Boulous and Migration Agents Registration Authority

Boulous and Migration Agents Registration Authority [2021] AATA 1594 (4 June 2021)
Division:GENERAL DIVISION
File Number: 2020/4100
Re:Hany Boulous
APPLICANT

Migration Agents Registration Authority And
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:4 June 2021
Place:Melbourne

The Tribunal, in respect of the decision to suspend the Applicant’s registration, sets aside the decision under review dated 22 June 2020 and substitutes it with a decision that the Applicant’s registration be suspended for a period of 18 months from the date of the decision, and otherwise affirms the decision under review.
......................[sgd]..................................................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION AGENTS REGISTRATION – suspension of registration as migration agent –where complaints made in relation to Applicant’s conduct – whether Applicant breached Code of Conduct for registered migration agents – whether Applicant is not a person of integrity or otherwise not a fit and proper person to give immigration assistance – nature of conduct after sanctions imposed – decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127
Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11
Peng and Department of Immigration and Multicultural Affairs, Re [1998] AATA 12
Shi v Migration Agents Registration Authority [2008] HCA 31
Secondary Materials
Migration Agents Regulations 1988 (Cth) Schedule 2 Code of Conduct
Department of Immigration and Border Protection Procedural Instruction Working with the Migration Advice Industry
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
4 June 2021
BACKGROUND

Mr Boulous applied on 7 July 2020 for review of a decision by a delegate of the agency responsible to the Respondent for oversight of migration agents, the Office of the Migration Agents Registration Agency (MARA), dated 22 June 2020, to suspend his registration as a migration agent for 12 months, and until specified conditions were met.
Mr Boulous was first registered as a migration agent on 24 April 2007, and his registration was renewed annually. The Applicant’s most recent period of registration commenced on 13 June 2019. Prior to this matter, Mr Boulous had no history of disciplinary action. For much of his time as a migration agent Mr Boulous conducted his work as part of the operations of the Southern Migrant and Refugee Centre (SMRC), and later established his own practice.
This matter has its origins in three complaints lodged with MARA:
(a)by Ms N dated 17 November 2016, that Mr Boulous had lodged a Protection Visa application using incorrect information (the first complaint);
(b)by the Administrative Appeals Tribunal (AAT) dated 5 April 2017, that Mr Boulous had advised on the submission of, and assisted with the procuring of, false documents in connection with a visa application for Ms E, and that similar actions were suspected in other cases (the second complaint); and
(c)by Mr Mubarak Odah,[1] dated 9 October 2019, that Mr Boulous failed to lodge his Temporary Protection Visa (TPV) application (the third complaint).
[1] Mr Odah gave evidence at the hearing.
MARA required Mr Boulous to give information under s 308 of the Migration Act 1958 (the Act) in respect of the first and second complaints, in the form of answers to questions or provision of documents or records. MARA required Mr Boulous to make submissions under s 309 of the Act in respect of the third complaint, which is enlivened when action is being considered with regards to an agent’s registration.
As a result of the complaints, and Mr Boulous’ engagement with MARA on the matters arising, a number of findings were made by the agency about breaches of the Code of Conduct for registered migration agents (the Code), and as to Mr Boulous not being a person of integrity or otherwise a fit and proper person to give immigration assistance. The breaches were assessed under three broad categories, being: failure to lodge Mr Odah’s TPV application; the making of misleading statements to MARA by Mr Boulous; and the failure to issue service agreements and financial documents to clients or to retain records.
The decision under review suspended Mr Boulous’ registration for 12 months. The decision also required of Mr Boulous: evidence that he has passed the ‘Capstone’ assessment to demonstrate his ability to meet the required occupational and competency standards; and a statutory declaration that he has not made immigration representations for a fee, has not advertised the provision of immigration assistance, and has not given immigration assistance while suspended.
In its submissions, and at the hearing of this matter, the Respondent pursued a further category of breaches which arose from instances of communications by Mr Boulous in late 2020, ostensibly in relation to immigration matters for several individuals. As a result of this activity, the Respondent’s representative submitted that a higher penalty was warranted, being cancellation of Mr Boulous’ registration.
Mr Boulous represented himself at the hearing, but received the assistance of a representative, Mr Ford, for the purposes of closing submissions. Mr Boulous lodged:
(a)a submission of 19 October 2020 with annexures, including a bundle of material relating to Mr Odah’s complaint, copies of text messages sent between Mr Odah and the Applicant, largely in Arabic, and emails regarding the post-suspension conduct;
(b)three undated submissions, which respond to the specific complaints and the question of integrity, and address the legislative framework; and
(c)an undated letter of reference of Ms Natalia Micsunescu (Exhibit A1).
The Respondent lodged a Statement of Facts, Issues and Contentions (RSFIC), including attachments addressing the post-sanction activity of Mr Boulous, and G documents. The Respondent also lodged a witness statement from Mr Odah dated 14 December 2020 (Exhibit R1) including two attachments: a copy of Mr Odah’s complaint; and copies of text messages sent between Mr Odah and the Applicant, largely in Arabic, which were originally filed with the Applicant’s submissions on 19 October 2020.
During the course of the hearing the Respondent provided a policy document of the Department of Immigration and Border Protection described as a Procedural Instruction and titled ‘Working with the Migration Advice Industry’ together with its ‘Complaint Classification Matrix’, Annexure A (Exhibit R2) (‘the policy document’ and ‘the matrix’, respectively). At my invitation, the Respondent’s representative also lodged after the hearing a further brief submission responding to closing submissions made by Mr Boulous’ representative.
Evidence was given by Mr Boulous, and he called a number of witnesses: Ms Sabina Sabet; Mr Richard Hardie; Mr Ali El Enizi; and Mr Thamer Alkhamat. The Respondent’s representative called Mr Odah to give evidence. An Arabic language interpreter assisted at the hearing.
LEGISLATION
Part 3 of the Act governs the registration and conduct of migration agents in the provision of immigration assistance. ‘Immigration assistance’ is defined very broadly in s 276 with respect to several different kinds of conduct including in relation to visa applications and cancellations, visa sponsorship, and the exercise of the Minister’s powers. The conduct encompasses:
(a)‘preparing, or helping to prepare’ visa applications or reviews, documents in relation to sponsorship, or requests to the Minister (ss 276(1)(a), (2)(a), and (2A)(a)–(aa));
(b)‘advising’ about visa applications or reviews, sponsorship, or a request to the Minister (ss 276(1)(b), (2)(b), and (2A)(b)); and
(c)‘preparing for proceedings’ or representing in proceedings in relation to visa applications, reviews, or sponsorship (ss 276(1)(c)–(d), and (2)(c)).
Under s 276(3) of the Act the following are excluded from the definition of immigration assistance:
(a)clerical work to prepare (or help prepare) an application or other document; or
(b)translation or interpretation services to help prepare an application or other document; or
(c)advising another person that the other person must apply for a visa; or
(d)passing on to another person information produced by a third person, without giving substantial comment on or explanation of the information.
Immigration assistance is addressed further in the Migration Agents Regulations 1988 (the Regulations) but the provisions included there are not pertinent to the present matter.
Under s 280 of the Act a person must not give immigration assistance unless they are a registered migration agent and, under s 281, a person must be registered in order to charge or receive a fee or reward for immigration assistance. Further, under s 282, only a registered migration agent may ask for or receive a fee for making ‘immigration representations’, which are defined as making representations or otherwise communicating with the Minister, their staff or the Department with respect to visa applications or reviews, sponsorship or the exercise of the Minister’s powers.
Part 3, Division 3 of the Act deals with the registration, qualifications and disciplining of migration agents. Relevantly, under s 290, an applicant must not be registered if MARA is satisfied that ‘the applicant is not a fit and proper person to give immigration assistance’ (s 290(1)(a)), or ‘the applicant is not a person of integrity’ (s 290(1)(b)). A number of factors must be taken into account in considering whether an applicant is not a fit and proper person or a person of integrity which include ‘the extent of the applicant’s knowledge of migration procedure’ (s 290(2)(a)), ‘any disciplinary action that is being taken, or has been taken, against the applicant’ (s 290(2)(f)), and ‘any other matter relevant to the applicant’s fitness to give immigration assistance’ (s 290(2)(h)).
The disciplining of registered migration agents is provided for in s 303 of the Act. The sanctions available under this section include: cancellation of an agent’s registration (s 303(1)(a)); suspension of registration (s 303(1)(b)); and a caution (s 303(1)(c)). These sanctions arise if MARA is satisfied, relevantly, that the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance (s 303(1)(f)), or the agent has not complied with the Code (s 303(1)(h)).
The Code is prescribed in the Regulations pursuant to s 314 of the Act, and a registered agent must comply with the Code (s 314(2)). A period of suspension may not be more than five years (s 304(1)(a)), and a condition or conditions may be set for the lifting of a suspension (s 304(1)(b)).
The aims of the Code are set out in clause 1.10 and they are :
(a)to establish a proper standard for the conduct of 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 a fit and proper person to give immigration assistance;
(ia)    being a person of integrity and 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;
(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.
Specific provisions of the Code arising in this matter are set out together with the summaries of the complaints and MARA findings below.
MARA’s capacity to manage complaints derives from s 316(1)(c) of the Act. This provision states that the investigation of ‘complaints in relation to immigration assistance by registered migration agents’ is among the statutory functions of the agency. Regulation 9 of the Regulations provides a number of possible sources for complaints, including clients as well as tribunals. The process of complaint handling is dealt with briefly in the Code, and at greater length in the policy document.
EVIDENCE
Complaint record
In order to provide context for the evidence at the hearing, and the submissions more broadly, it is necessary to set out a summary of the complaints, including the further conduct raised in the RSFIC. As noted above, a series of findings were made by MARA arising out of the complaints, which will also be set out below.
First complaint
This history of this complaint is set out in the decision record (G2, pp 11–14). In summary:
(a)it was claimed that Mr Boulous: failed to accurately translate material from Arabic relating to the complainant’s application; included material inconsistent with the application; and instructed the client prior to a Tribunal hearing about this inconsistent material, which the complainant knew to be wrong;
(b)the complainant was unable to provide relevant documentary evidence to MARA as, it was claimed, Mr Boulous had not himself supplied the client with a service agreement, invoices or supporting statements;
(c)Mr Boulous provided MARA with supporting documents, but not the complete file relating to the complainant’s application;
(d)Mr Boulous advised that document preparation including translation work was undertaken primarily by one of his colleagues at the SMRC, and that there was no agreement in place with himself; and
(e)Mr Boulous also provided contrary information, asserting that he did complete the complainant’s application, denied making translation errors, and stated that the client did not raise these concerns at the time of the Tribunal hearing.
Second complaint
The history of this complaint is set out in the decision record (G2, pp 14–22). In summary:
(a)the AAT alleged that Mr Boulous had assisted a review applicant to procure false police and court documents, that the review applicant gave evidence to this effect during a Tribunal hearing, and also that Mr Boulous had advised them that their own claims were not strong enough to obtain a visa;
(b)it was further alleged that a Departmental delegate had indicated that the same source appeared to be responsible for false documents provided in a number of other applications, all of these matters involving Egyptian applicants;
(c)Mr Boulous had rejected the information provided by the Department to the review applicant (the subject of the complaint), and the records also indicated that Mr Boulous was the registered agent in seven other similar cases;
(d)Mr Boulous responded to the issue regarding the subject of the complaint, but did not provide a complete client file, and asserted that the evidence demonstrated that he did not procure the false documents;
(e)Mr Boulous rejected the claim that he had a role in the use of false documents in other matters, which he stated were procured by the review applicants or family members. He also stated that he did not prepare applications for two of the cases, and he did not provide a response in relation to two others;
(f)Mr Boulous stated that the sums paid by the clients in question were not enough to pay for false documents and that his high caseload meant that he lacked the time to make such arrangements;
(g)Mr Boulous also failed to provide client files in respect of the further matters raised;
(h)in response to requests for further documents and information by MARA, Mr Boulous provided additional information about his work at SMRC. Mr Boulous responded that he had been requested to transfer existing SMRC clients, who had already paid 80% of their fee and who might be disadvantaged in their outstanding applications by the closure of the SMRC immigration service, to his own agency;
(i)Mr Boulous did not directly address contrary information about his involvement with an applicant who Mr Boulous asserted he had not in fact been assisting; and
(j)the SMRC wrote to MARA stating Mr Boulous had been employed as a migration agent between 14 August 2007 and 31 January 2015, and from 1 February 2015 was to continue to provide advice as a volunteer.
Third complaint
The history of this complaint is set out in the decision record (G2, pp 22–25). In summary:
(a)Mr Odah claimed that after receiving assistance with his first TPV claim, he approached Mr Boulous again after receiving notification in August 2018 to apply for a further TPV;
(b)Mr Odah claimed that he reached agreement with Mr Boulous to complete a cleaning job at Mr Boulous’ house in exchange for the further application, and Mr Boulous did not complete a service agreement with him;
(c)Mr Odah claimed that Mr Boulous told him he had paid a fee and lodged the application (albeit the dates supplied by Mr Odah were ambiguous), but discovered in June 2019 that his application had not been received;
(d)Mr Boulous informed the Department he had experienced online payment problems and had instead posted the application with an onshore humanitarian visa application for another client, to the Melbourne office;
(e)in its response, the Department noted that it had received the other application and that Mr Odah’s application would not have been valid if received at that address;
(f)as a result, Mr Odah became unlawful and was prevented from applying for another visa;
(g)Mr Odah later advised MARA that he was owed $2,000 for the cleaning job and had subsequently been asked to pay sums of $100 and $50 by Mr Boulous;
(h)Mr Boulous contacted the Department on 24 June 2019 with queries about Mr Odah’s application, and on 25 June 2019 attempted to lodge a TPV application for Mr Odah online (which was rejected as Mr Odah was no longer eligible); and
(i)in further responses to MARA, Mr Boulous asserted that Mr Odah had failed to pay an application charge of $40 and that the Applicant did not ordinarily charge for later re-applications of the same visa type. Mr Boulous also claimed he had continued to help Mr Odah notwithstanding the non-payment of the charge and that Mr Odah did not sign a service agreement. Mr Boulous also alleged certain things about Mr Odah’s standing in his community.
Complaint outcomes
As noted above, Mr Boulous’ actions in relation to these specific complaints were assessed against three broad categories.
The first category is Mr Odah’s complaint. MARA found that in his dealings in relation to Mr Odah’s TPV renewal, Mr Boulous had breached the following clauses of the Code (all arising under Part 2 – Standards of professional conduct):
(a)2.1(b) – agent must always deal with his or her client competently and fairly;
(b)2.3 – an agent’s professionalism must be reflected in a sound working knowledge of the Act and other relevant legislation, and in a capacity to provide accurate and timely advice;
(c)2.4 – an agent must have due regard to a client’s dependence on their advice;
(d)2.8 – an agent must, within a reasonable time of agreeing to act, confirm instructions in writing, act in accordance with instructions, keep the client fully informed, and tell the client of the outcome; and
(e)2.18 – an agent must act in a timely manner once a client has provided necessary information in time for statutory deadlines.

