Amin and Migration Agents Registration Authority

[2005] AATA 257

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 257

ADMINISTRATIVE APPEALS TRIBUNAL  )  

GENERAL ADMINISTRATIVE DIVISION    )    N2003/1590

N2004/193
  N2004/596  

Re BONI AMIN

Applicant

And MIGRATION AGENTS
REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal  Ms G Ettinger, Senior Member

Date 24 March 2005

Place Sydney

Ms G Ettinger
  Senior Member

DECISION

Matter N2004/193 – The Tribunal affirms the decision of MARA dated 16 February 2004, to cancel the registration of Mr Boni Ami as a migration agent, and remove his name from the Register.

Matter N2004/596 - The Tribunal affirms the decision of MARA dated 17 May 2004, to refuse the application of Mr Boni Ami for registration as a migration agent.

Matter N2003/1590 The Respondent made submissions in its Statement of Facts and Contentions regarding the disposition of Matter N2003/1590, the decision of MARA dated 3 October 2003, the operation of which had been stayed by a decision of this Tribunal on 19 May 2004. In making my decision, I discharge that stay. Given my findings that Mr Amin is not a person of integrity, or is otherwise not a fit and proper person to give immigration assistance, pursuant to section 303(f) of the Act, and has not complied with the Code of Conduct prescribed under section 314 of the Act pursuant to section 303(h) of the Act, I consider that the preferred view is that pursuant to section 303(a) of the Act, I cancel any registration which may still be on foot as a result of the application in Matter N2003/1590.

Ms G Ettinger
  Senior Member

INDEX TO DECISION

CATCHWORDS  4

LEGISLATION  4

CASE LAW  4

BACKGROUND  5

ISSUES FOR DETERMINATION  6

OBJECT OF THE ACT AND CODE  7

STANDARD OF PROOF  9

THE COMPLAINTS  11

EVIDENCE BEFORE THE TRIBUNAL  12

LEGAL ISSUE - Writing to the Minister on behalf of the Students  16

ISSUES OF CREDIT   25

Assistance provided by a Registered Migration Agent  27

The Clients’ Declarations  29

Similarities in the Statements of Messrs Paul and Mondal                   31

Mr Hakim’s Origins  33

Letters to the Minister regarding the Students  34

Clause 2.17 of the Code of Conduct  37

Mr Amin’s Statutory Declaration  39

CONCLUSIONS AS TO MR AMIN’S CREDIT  41

ADMITTED BEACHES AND BREACHES WITHDRAWN  43

Attachment A – Schedule of Breaches sought to be withdrawn           43

Attachment B – Revised Schedule of Admitted Breaches  46

GOUTAM PAUL  51

Background  51

Mara  53

Breaches Admitted  54

Protection Visa  55

Bridging Visa  56

First RRT Hearing  58

Second RRT Hearing  62

Federal Court  63

MOHAMMAD KHAN  65

The Refugee Review Tribunal  67

The Federal Court  69

Return of the Passport  71

JOHN SAHA  74

RUPAK SAHA  76

ABDUL HAKIM  81

THE STUDENT VISAS  83

Ahm Shamiul Alam  84

Kushal Khatiwada  88

Dihraji Malla  97

Dipesh Dewan  99

Shahedul Huq Khan  102

CONCLUSIONS REGARDING THE STUDENT VISAS  103

NEELA BADLU  107

CHARACTER WITNESS STATEMENTS  109

Tribunal’s Comments on Referees  111

CONCLUSIONS  112

DECISION  123

APPENDICES  125

Disputed Breaches concerning Rupak Saha  125

Disputed Breaches concerning Mohammad Khan  126

Disputed Breaches concerning Goutam Paul  127

Disputed Breaches concerning Dipesh Dewan  128

Other Alleged Breaches concerning John Saha  132

Disputed Breaches concerning S H Khan  132

Disputed Breaches concerning Malla  137

Disputed Breaches concerning Alam  140

Disputed Breaches concerning Khatiwada  143

RELEVANT CLAUSES OF THE CODES OF CONDUCT   147

A H M S Alam  147

Kushal Khatiwada  153

Diraji Malla  163

Dipesh Dewan  169

Shahedul Huq Khan  176

Mohammad Khan  179

Goutam Paul  182

Abdul Hakim  184

Rupak Saha  184

catchwords

Migration agent – registration –– cancellation of registration – refusal to register Applicant as a migration agent – Applicant failed to comply with designated clauses of the relevant Codes of Conduct for migration agents – certain breaches admitted -  whether such failure is sufficient to warrant cancellation of registration – Applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance - decisions affirmed.

legislation

Migration Act 1958 – ss 4, 290, 303, 314

Migration Agents Regulations 1998 – Schedule 2 Codes of Conduct

Legal Profession Act (NSW) 1987 – s 48E

Criminal Code Act 1995

case law

Briginshaw v Briginshaw (1938) 60 CLR 336

Smith v New South Wales Bar Association (No 2) (1992) 108 ALR 55

Hanna v Migration Agents Registration Authority (1999) 94 FCR 358

Hartnett v  Migration Agents Registration Authority [2004] FCAFC 269

Badlu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 608

Cunliffe and Anor v Commonwealth of Australia (1994)182 CLR 272

Peng v Department of Immigration and Multicultural Affairs  (AATA 12, 19 January 1998)

Lachmaiya & Department of Immigration and Ethnic Affairs (1994) 19 AAR 148

Hughes and Vale Pty Ltd v The State of New South Wales (No2) (1955) 93 CLR 127

Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321

Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 34 ALD 324

Re Lilienthal and Migration Agents Registration Authority (2001) 66 ALD 249

Lilienthal v Migration Agents Registration Authority [2002] FCA 93

Re Hakaoro and Minister for Immigration and Multicultural Affairs(AAT 12768, 2 April 1998)

Fox and Minister for Immigration [2004] AATA 195

REASONS FOR DECISION

24 March 2005 Ms G Ettinger – Senior Member

BACKGROUND

1.       The matters before the Administrative Appeals Tribunal (“the Tribunal”) were the applications by Mr Boni Amin, for review of decisions of the Migration Agents Registration Authority (“MARA”).

Matter N2003/1590 related to the refusal by MARA dated 3 October 2003, to accede to Mr Boni Amin’s application for repeat registration as a migration agent. The Complaints in this matter related to breaches of the relevant Migration Agents Codes of Conduct (“Codes of Conduct”) in relation to immigration matters of Mr Mohammad Khan, Mr Goutam Paul, Mr John Saha and Mr Rupak Saha. MARA held that Mr Amin had breached various clauses of the Code of Conduct in relation to the abovementioned Complainants, and decided that it was satisfied that Mr Amin was not a person of integrity and/or not a fit and proper person to give immigration assistance pursuant to section 290 of the Migration Act 1958 (“Migration Act”).

Matter N2004/193 related to the application of Mr Amin appealing against the decision of MARA dated 16 February 2004 in which it determined to cancel his registration and remove his name from the Register of migration agents, as it was satisfied pursuant to section 303(h) of the Act that Mr Amin had not complied with the Codes of Conduct prescribed under section 314 of the Act. MARA was further satisfied that Mr Amin is, pursuant to section 303(f) of the Act, not a person of integrity and is otherwise not a fit and proper person to give immigration assistance.

Matter N2004/596 related to the application of Mr Amin appealing against the decision of MARA dated 17 May 2004 to refuse his application for registration as a migration agent.

2.       Mr C Colborne of counsel who appeared for Mr Amin, and Ms J Gleeson of the Australian Government Solicitor, who appeared for the Respondent, MARA, agreed that the issues in Matter N2004/596 were substantially the same as the issues in Matter 2004/193.

3.       Accordingly, I have dealt in these Reasons for Decision, in detail, with Matters N2003/1590 and N2004/193, and have accepted that what applies in the latter applies equally for Matter N2004/596.

ISSUES FOR DETERMINATION

4.       The issues for determination before me were the appeals by Mr Amin against the decisions of MARA:

·     cancelling Mr Amin’s registration as a migration agent;

·     refusing his repeat registration; and

·     MARA’s findings that Mr Amin is not a person of integrity, or is otherwise not a fit and proper person to give immigration assistance.

5.       The main issues arose in Matter N2003/1590, and two further Matters, N2004/596 and N2004/193. As Mr Colborne and Ms Gleeson agreed the issues in Matter N2004/596 were substantially the same as the issues in Matter 2004/193, evidence was led mainly in relation to the latter, and submissions related similarly to Matter 2004/193.

6.       In making the correct and preferable decision regarding whether Mr Amin is a fit and proper person and a person of integrity, fit to be registered as a migration agent, I had to decide: 

·     Whether the Applicant failed to comply with designated clauses of the relevant Codes of Conduct for migration agents, made pursuant to section 314(1) of the Act, prescribed by the Migration Agents Regulations 1988, as they applied from time to time;

·     If the Applicant did so fail, (noting that certain breaches, a list of which is published herein, were admitted), was such failure sufficient to warrant cancellation of the Applicant’s registration by MARA as a migration agent and removal of his name from the register in a decision dated 16 February 2004, (Matter 2004/193), and refusal to grant re-registration in decision Matter 2004/596 dated 17 May 2004, and Matter 2003/1590 dated 3 October 2003;

·     whether the Applicant is not a person of integrity, or is otherwise not a fit and proper person to give immigration assistance pursuant to section 290 of the Act.

7.       The parties produced a list of breaches of the Codes of Conduct which Mr Amin admitted, others which were in dispute, and other documentation which I am mindful was difficult to compile. I am indebted to Mr Colborne and Ms Gleeson for their cooperative work in this matter.         

THE OBJECT OF THE ACT AND THE CODE

8.       The object of the Migration Act 1958 is stated in section 4 as follows: 

"(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2) To advance its object, this Act provides for Visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

(3) To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.

(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act."

9.       The Codes of Conduct which apply from time to time are made pursuant to section 314 of the Act.

“314 Code of Conduct for migration agents

(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.”

