Bebawy and Migration Agents Registration Authority (Migration)

Bebawy and Migration Agents Registration Authority (Migration) [2021] AATA 4632 (15 December 2021)

Division:GENERAL DIVISION
File Number(s): 2019/1486
Re:Mofid Bebawy
APPLICANT

AndMigration Agents Registration Authority
RESPONDENT

DECISION

Tribunal:Deputy President I R Molloy
Date:15 December 2021
Place:Brisbane

The Reviewable Decision dated 14 February 2019, in which the Applicant's registration was cancelled, is affirmed.

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

Deputy President I R Molloy

Catchwords

MIGRATION AGENTS – migration agents registration – cancellation of migration agent registration – 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 affirmed

Legislation

Migration Act1958 (Cth)

Migration Agents Regulations 1998 (Cth)

Cases

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Attorney-General v Bax [1999] 2 Qd R 9
Hughes and Vale Pty Ltd v State of NSW (1955) 93 CLR 127
Jones v Dunkel (1959) 101 CLR 298
Lilienthall v Migration Agents Registration Authority (2002) 117 FCR 558

Narayan and Migration Agents Registration Authority (2006) AAR 5

REASONS FOR DECISION

Deputy President I R Molloy

15 December 2021

On 24 August 2010 the Applicant, Mr. Bebawy, was registered as a migration agent.
On 14 February 2019 a delegate of the Authority made a decision cancelling his registration under s 303(1)(a) of the Migration Act 1958 (Cth) (“the Act”).
Under s 292 of the Act, a person whose registration is cancelled under s 303 must not be registered within 5 years of the cancellation.
This is a decision on a rehearing of the Applicant’s application for review following an appeal to the Federal Court.
Section 303 of the Act provides relevantly:
Disciplining registered migration agents
(1) The Migration Agents Registration Authority may:
(a) cancel the registration of a registered migration agent by removing his or her name from the register; or
(b)   suspend his or her registration; or
(c)   caution him or her;
if it becomes satisfied that:
(d) the agent's application for registration was known by the agent to be false or misleading in a material particular; or
(e)   the agent becomes bankrupt; or
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g) an individual related by employment to the agent is not a person of integrity; or

(h) the agent has not complied with the Code of Conduct prescribed under section 314.

The Authority was satisfied that the Applicant had not complied with various aspects of the Code of Conduct prescribed under s 314 of the Act and contained in Schedule 2 of the Migration Agents Regulations 1998 (Cth) (“the Code”). The Authority was also satisfied that the Applicant was not a person of integrity, or was otherwise not a fit and proper person to give immigration assistance.
The Authority maintains these grounds before the Tribunal, and contends that the decision to cancel the Applicant’s registration should be affirmed.
Mr. Bebawy accepts that he has breached the Code of Conduct, but not to the extent alleged by the Authority. He disputes that he is not a person of integrity, or is otherwise not a fit and proper person to give immigration assistance.
Mr. Bebawy submits that his accepted breaches of the Code are sufficiently serious to warrant a period of suspension but not cancellation of his registration.
He contends that the decision dated 14 February 2019 should be set aside or varied, and in substitution or as varied, his registration should be suspended for the time which has elapsed since the Authority’s decision.

Issues

The issues are:
(a) the extent to which the Applicant has not complied with the Code of Conduct;
(b) whether the Applicant is not a person of integrity, or is otherwise not a fit and proper person to give immigration assistance; and
(c) in light of the above, how the power under s 303(1) of the Act inter alia to cancel or suspend the Applicant’s registration should be exercised.

Summary of decision

I am satisfied that Mr. Bebawy has not complied with the Code of Conduct as set out below.
I am satisfied that he is not a person of integrity, and is not a fit and proper person to give immigration assistance.
I am satisfied that the correct and preferable decision is to affirm the Authority’s decision cancelling Mr. Bebawy’s registration as a migration agent and not to impose some lesser sanction such as suspension.

