Ford v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 3764

Ford v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3764 (28 September 2020)
Division:GENERAL DIVISION
File Number(s):2018/6247
Re:Hugh Russell Ford
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs And
RESPONDENT

DECISION
Tribunal:Senior Member D O’Donovan
Date:28 September 2020
Place:Canberra

The Tribunal affirms the decision under review such that the applicant’s registration is cancelled and his name is removed from the register.
........................................................................
Senior Member D O’Donovan
MIGRATION AGENTS REGULATIONS – Migration agent registration – cancellation of registration – applicant failed to comply with requirements of the migration agents Code of Conduct – multiple complaints made by former clients – complaints made by the Administrative Appeals Tribunal – found that the applicant breached the Code of Conduct– applicant not a fit and proper person to give immigration assistance – applicant not a person of integrity – decision under review affirmed
Administrative Appeals Tribunal Act 1975 (Cth) s 2A, 25, 33
Migration Act 1958 (Cth) ss 101, 103, 108, 287, 303, 306, 308, 309, 313, 360, 361, 363, 366A, 366D, 371, 425, 426, 427, 433
Migration Agents Regulations 1998 (Cth) Schedule 2
Algama v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 253
Amin v Migration Agents Registration Authority [2005] AATA 257
Australian Broadcasting Tribunal v Bond (1990) 180 CLR 321
Briginshaw v Briginshaw [1938] HCA 34
C v National Crime Authority (1987) 78 ALR 338
C7A/2017 v Minister for Immigration and Border Protection (2018) 330 FLR 452.
Haque v Migration Agents Registration Authority [2016] FCA 1249
Hughes and Vale Pty Ltd v The State of New South Wales (No2) (1955) 93 CLR 127
Issa v Migration Agents Registration Authority [2017] AATA 1110
Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558
Minister for Immigration and Citizenship v Le and others [2007] FCA 1318
Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Peng v Department of Immigration and Multicultural Affairs [1998] AATA 12
Qian v Migration Agents Registration Authority [2014] AATA 185
R v The Coroner; Ex Parte Alexander [1982] VR 731
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SZUSH v Minister for Immigration and Border Protection; CZBO v Minister for Immigration and Border Protection [2016] HCATrans 112
REASONS FOR DECISION
Senior Member D O'Donovan
28 September 2020
INTRODUCTION

The applicant was a registered migration agent under Part 3 of the Migration Act 1958 (the Act). He was first registered on 23 May 2007. On 12 October 2018, a delegate of the then Minister for Home Affairs (now Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) decided to cancel his registration on the bases that the applicant:
(a)is not a person of integrity or otherwise not a fit and proper person to give immigration assistance; and
(b)had not complied with many of the requirements of the Code of Conduct in Schedule 2 of the Migration Agents Regulations 1998 (the Code).
The decision of the delegate rested on conclusions reached in relation to four complaints about the applicant. Three of those complaints were from former clients. The fourth complaint originated from the Administrative Appeals Tribunal. For the sake of clarity, I will refer to the Administrative Appeals Tribunal as the AAT when discussing the proceedings from which the complaints emerged and refer to it as the Tribunal when discussing this proceeding.
On 27 October 2018, the applicant applied to the Tribunal under section 306 of the Act, read with section 25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), for review of the delegate’s decision.
Three issues arise in relation to that application:
(a)Is the Tribunal satisfied that the applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance?
(b)Is the Tribunal satisfied that the applicant, when he was a registered migration agent did not comply with any of clauses 2.1, 2.2, 2.4, 2.8, 2.15, 2.23, 2.28, 5.2, 5.5, 6.1, 6.1A, 6.3, 9.1, 9.3, 10.2 and 10.5 of the Code;[1]
(c)If the answer to either or both of the previous questions is ‘yes’, should the applicant be disciplined under section 303 of the Act, and, if so, should the disciplinary sanction be cancellation of the applicant’s’ registration, suspension of his registration or a caution?
[1] I note that the delegate only found breaches of 2.1, 2.4, 2.8, 2.15, 2.23, 5.2, 5.5, 6.1, 9.1, 9.3, and 10.2, however I am satisfied that I can consider other breaches provided the conduct which underpins it occurred prior to the decision to cancel the applicant’s registration as a migration agent on 12 October 2018 see Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [146] per Kiefel J who dissented on one issue but not one relevant to this question.
I am satisfied that the applicant is not a person of integrity nor is he otherwise a fit and proper person to give immigration assistance. Prior to having his registration as a migration agent cancelled, I am satisfied that he breached multiple provisions of the Code. My detailed findings on these questions are set out below.
In light of the serious adverse findings which I make in relation to both the applicant’s honesty and competence, the appropriate sanction is cancellation of his registration.
LEGISLATIVE FRAMEWORK
The Act provides a structure for regulating the activities of people who charge for providing migration advice and services. The regulatory structure works by making it a criminal offence for a person who is not a registered migration agent to ask for or receive any fee or other reward for giving immigration assistance. The Act provides for the Migration Agents Registration Authority (the Authority) to keep a register of migration agents.[2] The Authority can take disciplinary action in relation registered migration agents. The Authority may cancel an agent’s registration by removing his name from the register, may suspend his registration or caution him. Those powers however are only available upon the Authority becoming satisfied of certain matters. For present purposes, the relevant matters are:
(a)that the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(b)the agent has not complied with the Code of Conduct prescribed under section 314.
[2] The Act s 287.
It is within this framework that the applicant’s conduct must be analysed.
EVIDENCE BEFORE THE TRIBUNAL
The matter was heard over four days. The following people gave evidence:
(a)The applicant;
(b)Ms Alexis Fraser;
(c)A client of the applicant identified as BS;
(d)A client of the applicant identified as AK;
(e)A client of the applicant identified as ZK;
(f)A client of the applicant, Behrooz Zarandi.
In addition, the Tribunal took the following documents into evidence:
(a)An email sent from Hugh Ford to ima.protection on 6 October 2016 at 1:01PM, 1:08PM, 1:12pm and 1:16PM;[3]
[3] Exhibit A1.
(b)Parts A and B of a completed Form 790A filed on behalf of AK and signed on 6 October 2016;[4]
[4] Exhibit A2.
(c)Witness Statement of Hugh Ford dated 23 October 2019;[5]
[5] Exhibit A3.
(d)Document titled 'Applicants Admissions concerning breaches of the Code of Conduct’ prepared by the Applicant's solicitor and dated 9 September 2019;[6]
[6] Exhibit A4.
(e)Letter of the Delegate of the Department of Immigration and Border Protection dated 15 September 2016 sent to AK attaching an Invitation to Apply Factsheet;[7]
[7] Exhibit R1.
(f)Sealed Federal Court Document titled 'Application - Migration SYG1764/2016';[8]
[8] Exhibit R2.
(g)Letter of the Minister’s delegate dated 19 October 2017 addressed to Mr Zarandi’s father;[9]
[9] Exhibit R3.
(h)Application for a Visitor Short Stay Visa consisting of 13 pages in the name of Mr Zarandi’s father;[10]
(i)A Form 956 signed by the applicant on 29 September 2017;[11]
(j)Letter dated 3 October 2017 signed by the applicant in respect of Mr Zarandi’s Application for Visitor Visa;[12]
(k)Witness Statement of BS dated 23 May 2019;[13]
(l)Two-page email from Ms Alexis Fraser dated 26 August 2019 forwarding an email dated 28 November 2017 bearing subject line "Hugh Ford conference and advice notes";[14]
(m)Email from Ms Alexis Fraser to Ms Laura Crick forwarding an email to Hugh Ford dated 28 November 2017 at 18:47PM bearing subject line "Re Z Application" and following correspondence;[15]
(n)Initiating email of Hugh Ford from 6 October 2016 at 1:08PM and email from Department in response dated 6 October 2016 at 1:13PM;[16]
(o)Witness Statement of Gregory Albert Miller dated 30 October 2019 and Annexure A;[17]
(p)Witness Statements of Elizabeth Jane Hepper dated 4 September 2019[18] and 31 October 2019 with its Annexure A;[19] and
(q)Transcript of Proceedings, 26 August 2019 – 28 August 2019.[20]
[10] Exhibit R4.
[11] Exhibit R5.
[12] Exhibit R6.
[13] Exhibit R7.
[14] Exhibit R8.
[15] Exhibit R9.
[16] Exhibit R10.
[17] Exhibit R11.
[18] Exhibit R13.
[19] Exhibit R12.
[20] Exhibit T1 – T3.
GENERAL REMARKS
This matter has its genesis in complaints about the applicant’s conduct in four separate matters. The applicant’s approach to the complaints from the outset has been dismissive. When problems with his clients emerged, the applicant became unco-operative and unresponsive. When complaints were made to the Authority by the AAT and former clients, the applicant’s co-operation with the Authority was desultory. When the matter proceeded to the Tribunal after multiple adverse findings by the Authority, no concessions of wrongdoing were made by the applicant until almost the end of the Tribunal process. When breaches of the Code were eventually admitted by the applicant, only one category of wrongdoing was conceded. As the complaints progressed, the applicant made statements to his clients, the Authority and the Tribunal which were untrue and in some cases I am satisfied were deliberate lies. As lies anywhere in the process are relevant to an assessment of the applicant’s integrity and whether or not he is a fit and proper person, the fact finding process to make this decision has traversed not only the applicant’s conduct in relation to his clients, but also his dealings with the Authority and the Tribunal. Consequently, the reasons are lengthy. To assist the reader, I outline upfront the matters of concern that arise in relation to the applicant’s conduct. Of particular concern is:
(a)Whether the applicant had been honest with his clients, the Authority and the Tribunal. The applicant made a number of statements to his clients which may be false. The same is true of statements he made to the Authority. He freely conceded while in the witness box that some of the evidence which he gave to the Tribunal wasn’t the truth. What he would have me believe is that each time he gave an answer that was not true, he was honestly mistaken. The respondent has invited me to find that some of the statements made were deliberate lies. I give considerable attention to these questions.
(b)Did the applicant keep proper files in relation to any of the clients who made complaints about him? The applicant has never produced a client file to the Authority or to the Tribunal. The applicant invites me to accept that he keeps proper files but in the matters which I have been dealing with, he did not have a copy because, once the relationship with the client broke down, he gave all the papers back to the relevant clients.
(c)Did the applicant give complete files (or something approaching a complete file) to any or all of his disaffected clients? Three witnesses claimed that he never gave them the documents necessary for them to progress their matters. The applicant maintains that he did.
(d)Is the applicant competent to provide services to clients in light of the views that he holds about how hearings in the Migration Review Division of the AAT should be conducted?
(e)Has the applicant acted without instructions when deciding how to conduct his client’s matters including when deciding how to conduct himself in hearings of the Migration Review Division of the AAT?
(f)Has the applicant responded properly to the complaints made about him when the Authority has made inquiries?
(g)Are there other aspects of the applicant’s behaviour which are offensive or inappropriate?
These are not the statutory questions which I must ask and answer, but they identify the key factual issues that are important to answer.
I have decided that the best way to examine these questions and present my findings is to deal separately with each of the four clients whose matters generated the complaints. In relation to each complaint, I present my factual findings chronologically and reference the evidence on which those findings are based. In relation to some matters I make findings about events which are contrary to the sworn evidence given by the applicant. Where the matter is significant I give reasons for not accepting the applicant’s evidence on particular matters at the point in time where I record that evidence. However, for the reasons given below I have generally preferred the evidence of other witnesses to the evidence of the applicant.
As will become evident in the more specific discussion of the facts which follow, I was satisfied that the applicant was not a reliable witness. There were a number of occasions where he gave confident answers to questions on important factual matters which he later conceded were wrong.[21] Sometimes he recanted as a consequence of documents being put to him in cross examination. Sometimes he recanted as a consequence of his own investigations after giving his evidence. He was forced to re-enter the witness box on a number of occasions in order to revise or clarify the evidence he had given previously. He was a thoroughly unsatisfactory witness. He said many things in the witness box which were contradicted by other witnesses and rendered improbable by contemporaneous documents. Mutually re-enforcing evidence from a number of witnesses support a finding that the applicant had poor record keeping practices and that clients encountered consistent difficulties in obtaining documents from the applicant. Any such difficulties were consistently denied by the applicant. In light of the consistency of the complaints I formed the view that the applicant’s evidence on these issues was implausible.
[21] For example, the applicant originally claimed that he was never engaged by Mr Zarandi to submit a tourist visa. He ultimately conceded he was wrong about that. He also claimed he had submitted a visa application on behalf of AK by registered post. He ultimately conceded that the submission was made by email.
As a consequence of these matters I have largely discounted the applicant as a reliable witness.
There were two witnesses who warrant comment because they particularly impressed me – Mr Behrooz Zarandi and Ms Alexis Fraser. Mr Zarandi was an excellent witness. Although his English was not perfect, he was able to make himself understood through the use of an interpreter and for some parts of his evidence, when he spoke English.
Ms Fraser was an outstanding witness. She had extremely good recollection of events which she witnessed. She also had made records of events in the form of emails which, in one case was contemporaneous and in another was made within a few weeks of the relevant events.
Her independent recall of events was very consistent with the recollection of Mr Zarandi on matters of detail. Whenever there is an inconsistency between the evidence of the applicant and the evidence of Ms Fraser and Mr Zarandi, I have preferred the evidence of Ms Fraser and Mr Zarandi.
COMPLAINT BY MR BEHROOZ ZARANDI
Mr Zarandi made a complaint to the Office of Migration Agents Review Authority (OMARA) on 18 November 2017. The complaint related to the applicant’s conduct in relation to the lodgement of a tourist visa on behalf of Mr Zarandi’s parents and one of his wife’s parents (the Parents). In essence, Mr Zarandi alleged the following:
(a)the applicant advised him that, if an application for a tourist visa was lodged on his father’s behalf the prospects of it being granted were poor, but his prospects on appeal to the AAT were good;
(b)based on that advice he paid the applicant $150 and then $800 to lodge the application on his father’s behalf;
(c)two weeks later the applicant informed Mr Zarandi that the tourist visa application had been refused and that there was no right of review to the AAT; and
(d)Mr Zarandi attended the applicant’s office seeking a copy of the refusal decision. The applicant did not provide copies of that document and instead called the police when Mr Zarandi refused to leave.
In his response to the complaint, and in the Tribunal, the applicant contested significant factual matters alleged by Mr Zarandi. Based on the documents available to me and the oral evidence given in relation to the matter, I make the findings set out below.
Mr Zarandi is a citizen of Iran. He is the holder of a Safe Haven Enterprise Visa under the Act which allows him to stay in Australia. He wanted to obtain a visa so that the Parents could visit him and his family. He sought the assistance of Ms Fraser, a friend of his who he knew through his local church. Ms Fraser had previously worked as a crown prosecutor. Ms Fraser and her husband helped Mr Zarandi to assemble the relevant paperwork and began the process of applying online for a tourist visa for the Parents. Ms Fraser was unable to complete the process however because she could not work out how to upload notarised copies of the supporting documentation.[22] She recommended that Mr Zarandi obtain the services of a migration agent and after an online search recommended that he use the services of the applicant.[23]
[22] Transcript of Proceedings, 28 August 2019, at 214.
[23] Ibid.
Ms Fraser and her husband attended the applicant’s office with Mr Zarandi and his wife on 6 September 2017. All of the witnesses who gave evidence (including the applicant) agree that on that occasion the applicant gave advice that Mr Zarandi had poor prospects of securing tourist visas for the Parents with an initial application. I am also satisfied (notwithstanding the applicant’s evidence to the contrary) that on that occasion the applicant gave advice to Mr Zarandi that if the matter was appealed to the AAT his prospects of a favourable decision were significantly better – the evidence on this question suggests that an assessment of something in the order of 70% was given by the applicant. The applicant, however, indicated that those prospects might reduce over time as the Minister had recently ‘sacked’ several members of the AAT known to have reversed his refusals so the chances might not be as good in the future.[24] Ms Fraser gave evidence to this effect (as did Mr Zarandi) and she sent an email to herself by way of a file note on 28 November 2017, which is a reasonably contemporaneous record of what she heard at the time.
[24] Exhibit R8.
In essence, the advice was that an application for a tourist visa for the Parents had no prospects on its own. Any chance of success depended upon an appeal to the AAT. That was how the advice was understood by Mr Zarandi and Ms Fraser.
After assessing the options, Mr Zarandi decided to proceed with the application for a tourist visa for the Parents.[25] He paid the applicant to prepare and submit the application and separately paid the disbursements necessary to file the application.
[25] Exhibit R8.

