Eckhardt and Migration Agents Registration Authority - [2020] AATA 4088

Eckhardt and Migration Agents Registration Authority [2020] AATA 4088 (28 September 2020)

Division:  GENERAL DIVISION
File Number:  2016/4118
Re:  REEVO FREDERICK ECKHARDT
APPLICANT

And:MIGRATION AGENTS REGISTRATION AUTHORITY
RESPONDENT

DECISION
Tribunal  Deputy President S A Forgie
Date  28 September 2020
Place  Melbourne

The Tribunal decides:
to affirm the decision of the respondent dated 5 August 2016 to cancel the applicant’s registration as a migration agent for a period of five year from that date.

………[sgd]…………………………
Deputy President

Catchwords –
MIGRATION AGENTS – cancellation of registration as migration agent for five years – whether applicant is a person of integrity – whether applicant is a fit and proper person to give immigration assistance – whether applicant has acted in line with the Code of Conduct – whether applicant’s health is a mitigating factor – applicant found to not have acted with integrity – applicant found to not be a fit and proper person to give immigration assistance – decision under review affirmed.
Legislation
Migration Act 1958; s 276; s 280; s 288; s 288A; s 288B; s 290; s 314
Migration Agents Regulations 1998
Cases

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 94 ALR 11
Hughes and Vale Pty Ltd v State of New South Wales (No. 2) [1955] HCA 28; (1955)
93 CLR 127; [1955] ALR 525; (1955) 29 ALJR 129
Lilienthal v Migration Agents Authority [2002] FCA 93; (2002) 117 FCR 558; 34 AAR 371
Re Guild, & Re Legal Practitioners Ordinance (1978) 32 ACTR 13; (1979) 40 FLR 1
Re Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27;
(1994) 19 AAR 148
Re Peng and Department of Immigration and Multicultural Affairs and Administrative Appeals Tribunal [1998] AATA 12
Su v Tax Agents’ Board South Australia [1982] AATA 127; (1982) 61 FLR 1
Secondary Materials
Chambers 21st Century Dictionary, 1999, reprinted 2004
REASONS FOR DECISION
Deputy President S A Forgie

Mr Eckhardt was first registered as a migration agent on 20 November 2006. His registration was renewed annually. Until 20 January 2013, Mr Eckhardt traded under the name of International Placement Consultants Pty Ltd. That company was de-registered on that day. From 16 September 2014, Mr Eckhardt traded under a company of the same name: International Placement Consultants Pty Ltd (IPC). Between 12 June 2012 and 23 May 2014, the Migration Agents Registration Authority (Authority) received some seven complaints about Mr Eckhardt’s conduct as a registered migration agent. In 2013 and 2014, Mr Eckhardt’s registration was continued under ss 300(4) and (5) of the Migration Act 1958 (Migration Act) while the Authority came to its decision regarding his application for registration. It did so on 5 August 2016 and cancelled his registration for a period of five years from that date. Mr Eckhardt applied for review of the Authority’s decision. I have decided to affirm the Authority’s decision.

BACKGROUND

I have used pseudonyms for the seven people who made complaints regarding Mr Eckhardt’s actions as a migration agent but their identities are known to him. They were Mr A, Mr C, Mr E, Mr G, Mr I, Ms K and Mr N. I will set out further details of those complaints below. When I have quoted from their evidence or that of Mr Eckhardt, I have been faithful to the text as written.

On 17 June 2013, the Authority sent a notice to Mr Eckhardt regarding complaints made by four of the complainants: Mr A, Mr C, Mr E and Mr G (four complainants).[1] Under ss 308(1)(a) and (c) of the Migration Act, the Authority required Mr Eckhardt to provide all client files and other records, accounts and financial statements in relation to each complainant and to respond to the complaints. Mr Eckhardt replied on 11 July 2013 seeking an extension of time due to ill health. He attached a Medical Certificate dated 10 July 2013, in which his family doctor,[2] Dr Donald Fraser, stated:
“Because of a medical condition; major depression secondary to bereavement which has affected the patients concentration and directly impacted on his ability to work. We have commenced antidepressant therapy and will be monitoring his progress.
I concluded by reason of this condition he is unable to attend work from 30/09/2011 to indefinite.”[3]
[1] T documents; t189 at 697-704
[2] Described by Mr Eckhardt as his family doctor: Exhibit A at [11].
[3] T documents; T190 at 707

The Authority granted Mr Eckhardt an extension of time.[4] He responded on 12 August 2013 with a Statutory Declaration addressing the four complaints.[5] He did not include the documents requested by the Authority. I will come back to Mr Eckhardt’s responses regarding complaints but will set out some of what he said regarding his failure to respond to the Authority’s requests for information by 22 November 2012 and 10 December 2012:
“I apologise for not responding to the Authority’s requests for information dated 22 November 2012 and 10 December 2012 by due date, which was not out of disrespect, but rather because in attempting to prepare a response at the time, it required me to look back and relive certain dark days and experiences and brought back certain memories which drew me back into deep depression. I began switching between Silenor, Parnate, Paxil and Remeron, antidepressant medication. In January 2012, my BP was 181/90 and my doctor was concerned I could have a heart attack at any time. To regain control, I had to leave the matter ‘unattended’ to be addressed later when I had physical and mental strength and state of mind to do so.
I have been on medical leave since September 2011 and felt it appropriate to only manage a few low maintenance clients, as this was important for me to keep abreast of changes, to regain my passion for migration, and to rekindle my career which is helping in my recovery. I am now taking only one type of antidepressant plus other medication (13 tablets per day) and my BP has normalised.
In responding to the four complaints, recent weeks have been incredibly difficult as this again triggered my depression which put me in a state of paralysis. Every day has been a challenge to manage my depression without losing control (while addressing the MARA compartment), to take baby steps forward and to make some progress every day to complete my response. The achievement of this challenge now and other later is important towards my full recovery.
…”[6]
[4] T documents; T191 at 709
[5] T documents; T192 at 710-725
[6] T documents; T192 at 724-725

The Authority wrote to Mr Eckhardt on 21 October 2013 regarding a complaint by Mr I. It set out details of the complaint and asked Mr Eckhardt for a response by 11 November 2013.[7]
[7] T documents; T166 at 608-610

In a letter dated 8 November 2013, the Authority followed up on Mr Eckhardt’s response dated 12 August 2013 to its earlier letter regarding the four complainants.[8] It also asked Mr Eckhardt why he had not yet refunded amounts had offered to make to Mr C ($5,500) and Mr E ($2,273). The Authority also raised issues regarding the details that appeared on the Register of Migration Agents that it is required to keep under s 287 of the Migration Act. It referred to material suggesting that Mr Eckhardt had not notified it of changes to the registration details. Finally, the Authority queried Mr Eckhardt’s decision to take on new clients in view of the state of his health. The Authority asked for a response by 2 December 2013 in the form of a statutory declaration as referred to in s 308(1)(a). It reminded him that a response to its letter dated 21 October 2013 was expected by 11 November 2013.
[8] T documents; T196 at 732-733

The Authority’s letter followed a telephone call between its Assistant Director – Professional Standards and Integrity, Ms Pettit, and Mr Eckhardt raising the same matters. Ms Pettit also notified him that the Authority had received a further complaint. It had been made by Ms K and he would be given written notification of it. Mr Eckhardt also emailed details of his work for Ms K and said that he had diarised to respond to the Authority’s recent emails on 11 and 14 November notwithstanding that he had assignment and essay deadlines in the last two weeks. He advised the Authority that, as part of his therapy, he was completing a Master’s Degree in Migration Law and Practice at Griffith University. That was, Mr Eckhardt said, “… a beneficial distraction from his depression, and a positive and satisfying ongoing experience.”[9]
[9] T documents; T198 at 735

Ms Pettit wrote to Mr Eckhardt again on 6 February 2014 stating that she had written to him on 6 January 2014 asking him when she might expect a response to her letter dated 8 November 2013. The response had been due by 2 December 2013 but she had neither received a response or had a reply to her query on 6 January 2014.[10]
[10] T documents; T202 at 750

Also on 6 February 2014, Ms Pettit sent a formal notice to Mr Eckhardt under s 308(1) regarding Ms K’s complaint. After setting out her complaint, the Authority asked Mr Eckhardt to address a umber of questions and to provide his client file and notes of Ms K’s instructions to him. The Authority asked Mr Eckhardt to provide his responses and the documents by 7 March 2013.[11]
[11] T documents; T202 at 751-754

Mr Eckhardt responded by email on 20 February 2014:
“I wish to advise that I have had a relapse, and been struggling to keep my illness under control. A few months ago I was proud and encouraged by the early signs of my recovery, however, this has now changed.
I am not in a good place at the moment. Certain events, including my wife’s … likely operation, and the loss of our pet Pomeranian who had been with us for 12 years have contributed to the relapse. Bambi had a sudden heart attack, yelped loudly and died in my arms.
I have requested an earlier appointment with my doctor for 21^st February, and will provide a further update.”[12]
[12] T documents; T203 at 755
Ms Pettit wrote to Mr Eckhardt on 17 December 2014. It would seem to be in response to his having lodged an application for re-registration as a migration agent. She noted that she had received a medical certificate but more than six months had passed since it had been written. Her reference to a medical certificate is a reference to that dated 10 July 2013 and written by Dr Donald Fraser.[13]
[13] T documents; T204 at 757-758