10.     The aims and object of the Code are as follows:

"1.10 The aims of the Code are:

(a) to establish a proper standard for the conduct of business as a registered migration agent;

(b) to set out the minimum attributes and abilities that a person must demonstrate to perform as a registered migration agent under the Code, including:

(i)        being of good character;

(ii) knowing the provisions of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, in sufficient depth to offer sound and comprehensive advice to a client, including advice on completing and lodging application forms;Migration Institute of Australia Li(ABN

(iii) completing continuing professional development as required by the Migration Agents Regulations 1998;

(iv)      being able to perform diligently and honestly;

(v)       being able and willing to deal fairly with clients;

(vi) having enough knowledge of business procedure to conduct business as a registered migration agent, including record keeping and file management;

(vii)      properly managing and maintaining client records;

(c) to set out the duties of a registered migration agent to a client, an employee of the agent, and the Commonwealth and its agencies;

(d) to set out requirements for relations between registered migration agents;

(e) to establish procedures for setting and charging fees by registered migration agents;

(f)        to establish a standard for a prudent system of office administration;

(g)       to require a registered migration agent to be accountable to the client;

(h) to help resolve disputes between a registered migration agent and a client.”

11. Pursuant to section 280 of the Act, a person who is not a registered migration agent must not give immigration assistance.

“SECT 280

Restrictions on giving of immigration assistance

(1) Subject to this section, a person who is not a registered migration agent must not give immigration assistance.”

12. MARA held that Mr Amin breached section 48E of the Legal Profession Act (NSW) 1987 (“the Legal Profession Act”), in that he did general legal work. He admitted that only in relation to Mr Khan. As relevant section 48E states that:

“(1) In this section:

“fee” includes any form of, and any expectation of, a fee, gain or reward.

“general legal work” means the work involved in drawing, filling up or preparing an instrument or other document:

(a)       is a will or other testamentary instrument, or

(b)creates, regulates or affects rights between parties (or purposes to do so), or

(c)affects real or personal property, or

…”

STANDARD OF PROOF

13.     Mr Colborne submitted that the standard of proof in this matter, was that decided in Briginshaw v Briginshaw (1938) 60 CLR 336. He submitted that the Tribunal was obliged to be "reasonably satisfied" that any allegation against Mr Amin had to be made out before it could find against him. He cited the following passage from the judgment of Dixon J in Briginshaw (supra) as authority for the correct approach to be adopted.

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.”

14.     Ms Gleeson agreed with the submissions regarding Briginshaw (supra), and I am satisfied that the standard as discussed in Briginshaw (supra) is the appropriate civil standard when considering breaches of the Act and Codes of Conduct as alleged.

15.     Mr Colborne submitted that Mr Amin was also relying on Smith v New South Wales Bar Association (No 2) (1992) 108 ALR 55, submitting in reliance on that case, that merely because a person’s evidence is rejected, does not provide grounds for finding they have lied. He added that: “… merely because there is conflict of evidence on oath, the fact that you prefer one to the other, that alone could not permit you to find that the one who you had rejected had lied.

16.     I am mindful of Mr Colborne’s submissions, which I take into account in deciding this case. I am also mindful on a rereading of Smith v New South Wales Bar Association (supra), that the finding in that case that the appellant had lied, and that the order to strike him off the roll of barristers was found to be flawed, was related to the issue of procedural fairness. The reason for this was that Mr Smith had not been given the opportunity of being heard as to the allegation that he had deliberately lied, and as to whether the adverse finding should be made. 

17.     I am satisfied, however, in Mr Amin’s case, that he was given every opportunity by MARA, and by this Tribunal, to reply to all allegations and findings, both in writing and orally. I refer in particular to the extensive interviews with Mr Ian Robinson Deputy Principal Member of the Conduct Advisory Panel of MARA which form part of the T-documents, the oral evidence Mr Amin gave at the Tribunal, the transcript of 20 September 2004 at pages 81 – 84, and the extensive written submissions and schedules before me. I am satisfied there were no issues of procedural fairness in relation to the AAT Hearing and decision making. 

18. MARA has however also held that Mr Amin’s actions provided prima facie evidence of offences under section 137.1 and/or 137.2 of the Criminal CodeAct 1995 (“Criminal Code”). I do not consider it necessary to make any findings as to the Criminal Code, and shall confine my findings to matters arising out of the Migration Act and Codes of Conduct. I am mindful also Mr Amin admitted that he gave legal assistance to Mr Mohammad Khan, in the Federal Court, and accordingly admitted being in breach of section 48E of the Legal Profession Act. 

THE COMPLAINTS

19.     In its decision of 3 October 2003, MARA, (Matter N2003/1590), decided to refuse Mr Amin’s application for repeat registration based on its findings in relation to complaints regarding immigration assistance provided for Messrs Mohammed Khan, Goutam Paul, John Saha, and Rupak Saha.

20.     The decision dated 16 February 2004 by MARA (Matter N2004/193), determined to cancel the Agent’s registration, and to remove his name from the Register kept by the Authority. The relevant breaches of the Code of Conduct by the Applicant as found by MARA, are discussed in the paragraphs below. The relevant clauses of the Code of Conduct as they applied from time to time are in the Appendices to the Decision.

21.     The Complaints which resulted in Mr Amin having his registration as a migration agent cancelled, and repeat registration refused, were a combination of complaints arising from immigration assistance for: 

·     Mr Mohammad Khan

·     Mr Goutam Paul

·     Mr John Saha

·     Mr Rupak Saha

·     Mr Abdul Hakim

·     Mrs Neela Badlu

22.     The following Student Visa applications were also dealt with by MARA. When referring  to them as a group, I have referred to them as “the Students”.

·     Mr Dhiraji Malla (“Malla”)

·     Mr Dipesh Dewan (“Dewan”)

·     Mr Shahedul Huq Khan (“SH Khan”)

·     Mr Ahm Shamiul Alam (“Alam”)

·     Mr Kushal Khatiwada (“Khatiwada”)

EVIDENCE BEFORE THE TRIBUNAL

23. The documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), were six volumes of T-documents. The parties each tendered additional written material marked as exhibits as follows:

ITEM	DATE	EXHIBIT NUMBER
Statement of Boni Amin with Annexures	28 June 2004	Exhibit A1
Statement of Boni Ami with Annexures	20 September 2004	Exhibit A2
3 Cash Receipt books with 9 yellow tabs	Various	Exhibit A3
Copy of invitation card to christening ceremony	Exhibit A4
Copy of Wedding Invitation – Goutam Paul	Exhibit A5
Statement of Mohammed I. Uddin	11 May 2004	Exhibit A6
Document headed “Summary of MARA's Allegations” prepared by C Colborne	Exhibit A7
Statement of Mark Robinson, barrister	30 April 2004	Exhibit A8
Statement of Arabinda Das	11 May 2004	Exhibit A9
Statement of Anne Snape	5 May 2004	Exhibit A10
Statement of Philippa Martin	7 May 2004	Exhibit A11
Statement of Shamiul Alam	7 May 2004	Exhibit A12
Reports of Dr M.A. Hossain and X-ray report of Dr H Scott	various	Exhibit A13
Applicant’s Additional Statement	18 October 2004	Exhibit A14
Statutory Declaration of G K Paul	16 May 1997	Exhibit R1
Submission of Abdul Hakim	17 June 1996	Exhibit R2
T documents  Volume 1	Exhibit R3
T documents  Volume 2	Exhibit R4
T documents  Volume 3	Exhibit R5
T documents  Volume 4	Exhibit R6
T documents  Volume 5	Exhibit R7
T documents  Volume 6	Exhibit R8
Bundle of documents (Application for Protection Visa 866) Re: GK Paul	20 November 1997	Exhibit R9

24.     Mr Amin told me that he is a law graduate from Bangladesh and described himself as an interpreter, translator and migration agent.  He said that he was first registered as a migration agent on 6 March 1998, and had previously been working as a translator and interpreter in the Bengali and Hindi languages (and sometimes Urdu for Pakistani people). He said that he had been doing translation and interpreting work since 1992, commencing approximately three months after  his arrival in Australia. Mr Amin said that he became an accredited interpreter in 1995.  He became an Australian citizen in 1994.

25.     Mr Amin told me that he suffered a problem in the Bangladeshi community from the middle 2001, because he reported a group of people who were engaged in human trafficking from Bangladesh to Australia, to the Federal Immigration Investigation Section. He said that it had resulted in him receiving threats and experiencing other difficulties.

26.     Mr Amin’s Statements with Annexures, dated 25 June 2004 and 20 September 2004 were Exhibits A1 and A2 before the Tribunal.  Exhibit A1 was a Statement of Mr Amin, and his Statement of Facts and Contentions dated 25 June 2004, with Annexures. In Exhibit A1, Mr Amin’s Statement dealt with replies to the reviewable decision in which he had been found to have breached various sections of the Act, and Codes of Conduct as they applied from time to time. In Exhibit A2, Mr Amin dealt with issues relating to Mr Mohammad Khan, and in Exhibit A14, with the Complaint relating to Mr Rupak Saha. 

27.     There were documents filed, by agreement, after close of the Hearing, including a copy of a Declaration dated 10 May 1997 by Mr Goutam Paul, which is reproduced in the paragraphs below. With my concurrence, the Respondent’s submissions in reply to the Applicant’s submissions regarding Hanna v Migration Agents Registration Authority (1999) 94 FCR 358 were also lodged with the Tribunal after the Hearing.

28.     Ms Gleeson drew to my attention interviews held between Mr Amin and Mr Ian Robinson, Deputy Principal Member of the Conduct Advisory Panel of MARA, which are at T8, T9, T13, T14, T15 and T16. I noted that they were conducted in the presence of Mrs Amin.

29.     Each and every breach was not raised in oral evidence at the Hearing before me, and in coming to a decision, I have also placed reliance on the written material before me, including the interviews between Mr Amin and Mr Robinson.  I have not found it necessary or possible to deal with each breach of the Code of Conduct found by MARA.

30.     Mr Arabinda Das who was summonsed to give evidence, did not appear. The Affidavit of Service of Summons to Give Evidence, served on Mr Das, dated 20 September 2004 was marked MFI-1. His Statement dated 11 May 2004 was before the Tribunal as Exhibit A9.  Mr Colborne told me that Mr Das was a friend of Mr Paul, and it was he who originally introduced Paul to Mr Amin. Mr Colborne said that on 14 November 2001, Mr Das became guarantor for Mr Paul for $20,000 to secure Mr Paul’s release from immigration detention, which would be forfeited if Mr Paul breached his Visa conditions. Mr Colborne drew the inference that being a close friend of Mr Paul may have explained his non-attendance at the Tribunal.  Due to his non-attendance, Mr Das’ evidence has been given little weight.