On 29 September 2017, the applicant filled out a Form 956 which appointed him Mr Zarandi’s migration agent and allowed him to act on Mr Zarandi’s behalf in relation to a tourist visa application. The document authorised the applicant to receive written communications on behalf of Mr Zarandi. Although the document was not signed by Mr Zarandi, it was submitted to the Department of Home Affairs,[26] and the Department proceeded to correspond with the applicant in relation to the Parents’ visa application using the email address provided by the applicant on that form.[27] I am satisfied that was in accordance with Mr Zarandi’s wishes.
[26] Exhibit R5.
[27] For example T23, folio 420.
At 3.23 pm on 29 September 2017, the applicant lodged an Application for a Visitor Short Stay Visa on behalf of the Parents. The applicant was listed as the migration agent and an authorised recipient. The application was submitted along with a number of other documents including the Form 956.[28]
[28] Exhibit R4.
On 3 October 2017, the applicant wrote to the Department inquiring into whether anything further was required.[29] On 3 October 2017, the applicant advised Mr Zarandi that the Parents needed a medical check-up in Iran.[30] On 13 October 2017, the applicant advised Mr Zarandi that the Parents required medical insurance. He asked Mr Zarandi to email him the details when it was done and said that when it was done, ‘…I will then tell the Department’.[31]
[29] Exhibit R6.
[30] ST3, folio 9.
[31] Ibid, folio 8.
A decision was made in relation to the application on 19 October 2017.[32] The application was rejected.
[32] T23.
The applicant notified Ms Fraser of the result of the application by telephone. He advised that the Department had refused the request because the delegate believed the Parents were unlikely to comply with the visa and likely to attempt to stay permanently in Australia.[33] This advice accurately reflected the reasons for decision set out in the decision of the delegate.[34] I note that these findings are contrary to the evidence of the applicant who, in his evidence before the Tribunal, said it was his memory that he was told of the result by a person answering the description of Ms Fraser. That evidence was clearly wrong (to put it as neutrally as possible) as the Department was only authorised to communicate with the applicant and had no contact details for Ms Fraser.
[33] Exhibit R8.
[34] T23, folio 423.
The applicant also advised Ms Fraser soon after the decision was received, that it was not possible to seek review in the AAT.[35] This was news to Ms Fraser and a crucial departure from the advice which the applicant had given earlier and which had induced Mr Zarandi to proceed with the applications for tourist visas.
[35] Exhibit R8, at 3.
The applicant advised Ms Fraser that there had been a rule change which now prevented an AAT appeal.[36] When Ms Fraser queried when the change happened, the applicant was extremely vague in his response.[37]
[36] Ibid.
[37] Transcript of Proceedings, 28 August 2019, at 222; Exhibit R8.
The finding that the applicant told Ms Fraser that there had been a recent rule change (which was in fact not the case) is important. It strongly supports a finding that at that point in time the applicant remembered he had advised that review in the AAT was available prior to the submission of the tourist visa application and he was conscious that he was now advising that no such review was possible. To explain this discrepancy the applicant invented a story about the rules having changed.
Based on the evidence of Ms Fraser and Mr Zarandi, I am satisfied that the applicant gave wrong initial advice that review in the AAT was available. When he discovered that review was not available in the AAT (that fact being clear on the face of the decision[38]) he then set out to obscure his error by stating to Ms Fraser that there had been a rule change. Later he changed tack and began denying that wrong advice was ever given. That conduct involved telling conscious and deliberate lies.
[38] T23, folio 420.
Ms Fraser advised Mr Zarandi that his application had been refused and that no appeal was available to him in the AAT.[39] As this information was different to what Mr Zarandi had been told by the applicant previously, he felt he had been cheated. He went to see the applicant at his office.[40] He spoke to his associate. He demanded to see the applicant. He was told initially that the applicant was out of Canberra and that he had to leave.[41] Instead of leaving, Mr Zarandi sat down in the office and said he was not leaving. At some point the applicant appeared and Mr Zarandi spoke very angrily to him and the discussion became heated.[42] Mr Zarandi asked for the refusal letter from the Department and the application for the Parents’ tourist visa. The applicant may have given Mr Zarandi some documents[43] but the documents did not include the decision to refuse the visa. In relation to that document, the applicant said to Mr Zarandi that he could not have it.[44] The applicant then began calling the police.
[39] Exhibit R8.
[40] Transcript of Proceedings, 27 August 2019, at 190.
[41] Ibid.
[42] Ibid, at 191.
[43] Ibid, at 190 line 20 – although there is good evidence he gave him none, see Exhibit R8.
[44] Ibid, at 191.
Mr Zarandi rang Ms Fraser on his mobile phone and asked the applicant to speak to her. The applicant refused and continued to call the police. Ms Fraser advised Mr Zarandi to leave the office which he did. He encountered the police outside the applicant’s building and spoke to them. Ms Fraser arrived shortly after. The police advised Mr Zarandi that he could make a complaint about the applicant’s conduct.[45] I am satisfied that when Mr Zarandi left the office that day, he was not given the delegate’s decision refusing the tourist visa application.[46]
[45] Ibid.
[46] See Transcript of Proceedings, 27 August 2019, at 194 line 10-20 – corroborated by Exhibit R8 and the fact that a subsequent request was made for the relevant documents by Ms Fraser – see Exhibit R9.
Ms Fraser spoke to the applicant on the telephone again the next day and he confirmed that the applicant had no review rights in the AAT.
On 27 November 2017, Ms Fraser rang the applicant and asked for copies of the application and decision. The applicant said that there were no copies because it was an online application. Ms Fraser asked if the applicant had a copy of the Department email giving the reasons for refusal. He said he no longer had a copy of that email.[47]
[47] Transcript of Proceedings, 28 August 2019, at 224.
He indicated to Ms Fraser that he had already given a copy of the delegate’s decision to Mr Zarandi.[48] I am satisfied that statement was false. Mr Zarandi’s evidence, which I accept, is that he was never given a copy of the delegate’s decision. Further, Ms Fraser continued to pursue a copy of the delegate’s decision from the applicant which would be completely unnecessary if Mr Zarandi already had the document.
[48] Exhibit R8.
On 28 November 2017, Ms Fraser followed up the request for documents with an email seeking Mr Zarandi’s application and a copy of the Department’s reasons for refusal. The email was in the following terms: [49]
Further to our phone call of 27 November 2017 I confirm your advice that you have no copy of Mr Zarandi’s original visa application made on behalf of his parents. Also, you have no copy of the Department’s notification of the Delegates decision to refuse the application. I understand your advice that an appeal to the AAT is hopeless in Mr Zarandi’s case but nonetheless Mr Zarandi wishes to appeal the decision. The first step as I understand the jurisdiction is to establish the decision which is to be appealed. Is it possible that your files can produce a copy of Mr Zarandi’s original application; application number and a copy of the Department’s advice to you for the reasons for refusal…If your file cannot reveal copies of these documents can you tell me what steps I must pursue in order to obtain copies.
[49] Exhibit R9.
The applicant did not reply to the email. No documents were forthcoming.
After this last attempt to obtain relevant documents on 28 November 2017 communication between the applicant, Ms Fraser and Mr Zarandi ceased. Mr Zarandi never obtained the material necessary for him to seek advice on having the refusal to grant the tourist visa reviewed.
The complaint to OMARA
On or about 18 November 2017, Mr Zarandi made a complaint to OMARA.
Ms McDonald, a delegate of the Minister under various sections of Part 3 of the Act, who also for administrative purposes represented OMARA, sent Mr Zarandi an email confirming the nature of Mr Zarandi’s complaint,[50] which I summarised at paragraph ‎[19] above.
[50] ST1.
On 11 January 2018, a delegate of the Minister issued a section 308 Notice to the applicant requiring answers to questions in the form of a statutory declaration.[51] The notice asked five questions about the lodging of the tourist visa application, the substantive advice given by the applicant, the advice given in relation to review rights, whether the applicant provided Mr Zarandi with a copy of the decision and the application and if the documents were not provided, why they were not provided.
[51] T24, folio 427.
It is important to note that these questions were asked less than three months after the application for a tourist visa was lodged and in a context where the Code:
(a)requires advice to visa applicants to be given in writing,[52] and
(b)requires instructions to be confirmed in writing,[53] and
(c)prohibits misleading or deceiving OMARA.[54]
[52] Clause 2.7 of the Code.
[53] Clause 2.8 of the Code.
[54] Clause 2.9A of the Code.
Further, the events surrounding the complaint were such that there were very good reasons for the applicant to have a clear recollection in relation to them. He had phoned the police in order to remove Mr Zarandi from his office and he had had a number of conversations with Ms Fraser which I am satisfied involved the applicant giving dishonest explanations as to why he was backtracking on his advice about review rights being available in the AAT. In these circumstances, I am satisfied that the applicant at the point in time when the complaint was made to OMARA and following, had a clear recollection of events.
A response was required by 12 February 2018. The applicant did not respond.