The second category relates to misleading statements made to MARA. MARA determined that Mr Boulous had committed multiple breaches of clause 2.9A of the Code. This provision states that an agent must not mislead or deceive the authority directly, or by withholding relevant information, when communicating or otherwise providing information to MARA. The outcome was determined on a number of different grounds:
(a)conflicting information said to have been provided by Mr Boulous in respect of the first complaint about the nature of his engagement, communications with, and services to, the complainant. MARA determined it was unable to make out the substance of this complaint due to insufficient evidence, but considered the Applicant provided contradictory responses which was an attempt to mislead MARA;
(b)contradictory statements said to have been made by Mr Boulous with respect to the main subject of the second complaint, including a failure to provide records in breach of the Code; and
(c)evidence before the authority indicated that Mr Boulous was involved in the visa application of one of the other cases arising in the second complaint, contrary to advice provided by Mr Boulous, thus misrepresenting the extent of their relationship. This was also a breach of clause 2.1(a) of the Code (which requires an agent to act in accordance with the law and the legitimate interests of their client).
The third category in the decision record is the failure to issue service agreements and financial documents to clients, and to retain records. In respect of this category findings were made that Mr Boulous breached the following clauses of the Code:
(a)5.2 – an agent must provide to a client a range of things including an estimate of charges, and provide written confirmation in an Agreement for Services and Fees;
(b)6.1 – an agent must maintain proper records and make them available for inspection, containing copies of the client application and copies or notes of relevant communications with the client and other parties;
(c)6.1A – such records must be kept for seven years;
(d)6.3 – an agent must respond within a reasonable time to a request for information;
(e)7.4 – an agent must keep client account records; and
(f)9.3 – if MARA gives an agent details about a complaint, the agent must respond properly and within a reasonable time.
More specifically, MARA made the following findings:
(a)while Mr Boulous advised that he did not issue any service agreements to clients who were originally engaged under the SMRC, and did not issue financial documents where the fees were made out to SMRC, his conduct appears to be systemic to his practice and accordingly he committed multiple breaches of clause 5.2 of the Code;
(b)Mr Boulous failed repeatedly to provide complete files for the matters in the first and second complaints, hindering the authority’s investigation;
(c)despite declaring in a statutory declaration that he needed more time to provide certain records, Mr Boulous failed for over two years to provide them; and
(d)Mr Boulous failed to provide any financial documentation for any of the clients or related matters arising from the complaints.
MARA formally made findings with respect to Code breaches as outlined above. It also made a determination that Mr Boulous was not a person of integrity or otherwise a fit and proper person to give immigration assistance. This determination was based upon: negligence with respect to Mr Odah’s application that demonstrated critical shortcomings in his understanding of the legislation and his professional obligations; repeated and knowing dishonesty in provision of information and statements to the authority, including his failure to declare his support of one of the clients in the second complaint; unwillingness to engage with the authority which hindered the investigation of the complaints; and, in respect of the first complaint, failed to exercise good ethical judgment when engaging in a course of conduct that he knew or should reasonably have known would undermine the temporary visa program.
The sanctions decision was informed by the conclusion that Mr Boulous demonstrated dishonesty, negligence and non-compliance with obligations, and this warranted a period of separation from the profession. It was also concluded that systematic professional shortcomings required remedial action and learning.
Conduct after suspension
In its RSFIC the Respondent alleges that Mr Boulous provided immigration advice following his suspension (RSFIC [42]–[44] and Annexures 1–3), on three separate instances which can be summarised as follows:
(a)preparing or helping to prepare an application for an orphan child by sending an email to the Department of Foreign Affairs and Trade (DFAT) on 22 October 2020 in relation to the application. Annexure 1 to the RSFIC is an email of this date from the Applicant’s Yahoo account and signed ‘Frontier Immigration’ (the name of Mr Boulous’ agency) to the DFAT email address related to Phnom Penh. The email seeks information in relation to sponsorship evidence and states, in part, that ‘we are in the process of getting school records …’ and also provides documents including an Australian Federal Police name check;
(b)lodging a Form 956 document appointing Mr Boulous as agent for a client. Annexure 2 consists of an email exchange between Mr Boulous and MARA’s Professional Standards and Integrity section, together with the form apparently signed by Mr Boulous and a client on 27 November 2020. The MARA officer sought a response from Mr Boulous, having been informed that the Dubai post had received communications from the Applicant regarding at least six individuals. In a response dated 9 December 2020, Mr Boulous states that he does not provide any immigration assistance, but clients have asked staff in his office to email documents or information. He states further that he offered free of charge service, and had a list of over 300 people he had assisted free of charge; and
(c)corresponding regularly with the Department in relation to individual applications for citizenship. Annexure 3 comprises a series of email exchanges on several citizenship matters between the Department and Mr Boulous. In one case the emails date back to April 2020 (prior to the suspension decision) and are signed ‘Hany Boulous’. Later emails dated variously in November 2020 in relation to this same matter, and other applicants, are signed ‘Frontier Immigration’.
Oral Evidence
Hany Boulous
Mr Boulous gave evidence in chief with the assistance of the Respondent’s representative. Mr Boulous stated that he was first registered as a migration agent in 2006 and had always re-registered annually. He described the initial qualification process and undertaking a Graduate Diploma at Victoria University, describing the unit structure and assessment process. Mr Boulous stated he had always undertaken the ongoing professional development requirements.
Mr Boulous was asked to describe his understanding of the term ‘immigration assistance’. His evidence in response was initially based on reading the relevant legislative provisions contained in the RSFIC. I asked Mr Boulous to provide a statement of his own knowledge, and he identified non-legal advice such as filling in forms and using skills and experience to help other people.
With reference to the address in Dandenong given in his application, Mr Boulous stated that he conducts an immigration business and a tile importing business from this address, which is also his residence. He stated that he permits other people to use his office space to provide immigration advice and National Disability Insurance Scheme advice. Mr Boulous stated that his Yahoo email account is not a personal account and that ‘many’ other people have access to it. He stated ‘I open it up and tell them what to do’. Mr Boulous confirmed that he had used this account for immigration work, and that the account is also linked to the office scanner.
Mr Boulous stated that he works with an administrative assistant, and a paralegal. When asked to confirm what tasks he did, Mr Boulous stated that he has a mental health problem, his image was bad as a result of this matter, he cannot stay with his children, and he had to close his showroom. When asked further about his day-to-day work, Mr Boulous stated that he does not provide immigration help and he is ‘not handling new cases since his license was suspended’. Mr Boulous explained that he was divorced from his wife and is living off a financial settlement. He also stated that he had set up a tile business to try something with less pressure and stress than immigration law.
Mr Boulous was asked whether he has any other names, for example a middle name. Mr Boulous responded that his middle name is Ramzy, but that here in Australia he uses the name Hany Boulous.
Mr Boulous was asked about his relationship with the SMRC. He stated that he commenced initially as a part-time immigration agent in around 2007 and continued there for around six years. Mr Boulous was responsible for a number of staff and volunteers. When the SMRC ‘ran out of funds’ they asked him to open an office to manage the ongoing client list of around 300. The transition out of SMRC was complete by around October 2013, and Mr Boulous stated that he continued to work under the name Frontier Immigration until his suspension.
In relation to Mr Odah, Mr Boulous acknowledged the execution of a Form 956 appointing himself as migration agent (G11, pp 99–101). Asked whether he lodged a protection visa application (G12, pp 102–121) which cited Mr Boulous as migration agent, the Applicant responded, ‘I am not the one to answer that question’. Mr Boulous stated that Mr Odah ‘told me he was using the services of another agent’. I asked Mr Boulous when this happened and he stated that Mr Odah’s visa expired in March, and the he approached the Applicant in April or May, also stating that ‘he didn’t pay’.