31.     I note for the sake of completeness that on the second day of the Hearing, Tribunal staff alerted me to a disturbance shortly before the commencement of the proceedings. I was told that Mr Khan and Mr Paul were upset, and that words had been exchanged in Bengali between them, and possibly, Mr Amin. Mr Amin told me: “… nothing has happened. I’m sorry to tell you it is a fabrication …” (Transcript 21.9.04, page 90).  Mr Khan said that Mr Amin had addressed him saying: “… prostitute baby, I will kick your bum up when I finish this case …”.   I arranged for each witness to leave the building immediately after giving evidence, and for building security to attend outside the Hearing room.

32.     The Tribunal was assisted by Mr K Haque interpreter in the Bengali language in connection with two of the witnesses. Mr Amin gave oral evidence, as well as Mr Mohammad Khan, Mr Goutam Paul, Mr Mohammed Uddin, Ms Claire Brooks, wife of Mr Mohammad Khan, and Mr M Robinson, barrister. 

33.     Before dealing with Mr Amin’s appeal against the breaches as found by MARA, there were certain legal issues I had to consider. One related to whether the writing of letters to the Minister seeking his discretion to grant Visas pursuant to section 351 of the Act on behalf of Messrs Alam, Khatiwada, Malla, SH Khan, and Dewan (“the Students”), constituted the giving of immigration assistance, and/or whether the writing of such letters was subject to regulation through the Codes of Conduct as they applied from time to time.  I have dealt with this in the paragraphs which follow.

MR AMIN – WRITING TO THE MINISTER TO EXERCISE HIS DISCRETION PURSUANT TO SECTION 351 ON BEHALF OF THE STUDENTS

34.     The issue of what comprises immigration assistance, and whether Mr Amin breached the Act and/or clauses of the Code of Conduct in writing to the Minister to request that he exercise his discretion pursuant to section 351 of the Act in relation to Visas for the Students, was raised by the parties. The representations made to the Minister were in Exhibit R7

35.     As relevant section 351 of the Act states as follows:

“Minister may substitute more favourable decision

(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

(2) In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.

(3)       The power under subsection (1) may only be exercised by the Minister personally.

…”

36.     MARA held that Mr Amin had breached various clauses of the Codes of Conduct when he wrote letters to the Minister seeking the exercise of a discretion in favour of his clients.

37.     I noted that it was the “marked similarities” between the five applications to the Minister on behalf of the Students which led to the complaint by the Department to MARA. Mr Amin had written to the Minister that in each case, each of the Students had advised him that it would be like committing suicide for him to return home without finishing his studies in Australia. Mr Amin’s acknowledged similarities between the letters to the Minister, but his explanation was that he had a standard set of questions, and asked those of each Student, including a question regarding the consequences of returning home without having completed his studies. Mr Amin submitted that each of the five Students was in much the same position as the others in regard to age, cultural issues, and pressures vis-à-vis his family, hence the similarities. He denied that he had cut and pasted.  I noted however, that Mr Colborne when making submissions on behalf of Mr Amin, accepted that there was a process of cutting and pasting involved.  

38.      I found Mr Amin’s statement in his oral evidence that the Minister’s letters of rejection were all very similar as well, just with the name of the Applicant changed,  to be gratuitous, and also irrelevant to the issues before me. 

39.     I was mindful of Ms Gleeson’s question to Mr Amin asking if he was aware that his credibility was in doubt because of the similarity of those letters. Mr Amin acknowledged that he knew that.

40.     I was satisfied from the evidence, including the fact that at least two nationalities were involved (Mr Khatiwada is Nepalese and Mr Alam, Bangladeshi), that given the close proximity in dates between the letters, that the great similarities between those letters were more likely than not, to not have been coincidences. I was also satisfied to the requisite standard that they did not arise simply out of the so-called standard set of questions Mr Amin said he asked each Student, but that Mr Amin had substantial input into what went into those letters. He had cut and pasted from one to the other, including even typographical and grammatical errors. In Mr SH Khan’s application (Exhibit R7/1971), for example, Mr Amin had written describing him as a “promising Bangladeshi youth” , concluding with “… your apathy toward applicant’s appeal would not only add to one more number in Nepal’s unemployment arena …”.  Cutting and pasting itself is not conclusive of any wrong doing, but the content of the letters was so similar that it was unlikely they were letters written by the Students rather than with, at best, embellished input from Mr Amin. I refer also to the evidence of Mr Amin that he wrote the letters in the manner he knew would appeal to the Minister.

41.     I was mindful also that the Students on whose behalf the letters were written had hopeless cases in that they did not meet the threshold criteria for the grant of visas (as discussed further on in these reasons for decision), and I have found that the writing of the letters was, accordingly, an abuse of the immigration system.

42.     Ms Gleeson put to Mr Amin that in each of the five cases he was buying time for the clients to stay in Australia. Mr Amin denied that, although in one instance in relation to Mr Khatiwada, when Ms Gleeson asked, “I suggest to you that this application was designed to buy time for Mr Khatiwada to stay in Australia”, Mr Amin answered: “That could be Mr Khatiwada’s decision.” 

43.     Were these letters then the giving of immigration assistance? In that connection, I moved to consider section 276(1)(c) of the Act. As relevant section 276 of the Act follows:

“Immigration assistance

276(1) For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a Visa applicant or cancellation review applicant by:

(a) preparing, or helping to prepare, the Visa application or cancellation review application; or

(b)advising the Visa applicant or cancellation review applicant about the Visa application or cancellation review application; or

(c) preparing for proceedings before a court or review authority in relation to the Visa application or cancellation review application; or

(d)representing the Visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the Visa application or cancellation review application.

(2) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:

(a) preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a Visa applicant for the purposes of the regulations; or

(b) advising the other person about nominating or sponsoring a Visa applicant for the purposes of the regulations; or

(c) representing the other person in proceedings before a court or review authority that relate to the Visa for which the other person was nominating or sponsoring a Visa applicant (or seeking to nominate or sponsor a Visa applicant) for the purposes of the regulations.

(2A) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:

(a) preparing, or helping to prepare, a request to the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J in respect of a decision (whether or not the decision relates to the other person); or

(b)       advising the other person about making such a request.

(3) Despite subsections (1), (2) and (2A), a person does not give immigration assistance if he or she merely:

(a) does clerical work to prepare (or help prepare) an application or other document; or

(b) provides translation or interpretation services to help prepare an application or other document; or

(c)       advises another person that the other person must apply for a Visa; or

(d) passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.

(4) A person also does not give immigration assistance in the circumstances prescribed by the regulations.”

44.     Mr Colborne, referring to the Student letters to the Minister, referred me to the cases of Hanna v Migration Agents Registration Authority (1999) 94 FCR 358 and Hartnett v Migration Agents Registration Authority [2004] FCAFC 269. He submitted, pursuant to those cases, that a strict interpretation of the legislation was required. It was not in dispute that the Act had been amended as at 1 July 2004 to specifically include correspondence such as that sent by Mr Amin on behalf of the Students to the Minister, as immigration assistance. He emphasised however, that this had only been effective since the date of the amendment, and, as the Student applications were made well before that date, the amendment did not apply in Mr Amin’s situation. Mr Colborne submitted therefore, that in writing to the Minister to request that he exercise his discretion pursuant to section 351 of the Act in favour of the Students, Mr Amin was not giving immigration assistance.

45.     Mr Colborne submitted that contrary to the submissions of the Respondent, referring to section 4: “A broad view of the scope of the Code of Conduct would promote the object of the Act”, (Respondent’s written submissions, 2 November 2004, paragraph 2.21), the contrary view was taken by the Federal Court in Hanna and in Hartnett (supra). He submitted that the Applicant was relying on the abovenamed cases, and submitted that pursuant to those cases it was appropriate to take a narrow view of the Migration Act, Regulations, and Code of Conduct.

46.     Mr Colborne raised this argument in particular in reply to the issue raised by the Respondent regarding the application to the Minister for an exercise of his discretion in relation to Mr Alam. Ms Gleeson had submitted at paragraphs 3.11 to 3.12 of the Respondent’s written submissions of 2 November 2004, that the application to the Minister had made no mention that the previous application had been refused for failing to meet the objective criteria for the Visa, which she submitted was critical in relation to the questions of public interest and the exercise of the discretion. Accordingly, Ms Gleeson submitted, Mr Amin had misled the Minister in terms of section 487 of the Act (as it then was). 

47.     Mr Colborne on the other hand, submitted that the earlier refusal decision had been taken by the Department of which the Minister is head, and he must be presumed to have known the reasons for the refusal. The fact that his attention was not expressly drawn to the reasons for the refusal, could not, Mr Colborne submitted, be construed as having been misleading to the Minister.

48.     Ms Gleeson submitted that contrary to the submission of the Applicant, there was nothing in Hanna (supra), which constrained a decision maker to take a narrow view of the Migration Act, Regulations, or Code of Conduct. Ms Gleeson argued that the Respondent did not dispute the correctness of Hanna (supra), but contended that the Code of Conduct was clear and unambiguous. It regulates the conduct of migration agents, and the conduct of their business as migration agents in dealing with the coming into, and presence in Australia, of non-citizens. Ms Gleeson also submitted that a broad view of the scope of the Code of Conduct would promote the object of the Act.

49.     I was satisfied that any question as to whether applying for Ministerial discretion constitutes the giving of immigration assistance, has been clarified since the introduction of the amendment, and inclusion of section 276(2A) to the Act, which took effect from 1 July 2004. That amendment specifies that “a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by: preparing, or helping to prepare, a request to the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J in respect of a decision (whether or not the decision relates to the other person); or advising the other person about making such a request.”  Applying to the Minister to exercise his or her discretion pursuant to section 351 of the Act is clearly the giving of immigration assistance from 1 July 2004.  I have noted however that the applications made on behalf of the Students all predated the amendment. 