On 5 March 2018, the Minister’s delegate sent a follow up email advising that Mr Zarandi had contacted her because he urgently required the documents held by the applicant.[55] The email requested the prompt return of the documents to Mr Zarandi or, in the alternative, an explanation for the reasons for the failure to return the documents.
[55] T25, folio 434.
On 6 March 2018, the Minister’s delegate had a telephone conversation with the applicant. She records what the applicant told her about his dealings with Mr Zarandi. While some aspects of the note are ambiguous, it concludes with the statement: [56]
In relation to the return of documents…Mr Ford says he gave him all the papers he had and there are no further documents which [Mr Zarandi] does not have.
[56] T26.
Given this email’s content and provenance, I am satisfied, and the applicant agrees,[57] that it represents an accurate record of a conversation between the applicant and the Minister’s delegate. I am also satisfied that the statement was false, and the applicant knew it was false at the time he made it. The applicant knew that he had never given Mr Zarandi a copy of the decision in relation to the tourist visa, and in fact had positively refused to give it to him during their heated argument in his office.[58] The issue of Mr Zarandi not having the necessary papers to pursue his review had been drawn to his attention on three separate occasions – during the argument in his office, in a call with Ms Fraser and in an email from Ms Fraser.[59]
[57] Applicant’s written submission dated 1 June 2020.
[58] Transcript of Proceedings, 27 August 2019, at 191; Transcript of Proceedings, 28 August 2019, at 223.
[59] Transcript of Proceedings, 28 August 2019, commencing at 224 and following; Exhibit R9.
The following morning the applicant sent an email to the delegate.
The email included the following statements which I am satisfied were false or misleading and the applicant knew they were false or misleading:[60]
I gave him all of the papers even though he had not paid all of my fees. He then tried to say that I had not given him all of the papers. I did give him all of the papers …
I never said he could seek review in the AAT, I said that we could seek review and by review I meant that we could go to the Federal Circuit Court …
[60] T27, folio 437.
Set out below are the bases for my findings that this email included statements which were, deliberately false.
(a)I am satisfied that the statement that ‘I gave him all of the papers’ was untrue because of the clear and convincing evidence of Mr Zarandi and the evidence (including emails) of Ms Fraser about her attempts to obtain a copy of the tourist visa decision. Mr Zarandi's reaction in the witness box when he was shown documents relating to the application, and the decision in particular, was telling. When Mr Zarandi was shown the documents which constituted the application and the Department’s decision, he expressed genuine bewilderment. He clearly could not understand why the applicant had not given the documents to him when he asked. His reaction is summed up in his declaration: [61]
[61] Transcript of Proceedings, 27 August 2019, at 195.
…why he so satisfied to ring the police, kick me out of his office, and wasn't really even thinking of giving this information to me. Why he didn't?...He don't want to give me his letters.
In cross examination Mr Zarandi confirmed that he was never given the documents that would allow him to apply for review.[62]
[62] Ibid, at 194.
Further, there is no logical reason why Ms Fraser would write to the applicant seeking those documents on 28 November 2017 if Mr Zarandi already had them.
I am also satisfied that the applicant sought to mislead OMARA when he said that Mr Zarandi ‘had not paid all of my fees’. There is clear evidence that the applicant paid $150 in cash[63] and a further $800 by a transfer to the applicant.[64] There is no evidence that any other amount was agreed and owing at the point at which Mr Zarandi sought to obtain his papers. The applicant never sought any further payment from Mr Zarandi and there is no other evidence that there is any basis for a claim that any amount was owing.
(b)I am satisfied that the statement that ‘I never said he could seek review in the AAT’, is false. Ms Fraser gave clear oral evidence about the advice received on review rights and confirmed that it was review in the AAT which she was told was available.[65] Her email dated 28 November 2017, which served as a file note, records the advice as being: [66]
there was a possible 75% chance of success at the AAT level although [Mr Ford] gave the clear caveat that the Minister had recently sacked several members of the Tribunal known to have reversed his refusals so the chances might not be as good in the future.
I have given serious consideration to whether Ms Fraser may have misunderstood what she was being told by the applicant and thought he was talking about merits review when in reality he was talking about judicial review.
I am satisfied that is not the case. First, Ms Fraser had excellent recall of what was said and she recorded the terms of the advice in writing in a reasonably contemporaneous email. Proceeding then on the basis that Ms Fraser remembers with reasonable accuracy the words the applicant used when providing advice, in my assessment they can only be understood as referring to merits review. Even if Ms Fraser is mistaken about the words ‘the AAT’ being used, and that she has only remembered the gist of the advice given, what remains is still only consistent with the advice relating to merits review. I say this for two reasons. First, an assessment of a 75% chance of success in advance of the visa application being considered can only make sense if merits review is what is the subject of the advice. Judicial review prospects cannot be determined until a decision has been made by a delegate and the terms of the decision reviewed and legal error identified. Second, it makes no sense at all to talk of judges of the Federal Circuit Court and the Federal Court as having been ‘sacked’. While it is not entirely apt to talk of members of the AAT being sacked, non-renewal of a member whose period of appointment has expired, could create the impression in the applicant’s mind that that is what is occurring.[67] Accordingly, the supplementary remarks recorded by Ms Fraser can only be understood as referring to the AAT. Further, that is how Ms Fraser understood them. As such, I am confident there was no misunderstanding about the advice given.
I am also satisfied that the applicant knew at the time he wrote his email to the Minister’s delegate that the statement he was making was false. In an earlier conversation with Ms Fraser he betrayed his awareness that he had given wrong advice when he suggested that it was by reason of a recent rule change that the applicant could not apply to the AAT.[68]
In saying ‘I never said he could seek review in the AAT’, the applicant is asserting a positive memory of giving accurate advice and never giving wrong advice. I am satisfied that in October 2017 he had a conversation with Ms Fraser, after the tourist visa had been refused, in which he sought to deflect any possible criticism of his incorrect advice regarding AAT review rights by suggesting that it was a recent rule change which deprived Mr Zarandi of AAT review rights. Such a statement betrays the fact that, at that stage, the applicant positively recalled what advice he had given concerning AAT review rights and understood that the advice was wrong. He knew he had made an error in October 2017. I cannot accept that by March 2018 he had a positive memory of giving correct advice and never giving wrong advice. The statement that he had never given such advice was false and I am satisfied that he knew that it was false at the time he wrote the email.
[63] Transcript of Proceedings, 27 August 2019, at 184 (clarified by reference to the Transcript of Proceedings, 27 August 2019, at 113).
[64] ST2, folio 3.
[65] Transcript of Proceedings, 28 August 2019, commencing at 215 line 35 and following.
[66] Exhibit R8.
[67] As will be explained later, it is clear that the applicant believed that Senior Member Short had been sacked when in fact he had simply not been re-appointed.
[68] Exhibit R8.
After providing the applicant with an opportunity to make comments in relation to the preliminary findings pursuant to section 309 of the Act, the delegate made a decision in relation to all of the complaints against the applicant. In relation to Mr Zarandi’s complaints the delegate found:
(a)that the applicant breached the Code by not returning documents when requested by the client, and failed to maintain proper records;[69] and
(b)that the applicant was willing to pursue a judicial review application for a considerable fee even when the application did not represent the client’s best option.[70]
[69] T2, folio 63.
[70] Ibid, folio 65.
I note that the delegate’s finding in paragraph (b) is based on some of the more extravagant statements which the applicant included in his correspondence with the delegate and is not a finding that is open on the facts found by this Tribunal.
The application to the Tribunal
On 27 October 2018, the applicant filed an application for review in the Tribunal.
On 16 January 2019, he filed a Statement of Facts, Issues and Contentions.
This document included the following statements:
(a)‘I also said to [Mr Zarandi] that he would have no appeal rights to the Tribunal, but that he could have a right of review in the Federal Circuit Court. I specifically told him that …this was his only right of review’;[71]
(b)‘I had every regard for [Mr Zarandi’s] dependence on my experience in this matter. The advice was correct, [Mr Zarandi] would have had a right of review to the Federal Circuit Court’;[72]
(c)‘There were very few documents in this matter. As soon as the application was made, [Mr Zarandi] was given a copy of the application. I did not have the file in this matter because Mr Zarandi took all of the relevant papers’;[73] and
(d)‘What has happened here is that Mr Zarandi is blaming me for the fact that the application for the visa was refused’.[74]
[71] Applicant’s Statement of Facts, Issues and Contentions dated 16 January 2019, at 8.
[72] Ibid.
[73] Ibid.
[74] Ibid, at 9.

