Gao and Migration Agents Registration Authority (Migration)

Gao and Migration Agents Registration Authority (Migration) [2020] AATA 258 (21 February 2020)
Division:GENERAL DIVISION
File Number: 2019/0168
Re:Lanshan Gao
APPLICANT

AndMigration Agents Registration Authority
RESPONDENT

DECISION
Tribunal:Senior Member M Griffin, QC
Date:21 February 2020
Place:Sydney

The reviewable decision is affirmed.
..............................[sgd]..........................................
Senior Member M Griffin, QC
CATCHWORDS
MIGRATION AGENTS REGISTRATION – cancellation of applicant’s registration as a migration agent – alleged breaches of the Code of Conduct – whether Applicant was a fit and proper person to give immigration assistance – what sanction is appropriate - decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 286, 287, 289, 303, 305C, 309, 314
Migration Agent Regulations 1998 (Cth)
CASES
Kraues v Migration Agents Registration Authority [2018] FCA 664
Issa and Migration Agents Registration Authority [2017] AATA 1110
Stolar and Migration Agents Registration Authority (2007) 95 ALD 437
REASONS FOR DECISION
Senior Member M Griffin, QC
21 February 2020

The Applicant seeks review of a decision of the Office of the Respondent (Authority), dated 14 December 2018, to cancel his registration as a migration agent pursuant to s.303(1)(a) of the Migration Act 1958 (Cth) (Act).
The Authority’s decision to cancel the Applicant’s registration was made on the basis of its findings that he had engaged in conduct in breach of his professional obligations, as reflected in the Code of Conduct for Registered Migration Agents (Code).
The Authority contends that the decision to cancel the Applicant’s registration is the correct and preferable decision.
BACKGROUND
The Applicant was first registered as a migration agent on 9 July 2004.The Authority’s decision records that the Applicant’s registration had been renewed annually since that time. His most recent application for renewal was lodged on 4 July 2018 and at the time of the Authority’s decision, that application remained pending.
On 24 January 2017, the Authority commenced a complaint of its own motion under s.303 of the Act against the Applicant in relation to the advice that he had provided to five people who had unsuccessfully applied for protection visas. In its decision, the Authority records that as a result of patterns in the migration advice provided by the Applicant, the Authority expanded its review of the advice given by the Applicant in protection visa applications (T2/22 at [75]).
On 4 May 2018, the Authority received a complaint from one of the Applicant’s former clients in which she alleged:
(a)She had paid $3,231 to the Applicant for his assistance with respect to the refusal of her Child (Residence – subclass 802) visa application.
(b)Her complaint alleges that the Applicant did not notify the client about her hearing before the Tribunal, despite her having asked him when the hearing was scheduled. Her application for review was subsequently dismissed as a result of her failure to attend her scheduled hearing.
(c)When she spoke to the agent about this, he suggested that she should file false medical evidence, which she refused to do. The Applicant denies this occurred.
(d)The client spoke to the Tribunal, which indicated that it had sent the details of her hearing to the Applicant.
On 4 June 2018, the Authority sent the Applicant a notice pursuant to s.309 of the Act, which advised him that the Authority was considering cautioning him or suspending/cancelling his registration, and invited him to make submissions on a number of alleged breaches of the Code. At the same time, pursuant to s.305C of the Act, the Authority requested that the Applicant provide his full client files in relation to nine visa Applicants.
On 9 July 2018, the Applicant responded to the notices issued pursuant to ss.305C and 309 of the Act, providing his client files and disputing the allegations made against him. The Applicant filed further material with the Tribunal for the hearing, again disputing all allegations, as well as written submissions provided after the hearing before the Tribunal.
LEGISLATIVE FRAMEWORK
The regulatory framework governing the conduct of registered migration agents is comprised of Part 3 of the Act, as well as the Migration Agent Regulations 1998 (Cth) (Regulations). Section 314 of the Act and reg 8 of the Regulations have the effect that registered migration agents are subject to a code of conduct.
The Authority is the body responsible for the registration and regulation of individuals giving migration advice in Australia: ss.286-289 and Division 6 of Part 3 of the Act. The Authority’s functions include the power to discipline registered migration agents: s.303 of the Act.
Pursuant to s.303 of the Act, the Authority is empowered to suspend or cancel the registration of a registered migration agent, or to caution an agent, if satisfied that the agent, relevantly, is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance, or has not complied with the Code: ss.303(1)(f) and (h) of the Act.
The Code does not list exhaustively the acts and omissions that may fall short of what is expected of a competent and responsible migration agent. However, the Code imposes on a registered migration agent the overriding duty to act at all times in the lawful interests of the agent’s client. Any conduct falling short of that requirement may make the agent liable to cancellation of registration: clauses 1.11 and 1.12 of the Code.
It is not necessary for there to be a complaint by an agent’s client before the Authority may consider whether to take action under s.303 of the Act: Kraues v Migration Agents Registration Authority [2018] FCA 664 at [18].
The purpose of the disciplinary powers conferred by s.303 in the Act is protection of the public and not punishment as such: Kraues.
Pursuant to s.306 of the Act and s.43 of the Administrative Appeals Tribunal Act 1975 (Cth), an application for review of a decision by the Authority in respect of a registered migration agent, such as a decision to discipline an agent, may be made to the Tribunal.
In determining whether to exercise the power to prohibit a person from engaging in practice, and the duration of any such prohibition, the decision-maker will have regard to what protection of the public reasonably requires. This is often gauged by measure of the person’s fitness and propriety to engage in practice.
