Calabro and Migration Agents Registration Authority (Migration) - [2022] AATA 1378

Calabro and Migration Agents Registration Authority (Migration) [2022] AATA 1378 (27 May 2022)
Division:GENERAL DIVISION
File Number: 2020/5546
Re:Domenico Calabro
APPLICANT

AndMigration Agents Registration Authority
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:27 May 2022
Place:Perth

The decision dated 27 August 2020 to cancel the applicant’s registration as a migration agent under s 303(1)(a) of the Migration Act 1958 (Cth) (Act) is set aside and in substitution it is decided that the applicant’s registration as a migration agent be suspended under s 303(1)(b) of the Act for a period of two years from 27 August 2020.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – review of decision of Migration Agents Registration Authority – cancellation of applicant’s registration as a migration agent under s 303(1)(a) of the act – multiple alleged breaches of code of conduct – advice related to Regional Sponsored Migration Scheme –457 visas – whether applicant is a person of integrity or otherwise not a fit and proper person to give immigration assistance – decision under review set aside and substituted with a decision that the applicant’s registration as a migration agent be suspended under s 303(1)(b) of the Act for a period of two years
LEGISLATION
Migration Act 1958 (Cth) ss 140GB, 140GB(2)(b)140GBA, 280(1), 292, 303(1), 303(1)(a), 303(1)(b), 303(1)(f), 304(1), 306, 308, 308(1), 309, 309(2), 314, pt 3, pt 3 div 3
Migration Regulations 1994 (Cth) regs 2.72, 2.72(1)(h), 2.72(10)(e)(iii)(B), 5.19, 5.19(4), 5.19(4)(h)(ii)(F), sch 2 457.233
CASES
Isaa and Migration Agents Registration Authority [2017] AATA 1110
Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53
The Trustee for the Raz Family Trust [2021] AATA 981
SECONDARY MATERIALS
Department of Immigration and Border Protection, Code of Conduct for registered migration agents (18 April 2017) cls 1.12, 2.1, 2.1(b), 2.1A, 2.1B, 2.3, 2.4, 2.6, 2.9, 2.9A, 2.17, 2.19, 2.23, 6.1, 6.1A
Department of Immigration and Border Protection, PAM3: Sponsorship applicable to Division 3A of Part 2 of the Act Sponsorship (1 July 2015)
Minister for Immigration and Border Protection, Migration (IMMI 17/059): Regional Certifying Bodies and Regional Postcodes Instrument 2017 (IMMI 19/059, 5 November 2017)
REASONS FOR DECISION
Deputy President Boyle
27 May 2022
THE APPLICATION

By a decision dated 27 August 2020,[1] the respondent decided to cancel the applicant’s registration as a migration agent under s 303(1)(a) of the Migration Act 1958 (Cth) (the Act).
[1] R6, T17.
The applicant seeks review of that decision pursuant to s 306 of the Act.
The letter by which the decision was sent to the applicant stated that the decision-maker found that the applicant had engaged in conduct in breach of his obligations under cls 2.1(b), 2.1A, 2.1B, 2.3, 2.4, 2.6, 2.9, 2.9A, 2.23, 6.1 and 6.1A of the Code of Conduct for registered migration agents[2] (the Code) and, further, that the applicant was not a person of integrity, or otherwise not a fit and proper person to give migration assistance within the meaning of s 303(1)(f) of the Act.[3]
[2] Department of Immigration and Border Protection, Code of Conduct for registered migration agents (18 April 2017).
[3] R6, T17/1378.
STATUTORY FRAMEWORK
Part 3 of the Act deals with migration agents and immigration assistance and div 3 of pt 3 regulates the registration of migration agents. Section 280(1) of the Act provides:
Subject to this section, a person who is not a registered migration agent must not give immigration assistance.
Section 314 of the Act provides:
Code of Conduct for migration agents
(1)The regulations may prescribe a Code of Conduct for migration agents.
(2)A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.
As noted at [3] above, the Code applied by the respondent in making the decision under review was the Code which was current at the time of the conduct in relation to which the decision was made, and which was current at the time of that decision, namely, the Code of 18 April 2017.
Section 303(1) of the Act provides:
(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.
Note:If the Authority is considering making a decision under this section, it must invite the registered migration agent to make a submission: see sections 309 and 310.
Section 304(1) of the Act provides:
(1)   If the Migration Agents Registration Authority suspends the registration of a registered migration agent under section 303, the Migration Agents Registration Authority may:
(a)    set a period of suspension of not more than 5 years; or
(b)    set a condition or conditions for the lifting of the suspension.
Section 306 of the Act provides:
Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division.
The relevant provisions of the Code are as follows:
1.10The aims of the Code are:
(a)to establish a proper standard for the conduct of a registered migration agent;
(b)to set out 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;
(c)to set out the duties of a registered migration agent to a client, an employee of the agent, and the Commonwealth and its agencies;
(d)to set out requirements for relations between registered migration agents;
(e)to establish procedures for setting and charging fees by registered migration agents;
(f)to establish a standard for a prudent system of office administration;
(g)to require a registered migration agent to be accountable to the client;
(h)to help resolve disputes between a registered migration agent and a client.
…
Part 2 – Standards of professional conduct
2.1A registered migration agent must always:
(a)act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client; and
(b)deal with his or her client competently, diligently and fairly.
However, a registered migration agent operating as an agent in a country other than Australia will not be taken to have failed to comply with the Code if the law of that country prevents the agent from operating in compliance with the Code.
2.1AA registered migration agent must not accept a person as a client if the agent would have any of the following conflicts of interest:
(a)the agent has had previous dealings with the person, or intends to assist the person, in the agent’s capacity as a marriage celebrant;
(d)[sic] there is any other interest of the agent that would affect the legitimate interests of the client.
2.1BIf it becomes apparent that a registered migration agent has a conflict of interest mentioned in clause 2.1A in relation to a client, the agent must, as soon as practicable taking into account the needs of the client, but in any case within 14 days:
(a)tell the client about the conflict of interest; and
(b)advise the client that, under the Code, the agent can no longer act for the client; and
(c)advise the client about appointing another registered migration agent; and
(d)cease to deal with the client in the agent’s capacity as registered migration agent.
…
2.3A registered migration agent’s professionalism must be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.
…
2.4A registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.
…
2.6To the extent that a registered migration agent must take account of objective criteria to make an application under the Migration Act or Migration Regulations, he or she must be frank and candid about the prospects of success when assessing a client’s request for assistance in preparing a case or making an application under the Migration Act or Migration Regulations.
…
2.9 A registered migration agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.
2.9AIn communicating with, or otherwise providing information to, [the respondent], a registered migration agent must not mislead or deceive [the respondent], whether directly or by withholding relevant information.
…
2.23A registered migration agent must take all reasonable steps to maintain the reputation and integrity of the migration advice profession.
…
Part 6 – Record keeping and management
6.1A registered migration agent must maintain proper records that can be made available for inspection on request by [the respondent], including files containing:
(a) a copy of each client’s application; and
(b) copies of each written communication between:
(i)the client and the agent; and
(ii)the agent and any relevant statutory authority; and
(iii)the agent and the Department regarding the client; and
(c) file notes of every substantive or material oral communication between:
(i)the client and the agent; and
(ii)the agent and an official of any relevant statutory authority; and
(iii)the agent and the Department regarding the client.
6.1AA registered migration agent must keep the records mentioned in clause 6.1 for a period of 7 years after the date of the last action on the file for the client.
Regulation 5.19 of the Migration Regulations 1994 (Cth) (Regulations), at the relevant time, relevantly provided:
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)is made in accordance with subregulation (2); and
(ii)identifies a need for the nominator to employ an identified person, as a paid employee, to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)is actively and lawfully operating a business in Australia; and
(ii)directly operates the business; and
…
(h)either:
(i)…; or
(ii)all of the following apply:
(A)    the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)    a body that is:
(I)    specified by the Minister in an instrument in writing for the sub-subparagraph; and
(II)    located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) ad sub-subparagraphs (B) and (C).
THE HEARING AND THE EVIDENCE
The application was heard on 16 and 17 November 2021. Written closing submissions were filed by the applicant on 24 November 2021, by the respondent on 14 December 2021 and a written reply was filed by the applicant on 20 December 2021.
Mr D Godwin appeared for the applicant and Mr P Nolan appeared for the respondent. The following witnesses gave evidence at the hearing:
(a)The applicant;
(b)Giuseppe Calabro;
(c)Domenic Staltari;
(d)Salvatore Vallelonga;
(e)Colin Pope;
(f)Nicola Comito;
(g)Adam Spagnolo;
(h)Francesco Napoli;
(i)Elvina Babic;
(j)Domenic Forgione; and
(k)Michele Carbone.
The following documents were admitted into evidence:
(a) Applicant’s statement of facts, issues and contentions dated 18 May 2021 (applicant’s SFIC) (A1);
(b) Statement by Domenic Calabro dated 12 November 2021 (A2);
(c)   Witness statement by Domenic Staltari dated 24 August 2021 (A3);
(d) Witness statement by Adam Spagnolo dated 6 October 2021 (A4);
(e) Witness statement by Colin Pope dated 25 August 2021 (A5);
(f)    Witness statement by Domenic Forgione dated 14 October 2021 (A6);
(g) Witness statement by Elvina Babic dated 5 October 2021 (A7);
(h) Witness statement by Frank Napoli dated 25 August 2021 (A8);
(i)    Witness statement by Michele Carbone dated 24 September 2021 (A9);
(j)    Witness statement by Nicola Comito dated 22 September 2021 (A10);
(k)   Witness statement by Salvatore Vallelonga dated 24 August 2021 (A11);
(l)    Statement by Joseph (Giuseppe) Calabro dated 8 April 2019 (A12);
(m)    Bundle with cover page “Applicant’s AAT Supporting Documents” including the statutory declaration by Giuseppe Calabro dated 25 March 2021 at pages 24–5 (A13);
(n)     Bundle of documents headed TKM Bricklaying Pty Ltd, JMC Taxation and Accounting Services, 54 pages, received 13 May 2021 (A14);
(o)     Decision by Member Stooke in the Administrative Appeals Tribunal (AAT) Migration and Refugee Division (MRD) dated 1 September 2020 (A15);
(p)     Regional Sponsored Migration Scheme Regional Certifying Body Advice Form 1404 dated 5 September 2019 (A16);
(q)     Regional Certifying Body Advice with names redacted, received by the Tribunal 20 May 2021 (A17);
(r)   Statement by Liam O’Connor of O’Connor Contracting Pty Ltd dated 30 March 2021 (A18);
(s)   Letter from Fiona Stanley Hospital by Dr Vincenzo Figliomeni dated 2 April 2021 (A19);
(t)    Copy of the PAM 3 dated 1 July 2015 (A20);
(u)     Respondent’s statement of facts, issues and contentions dated 16 August 2021 (Respondent’s SFIC) (R1);
(v)   ISCE records for JST, Mr McM, FDR and ADC (R2);
(w)     Extracts of Procedures Advice Manual 3 (PAM 3) (R3);
(x)   Current & Historical Company Extract for TKM Bricklaying Pty Ltd (R4);
(y)   Tender Bundle (R5); and
(z)   T-documents (volumes 1 and 2) (R6).
THE DECISION
As noted at [3] above, the respondent’s decision was based on a finding that it was satisfied that the applicant had breached the identified clauses of the Code, and thereby breached s 303(1)(h) of the Act, and that the applicant was not a person of integrity or is otherwise not a fit and proper person to give immigration assistance.[4]
[4] The Act s 303(1)(f).
The decision under review[5] set out the complaints upon which the decision was made (the Statement of Reasons).
[5] R6, T17.
CMP-35632
A complaint was lodged by Ms T on 7 February 2018. The facts upon which the complaint was based are set out in para 5 of the Statement of Reasons for the decision.[6] In summary they were:
(a)Ms T engaged the services of the applicant on 15 November 2017 to apply for a Regional Sponsored Migration Scheme (RSMS) subclass 187 visa.
(b)The sponsored position was for a massage therapist in Scarborough, which is in the Perth metropolitan area.
(c)At the time that the applicant lodged the application “it was no longer possible to obtain Regional Certifying Body [(RCB)] support at this location.”
(d)The applicant suggested that Ms T proceed with the lodgement of the application for the visa “as there was a ‘great probability’ that circumstances would change in the future and that it would be possible to appeal a refusal decision”. This was the applicant’s “strategy” from the outset.
(e)The applicant “obliged her employer to declare that the business is in the process of setting up a stall in the South West of Perth, in particular … [in] Greenfields WA. … This information was false and misleading”.
(f)The applicant never applied for RCB advice notwithstanding that Ms T’s employer had paid the applicant $400 for this purpose in July 2017.
[6] R6, T17/1382.
CMP-35659
This was a complaint lodged by Ms V on 8 February 2018. The facts are similar to those in CMP-35632. Ms V was seeking a visa under the RSMS for a position in Scarborough with the same employer as Ms T. The allegation was that Ms V “could not obtain advice from the [RCB], and therefore could not obtain a RSMS nomination for her subclass 187 visa”. It is alleged that the applicant “obliged Ms V’s employer to declare misleading information, by providing a business address where she could meet the RCB requirement” and that “the [applicant] provided the Department with false information by advising that the sponsor’s new business address would be … [in] Greenfields WA.”
The complaint claimed that the applicant provided Ms V with a tax invoice for the preparation and lodgement of the nomination and application but did not provide her with an invoice for services completed and did not inform her of the outcome of the visa application.
Paragraphs 7 to the first paragraph numbered 12 of the Statement of Reasons[7] set out the following facts as emerging from the Department of Home Affairs’ records;
(a)On 18 September 2017 the applicant lodged a direct entry RSMS nomination application for Ms V’s employer, nominating Ms V in the position of hair and beauty salon manager, and on 19 September 2017, the applicant lodged a subclass 187 RSMS direct entry visa application for Ms V.
(b)On 15 November 2017 the applicant lodged a second direct entry RSMS nomination application for the same employer, nominating Ms T in the occupation of massage therapist, and on the same day, lodged a subclass 187 visa application for Ms T.
(c)On 6 December 2017, the Department sent the applicant, as the representative of the proposed employer of Ms T and Ms V, two separate invitations to comment on adverse information regarding the applications and advising that the applications did not have advice from RCB on either of the nominated positions.
(d)On 4 January 2018 the applicant provided a response to both invitations to the effect that the business was in the process of setting up a stall in the South West of Perth and gave the Greenfields address. The response also advised that the RCB advice would be provided once it had been assessed.
(e)On 25 January 2018 the Department refused both nominations because the Department had not received advice from RCB meaning that the applications had not met the requirements of reg 5.19(4)(h)(ii)(F) (see [11] above).
(f)On 21 February 2018 Ms T and Ms V notified the Department that they had withdrawn their appointment of the applicant as their agent.
[7] R6, T17/1383.