For the same reasons stated at paragraph [‎53](a)–(b) above, I am satisfied that those statements were false.
Prior to the hearing the applicant made no concessions about any wrongdoing in relation to Mr Zarandi (or indeed any of the matters put against him).
When the matter came on for hearing, the applicant gave sworn evidence about his dealings with Mr Zarandi. When he did so he was not aware that Ms Fraser would later be called to give evidence and provide emails relevant to their dealings.[75] His evidence gravitated even further from the truth than his earlier statements to the Minister’s delegate and the material filed with the Tribunal.
[75] Evidence from Ms Fraser came to light at the end of the cross examination of Mr Zarandi on 28 August 2019 and the applicant did not raise an objection to the tendering of the evidence (Exhibit R8) and her being called to give oral evidence on 29 August 2019 – See Transcript of Proceedings, 28 August 2019, commencing at 202 and following.
In his evidence in chief the applicant:
(a)admitted that he had no fee agreement with Mr Zarandi;[76]
(b)initially claimed the money that he charged him was only for the provision of advice not for the preparation of a tourist visa application;[77]
(c)stated that he was never involved in preparing any document to apply for a tourist visa;[78]
(d)claimed that he only gave advice to Mr Zarandi so he could arrange for the Parents to make an application for a tourist visa offshore;[79]
(e)claimed he never advised that Mr Zarandi was entitled to seek review in the AAT and always told him that he could seek judicial review in the High Court in its original jurisdiction and the matter would then be remitted back to the Federal Circuit Court;[80]
(f)said he had no recollection of receiving a refusal decision, he may have but he didn’t know why he would because he did not make the application;[81] and
(g)stated that he gave Mr Zarandi the file when he demanded it but then he refused to leave the office.[82]
[76] Transcript of Proceedings, 26 August 2019, at 38; This admission was subsequently confirmed by a written admission on 9 September 2019 that he breached clause 5.2, 5.4 and 5.5 of the Code by not having an Agreement for Fees and Services.
[77] Transcript of Proceedings, 26 August 2019, at 38.
[78] Ibid.
[79] Ibid.
[80] Ibid, at 38 – 40.
[81] Ibid, at 40.
[82] Ibid.
In cross examination, prior to being shown the documents relating to the application, the applicant indicated that his memory of events was pretty good and maintained that he only provided advice and did not prepare the visa application.
Even when a number of documents were shown to the applicant which indicated that he had lodged the tourist visa application online, he persisted in claiming that the application was lodged by Mr Zarandi’s father. When he was shown the Form 956 which nominated him as the contact point with the Department he said:[83]
That doesn’t chance (sic) the fact that Mr Mohamad Zarandi [Mr Zarandi’s father in Iran] completed the online form and lodged the form and it was in accordance with my advice to them that it was up to Mohamad Zarandi to go off and apply for the tourist visa which it appears that that’s what exactly Mohamad Zarandi did and the fact that I completed a 956 and the fact that I filled in other forms doesn’t mean that I made the application. It doesn’t mean that I completed the application form online. It means that Mohamad Zarandi completed the form online, not me.
[83] Transcript of Proceedings, 27 August 2019, at 119.
However, when it was pointed out that the visa application form itself said that it was lodged by ‘IMMIISSILLY’ the applicant begrudgingly conceded that it was his immigration account name and that he had in fact submitted the application form.
The applicant said that he still didn’t recall making the application[84] and that his earlier statements were based on the fact that he couldn’t properly recall. He then conceded that he ‘may have made a false statement’.[85] The applicant never conceded that this was a deliberate falsehood. The mistakes in his evidence were always attributed to a memory lapse.
[84] Ibid, at 124.
[85] Ibid, at 125.
The respondent, in its submission, pressed for a finding that the applicant did not just give mistaken evidence but gave false evidence. The applicant, in his submissions, did not offer any substantive response.
I am satisfied that the applicant began telling lies in relation to Mr Zarandi’s application as soon as the decision was made by the Department. He lied to Ms Fraser about the rules having changed to bar merits review. He lied when he spoke to the Minister’s delegate and told her that there were no further documents, which Mr Zarandi did not have. He lied when he sent the email to OMARA saying that he had given Mr Zarandi all of the papers, that Mr Zarandi had not paid his fees and that he had never said that Mr Zarandi could seek AAT review. I am also satisfied that the applicant gave deliberately false evidence to the Tribunal in the following exchanges:
…so Mr Zarandi says:
Mr Ford told me that the tourist visa application might be refused. The application refused. It could go to the tribunal.
…
Is that the advice? --- That’s not the advice, no. I said that a tourist application would definitely be refused, and then I said, “In theory you can seek review.” I did not say that the person would be entitled to seek review in the tribunal.[86]
Then later:
I put to you that you also told your client BZ that if the visa application was refused that an application could be made to the AAT for review? No, I reject – I deny that.[87]
[86] Transcript of Proceedings, 26 August 2019, at 38.
[87] Transcript of Proceedings, 27 August 2019, at 121.
I make this finding conscious that such a finding should not be made lightly.[88]
[88] In making the finding I am applying the balance of probabilities applied having regard to the principle in Briginshaw v Briginshaw [1938] HCA 34.
I was not able to reach such strong conclusions about the applicant’s evidence that he did not have a direct role in the submission of the Parents’ tourist visa application beyond providing general advice. The evidence the applicant gave was clearly incorrect but I remain uncertain as to whether it was deliberately dishonest. The source of my uncertainty is that the evidence was easily demonstrated to be false and no obvious benefit accrued to the applicant from making the claims. In those circumstances I am not willing to find that the statements made in evidence were a conscious attempt to mislead the Tribunal.
In my assessment, the applicant’s conduct in relation to Mr Zarandi and his complaint establishes that the applicant lacks integrity and is not a fit and proper person to give immigration assistance. My full reasons for finding that the applicant lacks integrity and is not a fit and proper person to give immigration assistance are set out from paragraph [‎335] below.
Assessment
In relation to specific breaches of the Code arising from the applicant’s conduct in relation to Mr Zarandi up until the point where his registration was cancelled, I make the following findings.
Breach of 5.2 – No written agreement
The applicant breached clause 5.2 of the Code by not having a written Agreement for Services and Fees as required by clause 5.2 of the Code. The applicant conceded this on 9 September 2019.
Breach of 10.2 – Failure to return documents on request
The respondent submits that in relation to Mr Zarandi, the applicant breached clause 10.2 of the Code.
Clause 10.2 of the Code provides that a client is entitled to ask a registered migration agent (orally or in writing) to return any document that belongs to the client. The agent must return the document within 7 days of being asked.
While I am satisfied that the applicant failed to provide Mr Zarandi with the tourist visa decision document, I am not satisfied that this clause of the Code catches that conduct. The provision appears to be directed at documents provided to the migration agent by the client which they want “returned”. The evidence that documents given to the applicant by Mr Zarandi were not returned is equivocal so I am not satisfied that the applicant’s conduct involved a breach of this clause.
Breach of 10.5 – Giving documents paid for by the client
The respondent alleges that in relation to Mr Zarandi, the applicant breached clause 10.5 of the Code. Clause 10.5 provides:
On completion of services, a registered migration agent must, if asked by the client, give to the client all the documents:
(a) given to the agent by the client; or
(b) for which the client has paid.
Based on the findings in paragraph [‎53(a)] above I am satisfied that the applicant did not give to Mr Zarandi the document recording the decision in relation to the tourist visa application. The document was sent by the Department to the applicant as agent for Mr Zarandi. Mr Zarandi had paid for the application to be made. In those circumstances I am satisfied that the document recording the visa refusal was a document for which Mr Zarandi had paid. The applicant never gave Mr Zarandi the letter recording the delegate’s decision. Therefore, I find that the applicant breached clause 10.5(b) of the Code.
Breach of 6.3 – Responding to information requests from OMARA
The respondent alleges in relation to Mr Zarandi’s complaint, that the applicant breached clause 6.3 of the Code. Clause 6.3 provides:
A registered migration agent must respond to a request for information from the Authority within a reasonable time specified by the Authority.
The applicant breached this clause. The applicant was served with a section 308 Notice on 11 January 2018. He did not respond by the deadline of 12 February 2018. He did not provide any response until 6 March 2018 and only provided a written response on 8 March 2018.
Breach of 9.1 or 9.3 – Responding properly to a complaint
In its closing submissions, the respondent alleges in relation to Mr Zarandi’s complaint, that the applicant breached clause 9.1 of the Code. It would appear that clause 9.3 of the Code is the more relevant clause of the Code and it is in relation to that clause which the applicant responded in his closing submissions. Clause 9.3 provides:
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.
In relation to Mr Zarandi’s complaint, a ‘proper’ response to the Authority would include responding honestly, in a timely fashion and in the form required by the section 308 Notice. This was not done. The applicant responded late, with a response that included deliberate lies and not in the form required – namely, by email rather than the required statutory declaration.[89] I am therefore satisfied that he breached clause 9.3.
[89] See my factual findings at paragraph [‎47] – [‎53] above.
Compliance with lawful requirements is not optional for migration agents. The applicant’s failure to comply with a compulsory statutory notice without apology or explanation in a form he chose, rather than the form required, showed contempt for the regulatory regime provided for by the Act and the Code. I am satisfied that the non-compliance was deliberate and done with a view to preventing wrongdoing coming to light.
The applicant’s conduct in relation to Mr Zarandi’s matter contributes very significantly to my findings that he lacks integrity and is not a fit and proper person to give migration assistance. However, those issues are best examined in the context of findings in relation to all of the complaints which I make later in my decision.
COMPLAINT BY AK
AK arrived in Australia by boat in 2012. His application for a protection visa was refused initially and the Refugee Review Tribunal affirmed that decision on 7 June 2013.[90] AK sought judicial review of that decision in the Federal Circuit Court. That application was refused. On 9 July 2014, the applicant wrote on behalf of AK seeking Ministerial intervention. On 2 March 2016, that request was refused.
[90] T17.
On 15 September 2016, the Minister exercised his power to lift the statutory bar on AK making a further temporary protection visa application or a safe haven enterprise visa (SHEV) application. AK was given until 6 October 2016 to put in an application for one of those visas.[91]
[91] Exhibit R1.
AK attended the applicant’s offices to get assistance in sending the documents to the Department. The applicant accepted the instructions and completed some paperwork including a Form 956[92] but not an Agreement for Fees and Services as required by clause 5.2 of the Code.[93] After asking some questions, the applicant prepared the paperwork and submitted it. AK was given a copy of the Form 956 on this occasion and I am satisfied that this was the case.[94]
[92] T19, folio 168.
[93] Exhibit A4.
[94] Transcript of Proceedings, 27 August 2019, at 175 line 15.
The applicant submitted the application by email on 6 October 2016. The emails containing the application were sent to [email protected].[95]
[95] Exhibit A1.
Immediately following receipt of those emails an email was sent by the Department to the applicant. The email advised that emailing was not an acceptable form of providing such visa applications and the application could not be accepted. The email advised that the application had to be printed off and sent to a specific GPO Box address.[96]
[96] Exhibit R10.
The applicant has no record of receiving this document and states that he did not receive it.[97] I am satisfied that the email never came to the applicant’s attention. I make this finding notwithstanding that the respondent filed evidence which establishes that the email reached the applicant’s email address. While many deficiencies in the applicant’s professionalism have been exposed in the course of this matter, I am not willing to find that he deliberately sabotaged a client’s prospects of obtaining a visa by ignoring a necessary procedural step which the Department notified him of while he was still in the process of submitting the application. In those circumstances I accept his denial of knowledge of receipt of the email.
[97] Exhibit A3.
From this point on, I am satisfied that the Department believed that it had not received any visa application and the applicant believed he had successfully lodged the application.
After a few weeks when no response was received, AK called the applicant and asked him for updated information about his case.[98] The applicant responded, saying that he successfully sent the documents to the Department and had taken care of the case appropriately. AK believed him but remained nervous as to why the Department had not invited him for an interview. He asked the applicant whether they should send the documents to the Department again. The applicant said no.[99]
[98] T19, folio 368.
[99] Ibid, folio 372.
On 15 September 2017 (almost a year after the original SHEV application had been submitted), AK received a letter from the Department telling him that he had to submit his application before 1 October 2017.[100] Understandably, AK was concerned to receive such a letter given that his agent had told him that he had already submitted the application. When AK contacted the applicant about the issue, he was rude and, to use AK’s words, ‘told me off’.[101]
[100] Ibid, folio 374.
[101] Ibid, folio 368.
AK secured a new migration agent who contacted the Department and was told that no application had been submitted on AK’s behalf.
AK then rang the applicant and begged him to provide him with all his documents. The applicant was rude again and did not respond to other requests for the documents, including one from AK’s new migration agent Dr Ahmadi.[102] AK then had to travel from Melbourne to Canberra to attend the applicant’s office to collect his documents.
[102] Ibid, folio 374.
When he went to collect the documents from the applicant, the applicant gave him some (but not all) of the related papers with a paper clip with the word ‘FUCK’ printed in capital letters on it.[103] The applicant accepts that he did do this and went so far as to say: [104]
I suppose with the benefit of hindsight I shouldn’t have done that. I should have been more diligent to make sure that my paperclips didn’t have that word on them.
[103] Ibid, folio 368 and 371.
[104] Transcript of Proceedings, 26 August 2019, at 43.
When AK requested the remaining documents, the applicant said that the Department had lost all of AK’s documents and there was no way he could help at this stage.[105] That, as it turned out, was not true. The applicant still had a copy of the application and the attached documents stored electronically in his sent items folder.[106]
[105] T19, folio 369.
[106] See Exhibit A1 and Exhibit R10.
The applicant gave evidence of his recollection as to what occurred in relation to AK’s documents. He stated in his evidence, ‘I seem to recall I gave him [Dr Ahmadi] the file. I sent him the relevant papers.’[107] I do not believe that AK would have driven from Melbourne to Canberra to collect papers from the applicant personally, if the material had already been sent on to this new agent. Consequently, I do not accept the applicant’s evidence on that issue.
[107] Transcript of Proceedings, 26 August 2019, at 42.
Complaint to OMARA
On 24 October 2017, AK made a complaint to OMARA about his treatment at the hands of the applicant[108] highlighting in particular:
(a)the applicant’s rude and offensive behaviour;
(b)the applicant’s failure to lodge the SHEV application;
(c)the applicant’s failure to follow up on the SHEV application;
(d)the applicant’s failure to provide either him or his new migration agent with all the documents AK needed to make a fresh application for a SHEV; and
(e)his failure to provide him or his migration agent the documents on request.
[108] T19, folio 368.
On 19 January 2018, the Minister’s delegate sent a section 308 Notice to the applicant for a response by 19 February 2018.[109] That Notice raised the following issues:
(a)the applicant entered into an Agreement for Services and Fees with AK but never gave him a copy of the agreement;
(b)the applicant acted without instructions in advising the Federal Court at a hearing on 3 December 2013 that no interpreter was required when AK did require an interpreter;
(c)the applicant assisted AK with a request to the Minister but AK is unaware of what was written to the Minister and what the result was;
(d)the issues arising from the submission of AK’s SHEV application;
(e)the applicant’s failure to provide all documents relevant to his SHEV application when requested by AK and his migration agent, Dr Ahmadi, on several occasions; and
(f)the applicant seeking payment contrary to an agreement that he would not charge for his services.
[109] T21, folio 395 – 398.
The Notice then listed a range of questions on those topics and stated that the answers were to be given in the form of a statutory declaration.
The Notice also sought documents under section 308(1) namely ‘a complete client file for each occasion in which you assisted the complainant including full client account records.’
The applicant responded late and by email on 23 January 2018.
In that email the applicant advised:[110]
(a)AK’s application, with all necessary documents, was lodged with the Department.
(b)AK was given all of the documents when he decided to go elsewhere.
(c)The fact that the Department may have refused his application ‘is not my fault and further, it has nothing to do with me’.
(d)AK did not leave him because there were problems with his visa application but because ‘he was quite racist in his attitude towards me in that he expected me to speak his language’.
(e)There was/is no benefit in sending the documents again because the Department already has the papers. ‘If he is so worried about it, then he can lodge the papers himself. He has all of the papers.’
(f)He did not have any of AK’s papers.
[110] T22, folio 418.

