent undertakes for the client; and
(d) within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client’s case or application.
5.2 A registered migration agent must:
(a) before starting work for a client, give the client:
(i) an estimate of charges in the form of fees for each hour or each service to be performed, and disbursements that the agent is likely to incur as part of the services to be performed; and
(ii) an estimate of the time likely to be taken in performing the services; and
(b) as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of:
(i) the estimate of fees; and
(ii) the estimate of the time likely to be taken in performing the services; and
(c) give the client written confirmation (an Agreement for Services and Fees) of:
(i) the services to be performed; and
(ii) the fees for the services; and
(iii) the disbursements that the agent is likely to incur as part of the services; and
(d) give the client written notice of any material change to the estimated cost of providing a service, and the total likely cost because of the change, as soon as the agent becomes aware of the likelihood of a change occurring.
5.5 A registered migration agent must be aware of the effect of section 313 of the Act, and act on the basis that:
(a) the agent is not entitled to be paid a fee or other reward for giving immigration assistance to a client unless the agent gives the client a statement of services that is consistent with the services, fees and disbursements in the Agreement for Services and Fees mentioned in clause 5.2; and
Note: The statement of services may be an itemised invoice or account. See clauses 7.2 and 7.4.
(b) a statement of services must set out:
(i) particulars of each service performed; and
(ii) the charge made in respect of each such service; and
(c) a client is entitled by the Act to recover the amount of a payment as a debt due to him or her if he or she:
(i) made the payment to the agent for giving immigration assistance; and
(ii) did not receive a statement of services before making the payment; and
(iii) does not receive a statement of services within 28 days after a final decision is made about the visa application, cancellation review application, nomination or sponsorship to which the immigration assistance related.
6.1 A registered migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing:
(a) a copy of each client’s application; and
(b) copies of each written communication between:
(i) the client and the agent; and
(ii) the agent and any relevant statutory authority; and
(iii) the agent and the Department regarding the client; and
(c) file notes of every substantive or material oral communication between:
(i) the client and the agent; and
(ii) the agent and an official of any relevant statutory authority; and
(iii) the agent and the Department regarding the client.
6.2 A registered migration agent must keep all documents to which a client is entitled securely and in a way that will ensure confidentiality while the agent is giving services to the client and until the earlier of:
(a) 7 years after the date of the last action on the file for the client; or
(b) when the documents are given to the client or dealt with in accordance with the client’s written instructions.
Note: On the completion or termination of services, all documents to which a client is entitled are to be dealt with in accordance with Part 10.
6.3 A registered migration agent must respond to a request for information from the Authority within a reasonable time specified by the Authority.
7.1 Subject to clause 7.1B, a registered migration agent must keep separate accounts with a financial institution for:
(a) the agent’s operating expenses (the operating account); and
(b) money paid by clients to the agent for fees and disbursements (the clients’ account).
7.2 A registered migration agent must hold, in the clients' account, an amount of money paid by a client for an agreed block of work until:
(a) the agent has completed the services that comprise the block of work; and
(b) an invoice has been issued to the client for the services performed in accordance with the Agreement for Services and Fees mentioned in clause 5.2, showing:
(i) each service performed; and
(ii) the fee for each service.
7.4 A registered migration agent must keep records of the clients’ account, including:
(a) the date and amount of each deposit made to the clients’ account, including an indication of the purpose of the deposit and the client on whose behalf the deposit is made; and
(b) the date and amount of each withdrawal made in relation to an individual client, and the name of each recipient of money that was withdrawn; and
(c) receipts for any payments made by the client to the agent; and
(d) statements of services; and
(e) copies of invoices or accounts rendered in relation to the account.
9.3 If the Authority gives a registered migration agent details of a complaint made to the Authority about:
(a) the work or services carried out by the agent or the agent’s employees; or
(b) any other matter relating to the agent’s compliance with this Code—
the agent must respond properly to the Authority, within a reasonable time specified by the Authority when it gives the details to the agent.
Failure to act in the legitimate interest of the client
In respect of CMP-33370, the applicant failed to lodge a signed 40SP (sponsorship form) when he lodged Mr Malekian’s Partner Visa application. The respondent claims that the applicant should have been aware that a completed 40SP form was to be lodged with the visa application and that his failure to ensure that this occurred was not in the best interest of the client and a breach of cl 2.1 of the Code.
At hearing the applicant advised that he did not lodge the 40SP form at the time he lodged Mr Malekian’s visa application because it was not approved or checked by the sponsor. He said he knew that failing to file the 40SP form may result in adverse consequences for the client, but he had attempted to contact the sponsor numerous times to no avail. This is consistent with the applicant’s evidence contained in his statutory declaration dated 8 January 2018 and a letter from the sponsor dated 30 January 2018.The applicant said that he would have advised Mr Malekian of potential adverse consequences despite there being no record of the advice in his client notes.
There is no available evidence by way of file note or otherwise that demonstrates that the applicant adequately advised Mr Malekian or the sponsor about the potential adverse consequences of filing the visa application without the 40SP form. The applicant should not have filed the visa application without the 40SP form without very clear and specific instructions from Mr Malekian. I am not satisfied on the available evidence that this occurred.