50.     In coming to a decision, I was mindful firstly that a person who is not a registered migration agent must not give immigration assistance, (section 280 of the Act), and was satisfied that Mr Amin was registered by the time he applied to the Minister on behalf of the Students. I noted further, that a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a Visa applicant or cancellation review applicant by preparing for proceedings before a court or review authority in relation to the Visa application or cancellation review application (section 276 of the Act).  I have noted the principles in Hanna and Hartnett (supra), and found that in writing to the Minister on behalf of the Students, whilst Mr Amin no doubt used his knowledge of, and experience in migration procedure, he was, not assisting a Visa applicant or cancellation review applicant by preparing for proceedings before a court or review authority in relation to the Visa application or cancellation review application pursuant to section 276 of the Act at the relevant time. Accordingly, I was satisfied that Mr Amin was not giving immigration assistance when he applied to the Minister on behalf of the Students.

51.     However, I have taken into account also the argument regarding whether the act of writing to the Minister on behalf of the Students was covered by the Code of Conduct then in force.

52.     I noted that Mr Colborne referred in his oral closing submissions to clause 2.2 of the Code of Conduct which regulates business carried out by migration agents which is not immigration assistance, and submitted that clause 2.2 would not be required if other work was caught by the Code which would then specify (as it does), getting written instructions, giving an estimate of costs and so on. He submitted that it was implicit in clause 2.2 that the Code of Conduct only applies to immigration assistance, with clause 2.2. taking it beyond that, submitting that if the Code of Conduct applied to non immigration assistance work, clause 2.2 would not be necessary.

53.     I have also noted the argument put by Ms Gleeson at paragraphs 2.1 to 2.2.5. of her written submissions of 2 November 2004, as reproduced below:

“The respondent contends that the Code of Conduct covers all work done by a migration agent in the course of his business as a migration agent, whether or not the work falls within the meaning of immigration assistance.  The following matters support this contention:

(i)The object of the Migration Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: s. 4. A broad view of the scope of the Code would promote the object of the Act;

(ii)S. 314, which provides for the regulations to prescribe a code of conduct for migration agents does not restrict the scope of the code to conduct in relation to immigration assistance within the meaning of s. 276;

(iii)The Code is not expressed to be confined to conduct in relation to immigration assistance within the meaning of s. 276.  Clause 1.10(a) of the Code describes one of its aims as being “to establish a proper standard for the conduct of business as a migration agent.”  There is no textual basis in the Act or the Code for interpreting the concept of “business as a migration agent” to mean only the provision of “immigration assistance”.  If this had been the intention, the draftsman could have identified the Code’s aim as being to establish a proper standards in relation to immigration assistance.

(iv)The purpose of the definition of “immigration assistance” in s. 276 is to make it an offence for a person to provide immigration assistance without the necessary registration: see s. 280.

(v)Clause 2.2 specifically regulates migration agents in relation to conduct which does not amount to immigration assistance.”

54.     I was mindful also of clause 1.1 of the Code of Conduct which states that the Code is intended to regulate the conduct of migration agents, and that clause 1.10 states the aims or objects of the Code which follow as relevant.

"1.10 The aims of the Code are:

(a) to establish a proper standard for the conduct of business as a registered migration agent;

…”

55.     In coming to a decision, I have noted the submissions of the parties, and have considered what the work of a migration agent is, and what the Act regulates, namely the provision of immigration assistance which a person can only lawfully give if registered as a migration agent. I have also noted clause 1.1 and 1.10 of the Code of Conduct which state that the Code is intended to regulate the conduct of migration agents, and establish a proper standard for the conduct of business as a registered migration agent. The concept of “business as a migration agent” refers then to the giving of immigration assistance, which is of course the business of a registered migration agent, and which is regulated by the Code of Conduct as it applies from time to time. Hence business which is not immigration assistance is not regulated by the Code of Conduct, and the writing of letters to the Minister, which was not included in the giving of immigration assistance before 1 July 2004, cannot therefore be extended to be included in consideration of breaches of any clauses of the Code of Conduct.

56.     In addition, clause 2.17 of the Code of Conduct refers to an “application” under the Migration Act or the Migration Regulations. Section 276 refers to “visa application” and “cancellation review application”. The term “application”, is also used in various other sections of the Act (sections 347, 412, 477 and 486A). I have noted also that section 282 refers to “representations” to the Minister. I do not believe that the writing of the letters to the Minister on behalf of the Students was (in reliance on Hartnett (supra)), either the making of applications or representations pursuant to the Act or Code of Conduct.

57.     I accept that the regulation of migration agents by the inclusion of clause 2.2 of the Code of Conduct which essentially binds agents to informing their clients in writing of financial benefit they may derive from advice of a “non-migration” nature, makes it clear that migration agents are bound by the Code when giving immigration assistance, but does not extend adherence to the Code for work of a non-migration nature except to bind the agent to inform the client in writing regarding any financial benefit they may derive from that work.

58.     I accept that the Code of Conduct regulates the conduct of migration agents, and the conduct of their business as migration agents, which is the giving of immigration assistance. In that regard I have also taken into account the principles in the cases of Hanna (supra) and Hartnett (supra). 

59.     However, although Mr Amin’s requests to the Minister on behalf of the Students is not regulated through clause 2.17 or other clauses of the Code of Conduct, his conduct in relation to the making of those requests is relevant when considering whether I am satisfied that pursuant to sections 303(f), and 290(1)(a) and (b) of the Act, he is not a person of integrity, or otherwise not a fit and proper person to give immigration assistance. As discussed above, I was satisfied that he abused the immigration system by the making embellished or indeed fabricated requests to the Minister on behalf of students in hopeless situations. I have discussed that in the paragraphs which follow, and  have taken that conduct into account in coming to a final decision. 

60.     It follows then that the breaches of the Code of Conduct listed below do not apply.

attachment c – schedule of breaches admitted because the code of conduct applies to letters seeking ministerial discretion

Code and other breach refs MARA decision ref Admission ref

Alam

1	6.1(c)(i)	2.3.1.1.9	ASFC par 85
2	5.2(b)	2.3.1.1.9	ASFC par 86

Khatiwada

3	5.2(b)	2.3.1.2.37	ASFC par 168
4	5.2(c)	2.3.1.2.37	ASFC par 168
5	6.1(c)(i)	2.3.1.2.37	ASFC par 168

Malla

6	5.2(b)	2.3.1.3.19	ASFC par 219
7	5.2(c)	2.3.1.3.19	ASFC par 219
8	6.1(c)(i)	2.3.1.3.19	ASFC par 219

Dewan

9	5.2(b)	2.3.1.4.27	ASFC par 266
10	5.2(c)	2.3.1.4.27	ASFC par 266

SH Khan

11	5.2(b)	2.3.1.5.4	ASFC par 283
12	5.2(c)	2.3.1.5.4	ASFC par 283

61.     I then moved to consider issues of credit before addressing the specific Complaints.

ISSUES OF CREDIT

62.     I am mindful of the role of migration agents in our community, and note that the Migration Agents Registration scheme administered by the Migration Agents Registration Authority is one that:

"seeks to achieve that object [effective administration of the Act] by protecting aliens from incompetent and unscrupulous advisers through the introduction of a regulatory regime which is designed to ensure that those who advise and represent aliens are competent and are persons of integrity."

(Cunliffe and Anor v Commonwealth of Australia (1994) CLR 272 at 294).

63.     To ensure effective and proper administration of the Act MARA is entitled to be able to rely upon the honesty of those registered as migration agents. I am mindful also that section 314 of the Act provides that the Regulations may prescribe a Code of Conduct for migration agents. I am mindful also that section 290 of the Act is a mandatory section which states that an applicant must not be registered as a migration agent if MARA is satisfied that that person is not a fit and proper person to give immigration assistance, or the person is not a person of integrity, and that when considering this, MARA, and this Tribunal standing in the shoes of the Respondent, must take into account the extent of the Applicant’s knowledge of migration procedure as well as any other matter relevant to the Applicant’s fitness to give immigration assistance.

64.     I am mindful that "integrity" has been held to mean "soundness of moral principle and character, uprightness; honesty" (Peng v Department of Immigration and Multicultural Affairs [1998] (AATA 12, 19 January 1998)).

65.     In Peng (supra) at paragraph 26 Deputy President McMahon (as he then was), stated:

"The use of the word "assistance," in my view, extends not only to help given to would-be applicants, but also help given to the Department in the administration of immigration programs. In that regard, frankness and truth are of primary importance... If these standards are important in relation to individual applications, how much more important are they in relation to those who will, in the course of their practice, make many representations to the Department on behalf of those seeking to deal with immigration matters. The requirement to display integrity and fitness in order to qualify for registration as a migration agent [and here read remain so registered], has an element of mutuality. The need for probity is not only for the protection of the clients, but also for the open, honest and efficient administration of immigration matters in which the agent is involved."

66.     I have agreed with, and relied on the statements made by Deputy President McMahon in Peng (supra).

67.     In the paragraphs above, I have acknowledged the standards of proof applicable, as expressed in Briginshaw v Briginshaw (supra), and Smith v New South Wales Bar Association (supra), and applied them in deciding this matter.

68.     I have noted Ms Gleeson’s submissions regarding Mr Amin’s credit, and the inconsistencies which she has drawn to my attention in regard to his evidence. She has also referred me to the six lengthy interviews held between Mr Amin and Mr Robinson of MARA, which appear in the T-documents.

69.     When asked in cross-examination whether he had been truthful in replying to questions in interviews with Mr Robinson (T8, T9, T13, T14, T15, T16), Mr Amin replied: “I tried to be truthful”, adding when asked further what he meant by “tried”, “my nature is to be truthful, and I tried to be truthful and under pressure, I could not memorise a lot of things… under pressure my memory was not accurate.”  (Transcript 20.9.04, page 17)

70.     In the paragraphs below, I have dealt with issues which arose during the Hearing in relation to the assessment of Mr Amin’s credit and have made findings about it.

when mr amin first understood immigration assistance could only be provided by a registered migration agent – issues of credit

71. MARA held that Mr Amin gave immigration assistance in breach of section 280(1) of the Act when not registered as a migration agent. Mr Amin’s evidence was that he was a translator and interpreter and did not give immigration assistance before he was registered as a migration agent on 6 March 1998.

72. I have noted that section 280 of the Act specifies that a person who is not a registered migration agent must not give immigration assistance. The relevant sections of the Act follow:

“Section 280

Restrictions on giving immigration assistance

(1)Subject to this section, a person who is not a registered migration agent must not give immigration assistance.”       