Background

On 24 April 2018 the Authority provided notice to the Applicant under s 308 of the Act of six complaints that it had received between 26 September 2016 and 15 March 2017.
On 3 May 2018 the Authority provided notice to the Applicant of three further complaints that it had received between 13 June 2017 and 16 April 2018.
On each occasion the Applicant responded, including to notices from the Authority requiring that he provide specified documents or records, by providing what he said were client files.
On 10 October 2018 the Authority provided notice to the Applicant under s 309 of the Act that it was considering cautioning, suspending or cancelling his registration as a migration agent. The notice also notified the Applicant of an own motion complaint against him.
On 21 December 2018 the Applicant responded by his legal representatives providing a statutory declaration dated 20 December 2018 (“December 2018 Declaration”) and submissions, together with annexures.
On 14 February 2019 the Authority by its delegate made the reviewable decision cancelling the Applicant’s registration as a migration agent.
On 29 August 2019, in connection with the proceeding before the Tribunal, the Applicant made a statutory declaration with various annexures (“2019 Declaration”).
The Applicant made further statutory declarations in relation to particular matters on 27 February 2020.
The Applicant was cross-examined on behalf of the Authority, including for more than a day on the rehearing.

Service agreements

The Applicant acted for three standard business sponsors: Australian Sports Academy Pty Ltd (“ASA”); Global Restaurant Group (“GRG”); and Meridian Protection Pty Ltd (“MP”).
In late 2015 and early 2016 the Applicant received requests for information and documents relating to these entities’ sponsored employees. The Applicant responded to the requests by mail on 18 December 2015 (ASA), 24 December 2015 (GRG) and 9 March 2016 (MP).
Mr. Bebawy’s responses included documents described as service agreements expressed to have been made between the Applicant and the following sponsored employees on the following dates:
(a)         Ms. Kamalpreet Kaur, dated 18 March 2013 (GRG);
(b)           Ms. Mandeep Kaur, dated 22 June 2012 (GRG);
(c)           Mr. Vikram Kumar Patel, dated 29 May 2013 (MP);
(d)           Ms. Ameena Unnisa, dated 12 June 2013 (ASA); and
(e)           Ms. Amritpal Kaur, dated 12 October 2012 (ASA).
Each of these documents referred to the Department of Immigration and Border Protection (“DIBP”). But that was the Department's name only from 18 September 2013, a date after the dates upon which the service agreements were expressed to have been made.
This was picked up and brought to the Applicant’s attention. Pursuant to a further notice issued under s 309 of the Act, Mr. Bebawy provided copies of other service agreements between himself and the same sponsored employees, expressed to be made on the same respective dates as the ones he had initially provided.
The documents initially provided by Mr. Bebawy were brought into existence in late 2015 or early 2016 and back-dated. No effort was made by Mr. Bebawy to explain that the documents had been back-dated, or to refer to the existence of other earlier documents bearing the same dates (“the true service agreements”), prior to his response to the further s 309 notice.
The main difference between the true service agreements and the back-dated documents was that the former included a reference to a nomination fee which does not appear in the back-dated documents. A nomination is not chargeable to a sponsored employee. It is payable by the employer.
Mr. Bebawy maintains that he did not in fact charge any of the sponsored employees a nomination fee. He denied that his service agreements suggested that the employee/clients were to pay the nomination fee. He was aware, however, that the Authority or the Department had an issue with the references to a nomination fee in his service agreements.
He said he amended his “template” service agreement to remove an “irrelevant” or “supplementary” section identifying certain fees, including a nomination fee of approximately $455.00. He described what he did as “re-dating” the agreements, and said it was a “positive” thing because he was correcting the actual agreement.