No other response to the section 308 Notice was provided.
In relation to those answers I am satisfied that:
(a)the applicant believed that his answer recorded in paragraph (a) above was true and based on what he knew at the time that belief was reasonable;
(b)I do not know whether the applicant believed his answer to (b) was true, but I am satisfied that AK was never given a complete file even when he attended the applicant’s office to collect it;[111]
(c)The applicant’s response in paragraph (c) while undoubtedly reflecting the applicant’s view at the time, was wrong. AK found himself in the predicament he was in because the applicant had failed to use the correct method for submitting SHEV applications;[112]
(d)The applicant’s response to paragraph (d) may reflect the applicant’s perception of what occurred. However, it is clear from the evidence that AK did seek the services of another migration agent because the applicant was unsatisfactory. Whether the applicant knew that is less clear;
(e)The statement in (e) demonstrates how wrong the applicant was in his assessment of the situation. At the time he made the statements, the Department did not already have the applicant’s papers because the applicant had submitted them using an incorrect method. Further, AK did not have all the documents he needed to submit the application and it is unclear on what basis the applicant asserted that he did;
(f)The statement in (f) was untrue. The applicant had in his electronic archived files a full electronic copy of AK’s SHEV application.[113]
[111] See in addition to AK’s statements the email of Dr Ahmadi requesting the file urgently at T19, folio 374.
[112] See Exhibit R10.
[113] Applicant’s Statement of Facts, Issues and Contentions filed on 16 January 2019, at 10.
The applicant was sent a section 309 Notice by the delegate dated 31 July 2018. The Notice identified the following possible breaches of the Code:[114]
(a)A breach of clause 2.23 (which requires agents to take all reasonable steps to maintain the reputation of migration agents) on the basis that the applicant’s lack of interest in why his client’s documents were not received by the Department demonstrated a profound lack of professionalism not befitting a registered migration agent. Returning documents with the ‘FUCK’ paperclip also constituted a lack of professionalism and respect for the client.
(b)Clauses 2.1, 2.4 and 2.8(b) (which require an agent to act in accordance with the law, the client’s instructions and having due regard to the client’s dependence on the agent) on the basis that there was no evidence that the applicant took proper instructions prior to lodging a request for Ministerial intervention under section 417.
(c)Clauses 9.1 and 9.3 (which impose requirements for responding to complaints) by failing to properly respond to the Authority in relation to the method in which the SHEV application was sent to the Department.
(d)Clause 2.1(b) (which requires agents to deal with their client competently, diligently and fairly) by not retaining a full copy of his client’s lodged visa application and proof of the method used to send it to the Department.
(e)Clause 2.8(c) (which requires agents to keep clients fully informed) by failing to keep AK fully informed in writing of the progress of his case when he made a reasonable request for an update and the applicant refused to contact the Department.
(f)Clause 5.2(c) (which requires written confirmation of fees and services) on the basis that AK never received a copy of an Agreement for Services and Fees and it was open to the delegate to find so given the absence of a response to the section 308 Notice.
(g)Clause 6.1 (which requires the maintaining of proper records) by failing to maintain proper records that can be made available for inspection on request by the Authority.
[114] T3, folio 159 – 160.
The applicant’s response to the section 309 Notice (which covered all of the various complaints against him) was unsatisfactory. It asserted that the applicant had ‘already provided a comprehensive response’[115] to the Authority and then proceeded to focus on the complaint made by BS – a matter which I will come to shortly.
[115] T4, folio 169.
The Minister’s delegate found that the applicant had:[116]
[116] T2, folio 59 – 61.
(a)breached clause 2.23 of the Code by reason of his unprofessional indifference to the fate of AK’s SHEV application and by giving AK the ‘FUCK’ paperclip;
(b)breached clauses 2.1 and 2.4 of the Code by not dealing with his client competently, diligently and fairly and with due regard to his client’s dependence on his knowledge and experience;
(c)breached clause 6.1 of the Code by failing to maintain proper records that can be made available for inspection on request by the Authority;
(d)breached clauses 9.1 and 9.3 of the Code by failing to properly respond to the Authority concerning the significant matter of the method in which the SHEV application was sent to the Department and attempts to follow up the status of the application as was required in the Authority’s section 308 notice. The delegate found:[117]
… the Agent did not retain adequate records about the manner in which the application was purportedly sent to the Department. This failure to maintain such records inhibited any possibility his client had of rectifying the situation in which he found himself when the Department did not receive the application purportedly sent by the Agent. As such the Agent has not acted competently, diligently and fairly in a further breach of clause 2.1(b)
and
(e)breached clause 5.2 (c) of the Code on the basis that AK never received a copy of the Agreement for Services and Fees.
[117] Ibid, folio 61.