73.     In that regard, Ms Gleeson referred to Mr Amin’s evidence regarding when he first realised that there was a rule against giving immigration assistance without being registered. Ms Gleeson submitted Mr Amin told the Tribunal that he knew about the rule sometime between 1992 and 6 March 1998, when he became registered as a migration agent. She referred to other evidence Mr Amin gave in which he indicated that he first became aware of not being permitted to give immigration assistance without being registered when he studied to become a migration agent at the end of 1997 or early 1998. I noted the following exchange in cross-examination:

Ms Gleeson: “When did you first come to understand that there was a rule against giving immigration assistance unless you were a registered migration agent?”

Mr Amin: “I knew that a long time before.”

Ms Gleeson: “So you knew that sometime in the period between July 1992 and March 1998?”

Mr Amin: “Probably.”

….

Ms Gleeson: “You said to me that you came to be aware of that fact through the course that you conducted is that right?”

Mr Amin: “Yes, yes.”

Ms Gleeson: “So is it also correct to say that before you conducted that course you were not aware that only registered migration agents could give immigration assistance?”

Mr Amin: “Possibly I was not aware”.

74.     As I was not clear what Mr Amin intended with his answers, I asked:

SM Ettinger: “Mr Amin, when did you actually find out that you couldn’t give immigration assistance without being registered?”

Mr Amin: “What is basically I can remember that was from the knowledge that I achieved in 1997 from IARC course.”

SM Ettinger: “And before that you didn’t know that?”

Mr Amin: “Probably I didn’t know.”

SM Ettinger: “All right. It has changed a bit from before …”

(Transcript 20.9.04, page 21, 22)

75.      As I remarked at the Hearing, Mr Amin’s evidence had changed somewhat during the questioning. He also denied he had given immigration assistance without being registered. That issue is explored further on in these Reasons for Decision when I deal with the individual Complaints. I was not satisfied that Mr Amin answered to the best of his recollection.

76.     There was a good deal of evidence before me regarding Mr Amin’s activities in the period before he was registered as a migration agent, including the evidence of Mr Goutam Paul, who said that he did not know what a solicitor was, but understood Mr Amin was his “lawyer”.  In his Amended Statement of Facts and Contentions, (paragraphs 68  - 77), Mr Amin argued that had he not assisted Messrs Paul, John Saha, and Rupak Saha with their Federal Court applications, essentially they would have been worse off. He conceded at paragraph 74 of the document, that: “On the assumption that ‘preparing for proceedings’ in s 276(1)(c) encompassed the preparation of a Federal Court application then Mr Amin gave the 3 applicants ‘immigration assistance’ in helping them prepare their applications. That is because he went beyond simply translating and doing clerical work.”  However Mr Amin argued that he also referred the clients to various barristers and did not charge a fee, and that his actions were therefore reasonable and appropriate. 

77.     I have found further on in these Reasons for Decision that Mr Amin also wrote and prepared Statements for Messrs Paul and Mohammad Khan for their RRT Hearings, and gave immigration assistance to them before he was registered as a migration agent. In making that finding, I have rejected Mr Amin’s claims that he only translated the Statements, and found that the Declaration he asked each of the abovenamed to sign was not genuine.

78.     From the evidence, I was not satisfied that Mr Amin did not give immigration assistance before he was registered as a migration agent, and that he gave it to Messrs Paul, Mohammad Khan, John Saha and Rupak Saha. (see sections below).

the clients’ declarations – issues of credit

79.     Ms Gleeson drew to my attention the fact that for some time before he became a registered migration agent on 6 March 1998, and when he alleged he was doing translating and interpreting work for them, Mr Amin had his clients sign a “Declaration” to indicate he was not giving them immigration assistance (T-documents Vol 2, page 1049). Ms Gleeson referred to this as the “protesting too much Statutory Declaration”. 

80.     I had before me a “Declaration” in Bengali and in English, dated 16 May 1997, which Mr Amin asked Mr Paul to sign in connection with the preparation of Mr Paul’s Statement in support of his application to the RRT. This indicated that Mr Amin did not advise Mr Paul, and acted only as an interpreter. I noted that the wording was similar, but not identical to other such “Declarations”, given to others of Mr Amin’s clients, (viz Mohammad Khan, and Rupak Saha). The Declarations were longer and went into more detail than the standard interpreters’ declarations. I have reproduced below the “Declaration” Mr Paul was asked to sign, noting that the others were similar, and noting that whilst it was called a Declaration, it was signed but not witnessed.

“ I Goutam K Paul of 17 Euston Road, Hurlstone Park – 2131 (D.O.B. 27/5/61) solemnly declare that Mr Boni Amin is not my adviser and he did not advise me regarding my case or case related matter in any way. As an Interpreter he only interpreted very clearly the every (sic) English words and sentences to me which I did not understand. Moreover, everything he wrote on my Refugee Form on behalf of me is all mine what I said to him. Mr Amin did not write anything from his head or he did not insist me to write or exaggerate anything about my claim. Whatever he wrote on the form or my statement after finishing the writing all he did was to read it to me clearly in my own language. I also declare that whatever I said to him to write in the form or statements are (sic) everything true and none of them are false. At any stage if it is proved as false, I am personally responsible for the translated content signed by me. Mr Amin would not be responsible for that as he only interpreted what I said. I also agree that Mr Amin charged me a fee for his service and gave me a receipt on my payment. As an interpreter I do not and would not have any objection with him.” 

81.     Mr Amin’s oral evidence regarding when exactly he had commenced asking his clients for whom he said he translated material to sign such “Declarations” was very unclear. He said he was not certain, but thought it might have been 1995 or 1996. He said he relied on the Declaration because certain material which his clients wanted translated was written, while other parts were narrated and oral, so that he had no record of the oral information except in translation. It was for that reason he required the Declaration, he said. Mr Amin denied in reply to cross-examination that the Declaration was to protect him in case of a complaint being made that he had given immigration advice, rather than just translated information.

82.     I was not satisfied from the evidence before me that the Declaration was not designed by Mr Amin to avoid complaints that he had given immigration assistance before he was registered. Further on in these Reasons for Decision, I have found that Mr Amin gave immigration assistance at least to Messrs Paul and Mohammad Khan, before he was registered. I refer in the section dealing with Mohammad Khan in the paragraphs which follow, with the 11 page statement written with Mr Amin’s assistance, which Mr Amin turned into a  42 page Statement in preparation for the RRT. The evidence of Mr Khan and Mr Paul which I accepted, was that they was unable to reply to questions from the RRT because neither knew what was in his Statement before the Tribunal. I find that the information in those Statements was fabricated by Mr Amin, and that Khan and Paul were not even properly briefed about what was in their Statements before their Hearings.

similarities in the statements of messrs paul and mondal – issues of credit

83.     Ms Gleeson submitted that the similarities in the statements of Messrs Paul and Mondal, prepared in 1997 for their Refugee Review Tribunal (“RRT”) Hearings, and the evidence Mr Amin gave of Mr Mondal’s statement having been deleted from his hard drive, were less than plausible. Ms Gleeson referred me to paragraphs 13 and 14 of Mr Paul’s statement, and paragraphs 14 and 15 of Mr Mondal’s statement (R8/2472). Ms Gleeson also referred to Exhibit R5/1490, the interview with Mr Robinson in connection with those Statements. She also referred to Exhibit R5/1513, where Mr Robinson had put to Mr Amin:

“How do you explain the identical or otherwise closely similar wording of large portions of Goutam Paul’s Statutory Declaration to that of Edmond Mondal’s which you also prepared for Mr Mondal?”

Mr Amin’s: “As a translator and interpreter I have no comment. Whatever I’m directed by my client I just put that things.”

84.     At page 26 of the Transcript of 20.9.04, Ms Gleeson asked Mr Amin:

“What is your explanation for the similarity between those two statements?”

Mr Amin:  “As I said to the MARA that I was orally given an instruction from Mr Paul in writing, orally, and sometime he along with his companion would bring some electronic media. I said hard copy translation, oral translation.”

Ms Gleeson: “Is that your only explanation for those similarities?”

Mr Amin: “I don’t know why is this similar.”

Ms Gleeson: “So you don’t accept the similarities between the two statements are a reflection of the fact that you were assisting Mr Paul to prepare this Statutory Declaration?”

Mr Amin: “I deny this.”

85.     There was a further questioning of Mr Amin by Ms Gleeson (Transcript 20.9.04, page 28):

Ms Gleeson: “Would you agree that it appears that however Mr Paul’s statement came to be prepared, it must have been based in some way on Mr Mondal’s statement.”

Mr Amin: “I don’t know how it became identical, that’s it.”

86.     I noted that Mr Amin’s explanation for the similarities were that as a translator, similarities between statements were not of concern to him, and as a translator, his duty was simply to translate documents.  When asked at the Hearing: “So that sort of similarity wouldn’t cause you to have concern about whether Mr Paul was telling you something that was genuine”, Mr Amin replied: “I think my job was not to check his genuinity.”  (Transcript 20.9.04, page 29)

87.     I was mindful also that the RRT Member wrote in her decision regarding Mr Paul:

“I am of the view that the statement provided by the applicant in connection with his application for review is similar in so many respects to that provided by the application in N96/12466 [Mr Mondal’s] that it is impossible to dismiss the similarities as coincidental. I do not accept that the applicant wrote out his claims in Bengali and then had them translated without any access to the statement made by the applicant in N96/12466. … However I am of the view the applicant’s action in providing such a statement significantly affects his credibility as a whole, I have nevertheless …”

88.     Ms Gleeson and Mr Amin had a further exchange:

Ms Gleeson: “I suggest to you that your conduct in giving Mr Paul this assistance by effectively copying Mr Mondal’s story in support of the application reflects the fact that you were prepared to put forward or have Mr Paul put forward a dishonest claim for a protection Visa?”

Mr Amin: “I deny just any action of my cause in this regard.”

Ms Gleeson: “In addition to that, I suggest you were unconcerned about Mr Paul and were prepared to disadvantage him by allowing him to put forward a false Statutory Declaration to the RRT.”

Mr Amin: It was not my concern as a translator.”

89.     Notwithstanding Mr Amin’s stated lack of concern regarding whether Mr Paul was disadvantaged at the RRT Hearing because he had a false Statutory Declaration, I was concerned with the veracity of the evidence. I had evidence before me that at the time (1997), Mr Amin and Mr Paul were good friends, and that Mr Paul had stayed at Mr Amin’s house. 