He said with the benefit of legal advice he considers “there were no need for [that to be done]”.[1] He disputed that his conduct was misleading, although his conduct was acknowledged as such in submissions on his behalf.
[1] Transcript, 6 September 2021, page 83, line 13.
This is not just a case of providing back-dated documents as bad as that is. Mr. Bebawy provided the back-dated documents in order to conceal the existence of the true service agreements and their terms.
I reject the submission that Mr. Bebawy was not seeking to obtain any advantage or personal benefit. The back-dated documents, if accepted, and absent any knowledge of the true service agreements, removed the troublesome references to a nomination fee.
Some time was spent on how and when the back-dated documents were created. Mr. Bebawy said he invited the clients, the sponsored employees, back to his office, years after his services had been provided, to sign the “amended” service agreements.
He said the clients did not work far from his office. He said he personally called each of the clients. He said he told them over the phone “we need to make an adjustment to the agreement, it has errors.”[2] He told them, he said, that “we have some issue with the actual statement of service and we need to correct that”.[3] He said when they each came in, he went through the service agreement in detail explaining “exactly what’s the error or the issue with the paragraph”[4]. He said “we just done the changes and signed the document both of us in person”.[5] He said none of the clients queried him.
[2] Transcript, 6 September 2021, page 42, line 4.
[3] Ibid, lines 21 – 22.
[4] Ibid, page 41, lines 41 – 42.
[5] Ibid, page 41, lines 42 – 43.
In respect of two of the clients, however, Kamalpreet Kaur and Amritpal Kaur, the initials, signatures, and hand-writing on the back-dated documents and on the true service agreements are identical. In the case of the two Kamalpreet Kaur documents, the entire signature pages, including the type-written text, are obviously the same.
Asked if he accepted that the signature pages of the two Kamalpreet Kaur documents were the same, Mr. Bebawy was evasive, asking how would he know as he relied on his admin staff to scan the documents. Taken back to the documents he claimed not to see what was obvious, that the two pages were the same.
It was suggested on behalf of Mr. Bebawy that these clients did return to his office, and did sign the “re-dated” service agreements, but somehow mistakes occurred in what was then provided to the monitoring unit. There was no evidence as to how this could have occurred. There was no evidence from any of Mr. Bebawy’s staff on the issue. If there were mistakes, as was suggested, then the monitoring unit still conveniently came to be provided with versions of the agreements which omitted any reference to the nomination fee.
It was further suggested that Mr. Bebawy may have been mistaken when he identified the documents provided to the monitoring unit as the documents signed when these clients, Kamalpreet Kaur and Amritpal Kaur, returned to his office. However, no other document (or any other page of any document) signed by either of these clients and Mr. Bebawy was produced. The whole thing is implausible.
It is not impossible that Mr. Bebawy could have a client sign an amended or new service agreement. There was some evidence to that effect in relation to a client other than one of the five clients referred to above. I find it altogether implausible, however, that each of the two clients, Kamalpreet Kaur and Amritpal Kaur, did return to Mr. Bebawy’s office, sign a new version of their service agreements, and that somehow, in respect of those two clients, the back-dated documents provided by Mr. Bebawy came to bear the identical signatures, initials, and other features appearing in the true service agreements.
In all the circumstances, including having seen and heard Mr. Bebawy give evidence, I am satisfied that the two back-dated documents referred to were not signed by Kamalpreet Kaur and Amritpal Kaur as he claims.