On 18 July 2018 the respondent published the complaints to the applicant under s 308(1) of the Act, and advised the applicant that the complaints raised concerns about breaches of cls 2.1, 2.4, 2.8, 2.9, 2.17 and 2.23 of the Code. The applicant was asked to respond to the notice and the concerns raised.
On 11 August 2018 the applicant provided a response to the complaints and, in accordance with the respondent’s request, also provided copies of the files for Ms T and Ms V and their employer.
Applicant’s response to complaints CMP-35632 and CMP-35659
Paragraphs 14–15 of the statement of reasons[8] set out the response provided by the applicant to the notice issued by the respondent under s 308(1) of the Act in relation to these two complaints (see [21] above). The Statement of Reasons described the applicant’s response to the notice under s 308(1) as follows:
[8] R6, T17/1383–6.
(a)In relation to Ms T, the applicant’s original advice in late 2016 to her employer was to apply for a subclass 457 visa, however, the employer did not meet the training requirements for that visa and did not want to increase Ms T’s pay.
(b)By the time that Ms T was ready to lodge an application, the Department had changed to requirements for the position which could not be met by Ms T. The only available option for permanent residency was a subclass 187 visa. When the subclass 187 visa application was refused, the applicant suggested that a subclass 457 visa application be lodged for Ms T’s partner and then transition to the permanent residency pathway. He also suggested that a good option was for her to seek review of the Department’s refusal of the subclass 187 visa application.
(c)In relation to Ms V, following long discussions with Ms V as to her options, he suggested she apply for a student visa which would require her to complete a genuine temporary entrant requirement (GTE). Given the applicant’s concern that Ms V may not meet the requirements of a GTE, the applicant also advised that she could apply for a subclass 457 visa if her employer agreed. However, Ms V’s proposed position was removed from the list of eligible occupations prior to any application being lodged. Because of Ms V’s limited English and her employer’s unwillingness to pay for additional training or increase her wage, Ms V and her sponsor agreed on a subclass 187 visa.
(d)The applicant advised that on 13 March 2017 the Western Australian State Government Regional Certifying Body (the relevant RCB) stopped accepting RCB applications for the Perth area. As the applicant had lodged the applications for Ms T’s and Ms V’s subclass 187 visas when Perth area was still a designated regional zone, he was unsure how to proceed. He rang the office of his local Federal member of parliament, The Honourable Michael Keenan, and was advised by a staff member to ignore the RCB’s suspension of processing requests for advice and to continue to prepare and lodge the applications as normal.
(e)The applicant decided to follow the advice of the member of staff of the Federal member rather than the RCB because immigration is a Federal, not a State matter. The applicant considered that the State RCB’s refusal to process requests for advice was contrary to their obligation.
(f)The applicant lodged requests for advice from the RCB in respect of Ms T and Ms V on six occasions from 22 September 2017 to 21 December 2017.
(g)The applicant argued that the RCB advice was not a requirement for the issue of the visa and only acted as a guide to assist the Department. The applicant argued that because he had lodged all of the relevant documents, the Department still had power to grant the subclass 187 visas whether they had received advice for the RCB or not. The applicant further stated that the Department had advised him that they would continue to process visa nomination applications for the Perth region if RCB advice was included, which indicated that the Department could still issue subclass 187 visas for areas notwithstanding that the area was no longer designated as regional under the RSMS scheme.
(h)The applicant argued that he had done everything within his power to rectify the situation which had been caused by political decisions having been made which affected a number of his clients in addition to Ms T and Ms V.
(i)In relation to the provision of a regional address for the proposed employer of Ms V and Ms T, the applicant’s response to the s 308(1) notice was that he had discussed the options available to the employer with her after the Perth region was removed for the RSMS scheme. Acting in his client’s best interests, he advised that if the employer were to shift the place of employment of Ms T and Ms V to a regional area, then the subclass 187 visa application could proceed or, in the alternative, the employer could withdraw the nominations and obtain a refund of fees. A further alternative discussed with the employer was continuing with the applications, and if they were refused, to seek review of the decision in the AAT. The applicant advised that he told the employer that he could not guarantee a positive outcome and did not tell the employer to use a specific address in a regional location for her relocated business. In that regard, as the employer was not going to relocate her entire business, the applicant asked her whether the business operated booths at shows or used a mobile salon in regional areas. His advice was that if such a business was established and a regional address was nominated for that business, the RSMS may apply.
(j)As the applicant was dealing with and being paid by the owner of the business as the nominee, it was the applicant’s position that it was up to the owner and not him to discuss the options with Ms T and Ms V and to make a decision. He denied that he had encouraged the business to provide a false address for the business to come within the RSMS. It was one of the owners of the business who identified the regional address and advised the applicant of the regional address on 23 December 2017. The intention was that while the proposed mobile salon had no fixed location, the Greenfields address would be a “satellite office to the existing business address in Scarborough”. This was a common practice in the beauty industry. The Department had previously accepted the practice in relation to another of the applicant’s clients.
(k)The prospective employer asked the applicant whether it was likely that the Department would send someone to check on the proposed regional address. The applicant advised the employer that it was very unlikely, but still possible. The applicant advised that he considered that the use of a satellite office for mobile services (which was common in the beauty industry) as a separate operating location, was acceptable under the RSMS.
(l)The applicant continued to have good relationships with Ms T and Ms V after their subclass 187 visa applications were refused by the Department. He met with them on 29 January 2018 at his office and discussed the possibility of their seeking review by the Tribunal of the Department’s decisions.
(m)The applicant refunded the money paid by the employer following the RCB’s refusal to process the requests for advice but refunded the money to the prospective employer when she asked for it.
Complaint on own motion: CMP-36423
The background to and particulars of this complaint are set out in the second set of the paragraphs numbered 13-15 of the Statement of Reasons.[9] They are as follows:
(a)While investigating the complaints of Ms T and Ms V, the respondent became concerned about the applicant’s conduct in relation to “his broader client caseload” and, as a result, the respondent investigated other skilled migration applications lodged by the applicant.
(b)The review “raised concerns that the [applicant] appeared to have contrived to obtain Temporary Work (Skilled) (subclass 457) visas for four of his clients by facilitating a self-sponsored subclass 457 visa application, [sic] based on ‘packaged’ business documents.” The review also found that the applicant “had apparently assisted in the creation of positions merely to secure migration outcomes, contrary to the policy intent and legislative requirements of the temporary skilled migration program”.[10]
(c)The applicant lodged four applications by companies for self-sponsored visas for directors and shareholders. The nominations were supported by four sets of documents containing almost identical business and financial information.
(d)On 8 February 2019 the respondent sent the applicant a notice under s 309(2) of the Act, advising that it was considering sanctioning the applicant under s 303(1) of the Act. The notice identified potential breaches of cls 1.12, 2.1, 2.3, 2.4, 2.9, 2.19 and 2.23 of the Code.
[9] R6, T17/1387.
[10] R6, T17/1387.
Applicant’s response to CMP-36423
On 11 April 2019 the respondent received the applicant’s response to the notice issued under s 309(2) of the Act. Paragraphs 20(l)–(t) of the Statement of Reasons[11] identified the applicant’s response to be:
[11] R6, T17/1389–91.
(a)The practice of using template documents in subclass 457 visas for self-sponsored positions is not contrary to the intent of the legislation.
(b)In all four cases the companies were aware of their option to apply for self-sponsored positions prior to engaging his services. The applicant’s visas were expiring and given that they were not students, the subclass 457 visa was the most appropriate option.
(c)There was nothing in the legislation that prevented start-up companies sponsoring workers for such visas. It was reasonable in the circumstances to establish companies as sub-contractors, as the preference amongst companies in Western Australia was to retain people as sub-contractors rather than as employees and thereby avoid having to pay superannuation, payroll tax and workers’ compensation insurance as well as there being liability advantages of that structure.
(d)The documents provided to the Department were genuine, as were the positions, as the visa applicants were already working in the relevant roles.
(e)The documents were prepared by the businesses making the applications using outside consultants. The applicant deliberately chose not to prepare the business plans to avoid a perception of bias.
(f)It is understandable, and reasonable, that the employment contracts were similar as they were based on the template on the Fair Work Ombudsman’s website.
(g)The Gumtree advertisements for the positions were place by the companies themselves.
(h)All of the relevant businesses were start-ups with limited business and financial information to create documents and were starting with the same assumptions and variables.