The other matters to which the Tribunal should have regard in determining whether the Applicant is fit to practise as a migration agent are:
(a)whether the Applicant is honest; and
(b)the Applicant’s knowledge of the migration scheme and ability to fulfil the position of a migration agent.
ISSUES
The Respondent submits that the issues to be determined by the Tribunal pursuant to s.303(1)(f) and (h) of the Act are:
(c)whether each of the alleged breaches of the Code is made out;  
(d)whether these breaches, if established:
(i)demonstrate that the Applicant is not a fit and proper person to give migration assistance; and/or
(ii)in and of themselves, are sufficient that a sanction is appropriate; and  
(e)having regard to the above, the appropriate sanction to be imposed upon the Applicant.
THE RESPONDENT’S SPECIFIC SUBMISSIONS
Section 303(1)(h) – ‘the agent has not complied with the Code of Conduct prescribed under section 314’
For the purpose of s.303(1)(h) of the Act, it does not matter how many clauses of the Code are breached. What is important is that there is a failure to comply with the Code. Once the Tribunal is satisfied that there has been such a failure, the disciplinary power is enlivened: Stolar and Migration Agents Registration Authority (2007) 95 ALD 437 at [63]. That power is exercised by reference to the nature of the underlying conduct and the extent to which, by reference to that conduct, the Applicant’s conduct fell below the standard expected.
The Respondent submits that the Applicant in the present case has breached multiple clauses of the Code.
The relevant clauses are:
·Clause 2.17 is in the following terms:
“If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) a registered migration agent:
(a)must not encourage the client to lodge the application; and
(b)must advise the client in writing that, in the agent's opinion, the application is vexatious or grossly unfounded; and
(c)if the client still wishes to lodge the application--must obtain written acknowledgment from the client of the advice given under paragraph (b).”  
·Clause 6.1 is in the following relevant terms:
“A registered migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing:
(a)a copy of each client's application; and 
(b)copies of each written communication between
(i) the client and the agent; and
(c)file notes of every substantive or material oral communication between:
(i) the client and the agent; and”
……..
It is not disputed that the Applicant provided four of his clients with a document in Mandarin in which he advised them of the lack of prospects of their visa applications.
The Authority reproduced a translation of this document provided by a NAATI-accredited interpreter:
“Dear [name of client]
With regards to your refugee application my advice is as follows:
1. Your refugee application will not be successful, and I hope the Applicant can understand this clearly.
2. Of course, you have the right to apply, and the Department of Immigration will accept your application as per normal, but the results will definitely be a rejection of your visa application.
3. Pertaining to your enquiries about work rights, in the process of your application, you will receive a bridging visa, and can also have work rights.
 4. I can put in your application on your behalf, as well as provide form filling and translation services.
 5. If you require help with applying for a Tax File Number and Medicare card, I am willing to offer my assistance.
6. Attached is your refugee form and statement, and I will check its contents with you in Mandarin.
Please confirm that there are no errors and sign.”
The Respondent argues that, apparent from the terms of the above document, the Applicant was cognisant of the vexatious and grossly unfounded nature of his clients’ visa applications. However, notwithstanding the absence of prospects, the migration prospects document did not discourage the lodging of the application. The close proximity of the reference to the possibility of maintaining work rights and obtaining a Medicare card whilst the visa applications were being considered should be seen as a direct inducement to proceed with the visa applications.
In his statement to the Tribunal dated 10 May 2019, the Applicant does not deny the terms of the migration prospects document breached Clause 2.17. Instead, the Applicant contended that:
(f)Even a better document that complied with Clause 2.17 would not have dissuaded his clients from lodging their applications.
(g)He did not encourage clients to apply for protections visas.
(h)The problem is with the visa scheme, which encourages non-genuine applications. It was not for a migration agent to “stand in the shoes of a Minister’s delegate to judge a client.” 
In evidence before the Tribunal, the Applicant said that he believed that the clients to whom he provided the requisite “prospects document” were making a pretence of the refugee application and that the real motivation was to obtain a bridging Visa with requisite rights to work and the receipt of Medicare benefits.
The Applicant said further that, in effect, if he (the Applicant) did not make the application sought by his clients then those clients would have resort to another agent and would make the same application.
The Applicant explained his position and defended his behaviour on the basis that he had complied “to the letter” with clause 2.17.
Although the Tribunal does not find that the Applicant was deliberately deceitful or fraudulent in any of his behaviour, in this aspect of the Applicant’s conduct, the Tribunal finds that the Applicant was perfectly disingenuous and the explanation of his behaviour in evidence, the Tribunal concludes, supports this finding.
Although the “prospects document” was, in its terms, superficially appropriate in its wording, and in compliance with clause 2.17, the use to which the document was put by the Applicant on behalf of his clients, (of which there were four) was contrary to the Applicant’s fundamental obligations under the code. This, the Tribunal finds, is a clear breach of clause 2.17.
The Tribunal finds that in respect of the breaches of clause 2.17, the Tribunal is comfortably satisfied, on all the evidence, that the Applicant has breached this clause.