Mr Eckhardt replied to Ms Pettit on the same day;[14] 17 December 2014 regarding his condition. He advised that his life had been on hold for the previous three years. His brother, father and nephew had died. That had both brought on and advanced his depression. Although he was following his treatment plan with difficulty, he had begun to make some progress, Mr Eckhardt told the Authority. His Pomeranian had died on 7 February 2014. The quality of his life had been affected substantially by his condition. Part of his treatment plan had been to set short term achievable goals as a means of taking small steps to a better quality of life. The prospects of a full recovery were not envisaged at the time he wrote to the Authority. Consequently, he had very few interests at the time although one of his interests and gains was to retain and renew his registration and to continue his career as a registered migration agent. Mr Eckhardt said that he would provide a further update on his condition following his next visit to his doctor that was scheduled to take place in ten days.[15]
[14] T documents; T204 at 756-757
[15] T documents; T204 at 756-757

In an email dated 23 March 2015, Ms Pettit reminded Mr Eckhardt that he had not provided either a medical certificate or a report on his illness as he had undertaken to do in his December 2014 correspondence.[16] On 7 May 2015, Mr Eckhardt sent the Authority a medical certificate from his Psychiatrist, Dr Mordia, whom he consulted every three months.[17] I do not have a copy of that report.
[16] T documents; T204 at 756
[17] T documents; T204 at 756

On 13 August 2015, the Authority wrote a 56 page letter to Mr Eckhardt regarding the complaints it had received from the four complainants, Ms K and Mr I as well as a further complaint it had received on 23 May 2014 from Mr N. The letter was in the form of a notice under s 309(2) of the Migration Act advising that the Authority was considering cautioning him or suspending or cancelling his registration as a migration agent under s 303. The letter summarised the seven complaints and detailed the notices it had given to him under s 308 together with his responses and the documentation he had submitted. It went on to set out a number of findings that would be open to the delegate on the evidence and to specify the clauses of the Code of Conduct[18] (Code) that it would be open to the delegate to find that Mr Eckhardt had breached. Nine issues were identified and developed under the following headings:
[18] The Code of conduct is provided for in s 314(1) of the Migration Act and r 8 of the Migration Agents Regulations 1998 states that it is set out in Schedule 2 to those regulations.
(1)Allegation that you have misled your clients;
(2)Allegation that you have misled the Department;
(3)Allegations that you misled the Authority;
(4)Financial obligations to clients under Parts 5 and 7 of the Code;
(5)Failure to respond to complaints – Part 9 of the Code;
(6)Failure to avoid financial loss to clients;
(7)Knowledge of the Migration Act and Migration Regulations 1998 (Regulations) and the provisions of appropriate advice;
(8)Failure to act in timely manner; and
(9)Failure to act in the legitimate interests of clients.

Those nine issues were developed by the Authority in its letter. They were relevant in its advice to Mr Eckhardt that it may be open to the delegate to be satisfied that he had engaged in conduct in breach of cll 2.1, 2.3, 2.3A, 2.4, 2.6, 2.8, 2.9, 2.9A, 2.15, 2.18, 3.4, 5.2, 5.5, 7.2, 7.4, 7.5 and 9.3 of the Code as well as s 303(1)(f) that he was not a person of integrity or is otherwise not a fit and proper person to give immigration assistance. The letter went on to advise Mr Eckhardt that the Authority might take into account the following factors in deciding the appropriate disciplinary action:
“« whether your behaviour is of a minor or serious nature
«any aggravating factors that increase your culpability, including, but not limited to, previous conduct
«any mitigating factors that decrease your culpability
«whether your behaviour in question could be the subject of rehabilitation
«the level of impact, if any, that a sanction would have on your livelihood
«the circumstances of the complainant or client, including the complainant’s or client’s vulnerability, and
«any wider issues pertaining to consumer protection or the national interest.”[19]
[19] T documents; T205 at 813
The Authority invited Mr Eckhardt to make a submission as to why he should not be sanctioned and to do so by 25 September 2015. Mr Eckhardt made a 59 page submission to the Authority on 15 October 2015.[20] He addressed the complaints, his health and the steps he had taken to recover his health. At the conclusion of his submission, Mr Eckhardt wrote:
“… In addition to the antidepressant medication, my doctor and psychiatrist recommended as part of the treatment towards my recovery that I try to live every day as a normal day, plan to do activities which I enjoyed, to read or study as a distraction and to set small achievable goals. Their concern was that my health was deteriorating and my depression was requiring increased dosage and changes to my anti-depressant medication. I was beginning to lose hope, and provided with special emergency phone numbers, for my wife to call, should I harm myself, or require hospitalization. I have a wonderful, understanding and supportive wife, we have been married for 35 years, and we also had Bambi then, and she would have been utterly devastated if I had done something silly, so I had to fight back, as hospitalization was next.
My daily plan consisted of some work, some study, some reading and some sleep, during the day, as the nights were bad due to the sweats and the dreams.
My passion for migration law, my work, the commencement of study and the love of my family, helped me take one step at time, one day at a time.
It took a while to begin to cope, I had to avoid stressful situations or work with tight deadlines or new clients who enjoyed sending many emails or who wished to call frequently. I declined student, partner and skilled visa clients, as these clients tended to be impatient and required more attention. I was a recluse at home I needed peace and quiet to work at my own pace. I worked mainly with existing clients and a few referrals as I could only cope with a small workload, and demanding clients would trigger my anxiety and depression. I have not done a migration seminar for four years. I don’t advertise and I prefer to work with clients by email or by phone.”[21]
[20] T documents; T206 at 816-874
[21] T documents; T206 at 874

A Business Integrity Report was prepared by the Department showing the applications lodged by Mr Eckhardt on behalf of clients for sponsorships, nominations and visas in the 2012, 2013 and 2014 calendar years and the 2015 calendar year up to 2 August 2015. The figures were:[22]
[22] T documents; T205 at 808

Calendar year

Number of applications

2012

100

2013

36

2014

27

2015 (to 2 August 2015)

37

The Authority made its decision, which is now under review, on 5 August 2016.
THE SUBMISSIONS
Mr Eckhardt addressed each of the complaints and challenged the Authority’s findings but the assertions that he made and that underly his submissions regarding the complaints are set out in the following three paragraphs from his Closing Submissions:
“On 23 and 24 August 2018, the applicant, while on full medication, attended the hearing before the Tribunal, and pursuant to an invitation from the Tribunal, it was agreed the parties would file written closing submissions. This submission should be read together with the applicant’s submissions and support documents provided to the OMARA dated 6 October 2015 and the Tribunal dated 12 March 2018 and 24 and 27 August 2018.
The applicant contends, the decision under review should be amended, to reflect a true and fair view of the full circumstances at the time, consider all the information provided, and for the unbiased consideration and assessment of the then and current circumstances, including the applicant’s current age (61), unemployability and diminished prospects of providing for his family and retirement income, the health concerns and depression suffered b the applicant since 2011 and ongoing, which was brought about following the bereavement and trauma suffered after the death of his younger brother and father within two months of each other, which the respondent notwithstanding real-life suffering and difficulties, the provision of medical certificates and prolonged periods of medical leave applied no weight and/or completely ignored.
The applicant contends that given his health concerns and severe depression which impacted on his daily activities, his work performance and quality of life, the record will show that he often had to seek extensions of time from the OMARA to respond to the section 308 notices and provided up to 99% (over 500 pages) of emails and supporting documents, as evidence of what transpired and in the spirit of full co-operation, to which the OMARA as applied no weight.”[23]
[23] Applicant’s Closing Submissions at [2]-[4]
On behalf of the Authority, Mr Aleksov of counsel referred to the cases of Hughes and Vale Pty Ltd v State of New South Wales (No. 2)[24] (Hughes and Vale) and Australian Broadcasting Tribunal v Bond[25] (Bond case) and their consideration of the expression “fit and proper person”. Relying on Lilienthal v Migration Agents Registration Authority[26] (Lilienthal), the concept of “integrity” is understood to refer to a person’s soundness of moral principle and character, uprightness and honesty, Mr Aleksov submitted. The context in which a decision is made as to a person’s integrity and being a fit and proper person is largely shaped by professional and community expectations of appropriate standards of competency and behaviour of migration agents. In large measure, this involves a value judgment about the place at which the “line” is drawn between acceptable and unacceptable behaviour.
[24] [1955] HCA 28; (1955) 93 CLR 127; [1955] ALR 525; (1955) 29 ALJR 129; Dixon CJ, McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ
[25] [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 94 ALR 11; Mason CJ, Brennan, Deane, Toohey and Gaudron JJ
[26] [2002] FCA 93; (2002) 117 FCR 558; 34 AAR 371 at [22]; 562; ……

Factors that may be relevant in considering whether a person is a fit and proper person to be a migration agent include multiple breaches of the Code. Multiple breaches may themselves justify de-registration. Mr Aleksov also submitted that Mr Eckhardt’s behaviour had shown an indifference to Australian laws and especially the role of the Authority in regulating the profession of migration agents. Furthermore, Mr Eckhardt had demonstrated a willingness to engage in dishonest or reckless behaviour including behaviour to mislead his clients. As a result of his behaviour, his clients have suffered serious hardship and financial losses. There is a real likelihood that Mr Eckhardt’s conduct will continue and that he will not rectify his conduct.
Mr Aleksov addressed each of the complaints made against Mr Eckhardt. Relying on them, Mr Aleksov submitted that Mr Eckhardt had misled clients, misrepresented his academic achievements, failed to keep adequate records and mixed his client accounts with his office accounts. Furthermore, Mr Eckhardt’s health should not be regarded as an exculpatory factor.
LEGISLATIVE FRAMEWORK