In making this finding, and reaching a level of satisfaction in respect of this and all adverse findings concerning Mr. Bebawy, I have been conscious of the seriousness of the matters alleged against him, the gravity of the findings, and the possible consequences in deciding such matters.
It was submitted on behalf of Mr. Bebawy, that the Authority should have called the other parties named in the back-dated documents if it was intended to refute Mr. Bebawy’s evidence. It was submitted, in reliance on the principle in Jones v Dunkel[6], that the unexplained failure by the Authority to call them leads to the inference that their evidence would not have assisted the Authority’s case.
[6] (1959) 101 CLR 298.
However, as was pointed out on behalf of the Authority, even if this were a case in which the principle in Jones v Dunkel might be brought into play, the other parties named in the back-dated documents were not complainants in respect of these matters. They were not in the Authority’s “camp”. They were or had been Mr. Bebawy’s own clients who, on his evidence, returned to his office at his request to sign the impugned documents.
In the end, however, it would make no difference to my ultimate decision on this issue whether or not the back-dated documents were actually signed by all, or some, or none of the clients. Of course, Mr. Bebawy’s conduct is the worse if, as I have found, the alleged signatories did not all sign the back-dated documents as he asserts.
But even if all the clients did sign the back-dated documents, as Mr. Bebawy claims, his conduct in procuring their signatures, and then attempting to pass off the newly-signed documents as the true service agreements under which he provided immigration services, is incompatible with any notion that he is a person of integrity or that he is a fit and proper person to provide immigration assistance.
In Attorney-General v Bax [1999] 2 Qd R 9, at page 13, McPherson JA said, in a case in which a solicitor’s name had been struck from the roll:
… the act of falsely “backdating” documents is plainly a serious matter. The ordinary presumption is that, unless there is affirmative evidence to the contrary, a document is taken to have been executed on the date it bears. Such evidence is often difficult to obtain particularly after a lapse of some time from the event. The presumption is therefore one on which business is habitually conducted and for that reason, among others, it is plainly important to maintain its integrity so far as possible …
In Mr. Bebawy’s case it was not only a matter of back-dating documents so as to engender a false belief as to when they were signed. He provided the back-dated documents in substitution for and to conceal the true service agreements entered into with his clients and the terms of those agreements.
The term “integrity” in s 303(1)(f) of the Act is well-understood. It encompasses soundness of moral principle and character, uprightness, and honesty: Lilienthall v Migration Agents Registration Authority (2002) 117 FCR 558 at [22].
The words “fit and proper”, as they apply in relation to persons holding vocations or offices, were considered by the High Court in the well-known case of Hughes and Vale Pty Ltd v State of NSW (1955) 93 CLR 127, at page 156:
But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”—Coke.
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Toohey and Gaudron JJ said, at page 380:
The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
Taking into account what I have said about Mr. Bebawy’s conduct, having regard to the wording s 303(1)(f) of the Act, and the nature of the duties of an immigration agent, I am satisfied that Mr. Bebawy is not a person of integrity. And applying the above principles I am equally satisfied that he is not a fit and proper person to provide immigration assistance.
Mr. Bebawy refused to accept his conduct was deceptive. He resisted the description “back-dating” in respect of the impugned documents. He denied any intention to mislead although that was plainly his intention. There was no acknowledgement of actual wrong-doing, and no element of remorse in respect of what he had done. If he has any true insight into what had occurred it was not expressed or apparent in his evidence.
I will refer now to the other matters relied on by the Authority.

