Falcon and Migration Agents Registration Authority - [2002] AATA 1108

DECISION AND REASONS FOR DECISION [2002] AATA 1108

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/151
GENERAL ADMINISTRATIVE DIVISION
  Re:         ADA AYSE FALCON
  Applicant

And:MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             28 October 2002
Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes a decision that the registration of the applicant as a migration agent be suspended from 22 January 2002 until 21 January 2003.
(sgd) G.D. Friedman
Member
MIGRATION - migration agent - cancellation of registration - breach of Code of Conduct - whether fit and proper person - period of suspension
Migration Act 1958 ss303, 304, 314
Re Feng and Migration Agents Registration Authority [2002] AATA 709
Re Griffiths and Migration Agents Registration Authority [2002] AATA 247
Re Hakaoro and Minister for Immigration and Multicultural Affairs (1998) 26 AAR 534
Re Lilienthal and Migration Agents Registration Authority (2001) 66 ALD 249
Re Sosrohadipoespito and Migration Agents Registration Authority [2001] AATA 293

REASONS FOR DECISION

28 October 2002 G.D. Friedman, Member

This is an application by Ada Ayse Falcon (the applicant) for review of a decision of the Migration Agents Registration Authority (the respondent) dated 22 January 2002 to cancel the applicant's registration as a migration agent on the grounds that the applicant had not complied with the Code of Conduct (the Code) as required under the Migration Act 1958 (the Act).
At the hearing of this matter on 14 October 2002 Mr G. Doran, solicitor, represented the applicant and Mr T. Fell, solicitor, represented the respondent.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T15), together with one exhibit (Exhibit A1) lodged by the applicant.
BACKGROUND
The applicant was born on 27 March 1963 in Turkey and migrated to Australia with her parents in 1969. In 1987 she established Falcon Travel which operates in Dandenong. As a result of an interest in migration matters and involvement in community activities arising from her travel agency, the applicant completed a migration agents course at Footscray Institute of Technology in 1995. On 9 May 1997 she was registered as a migration agent and spent about two days each week on migration work.
In late 1997 a medical practitioner from Malaysia (the complainant) and his wife (the wife) engaged the applicant to assist them and their two children to obtain a permanent concessional visa on the basis of the wife's occupation as a nurse. The agreed fee of $5,000 was paid on 23 October 1997. In April 1998 the wife informed the applicant that she was unable to produce evidence of formal qualifications in nursing, so the applicant decided to change the application by the complainant to an investment-linked independent visa. The applicant told the complainant that the total fee for all family members would be an additional $6,000, making a total of $11,000. She undertook various tasks associated with the application, but did not draw up a fee agreement or confirm any verbal agreement regarding the fee.
On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Falcon and Migration Agents Registration Authority

Details

AGLC: Falcon and Migration Agents Registration Authority [2002] AATA 1108
Case: [2002] AATA 1108
Decision Date: 28 October 2002

CaseChat Overview and Summary

In the case of Falcon and Migration Agents Registration Authority, the applicant, a registered migration agent, was subject to proceedings before the Administrative Appeals Tribunal (AAT) seeking a review of the Migration Agents Registration Authority's decision to cancel her registration. The applicant, who had been born in Turkey and migrated to Australia at a young age, operated a travel agency in Dandenong and had undertaken migration work for approximately two days each week since 1997. The dispute arose from the applicant's handling of a visa application for a Malaysian medical practitioner and his family, where the applicant transitioned the application from a concessional visa to an investment-linked independent visa, resulting in an additional fee of $6,000. The applicant did not formalise this fee agreement in writing, and after the complainant withdrew his visa application, the applicant pursued payment of the additional fee. The applicant's letter to the complainant regarding the outstanding fee was perceived as a threat, leading to a complaint and subsequent investigation by the Authority.

The primary legal issues before the AAT were whether the applicant had breached the prescribed Code of Conduct for migration agents, and if so, what the appropriate remedy would be. The Authority argued that the applicant had breached the Code by not providing a written fee agreement and by implying a threat in her correspondence. The applicant conceded that she had breached the Code but argued that her conduct was not as egregious as to warrant the cancellation of her registration. The AAT had to determine whether the Authority's decision to cancel the applicant's registration was justified and whether a lesser penalty, such as suspension, would be more appropriate.