Registration as a migration agent

Division 3 of Part 3 of the Migration Act regulates the registration of migration agents. Unless coming within one of the qualifications set out in ss 280(2) to (7), a person must not give immigration assistance unless a registered migration agent.[27]
[27] Migration Act; s 280(1)

When used in the context of being given by a person other than a legal practitioner, the expression “immigration assistance” is defined in s 276:
“(1) For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:
(a)preparing, or helping to prepare, the visa application or cancellation review application; or
(b)advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or
(c)preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or
(d)representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.
(2)For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in,

migration procedure to assist another person by:
(a)preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or
(b) advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or
(c)representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.
(2A)For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:
(a)preparing, or helping to prepare, a request to the Minister to exercise his or her power under section 351, 417 or 501J in respect of a decision (whether or not the decision relates to the other person); or
(aa)preparing, or helping to prepare, a request to the Minister to exercise a power under section 195A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person); or
(b)advising the other person about making a request referred to in paragraph (a) or (aa).
(3)Despite subsections (1), (2) and (2A), a person does not give immigration assistance if he or she merely:
(a)does clerical work to prepare (or help prepare) an application or other document; or
(b)provides translation or interpretation services to help prepare an application or other document; or
(c)advises another person that the other person must apply for a visa; or
(d)passes on to another person information produced by a third person, without giving substantial comment on or explanation of the material.
(4)A person also does not give immigration assistance in the circumstances prescribed by the regulations.”[28]
[28] See Migration Agents Regulations 1998; rr 3C and 3F

An applicant for registration as a migration agent must satisfy certain procedural steps set out in ss 288, 288A and 288B of the Migration Act. The Authority must not register that person if it is satisfied that:
“(a) the applicant is not a fit and proper person to give immigration assistance; or
(b)the applicant is not a person of integrity;
(c)the applicant is related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship.”[29]
[29] Migration Act; s 290(1)

In considering whether:
“… it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Authority must take into account:
(a) the extent of the applicant’s knowledge of migration procedure; and
(c)any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:
(i)a fit and proper person to give immigration assistance; or
(ii)a person of integrity (except a conviction that is spent under Part VIIC of the Crimes Act 1914); and
(d)any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application;
(e)any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application;
(f)any disciplinary action that is being taken, or has been taken, against the applicant that the Authority considers relevant to the application;
(g)any bankruptcy (present or past) of the applicant; and
(h)any other matter relevant to the applicant’s fitness to give immigration assistance.”[30]
[30] Migration Act; s 290(2)
The requirements of s 290 apply to all applicants for registration and not simply to those who apply on the first occasion.[31] A person who has been registered as a migration agent at some time within the previous 12 months before making an application for registration must not be registered if he or she has not met the requirements for continuing professional development prescribed by the regulations.[32]
[31] Migration Act; s 290(4)
[32] Migration Act; s 290A

Obligations of registered migration agents

Once registered as a migration agent, a person must comply with certain standards of behaviour, which are set out in Division 5 of Part 3 of the Migration Act. They include standards relating a registered migration agent’s notifying the Department if he or she gives immigration assistance to a visa applicant in relation to a visa application and gives that assistance having agreed to represent the applicant. The registered migration agent must give that notification in accordance with the Migration Agents Regulations 1998 (Regulations).[33] Regulation 7G sets out the form the notification must take and states that it must be given to the Department at the time of lodging the applicant’s visa application or at a time no later than 28 days after lodgement. A registered migration agent is not entitled to be paid a fee or other reward for giving immigration assistance to another person unless he or she gives that person a statement of services.[34] The statement must be given within 28 days after the decision, in relation to the immigration assistance, is made about a visa application, a cancellation review application, a nomination or sponsorship application or a request to the Minister to exercise his or her power under ss 351, 391, 417 or 454 of the Migration Act.[35]
[33] Migration Act; s 312A
[34] Migration Act; s 313
[35] Regulations; r 7I

Section 314 is relevant in this case. As I have said, it provides for a Code for migration agents[36] but also states that:
[36] Migration Act; s 314(1)
“A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.”[37]
[37] Migration Act; s 314(2)

The Code is set out in Schedule 2 of the Migration Agents Regulations 1998 (Regulations). The 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.”

Clauses 1.11 and 1.12 are also relevant:
“1.11 The Code does not list exhaustively the acts and omissions that may fall short of what is expected of a competent and responsible registered migration agent.
1.12However, the Code imposes on a registered migration agent the overriding duty to act at all times in the lawful interests of the agent’s client. Any conduct falling short of that requirement may make the agent liable to cancellation of registration.”

Particular clauses of the Code that are relevant in this case are:
Clause 2.1
“A 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.”

Clause 2.4
“A registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.”

Clause 2.6
“To 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.”

Clause 2.8
“A registered migration agent must:
(a)within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing to the client; and
(b)act in accordance with the client’s instructions; and
(c)keep the client fully informed in writing of the progress of each case or application that the agent undertakes for the client; and
(d)within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client’s case or application.”

Clause 2.9A

“In communicating with, or otherwise providing information to, the Authority, a registered migration agent must not mislead or deceive the Authority, whether directly or by withholding relevant information.”

Clause 2.15
“A registered migration agent must not intimidate or coerce any person for the benefit of the agent or otherwise. For example, a registered migration agent must not engage in any of the following:
(a)undue pressure;
(b)physical threats;
(c)manipulation of cultural and ethnic anxieties;
(d)threats to family members in Australia or overseas;
(e)untruthful claims of Departmental sanctions;
(f)discrimination on the grounds of religion, nationality, race, ethnicity, politics or gender.”

Clause 2.18

“A registered migration agent must act in a timely manner if the client has provided all the necessary information and documentation in time for statutory deadlines. For example, in most circumstances an application under the Migration Act or Migration Regulations must be submitted before a person’s visa ceases to be in effect.”

Clause 3.4
“A registered migration agent must have an address and telephone number where the agent can be contacted during normal business hours.”

Clause 5.2
“A registered migration agent must:
(a) before starting work for a client, give the client:
(i)an estimate of charges in the form of fees for each hour or each service to be performed, and disbursements that the agent is likely to incur as part of the services to be performed; and
(ii)an estimate of the time likely to be taken in performing the services; and

(b)as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of:
(i)the estimate of fees; and
(ii)the estimate of the time likely to be taken in performing the services; and

(c)give the client written confirmation (an Agreement for Services and Fees) of:
(i)the services to be performed; and
(ii)the fees for the services; and
(iii)the disbursements that the agent is likely to incur as part of the services; and

(d)give the client written notice of any material change to the estimated costs of providing service, and the total likely cost because of the change, as soon as the agent becomes aware of the likelihood of change occurring.”

Clause 5.5

“A registered migration agent must be aware of the effect of section 313 of the Act, and act on the basis that:
(a)the agent is not entitled to be paid a fee or other reward for giving immigration assistance to a client unless the agent gives the client a statement of services that is consistent with the services, fees and disbursements in the Agreement for Services and Fees mentioned in clause 5.2; and
Note:The statement of services may be an itemised invoice or account. See clauses 7.2 and 7.4.
(b)the statement of services must set out:
(i)particulars of each service performed; and
(ii)the charge made in respect of each such service; and

(c)a client is entitled by the Act to recover the amount of a payment as debt due to him or her if he or she:
(i)made the payment to the agent for giving immigration assistance; and
(ii)did not receive a statement of services before making the payment; and
(iii)does not receive a statement of services within 28 days after a final decision is made about the visa application, cancellation review application, nomination or sponsorship to which the immigration assistance related.”

Clause 7.1B

“If a registered migration agent is operating as an agent in a country other than Australia that does not allow, under its law, the use of a clients’ account as described in paragraph 7.1(b):
(a)the agent is not required to keep a separate account of that name; but
(b)the agent must:
(i)keep an account for money paid by clients to the agent for fees and disbursements in a way that is as similar as practicable to the requirements in this Part; and
(ii)comply with this Part as far as practicable in relation to keeping records of the account and making the records available for inspection.”[38]
[38] Clause 7.1 provides: “Subject to clause 7.1B, a registered migration agent must keep separate accounts with a financial institution for: (a) the agent’s operating expenses (the operating account); and (b) money paid by clients to the agent for fees and disbursements (the clients’ account).”

Clause 7.2

“A registered migration agent must hold, in the client’s account, an amount of money paid by a client for an agreed block of work until:
(a)the agent has completed the services that comprise the block of work; and
(b)an invoice has been issued to the client for the services performed in accordance with the Agreement for Services and Fees mentioned in clause 5.2, showing:
(i)each service performed; and
(ii)the fee for each service.”

Clause 7.4

“A registered migration agent must keep records of the clients’ account, including:
(a)the date and amount of each deposit made to the clients’ account, including an indication of the purpose of the deposit and the client on whose behalf the deposit is made; and
(b)the date and amount of each withdrawal made in relation to an individual client, and the name of each recipient of money that was withdrawn; and
(c)receipts for any payments made by the client to the agent; and
(d)statements of services; and
(e)copies of invoices or accounts rendered in relation to the account.”

Clause 9.1

“A registered migration agent must respond properly to a complaint by a person (whether or not the person is a client) about the work or services carried out by the agent or the agent’s employee.”

Clause 9.3
“If the Authority gives a registered migration agent details of a complaint made to the Authority about:
(a)the work or services carried out by the agent or the agent’s employees; or
(b)any other matter relating to the agent’s compliance with this Code –

the agent must respond properly to the Authority, within a reasonable time specified by the Authority when it gives the details to the agent.”