In respect of CMP-34121, Mr Aldari was not eligible for the exercise of Ministerial powers under ss 417 or 48B of the Act as a result of his protection visa being found to be invalid due to his dual citizenship. Mr Aldari was able to seek a Department-initiated request to the Minister that the section 91Q bar (dual citizenship bar) be lifted. Despite having been informed by the Department over the phone that the applicant should submit any documents related to the request directly to the delegate, the applicant instead sent a Ministerial request directly to the Minister’s office. This contributed to a delay in the process and did not serve the legitimate interests of Mr Aldari in circumstances where he was dependent on the applicant’s knowledge and experience.
At hearing the applicant advised that he only referred to his training material to determine the action that needed to be taken. He did not take any further steps to ascertain the correct steps before submitting a request directly to the Minister’s office because he thought it was the “proper way”. The applicant accepted at hearing that his approach was incorrect but said that he was always trying to act in the best interests of the client.
Mr Aldari and Mr Malekian were both dependent on the applicant’s knowledge and experience. The applicant had a responsibility to deal with his clients competently, diligently and fairly and to have a sound working knowledge of migration law and procedure to provide accurate and timely advice. In these instances, detailed above, the applicant’s conduct was lacking in this regard, breaching cls 2.1(b), 2.3 and 2.4 of the Code.
Misleading and failing to properly respond to MARA
The respondent claims that the applicant failed to properly respond to two notices issued by MARA, in relation to both complaints, pursuant to section 308 of the Act (section 308 notices) and provided incorrect and misleading information. Firstly, the respondent contends that the information provided to MARA by the applicant on 8 January 2018 to the effect that the partnership between himself and Mr Bashi, trading as Request Australian Visa (RAV), had ceased in October 2017 was incorrect and misleading. Secondly, the respondent contends that the declaration made by the applicant on 27 September 2018 that he had not had “any business association” with the partnership since its deregistration in 2017 was incorrect and misleading.
In a letter dated 8 January 2018, the applicant’s accountant advised that the partnership was ceased on 2 November 2017. On 12 April 2018, the Australian Business Number (ABN) for RAV was cancelled with effect from 31 October 2017. As at 28 March 2018, the business name was still registered with ASIC.
In a statutory declaration dated 28 September 2018, the applicant stated that the business had been deregistered in November 2017. At hearing the applicant said he didn’t know the business name was still registered with ASIC. He said that his accountant was to cancel everything to do with the partnership and he never meant to mislead. The applicant explained that when he said RAV had been deregistered in 2017, he was referring to the ABN and bank accounts having been cancelled. He assumed that deregistration with ASIC would be automatic. He submitted that it was an innocent miscommunication. The applicant was legally represented at the time and he submitted that he trusted his representation to ensure that the information provided to MARA was accurate.
Having carefully considered the evidence I am not convinced that the applicant took the necessary steps to ensure that the information provided to MARA was accurate. Even though he relied on his accountant to finalise the partnership and he was legally represented at the time of making submissions, he was still responsible for the accuracy of the information provided. The respondent accepts that the applicant did not seek to intentionally mislead MARA, or to deceive his former clients but contends that the deficiencies in the applicant’s responses to MARA and his failure to ensure the accuracy of the information provided shows a disregard for his professional obligations. At hearing, the respondent conceded that although the applicant breached his obligations by failing to take necessary steps to ensure representations made to MARA were accurate, the breaches were not serious enough in isolation to warrant a sanction.
Finally, the respondent contends that the applicant failed to respond in a timely manner to the first section 308 notice issued on 29 November 2017 (first notice) breaching cls 6.3 and 9.3 of the Code. The applicant was required to respond to the notice by 30 December 2017 but failed to do so until 9 January 2018. The respondent also contends that the applicant failed to adequately respond to a second section 308 notice issued on 28 March 2018 (second notice) by providing information already sent to MARA.
In written submissions, the applicant said that the delay in responding to the first section 308 notice was not unreasonable given that the due date for a response was during the Christmas/New Year holiday period, he was waiting to receive a copy of Mr Malekian’s complaint from MARA, an extension of time was sought, and no steps were taken by MARA in relation to the investigation until 27 March 2018. In regard to the second notice the applicant said the provision of material already provided to MARA was not unreasonable because MARA had not acknowledged receipt of the applicant’s response to the first notice, the second notice made no reference to the first notice or the material received by MARA and the second notice duplicated much of the content of the first notice.
At hearing, the applicant reiterated that he and his legal representation believed the second notice to be a duplication of the first notice and that is why they forwarded documents already sent to MARA.
Not much was made of the alleged breaches of cl 6.3 and 9.3 of the Code at hearing. Having considered the explanation provided by the applicant about the delay in responding to the first notice and the provision of documents already provided to MARA in response to the second notice, I do not find the applicant’s conduct unreasonable in the circumstances. The allegations that the applicant breached cls 6.3 and 9.3 of the Code are not made out.
Financial Obligations