Mr Boulous was again taken to the documents in his evidence. The Respondent’s representative noted the Form 956 was signed by the Applicant on 10 January 2019, and the visa application was dated 25 June 2019. Mr Boulous responded that he was not acting for Mr Odah, but ‘helping him with certain matters’. Mr Boulous stated the application was prepared but no fee paid, and ‘Odah disappeared’. The Applicant accepted that he did not lodge a further Form 956 withdrawing as Mr Odah’s agent, stating that Mr Odah told him he was using a lawyer. Mr Boulous stated that he did not try to post the visa application and did not instruct his staff to do so. Mr Boulous then stated that the administrative staff did send the visa application in when it ‘got mixed up with material for another visa’.
Mr Boulous acknowledged that he had attempted to lodge Mr Odah’s application online, but his credit card was at its limit. He stated he also tried to pay with the card of a volunteer at the office. It was put to Mr Boulous that his evidence was both that he did not lodge, because Mr Odah did not pay the fee, and that he had attempted to make an online payment. Mr Boulous replied that he first attempted payment in January and kept asking Mr Odah for payment, and that Mr Odah had said he was using someone else.
Mr Boulous was directed to the contents of an email dated 24 June 2019 (G14, p 138) in which he stated that an attempt to pay was made in January, and that the application was also posted in January 2019. In response Mr Boulous stated that this confirms that Mr Odah did not pay and stated further that Mr Odah’s file went to the wrong area of the Department. Mr Boulous confirmed his previous evidence that submission of the application was made by mistake. Asked why he followed up on the application in June, Mr Boulous stated that ‘it’s about ethics, someone came to my office’ and needed help.
With reference to the decision record supporting the decision under review (G2, p 31 at [56]) and an email from the Applicant to the Department (G14, p 176), Mr Boulous was asked to clarify statements he had made about the issue of payment for Mr Odah’s visa. Mr Boulous initially stated that regardless of the argument he raised (that another client had offered to pay for Mr Odah’s application), ‘I should do work despite the fee?’ Mr Boulous then stated that there was a misunderstanding and no one else had offered to pay the fee. Mr Boulous then stated that one client did offer to have the funds allocated for their immigration card to be applied to Mr Odah’s visa; this occurred after Mr Odah’s existing visa was cancelled.
Mr Boulous was asked whether he confirmed Mr Odah’s client instructions in writing as required by the Code. The Applicant responded that these were contained in the text messages provided in his submission. He was then asked more broadly about the MARA finding in relation to failures in record keeping. Mr Boulous responded with a number of statements including: that it is ‘based on the customer’; Ms N ‘claims I made it but she sent it to me’; with a free service he is ‘entitled not to have an agreement in place’; and, with reference to a spreadsheet (provided with his submission), that work was all done while he was with SMRC.
When asked about a failure to provide complete files to MARA, Mr Boulous again provided several responses. He stated, in part, that ‘of course’ he provided material after MARA requested it, and that he did not provide a file in respect of the first complaint. I asked Mr Boulous whether he obtained files from SMRC, and he responded that some were electronic and that there were also some ‘internal issues’.
In relation to his conduct following suspension, Mr Boulous confirmed that he wrote to an official in the Department in December 2020 advising that he was not at that time providing immigration assistance (RSFIC, Annexure 2). Mr Boulous confirmed that he also completed the first and third pages of a Form 956 (RSFIC, Annex 2) for a Mr M. The Applicant stated that Mr M had ‘come to the office and then to write a letter’ and his administrative assistant helped with this. Mr Boulous stated he did not charge Mr M. When asked to confirm what the Applicant had done to assist Mr M, Mr Boulous stated ‘nothing’. He stated that an Afghan woman (Ms J) who used to help at his office wrote the letter and sent it from ‘our email’.
Mr Boulous was asked why the Form 956 lodged on 27 November 2020 indicated at question eight that assistance was provided by an ‘Exempt person’, and to explain the reason for this provided at question 11, which was ‘close family member’. He responded that this was because Mr M knew him through Ms J. Mr Boulous reiterated in his evidence that he filled out the Form 956, not Ms J. He stated that he advised MARA that he was not providing immigration assistance, and this assistance was provided by Ms J. When asked why no information was provided in response to question 15 ‘Type of assistance’, Mr Boulous responded that ‘I am just sending a document’.
When asked directly by myself whether Mr Boulous deliberately did not fill out a response to question 15, the Applicant stated ‘yes, correct’. He stated further that he also did not fill out a response to question 12 regarding the nature of the client’s situation because he was ‘not speaking on behalf of anyone’, adding ‘is it considered immigration assistance to help submit a letter’? I pointed out to Mr Boulous that the title of the Form 956 is explicitly with reference to providing immigration assistance, and that he made a declaration to this effect on page three of the form. Mr Boulous replied to the effect that all his life he had just tried to help. He also stated that in his response to the departmental officer (RSFIC, Annexure 2), he informed the officer that he was providing help to other clients.
The Respondent’s representative asked Mr Boulous to confirm that he understood the departmental officer had asked him about several communications with the Dubai post. Mr Boulous replied ‘yes, absolutely’, and that it was not just Dubai, but also Cairo and Indonesia, and that all his work was free of charge.
Mr Boulous was asked about an email dated 22 October 2020 (RSFIC Annexure 1, p 18) in relation to sponsorship for a child’s visa. Mr Boulous stated that the sponsor was aware that the Applicant was deregistered and that he had been appointed migration agent two to two-and-half-years prior. Mr Boulous stated he had acted for the sponsor in relation to their permanent protection visa, so he was ‘trying to help her son’ by scanning documents and sending them to ‘Immigration’. Mr Boulous was asked to confirm that in this email he was providing documents to the Government in relation to a visa application. The Applicant responded that he did this at the request of a single mother, free of charge, asking ‘is it professional help if it is for free?’ When asked to clarify the meaning of the phrase in the email ‘we are in the process of getting the school records …’, Mr Boulous stated that ‘we’ meant the sponsor and their brother.
Mr Boulous was then asked about the phrase ‘hope to get a response to advise the applicant accordingly’ in an email dated 30 November 2020 (RSFIC Annexure 3, p 32). He responded that this was not about immigration but in relation to the issue of a police check in Pakistan. Mr Boulous accepted that this email was in relation to a citizenship application but stated that it was ‘all done prior to suspension’, and that the process was finished and he ‘just did not know how to get a police check’.
Sabina Sabet
Ms Sabet stated in evidence that she is an education agent and that she met the Applicant when she commenced as a volunteer at SMRC in 2013. She stated that she maintained regular contact with Mr Boulous, and that she was called to give evidence because she witnessed events involving Mr Odah relevant to this application. The Respondent’s representative registered their concern that prejudice may arise if the witness was led by Mr Boulous.
Ms Sabet stated that she worked with the Applicant for about five years as an education agent and as Mr Boulous’ executive assistant. She last worked for him in early 2018. Ms Sabet stated she was aware of Mr Odah’s complaint when informed by the Applicant in June 2020. She stated that her direct involvement in the matter arose from the use of her card to attempt to pay for Mr Odah’s application. Ms Sabet stated she was briefed on the conversation between the Applicant and Mr Odah and was asked to use her card.
Ms Sabet also stated that she saw an unsigned ‘contract’ on Mr Boulous’ desk. Upon further questioning she accepted that she had assumed this was an agreement with Mr Odah.
Ms Sabet stated further that SMRC files were transferred to the Applicant’s office, together with some furniture. She estimated that eight, four-drawer cabinets containing files were delivered.
Richard Hardie
Mr Hardie stated that he was engaged in the business of shopping centre leases. He previously volunteered at SMRC as a pro-bono migration agent around 2011–2012. Mr Hardie stated that he was in contact with Mr Boulous from time to time.
Mr Hardie stated that he attended to give evidence on the Applicant’s behalf when told a few weeks ago that a client had made allegations against Mr Boulous. He wished to give character evidence as he was ‘amazed’ at the allegation, which he thought must be false. Mr Hardie suggested that a lie detector test was the best way to resolve this kind of dispute.
Ali El Enizi
Mr El Enizi stated that he is a student and that Mr Boulous had helped him approximately three years ago to bring his family together. Mr Boulous outlined the questions he intended to ask the witness and I suggested to Mr El Enizi he might care to speak to the subject of Mr Boulous’ services.
Mr El Enizi stated that he swore by God that the Applicant provided a ‘first class service’. In his own case he was prepared to pay $1,000–1,500 for his services but Mr Boulous insisted that he only pay $20. Mr El Enizi stated that the Applicant’s reputation stretches as far as Sydney.
Thamer Alkhammat

