Bebawy and Migration Agents Registration Authority

Case [2020] AATA 3987

Bebawy and Migration Agents Registration Authority [2020] AATA 3987 (9 October 2020)

Division:GENERAL DIVISION

File Number:          2019/1486

Re:MOFID BEBAWY

APPLICANT

AndMIGRATION AGENTS REGISTRATION AUTHORITY

RESPONDENT

DECISION

Tribunal:Senior Member Katter

Date:9 October 2020

Place:Brisbane

The reviewable decision of 14 February 2019 is varied with the Applicant being barred from being a registered migration agent until 15 August 2021.

.................................[SGD].......................................

Senior Member Katter

CATCHWORDS

Cancellation of registration as a migration agent – whether the agent is a person of integrity – whether the agent is a fit and proper person to provide immigration assistance – whether the agent is honest – whether the agent dealt with his or her clients competently, diligently and fairly – decision under review varied

LEGISLATION

Migration Act 1958 (Cth)

Migration Agents Regulations 1998 (Cth)

CASES

Hughes and Vale Pty Ltd v State of New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127

Issa and Migrations Agents Registration Authority [2017] AATA 1110
Kraues v Office of the Migration Agents Registration Authority (2018) 158 ALD 493; [2018] FCA 664
Lilienthal v Migration Agents Registration Authority [2002] FCA 93
Narayanan and Migration Agents Registration Authority (2006) 43 AAR 5; [2006] AATA 353
Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12
Queensland Law Society v Bax [1998] QCA 089
Re Altintas and Migration Agents Registration Authority [2004] AATA 978
Shi v Migration Agents Registration Authority [2008] HCA 31

REASONS FOR DECISION

Senior Member Katter

9 October 2020

  1. This is an application to review a decision by the Respondent to cancel the Applicant’s registration as a migration agent.

    BACKGROUND

  2. By an application for registration declared by the Applicant on 3 February 2010, the Applicant applied to the Respondent for registration as a migration agent[1].  The Applicant was first registered as a migration agent by the Respondent on 24 August 2010[2].  The registration of the Applicant with the Respondent was renewed annually from 24 August 2010[3].  

    [1]           Exhibit 18, Applicant’s Application for Registration dated 3 February 2010.

    [2]Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 19 September 2019, paragraph 3; Exhibit 1, T Documents, T2, page 16.

    [3]Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 19 September 2019, paragraph 3; Exhibit 1, T Documents, T2, page 16.

  3. On 24 April 2018 the Respondent communicated a letter to the Applicant, headed “Notice under section 308 of the Migration Act 1958” (Cth) (“the Act”)[4].  That correspondence referred to six complaints made as to the Applicant, stated to have been received by the Respondent on the following dates[5]:  26 September 2016, 10 March 2017, 15 March 2017, 15 March 2017, 15 March 2017 and 15 March 2017.  There is a complaint dated 23 September 2016, being a two-page letter from Ms Kiranjeet Kaur[6].  There is an email on 10 March 2017 from the “Border Watch Allegations and Referrals Team (BWART)” at the Department of Home Affairs, as to the Applicant, referring to ‘Dob-In’ feedback from Mr Pradeep Kumar received on…

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Bebawy and Migration Agents Registration Authority [2020] AATA 3987
Case
[2020] AATA 3987
Decision Date

CaseChat Overview and Summary

This matter concerned an application to review a decision by the Migration Agents Registration Authority (the Respondent) to cancel the registration of the Applicant as a migration agent. The Applicant had been registered since 2010, and the Respondent's decision to cancel this registration followed a series of complaints received between September 2016 and April 2018.

The central legal issues before the court were whether the Applicant was a person of integrity and a fit and proper person to provide immigration assistance, and whether the Applicant had dealt with clients competently, diligently, and fairly. These questions arose in the context of alleged breaches of various clauses of the Code of Conduct for Registered Migration Agents, including provisions relating to acting in accordance with the law, having due regard to a client's dependence on the agent's knowledge, not misleading the Authority, maintaining the integrity of the profession, and obligations regarding service agreements, fees, and record-keeping.