(i)At the time Western Australia was experiencing a shortage of tradesmen, all four positions were for trades and all four of the nominees were tradesmen qualified in the nominated areas. Three of the four nominees were, at the time of the applicant’s response, still working in the positions nominated and the fourth had returned to the United Kingdom.
CONSIDERATION
CMP-35632 and CMP-35659
The thrust of the respondent’s findings and contentions underpinning the decision are summarised in the respondent’s SFIC and largely repeated in the respondent’s written closing submissions.
The first finding[12] was that the applicant breached cls 2.1(b), 2.3 and 2.4 of the Code by advising Ms T and Ms V and their prospective employer to pursue subclass 187 visa applications because the applicant was “clearly aware that, at the time of initial engagement, metropolitan Perth was being removed as a regional area for the purposes of that [v]isa”,[13] and that he failed to advise his clients that “there was no possibility of obtaining an approval from the RCB, meaning that there was no likelihood of a successful RSMS nomination and subclass 187 visa.”[14]
[12] respondent's SFIC 69–70.
[13] respondent's SFIC para 69.
[14] respondent's SFIC para 70.
I have trouble accepting the premise on which the above finding was made in the decision and as now contended by the respondent. The respondent relies on a series of interactions that the applicant had with various bodies, and on a media statement issued by the Western Australian Premier on 21 June 2017. These were set out in paras 21–31 of the respondent’s closing submissions as follows:
(a)The applicant became aware some time shortly after 13 March 2017 that the RCB was or would decline to provide advice for RSMS applications for the Perth region lodged after 13 March 2017. It was, as a result of this, that the applicant contacted his Federal member’s electoral office (see [23(d)] above).
(b)In a Facebook post to “Support Networks for Mara Agents” on 17 March 2017, the applicant stated that he had spoken to a staff member of Michael Keenan’s office and that her advice was to continue to process subclass 187 visa applications “as normal”.[15]
[15] Citing R6, T15/292.
(c)On 23 May 2017, the applicant asked the RCB, in relation to another subclass 187 visa application, having pointed out to the RCB that the Perth region was still a designated region under the RSMS, asked the RCB to “process as normal otherwise please proceed and refuse and give your reasons for refusal”.
(d)On 17 May 2017, the RCB responded stating that:
Unfortunately new applications to certify positions for the Regional Sponsored Migration Scheme for the Perth region remain suspended, and Migration Services is unable to receive new applications at this time.
As Migration Services is not accepting applications for Certification Advice where the nominated position is in the Perth Region we are unable to provide any Certification advice for this application, which will be withdrawn and the application fee refunded.
(e)On 24 May 2017 the applicant responded to the RCB as follows:
As mentioned previously you are the authorised RCB for the area of Perth as listed by immigration in their instrument of writing under commonwealth legislation. As Perth is considered regional for the purposes of that visa I request you do not withdraw and instead give a refusal stating your reasons.
(f)On 21 June 2017, the WA Premier issued a media statement stating that the State government “has also delivered its election commitment to remove Perth from the [RSMS]” and that Prime Minister Turnbull had written to Premier McGowan “confirming that the Federal Government had agreed to Mr McGowan’s request to have Perth removed from the RSMS.”
The respondent contends that, notwithstanding the above, in July 2017, the applicant again sought advice from the RCB about a visa under the RSMS in respect of a position in the Perth metropolitan area which, as the applicant pointed out, was, at that time, still a regional area for the purposes of the RSMS. In that case the RCB’s response included a statement that:
Until Perth is officially removed from the Regional Sponsored Migration Scheme by the Federal Government, new applications to certify positions for the Perth region remain suspended, and Migration Services is unable to receive new applications where the nominated position is located in the Perth region.
The applicant responded to the above advice from the RCB to the effect that until Perth was removed as a regional area under the RSMS it remained such an area and the RCB should be processing advice requests.
On 24 July 2017, the applicant received a further advice from the RCB stating that “[n]ew applications for the region of Perth remain suspended and unfortunately Migration Services is unable to accept your certification application at this time”.
In July 2017 the applicant was retained by Ms T and Ms V’s employer to assist in making visa applications. In September 2017 the applicant made the request to the RCB for an advice in relation to Ms V’s visa for employment in the Perth metropolitan area. On 15 November 2017 a similar request for advice was made by the applicant to the RCB in respect of Ms T’s proposed visa.
By instrument IMMI 17/059 issued by the Minister on 5 November 2017, which, by its terms, was to have effect from 17 November 2017, the Perth metropolitan area ceased to be a regional area for the purposes of the RSMS. The applicant received advice of the change in an email from the Migration Institute of Australia dated 15 November 2017.[16]
[16] R6, T8/85.
The respondent, in effect, argues, firstly, that the applicant breached the identified provisions of the Code by advising in July 2017 that an application for a subclass 187 visa under the RSMS could be made, when in March 2017 he had become aware that the Perth metropolitan region was going to be removed from the RSMS (see [27] above). While the respondent expresses the position to be that in March 2017 the Perth metropolitan region “was being removed as a regional area”, that is not an accurate reflection of the position. The actual position was that, as at March 2017, and for some eight months thereafter, the Perth metropolitan region was going to be removed. That in fact did not happen until 17 November 2017. Up to that date, as the applicant repeatedly pointed out to the RCB, the Perth metropolitan area was a region to which the RSMS applied.
The second limb of the respondent’s argument is that, not only was the applicant aware that the Perth metropolitan area was being removed as a regional area for the purposes of the RSMS, but that from some time after the intention to remove the Perth metropolitan area was made public, the applicant was aware that the RCB was refusing to certify positions for the Perth area.[17] The respondent submits[18] that in those circumstances:
84.… the Applicant breached clauses 2.1(b), 2.3, 2.4, 2.6, 2.7 and 2.17 of the Code, when advising [Ms T], [Ms V] and the Employer to pursue 187 [v]isas.
85.The Applicant was clearly aware that, at the time of initial engagement for all of those clients, Skilled Migration WA were not accepting new applications to certify positions for the Perth region, and that any applications submitted online would be withdrawn and the application fee refunded, until Perth was officially removed from the Regional Sponsored Migration Scheme by the Federal Government.
86.The Applicant failed to advise his clients that there was no way of obtaining an advice from the RCB for the Perth region, and that in the absence of that advice that there was no likelihood of a successful RSMS nomination and subclass 187 visa.
87.In evidence, the Applicant maintained that, in his view, whilst the Perth metropolitan area was still declared a regional location by the Federal Government, the RCB was compelled to provide that advice. The Respondent submits that this in an incorrect statement of the law, and that there is no obligation on the part of the RCB to provide the advice (see paragraph 20 above).
88.At the very least, the Applicant should have been frank and candid about the Applicant’s prospects of success in the absence of any ability to obtain the advice, before taking his clients’ money and spending it on the pursuit of such visas.
(Original emphasis.)
[17] RCB email dated 13 July 2017, R6, T15/290; see [29] above.
[18] respondent's closing submissions paras 84–7.
I do not accept that the applicant advising clients to make subclass 187 visa applications under the RSMS after an announcement that the Perth area would be removed as a region for the purposes of the RSMS is, of itself, a breach of the identified provisions of the Code. The difficulty that the applicant (and therefore his clients) encountered, was the attitude adopted by the RCB. It appears that a similar attitude was adopted by the same RCB in the case reviewed by the Tribunal in The Trustee for Raz Family Trust[19] (a decision cited by the respondent) wherein the Tribunal made the following observations:
30. When the applicant first made an RSMS application for approval the relevant instrument at the time of the nomination application had specified the whole of WA as ‘regional Australia’. However, the nominator could not apply for RCB ‘Advice’ at time of application because all RCB ‘advice’ was temporarily suspended on 13 March 2017 - by Departmental fiat. The certifying RCB (the WA Department of Training and Workforce Development), later reopened the issuance of RCB advices in 2019. However, the Perth Metropolitan area (where the applicant was located) was excluded from recognition as part of ‘regional Australia’ for the purposes of RCB ‘Advice’.
…
32. It can be readily seen that the applicant nominator has been placed in the invidious position that, by bureaucratic fiat of the WA Department of Training and Workforce Development, it was prevented him from securing the necessary RCB approval for the Subclass 187 visa nomination - at time of application. When requested by the delegate to provide the approval (at time of final Departmental processing) it was unable to do so. This inability proved fatal for the applicant when the delegate later made his decision to refuse approval of the nomination. The applicant then sought Tribunal review.
33. In the meantime, applications at the RCB were re-opened for the Subclass 187 visa class. However, in the meantime the Perth Metropolitan area (were the applicant nominator is located) was no longer ‘regional Australia for the purposes of the application (see above italics). Bizarrely, when the new replacement for the Subclass 187 visa (the Subclass 494 visa and for which the nominator has now applied for approval) was instituted, the Perth metropolitan area was included and regarded as regional for the purposes of assessment.
[19] [2021] AATA 981.