Mr Alkhammat stated that he is an Uber driver and is in training to register as a physiotherapist. He was first a client of the Applicant’s and then in order to gain Australian work experience he worked as a volunteer with Mr Boulous for six months between June 2016 and January 2017.
The witness stated that he was present and involved when Mr Boulous offered to pay a phone bill for Mr Odah. Mr Alkhammat stated that he ‘remembered the gentleman very well’ and that it was a Vodafone bill of $500. When Mr Odah came to the office, Mr Boulous asked the witness for cash which he had available from funds provided by another client.
Mr Odah
Mr Odah confirmed the contents of his statement (Exhibit R1) and that Mr Boulous had asked for a fee of $2,000 to submit the visa renewal for Mr Odah. In his evidence and statement, Mr Odah stated that Mr Boulous asked the witness to clean his house which took four days and that Mr Boulous did not pay for that service. Mr Odah stated that he asked for payment and Mr Boulous said that the money owed would cover the fee for the visa renewal. When asked when this happened Mr Odah stated that it was approximately 2018.
Mr Odah further confirmed that Mr Boulous told him that the application fee of $40 had been paid by another person. The witness also confirmed that he sent text messages to Mr Boulous. At this point the messages were displayed in ‘share screen’ mode in the hearing and the witness was asked to read messages as part of his evidence.
The first message dated 13 January 2019 was from Mr Boulous and asked Mr Odah to attend the office to pay ‘according to our agreement’ the application fee, which was already paid by Ms Sabet, and to pay other fees and expenses. The response from Mr Odah was ‘Insyallah OK’. Following this initial exchange, the messages consist of numerous requests by Mr Boulous for the witness to pay money or transfer funds. Messages continue through January, February and March, and there is a break in communication between 31 March 2019 and 6 June 2019.
Mr Odah re-stated the agreement as set out above. He stated further that the outstanding money arose seven months prior to the expiry of his then existing visa. Mr Odah stated that he visited Mr Boulous in approximately January. Mr Odah stated that he was told in January the renewal had been successfully lodged online. He then stated that ‘after some time’ Mr Boulous told him that he was unable to renew the visa.
The witness was asked why the text messages refer to the need to pay additional amounts. Mr Odah replied that this was to make sure the application and any questions were addressed and to deal with extra costs if the application were delayed. The additional fee was between $100–$150 per hour, but Mr Odah stated he was told it might be more if there were further delay. Mr Odah stated that he paid $50 in cash.
In cross-examination, Mr Odah stated that he was unable to remember when he first met Mr Boulous but recalled a visa application in 2014. Mr Odah stated that he paid Mr Boulous $500 in relation to his first visa application, $1,500 on a second occasion, and approximately $1,000 in relation to residency. When asked whether he attended Mr Boulous’ office on over 30 occasions between 2013 and 2016, Mr Odah was unable to recall but stated ‘it’s possible’.
Mr Boulous asked Mr Odah for confirmation about fees and services and, following an objection, I asked Mr Odah how many times he had paid smaller sums to Mr Boulous. Mr Odah responded that he paid $100 cash and a further $50 on the machine.
With respect to the cleaning work, Mr Odah confirmed that he had stated that $2,000 was outstanding, and that he had some assistance to complete this work. When asked who had the idea to use the cleaning service fee to pay for the visa renewal, Mr Odah stated that the Applicant proposed this arrangement when Mr Odah went to the office to make the renewal application. Asked whether the ‘deal’ was set up in 2016, Mr Odah stated it was a few months before the expiry date, that Mr Boulous agreed, and that Mr Odah went back in approximately January.
I sought clarification as to when the cleaning work took place. When asked if it was toward the end of 2016 or early 2017 Mr Odah stated ‘approximately’ and that he did not remember. Mr Odah agreed that Mr Boulous paid a phone bill on his behalf, but did not remember the amount. Further questions and answers indicated this payment was related to another transaction involving a separate individual.
Mr Odah stated that he became aware that the renewal had not been lodged approximately in May when his ‘Medicare’ expired. Mr Odah stated again that he had been told the application was lodged. When asked whether he had evidence supporting this, Mr Odah stated he was not sure. He then stated that he had ‘papers’ of about ten pages ‘about my situation’.
SUBMISSIONS
In his primary submission, dated 19 October 2020, Mr Boulous states:
(a)he has responded to the first and second complaints, and has a record of assisting people in need;
(b)Mr Odah undertook a cleaning job at the Applicant’s house and was paid for this service in 2016;
(c)when Mr Odah approached the Applicant’s office about his visa renewal Mr Odah was informed of Mr Boulous’ application and service fees of about $35 and $500 respectively. Ms Sabina Sabet was a witness to Mr Odah not paying fees;
(d)Mr Odah’s application was posted by mistake to the wrong department, but Mr Odah did not sign any document or provide any evidence in support of his application;
(e)despite numerous requests by SMS, Mr Odah took no action, and Mr Boulous assumed the application was being handled by another agent;
(f)the client (Mr Odah) was irresponsible by not paying fees or signing documents and Mr Boulous did not lodge the application online, but the application was drafted online pending further information;
(g)the ‘false accusation’ has caused Mr Boulous to lose his reputation and he is a person who has put his clients ahead of his own personal life, and he paid a phone bill for Mr Odah of $500 when he was unable to pay; and
(h)SMS messages in Arabic attached to the submission support Mr Boulous’ statements.
In an undated submission regarding the complaints, Mr Boulous submitted as follows:
(a)the complaint regarding false documents was motivated by the intervention of a third party, apparently parties associated with the Coptic Orthodox Church, as Mr Boulous had offered services at little or, in some cases, no charge;
(b)there were many cases in this particular community associated with false documentation, but Mr Boulous himself had no advantage in providing false reports, and the complaint is baseless;
(c)it was not possible for Mr Boulous to offer to undertake Mr Odah’s visa renewal in exchange for a cleaning job as this took place some years prior, and the job was not valued at $2,000; and
(d)Mr Odah’s application was prepared but he was advised about the fees and left without making any effort to follow up, only approaching Mr Boulous’ office again three months after his visa expired.
In his submission on the question of integrity, Mr Boulous states as follows:
(a)he has a record of employment as a lecturer prior to his time at SMRC, and worked both part time and then full time at SMRC on a lower wage, and worked hard to help refugees;
(b)he set up a system of concessional fees to accommodate clients of SMRC and it was a tragedy that SMRC had to close its immigration department;
(c)he was asked by the directors of SMRC to offer a transition for existing clients; and
(d)he has made his clients his priority and is a person of integrity and honesty.
In his submission on the legislative scheme Mr Boulous sets out various provisions relating to the role of a migration agent. He also includes the following submissions which deal in large part with the alleged post-suspension conduct:
(a)the legislative framework sets out ‘certain cases where it says a person must not give immigration assistance and must not ask for or receive any fee or reward for giving immigration assistance’;
(b)in relation to the visa sponsorship communications following his suspension, Mr Boulous did not charge any fees, did not personally provide immigration advice or assistance ‘but only through my office I have provided documents required by the sponsor and her child which could not be of any breach I did not try to hide this or act inappropriate way and did not mislead any parties involved’;
(c)the sponsor in that case was a desperate single mother ‘and all she needs was to provide documents’;
(d)‘I confirm I have never breached any of the above clauses as I have never used knowledge or experience in return for any fees or money’;
(e)many other cases involving people of Afghani background ‘used to attend my office and seek help from admin staff working at the office’ who ‘were able to help with documents and assist them’;
(f)‘since my licence suspended people were affected by COVID-19 and the only way they could communicate was my email. They were going through a trauma and I did not provide any consultations or took any money as the office is still closed. There is no evidence of me giving anyone consultation since my licence suspended and I have closed my office’;
(g)‘[N]o new client and no new cases were lodged since my license got suspended’;
(h)‘… it was good will for the clients to use my office resources to scan and send their documents to the department so they could take their stress off as the COVID 19 affected people lifestyle and immigration process of their cases’;
(i)‘[S]o helping a person at no cost and care for them is that considered as a breach of conduct. I have done nothing wrong nor I had no intentions to get any gain in that regard’; and
(j)the existing customers were aware of Mr Boulous’ licence suspension and insisted that he support them.
The unsigned statement from Ms Micsunescu attached to Mr Boulous’ submissions states that she was a registered migration agent at SMRC for 20 years. She states that she considers the complaint unfair, and that she considers Mr Boulous diligent, competent and fair.