Disciplinary powers of the Authority

Section 303(1) provides for disciplining registered migration agents. The 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 1:The Authority is required to caution a registered migration agent or cancel or suspend a registered migration agent’s registration in certain circumstances: see Division 3AA.
Note 2: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.”

If the Authority decides to suspend the registration of a registered migration agent, it may do so for a period of not more than five years or set a condition or conditions for lifting that suspension.[39] If it decides to caution a registered migration agent, the Authority may set one or more conditions for the lifting of that caution.[40]
[39] Migration Act; s 304
[40] Migration Act; s 304A
CONSIDERATION

I have summarised the evidence in Attachment A to these reasons. It forms part of them and I will draw on that evidence in this section of my reasons.

The purpose of disciplinary powers in regulating those engaged in particular activities

In considering disciplinary powers and whether they should be exercised in certain circumstances, it is important to note that, regardless of the profession being regulated, the purpose of those powers:
“… is the protection of the public and the maintenance of proper standards in the legal profession. Disciplinary proceedings are not taken by way of punishment, … or to extract retribution, …”[41]
[41] Re Guild, & Re Legal Practitioners Ordinance (1978) 32 ACTR 13; (1979) 40 FLR 1 at 35; 24-25 (citations omitted); Blackburn CJ, Connor and Davies JJ

The expressions “integrity” and a “fit and proper person”

The way in which s 303(1)(f) is framed suggests that the concept of integrity is a separate concept of fitness and propriety. If the Authority wishes to rely on that provision, it must be satisfied that “the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance” (emphasis added). I will consider them separately for the moment.

The ordinary meanings of the word “integrity” are:
“… 1 strict adherence to moral values and principles; uprightness. 2 the quality or state of being whole and unimpaired. …”[42]
[42] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
Integrity, as well as fitness and propriety, are also relevant qualities of which the Agency must be satisfied before it may register a person as a migration agent.[43] They were considered by Wilcox J in Lilienthal v Migration Agents Authority[44] (Lilienthal). In relation to “integrity”, his Honour decided that the “… The statement … that integrity means soundness of moral principle and character, uprightness, honesty …”[45] and that it was not contentious.[46]

[43] Migration Act; s 290(1)(a) and (b)

[44] [2002] FCA 93; (2002) 117 FCR 558; 34 AAR 371

[45] [2002] FCA 93; (2002) 117 FCR 558; 34 AAR 371 at [22]; 562; 375 with reference to Re Peng and Department of Immigration and Multicultural Affairs and Administrative Appeals Tribunal [1998] AATA 12 at [26]; Deputy President McMahon

[46] [2002] FCA 93; (2002) 117 FCR 558; 34 AAR 371 at [25]; 562-563; 375-376

In the Bond case, Toohey and Gaudron JJ considered the meaning of the expression “fit and proper person”:
“The expression ‘fit and proper person’ standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”[47]
[47] [1990] HCA 33; (1990) 170 CLR 321; 21 ALD 1; 94 ALR 11 at 380; 40; 56 per Toohey and Gaudron JJ

Just which conduct or which qualities will be relevant is determined by reference to the statutory framework within which the decisions are made. In the context of the Bond case, the statutory framework was that of the Broadcasting Act 1942. The question was whether Mr Bond and certain companies were, within the meaning of s 88(2)(b)(i), no longer fit and proper persons to hold their broadcasting licences. Their Honours continued:
“ Whether the fitness and propriety of a licensee to hold a commercial licence are sufficiently ascertained by reference to its character or reputation, or must be ascertained by reference to the conduct of its affairs and activities, is a question the answer to which must be found by implication from the provisions of the Broadcasting Act dealing with the grant, renewal and revocation or suspension of a commercial licence and from the activities to be undertaken pursuant to the licence.”

This approach is consistent with the approach taken some 35 years earlier by the High Court in Hughes and Vale. The State Transport (Co-ordination) Act 1931 provided that no person shall operate a public motor vehicle in the course of, or for the purposes of, inter-State trade unless licensed under that legislation. A “public motor vehicle” was defined to include a motor vehicle used in the course of any trade or business. The Commissioner for Motor Transport (Commissioner) had power under s 4(1) to refuse an application for a licence if satisfied that: the applicant was not a fit and proper person to hold the licence; the vehicle was not properly constructed or adequately equipped or is otherwise unfit or unsuitable for the licence; or if the licence were granted, conditions would be intensified and give rise to unreasonable damage to the roads, a danger to persons or vehicles using the roads or unreasonable interference with other traffic on the roads. The Commissioner had power to grant a licence with conditions including whether the vehicle was to be used for the transport of persons or goods, the bulk or weight of what was to be carried and the times of day at which the vehicle could be operated. A condition of each licence was that a holder had to pay a charge in respect of each journey.

Much of the case was concerned with the constitutionality of that condition, which was found to infringe s 92 of the Commonwealth Constitution. Another aspect of the case was the meaning of the expression “fit and proper person”. In their joint judgment, Dixon CJ, McTiernan and Webb JJ said of the expression:
“… It is to be kept steadily in view that the licence is one to ‘operate’ the vehicle. The man who ‘operates’ the vehicle may, of course, drive it, but if so he will need a driver’s licence under the Motor Traffic Act in order to do so. But, as the definition of ‘operate’ shows, and sub-s. (2) of s. 12 strikingly illustrates, it is the carrying of passengers or goods for reward or in the course of trade or business that must be licensed and that may be done by a principal whose vehicles are driven by his servants or agents and who indeed may, like the first-named plaintiff, be an incorporated company. The licence, however, relates to a single vehicle. The vehicle may be one of a fleet of vehicles in an extensive carrying business. It may perhaps be one of a number of lorries or vans employed by a proprietor of a chain store business of the description of that of O. Gilpin Ltd. v. Commissioner for Taxation (N.S.W.) [1940] HCA 39; (1940) 64 CLR 169, at pp 174, 175, and O. Gilpin Ltd. v. Commissioner for Road Transport & Tramways [1935] HCA 8; (1935) 52 CLR 189 . It may be a van of a retail tradesman carrying on business and making deliveries in border towns. The expression ‘fit and proper person’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things, honesty knowledge and ability: ‘honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it’ - Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances: R. v. Hyde Justices [1911] UKLawRpKQB 203; (1912) 1 KB 645, at p 664 . In another such case it was decided that if in the view of the justices the security of tenure enjoyed by the proposed licensee in the premises was insufficient, that was a good ground for holding that he was not a fit and proper person to be the holder of the licence: R. v. Holborn Licensing Justices; Ex parte Stratford Catering Co. Ltd. (1926) 42 TLR 778 . It is evident that under par. (a) of sub-s. (4) the commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or definite criteria and which in truth involves a very wide discretion. If guidance is sought in that paragraph of sub-s. (3) which more or less corresponds, namely par. (c), nothing more definite will be found. What under par. (c) the commissioner is required to have regard to is ‘the character, suitability and fitness of the applicant to hold the licence applied for.”[48]

[48] [1955] HCA 28; (1955) 93 CLR 127; [1955] ALR 525; (1955) 29 ALJR 129 at 156; 554; 158

The context in which I must consider whether Mr Eckhardt is not a person of integrity or is otherwise not a fit and proper person is framed, in the first instance, by s 303(1)(f) itself but in the wider context of giving “immigration assistance”. I have set out the statutory definition of that expression at [24] above. It is a definition that relates the assistance that one person might provide to another to each step that might be required by that other person in seeking a visa to visit and/or remain in Australia or in seeking review of the cancellation of a visa.

The focus of the definition is on assistance given to the visa applicant or the cancellation review applicant but that assistance is given against a background of the regulatory framework provided by the Migration Act and administered by the Minister. That regulatory framework and the regulations made under it require compliance with the criteria and procedural steps they prescribe to regulate “… the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons”.[49] That means that the immigration assistance given by a registered migration agent must be framed and given in terms consistent with the Migration Act and the Regulations. He or she has a duty to do so not only to his or her client, who must him or herself comply with the law as set out in the Migration Act and Regulations but to the law itself and so to those who administer that law i.e. the Minister. This was explained by Wilcox J in Lilienthal:
“The position may be compared with lawyers representing clients in a court. Lawyers are allowed to appear in court because of the desirability of litigants being represented by people trained in the law. Rules governing the conduct of lawyers are premised on that rationale. However, it is well understood that, in representing clients, a lawyer also owes duties to the court: to be frank, to avoid misleading the court and to assist in the efficient and expeditious disposal of the case. There is not thought to be any inconsistency between giving assistance to the court, in its carrying out its functions, and the primary obligation of the lawyer to represent the client. …”.[50]
[49] Migration Act; Long Title
[50] [2002] FCA 93; (2002) 117 FCR 558; 34 AAR 371 at [24]; 562; 375

The practical reason for the duty was explained by Deputy President McMahon in Re Lachmaiya and Department of Immigration and Ethnic Affairs:[51]

“… The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. …”[52]

[51] [1994] AATA 27; (1994) 19 AAR 148

[52] [1994] AATA 27; (1994) 19 AAR 148 at [35]; 155-156

It was expanded upon in Su v Tax Agents’ Board South Australia[53] in the context of the registration of tax agents:
“ The function of a tax agent is to prepare and lodge income tax returns for other persons. A person is a fit and proper person to handle the affairs of a client if he is a person of good reputation, has a proper knowledge of taxation laws, is able to prepare income tax returns competently and is able to deal competently with any queries which may be raised by officers of the Taxation Department. He should be a person of such competence and integrity that others may entrust their taxation affairs to his care. He should be a person of such reputation and ability that officers of the Taxation Department may proceed upon the footing that the taxation returns lodged by the agent have been prepared by him honestly and competently.”[54]
[53] [1982] AATA 127; (1982) 61 FLR 1; 13 ATR 192; Davies J, President
[54] [1982] AATA 127; (1982) 61 FLR 1; 13 ATR 192 at 4-5; 195 and see also Stasos v Tax Agents’ Board of New South Wales [1990] FCA 379; (1990) 21 ATR 974; (1990) 21 ALD 437; 974 at [50]; 984; 444 per Hill J

Choosing whether to exercise disciplinary powers

The powers to cancel, suspend or caution are given to the Authority without any express guidance as to how it should choose one or another or, indeed, whether it should choose to exercise any of its powers at all. Implicit guidance is, however, to be drawn from the terms that Parliament has chosen to describe the criteria that a person must meet in order to become a registered migration agent and the legislative obligations that are imposed, including those imposed by the Code, on those who would seek to continue to act as a registered migration agent. The gravity of any breaches of those obligations must be viewed against the expectations of the registration scheme generally. They must also be weighed against their practical consequences for individual clients and/or for the community. Whether they are isolated incidents or part of systemic operating failures of a registered migration agent or of his or her office will also be relevant. So too will any means of rectifying matters that led to the breach or breaches.