The court considered the Respondent's submissions that the Applicant had breached multiple clauses of the Code of Conduct, indicating systemic poor practices and serious, repeated breaches. The Applicant argued that while breaches of the Code might be warranted, a finding that they were not a person of integrity or fit and proper was not justified, suggesting an 18-month suspension as an appropriate alternative to cancellation. The court found that while there was no definitive finding that the Applicant was not a person of integrity or fit and proper, the repeated and serious breaches of the Code necessitated a significant period of restriction.

Ultimately, the court varied the Respondent's decision. Instead of affirming the cancellation, which would have resulted in a statutory bar from re-registration for five years, the court imposed a bar from registration until 15 August 2021. This represented a period of approximately 2.5 years from the date of the original cancellation decision, reflecting the seriousness of the breaches while not permanently precluding the Applicant from the profession.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application to review a decision by the Respondent to cancel the Applicant’s registration as a migration agent.BACKGROUND By an application for registration declared by the Applicant on 3 February 2010, the Applicant applied to the Respondent for registration as a migration agent[1]. The Applicant was first registered as a migration agent by the Respondent on 24 August 2010[2]. The registration of the Applicant with the Respondent was renewed annually from 24 August 2010[3]. [1] Exhibit 18, Applicant’s Application for Registration dated 3 February 2010. [2]Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 19 September 2019, paragraph 3; Exhibit 1, T Documents, T2, page 16.[3]Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions dated 19 September 2019, paragraph 3; Exhibit 1, T Documents, T2, page 16. On 24 April 2018 the Respondent communicated a letter to the Applicant, headed “Notice under section 308 of the Migration Act 1958” (Cth) (“the Act”)[4]. That correspondence referred to six complaints made as to the Applicant, stated to have been received by the Respondent on the following dates[5]: 26 September 2016, 10 March 2017, 15 March 2017, 15 March 2017, 15 March 2017 and 15 March 2017. There is a complaint dated 23 September 2016, being a two-page letter from Ms Kiranjeet Kaur[6]. There is an email on 10 March 2017 from the “Border Watch Allegations and Referrals Team (BWART)” at the Department of Home Affairs, as to the Applicant, referring to ‘Dob-In’ feedback from Mr Pradeep Kumar received on 28 December 2016 via a website[7]. On 7 March 2017 N. K. Sharma of Sharma Lawyers, by letter to the Respondent, complained on behalf of Ms Kamla Devi, Ms Rajvinder Kaur, Ms Parmjeet Kaur and Ms Manpreet Kaur Sidhu[8].[4] Exhibit 1, T Documents, T6, pages 444-453.[5] Exhibit 1, T Documents, T6, page 444.[6] Exhibit 1, T Documents, T8, pages 1093 and 1094. [7] Exhibit 1, T Documents, T54B, pages 1569B-1580B. [8] Exhibit 1, T Documents, T7, pages 500-501. On 3 May 2018 the Respondent communicated a letter to the Applicant, headed “Notice under section 308 of the Migration Act 1958”[9]. That correspondence of 3 May 2018 referred to three complaints made as to the Applicant, stated to have been received by the Respondent on the following dates[10]: 13 June 2017, 18 August 2017 and 16 April 2018. There is a report generated by the Respondent, described as a “Service Complaint”, dated 13 June 2017, as to the Applicant, with the complainant described as Mr Brett Andrew Ormrod[11]. That “Service Complaint” dated 13 June 2017 refers to Mr Ritesh Gohil, with Mr Ormrod and Mr Gohil both having involvement with a business called “Redback Butlers”[12]. There is a three-page undated correspondence described as a “Service Complaint” by Mr Manish Kumar[13]. There is also an undated two-page statement by Laiq and Raiz Hussain as to the Applicant[14].[9] Exhibit 1, T Documents, T348, pages 3028-3038.[10] Exhibit 1, T Documents, T348, page 3028.[11] Exhibit 1, T Documents, T350, pages 3284-3286. [12] Exhibit 1, T Documents, T350, pages 3284-3286.[13] Exhibit 1, T Documents, T402, pages 3595-3597. [14] Exhibit 1, T Documents, T511, pages 4049 and 4050.