As noted above, Mr Boulous received assistance from Mr Ford with his submissions at the hearing. Mr Boulous stated that Mr Ford was a lawyer he had known for many years, and who was familiar with this matter. Following some submissions made by the Respondent’s representative, Mr Ford acknowledged that he was legally qualified but that his practising certificate had been cancelled, a matter he was in the process of challenging.
It was submitted on Mr Boulous’ behalf that the complainant, Mr Odah, had made inconsistent statements and that this raised questions of credibility with respect to his evidence. It was further submitted that the third complaint was the only matter properly before the Tribunal. Mr Boulos’ representative stated that it was ‘outrageous’ to assert that the Applicant had continued to provide immigration assistance. It was also submitted that no procedural fairness had been afforded Mr Boulous regarding these matters, and that they should be the subject of separate proceedings.
Mr Boulous’ representative cited the proposition that a decision maker must act in a reasonable manner. He further cited Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 (Bhardwaj) for the proposition that a decision maker would be in error if Mr Boulous’ registration was cancelled as there was no lawful basis for such a decision. Moreover, it was submitted that cancellation would have a serious impact on Mr Boulous’ business and he would seek compensation in a suitable jurisdiction.
Mr Boulous himself made the following further submissions at the hearing. He stated that his registration had been successfully renewed following the making of complaints and that MARA acknowledged that he had an otherwise clear record. Mr Boulous also submitted that immigration assistance does not include clerical work such as filing and copying. He submitted that he did not give information or advice, and that he had not tried to mislead MARA in responding to the complaints.
I asked Mr Boulous if he had undertaken any of the conditions required by the suspension decision and he responded that he had not.
The Respondent’s submissions at the hearing addressed several subjects: the Odah complaint; the Applicant’s dealings with MARA; the failure to keep records and provide them on request; and conduct following the suspension decision.
It was submitted that the Odah complaint was the most disputed element of this matter, but that this complaint formed only one part of the Respondent’s case. Specifically, the Respondent’s representative noted:
(a)a Form 956 was executed by Mr Boulous on 10 January 2019 (G11, p 99), and Mr Odah’s written and oral evidence was that his application had been submitted in January 2019;
(b)Mr Boulous disputed that the application was submitted, referring to outstanding fees, however this is inconsistent with his statements to the Department in which he purported to have mailed the application (G14, pp 136, 138 and 177);
(c)Mr Boulous had taken a defensive attitude with the Department initially, and had sought to ensure Mr Odah was not penalised, yet when responding to Mr Odah’s complaint, the Applicant began to assert that the fee issue was the cause of the problem;
(d)it was conceded that from the evidence of both Mr Boulous and Mr Odah, it was not clear exactly what had occurred between them in relation to fees; and
(e)despite any such lack of clarity, Mr Boulous bore obligations under the Code which are not affected by opposing claims regarding fee transactions, and the Respondent’s representative relies on its RSFIC with respect to specific Code breaches.
In relation to Mr Boulous’ dealings with MARA, the Respondent’s representative highlighted the obligation on migration agents not to mislead MARA or withhold relevant information (clause 2.9A of the Code) and relied on its RSFIC with respect to breaches involving other clients.
In relation to the failures of record management, it was submitted that it was clear that Mr Boulous had failed to provide documents relating to Mr Odah, and any issue with respect to fees was irrelevant to this question. It was further submitted that Mr Boulous had failed to maintain files for the other complainants; while the evidence that files had been physically transferred from SMRC to his office did not resolve the matter, it cast doubt on the Applicant’s explanations. The Respondent, again, relied on its RSFIC with respect to this issue.
The Respondent’s representative also made submissions on Mr Boulous’ conduct following his suspension, reiterating that this should be understood as an aggravating feature of his conduct. It was submitted that:
(a)the failure to fully complete the Form 956 was indicative of the Applicant’s poor conduct;
(b)providing the document to the Department was a demonstration that Mr Boulous was acting on behalf of the individual;
(c)Mr Boulous attempted to deceive the Department as demonstrated by the evidence relating to whether an exempt person was acting for the client;
(d)the Applicant’s response to the Department indicated that Mr Boulous accepted the concern expressed about his conduct, yet also claimed he was dealing with additional immigration posts;
(e)Mr Boulous sought to characterise his activity, consistent with the relevant policy, as being clerical, and therefore not immigration assistance, however the kind of work undertaken was far from merely clerical; and
(f)the Respondent otherwise relies on its RSFIC.
The Respondent’s representative submitted that a higher penalty was now sought against Mr Boulous. With reference to the matrix (Exhibit R2) it was submitted that his original penalty was consistent with a categorisation of ‘Moderate’. But the decision under review in fact found that Mr Boulous’ conduct fell into the ‘Major’ category. It was submitted that Mr Boulous’ conduct should be categorised as ‘Major’, and that if this was not the Tribunal finding, then the decision should be to affirm the decision under review.
It was submitted that Mr Boulous: had committed multiple breaches of the Code; demonstrated disregard for Australian law; and there was a real likelihood his non-compliant behaviour would continue as the disciplinary action taken did not prevent the further activity. The Respondent’s representative submitted that the purpose of the scheme is not to punish but rather to ensure the integrity of the migration agents scheme. The scheme suffers reputational damage if a migration agent continues to act despite a sanction being imposed. It was submitted the Tribunal may consider it appropriate to suspend the Applicant’s registration for a further 12 months following the date of the most recent post-suspension breach conduct.
In reply, Mr Boulous’ representative submitted that there was no evidence before the original delegate as to the further breaches, and the only issue therefore was the Odah complaint. A decision in relation to the further conduct of Mr Boulous, it was submitted, would be unlawful. It was further submitted that the Applicant would not object to a period of suspension.
Due to the nature of the submissions made on Mr Boulous’ behalf with respect to the scope of the review being undertaken by the Tribunal, I offered the Respondent’s representative the opportunity to make brief written submissions following the hearing.
In these brief submissions the Respondent argued that ‘as a general principle, the Tribunal is obliged to take into account all relevant material available up to the time at which the Tribunal’s decision is made’ (citing Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589, and Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286 at [41]–[51], [98]–[101] (Shi)). The submissions go on to note that the decision in Shi addressed directly the disciplinary powers in s 303 of the Act, and stressed that the provision is in the present tense, and the circumstances to which the provision is addressed could be altered by supervening events. The submissions also noted the overarching objective for the Tribunal is to protect the public dealing with migration agents, as opposed to the punishment of agents.
CONSIDERATIONS
Failure to lodge Odah application
I have committed a significant amount of space to relating evidence and submissions with respect to this issue. While I do not accept the proposition advanced in closing submissions on the Applicant’s behalf that this is the only matter for consideration, it is clearly a matter that has received a great deal of attention.
Despite the volume of material relating to Mr Odah’s complaint, I consider that several elements of the circumstances remain unresolved. There is a dispute on the evidence, written and oral, as to when an agreement was reached about a cleaning job at the Applicant’s house, and whether it related at all to Mr Odah’s visa renewal. References in evidence to other transactions do not appear to bear directly on the issue, but serve to add further texture to the relationship overall.
I have considered the documents, particularly at G11–14. They confirm propositions put in the Respondent’s closing submissions. That is, a Form 956 was executed in January 2019 between Mr Boulous and Mr Odah. When confronted with the failure to lodge a visa renewal application, Mr Boulous stated that it had been finalised online and posted, and reference was also made to a problem with online payment (G14 at pp 146, 177 and 182).
It appears that once Mr Odah lodged a complaint, the circumstances became somewhat more complex, including by reference to the cleaning job. Given the state of the evidence on this issue I am unable to make a specific and relevant finding about this issue. I am satisfied, however, that there were apparently other aspects relating to fees discussed between Mr Boulous and Mr Odah. Their evidence on this is relatively consistent. It is also, largely, substantiated by the text messages exchanged between them.