The application to the Tribunal

On 27 October 2018, the applicant sought review of the delegate’s decision in the Tribunal. On 16 January 2019 the applicant filed a Statement of Facts, Issues and Contentions (First SOFIC). The document was prepared by the applicant himself and is written in the first person. It included the following paragraph:[118]
On the 6th of October 2016, an application for a Subclass 790 visa was lodged. Please see attached emails which show the date and time of the Application. The Application for the visa was signed by the Applicant. There can be no dispute that the Application was lodged. A copy of the Application is attached.
[118] Applicant’s Statement of Facts, Issues and Contentions filed on 16 January 2019, at 10.
It is regrettable, in light of subsequent events, that the visa applications referred to in this document were not attached. For reasons which are unclear to me, this document seems to have been forgotten by the parties. Its existence was certainly forgotten by the applicant because when he came to give oral evidence his evidence was quite different from the version of events given in this First SOFIC.
On 7 March 2019, the applicant engaged a representative to act for him. On 10 March 2019, a re-cast Statement of Facts, Issues and Contentions (Second SOFIC) was filed. This was a much less helpful document from a factual point of view and only included, in relation to AK’s complaint, very general denials.
At the hearing the applicant gave evidence about what he remembered concerning the preparation and lodgement of AK’s SHEV application. At the time, the way the evidence unfolded was strange in that the applicant’s recollection drifted through a number of different versions of what had happened.
On his first attempt at giving evidence about what happened in relation to the submission of AK’s SHEV application in September/October 2016, the applicant said the following:[119]
I was aware of the fact that he had to make an application within the period of time. Now, to be quite honest I can’t remember whether I did or did not lodge the application within the seven days, but I seem to recall that I didn’t…I recall I think he did go and see another agent, and as I understand it that other agent lodged the application within the seven day period.
[119] Transcript of Proceedings, 26 August 2019, at 42.
When he was shown the complaint letter from AK the applicant modified his evidence as follows:[120]
Well, it’s now coming back to me. I now can recall that I did lodge the application for the SHEV within time, that there was no lodging of a late SHEV….
[120] Ibid.
He was then shown the Form 956 which was dated 6 October 2016 and asked if that refreshed his memory. He said, ‘Well, not really other than it’s just – as I said, I’m generally very careful about time limits.’[121]
[121] Ibid, at 46.
Then in cross-examination the applicant was asked about whether he assisted AK to apply for a visa in 2016. He responded:[122]
I can’t recall. If you’d like to elucidate the facts surround AK so I can give you – attempt to give you an answer.
[122] Ibid, at 98.
After some prompting about the circumstances the applicant was asked whether he remembered the circumstances in which he was approached to assist AK with his SHEV. He responded: [123]
I do remember and I felt very sorry for them and I was trying my very best to help them and I seem to recall that I drafted the application and I seem to recall that we did lodge the application.
[123] Ibid, at 99.
When counsel for the respondent objected to the phraseology ‘I seem to recall’, the applicant responded, ‘I recall lodging an application’.[124]
[124] Ibid.
When asked how he did that he responded: [125]
I drafted the relevant papers, submissions in support of the application and I recall giving it to [AK and ZK], giving it to them so they could have a read through it so they could come to a decision if they wanted to make any comments or vary the document before it was lodged…I was in Canberra…I believe I charged them approximately $1,000. I didn’t keep on asking them for more and more money and I didn’t have a costs agreement with them…then I believe I lodged the application. I believe I posted it to the Department…I sent it registered post…
[125] Ibid, at 100.
When asked whether he took a copy, the applicant could not recall.
He reiterated later: [126]
I did send a letter registered post and I was certain that it was going to reach [the Department] within the time period…I was well aware of the date in which to apply and I made sure I sent it before that date.
[126] Ibid, at 101.
When asked if he had a quite a specific recollection of sending the application by registered post the applicant replied, ‘That’s right. On every application I always send it by registered post.’[127]
[127] Ibid, at 103.
However, after having it drawn to his attention that the Department had not been able to locate a copy of the application the applicant answered:[128]
As I said it’s a long time ago and I can’t really remember but I’m fairly certain that I did lodge the application and I did lodge the application…By registered post within time.
[128] Ibid, at 103.
The following exchange then took place:[129]
I am asking you questions about the fact that the Department records revealed no lodgement of a SHEV application by the deadline of 6 October 2016. And you would appreciate that what my client is particularly concerned about is whether –and what apparently AK is particularly concerned about is whether you did or didn’t lodge that application? ---Well, I believe I did. But you’re not confident about that? ---No, look, I’m not confident --- So it is possible that you didn’t isn’t it? --- It’s possible, yes.
[129] Ibid, at 105.
In this part of his evidence I am satisfied the applicant was genuinely confused and uncertain about what had taken place. For whatever reason, by the time he gave his evidence the applicant had forgotten the true state of affairs which he had outlined in the First SOFIC.
The applicant then admitted that he breached clause 2.8 of the Code as he didn’t confirm his instructions in writing and didn’t keep his client fully informed of the progress of the case in writing. He also admitted he breached clause 5.2 of the Code as he didn’t have a written Agreement for Fees and Services with AK. He conceded that he did not have any files relating to AK but said this was because he had given the file to the client. He did not concede that he never kept file notes or files and said he was not confident that there were file notes on the files he gave the clients.[130]
[130] Ibid, at 107.
On the second day of the hearing the following events unfolded. At the commencement of the hearing counsel for the respondent advised that he had been handed a bundle of documents by the applicant’s representative which on their face suggested a SHEV application had been lodged by email for AK on 6 October 2016 (remembering that this is the precise position taken in the First SOFIC filed in January 2019 some 8 months earlier). Later in the morning the applicant was asked by his representative questions about how these ‘new’ documents emerged. The applicant explained that, following his evidence the day before, he undertook searches of his archived emails and found relevant documents in those archives. The documents, in the applicant’s words: [131]
…indicate that I did make an application, further that I made the application on 6 October, further the application was lodged within time, further the application as (sic) sent in accordance with the departmental policy to an immigration email address and fourthly that I had a copy of the application.
[131] Transcript of Proceedings, 27 August 2019, at 127.
The applicant then acknowledged that the day before: [132]
…I was – simply couldn’t recall exactly what happened. Yesterday I was of the view that I posted it, now that was – appears not to be the case. It is my normal practice to post things, because ordinarily the Department – well more recently the Department won’t accept documents that you do online. That you’ve got to either post it to them, and that was usually the preferred method.
[132] Ibid, at 128.
When asked by the Tribunal why, given that the issue of whether the application had ever been lodged was a long standing one, he had delayed undertaking a search for the application. The applicant responded: [133]
Well, I suppose because I was convinced that I had made the application, and I just wasn’t sure as to the way it was sent it made to the Department. I was convinced that I had, I didn’t see really the need to in effect, verify that. Because I didn’t think it really was an issue…when I did searches initially, I didn’t search in the archive I just searched in my existing emails and there wasn’t any reference to that.
[133] Ibid, at 130.
We now know that the applicant had undertaken earlier searches and found the emails submitting the applications and intended to annex them to the First SOFIC. Accordingly, this evidence is not the truth. I am satisfied that when the applicant cannot remember what happened he makes something up which he hopes is the truth.
The sudden late appearance of emails confirming that an application for a SHEV visa had been lodged electronically within time, in circumstances where the applicant had given evidence the day before that he did it by registered post, was surprising and, at least from the Tribunal’s perspective, a little suspicious[134] – particularly in circumstances where the respondent could not verify receipt of the application at its end of the system. Consequently, a direction was made for production of the hard drive on which the emails were archived and the respondent undertook searches to determine whether those emails were ever received by it.
[134] Noting that no-one at this point appeared to be aware of the First SOFIC.
On the third day of the hearing the respondent was still unable to confirm that it had received the emails that the applicant had located so he entered the witness box for a third time. He gave evidence about how he came to submit the email to the Department:[135]
I honestly can’t recall exactly what happened but I seem to recall that at the time when I lodged the application I contacted the Immigration Department as to the correct
…
I contacted the Department and obtained the correct email address to lodge the application and the email address that was given to me by the Department is the email address at the top of the four emails.
[135] Transcript of Proceedings, 28 August 2019, at 247 – 248.
The applicant confirmed that he specifically recalled contacting the Department on or about 6 October 2016 for the correct email address to use.[136]
[136] Ibid, at 248.
Counsel for the respondent noted that this conflicted with his specific recollection from a few days earlier when he specifically recalled sending the document in by registered post.[137]
[137] Ibid
The applicant was asked to confirm that he would not have deleted an email that he received from the department indicating that an application by email had been received. He replied that he probably would have deleted it.[138]
[138] Ibid, at 257.
By the end of the evidence on the third day, the evidence on whether the applications had been submitted remained inconclusive (given the obvious unreliability of the applicant’s evidence and the inability of the respondent to verify receipt of any application). A further hearing date was arranged to allow for a forensic examination of the applicant’s hard drive to consider the genuineness of the emails and to allow the respondent to finalise its searches of its records to determine if it had any record of the application being submitted.
The applicant was directed to file by 9 September 2019 a document setting out any admissions in relation to breaches of the Code of Conduct which he wished to make in light of what had been revealed in the proceedings.
In the time between the end of the first hearing and the resumption on 21 October 2019 there were a number of developments.
On 4 September 2019, the respondent lodged a witness statement from Elizabeth Hepper who had undertaken fruitless searches for the application submitted on behalf of AK.[139]
[139] Exhibit R13.
On 9 September 2019, the applicant filed his admissions in relation to breaches of the Code of Conduct.[140] In relation to AK the only admission of breach was a failure to enter into an agreement in writing being an Agreement for Fees and Services which was a breach of Clauses 5.2, 5.4 and 5.5 of the Code. No other breaches were admitted despite the fact that in his evidence, the applicant made specific admissions in respect of breaches of clause 2.8.[141]
[140] Exhibit A4.
[141] Transcript of Proceedings, 26 August 2019, at 107.
On 1 October 2019, the respondent filed its submissions. Annexed to the submissions was a copy of an email which the respondent had located since the filing of the affidavit of Ms Hepper.[142] The email established that the Department had indeed received, by email, the applications sent by the applicant around 1pm on 6 October 2016 to which it had immediately responded advising that the email used was not the proper means for submitting the applications.[143]
[142] Exhibit R10.
[143] Exhibit R10.
This discovery was apparently made after the applicant asked the respondent to undertake a search of its server logs. When the hearing resumed the applicant gave evidence that he did not recall receiving the email in response to AK’s application. The applicant also confirmed that he did recall ringing the Department and asking for the email address to lodge the application but he did not recall posting the application.
On 23 October 2019, after the hearing had concluded, the applicant filed a statement that after the hearing he interrogated his hard drive to determine if he received the email from the Department. As a result of that search he concluded ‘I did not receive that document’.[144]
[144] Exhibit A3.
On 30 October 2019, the respondent filed a statement from a Department of Home Affairs employee who had the skills to interrogate the internet gateway. The result of the investigation was that the email which notified the applicant that the email was not an acceptable form of lodgement for a SHEV application ‘transited the Department gateway and that the message was successfully delivered outbound at 2:13:02 (GMT)(1:13 AEST).’[145]
[145] Exhibit R11.

