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 1Secondary 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
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CaseChat Overview and Summary
The central legal issue before the Tribunal was whether Mr Eckhardt's conduct constituted "immigration assistance" within the meaning of the Act, thereby engaging the regulatory framework for migration agents. Specifically, the Tribunal had to determine if Mr Eckhardt's actions fell within the broad definitions provided in subsections (1), (2), and (2A) of section 276, or if they were excluded by the exceptions outlined in subsection (3).
The Tribunal's reasoning focused on the statutory definition of immigration assistance, which requires a person to use, or purport to use, knowledge of or experience in migration procedure to assist a visa applicant, cancellation review applicant, or another person in specific ways. These ways include preparing or advising on applications, preparing or advising on documents for nomination or sponsorship, or preparing or advising on requests to the Minister for certain powers. The Tribunal noted that certain activities, such as purely clerical work, translation services, or merely advising that a visa is required, do not constitute immigration assistance. The Tribunal's ultimate decision on the cancellation of Mr Eckhardt's registration would depend on its interpretation of his specific actions against these statutory provisions.
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Background
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Ratio Decidendi
Legal Principle Established
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