Evidence

Evidence Before The Court

The Respondent submitted that the Applicant, in all the circumstances, therefore breached clauses 2.1, 2.4, 2.9A and 2.23 of the Code[69]. Further, the Respondent submitted that back-dating the documents may constitute an offence in accordance with s 137.2 of the Criminal Code Act 1995 (Cth), Schedule[70]. The Respondent further refers to a potential offence against s 430 of the Criminal Code Act 1899 (Qld), Schedule[71]. The Respondent quotes from the decision in Queensland Law Society v Bax [1998] QCA 089 per McPherson JA, where a solicitor was struck off for back-dating documents. The Applicant states[72]:“233The respondent’s attack on the applicant’s character has already been the subject of extensive submission in response. The most pressing issue for the applicant is that of his backdating service agreements. On that, it is submitted that the Tribunal should accept that he was motivated by a desire to correct agreements that had erroneously or misleadingly included the sponsor’s nomination fee to meet the concerns earlier raised by the Department over his service agreements. Further to that, the Tribunal should find that the issue had been raised with him by the Department on multiple files. This innocent motive distinguishes this case from Attorney-General v Bax [1999] 2 Qd R 9, where the solicitor has relevantly backdated a deed of loan and mortgage with the intention of misleading a creditors’ meeting about the date of execution of that mortgage. The applicant’s motive was to replace the original service agreement with another that met the Department’s concerns. It was not to gain any advantage or to otherwise mislead the Department.234It is submitted that, in these circumstances, a finding of breach of the Code of Conduct is warranted but that the Tribunal should not find that the applicant is not a person of integrity or otherwise not a fit and proper person to give immigration assistance. (cf. Kraues v Migration Agents Registration Authority [2016] AATA 1086, [104].”[69]Exhibit 38, Respondent’s Closing Submissions dated 7 April 2020 page 8, paragraph 2.18. [70]Exhibit 38, Respondent’s Closing Submissions dated 7 April 2020, page 8, paragraph 2.18. [71]Exhibit 38, Respondent’s Closing Submissions dated 7 April 2020, page 8, paragraph 2.18.[72]Exhibit 39, Applicant’s Closing Submissions dated 15 May 2020, page 93, paragraphs 233-234.Evidence The Respondent submits that the Applicant “ … intentionally made false statements in a number of statutory declarations made under the Oaths Act 1867 (Qld) … ”[73] as to fraud charges[74], office closure[75] and when work was performed[76]. [73] Exhibit 38, Respondent’s Closing Submissions dated 7 April 2020, page 15, paragraph 2.33.[74] Exhibit 38, Respondent’s Closing Submissions dated 7 April 2020, page 15, paragraphs 2.35-2.37.[75] Exhibit 38, Respondent’s Closing Submissions dated 7 April 2020, page 16, paragraphs 2.38-2.41.[76]Exhibit 38, Respondent’s Closing Submissions dated 7 April 2020, pages 16-17, paragraphs 2.42-2.44.