I am satisfied that these deficiencies justify a finding that the applicant failed to respond properly to the Authority in breach of clause 9.3 of the Code. In short the response given was misleading, not in the proper form and failed to include requested material.
COMPLAINT BY HD
HD is a citizen of Iran. He was an applicant for a protection visa. His claim was originally rejected by the Minister’s delegate and the AAT. He appealed successfully to the Federal Circuit Court and the matter was remitted to be re-heard by the AAT. The applicant acted for him at the hearing.
The matter was listed before Member Giles Short who conducted a hearing in relation to the application on 1 September 2016.[254] The hearing once again involved significant friction between the applicant and Member Short. Early on the applicant asked Member Short to recuse himself on the ground of apprehended bias. This was declined and the hearing proceeded for a time. The applicant occasionally interrupted telling the Member that his client would not answer a particular question, but his client answered each question nonetheless. Eventually the applicant instructed his client not to answer a question. Member Short asked him whether he knew this was a criminal offence. The applicant denied that it was and continued to take steps to prevent his client answering any further questions by claiming that his client would not answer each question on the basis that the answers may incriminate him. At the time, the applicant claimed to be doing so based on instructions, but there is no evidence on the transcript of him ever receiving instructions from his client during the hearing or adjourning to take instructions on the questions being asked.[255]
[254] T2, folio 94 – 107.
[255] T2, folio 103.
Eventually the applicant and his client brought the hearing to an end by leaving the hearing room.
On 30 November 2016, the AAT affirmed the decision not to grant HD a Protection Visa.
On 20 January 2017, the head of the Migration and Refugee Division of the AAT, Jan Redfern, wrote to OMARA raising concerns in relation to the applicant’s conduct and querying whether the applicant may have breached clause 2.1 of the Code which requires an agent to act in accordance with the law and deal with his client competently, diligently and fairly.[256]
[256] T9, folio 240.
On 19 June 2017, OMARA issued a Notice pursuant to section 308 of the Act in relation to HD.[257] OMARA sought answers to the following questions in the form of a statutory declaration:
(a)please outline the advice you gave to your client about the consequences of failing to answer a question asked by the Tribunal member;
(b)please outline the advice you gave to your client about the consequences of leaving a Tribunal hearing before that hearing had concluded;
(c)please comment on the Tribunal Member’s comment at paragraph 65 of the decision record that you ‘physically manhandled the applicant out of the hearing room’;
(d)in reference to paragraph 66 of the decision record, given the applicant’s friend was communicating with the Tribunal directly, did the applicant terminate your services; and
(e)if your services were terminated please explain the reasons given by the applicant for the termination.
[257] T10, folio 242 – 243.
OMARA also sought a copy of HD’s full client file including all correspondence with the AAT on HD’s behalf. A response was required by no later than 18 July 2017.
On 19 June 2017, the applicant spoke to the Minister’s delegate. He stated that his view was that he did act in his client’s interest and re-stated his view that the AAT member was biased. [258]
[258] T12, folio 286.
He responded late to the section 308 Notice on 24 July 2017.
He responded by letter rather than by statutory declaration.[259] In relation to his instructions from HD he stated:[260]
…I indicated to Mr Short that my client would not be answering any more irrelevant questions., This was something that was agreed prior between the parties prior to the hearing. Both of my clients acknowledged that this is what was going to happen if in fact they were asked irrelevant questions. It was their decision and not mine as to how they conducted themselves at the hearing.
[259] T13, folio 287 – 290.
[260] Ibid, folio 289.
The statement: ‘both of my clients’ refers to HD and BS, both of whom had hearings which were the subject of AAT complaint.
No file was provided to OMARA. An explanation for the failure to do so is provided in the letter but it is unclear whether the explanation in the letter relates to BS’s file or HD’s. From context, it appears that no explanation is offered in relation to HD’s file. The letter itself is confusing as in many parts it is unclear whether the applicant is responding to issues raised in relation to HD or BS or both.
On 31 July 2018, OMARA sent out a section 309 Notice identifying potential adverse findings in relation to the applicant. [261]
[261] T3, folio 114 – 118.
On 12 October 2018, the Minister’s delegate decided that the applicant had breached Clauses 2.1, 2.4, 2.8, 2.15, 2.23, 6.1, 9.1 and 9.3 of the Code.[262]
[262] T2, folio 32 – 41.
Application to the Tribunal
On 27 October 2018, the applicant filed an application for review in the Tribunal.
The applicant’s position at hearing was that his conduct during the hearing in relation to HD was appropriate and that he was acting in accordance with his instructions which he had been given before the hearing commenced.[263]
[263] See T2, folio 99 and 103.
The applicant formally admitted to breaching clauses 5.2, 5.4 and 5.5 of the Code in relation to HD on 9 September 2019.
The respondent urged the following additional findings in relation to the applicant’s conduct of HD’s matter.
The applicant breached clause 2.8 (no written confirmation of instructions) by persistently interjecting and indicating that HD did not want to answer certain questions. This breach was pressed on the basis that the applicant could not, without an adjournment have instructions that HD did not want to answer questions he had not yet heard.
That the applicant’s conduct of HD’s case generally involved breaches of Clauses 2.1, 2.4, 2.23 and demonstrated that the applicant was not a fit and proper person.
Findings of breaches of these provisions were urged on the basis that:
(a)the applicant’s conduct of the case was affected by his fundamental misunderstanding of the relevance of a review applicant’s credibility in a review;
(b)the applicant’s strategic approach with respect to HD was extremely risky and was not in HD’s best interests. The applicant’s conduct – both in seeking to prevent HD from answering questions and in departing the hearing early – meant that he exposed HD to the likelihood that the AAT’s concerns as to whether he met the criteria for a protection visa would remain unanswered; and
(c)even if someone in the applicant’s position might advise his client about his right to claim the privilege against self-incrimination in respect of certain questions, the privilege was for HD to claim and clearly, whether the privilege was claimable, and whether HD wished to claim it, was dependent on the particular question asked. The applicant could not assert that his client ‘must not answer the questions’ generally.
That the applicant breached record-keeping provisions clauses 6.1 and 6.1A because he did not maintain proper records by keeping copies of relevant documents relating to HD’s case. This is evidenced by the Minister’s delegate requesting the file[264] and the applicant failing to respond to that request.[265]
[264] T10, folio 243.
[265] T13, folio 288.
That the applicant breached clauses 6.3 and 9.3 of the Code by failing to respond within a reasonable time and/or respond properly to the Minister’s delegate’s request for information.
The respondent did not press the breaches found by the Minister’s delegate in relation to clauses 9.1 or 2.15 so I have not considered those.
The applicant’s submission in response to the respondent’s submission was as follows:
The complaint of the Respondent turns on the conduct of the applicant during proceedings before the same Member that heard the [BS] matter. The 2 cases had in common the application for the recusal of the Member and a refusal to answer irrelevant questions.
The conduct of the Applicant was combative and insistent and no doubt challenging to the Member and was made in support of the Applicant for the review. It did not constitute a traversal of Code of Conduct obligations.[266]
[266] Applicant’s Written Outline of Submissions filed on 10 October 2019, at 9.
There was no substantive response to the alleged breaches relating to record keeping or the inadequacy of the response to the Minister’s delegate in the closing submissions. However I note that the applicant claimed in his reply to the respondent’s Statement of Facts, Issues and Contentions,[267] that the failure to provide a copy of the client file was reasonable in the circumstances as the file had already left the Applicant’s possession.[268]
[267] Filed by the Applicant on 16 July 2019.
[268] Applicant’s Reply to Respondent’s Statement of Facts, Issues and Contentions filed on 16 July 2019, at [7.e.].
Assessment
My findings are as follows.
Clause 2.8 – Failure to act in accordance with instructions
I am not satisfied that this breach is made out. The respondent’s concern in pressing for a finding of a breach of this clause is that the applicant acted without instructions. The relevant transcript includes the applicant stating in front of his client ‘the applicant has instructed me he’s not answering these questions’.[269] In those circumstances I am not satisfied that the applicant’s approach to the hearing was adopted without instructions.
Clause 2.1, 2.4 and 2.23 – The applicant’s conduct of the case
[269] T2, folio 103 line 518.
The applicant’s conduct of the case for HD was, in my assessment, affected by his view that the AAT was not entitled to ask questions which went to the review applicant’s credit as opposed to whether or not he satisfied the statutory criteria for the grant of a protection visa. So much is clear from the transcript of the hearing,[270] his response to OMARA[271] and his evidence before the Tribunal.[272] It is equally clear that the applicant is wrong as a matter of law in his understanding of the issue,[273] and that he has had numerous opportunities to gain a proper understanding of the law.[274] As a consequence when he acted on the basis that his client was not required to answer questions going to credit in the hearing,[275] he was not acting in accordance with the law and was not dealing with his client competently. He therefore breached clause 2.1 of Code.
[270] T2, folio 103 line 515-520.
[271] T13, folio 288 – 289.
[272] See for example Transcript of Proceedings, 26 August 2019, at 30.
[273] See paragraph [‎250] above.
[274] SZUSH v Minister for Immigration and Border Protection; CZBO v Minister for Immigration and Border Protection [2016] HCATrans 112 (An application for leave to appeal from this decision was dismissed on 16 November 2016); see CZBO v Minister for Immigration and Border Protection & Ors [2016] HCASL 297.
[275] Which I infer was the advice which he says he gave his clients and led to them agreeing prior to the hearing to leave if ‘irrelevant questions’ were asked – T13, folio 289.
The applicant also had an unsatisfactory level of knowledge of the procedural consequences of the applicant attending the hearing and taking the oath to give truthful evidence.
I am satisfied that once HD appeared and was sworn he was obliged to answer any questions the AAT posed, subject to very limited exceptions such as the privilege against self-incrimination.[276] Further, the conduct of the hearing was within the control of the Member. HD was not at liberty to terminate the questioning and leave the hearing. The applicant’s attempts to take control of the hearing and then terminate it involved a fundamental misunderstanding of the rights of his client and his own role in the process. On this basis, I am satisfied that the applicant breached clause 2.1 of the Code failing both to act in accordance with the law and failing to deal with his client competently. If his strategy required that the review applicant should not be exposed to questioning and the attendant risk that he may give answers inconsistent with answers previously given, then the execution of such a strategy required him to advise his client not to attend the hearing or to refuse to agree to become a witness in the absence of a summons.
[276] That is the most obvious basis for lawfully refusing to answer a question but other bases would include legal professional privilege or public interest immunity.
For completeness, I note that a competent and diligent migration agent may well form the view that their client may reduce the likelihood of a protection visa being granted by giving inconsistent answers to questions asked by a member of the AAT and on that basis advise their client not to attend a hearing, or to attend the hearing on the basis that they will not be giving evidence in the absence of a summons. There are however, obvious risks in giving that advice in circumstances where a member, who can make a favourable decision without proceeding to a hearing, has chosen not to make a favourable decision and list the matter for a hearing.
In relation to the respondent’s submission that the applicant was not entitled to simply make a blanket claim that his client was not going to answer questions, I accept that submission. By advising the AAT that his client ‘refuses to answer these questions on the grounds it may incriminate him’,[277] the applicant demonstrated that he did not understand the scope of his client’s right to claim the privilege and how that should be done. His encouragement to his client to take such an approach meant that he did not deal with him competently.
[277] See for example T2, folio 103 line 560.
Generally speaking, raising a risk of self-incrimination will not be a basis for excusing a witness entirely.[278] There have been cases where the lines of questioning proposed so self-evidently carry a risk of self-incrimination that attendance of the witness has been dispensed with.[279] I am satisfied that it was not clear at the point at which the applicant decided to bring an end to the questioning by leaving the hearing room with his client, that there were no relevant questions which the Member could ask which did not attract the privilege against self-incrimination. The applicant’s client, having commenced his evidence, was obliged to continue to answer questions or make privilege claims. There was no right of election on the part of the applicant or his client to choose to stop answering questions and bring the hearing to a close.
[278] C v National Crime Authority (1987) 78 ALR 338 at 342.
[279] See R v The Coroner; Ex Parte Alexander [1982] VR 731.
The failure of the applicant to appreciate this, resulting in the improper termination of the hearing amounts to a failure to deal with his client competently. I am satisfied that the applicant breached clause 2.1 of the Code.
As these findings deal with the conduct of concern, I do not consider it necessary to consider whether the applicant also breached clauses 2.4 or 2.23 of the Code.
Clause 6.1 and 6.1A – Failure to keep proper records
The respondent contends that the applicant did not comply with clause 6.1 because he did not maintain proper records.
I accept that submission.
Clause 6.1 provides that the migration agent must maintain proper records that can be made available for inspection on request by the Authority including a copy of each client’s application.
OMARA issued a section 308 Notice requiring the applicant to provide his full client file in relation to HD.[280] No file was ever provided. The Minister’s delegate found a breach of clause 6.1 on the basis that the applicant produced no file in response to the section 308 Notice.[281]
[280] T10, folio 243.
[281] T2, folio 41.
Given that the applicant failed to produce a file in response to a compulsory notice, I am satisfied that the applicant did not maintain a file in relation to HD that could be made available for inspection on request by the Authority. This constitutes a breach of clauses 6.1 and 6.1A of the Code.
Clause 6.3 – Failure to respond to the Authority within reasonable time specified
I am further satisfied that by responding late and incompletely, as identified at paragraph [‎298] – [‎301] above, to OMARA’s section 308 Notice, the applicant also breached clause 6.3 of the Code (as the time frame specified in the notice was reasonable).
Clause 9.3 – Failure to respond properly to the Authority
I am further satisfied that by failing to address himself to the questions which OMARA asked in the section 308 Notice and failing to state clearly which part of his response related to this complaint and the complaint of BS, the applicant breached clause 9.3 of the Code.
Clause 5.2, 5.4 & 5.5 – Failure to enter into a written Agreement for Services and Fees
The respondent also contends that the applicant breached clauses 5.2 and 5.5 of the Code as a result of his failure to enter into a written Agreement for Services and Fees with HD. The applicant formally admitted to breaching clauses 5.2, 5.4 and 5.5 of the Code in relation to HD on 9 September 2019.
On that basis I am satisfied he breached those provisions of the Code.
PERSON OF INTEGRITY OR FIT AND PROPER PERSON
Section 303 of the Act permits the Authority to cancel the registration of a registered migration agent, suspend the registration or caution the agent if it becomes satisfied that the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance. If either description applies to the applicant, then the Tribunal can impose a disciplinary sanction.[282]
[282] Haque v Migration Agents Registration Authority [2016] FCA 1249 at [28].
Unlike the situation when considering breaches of the Code, the Tribunal can take into account matters which have arisen since the applicant’s registration was cancelled.[283]
[283] Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [146] and [149] (noting that Keifel J was in dissent but not on this point) and per Kirby J at [49] and [50].
The concept of ‘integrity’ essentially means ‘soundness of moral principle and character, uprightness, honesty’.[284]
[284] Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558 at [22]; Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12 at [26].
The High Court explained the concept of ‘fit and proper’ in Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 as follows:
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 rejection. “Fit’ (or idoneous’) 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
In Shi v Migration Agents Registration Authority, Keifel J explained:[285]
The topic with which s 303(1)(f) is concerned is not…one which identifies particular conduct, as is the case with respect to breaches of the Code of Conduct. The inquiry posed by the paragraph is a general one, and it may be considered by the Tribunal in that way. It does not limit an assessment of an agent’s integrity and fitness to what has been conveyed by any breaches. There is no reason why the Tribunal’s view should not extend to any information which sheds light upon the presence or absence of the necessary characteristics in the migration agent.
[285] (2008) 235 CLR 286 at [149].