90.     I cautioned Mr Amin:

SM Ettinger: “Just to remind you that you are on oath, so that you know, whatever you said before, whether it was right or not, you actually have to answer what is right now, and what is correct, and what you recall correctly …”

Mr Amin: “Sure, thank you.”

91.     I am satisfied to the requisite standard, and find from the evidence before me, including the interview with Mr Robinson, (T15), Mr Amin’s evidence before me, Mr Paul’s evidence and the other documentation in the T-documents on this issue, that the similarities between the statements of Messrs Paul and Mondal were not coincidences. I make this finding notwithstanding that Mr Amin’s computer was searched by MARA, and that, notwithstanding it had been prepared by Mr Amin some six weeks before that of Mr Paul, no trace of Mr Mondal’s statement was found on the hard disc. This was not conclusive of course in regard to whether it had been there at some point, and been deleted.

92.     I referred to the interview with Mr Mondal by telephone with Mr Robinson, and as he was not called to give evidence, I gave little weight to it.

mr hakim’s origins – issues of credit

93.     Ms Gleeson also submitted that there were issues of credit in relation to Mr Amin’s evidence which he gave with regard to Mr Hakim, when he stated that: “Mr Hakim is not Burmese. Like me, he is a Bangladeshi from Chittagong.” (Exhibit A1, paragraph 172).

94.     I noted the cross-examination of Mr Amin in regard to Mr Hakim’s origins and whether he is Rhuhinga. At the Hearing, Mr Amin said that Mr Hakim “settled in Bangladesh so he has nothing to do with Rhuhinga, Rhuhinga people – those who are fighting against Burmese people – Burmese administration so that particular race is known as Rhuhinga, that is what I believe”.  

95.     This abovequoted statement was compared with a document claimed to have been created by Mr Amin through translation, which Mr Hakim submitted in support of his claim for refugee status (Exhibit R2). In that document, Mr Hakim stated: “Please note that my ethnic background is ‘Rhuhinga’ (the Burmese refugee in Bangladesh), which I by mistake left to answer in the question No:9 in the Form ‘C’.” 

96.     Mr Amin said further in his oral evidence that: “He is Rhuhinga descent … he is a descent of Rhuhinga, he is nothing to do with Rhuhinga who are fighting against Burmese administration.”   

97.     It was clear that there was a conflict of evidence between the information written in paragraph 172 of Mr Amin’s Statement (Exhibit A1) about Mr Hakim’s origins, and Mr Amin’s oral evidence about Mr Hakim’s origins.

98.     There was an exchange between Ms Gleeson and Mr Amin in which she put to him that the claim for Mr Hakim was therefore fraudulent. Mr Amin replied that he did not know the claim was fraudulent, adding: “I can do anything, I can translate whatever you submit”, subsequently modified to: “No, If I know something is false, I don’t do this.” (Transcript 20.9.04, page 36).

99.     Notwithstanding Mr Colborne’s cautions, submitting that scant details of Mr Hakim’s case had been put before the Tribunal, I agreed with Ms Gleeson’s submissions that the evidence Mr Amin gave regarding Mr Hakim cast serious doubts on his credit.  In coming to that conclusion, I was mindful of what had been submitted, with Mr Amin’s assistance, in support of Mr Hakim’s refugee status, and of the changes Mr Amin made to his evidence regarding Mr Hakim’s origins during the course of giving his evidence.

the letters to the minister regarding the students – issues of credit

100.   I have found in the paragraphs above that the letters to the Minister on behalf of the Students, were, at the time they were lodged in 2000/02, not written in the course of giving of immigration assistance, and were not subject to the Codes of Conduct as these applied from time to time.

101.   As mentioned further on in these Reasons for Decision, MARA held that Mr Amin had breached clause 2.17 and other clauses of the Codes of Conduct which applied between 2000 and 2002, in relation to several of the Students. MARA found that Mr Amin had lodged applications for Ministerial discretion to be exercised pursuant to section 351 of the Act in cases which were grossly unfounded, or had no hope of success, and were an abuse of the migration system, breaching various clauses of the Codes of Conduct, and bringing the reputation of the industry into disrepute.

102.   By way of example, the Respondent’s submission was that Mr Khatiwada’s application was grossly unfounded or had no hope of success because he, like others of the Students, did not meet the threshold criteria. Mr Khatiwada was in breach of his Visa conditions, because he had attended no courses since his arrival in Australia. I was mindful from Exhibit R7/2142 that Mr Khatiwada’s application for a Protection Visa had been refused in January 2002, and that the reasons for refusal indicated:

“The applicant provided no documentary evidence whatsoever to support his claim. He indicated in the application that important documents would be forwarded in support of his claim. I note almost 5 months has elapsed since the lodgement of the Protection Visa application and no evidence has been provided until this date.”

(Exhibit R7/2146)

103.   When asked by Ms Gleeson whether it appeared from the above that “Mr Khatiwada was not putting forward a genuine protection visa application”,  Mr Amin replied: “No. The genuinity of a claim is the Department’s job. It is not mine.”

104.   Mr Amin also said in reply to a question by Ms Gleeson that Mr Khatiwada had not been given advice about his prospects of success, that: “I always would tell him to bring the documents, what he referred to me, or to the Department.” Mr Amin disagreed that the application was hopeless.

105.   I was satisfied from the evidence that Mr Amin had written markedly similar Statements on behalf of all the five Students, and it was that which caused the Department to raise the Complaint with MARA. Several of the Students were from different backgrounds, and even different nationalities, such as Nepal and Bangladesh. In Mr SH Khan’s case, the letter was cut and pasted from an earlier one (Mr Alam having been the first of the five Students), even with the same typographical and grammatical errors, alleging problems in Nepal were he to return, when he is in fact, Bangladeshi.

106.   I was satisfied to the requisite standard from the evidence before me that the other Student Statements were (as MARA put it),  in “strikingly similar terms to that of Kushal Khatiwada and Alam including spelling and grammatical errors and repeating the claim that ‘He frustratingly advised me that it would be suicidal for him to return home without completing his current course.’” 

107.   Of even greater concern was that Mr Malla’s cut and pasted Statement, which I find Mr Amin knew contained false information, was lodged with the Minister some nine months after that of Mr Khatiwada, and after the latter had been rejected, and that a further request to the Minister for Mr SH Khan was lodged some eleven months later in the same terms. I did not accept Mr Amin’s reasons for the similarity in the Statements, which was that the Students were of a similar background, and that they had answered similarly because the questions they were given emanated from a standard questionnaire.

108.   I was mindful of Mr Colborne’s submissions and the case law he cited in regard to the right to lodge, and be represented in “hopeless” cases. Mr Colborne cited case law in arguing Mr Amin’s position in paragraphs 27 – 43 of his Amended Statement of Facts and Contentions. He referred, amongst others, to Kumar v Minister for Immigration [2004] FCA 18, Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155 and Geneff v Peterson (1986) 19 IR 40 in which the concept of cases which were hopeless or had little prospect of success were discussed. It appeared from the case law cited that the Courts were, as always, satisfied that in the public interest, litigants had a right of representation, but the cases referred also to abuse of process or “improper time-wasting by the advocate or the advocate has knowingly lent himself to an abuse of process.”

109.   Ms Gleeson submitted that Mr Amin answered that he was simply following instructions of the client, which however she submitted, was an indication Mr Amin had  “over-stepped the line”, the fine balance between facilitating a client to make a weak application and not prejudging the application, and facilitating the client to do something that was simply an abuse of the procedures of the Tribunal.

110.   I accepted Ms Gleeson’s submission that notwithstanding there was a provision for providing follow-up data, Mr Khatiwada did not meet the basic objective criteria, and that his applications to the various bodies, and the Minister, were therefore “hopeless”, and that no amount of additional material (he had in fact provided nothing), would have helped. I considered that Mr Amin’s explanation of what he understood to be “hopeless” to be unsatisfactory.

111.   Having heard the evidence and the submissions, I was satisfied that the Student applications Mr Amin made for Ministerial discretion were vexatious and grossly unfounded. I was satisfied that none of the Student letters identified the public interest basis and the special circumstances of the individual, and that they were at best embellished by Mr Amin, but more than likely fabricated information in a quest to prolong the Students’ stays. Further, that the act of approaching the Minister to exercise his discretion was an abuse of the migration system, as submitted by the Respondent. I find that the applications were lodged to prolong the Students’ sojourn in Australia.

112.   I find that in regard to the Student applications, Mr Amin brought the migration industry into disrepute, and that his disregard for the requirements of the legislation which govern his behaviour as a migration agent enliven the powers under section 290 and 303(f) of the Act to consider whether the Applicant is not a fit and proper person to give immigration assistance or not a person of integrity.

clause 2.17 of the code of conduct – issues of credit

113.   I have considered Mr Amin’s conduct in lodging vexatious and grossly unfounded applications in relation to the Complaints before me. I exclude in particular the applications to the Minister because I have found that they fell outside the giving of immigration assistance.

114.   Clause 2.17 has stipulated (both in its pre and post 1 July 1999 versions), that if “an application is vexatious or grossly unfounded (for example, an application that has no hope of success)”, the agent must not encourage the client to lodge such application. In its revised version which has applied from 1 July 1999, (and is reproduced below), clause 2.17 has also stipulated that, where applicable, the agent must advise the client that the application if in the agent’s opinion, the application is vexatious or grossly unfounded. Further, if the client still wished to lodge the application, the agent must obtain written acknowledgement of the advice the agent gave. The findings I have made that the Student applications were grossly unfounded and had no hope of success, were made on the basis that the Students did not meet the threshold criteria, (for example Mr Khatiwada had attended no courses and was in breach of the terms of his Student Visa).

115.   The wording of clause 2.17 from 1 July 1999 is as follows:

“2.17 If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) the agent:

(a)       must not encourage the client to lodge the application; and

(b)       must advise the client that, in the agent's opinion, the application is vexatious or

grossly unfounded; and

(c)        if the client still wishes to lodge the application - must obtain written

acknowledgement of the client of the advice given under paragraph (b).”

116.   I have found that Mr Amin lodged grossly unfounded applications in several cases, including Mr Khatiwada.

117.   Ms Gleeson put to Mr Amin in relation to Mr Khatiwada:

“You know that under clause 2.17, if an application is vexatious or grossly unfounded, you must advise the client of that, and if the client still wishes to lodge the application, you must obtain written acknowledgment of your advice.”