Redback Butlers Pty Ltd: Brett Ormrod and Ritesh Gohil

Brett Ormrod was the director of Redback Butlers Pty Ltd (“Redback”) which was seeking to nominate Ritesh Gohil for a Subclass 457 visa. Mr. Bebawy was assisting in the preparation of the application for approval of the nomination, and Mr. Gohil in relation to an application for the visa.
On 21 September 2015, Redback’s application for approval of the nomination was refused, and Mr. Gohil’s visa application was also refused. The next day, the Applicant emailed the decision letter to Mr. Ormrod, attached a form to “appeal” to the Tribunal, and said “[p]lease make sure that we can meet this Friday at 10.40 to lodge the appeal”.
On 6 October 2015, both Redback and Mr. Gohil applied to the Tribunal for review of their decisions. Both applications identified the Applicant as their “representative” and their “authorised recipient”. Under s 379G of the Act, the Tribunal was required to communicate with the Applicant, rather than Redback or Mr. Gohil, in relation to the applications for review.
On 13 February 2017, the Tribunal exercised its power under s 359 of the Act to seek further information from Redback by issuing an invitation to the Applicant (as Redback’s authorised recipient).The invitation stated (emphasis in the original):
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement it might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

Mr. Bebawy forwarded the invitation to Mr. Gohil on the same day. On 15 February 2017, the Applicant explained the documents that he would need: “[o]nce received I will prepare the rest of the document”. On 21 February 2017, and then again on 23 February 2017, Mr. Ormrod provided a range of material to the Applicant.
In 27 February 2017 (being the last day on which the information could be provided without an extension), Mr. Ormrod sent an email to Mr. Bebawy, stating (emphasis added):[7]
Hi Mofid
Both Ritesh and myself are extremely concerned that you have not submitted the required information by the cut off timeline being today 27^th Feb.
If you felt that 27^th would not be feasible, should an extension of time be requested?
We have waited a long time for this matter to conclude with a great deal of stress & delay in moving forward.
As our representative for Ritesh, can you confirm submitting the required information by tomorrow will be acceptable? And if not, I will contact them direct for extension?
[7] Exhibit 1, T Documents, Email from Mr Ormrod, page 3319.
In a statutory declaration given to the Authority in June 2018, the Applicant stated that Mr. Ormrod said in this email that “he would seek an extension of time [from the AAT directly].” According to the Authority that is a “mischaracterization” of Mr. Ormrod’s email. Strictly-speaking, and without qualification, that is correct. But it may have been how Mr. Bebawy read the email, or remembered it more than a year later.
Mr. Bebawy gave evidence that Mr. Ormrod called him on the same day (27 February 2017) and “immediately after” the email said “Okay, if you’re not going to do it, I will do it myself and take it from here”.[8] The Applicant said: “I told him, we have not received the full documentation that’s required by the AAT, and he said he will deal with it himself thank you very much, and that was it. It was left at that point.”[9]
[8] Transcript, 7 September 2021, page 154, lines 41 – 42.
[9] Ibid, page 155, lines 1 – 2.
The Applicant did not suggest in his June 2018 declaration that there had been any such conversation between himself and Mr. Ormrod after the email. It is not referred to in subsequent communications with Mr. Ormrod (or Mr. Gohil). Nor is there any reference to any such conversation in the Applicant’s file note referred to below. However, the Applicant gave evidence at the hearing that there was such a conversation.
The Authority submits that this evidence given by the Applicant is false. It is described as belated and uncorroborated. The telephone call, it is submitted, is not merely absent from, but is said to be inconsistent with the content of subsequent communications between the Applicant and Mr. Ormrod and Mr. Gohil. Those communications included Mr. Ormrod’s assertion, addressed to the Applicant, that the Applicant had told him there would be no issue with obtaining an extension, which the Applicant did not directly refute.
On behalf of the Authority it is submitted that if the Tribunal is satisfied that the Applicant has sought to mislead or deceive the Authority by the provision of the file note and the June statutory declaration, and has “doubled-down” on this by giving false evidence to the Tribunal, then that is obviously incompatible with him being considered a fit and proper person to hold the position of trust of a registered migration agent.
The file note does not contain any reference to the alleged phone conversation, as the Authority points out. It does contain a number of anomalies which were also pointed out by the Authority. It is plainly not a contemporaneous account of what happened as it happened. Mr. Bebawy has clearly gone back to earlier dates and expanded upon what is recorded. In the end I did not understand him to say otherwise.
The Authority described the file note as a self-serving chronology designed to persuade the reader (specifically the Authority) that Mr. Bebawy was blameless in connection with the loss by Redback of its hearing right. Of course, it is not particularly surprising to find a self-serving file note on a problem file. It is another thing to say it has been created with the intention to deceive.
The Authority, as I have said, submits that Mr. Bebawy’s evidence concerning the alleged telephone conversation with Mr. Ormrod is inconsistent with subsequent communications between the pair. On the other hand, I have not seen or heard Mr. Ormrod give evidence. Mr. Bebawy’s counsel has not had the opportunity to cross-examine Mr. Ormrod before me.
In all the circumstances, and given the seriousness of the allegations, I am not satisfied that Mr. Bebawy has sought to mislead or deceive the Authority by the provision of the file note and the June 2018 declaration. It follows that I am not satisfied that he has “doubled-down” on this by giving false evidence to the Tribunal.