The decision in Raz is significant for a number of reasons. As in the cases of Ms T and Ms V, the applicant in Raz had applied for approval of a nomination seeking to satisfy the criteria in the Direct Entry nomination stream.[20] In Raz the delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4) of the Regulations because the applicant did not have the necessary advice from an RCB (Raz at [4]). The Tribunal noted the following:
34. …The Tribunal notes apropos the question of application of the criterion that a new version of r.5.19 was introduced on 18 March 2018 by the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms Regulations 2018 (the Amending Regulations). The Amending Regulations contained transitional provisions which are relevant. In particular, item 6705(1) provides:
Despite the amendments of regulation 5.19 made by the amending regulations, that regulation (including any instruments made under it), as in force immediately before the commencement of Schedule 1 to the amending regulations, continue to apply in relation to an application for approval of the nomination of a position made before the commencement day.
35. It is the view of the Tribunal that the time between lodgement and determination of an application is not intended to be lengthy. To the contrary, Subdivision AB of Division 3 of Part 2 of the Act establishes a code of procedure for dealing fairly, efficiently and quickly with visa applications, including Subclass 187, for which a nomination under r.5.19 is essential. As such, the Tribunal is satisfied that this purpose should be served by applying the Instrument in place at the time of application. For nomination applications made before 18 March 2018, item 6705(1) of the Amending Regulations preserves the operation of r.5.19, including any instruments made under it, as in force immediately before that date. The Tribunal believes that there are sound arguments for concluding that the Instruments - IMMI 16/045 and IMMI 17/059 - are the Instruments in force for nomination applications made between 1 July 2016 and 16 November 2017, and 17 November 2017 and 17 March 2018, respectively. It follows then that item 6705(1) preserves the effect of these Instruments for any undetermined nomination applications made during these time periods.
36. The Tribunal, therefore, finds that the Instrument which was in force at the time of the nomination application lodgement (in this case IMMI 16/045 which includes Perth) is the Instrument that applied to determining ‘regional Australia’ for the purposes of reg 5.19. The applicant, therefore, satisfies reg.5.19(4)(h)(ii)(A). Regarding the RCB approval the following correspondence was received by the applicant in response to an attempt to seek RCB approval following the re-opening of applications in 2019.
[20] Raz at [3].
The above findings of the Tribunal in Raz are significant. As noted above, the respondent cited the decision in Raz to support the argument that the RCB is not compelled by the Regulations to provide an advice.[21] While that was the finding of the Tribunal in Raz, the Tribunal also went on to find as follows:
46. In considering whether a purported RCB advice satisfies the requirement of reg. 5.19(4)(h)(ii)(F), the relevant question is whether it ‘has advised...about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).’ Therefore, not all communications from the relevant RCB about the nominator’s application and/or nominated position would satisfy this criterion if they do not contain the advice regarding these specific matters. However, as noted above, as there is no express requirement that the advice must be positive (i.e. that the RCB advises that the nominator meets the requirements in the specified criteria), it is possible to accept that a negative advice (i.e. that the RCB advises that the nominator does not meet the requirements in the specified criteria) is still an advice to the Minister about the specified matters.
47. However, in the absence of any judicial consideration on the interpretation of the specific criterion in issue (i.e. reg 5.19(4)(h)(ii)(F)) and noting that a plain reading which simply requires that there be an advice is likely to be beneficial to the nominator if the advice obtained is negative (and in circumstances where some RCBs are no longer providing the advice in respect of SC187 RSMS scheme), the Tribunal view is that it may be preferable to read the criterion in its plain ordinary meaning.
48. The Tribunal has sought relevant advice provided in this case and the information contained within that advice supports this finding. It finds that, on review of the RCB correspondence, it is satisfied that reg 5.19(4)(h)(ii)(F) is met, having had regard to all material before it and after making its own independent assessment of whether the nominator satisfies the discrete criteria in regs 5.19(4)(e), (h)(ii)(B) and (C).
49. Accordingly, the Tribunal finds that requirements of r.5.19(4) are met.
[21] respondent's closing submissions para 20.
The Tribunal in Raz set aside the delegate’s decision to reject the applicant’s application for approval of the nomination of a position under reg 5.19 and substituted a decision approving the nomination.
Whether the decision in Raz is correct (noting that it was not appealed) and whether the same or a similar decision would have been made on a review of the decisions to reject the applications relating to Ms T and Ms V (if they had got to that stage), is a matter of speculation. However, what is relevant is that Raz was a case where, notwithstanding the same RCB’s refusal under “Departmental fiat” to provide advice (see [36] above), the applicant was, in the end, successful. The decision in Raz also, in my view, demonstrates that the approach taken by the RCB in refusing to process applications (particularly given the findings at [35] of Raz)[22] because the Perth metropolitan areas was going to be removed as a regional area under the RSMS, was wrong.
[22] See [37] above.
This gives credence to the applicant’s proposition that it was, in the circumstances, not unreasonable to proceed with the applications as he did. The advice from the office of the Federal Member of Parliament was to the same effect. As was the case with the nominator in Raz, the applicant had been placed in an, “invidious position” (see [36] above) by the RCB basically refusing to do its job. The respondent has not sought to justify, probably with good reason, the decision of the RCB not to undertake the function that it, and only it, could fulfil in relation to direct entry nomination visa applications under reg 5.19.
Accordingly, insofar as the respondent relies on the applicant proceeding with the visa applications in the circumstances that he did, I do not accept that that conduct relied on by the respondent constituted breaches of the provisions of the Code as claimed. The approach taken by the respondent in the Statement of Reasons[23] and in its SFIC and closing submissions was not particularly helpful in identifying what conduct breached what provisions of the Code and how. The Statement of Reasons, SFIC and closing submissions set out in great detail, in some cases repetitively, the applicant’s conduct and then made the broad submission that the conduct breached a list of provisions of the Code. Paragraphs 84–87 of the respondent’s closing submissions as set out in [35] above are representative of that approach. The respondent does not explain what aspect of the applicant’s conduct as described in the narrative breached each particular identified clause of the Code and how. Clause 2.1(b) of the Code requires an agent to “deal with his or her client competently, diligently and fairly” (see [10] above) but there is no identification of what conduct was specifically not competent, not diligent or not fair. As I have found above, the approach taken by the applicant in pursuing Ms T’s and Ms V’s subclass 187 RSMS visas was justified and the fact that, notwithstanding repeated efforts to get the RCB to do its job, it refused to do so, does not mean that his actions were incompetent, lacked diligence or were unfair.
[23] R6, T17/1381–1414.
Similarly, the requirement of cl 2.3 of the Code is that the agent must have “a sound working knowledge of the Migration Act and the Migration Regulations”. Again, there is no specificity in the respondent’s complaints, Statement of Reasons or submissions as to what elements of the applicant’s conduct demonstrated a lack of such knowledge. On the contrary, if anything, it was the applicant’s correct understanding of the Act and the Regulations which guided his advice and lodgement of the visa applications. The process was frustrated by the curious, and in my view wrong, stance taken by the RCB, not any lack of understanding of the Act or Regulations on the applicant’s part.
As with the other claimed breaches, the respondent fails to identify how the conduct of the applicant breached cl 2.4 of the Code. What conduct demonstrated that the applicant failed to “have due regard to [his] client’s dependence on [his] knowledge and experience”?
In relation to cl 2.6 of the Code, at the time that the applications for the subclass 187 visas under the RSMS were lodged, there was no evidence to suggest that they were doomed to failure. It was only the unjustifiable (in my view) attitude taken by the RCB that, because Perth may at some time in the future be removed by the Federal Government as a region under the RSMS, they would “suspend” (RCB’s language: see[28(d)] above) processing of requests, which caused the applications to founder. Even in the face of that attitude by the RCB, as was demonstrated by the outcome of Raz, the applications were not necessarily hopeless.
One justifiable criticism that might be levelled against the applicant in relation to these dealings, is that he should have kept better records of the advice that he gave to Ms T, Ms V and their employer. He conceded as much in cross-examination.[24]
[24] transcript at 46.
