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…
Continue reading Calabro and Migration Agents Registration Authority (Migrati...
Sign in free to access the full text
- AGLC
- Calabro and Migration Agents Registration Authority (Migration) [2022] AATA 1378
- Case
- [2022] AATA 1378
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Authority’s decision to cancel Mr. Calabro’s registration was the correct or preferable one. This involved considering the provisions of the *Migration Act 1958* (Cth) (the Act), including sections 303(1), 304(1), and 314, and the relevant Code of Conduct in force at the time of the conduct and decision. The court also had to assess whether Mr. Calabro’s conduct demonstrated a lack of integrity or fitness to provide immigration assistance, and whether the breaches of the Code of Conduct warranted cancellation or a lesser penalty.
The court reasoned that while Mr. Calabro had engaged in conduct that breached the Code of Conduct, including providing misleading advice and failing to maintain proper records, cancellation of his registration was too severe a penalty. The court noted that the primary purpose of the disciplinary provisions was protection of the public rather than punishment. Applying this principle, and considering all relevant factors, the court concluded that a suspension of registration for a period of two years was the more appropriate and preferable outcome.
Consequently, the court set aside the Authority’s decision to cancel Mr. Calabro’s registration and substituted it with a decision to suspend his registration as a migration agent for a period of two years, commencing from 27 August 2020.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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 conduct2.1A 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 management6.1A 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.