Non-compliance with the Code

Part 2 – standards of professional conduct

The Authority submits the Applicant has not complied with clause 2.1 of the Code, requiring inter alia that he deal with his or her client competently, and clause 2.6 of the Code, requiring that he or she take into account objective criteria to make an application under the Act and be frank and candid about the prospects of success of applications.
It was submitted on behalf of the Authority that the Applicant lodged an application for a Subclass 186 for Kiranjeet Kaur on 9 October 2014, knowing that Ms. Kaur’s sponsor (Café Kathmandu) was in liquidation. This was the subject of oral evidence at the original hearing but not before me. Having regard to the Applicant’s closing submissions on the first hearing (paragraphs 162 to 168)[10] I am not satisfied as to this alleged non-compliance.
[10] Exhibit 39, Applicant’s closing submission dated 15 May 2020.
The Authority submitted the Applicant lodged visa applications for Ravjinder Kaur (on 1 December 2015) and Parmjeet Kaur (on 16 February 2016), when he knew that their sponsor – Dahab Family Trust t/a Galaxy Seafood Mediterranean Restaurant – had ceased trading.
It was submitted that Mr. Bebawy had knowledge of the sponsor's financial position on the basis that he had access to the files of Choice Accounting. There are flaws or deficiencies in the evidence, however, identified in the Applicant’s closing submissions on the first hearing at paragraphs 180 to 183[11], such that I am not satisfied as to this allegation.
[11] Ibid.
The Authority contends the Applicant acted incompetently, in contravention of clause 2.1 of the Code, by advising Mr. Ormrod that there would be “no issue” with responding to the Tribunal’s invitation to provide information later than the nominated deadline. For the reasons indicated, I am not satisfied on the evidence as to this matter.
The Authority submitted the Applicant breached one or more of clauses 2.1, 2.4 or 2.8 of the Code, by failing to advise Manish Kumar in advance of a Tribunal hearing that he would not assist him at that hearing. This is alleged to have occurred in circumstances in which the Applicant was identified as the representative and the authorised recipient in connection with a review application.
The Applicant took issue with Mr. Kumar’s evidence given by video-link at the first hearing. For reasons advanced on behalf of the Applicant, at paragraph 44 of his closing submissions[12] on that occasion, it was submitted “The Tribunal should hold significant reservations about the reliability of his evidence”. I refer also to those submissions at paragraphs 201 to 223 where, amongst other things, the terms of the Applicant’s engagement were disputed.
[12] Ibid.
I did not hear or see Mr. Kumar give evidence, yet his reliability as a witness, if not his credibility, is in issue. In this respect the Applicant relied, in his submissions, on the witness’s demeanor and the manner in which he gave his evidence. I cannot be satisfied as to the Authority’s complaint in these circumstances.
The Authority alleged the Applicant held out unsubstantiated or unjustified prospects of success of a visa application to Laiq Hussain (“LH”), in contravention of clause 2.7 of the Code. The Applicant is said to have acted for Riaz Hussain in relation to an application for a Subclass 457 visa to be nominated by JC Shree Sai Wealth Pty Ltd. The Authority submits the Applicant made a representation to LH that Riaz’s visa application would succeed.However, by 15 December 2016, according to the Authority’s submission, the date that the Applicant states he met with LH, a nomination in respect of one of JC Shree's employees had been refused.
The Authority’s submission is somewhat confusing. However, looking at the references in the evidence referred to in the Applicant’s closing submissions on the first hearing, and accepting his submission that were deficiencies in the evidence and they have not been remedied, I am not satisfied as to these allegations.