Mr Amin: “I only did the mistake that I did not get a written acknowledgment from him, but at the time when I had received his instruction I believed what’ happened to him or his family.”

Ms Gleeson: “Well, I would suggest that far from the only mistake being that you hadn’t got an acknowledgment from him, your mistake was that you hadn’t got … acknowledgments from him in relation to his initial application, his RRT review, his initial application, his MRT review, then his protection visa application and possibly the section 351 letter. You should have sought acknowledgement on each occasion shouldn’t you?”

Mr Amin: “On my part, yes, this  - I’ve done wrong.”

(Transcript 20.9.04 page 54)

118.   I am mindful that the Department, and the community must be able to rely on a registered migration agent’s integrity. If he puts forward hopeless applications and abuses the immigration process, and further breaches clauses of the Code of Conduct such as clause 2.17, by not recording acknowledgment by the visa applicant of advice given regarding prospects of his case, I cannot be satisfied that the advice was given adequately. That goes to serious doubts about Mr Amin’s credit which I have expressed in this section.

mr amin’s statutory declaration – issues of credit

119.   I noted several references by the Respondent, and submissions by Ms Gleeson in regard to a Statutory Declaration of Mr Amin. That Statutory Declaration, dated 5  December 2002, was in reply to a letter of MARA dated 15 November 2002 in which MARA queried Mr Amin in regard to giving immigration assistance. The questions, and Mr Amin’s replies follow:

“Did you prior to your registration a migration agent on 6 March 1998 –

(a) give immigration assistance; or

NO

(b) make immigration representations; or

NO

(c) ask for or receive any fee or reward for giving immigration assistance; or

NO

(d) ask for or receive any fee or other reward for making immigration representations?

NO”

120.   Mr Amin maintained those denials in his oral evidence.

121.   Ms Gleeson in her closing submissions stated that Mr Amin knowingly swore a false Statutory Declaration, thereby consciously attempting to mislead MARA and that he accordingly lacked integrity and credibility.

122.   I noted that Mr Amin was not registered as a migration agent until 6 March 1998. He stated that he had only given assistance with translation and interpreting in immigration matters before that date, from approximately 1992. However, as part of the documentation for the Hearing, (paragraphs 68 – 77 of the Applicant’s Amended Facts and Contentions), Mr Amin made an admission that he assisted Messrs Paul, John Saha and Rupak Saha with their Federal Court applications, because they would have been worse off without him.

123. I have made a finding in another section in these Reasons for Decision, that Mr Amin gave immigration assistance before he was registered as a migration agent in breach of section 280 of the Act, in particular in relation to Goutam Paul, Hakim and Mohammad Khan. I formed that view because I was satisfied that shortly after arrival with no functional English, neither Paul nor Khan, nor others, could have lodged applications to the Department. They could not have known what attachments were required, neither were they in a position to request extensions of time to submit documents, which in fact several did. I also accepted Mr Paul’s evidence that he was told on arrival that Mr Amin was a Bangladeshi lawyer who would assist him. I was satisfied Mr Amin gave immigration assistance to Goutam Paul and Mohammad Khan and Hakim before he was registered as a migration agent on 6 March 1998.

124.   In denying that he so did, Mr Amin has consciously attempted to mislead MARA and this Tribunal by signing a Statutory Declaration denying he gave immigration assistance before he was registered as a migration agent, and accordingly lacks integrity and credibility.

125.   There was also a further Statutory Declaration dated 29 January 2002, regarding charges made to Mr Khan for his Federal Court application (Exhibit R3/49). I noted that Mr Amin, in his application for repeat registration, had written to MARA on 25 July 2003, (T19), acknowledging what he referred to as an error in that Statutory Declaration. He stated: “My statutory declaration was not knowingly false or misleading. I do apologise for the fact that it was not as accurate and complete as it should have been.”

126.   My conclusions are as above. Mr Amin claims to have a law degree from Bangladesh. He would be expected to know how onerous it is to sign and lodge a Statutory Declaration. Accordingly, I find that the above goes to the issue of lack of integrity and credibility that I find in regard to Mr Amin.

conclusions as to mr amin’s credit

127.   The paragraphs above, in the section headed “Issues of Credit” indicate a number of instances of conflict of evidence between Mr Amin and the other parties involved in this application.

client, if possible, of the terms of the work to be done; and

(c)        give the client written confirmation of the terms of the service to be rendered; 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.

Clause 6.1(c)(i)

6.1       A 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

(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.

Clause 2.6

2.6     To the extent that a migration agent must take account of objective criteria to make an

application under the Migration Act or Migration Regulations, he or she should be

frank and candid about the prospects of success when assessing a client's request

for assistance in preparing a case or making an application under the Migration Act

or Migration Regulations.

Clause 2.19

2.19     Subject to a client's instructions, a migration agent has a duty to provide sufficient

relevant information to the Department to allow a full assessment of all the facts

against the relevant criteria. For example, an agent should avoid the submission of

applications under the Migration Act or Migration Regulations in a form that does not

fully reflect the circumstances of the individual and prejudices the prospect of

approval.

Clause 2.21

2.21 A migration agent should not submit an application under the Migration Act or

Migration Regulations without the specified accompanying documentation. For

example, in a marriage case, threshold documentation would include a marriage

certificate and evidence that the sponsor is an Australian citizen, an Australian

permanent resident or an eligible New Zealand citizen, without which assessment of

the case could not proceed (unless the agent has a reasonable excuse or the client

has requested the agent to act despite incomplete documentation).

Clause 2.1(a). 2.1(b)

2.1     A migration agent must always:

(a)       act in accordance with the law and the legitimate interests of his or her client; and

(b)       deal with his or her client competently, diligently, fairly and without any conflict of

interest that would affect the legitimate interests of the client.

Clause 2.3

2.3       A migration agent's professionalism should 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.

Clause 2.4

2.4     A migration agent must have due regard to a client's dependence on the agent's

knowledge and experience.

Clause 2.8(a)

2.8     A migration agent must:

(a)     within a reasonable time after agreeing to represent a client, confirm the client's

instructions in writing; and

(b)     act in accordance with the client's instructions; and

(c)     keep the client fully and regularly 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.

Clause 5.2(b). 5.2(c)

5.2     A migration agent must:

(a)       before starting work for a client, give the client an estimate of fees in the form of

charges for each hour or for each service, and an estimate of time likely to be taken

in performing a service; and

(b)        as soon as possible after receiving instructions, obtain written acceptance by the

client, if possible, of the terms of the work to be done; and

(c)        give the client written confirmation of the terms of the service to be rendered; 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.

Clause 6.1(c)(i)

6.1       A 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

(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.

Breaches of the Code of Conduct as at 1 July 2000:

Clause 2.8(d)

2.8     A migration agent must:

(a)       within a reasonable time after agreeing to represent a client, confirm the client's

instructions in writing; and

(b)       act in accordance with the client's instructions; and

(c)        keep the client fully and regularly 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.

Clause 6.1(c)(i)

6.1       A 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

(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.

Clause 7.1

7.1     A migration agent must keep separate accounts 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).

Breaches of the Code of Conduct as at 1 July 2001:

Clause 2.8(c)

2.8     A migration agent must:

(a)       within a reasonable time after agreeing to represent a client, confirm the client's

instructions in writing; and

(b)       act in accordance with the client's instructions; and

(c)         keep the client fully and regularly 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.

Clause 6.1(c)(i)

6.1       A 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

(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.

Clause 2.8(a)

2.8     A migration agent must:

(a)       within a reasonable time after agreeing to represent a client, confirm the client's

instructions in writing; and

(b)        act in accordance with the client's instructions; and

(c)        keep the client fully and regularly 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.

Clause 5.2(b), Clause 5.2(c)

5.2     A migration agent must:

(a)     before starting work for a client, give the client:

(i)         an estimate of fees in the form of charges for each hour or each service, and

disbursements that the agent is likely to incur as part of the work; and

(ii)        an estimate of the time likely to be taken in performing a service; and

(b)       as soon as possible after receiving instructions, obtain written acceptance by the

client, if possible, of the terms of the work to be done; and

(c)         give the client written confirmation of the terms of the service to be rendered; 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.

Clause 6.1(c)(i)

6.1       A 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

(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.

Clause 2.1(a), Clause 2.1(b)

2.1     A migration agent must always:

(a)       act in accordance with the law and the legitimate interests of his or her client; and

(b)       deal with his or her client competently, diligently, fairly and without any conflict of

interest that would affect the legitimate interests of the client.

Clause 2.4

2.4       A migration agent must have due regard to a client's dependence on the agent's

knowledge and experience.

Breaches of the Code of Conduct as at 1 July 2002:

Clause 2.1(a), Clause 2.1(b)

2.1     A migration agent must always:

(a)       act in accordance with the law and the legitimate interests of his or her client; and

(b)       deal with his or her client competently, diligently, fairly and without any conflict of

interest that would affect the legitimate interests of the client.

Clause 2.4

2.4       A migration agent must have due regard to a client's dependence on the agent's

knowledge and experience.

re shahedul huq khan

Breaches of the Code of Conduct as at 1 July 2001:

Clause 7.2

7.2       A 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.

Clause 7.4

7.4     A 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)       copies of invoices or accounts rendered in relation to the account.

Clause 2.8(a)

2.8     A migration agent must:

(a)       within a reasonable time after agreeing to represent a client, confirm the client's

instructions in writing; and

(b)       act in accordance with the client's instructions; and

(c)         keep the client fully and regularly 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.

Clause 5.2(b), 5.2(c)

5.2     A migration agent must:

(a)     before starting work for a client, give the client:

(i)         an estimate of fees in the form of charges for each hour or each service, and

disbursements that the agent is likely to incur as part of the work; and

(ii)        an estimate of the time likely to be taken in performing a service; and

(b)       as soon as possible after receiving instructions, obtain written acceptance by the

client, if possible, of the terms of the work to be done; and

(c)        give the client written confirmation of the terms of the service to be rendered; 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.

Clause 6.1(c)(i)

6.1       A 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

(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.

Clause 2.9

2.9       While a migration agent cannot be responsible for misinformation provided by a

client, an agent must not make statements in support of an application under the

Migration Act or Migration Regulations, or encourage the making of statements,

which he or she knows or believes to be misleading or inaccurate.