Furthermore, the Applicant has not provided to the Authority or the Tribunal any evidence of communication between himself and his clients. The Applicant said that the Applicant’s colleagues would read the information back to clients face-to-face, who would then confirm and sign the information. Thus, in the absence of any records showing these discussions, the Tribunal finds that the Applicant has breached Clause 6.1.
Clause 2.9 – manufacture of claims
Clause 2.9 requires that an agent “must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.” 
The Respondent’s submission was that a number of the Applicant’s clients were unable to recall basic details of their visa applications or claims for protection, which led the Tribunal in those cases to draw adverse credibility findings.
In relation to one specific client, the Respondent places weight on the Applicant’s inability to recall basic details of his claims for protection or his claimed circumstances, such as his residential and employment history. In relation to another client, the Respondent argues that the client had only a superficial involvement with his visa application and “did not make the claims” contained therein.
The conclusion sought by the Respondent to be drawn by the Tribunal is that the clients’ failure to be able to remember such basic details of their applications and the absence of any rebutting evidence from the Applicant to show the instructions he received, lead to the clear inference that the Applicant assisted in the making of misleading or inaccurate statements in contravention of Clause 2.9.
It is, of course, permissible to draw reasonable inferences from proven facts. This proposition is not contentious. However, none of the clients in relation to this aspect of the matter were called to give evidence, including those referred to above.
In the Tribunal’s view, it is not possible either to find evidence and/or draw inferences that the Applicant was responsible for making or encouraging the making of false or misleading statements in contravention of clause 2.9.
This allegation, in the Tribunal’s view, has not been proven.
Clause 2.23 – reasonable steps to maintain the reputation and integrity of the migration advice profession
Clause 2.23 states:
A registered migration agent must take all reasonable steps to maintain the reputation and integrity of the migration advice profession.  
The Respondent argues that taken as a whole, the Applicant’s conduct towards the Department, the Authority and his clients undermines the reputation and integrity of the migration advice profession.  
It is argued that the Applicant’s conduct in allowing his clients’ applications to proceed to be refused without taking steps to address the decision-maker’s concerns or otherwise provide additional evidence supports a finding that the Applicant failed to take all reasonable steps to maintain the reputation and integrity of the migration advice profession.  
The evidence discloses that the Applicant acted for a significant number of clients where, after lodging the visa application, the Applicant took no (or minimal) part in their visa application and/or review by the Tribunal. For example, the Applicant lodged an application for review by the Tribunal of an initial decision to refuse a visa but then neither the client nor the Applicant attended the Tribunal hearing, and no additional evidence was lodged.
The Respondent correctly submits that the Applicant has provided no documentary evidence to indicate that the client had been informed of their ability to submit further evidence to the Tribunal or indeed, attend the Tribunal hearing. The client was effectively denied a meaningful opportunity to be heard because their ability to provide further evidence was hindered by the Applicant’s inaction.
The Applicant has been registered as a migration agent since 2004 and is experienced in the profession. The Applicant had a responsibility to attempt to ensure that his clients attended their hearings. Whilst in some places the Applicant disavows responsibility for ensuring his clients attended their hearings, citing inter alia personal pressures and ill-health of a family member, elsewhere he accepts that poor office management led him not to advise clients of their interview/hearing.
There are significant consequences for a visa Applicant failing to attend their hearing, and together with the protective object of the Code, this admission by the Applicant demonstrates, in the Tribunal’s opinion, that the Applicant has contravened Clause 2.23. There are a significant number of clients whose applications have been handled in this way. The Tribunal accepts that taking these failures by the Applicant to ensure that clients attended hearings, together with the serious conduct in relation to the migration “prospects documents”, the Applicant has failed to take all reasonable steps to maintain the integrity and reputation of the migration service.
Specifically, with respect to the “prospects documents”, the consequences of the Applicant’s conduct were particularly serious, in that, by manipulating the Visa system indirectly by the obtaining of bridging Visa is for his clients, whom the Applicant concluded were not properly eligible for refugee visas and became, nonetheless, able to obtain bridging Visas with the consequential imposition on Australian social resources causing a breakdown in the intention of the system, the promotion or use of the “loophole” of which the Applicant was aware. The Tribunal regards this conduct as particularly serious. The Applicant has seriously derogated his obligation to take all reasonable steps to maintain the reputation and integrity of the migration advice profession.
It is unnecessary, therefore, for the Tribunal to consider whether this breach also demonstrates a failure by the Applicant to deal with his clients “competently, diligently and fairly” as required by Clause 2.1.
Clause 5.1 – unreasonable fees charged
Clause 5.1 states:
There is no statutory scale of fees. However, a registered migration agent must set and charge a fee that is reasonable in the circumstances of the case.  
What is a reasonable fee will necessarily be determined by the particular circumstances of a case.
There is insufficient evidence before the Tribunal to make a finding against the Applicant in relation to this clause.
THE OPERATION OF THE ACT ON THE APPLICANT’S CONDUCT
Section 303(1)(f) – ‘the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance’
The Tribunal has concluded that the Applicant did not act fraudulently in the accepted sense in which the word is used.

