De Los Santos-Aguilar and Migration Agents Registration Authority

This matter concerned an appeal by Mrs De Los Santos-Aguilar against a decision by the Migration Agents Registration Authority (the Authority) to refuse her registration as a migration agent. The Authority's decision was based on findings that Mrs De Los Santos-Aguilar was not a person of integrity and was not a fit and proper person to provide immigration assistance, due to breaches of the Code of Conduct for Migration Agents. The primary dispute revolved around whether Mrs De Los Santos-Aguilar was responsible for the conduct of her husband, Mr Aguilar, who provided immigration assistance under her business name. The Administrative Appeals Tribunal was required to determine the extent of Mrs De Los Santos-Aguilar's responsibility for Mr Aguilar's actions and whether her conduct, and that of Mr Aguilar acting on her behalf, constituted breaches of the Code of Conduct.

The Tribunal was tasked with determining several key legal issues. Firstly, it had to ascertain whether Mr Aguilar was an employee of Mrs De Los Santos-Aguilar or an independent contractor, and the implications of this relationship for Mrs De Los Santos-Aguilar's liability. Secondly, the Tribunal needed to decide whether Mr Aguilar provided immigration advice on behalf of Mrs De Los Santos-Aguilar's registered migration business. Thirdly, and crucially, the Tribunal had to assess whether Mrs De Los Santos-Aguilar's overall conduct, including her alleged failure to adequately supervise Mr Aguilar, her provision of inconsistent information to the Authority, and deficiencies in her practice management, demonstrated a lack of integrity and rendered her unfit and improper to provide immigration assistance.

In reaching its decision, the Tribunal considered the regulatory regime governing migration agents and their specific obligations. It analysed the indicia for determining an employment relationship, as outlined by the Australian Taxation Office, to assess whether Mr Aguilar was an employee or an independent contractor. Despite arguments that Mr Aguilar operated independently, the Tribunal found evidence of delegation of work from Mrs De Los Santos-Aguilar to Mr Aguilar, suggesting he undertook work at her direction and under her control. The Tribunal concluded that Mr Aguilar held himself out as acting on behalf of Mrs De Los Santos-Aguilar's business, and she was aware of this and failed to implement effective controls. Consequently, the Tribunal found sufficient evidence to establish that Mrs De Los Santos-Aguilar breached the Code of Conduct, including clause 9.1, and that her conduct, along with Mr Aguilar's actions on her behalf, demonstrated a lack of integrity and fitness to provide immigration assistance.

The Tribunal affirmed the decision under review, meaning Mrs De Los Santos-Aguilar's registration as a migration agent was refused.