It would appear, in short, that Mr Boulous frequently attempted to obtain additional funds or fees from Mr Odah. Indeed, Mr Boulous stated in written submissions that he needed payment from Mr Odah in order to proceed with his application. It was not until, it appears, around the time that Mr Odah became aware that his visa status had lapsed that Mr Boulous produced an online application on 25 June 2019 (G12). The decision record contains a detailed history of Mr Boulous’ actions in relation to Mr Odah’s renewal (G2, p 29 at [46]). It identifies electronic activity by Mr Boulous in January (twice), March and May in relation to Mr Odah’s matter. Not all of these actions were the subject of evidence at the hearing, but the initial actions in January appear to be supported by the oral evidence.
However, whatever the actual nature of the agreement, the consequences for Mr Odah of his relationship with Mr Boulous appear to have been severe. There is no dispute in this matter that Mr Odah’s prior TPV expired in the middle of 2019, and he was placed in the position of being ineligible for another visa, becoming ‘unlawful’ in April 2019. Mr Odah engaged another migration agent in September 2019 (G14, p 189) and went on to make Ministerial submissions regarding his immigration status (G 14, p 185).
I am satisfied that the evidence demonstrates that Mr Odah engaged Mr Boulous as his migration agent in relation to his TPV renewal. I am satisfied that Mr Boulous failed to lodge a valid application.
In respect of Code breaches, I am satisfied, therefore, that I am able to make the following specific findings that Mr Boulous:
(a)failed to deal with Mr Odah competently (clause 2.1(b));
(b)failed to have due regard to Mr Odah’s dependence on the Applicant’s knowledge and experience (clause 2.4); and
(c)did not act in a timely manner and provide information and documentation in time for statutory deadlines (clause 2.18).
Engagement with MARA on complaints
As noted above, the relevant submissions from the Respondent are found in its RSFIC ([30]–[34]), which address the first and second complaints. Oral evidence was not specifically directed to either the communications relating to the first complaint (Ms N), nor the second complaint (in which focus has been placed on a Ms E and Mr B).
I have considered the record in relation to the alleged misleading information arising in response to the first complaint. In particular, I have read the Statutory Declaration provided by the Applicant (G9, p 64), in the context of the documents referenced in the decision record (at [60]–[64]), and found at G9 and G10, pp 62–98.
I have already noted that MARA was unable to reach a conclusion in respect of this complaint but went on to make findings in relation to the way Mr Boulous responded. I am unable to find, based on the material identified immediately above, that Mr Boulous has acted in a way that was misleading or deceptive. I accept that some of the information provided was inconsistent, specifically, that concerning the timing and circumstances of personal meetings the Applicant had with the complainant.
However, I have not been directed to evidence supporting the assertion in the RSFIC (at [33a]) that Mr Boulous denied involvement in preparation of the complainant’s documentation. Certainly, his sworn declaration might be understood as involving some obfuscation in highlighting the role of staff and others in the process. I am not satisfied, though, that Mr Boulous sought to mislead or deceive.
With respect to that part of the second complaint relating to Ms E, the essence of this issue, as I read the record overall, is that there was a concern, raised by the AAT, that Mr Boulous assisted Ms E by providing or procuring fake documents. It is submitted that the Applicant provided contradictory statements about the nature of his involvement in her visa application.
I have considered the decision record (G2, [65]–[68]) and the related documents, particularly MARA’s request for information from Mr Boulous (G21), and his responses (G22 and G24), the second of which arises following a further set of questions from MARA (G23). Much of the engagement on the subject of Ms E deals with a range of issues arising from Mr Boulous’ correspondence, including the adequacy of his client records, and is not solely focussed on the question of the authenticity of documents.
While taking the breadth of the exchanges between MARA and Mr Boulous into account, I consider it relevant to address what appears to be at least one, specific, suggestion that the Applicant provided contradictory information about his engagement with Ms E. This is the claim that Mr Boulous stated, apparently in 2017 in response to the initial request for information, that he was not involved in Ms E’s application (G22, p 411). In the fuller context of Mr Boulous’ responses to MARA this appears to be a single instance of such an assertion. It is in contrast not only to material in the document in question that precedes that statement, but other, later material, all of which indicates that Mr Boulous did not claim that he had no role in Ms E’s application.
Moreover, in respect of the central issue of the authenticity of supporting documents, it appears that Mr Boulous is consistent in stating that he was not involved in procuring supporting documents (see for example G24, p 410).
Accordingly, I am unable to find that Mr Boulous’ conduct in relation to that part of the second complaint relating to Ms E rises to the level of being misleading or deceptive.
In relation to that part of the second complaint relating to Mr Boulous, I find my considerations hampered by an apparent absence from the material before me of relevant information. The decision record ([69]–[74]) refers to Departmental records, as does prior relevant material (G23, p421). As I understand the issue, it is asserted that this Departmental information supports a view that provides a different characterisation to the relationship between the Applicant and the person in question, Mr B.
Specifically, this wider material is said to be in contrast with Mr Boulous’ statement that he did not prepare and lodge an application for Mr B (G22, p 412). This contrasting material does not appear to form part of the record and I was not otherwise able to rely on detailed submissions on this point, as they were not made by the Respondent.
I accept, on their face, references to Departmental records, and I also accept that the second complaint relates to a serious subject matter, being the provision or use of possibly fraudulent material. However, under the circumstances, I am not able to make the finding urged by the Respondent as I do not consider the evidence supports a finding that Mr Boulous misled or deceived MARA.
Failure to issue Service Agreements and financial documents, retain records
There was some oral evidence obtained in relation to this issue. Overall, however, the evidence given by Mr Boulous at the hearing was not particularly specific or detailed. There was evidence given at the hearing that Mr Boulous may have been in possession of filing cabinets from SMRC, however this evidence, too, was somewhat less than conclusive.
I note that it was accepted, according to the decision record, and submitted by the Respondent, that Mr Boulous did not issue service agreements to the first complainant, Ms N, or to the third complainant Mr Odah. It has also been accepted that the Applicant asserted that he did not issue such agreement to clients engaged through the SMRC (see, for example, G2 [60]).
It was also found in the decision record that Mr Boulous failed to provide complete files and financial documentation in relation to Ms N and for Ms E, noting that a spreadsheet of clients at SMRC was provided, and Mr Boulous submitted a spreadsheet in this matter. I have examined this spreadsheet and it contains ten separate tabs, five of which include what appear to be client details, including, apparently, records of payments. In the absence of any direct evidence about its origins, nature and contents, it would be unreasonable to place any particular reliance upon it.
Included in the summary of evidence are aspects of Mr Boulous’ relationship with SMRC, including that he separated from the organisation by October 2013. I noted above the inconclusive evidence about files that may have been transferred. I note the decision record discusses the fee and service arrangements in place at SMRC (G2 [82]). It appears from the summaries of the complaints in the decision record that they relate to events or communications that took place after Mr Boulous’ departure from SMRC (see, for example, G2, pp 13–15). Mr Odah’s matter certainly arose after the Applicant’s departure from SMRC.
I take note of the fact that in the material before me there are a number of documents, in particular emails, relating to the issues arising in this matter. That is, Mr Boulous has apparently been able, in his responses to MARA, to provide some records relating to the complainant files. In more than one instance these records also included copies of text messages with clients or other parties. However, I consider that I am also able to take account of the fact that, on the face of the record, Mr Boulous appears not to have provided MARA, and did not lodge with the Tribunal, the records said to be absent or outstanding.
I am satisfied that the evidence demonstrates that Mr Boulous did not provide a service agreement in respect of Ms N and Mr Odah, and has not provided financial records in relation to any of the matters arising in the complaints.
It may be that there is some evidence that Mr Boulous had a general practice of not issuing service agreements at all, but I am not satisfied that it is sufficiently robust, in light of the uncertainty about SMRC files and the limited evidence about his practices, to make a wider finding in this regard.