Clause 2.17 of the Code, in effect, prohibits the agent being involved in a claim for a visa which is “vexatious or grossly unfounded”. For the reasons set out above I do not consider that the applications made for the visas for Ms T or Ms V fell into those categories. The primary reason that they ended up not being successful was because of the RCB not doing its job. Even then, as was demonstrated by Raz, the applications were not necessarily hopeless.
Misleading information, regional business address
The respondent submits that the applicant breached cls 2.9 and 2.9A of the Code by advising that the employer of Ms T and Ms V was in the process of setting up a stall or operating shows in regional areas.[25] The respondent asserts that the address provided was “fake”.
[25] respondent's closing submissions para 94.
As the respondent points out, citing Kaur v Minister for Immigration and Border Protection,[26] knowledge or belief as to whether information is misleading or inaccurate extends beyond direct knowledge, and can include an indifference as to whether the information is misleading or inaccurate. The respondent submits that:
… the Applicant was recklessly indifferent to the knowledge or belief that the regional address provided to him by the Employer was fake, turned a blind eye to the objective concerns about the validity of the address, and simply sent it to the Minister, confirming that it was a genuine alternate business address for the Employer.[27]
[26] [2019] FCAFC 53.
[27] respondent's closing submissions para 97.
The respondent says that nowhere in the material provided by the employer was there any suggestion that the employer had contemplated setting up stalls in regional areas. The respondent also refers to the fact that when the suggestion of providing a regional address was discussed, the owner of the business asked the applicant whether the Department would check on whether the business was actually being operated at the nominated address. The applicant’s answer was that was unlikely.[28] The respondent also pointed out that in the applications for visas for Ms T and Ms V, the business at which they were going to be working identified the Scarborough premises of the employer.
[28] R6, T16/414.
The Statement of Reasons refers to the responses that the applicant gave to the s 308 (see [23(i)] above) and the s 309 (see [25] above) notices issued by the respondent, and quotes the answer given by the applicant in response to the notice relating to Ms T’s complaint as follows:
[The employer] asked what alternatives they had to keep the employee. Obviously it would be almost impossible to move the entire salon to a regional area. I asked if they had ever had any booths or shows they have done. My understanding was that they had previously done shows and expos and looked at offering treatments as [sic] these events. An option was to create a mobile salon to facilitate business in the South West. A mobile salon has no fixed address, I said you would need an address in Regional WA to be able to get an RCB.
The respondent submits this statement evidences that the business had no existing arrangements to set up a mobile salon in a regional area and that the suggestion to do so had come from the applicant. The applicant’s evidence at the hearing was:
So it is impossible to move the entire location, right? You can't do that. So my advice was the only other – like, they told me they did some mobile spa work, so they had, like, stalls and things like that. So I said, "You can always do - like, register to an address in a regional area and put that down for the state requirement."
…
… they had the stalls and they had the mobile salon part. So - well, they told me they had that.
… Just around WA, south-west. Around pretty much Perth and south west Mandurah sort of region. So that's what they told me.[29]
[29] transcript at 37–8.
The applicant was taken to file notes that he made of his discussions with the business owners. The first of those was a note dated 12 December 2017 of a meeting that the applicant had with one of the owners which was as follows:
Had a meeting with [B] and outlined the procedural fairness in her back office on site. Explained the scenario and gave the options for her to withdraw or they would need a regional address after the decision from immigration. She said she would need to check with her partner if they can do something. The only option would be to do a regional office otherwise they need to withdraw.[30]
[30] R6, T15/294.
The second note, dated 20 December 2017 was as follows:
Had a meeting with [S] and she asked the same questions as [B]. Told them they can have a regional address or they can withdraw the nomination and get a refund. If they do nothing it will get refused.[31]
[31] R6, T15/295.
The applicant was then taken to emails sent to him by the owners of the business, which raised concerns about the genuineness of the regional address.[32] The applicant disputed the matters set out in the emails and also that he had provided advice reflected in the emails, which he noted was wrong.[33] He was then asked about the regional address that had been given to the Department from which the business would operate. His evidence relating to his discussions with the owners of the business was:
…obviously like when we were discussing previously the shows and the stalls or whatever. Obviously can't give the show address every time because it changes. So that have just been the address. That's what I would assume. I assumed at the time. It's where they keep everything and store everything.[34]
[32] R6, T15/315.
[33] transcript at 42.
[34] transcript at 43.
The applicant was then asked what enquiries he had made of the owners as to what operations would occur at the regional address. He confirmed that he had made no such enquiries. The following exchange then occurred:
COUNSEL:     I'm putting to you that you, at the very least, believed that it potentially                   wasn't genuine?
APPLICANT:   I disagree and mainly because of my previous discussions that I had                     with the Department about another person in a similar situation, who   then said, "We understand, sometimes where people don't have - so   someone like a bricklayer who works in the south-west. So what's   his address or location?" At the time they said, "Well you just need   an address and the time", that's what Immigration said to me. And   I've got that client. I can give you the details of that client. So what   happens when it's mobile?
…
COUNSEL:     … at the very least, should have had some concern about that    address being genuine?
APPLICANT:   But a mobile spa has no physical - like, what's the address? Why    would I not believe that's the address, even if they store it there, that's   the address.
…
COUNSEL:     So you provided that address without any further investigation and    any further elaboration of what that address would be used for?
APPLICANT:   Yes.[35]
[35] transcript at 43–5.
The applicant’s evidence on this issue was not particularly convincing. While it may be the case that in discussing alternatives with the owners of the business, they had referred to them having had booths or shows at regional locations in the past (see [51] above), it seems clear that no real effort was made by the applicant to satisfy himself that there was a real prospect that such activities, or activities of such a nature sufficient to satisfy the requirements of a visa application for work in a regional area, would occur.
The respondent contends that by advising the Department of the proposed regional address, the applicant provided a statement in support of an application where he was recklessly indifferent as to whether the statement was misleading or inaccurate. In Kaur the Full Court of the Federal Court observed that:
134. What is meant by indifference in this context approximates to what has been called “reckless indifference” at common law. That is because reckless indifference has been held to be sufficient in terms of a state of mind, to be treated along with intention, as transforming a false representation (for example) into a fraudulent one. In their written submissions, the appellants referred to the following statement by Hayne JA (as his Honour then was) in Pyramid Building Society v Scorpion Hotels Pty Ltd [1998] 1 VR 188 at 194 (Brooking and Tadgell JJA agreeing):
The expressions “reckless indifference” and “wilful blindness” are useful shorthand expressions to describe some kinds of cases of fraud. As the classical exposition by Lord Herschell in Derry v. Peek (1889) 14 App. Cas. 337 at 374 shows, fraud can be proved by showing that a false statement has been made without belief in its truth or, “recklessly, careless whether it be true or false”. But as was said in the Assets Co., Ltd. case, the mere fact that a person might have found out fraud if further enquiries had been made does not of itself prove fraud. The enquiry is an enquiry for actual dishonesty not for want of due care.
I agree with the respondent’s contention. The applicant made no real attempt to test the veracity of the claim that the owners had or would operate part of their business in regional areas before submitting the information to the Department. On my assessment he was “recklessly indifferent” as to whether the information was accurate and is therefore liable for providing misleading information to the Department[36] and subsequently, when the same information was provided to the respondent, providing inaccurate information to the Authority.[37] Accordingly, I am satisfied that the applicant did breach cls 2.9 and 2.9A of the Code.
[36] The Code cl 2.9.
[37] The Code cl. 2.9A.
CMP-36423: Complaint on own motion
The elements relied on by the respondent to sustain this complaint are set out in [24] above. The first of those elements is that the applicant contrived to obtain Temporary Work (Skilled) (subclass 457) visas for four of his clients by facilitating a self-sponsored subclass 457 visa application based on “packaged” business documents (see [24(b)] above).