With this in mind, the Authority has a Complaint Classification Matrix (CCM). The CCM is a working guide that has regard to matters of the sort, to which I have referred. One of the options it refers to is attach conditions to either a caution or a suspension imposed on a registered migration agent. Although no mention is made of the imposition of a condition requiring a person to undertake specified education or training programmes, such a condition may be an option where the breaches show a weakness in knowledge, understanding of the application of the law or business systems. The reasons for doing so would not be to “teach the person a lesson”, as is sometimes said, but to enable him or her to learn a lesson directed to addressing the behaviour or shortcomings that led to the breaches in standards. Implementation of that would require the Authority to craft a condition that would direct learning appropriately. Simply cautioning or suspending for a period may be enough in some cases to redirect a registered migration agent back on to the right path but, in others, it may be appropriate to require him or her to obtain formal assistance to find it again.

Mr Eckhardt’s actions as a registered migration agent

I have summarised the evidence relating to each of the seven complainants below. In each instance, Mr Eckhardt has blamed any of shortcomings on his poor state of health, on the death of his father, brother or pet dog or both or on the client. At no time, has Mr Eckhardt given me any specialist medical report as to the state of his mental health or any report other than the letter he produced from Dr Fraser dated 10 July 2013. What that letter said was that, because of major depression secondary to bereavement, Mr Eckhardt’s concentration had been affected and directly impacted on his ability to work. Antidepressant therapy had been commenced but it was Dr Fraser’s conclusion that Mr Eckhardt’s condition was such that he was unable to attend work from 30 September 2011 to some indefinite time in the future.

In addition to the letter from Dr Fraser, Mr Eckhardt referred to another by Dr Fraser on 23 April 2014 and certificates dated 2 April 2015, 14 July 2015, 4 September 2015, 8 August 2017 and 19 September 2017 from Dr Ashish Mordia, Consultant Psychiatrist. I do not have copies of those documents. Mr Eckhardt identified five triggers leading to his suffering from major depression and dysthymia. They were: the unexpected death of his younger brother at the age of 50 on 3 September 2011; the death of his father on 24 November 2011; the suicide of his nephew on 17 July 2013; the sudden and unexpected death from heart failure of the family’s Pomeranian, Bambi, on 7 February 2014; and the seriousness illness of his wife requiring him to accompany her for treatment.

This leads me to find that, Mr Eckhardt had been in possession of medical advice since July 2013 that his concentration had been affected by his major depression and so had his ability to work. Given his own evidence as to the difficulties he faced with his health in the years 2012 and 2013 and its affect on his ability to respond to emails and follow up matters as well as the lack of any updated medical evidence, I find that his state of health continued to be affected as described by Dr Fraser. Despite that, Mr Eckhardt took on new clients or new work for former clients. His doing so immediately calls into question his fitness for the role of a registered migration agent. As Coke said, fitness for office involves three things: “… honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”. Mr Eckhardt was not, on the basis of the evidence he has led himself, fit in mind to undertake the work of a registered migration agent.

Had he undertaken all of the duties of a registered migration agent without issue, his medical condition would not, of itself, have led to any disciplinary proceedings. The focus must be on his actions, or inactions, and his behaviour generally in relation to his clients and to his professional duties. One feature of note in that regard is the difference in tone and content of his communications with the clients at the beginning of his professional relationship with them and the tone and content during it. Take, for example, the understanding that Mr and Mrs I had of the time that it would take to obtain an employer willing to given him a job and to arrange a 457 visa. The written Summary of Migration Plan dated 5 December 2011 summarised Mr I’s experience and skills and expressed the view that they would be of interest in the mining and other companies given Australia’s growing skills shortages. Once the employment had been obtained, the 457 visa would take between one to three weeks.

It is true that Mr Eckhardt did not expressly state that he would find employment for Mr I, the whole tenor of the Summary of Migration Plan is that there would be a positive outcome for them and that it would be quite quick. That is the impression gained by Mr and Mrs I and I find that they were justified in having it. At no time did Mr Eckhardt advise them of his view, expressed in his Statement of Facts and Contentions (SFC), that prospective employers were spoilt for choice given the large number of increasing pool of applicants for electrical positions.

Ms K’s matter provides another example. Mr Eckhardt had provided her with advice over three years regarding Victorian requirements before overseas teaching qualifications would be recognised. Ms K set about fulfilling those requirements. Mr Eckhardt then contacted her asking her if she could relocate to Victoria as he could obtain employment for her at Casa Bambini. That was on 27 October 2010 and he confirmed it on 19 January 2011. His strategy would be to apply for a 457 visa that would be processed in approximately two weeks. In a further email on 19 January 2011, Mr Eckhardt told Ms K that the CEO of Casa Bambini had told him that he should offer her a job. He asked her whether she could move to Australia before the end of June 2011 or whether she was contracted to her current school at that time. A few days later, on 24 January 2011, he told her that he would contact the Operations Manager at Casa Bambini to agree a convenient time for an interview. He asked her whether she could commence work by 1 August 2011.

These early representations that the job with Casa Bambini was arranged came to nothing. The CEO of Casa Bambini was not called to give evidence so their accuracy cannot be tested against that. What they can be tested against is the job that was described in the application for a 457 visa for Ms K as “Training & Development Manager” at an annual salary of $50,679 and that which was in fact accepted by her as a Kindergarten Teacher with an annual salary of $36,231. As matters turned out, Casa Bambini engaged her for a total of seven hours each week at an hourly rate of $19.00.

The 457 visa application lodged by Mr Eckhardt raises issues regarding the accuracy of the information he included. I have already referred to the employment contract on which that application was based. It was a very different contract from that which Ms K was ultimately offered by Casa Bambini. Mr Eckhardt’s response was that there was a contract as described in the application but, in light of the contract under which Ms K was ultimately engaged, I find that it was a contract in name only and one that, if Casa Bambini, knew about it, did not intend to honour.

I raise the possibility of Casa Bambini’s not knowing about the contract because there was other information that Mr Eckhardt included in the application and that was false. That information was given in answer to the question “Is English your first language?” The answer was in the affirmative even though Mr Eckhardt knew that she was Mexican and that her first language was Spanish. His reason for giving that answer was that English was her first language in the United States of America (USA). Ms K had left the answer blank but he had filled it in for her and he did not see it as a lie or as the wrong thing to do. I have set out the full exchange between Mr Aleksov and Mr Eckhardt below.[55] I do not accept Mr Eckhardt’s explanation. He knew, I find, that Ms K had not gained an outcome of 7 in the International English Language Testing System (IELTS) test and he knew that her brother-in-law had told him that she struggled in some situations. It is disingenuous for him to claim, as he effectively did, that English was her first language when she was in an English speaking country. If I am thought to be unfair in my finding, I would further find that his answering the question in the affirmative displays an understanding of written English that is well below that expected of a registered migration agent. It also calls into question Mr Eckhardt’s integrity when acting with the Department.

[55] See [164] below

Mr Eckhardt has not, I find, kept his word with his clients. I refer, for example, to Mr E’s concerns that his step-daughter’s father would not consent to her migrating to Australia with the rest of the family. I find that Mr Eckhardt clearly undertook to refund in full all fees Mr E had paid “in the event the biological father of you step-daughter decides not to sign the consent form”. He did so in an email dated 9 March 2012 and confirmed that in a further email sent later in the morning on the same day. When Mr E advised Mr Eckhardt on 18 April that his step-daughter’s father would not sign the consent form and asked for a refund, Mr Eckhardt did not respond. It led to Mr E’s emailing him on 14 July 2012 commenting that, before he had made any payment, he phoned and emailed him on a daily basis. Now he did not hear from him at all. He was disappointed because he had thought he was legitimate, he told Mr Eckhardt. He felt that he had given Mr Eckhardt more than enough time to make the refund.[56]
[56] T documents; T81 at 222

Mr Eckhardt gave evidence that Mr E had told him that he would go to the courts to fight his step-daughter’s father. He had been prepared to offer a refund on the basis that Mr E went to the courts. That is not what he said in his guarantee, though. He set no such condition and it would have been clear to Mr Eckhardt from the way in which he was paid for the services he was to undertake that Mr E was not in a financial position to undertake what he knew would be a lengthy and expensive proceedings with his step-daughter’s father. Mr Eckhardt’s evidence at the hearing was not consistent with the emails he had exchanged with Mr E. It was not supported by any notes of conversations he said he had engaged in with Mr E. Furthermore, Mr Eckhardt’s evidence that his brother had thought that Mr E was not being honest about not being able to obtain the relevant consent did not withstand even the most cursory scrutiny. The issue of consent did not arise until 2012 and Mr Eckhardt’s brother had died on 3 September 2011.