Decision

Reasons for decision

The Applicant submits that the decision of 14 February 2019[213] should be set aside and that in substitution there should be a period of suspension of 18 months, with “the lifting of the suspension [being] conditional on any course the Tribunal might find appropriate, in the circumstances”[214]. The Respondent submits that the decision to cancel the Applicant’s registration under paragraph 303(1)(a) of the Act be affirmed[215]. There are multiple breaches of the Code of Conduct (clauses 2.1, 2.4, 2.23, 3.2A(b), 5.2(c), 5.5, 6.1, 6.1A and 7.1A) indicating systemic poor practices. There are findings as to serious, repeated breaches of the Code. There is a history of complaints against the Applicant, as particularised. Section 292 of the Act states that an applicant whose registration has been cancelled under section 303 must not be registered within 5 years of the cancellation. Where there is not ‘satisfaction’ that the Applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance, but where there are serious repeated breaches of the Code, a lengthy period of suspension will impress upon the Applicant the necessity to improve his conduct and practices as to compliance with the Code[216]. As referred to above[217], the Applicant submits a suspension of 18 months from 14 February 2019 is appropriate[218]. Having regard to the number of breaches of the Code it is found that a longer suspension than 18 months is appropriate. Section 311A of the Act states that the Respondent may decide to bar a former registered migration agent from being a registered migration agent for a period if, after investigating a complaint about him or her in relation to his or her provision of immigration assistance while he or she was a registered migration agent, it is satisfied that the subject matter of the complaint is made out, with the period not being more than 5 years starting on the day of the Respondent’s decision. Where there is no finding that the Applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance, the order as to cancellation (which has an equivalent statutory consequence of a 5 year suspension) will not be affirmed. Where there are serious repeated breaches of the Code, where cancellation results in a five-year period before further registration, in all the circumstances, there will be a bar from registration of the Applicant until 15 August 2021, that is no earlier than 2.5 years after 14 February 2019[219].[213] Exhibit 1, T Documents, T2, pages 11-13. [214] Exhibit 39, Applicant’s Closing Submissions dated 15 May 2020, pages 95 and 96, paragraph 243.[215]Exhibit 38, Respondent’s Closing Submissions dated 7 April 2020, page 51, paragraph 4.9. The Respondent refers to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) in that regard.[216]Re Altintas and Migration Agents Registration Authority [2004] AATA 978 at [159] per Senior Member Dwyer.[217] Exhibit 39, Applicant’s Closing Submissions dated 15 May 2020, pages 95 and 96, paragraph 243.[218] Exhibit 1, T Documents, T2, pages 11-13. [219] Exhibit 1, T Documents, T2, pages 11-13. DECISION