The AAT considered the nature and circumstances of the breaches, the applicant's remorse and efforts to rectify the situation, and the precedent set by previous cases. The Tribunal noted that the applicant had suffered significant financial loss and had taken steps to reform her practice. The AAT concluded that a period of suspension was a more appropriate remedy than cancellation, given the applicant's demonstrated understanding of the need for compliance with the Code and her efforts to ensure future adherence. The Tribunal set aside the decision to cancel the applicant's registration and substituted a decision to suspend her registration for a period of 12 months.

In light of the findings, the Tribunal ordered that the applicant's registration as a migration agent be suspended from 22 January 2002 until 21 January 2003, providing the applicant an opportunity to reflect on her conduct and take corrective measures without the complete loss of her professional status.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T15), together with one exhibit (Exhibit A1) lodged by the applicant. BACKGROUND The applicant was born on 27 March 1963 in Turkey and migrated to Australia with her parents in 1969. In 1987 she established Falcon Travel which operates in Dandenong. As a result of an interest in migration matters and involvement in community activities arising from her travel agency, the applicant completed a migration agents course at Footscray Institute of Technology in 1995. On 9 May 1997 she was registered as a migration agent and spent about two days each week on migration work. In late 1997 a medical practitioner from Malaysia (the complainant) and his wife (the wife) engaged the applicant to assist them and their two children to obtain a permanent concessional visa on the basis of the wife's occupation as a nurse. The agreed fee of $5,000 was paid on 23 October 1997. In April 1998 the wife informed the applicant that she was unable to produce evidence of formal qualifications in nursing, so the applicant decided to change the application by the complainant to an investment-linked independent visa. The applicant told the complainant that the total fee for all family members would be an additional $6,000, making a total of $11,000. She undertook various tasks associated with the application, but did not draw up a fee agreement or confirm any verbal agreement regarding the fee. On 14 November 2000 the complainant wrote to the Department of Immigration and Multicultural and Indigenous Affairs (the Department) withdrawing his application because a medical practice in New South Wales had agreed to sponsor him. In a telephone conversation with the applicant in February 2001 he confirmed the withdrawal. The applicant pursued the outstanding fee of $6,000 and on 21 July 2001 she wrote a letter (the July letter) to the complainant seeking payment. In her letter the applicant stated: …Your file is very well documented, I will hand all information to DIMA, if my fee isn't paid. On 5 September 2001 the respondent received a complaint from the complainant, alleging that the applicant had refused to refund money paid for work not completed; had demanded further payment of fees which were never advised to the complainant; and had made threats of passing information to the Department. On 24 September 2001 the respondent advised the applicant of the complaint and invited the applicant to respond. On 15 October 2001 the respondent received a submission from the applicant and on 19 October 2001 the respondent sought additional information, which was received on 5 November 2001. On 19 December 2001 the respondent wrote to the applicant and informed her that it was satisfied that she may have breached the Code. On 21 December 2001 the respondent received a further submission from the applicant. On 22 January 2002 the respondent decided to cancel the applicant's registration as a migration agent on the grounds that the applicant had breached the following clauses of the Code:

Evidence

Evidence Before The Court

On 11 February 2002 the applicant applied to the Tribunal for review of the decision. On 12 March 2002 the Tribunal refused to stay the operation of the decision pending the outcome of the application. EVIDENCE In oral evidence the applicant told the Tribunal that when she and the complainant discussed the additional fee of $6,000 to obtain permanent visas she wanted to draw up a written agreement but he said there would be no need as they trusted each other. She said that as they had built up a trust she did not insist or confirm the agreement in writing. She stated that after consulting other migration agents she believed the amount to be reasonable. The applicant said that she became aware of the withdrawal of the complainant's application about five months afterwards, and after she had devoted a considerable amount of time and effort on his behalf. She said that she met the wife on 2 March 2001 to discuss the fee but the wife claimed to have no knowledge of the $6,000. The applicant stated that the wife made many telephone calls in which she said: If you persist with the $6,000 I will make your life hell. The applicant said that after hearing nothing further from the complainant for several months she wrote the July letter. She stated that the reference in the letter to sending the file to the Department was not meant to be a threat but was an ill-considered act arising from her frustration at not hearing from the complainant or not receiving the payment for her work. She said that she was making the point that the Department would be able to confirm that she had carried out her obligations and had made extensive efforts on the complainant's behalf. The applicant acknowledged that in retrospect the wording of the letter could have been taken by the complainant to be a threat. In cross-examination the applicant agreed that, although she had worked diligently on behalf of the complainant, she had breached the Code by failing to provide a written fee agreement and by creating the perception that she had threatened the complainant if he did not pay the outstanding amount. She recognised that she had no basis for claiming the additional $6,000 from the complainant, but denied that in her submissions to the respondent she had tried to shift responsibility to the complainant. She said that she regretted the situation that has arisen and she apologised to the complainant and the wife for any distress caused by the July letter. The applicant told the Tribunal that, during the period since the cancellation of her registration, she has had time to reflect on the operation of her practice as a migration agent. She stated that in future she would separate the accounts of the travel agency and the migration agent's practice and would engage a legal practitioner to draw up a fee agreement. She said that her earnings from the practice in the twelve months before the cancellation of her registration were about $20,000-$25,000, and that the travel agency has also lost business as a consequence of the cancellation of her registration. CONSIDERATION OF THE ISSUES

Decision

Reasons for decision

In respect of s303(b), the Tribunal takes into account the circumstances leading to the two-year suspension imposed on the applicant in Re Griffiths. The Tribunal notes that in the present case the applicant has suffered significant financial loss during the period since the cancellation of her registration. The Tribunal is satisfied that she now understands the need to modify her behaviour as a migration agent and that she has taken steps to ensure that events similar to those leading to the cancellation of her registration will not occur again. Therefore, and for the reasons outlined in paragraph 22 above, the Tribunal concludes that the protection of the public and the maintenance of confidence in the registration process for migration agents would best be served by a period of suspension of 12 months from the date of the primary decision. DECISION The Tribunal sets aside the decision under review and substitutes a decision that the registration of the applicant as a migration agent be suspended from 22 January 2002 until 21 January 2003.I certify that the twenty-five [25] preceding paragraphs are a true copy of the reasons for the decision of:G.D. Friedman, Member(sgd) Catherine Thomas Clerk

Ratio Decidendi

Legal Principle Established

The applicant told the Tribunal that, during the period since the cancellation of her registration, she has had time to reflect on the operation of her practice as a migration agent. She stated that in future she would separate the accounts of the travel agency and the migration agent's practice and would engage a legal practitioner to draw up a fee agreement. She said that her earnings from the practice in the twelve months before the cancellation of her registration were about $20,000-$25,000, and that the travel agency has also lost business as a consequence of the cancellation of her registration. CONSIDERATION OF THE ISSUES The relevant sections of the Act are:303 The Migration Agents Registration Authority may:(a)cancel the registration of a registered 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.…304(1) If the Migration Agents Registration Authority suspends the registration of a registered agent under section 303, the Migration Agents Registration Authority may:(a)set a period of suspension of not more than 5 years; or(b)set a condition or conditions for the lifting of the suspension.(2)If 2 or more conditions are set under paragraph (1)(b), one of them may be that at least a set period of suspension has ended.314(1) The regulations may prescribe a Code of Conduct for migration agents.(2) A registered agent must conduct himself or herself in accordance with the prescribed Code of Conduct. Mr Doran submitted that the behaviour by the applicant had involved two acts that led to a breach of the Code: the wording of the July letter and the failure by the applicant to arrange a formal fee agreement for the additional $6,000. He stated that the applicant was bound by her instructions from the complainant, and she undertook considerable work on his behalf to the best of her ability. He said that the complainant was an articulate and educated person who was unlikely to be unduly influenced, or taken advantage of, by the applicant. Mr Doran said that the complainant's instructions changed and his relationship with the applicant broke down towards the end of the process and after he had withdrawn his visa application. With respect to the July letter, Mr Doran suggested that it, rather than the course of conduct by the applicant, gave rise to the complaint. He conceded that objectively the latter could be construed as a threat, but in fact such a threat would have had little or no impact because the applicant had no information on her file that could have affected the decision by the Department to grant a permanent visa to the complainant.