Lack of contact, to which Mr E referred, was a regular complaint by Mr Eckhardt’s clients. At the hearing, Mr Eckhardt gave oral evidence of the 154 job vacancies that he had researched but he had not provided any written records of his searches or of any communications he had with the recruitment consultant to whom, he said, managed the assignment. Mrs I gave evidence about Mr Eckhardt’s failure to maintain contact and her evidence is supported by her emails to him. Information about job vacancies had been sent to her husband in November 2013 but only after she and her husband had complained to the Authority in July 2013. Employment services are not regarded as immigration assistance but they are offered by Mr Eckhardt and are relevant in the context of his administrative procedures and his interaction with clients who, both he and they expect, will use his services to apply for a visa if employment is arranged and a sponsor found.

The intermediary between Mr G and Mr Eckhardt also complained about lack of communication from Mr Eckhardt. When he did communicate, Mr Eckhardt could not always be relied on to tell the truth. In Mr G’s matter, he told the intermediary on 14 May 2013 that he was waiting on a file reference number from the Australian Embassy Guangzhou[57] and repeated that on 22 May 2013. At its highest, Mr Eckhardt made the statement on the basis of an assumption that the application had reached Guangzhou. It was not, however, an assumption that had any proper foundation for he had not checked whether the application had actually been delivered. His excuse that there had been a mail strike in South Africa at the time does not excuse his actions in writing to the intermediary as he did on 21 May 2013 whether he knew about the mail strike or not. By telling her that he had emailed the Embassy requesting a file reference number, he created the impression that the application had been lodged.
[57] Australian Consulate-General, Guangzhou

Mr Eckhardt misled Mr A when he told him on 1 February 2012 that he had lodged his nomination and application forms with the Regional Certifying Body (RCB) and was awaiting certification. Again, Mr Eckhardt had done nothing to check that the forms that he said he had sent to the RCB had been received by it. At best, he assumed that they had been received but he had neither asked the RCB to acknowledge receipt nor followed up with it when he did not hear from it within a week or two as he expected to do. As matters turned out, the RCB had never received a nomination or application form from Mr Eckhardt. There is no evidence of any system that Mr Eckhardt to show that he had sent it. It was left to Mr A to follow up with the RCB. Mr Eckhardt would have me accept that he and Mr A agreed on that course of action but Mr A’s evidence is that he followed up himself. I think that the more likely scenario given Mr A’s evidence, which I accept, that he had made many unsuccessful attempts to obtain progress reports from Mr Eckhardt. That pattern is consistent with the evidence given by the other complainants.

Mr Eckhardt also misled Mr A when his office wrote on 25 June 2012 to advise that the RCB had certified the nomination and that the visa application had been lodged. He is responsible for his staff and acknowledged that, when his staff had told him that the letter from the RCB had arrived, he had assumed that the nomination had been certified.

Mr Eckhardt misled Mr N about his refund of fees for services. This time, it could not be said to be based on any assumption that he might have made. His explanation to Mr N by email dated 24 May 2014 that he would be given his refund when he had lodged a duplicate application on behalf of another client and deleted his application from the system made no sense at all.[58] I find that it was intended to delay the refund that he had promised Mr N in November 2013. The refund had been made on 27 May 2014 and six months after it was promised.
[58] See [144] below

Mr Eckhardt defended the adequacy of his file management systems and yet he had not responded to the Authority’s request for documents completely or, in some instances, at all. He maintained his records on his phones or on a laptop. That may be adequate had he been able to find the documents. He referred at the hearing to his records being packed because he was moving from his home but that does not explain his failure to produce them to the Authority.

Reference was made to Mr Eckhardt’s office arrangements generally and his portrayal of them to clients. I find that Mr A and Mr and Mrs I, for example, received emails from the Team Leader, Client Services, at IPC. Mr and Mrs I also received emails from the Team Leader, Job Search, Vic with IPC. The email addresses they used reflected the differences. On the basis of Mr Eckhardt’s final submissions, I find that he had five separate email addresses for IPC with one each for what were called careers, visa, admin, client.services and info. These different email addresses suggest a much larger organisation staffed by many more staff than was the case. IPC was, in fact, staffed by Mr Eckhardt’s wife and one or two others. That is misleading but so too are the references made to “our Perth team” when he told the Authority that he had referred Mr I to that team for placement in the mining sector in WA. The references he made to Mr G’s intermediary that “… we have been in contact with our South Africa Office …” was equally misleading. References of that sort suggest an international operation and, with his reference to other offices in Australia, as a national operation as well. On the basis of Mr Eckhardt’s evidence, I find that the “offices”, to which he referred, were service offices, which simply answered a phone number and redirected the calls to his mobile phone.

Mr Eckhardt had also permitted an email to be sent to Mr I by Mr Sam Ferrara, Team Leader, Job Search VIC. It described a meeting on 14 December 2012 with “our UK Director, …[N]”, Mr Eckhardt and Mr Ferrara regarding Mr I’s job search and placement assignment. This was followed by a further email also dated 14 December 2012 and purporting to have been sent by Mr N with a signature block describing him as the “Director – Europe and Africa”. I accept Mr N’s evidence that he has never been an employee of IPC or of Mr Eckhardt. Mr Eckhardt also acknowledges that. Putting aside the misuse of another person’s name, the emails both represent an attempt by IPC to look like a far bigger organisation than it is. So too does the fact that the first email from Mr Ferrara was copied to IPC’s client services email address and the second to that address, IPC’s “admin”, jobsearch.VIC and jobsearch WA email addresses.

Mr Eckhardt has used the post nominals “LLM(Migration Law)” when had a Masters Degree in Migration Law and Practice. The post nominals are inaccurate and suggest that he holds a Master of Laws degree. Perhaps he did not intend to do that but his use of the post nominals is an example of his making assumptions about what is correct and what is not. More concerning is his use of the post nominals in 2018 when his registration as a migration agent had been cancelled. It is true that he was using it on emails related to employment services but his use of the post nominals could reasonably be read as suggesting that he was qualified to offer immigration assistance. I do not take that any further.

Mr Eckhardt seems not to understand the effect that his actions and inactions have had on his clients. Mr A was adversely affected by the change in rules that came into effect on 1 July 2012. Any opportunity that he had to avoid the application of those rules was squandered by Mr Eckhardt’s not following up with the RCB about the nomination. Mr Eckhardt claims that Mr A had been granted a 132 visa and yet Mr A’s own evidence was that he would, after he finished working in the Middle East, have no choice but to return to South Africa as his only country of citizenship. Ms K ran out of funds because the work she had been promised did not eventuate. Mr Eckhardt did not lead any evidence of his claims that she had been a difficult employee. Without such evidence, I do not accept that she was. There were two contracts with Mr Eckhardt’s giving one to the Department with Ms K’s visa application and another that she thought she was being engaged under. The truth of the matter turned out to be that she was engaged only for a part-time position. Mr and Mrs I sold their house and changed their lives in the expectation that the process would move quickly.

I accept that Mr Eckhardt feels that the Authority has not been understanding of his position in that it has not understood the state of his health. He believes that his not being able to practise as a registered migration agent has stood in the way of his being able to make a full recovery. What I think Mr Eckhardt is missing is that the Authority’s enquiries and the proceedings in the Tribunal are about ensuring that only those persons who meet the criteria set out in the Migration Act, the Regulations and the Code are able to act on behalf of others in applying for visas or engaging in the review of visa refusals or cancellations. As concerned as those engaged in the process may be about Mr Eckhardt’s health, the focus of the process must be on the services that a person has provided as a migration agent and whether they meet the regulatory standards of him. The focus must be on them because that is the focus of the regulatory scheme and, as a consequence, on those members of the community who seek immigration assistance and the Minister and Department relying on them to act with honesty and integrity.

Honesty and integrity are expected of every registered migration agent. If he or she suffers from an illness that makes him or her unable to act appropriately or to meet the regulatory requirements as has happened in this case, the Authority cannot be criticised for acting as it has done. Registration as a migration agent cannot be used as a rehabilitative measure to assist those who may be ill but who do not recognise that they have breached the regulatory requirements.

Although I understand that Mr Eckhardt regards his being a registered migration agent as part of his very being, he has not proved himself to be a person who has had the ability, whether through illness or through lack of attention to detail and to proper administrative processes, to have the ability to attend to his duties and obligations honestly and diligently. He has shown himself to be a man who wants to portray himself as more than he is capable of delivering. There is no shame in recognising that one cannot deliver what one would like to deliver, whether by reason of illness or abilities, and acting within those boundaries. Promising more without delivering it consistently or at all indicates lack of integrity. Mr Eckhardt has displayed that lack of integrity. He is not a fit and proper person to carry out the duties of a registered migration agent.

This is not a case in which Mr Eckhardt could attend a course to address particular issues so that a period of suspension or even a caution would be appropriate. He has to rethink his whole approach to being a registered migration agent. His office management has to be reviewed so that he can find files and track applications, for example, he has to understand the importance of transparency in business so that he does not try to present himself as an international business when he is not, and he must gain an understanding of the need to communicate openly, regularly and honestly with his clients. There is no course that will address all of these matters for many of them come from a need for Mr Eckhardt to see matters from his clients’ point of view and not from the prism of his own illness and concerns. I see no other choice than to affirm the Authority’s decision to cancel Mr Eckhardt’s registration as a migration agent for a period of five years.