The respondent expands on this element in its closing submissions as follows:[38]
[38] Paras 114–37.
·The 457 visa was primarily intended to provide streamlined entry arrangements for businesses needing to recruit skilled staff from overseas on a temporary basis and was intended to fill skill shortages that could not be met from the local labour market.
·Clause 457.223[39] of sch 2 of the Regulations (cl 457.223) (current at the time of the applications) required:
[39] The Tribunal notes that the respondent erroneously refers to cl 457.223 of sch 2 of the Regulations as being ‘reg 457.233’.
othe nomination of an occupation in relation to the Applicant has been approved under section 140GB of the Act;
othe nomination to be made by a person who was a “standard business sponsor”; and
othe position associated with the nominated occupation to be genuine and the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.
·Section 140GB requires the employer to undertake “labour market testing” under section 140GBA of the Act. This essentially requires applications to include evidence about the sponsor’s attempts to recruit suitably qualified and experienced Australian citizens and Australian permanent residents to the position.
·Section 140GB(2)(b) also requires the satisfaction of further prescribed criteria, found in reg 2.72.
·Regulation 2.72(10)(h) provides that, unless the nominated occupation is specified in a legislative instrument for reg 2.72(10)(e)(iii)(B), the sponsor is required to engage the nominee only as an employee under a written contract of employment.
·This criterion creates a problem for sole traders. The PAM 3 discussion explains:
A sole trader will not be able to satisfy regulation 2.72(10)(h) if they are seeking to nominate themselves. This is on the basis that the employment must be based on a contractual relationship between an employer and employee. In the case of a sole trader sponsoring themselves, such a contractual relationship cannot exist because the employer and the employee would be the same ‘person’ (individual).
·A company and employment contract created purely for the purpose of overcoming the sole-trader impediment could not be seen as genuine.
·Various relevant versions of PAM 3 and “fast load instructions” in the Legend Subscription on the Department’s web site provide guidance on the use of various business structures including corporate “sole traders”. The respondent cites the following extract from PAM 3:[40]
An individual carrying on a business activity (as a sole trader/sole proprietor) cannot sponsor themselves. This is on the basis that the employment must be based on a contractual relationship between an employer and employee. In the case of a sole trader sponsoring themselves, such a contractual relationship cannot exist because the employer and the employee would be the same ‘person’ (individual).
…
If an individual incorporates a company with themselves as the sole shareholder/director, a separate legal entity (for example, a proprietary limited liability company) is created. The company will be able to sponsor the shareholder/director as the employer (sponsor) and employee (sponsored person) are separate legal entities. In these circumstances, the individual would, in theory, be able to execute an employment contract as the employee in their personal capacity on the one hand and as the employer in their capacity as the director of the company, on the other.
[40] See A20.
The respondent conceded that a “self-sponsorship” arrangement can exist genuinely and legally.[41] As I commented to the respondent’s counsel at the hearing[42] and as noted by the applicant in his submissions, there may be legitimate reasons for a sole trader wanting to self-employ, particularly in the Perth construction industry at the relevant times.
[41] respondent's closing submissions para 125.
[42] transcript at 78.
The respondent argues, however, that the sole trader needs to have set up the company structure for a genuine purpose. If the purpose was to get around the sole trader restrictions in the Regulations, then the “self-employment” position cannot be considered genuine.
The respondent argues that in the four cases examined in the decision, there is no evidence establishing a genuine need for incorporation. The respondent says that there are no file notes to confirm the reason for each of the four clients needing to incorporate themselves. The respondent says that one would expect a migration agent to obtain such instructions, when providing advice about 457 visa and that it is a requirement of the Code that agents keep notes of every substantive or material oral communication between the agent and client.[43]
[43] Citing the Code cl 6.1.
I do not accept that the respondent’s argument as set out in the above paragraphs accurately reflects the legal position under the legislation or the PAM 3. The respondent’s contention is couched in terms of the applicant having to establish a “need” to incorporate each of the relevant companies. This part of the respondent’s closing submissions is headed “Evidence of genuine need for incorporation” and at para 130, the respondent argues that, in the absence of any note recording the client’s instructions as to a need to incorporate, “any positive evidence given by the Applicant about these clients having a genuine need cannot be accepted”. At para 133 of the respondent’s closing submissions, referring to the evidence of Joseph Calabro, the applicant’s father, who incorporated the four companies, the respondent submitted that his “… evidence cannot be used to positively confirm that each of the four clients had a genuine need to incorporate either”.
The test that emerges from the legislation and PAM 3 is not whether there was a “need” (i.e. no alternative) to incorporate an employer entity, but whether the position, and presumably the incorporation of a separate corporate employer to create the position, was “to facilitate the entry or stay of the nominee”.[44] I do not accept the respondent’s argument that in the absence of the applicant being able to establish a “need” to incorporate an employer entity, it follows that the four companies were therefore incorporated to “secure a visa outcome”.[45]
[44] PAM 3; cited at paras 122–3 of the respondent’s closing submissions.
[45] respondent's closing submissions para 134.
Joseph Calabro’s statement of 25 March 2021[46] was in general terms. In the statement he says that he was responsible for the incorporation of the companies and that, as a tax accountant, he often recommended incorporation:
“…when they plan on having employees. One of the benefits of a company is to reduce the personal liability of directors. As most of these clients were working in construction … [i]n many instances the Head Contractor insisted that they only employ a corporate body…[47]
[46] A13.
[47] A13, 24 para 6.
While Joseph Calabro’s statement of 8 April 2019[48] does refer to dealings with Mr M, the sole director/shareholder of one of the relevant companies, he does not say in that statement that he gave advice to Mr M or any of the other clients to incorporate the company for tax or other financial reasons. He seems to have acted more as an interpreter for Mr M (who did not speak English) in an AAT application in relation to which the applicant’s brother was apparently assisting Mr M.
[48] A12.
Joseph Calabro also gave evidence at the hearing. Unfortunately, his evidence was largely unhelpful. While he was able to recall that he had dealt with the relevant clients, he could not remember the detail of any of those dealings and, more particularly, could not say whether he had recommended or discussed with the clients the use of a company. He also seemed to have difficulty understanding reasonably straightforward questions and provided what appeared to be contradictory answers on several occasions. All that he could relevantly remember was that he had set up the companies[49] and, more importantly, that when these clients spoke to him, they had already decided to use a corporate vehicle.[50]
[49] transcript at 108.
[50] transcript at 109.
The applicant’s written evidence was set out in two statements. One was a statement of 12 November 2021[51] which, by paragraph 2, stated that his “evidence remains in terms of [his] statutory declaration of 8 April 2019”.[52] The applicant’s statutory declaration of 8 April 2019 was in the form of a reproduction of the s 309(2) notice issued by the respondent (see [25] and [51] above) with answers and comments inserted into the text of the notice. Relevant to this complaint, the applicant’s statutory declaration stated:
[51] A2.
[52] R6, T16/407–30.
80. It follows from the Department’s stated intent, that the subclass 457 programme is not intended to be a vehicle to allow persons to establish a business to sponsor them, merely for the purpose of securing a migration outcome for themselves any of their family members.
This was only offered to business who were able to financially pay for an employee. The business all had incoming work and 3 of the 4 are still going and paying their taxes in Australia. JT Tradies has closed as the applicant transferred to the new employer and had to cease acting as a Director of that company or risk his 457 being cancelled. Self-sponsorship was permitted.
81. This stated intent of the subclass 457 programme, is supported by the genuine criteria contained in the subclass 457 nomination and visa requirements, as specified below:
The genuine criteria regarding the subclass 457 nomination
82. The criteria for approval of a subclass 457 nomination application requires that, amongst other things, the position associated with the nomination occupation is genuine. …
The position existed and as I mentioned the nominees continue to fill these positions until now. If the position was not genuine they would no longer be working there.
83. PAM3 30 indicates that in determining whether a position associated with a nomination occupation is genuine, consideration should be given as to whether the position has been created to facilitate the entry or stay of the nominee.
Self-sponsorship was and still is permitted. It became more of an issue when policy changed. The positions were all genuine anyway.
84. PAM3 prescribes factors that may indicate that the position has been created to facilitate entry or stay of the nominee as the primary objective of the application. The factors which may be relevant to these complaints include:
-     the nominee is a relative or personal associate of an officer of the sponsoring business, or is the director of the sponsoring business.
-     the salary level is inconsistent with other workers in the occupation (for example, if the nominated salary is significantly lower than industry standards for the nominated occupation)
Self-sponsorship was permitted, and even under the new PAM it still is.
85. Additionally in the case of Best Stone and JT Tradies, an additional prescribed factor applies at the time these nomination applications were lodged, namely:
-     the nominee is currently in Australia as the holder of a 417 visa