Part 3 – obligations to clients

Clause 3.2A of the Code requires that once an agent has agreed to work for a client, but before commencing that work, the agent must provide the client with a copy of the consumer guide and make a record that the copy has been provided.
It is uncontroversial that the Applicant has made no record of having provided clients with a copy of the consumer guide. It is also admitted the Applicant failed to keep adequate files notes of important conversations with clients contrary to clause 6.1 of the Code.
The Applicant disputes that he failed to provide the consumer guide to clients. Those matters are addressed in his initial closing submissions at paragraphs 151 to 155[13]. The Authority submits in its closing written submissions, at paragraph 67: “It is doubtful that the applicant did in fact provide his clients with a copy of the guide. The Tribunal should not accept that.”[14] I am unwilling to make a finding adverse to the Applicant where, on the Authority’s case, it is described as “doubtful” that he complied with this requirement of the Code.
[13] Ibid.
[14] Respondent’s Closing Submission, filed 29 September 2021.

Part 5 – fees and charges

It is admitted the Applicant on many occasions charged fees to clients without giving them written confirmation (an Agreement for Services and Fees) of the services to be performed and the fees to be charged as required by clause 5.2 of the Code.
The Applicant says he erroneously amalgamated the relevant content with his template service agreement. Clause 5.5 of the Code provides that an agent must be aware of the effect of s 313 of the Act (Persons charged for services to be given detailed statement of services), and act on the basis that he is not entitled to be paid a fee for giving immigration assistance unless he gives the client such a statement of services, and also that the client is entitled to recover the amount of the payment as a debt due to him if payment is made.
The Authority submits the Applicant has taken no steps to refund payments to affected clients or inform them of their rights. The Applicant disputes that the relevant provision, clause 5.5(c) of the Code, creates an obligation to “refund” fees, in these circumstances. He submits the clause gives the client an entitlement to recover the amount paid as a debt. As to whether the Applicant has failed to act with integrity by failing to inform his clients of their rights under clause 5.5(c), the Applicant’s evidence is that he has sought advice on that issue and will comply with it. There is no evidence whether he has received that advice and, if so, what it is. I am not satisfied that Mr. Bebawy failed to act with integrity in this regard.
Clause 5.1 of the Code provides that, while “[t]here is no statutory scale of fees”, “a registered migration agent must set and charge a fee that is reasonable in the circumstances of the case”. Mr. Bebawy typically charged individuals $10,000 and received payment upon his engagement. He insisted that he performed the work he was engaged to do in one day, obviating the need to pay fees received into his trust account, as would otherwise be required under Part 7 of the Code.
In one case, Mr. Bebawy said he charged $7,500 for Kiranjeet Kaur for her Subclass 457 visa application, and $10,000 for her Subclass 186 visa application, with all work on both applications carried out in the course of a single day. Ms. Kaur was employed as a cook at a café or restaurant; and earned in the vicinity of $52,000 to $54,000 per annum.
Mr. Bebawy said he worked 12 to 18 hours in a single day and only then would be paid. He said his clients waited while he did the work. They would arrive early in the day and wait into the night apparently sometimes late at night. Mr. Bebawy’s evidence as to what he did, when he did it, and how long it took was unsatisfactory.
Elsewhere he appeared to say the actual professional work or “immigration assistance” he performed was an approximately 2- hour consultation with his client, after which the client spent time with his (non- migration agent) assistant to complete documents. During that time Mr. Bebawy would occasionally pop in and out to check how that was going, and supervise the visa applicant doing photocopying, and then uploading the documents online.
Whilst maintaining he carried out all the work in a single day, often taking 12 to 18 hours, Mr. Bebawy said he did lodge applications on later dates due to religious or astrological preferences of his clients. There are really two issues, first, whether there were payments which should have been deposited to his trust account in advance of work he performed, and secondly, whether his fees were reasonable.
The evidence is that the Applicant had a trust account but not a single transaction had been made on that trust account throughout his entire period practising as a migration agent. I am satisfied Mr. Bebawy did receive payments which should have been banked to his trust account.
There are numerous examples where there was a significant period of time between the date that the Applicant was paid by his client for work in connection with a visa application and the like and the date that the visa application was lodged.
Whether Mr. Bebawy delayed lodging applications because, as he says, that was his client’s preference is beside the point. (There are, incidentally, no file notes of any of these instructions.) The fact is he did lodge visa applications on later days, yet he failed to pay fees received in advance into his trust account.
As to whether his fees were reasonable, Mr. Bebawy said they were. It was submitted the difficulty for the Tribunal is that the Authority has failed to provide any reference point against which the Tribunal can assess, objectively, what is, and what is not, reasonable for the purposes of clause 5.1 of the Code. That, it is submitted, is fatal to the Authority’s argument. I do not accept that.
First, I do not accept Mr. Bebawy did spend 12 to 18 hours on an application on a single day while his client waited in his office. That is implausible and contradictory to other evidence he gave. In all the circumstances, including having seen and heard Mr. Bebawy, I accept that the work he performed on a single day, which may have resulted (although did not invariably) in lodgment of a visa application at that time, was as he described elsewhere, that is, involving his initial two-hour interview, and then leaving the client with his assistant.
Determining whether his typical fee of $10,000 is unreasonable is not dependent on evidence of what other immigration agents were charging or “industry practice” other evidence from the Authority providing a reference point. Such evidence could be helpful, and in some circumstances essential, especially if the issue is fairly arguable, but I do not consider that to be this case.
Courts and tribunals are frequently called on to make decisions of what is reasonable in a range of areas applying knowledge of community standards and experience. I am satisfied that a fee of $10,000, for what Mr. Bebawy’s said was usually (not to say invariably), one day’s work as I have described is unreasonable.