Section 303(1)(f) of the Act uses phraseology that the “agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance”.
Some general propositions about this phraseology may be stated as follows:
·The criterion assumes a lack of integrity will preclude satisfaction of the agent’s relevant fitness.
·However, the concepts of integrity and fitness are closely related. Honesty, character and uprightness are relevant to both characterisations: Issa and Migration Agents Registration Authority [2017] AATA 1110 at [452].
·The characterisation of fitness and propriety depends on the person’s character, reputation and the quality of the contentious conduct.
·The characterisation may also depend on impressions about the degree of probability that the contentious conduct will be repeated.
There are a number of substantial identified breaches of the Code referred to above. The Tribunal is of the opinion that the Applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance for the purpose of s. 303(1)(f) of the Act.
Section 303 – Sanction
The Respondent argues that the Authority’s decision regarding the appropriate sanction is the correct or preferable sanction in the circumstances.
Whilst it is accepted that the object of the sanctions in s. 303 of the Act is not punitive, the Respondent submits that protection of the public requires the cancellation of the Applicant’s licence.
It is relevant to consider a variety of mitigating factors which the Applicant has urged upon the Tribunal. The Tribunal accepts that the Applicant is an agent of long-standing and hitherto his registration has been unblemished. The Tribunal considers this a significant factor. The Tribunal accepts that the Applicant was neither fraudulent nor did he deliberately misuse his position as a migration agent. The Tribunal is prepared to accept the evidence that during the time these matters occurred, the Applicant was operating under emotional and financial pressures, including the fact he had to deal with a sick family member. The intention of the Applicant in his conduct is a relevant consideration although it is noted that the Code or other legislation does not require proof of intention as an element of any particular breach. The Tribunal notes that in this regard, the Applicant’s evidence is that he is no longer working as a migration agent. This factor, the Tribunal concludes, should have limited mitigating bearing on the severity of the appropriate sanction.
CONCLUSION
Taking all those mitigating features into account, the Tribunal concludes that the seriousness of the Applicant’s conduct is such that cancellation of the Applicant’s licence is the correct and preferable decision.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin, QC

...............................[sgd].........................................
Associate
Dated: 21 February 2020

Date of hearing: 31 July 2019

Date final submissions received: 22 August 2019

Applicant: In person

Advocate for the Respondent: Mr T Hillyard

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 258

21 February 2020

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Statutory Construction

Intention

Date of hearing:	31 July 2019
Date final submissions received:	22 August 2019
Applicant:	In person
Advocate for the Respondent:	Mr T Hillyard
Solicitors for the Respondent:	Sparke Helmore Lawyers