Ratio Decidendi

Legal Principle Established

Section 314 of the Act states: “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.” In the Migration Agents Regulations 1998 (Cth)[41], regulation 8 states: “8 Code of Conduct For subsection 314(1) of the Act, the Code of Conduct is set out in Schedule 2.”[41]SR 1998 No. 53 Regulations as amended, taking into account amendments up to Migration Agents Amendment (Regulation of Migration Agents) Regulations 2020 (Cth), registered 28 August 2020, start date 11 August 2020. The decision by the Respondent to cancel the Applicant’s registration dated 14 February 2019[42] referred to the Code of Conduct for Registered Migration Agents (“the Code”)[43] as at 18 April 2017, clauses 2.1, 2.4, 2.9A, 2.23, 3.1, 5.2, 5.5, 6.1, 6.1A, 7.1, 7.1A and 7.2[44], with the Applicant making admission as to clause 3.2A(b)[45] and the Respondent also referring to clause 2.9[46]: [42]Exhibit 1, T Documents, T2, pages 11-13. [43]The Code of Conduct in Schedule 2 was previously amended by Act No. 106 of 2012: Schedule 2................................am No 69, 1999; No 64, 2000; No 309, 2000; No 143, 2001; No 346, 2002; No 129, 2004; No 391, 2004; No 131, 2005; No 249, 2006; No 250, 2011; No 106, 2012; F2017L00437; F2020L01000. The Migration Services Agreement as to Ms Kiranjeet Kaur was signed on 1 May 2012 (V2, T7, page 745), with there being no change to the relevant Code of Conduct provisions (2.1, 2.4, 2.9A, 2.23, 3.1, 5.2, 5.5, 6.1, 6.1A, 7.1, 7.1A and 7.2) at that time.[44]Exhibit 1, T Documents, T2, pages 11 and 13. [45] Exhibit 39, Applicant’s Closing Submissions dated 15 May 2020, page 92, paragraph 229(c).[46] Exhibit 38, Respondent’s Closing Submissions dated 7 April 2020, page 15, paragraph 2.37.“Part 2 – Standards of profession conduct 2.1 A registered migration agent must always: (a) act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client; and (b) deal with his or her client competently, diligently and fairly. However, a registered migration agent operating as an agent in a country other than Australia will not be taken to have failed to comply with the Code if the law of that country prevents the agent from operating in compliance with the Code. … 2.4 A registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience. …2.9 A registered migration 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. 2.9A In communicating with, or otherwise providing information to, the Authority, a registered migration agent must not mislead or deceive the Authority, whether directly or by withholding relevant information. … 2.23 A registered migration agent must take all reasonable steps to maintain the reputation and integrity of the migration advice profession. … Part 3 – Obligations to clients 3.1 A registered migration agent has a duty to preserve the confidentiality of his or her clients. … 3.2A Once a registered migration agent has agreed to work for a client, but before commencing that work, the agent must: (a) provide the client with a copy of the consumer guide; and (b) make a record that the copy has been provided. Note: The consumer guide is a document produced by the Authority with information about the migration advice profession, the functions of the Authority, the legislation regulating the profession, what a client can reasonably expect from a registered migration agent, and complaint procedures. Part 5 – Fees and charges … 5.2 A registered migration agent must: (a) before starting work for a client, give the client:(i) an estimate of charges in the form of fees for each hour or each service to be performed, and disbursements that the agent is likely to incur as part of the services to be performed; and(ii) an estimate of the time likely to be taken in performing the services; and (b) as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of:(i) the estimate of fees; and(ii) the estimate of the time likely to be taken in performing the services; and (c) give the client written confirmation (an Agreement for Services and Fees) of:(i) the services to be performed; and(ii) the fees for the services; and(iii) the disbursements that the agent is likely to incur as part of the services; and (d) give the client written notice of any material change to the estimated cost of providing a service, and the total likely cost because of the change, as soon as the agent becomes aware of the likelihood of a change occurring. … 5.5 A registered migration agent must be aware of the effect of section 313 of the Act, and act on the basis that: (a) the agent is not entitled to be paid a fee or other reward for giving immigration assistance to a client unless the agent gives the client a statement of services that is consistent with the services, fees and disbursements in the Agreement for Services and Fees mentioned in clause 5.2; and Note: The statement of services may be an itemised invoice or account. See clause 7.2 and 7.4. (b) a statement of services must set out:(i) particulars of each service performed; and(ii) the charge made in respect of each such service; and (c) a client is entitled by the Act to recover the amount of a payment as a debt due to him or her if he or she:(i) made the payment to the agent for giving immigration assistance; and(ii) did not receive a statement of services before making the payment; and(iii) does not receive a statement of services within 28 days after a final decision is made about the visa application, cancellation review application, nomination or sponsorship to which the immigration assistance related. Part 6 – Record keeping and management 6.1 A registered migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing: (a) a copy of each client’s application; and (b) copies of each written communication between:(i) the client and the agent; and(ii) the agent and any relevant statutory authority; and(iii) the agent and the Department regarding the client; and (c) file notes of every substantive or material oral communication between:(i) the client and the agent; and(ii) the agent and an official of any relevant statutory authority; and(iii) the agent and the Department regarding the client. 6.1A A registered migration agent must keep the records mentioned in clause 6.1 for a period of 7 years after the date of the last action on the file for the client. … Part 7 – Financial duties 7.1 Subject to clause 7.1B, a registered migration agent must keep separate accounts with a financial institution for: (a) the agent’s operating expenses (the operating account); and (b) money paid by clients to the agent for fees and disbursements (the clients’ account). 7.1A The words ‘clients’ account’ must be included in the name of the financial institution account mentioned in paragraph 7.1(b). …7.2 A registered migration agent must hold, in the clients’ account, an amount of money paid by a client for an agreed block of work until:(a) the agent has completed the services that comprise the block of work; and (b) an invoice has been issued to the client for the services performed in accordance with the Agreement for Services and Fees mentioned in clause 5.2, showing:(i) each service performed; and(ii) the fee for each service. … ” CONSIDERATION