Similarly, while there is evidence that Mr Boulous has provided only partial records in the course of communications with MARA, I consider that I am unable to make a blanket finding that he failed to keep records, certainly in relation to the complainants. However, the Code is relatively specific in relation to the nature of record keeping required of agents in clause 6.1 (proper records include copies of ‘each written communication’ and ‘every substantive or material oral communication’) and I consider it is appropriate to find that there are deficiencies in this regard.
Submissions have been made with respect to breaches said to arise from the way Mr Boulous responded to MARA, specifically relating to the timeliness and thoroughness of his responses. This specific conduct was not ventilated to any degree at the hearing. Given the volume of material before me it cannot be said that Mr Boulous did not make efforts to respond to the complaints. However, I consider that more detailed evidence would be needed to make concrete findings about these matters.
With respect to the particular Code breaches said to arise in relation to this category, I am satisfied that Mr Boulous:
(a)failed to give Mr Odah and Ms N written confirmation (an Agreement for Services and Fees) (clause 5.2(c));
(b)failed to maintain and make available for inspection proper records in respect of Mr Odah, Ms N, and Ms E (clause 6.1); and
(c)failed to make available for inspection financial records (clause 7.5).
I note that no submission was made by the Respondent about breach of clause 7.5, but I consider that my findings and the evidence overall support such a finding. I also note that while not the subject of specific discussion or submissions at the hearing, that in making the specific findings above about failures to make records available for inspection, I rely on the fact that MARA sought copies of specific records in the course of dealing with the complaints, and consider that this can properly be considered to be a request for inspection.
Conduct following suspension
These matters were addressed relatively comprehensively in evidence at the hearing, and Mr Boulous also made quite detailed written submissions about his activities following suspension. The Applicant, in summary, claims that he, or his office, were only providing assistance with submission of documents, that he did not provide immigration advice, that no charges were made, and that no new applications were lodged.
There does not appear to be any dispute, in short, that Mr Boulous undertook a range of activities following suspension. The issue is how these activities should be described or understood in the context of the legislative framework.
It was submitted on Mr Boulous’ behalf that no account could be taken of conduct by the Applicant following suspension. I understand the cited authority (Bhardwaj) to deal with procedural fairness, but in the context of the notion of functus officio in the conduct of a Tribunal proceeding. The current circumstances are, rather, consistent with the authorities cited by the Respondent’s representative, particularly Shi. I also consider that procedural fairness was afforded to Mr Boulous in that, as noted, he was on notice that his later conduct was being raised, and it was addressed in written material, and in evidence at the hearing.
The principles in Shi have been considered and affirmed more recently by the High Court of Australia in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16. To summarise, very briefly, from the decision of Kiefel CJ, Keane and Nettle JJ (at [14]–[15]), the Tribunal may not make a new kind of decision to that made by the original decision maker, but may (and perhaps must) take account of new and relevant material. Accordingly, it is appropriate to take into account, when considering matters under s 303 of the Act, circumstances or supervening events between the decision under review, and the present decision.
The first instance involves the email from Frontier Immigration to a DFAT email account in Phnom Penh. This has been characterised in the Respondent’s submissions as being in relation to preparing or helping to prepare a visa application. There does not appear to be any evidence before me about the Applicant’s involvement with any related visa application. However, I have considered the documents at Annexure 1 to the RSFIC and this, consistent with the evidence given by Mr Boulous, is correspondence and documentation relating to visa sponsorship of a Cambodian national.
I note in particular the email (RSFIC Annexure 1) dated 22 October 2020, which is from a personal email account in the Applicant’s name to a DFAT email account and which includes the following language: ‘… the sponsor has already been informed of all the contents of your email and we need to clarify the following’; ‘we have been told by the sponsor that …’; ‘[w]e are in the process of getting school records …’; and, ‘[w]e can assure you the visa applicant knows his mother as the sponsor and she is positive three has to be some sort of confusion …’.
Mr Boulous stated in evidence that this was an attempt to help the son (by which I understand him to refer to the individual being sponsored), that he was only assisting in the provision of documents, that the assistance was free and, finally, that a reference to ‘we’ in the email referred to the sponsor and her brother. I am prepared to accept, in the absence of evidence to the contrary, that the assistance was provided free of charge.
A critical question arises which is what the nature and purpose of the email is, in the context of the Act. This email certainly has the appearance of a substantive communication that is indicative of some form of ongoing assistance to a sponsor in relation to a visa application on foot, in addition to supplying several documents in relation to the same matter. However, while Mr Boulous’ limited evidence on this matter may be unsatisfactory, I am unable to positively find, in the absence of other evidence, that this meets the definition of immigration assistance under s 276 of the Act. I say this also in light of the fact that it is an offence for a person who is not registered to provide immigration assistance, under s 280 of the Act.
The reasons for this are that, while suggestive of the use of knowledge or experience in migration procedure, the definition requires that one of three specific forms of activity be fulfilled. I am not satisfied that this email clearly meets the terms of s 276(2)(a) of the Act, being a document that indicates that ‘the other person’ is nominating or sponsoring a visa applicant, nor that it is sufficient to demonstrate the giving of advice under s 276(2)(b) to ‘the other person’ about nomination or sponsorship.
The second instance relates to the preparation and lodging of a Form 956, completed on 27 November 2020. The related communications also brought to light, as is supported by Mr Boulous’ own evidence, that there were communications in other matters, to other immigration post locations. In the case of the form, the evidence indicates that Mr Boulous inserted his middle name in place of his family name, when identifying himself as the representative. No explanation for this was provided at the hearing.
Mr Boulous also agreed in evidence that the form of representation was stated as ‘exempt person’, with the purported explanation that this was due to the nature of his meeting the person being represented. I do not accept this is a reasonable explanation since the specific field in the form asks for the reason a person completing the form is exempt from registration, with the checked box covering ‘Close family member (spouse, child, parent, brother or sister)’ and I do not understand the evidence to be that Mr Boulous, who completed the form, meets this description.
I note that a Form 956, as evidenced for example by this particular document, is headed ‘Advice by a registered migration agent/exempt person of providing immigration assistance’. As noted in evidence, the section describing the form of assistance was not completed, on the basis that Mr Boulous was only sending a document. The declaration section of the forms, at question 22, allow for ‘Appointment’ and ‘Ending appointment’, and in this case the former is checked (the corresponding client declaration is similarly checked).
I am satisfied that Mr Boulous completed and lodged a Form 956 following his suspension. However, he denied providing immigration assistance and I do not have before me countervailing evidence that Mr Boulous did more than what he claims to have done. I also note Mr Boulous’ assertion in the related email dated 9 December 2020, and in his evidence, that he did not charge for his services, and that he was not providing immigration assistance. I note that the manner in which the form was completed is of relevance for my further consideration of this matter, below.
The third instance arises from a number of email communications signed both in Mr Boulous’ name and that of his registered business, all but one of which were sent after the suspension took effect. These communications relate to a citizenship application, which it is submitted further demonstrates that the Applicant is not a person of integrity for the purpose of being a registered migration agent. I do not consider the communications directly pertinent to the issues under consideration in this matter.
Disciplinary measures
I must consider what measures available under s 303 of the Act, if any, are appropriate in the circumstances. To do so, I must be satisfied that Mr Boulous is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance (s 303(1)(f)) or has not complied with the Code (s 303(1)(h)).
I have made the following specific findings in relation to the Code:
(a)breaches of clauses 2.1(b), 2.4, 2.8 and 2.18 in relation to Mr Odah’s complaint;
(b)breaches of clause 5.2(c) in respect of Mr Odah and Ms N;
(c)breaches of clause 6.1 in respect of Mr Odah, Ms N and Ms E; and
(d)breaches of clause 7.5 by failing to make records available.