ATTACHMENT A

THE EVIDENCE

Complaint by Mr A

Mr A has been employed as an Assistant Farm Manager for a number of years. He came to Australia with his family as the holder of a State/Territory Sponsored Investor (Provisional) visa (subclass 165) (subclass 165 visa). Mr Eckhardt had assisted him in obtaining that visa, which is a temporary visa issued for a period of four years. It was due to expire on 20 July 2011 and Mr A wished to obtain permanent residence in Australia for himself and his family. He sought Mr Eckhardt’s advice.

Mr A said that Mr Eckhardt’s advice was to the effect that he should apply for a subclass 457 visa sponsored by his current employer and then apply for permanent residency under an 857 visa. I note that a “457 visa” is a Temporary Work (Skilled) visa (subclass 457). It allows skilled workers to come to Australia to work for an approved business for up to four years if the occupation is listed on the MLTSSL[59] and, if it is not listed, for two years provided the applicant’s occupation is on a list of eligible skilled occupations. An 857 visa is a Regional Sponsored Migration Scheme (subclasses 119 and 857) visa. It allows a person to live and work in Australia on a permanent basis.
[59] The Medium and Long-term Strategic Skills List

With effect from 1 July 2012, it was no longer possible for a person, who was aged 50 years of more, to apply under exceptional circumstances for a 457 visa. Mr Eckhardt said that he did not become aware of that change in the rules until after 1 July 2012 when the government sent out a fact sheet.[60]

[60] Transcript at 93-94

Mr A followed Mr Eckhardt’s advice and was granted a subclass 457 visa on 28 November 2011. He said that, on the following day, Mr Eckhardt told him that he had contacted the RCB in order to discuss the application for certification by that RCB. Mr Eckhardt told him that the RCB had indicated that certification would take a week to be assessed. On that understanding, Mr A said, he entered into an agreement with Mr Eckhardt to help him apply for an 857 visa and transferred the sum of $7,040 as payment for the application fee and for preparing the nomination and application forms. Early in January 2012, Mr A said, he had provided all of the necessary documentation to Mr Eckhardt for the 857 visa application. Mr O’Leary, the Managing Partner of the partnership employing Mr A wrote a letter supporting the application. He noted that Mr A had over 23 years of experience in mixed crop and livestock farming operations and four years in farming operations in Tasmania, Queensland and New South Wales. Mr A had worked for the partnership for the previous two years and his experience, Mr O’Leary wrote, had been invaluable to the partnership’s farm and business.[61]
[61] T documents; T14 at 45-51

Mr Aleksov drew Mr Eckhardt’s attention to Part 6 of the Code. Mr Eckhardt agreed that he had to act in accordance with the obligation to maintain proper records but said that it was in relation to the provision of immigration assistance. Before electronic lodgement, IPC maintained paper files but has since move to maintaining them electronically. IPC used Window Explorer and maintained a separate electronic folder for each client. There were two computers with one of them packed away as he was in the process of moving. Hard copy files were also packed away. SMS communications between Mr Eckhardt and his clients were kept on his mobile phone(s). He has kept those mobiles but not all were in Australia and he has lost one. When he had discussions with clients, he would make a note and keep it in a plastic sleeve.

Mr Eckhardt said that he had maintained a bank account in Australia with the Commonwealth Bank of Australia (CBA) and another in South Africa in the name of IPC. He accepted that the Code required him to separate IPC’s operating account from its client accounts. He asked the CBA to change the name of the IPC account to include “client account” in its name but Mr Eckhardt said that the bank declined to do that for him. He opened an account with Westpac because they would add those words to the name of the account. IPC never used the Westpac account or transfer any client accounts because he took ill. The hard copy of the CBA statements would be in boxes and files stored in his garage.

Mr Eckhardt had said that IPC had seven offices located in Melbourne, Perth, Sydney, Brisbane, Cape Town, Durban and Johannesburg. Apart from Melbourne, each of the offices was a serviced office where a dedicated telephone line was answered in the name of IPC and the call was then transferred to Mr Eckhardt wherever he was located. He said that he had a dedicated office in each of those States and could be contacted on the telephone.

Mr Eckhardt agreed that there was a connection between the employment services he offered and the migration services but that to provide employment services was not to provide immigration services.
Mr Eckhardt was obliged to give Mr C a statement of services but he did not do so until October 2012 when instructed by the Authority to do so.[240] He agreed that cl 5.2 of the Code requires a registered migration agent to give written confirmation for the services to be performed, the fees for services and disbursements. What he had provided to Mr C was the provision of employment services and cl 5.2 has no relevance. The Statement of Services he prepared showed a total of $$2,387 paid for employer consultations, conducting job searches and job applications and follow-up. A further $405 was paid for “Dubai expenses”. No sum was charged for preparing a 457 visa application and preparing supporting submissions. That was matched by his writing “N/A” against items for the nomination application charge, visa application charge and health requirements. Mr C had paid a total of $5,500 to IPC for what Mr Eckhardt had described in his email dated 24 November 2011 as an “Employment Service Fee”.[241] Mr Eckhardt said that this was not within the Authority’s jurisdiction.

[240] T documents; T48 at 146

[241] T documents; T35 at 106

Mr E

In summary, Mr E complained to the Authority that his family had paid R20,000 to Mr Eckhardt to find him a sponsor for a subclass 187 visa to work in Australia so that he could migrate with his family. He and Mr Eckhardt had discussions in July and August 2011 regarding finding employment and a visa. On 31 August 2011, Mr Eckhardt emailed Mr E and told him that he had forwarded his resumé to Aggreko and was in discussion with a number of other companies with respect to potential sponsorship. On 14 November 2011, Mr Eckhardt advised that Hitachi Construction Machinery was currently considering his application.

Mr Eckhardt asked Mr E whether he was ready to proceed following arrangements with his sister, who was to pay for Mr Eckhardt’s services. Mr E emailed Mr Eckhardt on 28 February 2012 regarding information that he had received from another migration agent, whom he named, that his age rendered him illegible for permanent residence and that he would only be able to have a visa to come to Australia for four years. Mr Eckhardt replied his advice still stood and that it was “valid, qualified advice”.[242] The South African agent was neither qualified to give migration advice or sufficiently experienced to provide valid advice, Mr Eckhardt wrote. There could be an exemption from age requirements in exceptional circumstances.[243]
[242] T documents; T66 at 191
[243] T documents; T67 at 194

On 5 March 2012, Mr E emailed Mr Eckhardt to tell him that his sister would pay a deposit of R2,000 into his account. He would deposit the remainder as soon has his “other stuff is finalised”.[244]
[244] T documents; T69 at 197

On 6 March 2012, Mrs E raised the issue that her eldest daughter had a different surname although her husband was her legal guardian/parent.[245] Emails continued throughout the day with Mrs E advising that her former husband had visiting rights but no others and Mr Eckhardt advising that her daughter’s father would have to sign a consent form.[246] Mr E then joined the email correspondence pointing out that they had spoken with a lawyer who had told them that his step-daughter’s father had no rights in this matter. He would try to get a letter to that effect. In the meantime, he said, if his step-daughter’s father had any rights, he would not consent to her moving to Australia. Their intention was to continue the visiting rights of his step-daughter’s father but Mr E was scared that, were his step-daughter’s father to get wind of their intentions, he would immediately start legal proceedings to get custodian rights and they would be prevented from leaving South Africa. If his step-daughter’s father had to sign and refused to do so, his wife would not follow him. Mr E concluded: “If that is the case then I rather stop the process right here.”[247]

[245] T documents; T70 at 202

[246] T documents; T70 at 199-202

[247] T documents, T70 at 199

On 9 March 2012, Mr E and Mr Eckhardt discussed the possibility that the biological father his step-daughter would not permit her to emigrate with the rest of the family. On 9 March 2012, Mr Eckhardt sent an email to Mr E in the following terms:
“I refer to our telephone conversation today and confirm, our guarantee to refund all fees paid in full to commence and deliver your Employment Service, in the event the biological father of your step-daughter decides not to sign the consent form, for her to accompany you, your wife and the remainder of your family unit to Australia.
This guarantee will enable you to commence your Employment Assignment and enable us to present your resume to prospective employers, including the Aggreko Group, see: have a meeting with the Area General Manager of Aggreko on Tuesday and with Branch Managers on Wednesday, and plan to present your resume for consideration and placement.”[248]

Mr E arranged for the payment of R20,000 to Mr Eckhardt’s South African bank account.[249] Mr Eckhardt confirmed receipt of the payment and confirmed that “As advised, the guarantee is in place should you experience problems with the consent.”[250]

[248] T documents; T72 at 208

[249] T documents; T74 at 211

[250] T documents; T74 at 211

On 18 April 2012, Mr E advised Mr Eckhardt that his step-daughter’s father had refused to sign the consent form. To contest that would be a lengthy and costly court battle. Mr E asked Mr Eckhardt to arrange to refund the R20,000 and gave his bank account details.[251] When he did not receive a response, Mr E made a complaint to the Authority.
[251] T documents; T77 at 216

In cross-examination, Mr Eckhardt said that he would go to the courts to fight the father. Mr E had never provided any evidence that his step-daughter’s father was disputing her migration. He had said that the biological father had said that he was happy for his daughter to leave as he would no longer have to pay maintenance. Mr Eckhardt said that, had they gone to court and fought the matter and there was still a problem, he had been prepared to offer a refund. He had wanted to put Mr E’s mind at ease if had done what he said to challenge the father.[252]
[252] Transcript at 138

Mr Eckhardt agreed that he had not kept records of the telephone conversations he had recounted. In his view, there was no need as he was providing employment services. The R20,000 had been paid to a South African bank account in the name of Australia and New Zealand Placements Consultants Pty Ltd. That was a partner company he and his late brother had set up. Mr Eckhardt agreed that his late brother had felt that he, Mr Eckhardt, had been misled by Mr E. At the time that Mr E wanted a refund, his brother was not contactable.[253]
[253] Transcript at 139

Mr Eckhardt’s brother had died on 3 September 2011 and that the R20,000 had been paid into the account some months later. He acknowledged in cross-examination that it was he who felt he had been misled. He had not lied when he had said that the reason for the delay in refunding the money lay with the partner company.