The Agreement for Services and Fees (Agreement) provided to Mr Aldari was not an accurate reflection of the services that the applicant had agreed to perform. Mr Aldari had sought the services of the applicant to prepare a MI request, however the Agreement provided to Mr Aldari referred to the provision of services for the lodgement of a valid visa application. At hearing, the applicant said that the Agreement used was not custom made for the client and was the one usually used with all his clients. He accepted that the services of preparing a MI request were different to a visa application. The applicant accepted that he would have changed some of the wording in the Agreement but stated that under the heading ‘service scope’ he only recorded fees next to the applicable service. He conceded that there was “still room for improvement”.
Despite the applicant now acknowledging the deficiencies with the Agreement and that changes needed to be made, I am not convinced that Mr Aldari would have been able to understand the scope of services provided by the applicant and the associated fees given that the Agreement also contained details relevant to services for the lodgement of a visa application. The provision of the Agreement to Mr Aldari in that form breached cl 5.2 of the Code.
The applicant accepted at hearing that the receipt provided to Mr Aldari for the MI request did not comply with the Code. The applicant also accepted that Mr Malekian did not receive a receipt for his migration services. Accordingly, the applicant breached cls 5.5(b) and 7.4 of the Code.
Client account keeping
Clause 7.1 of the Code requires a migration agent to keep separate accounts with a financial institution for operating expenses (business expenses) and money paid by a client to the agent for fees and disbursements. In September and October 2014, the applicant made four withdrawals from his client account, apparently for the purpose of making payments to Mr Phillip Bashi. The applicant conceded at hearing that mixing his business account with client accounts was a breach of the Code He stated that at the time he didn’t completely understand the requirement and his practice was to complete “a block of work and then once applications were lodged, he made payments to Mr Bashi”. The applicant advised at hearing that he now complies with the Code and has changed his practice.
Record keeping
The respondent contends that the applicant engaged in conduct contrary to cls. 2.8, 6.1 and 6.2 of the Code. The respondent contends, regarding both Mr Aldari and Mr Malekian, that their files did not contain evidence of instructions nor written confirmation of instructions. Mr Malekian’s file did not contain copies of email correspondence with the applicant and file notes were not in any discernible date or order. The records also did not include any detail about telephone discussions between the applicant and Mr Malekian. Mr Aldari’s file notes were inconsistent with the applicant’s client account information.
The applicant concedes that he breached cls. 2.8 (confirming client instructions in writing), 6.1 and 6.2 (record keeping) of the Code.
CONSIDERATION AND DECISION
The applicant’s conduct does not reflect on his integrity. I accept that his actions were not intentional, and he did not knowingly cause harm or deceive his clients.
When considered individually, some of the applicant’s breaches of the Code as detailed in this decision are at the lower end of the scale of seriousness. However, when considered in aggregate, they are indicative of a systematic deficiency in the applicant’s practice and demonstrate a lack of competency, particularly regarding his knowledge of Migration law and procedure and the Code. This is exacerbated by the previous disciplinary findings by MARA on 6 July 2017, which found that the applicant breached cl 5.5 of the Code (provision of statement of services).
If not appropriately addressed and rectified, the applicant’s conduct could potentially continue and cause detriment to any future clients. Accordingly, I am satisfied that it is appropriate in the circumstances that a sanction is imposed and the period of suspension imposed by MARA (being a period of six months with effect from 6 December 2018) with the condition that the applicant undertake additional education, is an appropriate sanction in all the circumstances.
The decision under review is affirmed.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate
Dated: 28 July 2020

Date of hearing: 22 May 2019

Counsel for the Applicant: Mr R Chia

Solicitors for the Respondent: Mr A Keevers, Sparke Helmore Lawyers

[2020] AATA 2477

28 July 2020

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Procedural Fairness

Judicial Review

Breach

Intention

Remedies

Statutory Construction

Date of hearing:	22 May 2019
Counsel for the Applicant:	Mr R Chia
Solicitors for the Respondent:	Mr A Keevers, Sparke Helmore Lawyers