Accordingly, to assess whether the applicant is a person of integrity or is otherwise not a fit and proper person to give immigration assistance I will consider whether the applicant is honest, has sufficient knowledge relevant to the work of a migration agent, and the ability to perform the duties of a migration agent.
Honesty
As should be apparent from my earlier findings in relation to breaches of the Code in respect of each complainant, I am not satisfied that the applicant is honest. Indeed, I am positively satisfied that, on a number of occasions, he has been deliberately dishonest.
Those occasions were:
(a)When the applicant told Ms Fraser that the reason Mr Zarandi could not apply to the AAT for review of the decision to refuse the Parents a tourist visa was that there had been a recent rule change which prevented such an appeal.[286]
(b)When he spoke to the Minister’s delegate within OMARA and told her that there were no further documents which Mr Zarandi did not have.
(c)When he emailed the Minister’s delegate stating that Mr Zarandi had not paid all of his fees.
(d)When he emailed the Minister’s delegate stating that he had given Mr Zarandi all of the papers in relation to his claim.
(e)When he emailed the Minister’s delegate saying that he had ‘never said [Mr Zarandi] could seek review in the AAT’.
(f)When he gave evidence to the Tribunal to the effect that he had never advised that an application could be made to the AAT.[287]
[286] The applicant denied this in his evidence and identifies it as a question for the Tribunal to resolve on page 8 of his written closing submissions.
[287] See findings at paragraph [‎‎68] above.
In addition to the statements set out above, the applicant said a number of things, particularly in his time in the witness box, which turned out to be untrue. For example he claimed in his evidence not to have been engaged to prepare and submit a tourist visa application for Mr Zarandi’s parents only to concede later that he had.[288] He also claimed that he had a clear recollection of sending AK’s SHEV application by registered post only to concede later that he had sent it by email.[289]
[288] Transcript of Proceedings, 26 and 27 August 2019, at 38-39 then 124.
[289] Transcript of Proceedings, 26 and 27 August 2019, at 101 then 127.
In cases of that kind I have given the applicant the benefit of the doubt and proceeded on the basis that he was confused rather than dishonest. The findings in paragraph [‎341] are in a different category. The statements were not merely untrue, I am satisfied that the applicant knew they were untrue at the time he made them. In making those findings I am conscious that my findings should be made on the balance of probabilities having regard to the principle articulated in Briginshaw v Briginshaw.[290]
[290] [1938] HCA 34 per Dixon J; See Amin v Migration Agents Registration Authority [2005] AATA 257 at [13] – [14].
These findings of deliberate dishonesty are sufficient to justify a finding that the applicant is not a person of integrity.
In the absence of any other adverse findings, these findings satisfy me that the applicant’s registration should be cancelled.
In addition, the applicant’s financial dealings with his clients provide another basis for a finding that he is not honest and lacks integrity. Under section 313 of the Act, a migration agent is not entitled to be paid a fee unless a statement of service consistent with the Agreement for Services and Fees entered into has been given to the client. The applicant admits that he did not have Agreements for Services with any of the four clients considered in this decision. Despite this he charged his clients for his services and in one case (the case of BS) threatened proceedings for non-payment.[291] Such behaviour lacks integrity and does not meet the standards of honesty that can reasonably be expected of a migration agent.
[291] See findings at [‎204].
Knowledge
I am also satisfied that the applicant does not have the knowledge to know what he ought to do as a migration agent.
Notwithstanding that the relevant legal principles have been explained to him in High Court decisions in matters in which he appeared, the applicant maintains and acts on an idiosyncratic view that in most cases an applicant’s credit will not be relevant to proceedings in the Migration and Refugee Division of the AAT.[292]
[292] See Transcript of Proceedings, 26 August 2019, commencing at 68 and following and at 80 where the applicant conceded that, if he were to continue to practice as a migration agent, he would continue to make strategic decisions and give strategic advice to his clients based on these views.
In addition, he does not seem to have sufficient knowledge (or perhaps ability) to discern what questions are relevant to his client’s cases. In the case of BS, when Member Short was asking questions which were clearly directly relevant to the basis on which BS’s visa had been cancelled, the applicant repeatedly interrupted insisting that the questions were irrelevant.[293]
[293] See findings at [‎198].
The applicant also has no appreciation of the limited role that a representative has when a hearing under Part 7 of the Act is being conducted.[294]
[294] See findings at [‎258] to [‎‎265].
The gaps in the applicant’s understanding of the legal principles which apply to the conduct of reviews makes it inappropriate for him to continue to be registered as a migration agent.
Ability
The applicant also lacks the ability to conduct his migration practice in the manner required by the Code.
As he now concedes, on multiple occasions he did not enter into the agreements that are a necessary pre-requisite for him to charge for his services.[295]
[295] Exhibit A4.
He also conducts his practice in a thoroughly unprofessional way to the point where his clients’ interests are seriously compromised. I am satisfied that the applicant’s file keeping practices are seriously deficient and do not comply with the requirements of the Code. Despite issuing four section 308 Notices,[296] OMARA never received a copy of a client file. Worse still, the applicant queries why he would even keep a copy of a former client’s file.[297] In doing so he demonstrates an ignorance of the Code and an absence of even a basic ability to provide a professional service. This conduct demonstrates that he is unfit to act as an agent on behalf of anyone.
[296] T10, folio 242 – 243; T21, folio 395 – 398; T24, folio 427 – 429 (including a follow up email by OMARA on 5 March 2018 at T25, folio 434 – 435); T31, folio 460 – 462.
[297] See findings at [‎231].
Conclusion
Given these matters, I am satisfied that the applicant is not a fit and proper person to give immigration assistance. I am equally satisfied he is not a person of integrity.
SANCTION
As should be obvious, given the range of breaches of the Code and my finding that the applicant is not a fit and proper person and lacks integrity, the proper sanction is to cancel the registration of the applicant and remove his name from the register.
His breaches are so serious and so fundamental to operating in a sound manner as a migration agent that any lesser sanction would not be appropriate. I accept the respondent’s submission that the applicant has demonstrated little insight into his conduct and would continue to pose a threat to vulnerable clients into the future. I also accept that given he has given evidence that he would continue to act on a fundamentally misconceived understanding about the relevance of certain types of questions, and has shown no contrition in relation to:
(a)his failure to comply with the Code requirements concerning fee agreements;
(b)his failure to keep proper records; or
(c)to respond appropriately to OMARA’s statutory notices,
the sanction consistent with the protective purpose of the scheme is to affirm the decision to cancel the applicant’s registration.

I certify that the preceding 357 (three hundred and fifty seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D O’Donovan.

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Associate
Dated: 28 September 2020

Date(s) of hearing: 26 – 28 August 2019; 21 October 2019

Solicitor for the Applicant:

Solicitor for Respondent:

Counsel for the Respondent:

Mr Christopher Levingston, Christopher Levingston and Associates

Ms Laura Crick, Clayton Utz

Mr Nick Wood