Conclusion

A migration agent must act honestly, and it is important that the public have confidence that migration agents are persons of integrity. It is relevant, as the Authority submits, that migration agents commonly act for unsophisticated clients in positions of relative vulnerability.
I am satisfied that Mr. Bebawy is not a person of integrity, and that he is not a fit and proper person to provide immigration assistance. I think that is established by his conduct in providing the back-dated documents to mislead the Department or the Authority and to conceal the existence of the true service agreements and their terms. That is sufficient, in my view, together with the matters referred to below, to call for the Authority’s decision to be affirmed.
In addition, there are multiple breaches of the Code of Conduct, some of which were admitted. There are good reasons why migration agents are required to provide statements of services and fees, to create and maintain proper records, and of course to charge reasonable fees.
I am not confident that Mr. Bebawy would operate in compliance with the Code in the future, for example, in regard to record-keeping. Although it was accepted that he failed to issue statements of services and fees, contrary to s 313 of the Act and clause 5.5 of the Code, he seemed unable to accept that he did anything more than use the incorrect format.
The submissions on behalf of the Applicant acknowledge that there was back-dating and that his conduct was misleading. These were not matters Mr. Bebawy, when asked about, was willing to admit to. He referred to “re-dating” and denied any misleading conduct.
There is no evidence of particular extenuating circumstances in terms of, for example, dire consequences of the financial impact of the cancellation of registration on the Applicant. Overall, it could not be said that he co-operated with an investigation given the back-dated documents. I have had regard to the matters contained in cases such as Narayan and Migration Agents Registration Authority (2006) AAR 5 at paragraph [132].
I am satisfied that the decision to cancel Mr. Bebawy’s registration as a migration agent should be affirmed. I am not satisfied that suspension, or any other sanction is appropriate.

I certify that the preceding 106 (one-hundred and six) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy

…………………[SGD]………………………..
Associate
Dated: 15 December 2021

Date of Hearing:	6, 7 & 8 September 2021 and 2 November 2021.
Solicitor for the Applicant:	Ms. Miranda Murray
Counsel for the Applicant:	Mr. Christian Jennings QC
Solicitor for the Respondent:	Mr. Ingmar Duldig
Counsel for the Respondent:	Mr. Nick Wood

[2021] AATA 4632

15 December 2021

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Breach

Remedies