The nominees were currently working and would also not have been genuine students. They had ongoing income and work and the legislation allowed them to be self sponsored. They are able to enter into an employment contract as both the director and employee. Best Stone was a specialist company and JT tradies as a subcontractor.
The genuine criteria in relation to the subclass 457 visa
86. Furthermore in relation to the related subclass 457 visa applications for these companies the Minister must be satisfied, amongst other things, that …:
-     The applicant’s intentions to perform the occupation is genuine and
-     The position associated with the nominated occupation is genuine
The applicants only did jobs in which they were skilled. The work was genuine and the position was genuine. As you can see all applicants were tradesmen during the trades shortage in Perth.
(Without alteration.)
The applicant’s evidence in cross-examination was as follows:
COUNSEL:     Now, can I ask you, with Mr [McM]’s case, is it your - did you see him                    for the purposes of securing a visa?
APPLICANT:   No, so most of these people - well that one there probably would've    been the visa because he was on a tourist visa, so he wouldn't have   been working, so he wouldn't have come to do a tax return or   anything like that, so yes, it would've been.
…
COUNSEL:     Now did you see Mr [McM] in your capacity as a migration agent or    did you see him in your capacity as an accountant?
APPLICANT:   No, it would've been migration agent because he had no work rights.
…
COUNSEL:     Did you recommend to Mr [McM], when you saw him, to set up that    company?
APPLICANT:   No, he had employment - like, he had - somebody had offered him    contracting work. So it was more based on…[53]
[53] transcript at 53–6.
Counsel had pointed out to the applicant prior to the above exchange that, at the time that the applicant saw Mr McM in May 2015, Mr McM’s visa was due to expire on 12 June 2015 and the relevant company was incorporated on 18 May 2015. It was then pointed out to the applicant by counsel that there was no file note or other record made by the applicant recording the advice that the applicant had given to Mr McM or what Mr McM’s instructions had been. The following exchange then took place:
COUNSEL:     When you initially saw him, did you recommend to set up a company?
APPLICANT:   Yes, probably.
COUNSEL:     Why did you recommend that?
APPLICANT:   Because he was working as a contractor and most of the time when    you're a - because he's a bricklayer. So, generally what happens   here is when you're working in construction they won't take on sole   traders, anyway. They want to take on contractors, so basically they   don't have to pay the superannuation, is essentially what happens.   So, essentially he had work lined up but a company is generally the   way we go with contractors.
COUNSEL:     You say the reason why he set up the company is because his    potential contractor wanted him to do that?
APPLICANT:   Probably twofold, that and, yes, he would have a visa opportunity    through it. So, it would be twofold.
COUNSEL:     And, did you obtain any evidence about that?
…
COUNSEL:     About the potential contractor needing Mr [McM] to be employed    under a self-employment arrangement to set up his own business   and to employ himself?
APPLICANT:   No, but why would I?
COUNSEL:     Sorry, is that no or yes?
APPLICANT:   No. But why would I? It's not something we would do.
…
COUNSEL:     He saw you for migration advice?
APPLICANT:   M'mm.
…
COUNSEL:     He told you that he… needed to establish a company?
APPLICANT:   Well, they're twofold. So, a company would help him. So, if he has    ongoing employment then he can do a 457 under a company.
COUNSEL:     You advised him that?
APPLICANT:   Yes, which was the law at the time.
COUNSEL:     So, your evidence is that the law at that time was that you can set up                     a self-employed company for the purposes of obtaining a visa?
APPLICANT:   Yes. You still can. The law and - - -
COUNSEL:     Do you accept that the employment arrangement needs to be    genuine, Mr Calabro?
APPLICANT:   Yes, but there is a provision in the policy, though, that says the    contractor director can give a contract to themselves as an employee.   It was listed in PAMs.
…
COUNSEL:     So, I'm putting to you, Mr Calabro, that you advised Mr [McM] to set    up a company to employ himself with the primary objective of   facilitating a visa?
APPLICANT:   No, I disagree. But this is also policy. I don't understand why - like,    this doesn't mean you can't do it; it just says, "Further assessment   should be undertaken."
…
APPLICANT:   All right. So there's more than one factor to that. So, the fact is he's    not a genuine student. He's got a genuine employment and the   business is a genuine structure you can use. So, why is the   determination that just because he is a director doesn't mean he can't   do it. This is not law; this is just PAMs. I have other clients who got   approved. So, it's not black and white.
…
COUNSEL:     Mr Calabro, I'm putting to you that the regulation clearly requires the    employment to be genuine. That's what it says?
APPLICANT:   So, now you're referring to regulations or PAMs?
COUNSEL:     I put it to you - I'm referring to regulation - - -?
APPLICANT:   So, now we're changing. Okay.
COUNSEL:     No, that's what PAM is describing:
Regulation 2.72(10)(f) provides that the Minister must be satisfied that the position associated with the nominated occupation is genuine.
APPLICANT:   Yes, and it also says further assessment should be undertaken if they                   have any doubt. So, it doesn't mean you can't; it just means they   have to ask more questions.
COUNSEL:     No, Mr Calabro, what I'm putting to you is that you advised Mr [McM] to create this employment company and to employ himself for the   primary objective to facilitate the entry or stay in the country?
APPLICANT:   Well, I disagree.[54]
[54] transcript at 59–9.
The respondent’s closing submissions set out in some detail the relevant provisions of PAM 3 and the Regulations over the period relevant to the four companies the subject of CMP-36423 and the respondent’s argument in relation to those provisions. Relevantly, those submissions were:
116.… [cl 457.223] required:
(a)the nomination of an occupation in relation to the Applicant has been approved under section 140GB of the Act;
(b)the nomination was made by a person who was a “standard business sponsor” at the time the nomination was approved; and
(c)the Minister is satisfied that the position associated with the nominated occupation is genuine and the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.
117.Section 140GB requires the employer to undertake “labour market testing” under section 140GBA of the Act. This essentially requires applications to include evidence about the sponsor’s attempts to recruit suitably qualified and experienced Australian citizens and Australian permanent residents to the position. This is generally achieved through job advertisements.
118.Section 140GB(2)(b) also requires the satisfaction of further prescribed criteria, found in regulation 2.72.
119.Relevantly, regulation 2.72(10)(h), which provides that, unless the nominated occupation is specified in a legislative instrument for regulation 2.72(10)(e)(iii)(B), the sponsor is required to engage the nominee only as an employee under a written contract of employment.
120.This criterion creates a problem for sole traders. The PAM3 discussion explains:
A sole trader will not be able to satisfy regulation 2.72(10)(h) if they are seeking to nominate themselves. This is on the basis that the employment must be based on a contractual relationship between an employer and employee. In the case of a sole trader sponsoring themselves, such a contractual relationship cannot exist because the employer and the employee would be the same ‘person’ (individual).
121.Regulation 2.72(10)(f) provides that the Minister must be satisfied that the position associated with the nominated occupation is genuine. A company and employment contract created purely for the purpose of overcoming the sole-trader impediment could not be seen as genuine.
122.Prior to 21 November 2015, PAM3 stated:
Consideration should be given as to whether the position has been created to facilitate the entry or stay of the nominee. Factors that may indicate that the position has been created to facilitate the entry or stay of the nominee as the primary objective of the application include:
·the nominee is a relative or personal associate of an officer of the sponsoring business
·the nominee is a director of the sponsoring business
·…
123.PAM3 was updated on 21 November 2015, and further information on this issue was provided:
Position created to secure a migration outcome
Overview
The intent of the 457 program is to enable Australian businesses to temporarily fill short term skill shortages with overseas workers when they cannot find a suitably qualified or experienced Australian citizen or permanent resident to fill the position. The program is not intended to be used for non-citizens to establish a business in Australia and self-sponsor themselves; there are other visa pathways available for such purposes.
…
124.The Applicant has referred to “fast load instructions” in the Legend Subscription, which is to address departmental concerns regarding the need to get critically urgent new or revised departmental policy instructions into LEGEND immediately. This should not replace the PAM3 as Department Policy. In any event, reliance is placed on the following in the fast load instructions:
Sole trader
…
An individual carrying on a business activity (as a sole trader/sole proprietor) cannot sponsor themselves. This is on the basis that the employment must be based on a contractual relationship between an employer and employee. In the case of a sole trader sponsoring themselves, such a contractual relationship cannot exist because the employer and the employee would be the same ‘person’ (individual).
…
If an individual incorporates a company with themselves as the sole shareholder/director, a separate legal entity (for example, a proprietary limited liability company) is created. The company will be able to sponsor the shareholder/director as the employer (sponsor) and employee (sponsored person) are separate legal entities. In these circumstances, the individual would, in theory, be able to execute an employment contract as the employee in their personal capacity on the one hand and as the employer in their capacity as the director of the company, on the other.
125.The Respondent does not dispute that a “self-sponsorship” arrangement can exist genuinely and legally. As pointed out by the Applicant in his submissions, and by the Deputy President at the hearing, there may be legitimate reasons for a sole trader wanting to self-employ themselves, particularly in the Perth construction industry.
126.However, the sole-traders need to have set up the company structure for a genuine purpose. If the purpose was to get around the sole-trader restrictions in the Regulations, then the “self-employment” position cannot be considered genuine.
(Original emphasis; footnotes omitted.)