The Respondent provided brief written submissions only on the question of integrity and fitness. I note the observations in the decision record (G2, [88]–[103]) in which the question of integrity and fitness is associated with moral character, as well as technical competency. I note also that it was found there that Mr Boulous did not meet the statutory standard because of the particular findings made about his conduct.
The terms ‘person of integrity’ and ‘fit and proper person’ are not defined in the Act. Drawing from several authorities, I consider the following brief summaries assist in understanding these terms:
(a)‘fit’ with respect to an office calls for an assessment of honesty, knowledge and ability (Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127);
(b)‘fit and proper person’ takes its meaning from its context, the activities to be engaged in, and their particular purpose, and in certain contexts may embrace an assessment of character and reputation (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321); and
(c)‘integrity’ refers to character and honesty, and relates not only to the standards toward clients, but also in the making of representations to the Department on their behalf (Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12).
I do not consider that my findings permit me to me make a concrete assessment, that Mr Boulous lacks integrity. In particular, I was not able to make findings that Mr Boulous misled or deceived the agency in the course of its inquiries. As to the Applicant’s fitness more broadly, there are several relevant considerations which include the nature, circumstances and consequences of the breaches of the Code, and his conduct following suspension.
Mr Boulous’ conduct with respect to Mr Odah had serious consequences for the complainant and it is surprising that an agent of some years’ experience could commit the obvious errors that occurred in that case. The result can only be explained by poor administration or, to some degree at least, the complications arising from their personal dealings. If poor administration is to blame, that speaks to the Applicant’s fitness. I am reluctant, due to the ambiguity of the evidence, to make a clearer finding about how the personal dealings between the two gentlemen may reflect upon fitness.
The failures with respect to particular instances of documentation also speak to Mr Boulous’ fitness generally. The Code is specific and detailed in its requirements with regard to documentation for good reason. Again, an experienced agent ought to understand these requirements and respond accordingly by furnishing clients with them, or providing them when requested to MARA.
With respect to post-suspension conduct it is, I consider, a matter of some real concern that Mr Boulous sought to lodge a Form 956 five months after his suspension took effect. It is also, I consider, quite unsatisfactory that he would complete the form using his middle, rather than family name, and seek to claim an exemption which was not available to him.
I have set out above some oral and written evidence from third parties that I understand, broadly, as being character evidence. I take into account that several individuals were prepared to assist the Applicant by expressing their confidence in his knowledge and competence. On balance, I give this evidence limited weight, as the statements were relatively general and stand in contrast to the findings that I have made.
I consider it appropriate to have regard to the matrix, which forms part of a policy document, certainly with respect to assessing the consequences of the breaches of the Code. I consider that Mr Boulous’ conduct while registered falls within the Moderate classification. That is, it involves breaches indicating systemic poor practices, indifference to professional responsibilities, and multiple breaches of the Code (following the relevant classification description).
I note that the Moderate category includes allegations of reckless behaviour. I consider this term to be appropriate in the context of assessing the significance of Mr Boulous’ conduct following suspension. The preparation and lodging of a Form 956 was reckless under the circumstances, and I consider, and find, that this conduct reflects upon Mr Boulous’ capacity to be a fit and proper person to provide immigration advice.
Taking into account Mr Boulous’ conduct overall, I find that a suspension for a longer period is warranted. I consider that suspension for a total of 18 months, that is an additional six-month suspension, to be appropriate under the circumstances. I make this finding based on the specific findings in relation to breaches of the Code, and also the fact that I am satisfied that Mr Boulous has, despite suspension, continued to act in a way suggesting that he was still permitted to represent clients in relation to migration related work.
Mr Boulous lodged a submission on the statutory scheme, and presented his evidence throughout the hearing in a way that demonstrated he understood the scheme, and the responsibilities of a migration agent. I am satisfied, however, that his submissions, evidence and conduct demonstrate the need for Mr Boulous to re-familiarise himself with the scheme. Moreover, his continued conduct after suspension warrants the requirement that he affirm that he has acted consistently with the sanction during the period of suspension.
Accordingly, I also consider that it is appropriate that Mr Boulous be required to meet the prerequisite conditions that either during the suspension period, or within four years from the date of suspension, Mr Boulous provide evidence he has passed the Capstone assessment offered by the College of Law, and submits a statutory declaration stating he has not made immigration representations for a fee, has not advertised for the provision of immigration assistance, or provided immigration assistance while suspended.
DECISION
For the reasons given above, in respect of the decision to suspend the Applicant’s registration, the Tribunal decides to set aside the decision under review dated 22 June 2020 and substitutes it with a decision that the Applicant’s registration be suspended for a period of 18 months from the date of the decision, and otherwise affirms the decision under review.

I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

151.

...........................[sgd].............................................
Associate
Dated: 4 June 2021

Date of hearing: 20 January 2021 and 21 January 2021

Date final submissions received: 3 February 2021

Applicant: By videoconference

Advocate for the Applicant: Mr Hugh Ford (in closing submissions)

Solicitor for the Respondent: Mr Adam Cunynghame, Sparke Helmore

[2021] AATA 1594

4 June 2021

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Standing

Date of hearing:	20 January 2021 and 21 January 2021
Date final submissions received:	3 February 2021
Applicant:	By videoconference
Advocate for the Applicant:	Mr Hugh Ford (in closing submissions)
Solicitor for the Respondent:	Mr Adam Cunynghame, Sparke Helmore