Gao and Migration Agents Registration Authority (Migration) - [2020] AATA 258

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Gao and Migration Agents Registration Authority (Migration) [2020] AATA 258
Case: [2020] AATA 258
Decision Date: 21 February 2020

CaseChat Overview and Summary

This matter concerned an appeal by a registered migration agent against the Migration Agents Registration Authority's decision to cancel his registration. The Authority had initiated proceedings against the applicant following concerns arising from his advice to five clients who had unsuccessfully applied for protection visas, and a subsequent complaint from a former client regarding her child visa application. The applicant, registered since 2004, disputed the allegations.

The core legal issues before the Tribunal were whether the applicant had breached the Code of Conduct, specifically clause 2.23, by failing to take reasonable steps to maintain the reputation and integrity of the migration advice profession, and consequently, whether he was a fit and proper person to hold registration. The Tribunal was required to determine the appropriate sanction for any proven breaches.

The Tribunal found that the applicant had contravened clause 2.23 of the Code of Conduct. This finding was based on evidence demonstrating a pattern of inaction in managing client applications, including failing to ensure clients attended tribunal hearings or were informed of their ability to submit further evidence, thereby denying them a meaningful opportunity to be heard. Furthermore, the Tribunal considered the applicant's conduct in relation to "prospects documents" and the manipulation of the visa system to obtain bridging visas for clients he deemed ineligible for refugee visas to be particularly serious, as it undermined the integrity of the system and imposed a burden on social resources. While acknowledging mitigating factors such as the applicant's long registration history, lack of fraudulent intent, and personal pressures, the Tribunal concluded that the seriousness of his conduct warranted the cancellation of his registration.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.