The respondent contends that the incorporation of each of the sole traders as part of the 457 visa application was done for the sole purpose of achieving a migration outcome and that this is supported by “the lack of evidence supporting any other genuine need for incorporation, the timing of events, and the similarities between each of the clients supports a finding that the sole purpose of incorporation was to achieve a migration outcome, the Applicant advised all of these clients to do this”.[55]
[55] respondent's closing submissions para 128.
The respondent also points to the fact that Joseph Calabro, who was responsible for incorporating the companies, could not give any evidence of having discussed with the sole traders any commercial reasons for using a corporate structure. As noted above, about all that I could take from Joseph Calabro’s evidence was that he had no relevant recollection of any discussion with any of the sole traders other than that, at the time that each of them came to him, they had already made the decision to use a corporate structure (see [67] and [68] above). This, coupled with the applicant’s admission in cross-examination that he did advise Mr McM to set up the company structure (see [70] and [71] above), the applicant’s evidence that, in his view, there is “provision in the policy,… that says the contractor director can give a contract to themselves as an employee”,[56] and the whole of the exchange set out in [71] above, suggest that the primary purpose behind the advice given to Mr McM to set up a company was to enable Mr McM to obtain a 457 visa. His then visa was shortly to expire. As the applicant conceded, Mr McM saw him for migration advice and the applicant, in that context, advised him to use a corporate structure.
[56] transcript at 57.
In response to those arguments, the applicant in his closing submissions says that it is common in the construction industry for tradespeople to use a corporate structure.[57] That may be the case (I note that there was no evidence led to support that assertion), however, it is also common for tradespeople to be directly employed by principles and contractors. As noted above, the generalised evidence of Joseph Calabro was that there are advantages, in theory and probably even practice, in using a corporate entity for contracting in the construction industry, however, neither the applicant nor Joseph Calabro gave evidence to the effect that either of them discussed these apparent benefits with these four clients. I also note, as pointed out by the respondent, that notwithstanding that the applicant has been aware that the purpose of incorporating the companies in question was an issue for determination in these proceedings, no statements or evidence from the relevant clients was filed by the applicant.
[57] applicant's closing submissions para 17.
The respondent also argued that the similarity in the documents used for each of the four companies, particularly the financial information and employment contracts, was indicative of the companies having been set up for the purpose of facilitating a visa outcome, rather than for legitimate commercial reasons. While I accept that there are similarities in the documents, I do not accept that that, of itself, is evidence of the purpose claimed by the respondent.
The similarity in the documents is reflective of the similarity in the circumstances of each company. They were “start-up” companies in the construction industry operating in the same market. It is hardly surprising that the necessarily pro-forma, indicative financial statements prepared by another accountant specialising in that area, would be similar. That is the nature of forward-looking, pro-forma financial statements for companies with no financial track record.
The respondent also points to the similarity in the employment contracts. That is also unsurprising. As explained by the applicant, they were in the standard form published by the Fair Work Ombudsman on its website. I do not accept that the use of the same standard form basic employment contract is indicative of the purpose for which the companies were incorporated.
The evidence and the parties’ submissions in relation to the other three clients who incorporated companies and sought 457 visas was to the same effect as that relating to the company incorporated by Mr McM.
While I do not accept that the similarity in documents used by each of the companies is indicative of the purpose for which the companies were incorporated, I am satisfied that the primary purpose, overwhelmingly so, for the incorporation of the relevant companies was to facilitate the owners obtaining 457 visas. In other words, to achieve a migration outcome. I am also satisfied that the applicant gave each of the relevant clients advice to use a corporate structure in order to achieve that outcome. As a result, I am satisfied that the position associated with the nominated occupation under the structure advised by the applicant was not genuine.[58] The position, that is the employment by the company of the director/shareholder, was created to get around the issue under the legislation and PAM 3 with sole traders sponsoring themselves under the 457 visa program (see [61] above). The representations necessarily made by the applicant in lodging the applications for 457 visas under these corporate structures was, therefore, misleading. I also find that by engaging in the above conduct the applicant was not maintaining the integrity of the migration advice profession.
[58] See cl 457.233.
The Statement of Reasons[59] identified the applicant as having breached cls 2.9 and 2.23 of the Code. I am satisfied that the applicant did breach cls 2.9 and 2.23 by advising the clients to use a corporate structure to achieve an immigration outcome, and by lodging the 457 visa applications relying on a position which was not genuine.
Not a person of integrity or is otherwise not a fit and proper person to give immigration assistance
[59] R6, T17/1409.
The reviewable decision found that the applicant was not a person of integrity, nor a fit and proper person to provide immigration assistance.[60] While the Statement of Reasons does not specifically identify the bases upon which those findings were made, it is fair to assume that they were made as a result of the other findings set out in subparagraphs (a)–(d) of para 110 of the Statement of Reasons. They were, in summary, that the applicant:
(a)acted in a manner which had little regard to his client’s legitimate interests and that he had not been honest and transparent in lodging applications which he knew could not meet the relevant criteria;
(b)provided information and documents that were misleading in order to undermine the integrity of the relevant visa programs;
(c)encouraged clients to act in breach of the migration legislation exposing them to civil and criminal penalties; and
(d)breached multiple clauses of the Code, indicating systematic poor practice and a disregard for his professional obligations.
[60] R6, T17/1412; The Act s 303(1)(f).
Senior Member Taylor SC in Isaa and Migration Agents Registration Authority[61] (at [452] and [453]) summarised the assessment of integrity and the relevant fitness of a person under s 303(1)(f) of the Act as follows:
The MigAct1958 s 303(1)(f) criterion uses the partly disjunctive expression that the agent “agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance”. The criterion assumes a lack of integrity will preclude satisfaction of the agent’s relevant fitness. It does not assume the necessary accuracy of the converse proposition – that a person who is not “fit and proper’ is necessarily lacking in integrity: see Davies v Australian Securities Commission [1995] FCA 1496; (1995) 59 FCR 221 per Hill J at 233. The concepts of integrity and fitness are, however, closely related. Honesty, character and uprightness are relevant to both characterisations:- Peng at [26].
The characterisation of fitness and propriety depends on the person’s character, reputation and the quality of the contentious conduct. The characterisation may be informed by impressions about the hypothesised evaluation of the person’s conduct “by professional colleagues of good repute and competency”: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. The characterisation may also depend on impressions about the degree of probability that the contentious conduct will be repeated, or the degree of confidence with which its repetition can be discounted as improbable:- Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380. An additional relevant consideration, material to the present matter, is the particular purpose for which the characterisation is sought to be made. In the context of the statutory scheme regulating the conduct of migration agents, one purposive consideration is the “fitness” of the person to attract the confidence of not only clients but also of decision makers administering the MigAct1958 and MigReg1994:- see Kazi and Migration Agents Registration Authority [2006] AATA 42 at [76].
[61] [2017] AATA 1110.
I agree with and adopt the above statements of relevant principles and considerations.
I have found that the applicant has breached a number of provisions of the Code. I am also satisfied that, in some cases, the applicant’s conduct had the potential to undermine the purpose and integrity of visa programs. I also accept that in some cases the applicant has acted in a manner which, in the end result, was not in the best interests of his clients and which could support the respondent’s conclusions in the Statement of Reasons identified in [83(b) and (c)].
I do not find that the applicant is not a person of integrity or otherwise not a fit and proper person to give migration advice. I do not consider that the applicant’s conduct was deliberately or contumeliously disregarding of the law or his clients’ interests. My assessment is that the applicant’s conduct, even that which I have found breached provisions of the Code, was, in the majority of cases, done with the intention, albeit in some cases misguided, of achieving the result desired by the client. I would characterise the applicant’s conduct as “pushing the envelope”, in some cases too far. His conduct does not demonstrate a lack of knowledge of immigration law, regulations and administrative processes, but rather a too bullish interpretation of the relevant law, regulations and policy documents and the results that he could achieve.
What the review of the applicant’s conduct did reveal was a lack of proper process and record keeping by the applicant, particularly the keeping of records evidencing the advice given by the applicant. The applicant effectively conceded as much in cross-examination (see [46] above).
Looking at the factors identified in [453] of Isaa, it is clear from the testimonials provided that the applicant is held in very high regard by the community, in particular the Perth Italian community. The statements and the evidence given at the hearing by those who gave the statements were most impressive. Many of the statements were from respected, prominent members of the community who held senior public positions. All spoke of having known the applicant for many years and having found him to be a person of integrity who makes a significant contribution to the community through volunteer work.
The second element of the assessment of fitness, propriety and character identified in [453] of Isaa, is the degree of probability that the contentious conduct will be repeated. I am satisfied that the applicant now understands his obligations much better than he did when he engaged in the conduct which led to the cancellation of his registration. I am sure that the lodging of the complaints, the review by the respondent and the cancellation of his registration as a migration agent have had a salutary effect on the applicant. I am satisfied that a repetition of the conduct which brought the applicant to the present situation is highly unlikely, or to use the language of Senior Member Taylor SC in Isaa, improbable.
The penalty
The respondent’s decision was to cancel the applicant’s registration as a migration agent under s 303(1)(a) of the Act. The effect of that decision was that, by operation of s 292 of the Act, the applicant is also precluded from being registered as a migration agent for five years from the date of the decision.
At [454] and [455] of Isaa, Senior Member Taylor SC made the following observations about the operation and purpose of penalties under the Act:
… The discretion has an essentially protective purpose. The relevant objects of protection are not only the interests of an agent’s prospective clients, but also the repute of the migration advice profession (see Code cl 2.23) and the informed and principled administration of the MigAct1958 (see eg., Code 2.1, 2.18 and 2.19).
In the exercise of such a protective discretion the matters that influence the characterisation of “fitness” and “integrity” are again important considerations. Just as in the characterisation of the person’s “fitness”, the apparent appropriateness of any particular sanction will require regard to the quality of the contentious conduct, its duration, the degree of culpability it involved, and the degree of confidence in the improbability of its re-occurrence. An additional relevant consideration is the possible utility of the sanction in tending to promote proper standards of conduct, and in deterring departure from them:- Narayanan and Migration Agents Registration Authority [2006] AATA 353 at [132]; Chang and Migration Agents Registration Authority [2014] AATA 235 at [52]. Impressions about the improbability of reoccurrence of the contentious conduct will be influenced by the recency of the conduct, and the formal and informal sanctions (including personal distress notoriety, and financial loss) to which an agent has already been exposed:- see Story v National Companies & Securities Commission (1988) 13 NSWLR 661 at 685.
Again, I respectfully agree with and adopt those observations and principles.
In the present case, I find that the applicant did breach some but not all of the provisions of the Code as found by the respondent in its decision under review, and as contended in these proceedings. I also find that his conduct in relation to the 457 visa applications had the potential to circumvent, if not to subvert, the principle underpinning that visa program. However, I consider that his conduct in that regard was the result of an incorrect interpretation of the legislation and policy rather than a deliberate disregard for the legislation and policy.
On the basis that the primary driver in the application of a penalty under the Act is one of protection rather than punishment, and given my finding as to the low likelihood of the applicant repeating the contentious conduct which has brought him to this point, I consider that a suspension of the applicant’s registration as a migration agent under s 303(1)(b) of the Act to be the correct or preferable decision. The effect of the decision made by the respondent is that the applicant has not been able to act as a migration agent since 27 August 2020, in other words his registration has, in effect, been suspended since the date of that decision.
Taking all of the factors identified as relevant to the assessment of an appropriate penalty, and bearing in mind that the primary purpose is one of protection rather than punishment, it is my assessment that a two year suspension of the applicant’s registration as a migration agent under s 303(1)(b) rather than cancellation under s 303(1)(a) would have been and is the correct or preferable decision.
DECISION
The decision dated 27 August 2020 to cancel the applicant’s registration as a migration agent under s 303(1)(a) of the Act is set aside and in substitution it is decided that the applicant’s registration as a migration agent be suspended under s 303(1)(b) of the Act for a period of two years from 27 August 2020.

I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................
Associate
Dated: 27 May 2022

Dates of hearing: 16-17 November 2021

Counsel for the Applicant: Mr D Godwin

Solicitors for the Applicant: Dobbie & Devine Immigration Lawyers Pty Ltd

Counsel for the Respondent: Mr P Nolan

Solicitors for the Respondent: Sparke Helmore Lawyers

Dates of hearing:	16-17 November 2021
Counsel for the Applicant:	Mr D Godwin
Solicitors for the Applicant:	Dobbie & Devine Immigration Lawyers Pty Ltd
Counsel for the Respondent:	Mr P Nolan
Solicitors for the Respondent:	Sparke Helmore Lawyers