Academic qualifications

Mr Eckhardt agreed with Mr Aleksov that a Masters of Migration Law, which he was awarded in 2014, does not entitle him to practise as a lawyer. He also agreed that he has not been admitted as a legal practitioner. He also holds a Certificate in Business, enrolled once in a Master of Business Administration but did not complete the course and does not hold any Bachelor’s degree. Mr Eckhardt also agreed with Mr Aleksov that his email address shown in a series of emails relating to the employment services he offers is “Reevo Eckhardt LLM (Migration Law)”.[254] Those emails were sent to people outside Australia in 2018 when he was not registered as a migration agent. He agreed that he had been de-registered by the Authority at the time but said that his qualifications had not been de-registered. He disagreed that his reference to an “LLM (Migration Law)” was liable to mislead his clients into thinking that he had an entitlement to engage in migration practice. He offered only employment services as he had previous experience in that area and told people who wanted migration advice to see a third party.
[254] Transcript at 166-167

Mr Eckhardt confirmed that he held a Master’s Degree in Migration Law and Practice from Griffith University. When I asked him how that degree could be referred to in an abbreviated form, he told me that it could be described as “LLM (Migration)” because that is how the Australian National University referred to the degree it offered i.e. Master’ Degree in Law (Migration). He had enrolled in that course as well but he undertook his course at the Griffith University. The post nominal for that course is shown on the University’s website as “MMigrationLawPrac”.[255] Although I did not put this to Mr Eckhardt, I did put to him other material from Griffith University showing that the post nominal would not be “LLM (Migration)”.

[255]

Mr Eckhardt’s office arrangements

Mr Eckhardt said that he is the sole shareholder and director of IPC. His wife undertook administrative and data entry duties. He did not pay her a salary but he would transfer money to her so that she could draw on it for her personal needs but he trusted her when he was travelling. She was not working under an employment contract. Mr Eckhardt said that he also had a number of human resources consultants who undertook job searches and lobbied with companies on behalf of clients. They received 60% of the fee that he charged for bringing in the business. There was a company in South Africa with which he had the same arrangement. Mr Eckhardt designed a “concierge service” with one service being migration services and the other employment services. When asked whether the employment services were provided for the purpose of obtaining migration outcomes, he said that it was to facilitate a better quality immigration outcome.[256] The employment services were provided to non-citizens, who were either on-shore or off-shore.
[256] Transcript at 19

Mr Eckhardt said that the clients did not need to know that their employment services had been outsourced to a contractor because the consultants acted under the umbrella of IPC. They were independent from IPC but worked for IPC, Mr Eckhardt said. Mr Eckahardt said that IPC would tell the client the name of his or her “assigned consultant”. The consultants would make contact with the clients as they did their job searches and would get a resumé from him. IPC paid the consultants, who were independent contractors, 60% of the employment services fee and it retained 40%.

When prospective employers used their own employment service providers, IPC could not use consultants. As those employment service providers would not split the fee, Mr Eckhardt said that IPC would hand on the clients to those providers and take none of the fee. In that case, IPC would advise the client that the provider would be in touch with him or her. There was still a contract between IPC and the client and it advised the client to come back to it.

Mr Aleksov drew Mr Eckhardt’s attention to cl 8.1 of the Code:
“A registered migration agent must properly supervise the work carried out by staff for the agent.”
Mr Eckhardt said that the consultants were not providing immigration assistance but he described them as “staff” in the sense of being “commissioned staff” or “independent staff”.[257] In explaining how he supervised them, Mr Eckhardt said that he would travel inter-State from time to time, he would invite them to come to Melbourne to meet with him. They had regular exchanges of emails and he would enquire about progress the consultants were making. Sometimes, Mr Eckhardt would be called in to have discussions with prospective employers to discuss the visa implications.[258]
[257] Transcript at 23
[258] Transcript at 23

Mr Eckhardt said of the consultants that they were with other companies so that he paid the fees to the companies and not to the consultants. The consultants would be working for people with other than IPC but they “had business cards stating that they were the company”.[259] Mr Eckhardt retreated from his earlier statement that the consultants were staff within the meaning of cl 8.2. because they made their own arrangements as to when they were available to work, there was no job description and no reporting requirements. Mr Eckhardt expected them to work effectively and efficiently to deliver an outcome.
[259] Transcript at 25

Mr Eckhardt agreed with Mr Aleksov that his clients would have the impression that he was providing employment services as well as migration services. He did not accept, however, that this would mislead those clients. IPC could provide them with an employment outcome whether he used full-time salary recruitment consultant or whether he used an independent consultant. At the end of the day, the comeback lay with IPC and whether it could, or could not, deliver the job.[260]
[260] Transcript at 27

Clause 1.10(b)(iv) states that one of the minimum attributes and abilities required of a registered migration agent is that he or she is able to perform diligently and honestly. Mr Eckhardt said that was so in the performance of migration services and assistance. What IPC offer to an employer is the placement of a potential employee without charging a fee let alone a fee of potentially up to 18% of the employee’s salary package. None of IPC’s clients ever complained about the service it offered, Mr Eckhardt said,[261] but then acknowledged that Mr A had complained.
[261] Transcript at 28

Mr Eckhardt agreed with Mr Aleksov that he had told the Authority that he had assigned the job search for Mr I to “our Perth team for placement in the mining sector in WA.” In cross-examination, Mr Eckhardt said that he did have a “Perth team”. IPC had a Perth office and he had contractual relations with entities or people to perform job searches. Mr Eckhardt said of those people and entitles:
“I regarded them as my Perth team. We worked together and they were there to assist us in placing clients and I personally had clients with different companies in Western Australia and I was involved in that and also asked them in my absence to contact these companies with a view to securing employment, as far as regional areas of Western Australia. Trying to source employment. …”[262]
[262] Transcript at 86

The T documents include emails with signature blocks and email addresses other than those of Mr Eckhardt. They included “Team Leader Client Services” sent by [email protected].[263] In cross-examination, he said that probably a name should have been added but that it would have been either his wife, Mrs Corinne Eckhardt, or Mr Sam Ferrara or his wife, Ms Chris Ferrara. Mr Eckhardt did not agree with Mr Aleksov’s suggestion that he adopted this description to suggest that his business is larger than it is. A team leader can be a leader of a team of one or two.
[263] An example is found in an email written to Mr A on 3 December 2012 apologising for the delay as the US mail server had been offline for seven working days and advising that Mr Eckhardt was on medical leave: T documents; T20 at 71. Another is an email sending a receipt for payment from Mr C: T documents; T35 ay 105

Mr Eckhardt’s health

In addition to the certificate referred to at [3] above, Mr Eckhardt referred to a further certificate given by Dr Fraser on 23 April 2014 and certificates dated 2 April 2015, 14 July 2015, 4 September 2015, 8 August 2017 and 19 September 2017 from Dr Ashish Mordia, Consultant Psychiatrist. Mr Eckhardt identified five triggers leading to his suffering from major depression and dysthymia. They were: the unexpected death of his younger brother at the age of 50 on 3 September 2011; the death of his father on 24 November 2011; the suicide of his nephew on 17 July 2013; the sudden and unexpected death from heart failure of the family’s Pomeranian, Bambi, on 7 February 2014; and the seriousness illness of his wife requiring him to accompany her for treatment.

Mr Eckhardt said that the unresolved complaints were of great concern to him and weighed very heavily on his mind. He determined that the only amicable resolution of the complaints and part of the solution to his depression as well as to improve his quality of life, was for him to make a considerable effort to grapple with depression and to work towards settlement of the complaints. Therefore, Mr Eckhardt said, he took increased dosages of his medication to deal with them even though he knew that revisiting the past and a particularly depressing and unhappy period and the stress of dealing with a s 309 notice, would trigger episodes of severe depression.

Mr Eckhardt found the task to be herculean causing him high levels of stress and depression. His progress was slow, painful and erratic and he had to ask the Authority for extensions of time. Initially, the Authority gave those extensions willingly but, in his view, they were given grudgingly or after threatening that it was ready to make a decision without the written submission. He found the Authority’s response to be “incredulous and astounding”.[264]
[264] Exhibit A at [22]

In cross-examination, Mr Eckhardt said that his not being registered as a migration agent and so not being able to practise fully is standing in the way of his full recovery. The humiliation of not being able to work has meant that he has not wanted to socialise with his family or any other company.

I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for the decision herein of Deputy President SA Forgie

......................[sgd].............................................
Associate
Date of decision: 28 September 2020

Heard:

Further evidence received:

Submissions received:

Applicant’s representative:

Respondent’s counsel:

Respondent’s solicitor:

23 and 24 August 2018

October 2018

1 April, 10 May and 24 September 2019

Self-represented

Mr Angel Aleksov

Ms Rebecca Bensted

Sparke Helmore

Calendar year	Number of applications
2012	100
2013	36
2014	27
2015 (to 2 August 2015)	37