Clause 2.1(a)

2.1     A migration agent must always:

(a)       act in accordance with the law and the legitimate interests of his or her client; and

(b)       deal with his or her client competently, diligently, fairly and without any conflict of

interest that would affect the legitimate interests of the client.

Clause 2.17

2.17 If an application under the Migration Act or the Migration Regulations is vexatious or

grossly unfounded (for example, an application that has no hope of success) the

agent:

(a)       must not encourage the client to lodge the application; and

(b)       must advise the client that, in the agent's opinion, the application is vexatious or

grossly unfounded; and

(c)        if the client still wishes to lodge the application - must obtain written

acknowledgement of the client of the advice given under paragraph (b).

Clause 2.1(a), Clause 2.1(b)

2.1     A migration agent must always:

(a)       act in accordance with the law and the legitimate interests of his or her client; and

(b)       deal with his or her client competently, diligently, fairly and without any conflict of

interest that would affect the legitimate interests of the client.

Clause 2.4

2.4       A migration agent must have due regard to a client's dependence on the agent's

knowledge and experience.

re mohammad khan

From Decision of MARA 3 October 2003

In relation to the breaches mentioned in the Federal Court Application:

Clause 2.1 

2.1     A migration agent must always:

(a)       act in accordance with the law and the legitimate interests of his or her client;

and

(b)       deal with his or her client competently, diligently, fairly and without any conflict

of interest that would affect the legitimate interests of the client.

Clause 2.8(a), 2.8(c) and 2.8(d), 

2.8     A migration agent must:

(a)       within a reasonable time after agreeing to represent a client, confirm the client's

instructions in writing; and

(b)       act in accordance with the client's instructions; and

(c)        keep the client fully and regularly 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.

Clause 4.1  

4.1       Before accepting immigration work, a migration agent must consider whether he or

she is qualified to give the advice sought by the client. If the agent is unsure, he or

she should seek the appropriate advice or assistance, or refer the matter to another

migration agent.

Clause 5.2(c)

5.2     A migration agent must:

(a)       before starting work for a client, give the client an estimate of fees in the form of

charges for each hour or for each service, and an estimate of time likely to be taken

in performing a service; and

(b)       as soon as possible after receiving instructions, obtain written acceptance by the

client, if possible, of the terms of the work to be done; and

(c)        give the client written confirmation of the terms of the service to be rendered; 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.

Clause 6.1(c) 

6.1       A 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

(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.

Clause 6.2    

6.2  A 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)       2 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.

Section 137.1 of the Criminal Code Act 1995:

(1)      A person is guilty of an offence if:

(a)      the person gives information to another person; and

(b)      the person does so knowing that the information:

(i)         is false or misleading; or

(ii)       omits any matter or thing without which the information is misleading; and

(c)       any of the following subparagraphs applies:

(i)        the information is given to a Commonwealth entity;

(ii) the information is given to a person who is exercising powers or performing functions under, or in connection with, a law of the Commonwealth;

(iii)      the information is given in compliance or purported compliance with a law of   the Commonwealth.

Penalty: Imprisonment for 12 months.

(1A)     Absolute liability applies to each of the subparagraph (1)(c)(i),

(ii) and (iii) elements of the offence.

(2) Subsection (1) does not apply as a result of subparagraph (1)(b)(i) if the information is not false or misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3).

(3) Subsection (1) does not apply as a result of subparagraph (1)(b)(ii) if the information did not omit any matter or thing without which the information is misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3).

(4) Subsection (1) does not apply as a result of subparagraph (1)(c)(i) if, before the information was given by a person to the Commonwealth entity, the Commonwealth entity did not take reasonable steps to inform the person of the existence of the offence against subsection (1).

Note: A defendant bears an evidential burden in relation to the matter in subsection (4). See subsection 13.3(3).

(5) Subsection (1) does not apply as a result of subparagraph (1)(c)(ii) if, before the information was given by a person (the first person) to the person mentioned in that subparagraph (the second person), the second person did not take reasonable steps to inform the first person of the existence of the offence against subsection (1).

Note: A defendant bears an evidential burden in relation to the matter in subsection (5). See subsection 13.3(3).

(6) For the purposes of subsections (4) and (5), it is sufficient if the following form of words is used:

"Giving false or misleading information is a serious offence".

Section 137.2 of the Criminal Code Act 1995:

(1)      A person is guilty of an offence if:

(a)       the person produces a document to another person; and

(b)       the person does so knowing that the document is false or misleading; and

(c)       the document is produced in compliance or purported compliance with a law of the Commonwealth.

Penalty: Imprisonment for 12 months.

(2) Subsection (1) does not apply if the document is not false or misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3).

(3) Subsection (1) does not apply to a person who produces a document if the document is accompanied by a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate:

(a) stating that the document is, to the knowledge of the first-mentioned person, false or misleading in a material particular; and

(b) setting out, or referring to, the material particular in which the document is, to the knowledge of the first-mentioned person, false or misleading.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3).

re goutam paul

From Decision of MARA dated 3 October 2003 

In relation to the breaches mentioned in the Federal Court Application:

Clause 2.1

2.1     A migration agent must always:

(a)       act in accordance with the law and the legitimate interests of his or her client;

and

(b)        deal with his or her client competently, diligently, fairly and without any conflict

of interest that would affect the legitimate interests of the client.

Clause 2.4

2.4       A migration agent must have due regard to a client's dependence on the agent's

knowledge and experience.

Clause 2.8(a),  2.8(c) and 2.8(d)

2.8     A migration agent must:

(a)        within a reasonable time after agreeing to represent a client, confirm the client's

instructions in writing; and

(b)        act in accordance with the client's instructions; and

(c)        keep the client fully and regularly 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.

Clause 4.1

4.1       Before accepting immigration work, a migration agent must consider whether he or

she is qualified to give the advice sought by the client. If the agent is unsure, he or

she should seek the appropriate advice or assistance, or refer the matter to another

migration agent.

Clause 5.2(c)

5.2     A migration agent must:

(a)        before starting work for a client, give the client an estimate of fees in the form of

charges for each hour or for each service, and an estimate of time likely to be taken

in performing a service; and

(b)        as soon as possible after receiving instructions, obtain written acceptance by the

client, if possible, of the terms of the work to be done; and

(c)        give the client written confirmation of the terms of the service to be rendered; 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.

Clause 6.1(c)  

6.1       A 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

(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.

re adul hakim

Breaches of the Code of Conduct as at 1 April 1998:

Clause 7.4(c)

7.4     A 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)        each withdrawal made from the clients' account; and

(c)        receipts for any payments made by the client to the agent; and

(d)        copies of invoices or accounts rendered in relation to the account.

re rupak saha

Breaches of the Code of Conduct as at 1 April 1998:

Clause 6.1(c)(i)

6.1       A 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

(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.

Clause 2.19

2.19     Subject to a client's instructions, a migration agent has a duty to provide sufficient

relevant information to the Department to allow a full assessment of all the facts

against the relevant criteria. For example, an agent should avoid the submission of

applications under the Migration Act or Migration Regulations in a form that does not

fully reflect the circumstances of the individual and prejudices the prospect of

approval.

Clause 2.21

2.21 A migration agent should not submit an application under the Migration Act or

Migration Regulations without the specified accompanying documentation. For

example, in a marriage case, threshold documentation would include a marriage

certificate and evidence that the sponsor is an Australian citizen, an Australian

permanent resident or an eligible New Zealand citizen, without which assessment of

the case could not proceed (unless the agent has a reasonable excuse or the client

has requested the agent to act despite incomplete documentation).

Clause 2.1(a), 2.1(b)

2.1     A migration agent must always:

(a)        act in accordance with the law and the legitimate interests of his or her client; and

(b)        deal with his or her client competently, diligently, fairly and without any conflict of

interest that would affect the legitimate interests of the client.

Clause 2.4

2.4       A migration agent must have due regard to a client's dependence on the agent's

knowledge and experience.

Clause 2.9

2.9       While a migration agent cannot be responsible for misinformation provided by a

client, an agent must not make statements in support of an application under the

Migration Act or Migration Regulations, or encourage the making of statements,

which he or she knows or believes to be misleading or inaccurate.

Clause 7.1

7.1     A migration agent must keep separate accounts 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).

Clause 7.2

7.2       A migration agent must hold fees paid by a client in the clients' account until the work

that the agent has been contracted to do for that client has been completed.

Clause 7.4, 7.4(c)

7.4     A 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)        each withdrawal made from the clients' account; and

(c)        receipts for any payments made by the client to the agent; and

(d)        copies of invoices or accounts rendered in relation to the account.

Breaches of Code of Conduct as at 1 July 2000:

Clause 5.5

5.5     A 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; and

(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.

Breaches of the Code of Conduct as at 1 July 2000 and 1 July 2001:

Clause 2.8(a)

2.8     A migration agent must:

(a)         within a reasonable time after agreeing to represent a client, confirm the client's

instructions in writing; and

(b)        act in accordance with the client's instructions; and

(c)         keep the client fully and regularly 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.

Clause 5.2(b), 5.2(c)

5.2     A migration agent must:

(a)     before starting work for a client, give the client:

(i)         an estimate of fees in the form of charges for each hour or each service, and

disbursements that the agent is likely to incur as part of the work; and

(ii)        an estimate of the time likely to be taken in performing a service; and

(b)        as soon as possible after receiving instructions, obtain written acceptance by the

client, if possible, of the terms of the work to be done; and

(c)        give the client written confirmation of the terms of the service to be rendered; 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.

Clause 6.1(c)(i)

6.1       A 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

(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.

Breaches of the Code of Conduct as at 1 July 2002:

Clause 2.1(b)

2.1     A migration agent must always:

(a)        act in accordance with the law and the legitimate interests of his or her client; and

(b)        deal with his or her client competently, diligently, fairly and without any conflict of

interest that would affect the legitimate interests of the client.

Clause 2.3

2.3 A migration agent's professionalism should 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.

Breaches of the Code of Conduct between 1 April 1998 and 1 July 2001:

Clause 2.8(c) and 2.8(d)

2.8     A migration agent must:

(a)        within a reasonable time after agreeing to represent a client, confirm the client's

instructions in writing; and

(b)        act in accordance with the client's instructions; and

(c)        keep the client fully and regularly 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.”