George Vassiliou and Migration Agents Registration Authority - [2013] AATA 905

[2013] AATA 905

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/2946

Re

George Vassiliou

APPLICANT

And

Migration Agents Registration Authority

RESPONDENT

DECISION

Tribunal
Mr John Handley, Senior Member

Date 18 December 2013

Place Melbourne
The Tribunal:
1.affirms the reviewable decision dated 14 June 2013 insofar as it concerned suspending the applicant from practice as a migration agent and imposing supervisory and practice conditions recorded at paragraph 143 (a) – (f) (T2) and

2.varies the period of suspension which shall expire not before 26 June 2014 and only when the applicant has satisfactorily completed the supervisory and practice conditions.

(sgd) John Handley
Senior Member
MIGRATION AGENTS REGISTRATION AUTHORITY – Applicant suspended from practice as a registered migration agent for 12 months – conditions imposed before he can apply to resume practice – respondent contended he i) lodged applications for protection visas without supporting documents ii) caused delay in processing applications iii) failed to respond to notices adequately or at all issued by the respondent pursuant to s 308 and s 309 of the Migration Act iv) failed to keep proper records and v) improperly certified documents – some contentions conceded – applicant not a fit and proper person to give immigration assistance – expiry date of suspension varied, decision otherwise affirmed.
LEGISLATION
Migration Act 1958 ss 65A, 234, 290, 303, 304, 309, 314, 315, 316, 317

Acts Interpretation Act 1901 s 25C

Migration Agents Regulations 1998 reg 7B

CASES
SZGME v Minister for Immigration and Citizenship and Another and SZJOZ v Minister for Immigration and Citizenship and Another (2008) 247 ALR 467

Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12
Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558
Re Salomonn and Migration Agents Registration Authority [2013] AATA 146
Kolya v Tax Practitioners Board [2012] FCA 215
Stasos v Tax Agent Board (1990) 21 ALD 437
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

SECONDARY MATERIALS
Code of Conduct for Registered Migration Agents

REASONS FOR DECISION
Mr John Handley, Senior Member

On 23 November 2010, an officer of the Department of Immigration and Citizenship (the Department) – as it then was – made a complaint to the respondent about the conduct of the applicant, who had been a registered migration agent since 2007 (T27, p. 1205 – 1263).
On 1 December 2011 the Professional Standards Officer of the respondent notified the applicant of the complaint and issued a notice pursuant to s 308 of the Migration Act 1958 (the Act) (T27, p. 1197-1204).
The applicant responded to the notice by a legal representative. The respondent was unmoved by his response because it made a decision – the decision under review in this application – (T2, p. 52-97), on 14 June 2013 – to suspend his registration for a period of 12 months pursuant to s 303(1)(b), (f) and (h) of the Act because it was satisfied that the applicant:
(i)was in breach of his obligations, as a migration agent, under paragraphs 2.1, 2.4, 2.8, 2.17, 2.19, 2.21, 2.23, 6.1, 6.1A, 6.3 and 9.3 of the Code of Conduct for registered migration agents (the Code); and
(ii)was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance.
Additionally, the respondent decided to impose conditions upon the applicant, before lifting the suspension at the expiration of twelve months (s 304(1)(b) of the Act), being completion of professional development which attracts 10 continuing professional development points; completion of private tuition by a person or persons approved by the respondent and who are accredited as immigration law specialists (who must also provide reports to the respondent); provision of the applicant’s contractual agreement with proposed migration clients and a statutory declaration from him recording that he has not earned fees or advertised or given immigration assistance during his suspension (T2, p. 85-86).
Mr Ternovki of counsel represented the applicant and Mr Eteuati represented the respondent. The representatives each lodged a Statement of Facts and Contentions prior to commencement of the hearing in which they identified 5 issues, in similar terms, concerning the alleged conduct of the applicant:
ØLodging incomplete protection visa application forms
ØCausing delay in processing applications
ØFailing to provide files and respond to the respondent’s enquiries
ØFalsely certifying copies of documents
ØFailing to keep or maintain proper records
Evidence was heard from the applicant, only. The Tribunal had before it four volumes of T‑documents comprising 2240 pages and additional documents tendered by the applicant (Exhibits A1-A3).
I propose to structure this decision by 5 main chapters, each entitled by the issues, which will record the allegations made, the evidence heard in this review, identification of relevant documents and application of relevant parts of the Code. I will decide, at the conclusion of each chapter, having made findings of fact, whether the issue then considered, contravenes the Code.
Later, I will determine on the basis of the findings made in each chapter, whether the applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance. Subject to those findings and the finding of whether the applicant is not fit and proper, I will determine whether the correct or preferable decision should be to cancel or suspend the applicant’s registration or caution him and whether conditions upon re-registration or resuming practice, should be imposed.
At this stage, I consider it appropriate to record those parts of the Code against which the respondent determined the applicant breached. Section 314 of the Act mandates that registered migration agents conduct themselves in accordance with the Code.
2.1      A registered migration agent must always:
(a)act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client; and
(b)deal with his or her client competently, diligently and fairly.
However, a registered migration agent operating as an agent in the country other than Australia will not be taken to have failed to comply with the Code if the law of that country prevents the agent from operating in compliance with the Code.
…
2.4A registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.
…
2.8      A registered migration agent must:
(a)within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing to the client; and
(b)act in accordance with the clients instructions; and
(c)keep the client fully informed in writing of the progress of each case or application that the agent undertakes for the client; and
(d)within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client’s case or application.
…
2.17If 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 the written acknowledgement from the client of the advice given under paragraph (b).
Note: Under section 306AC of the Act, the Minister may refer a registered migration agent to the Authority for disciplinary action if the agent has a high visa refusal rate in relation to a visa of a particular class.
…
2.19Subject to a client’s instructions, a registered migration agent has a duty to provide sufficient relevant information to the Department or a review authority to allow a full assessment of all the facts against the relevant criteria. For example a registered migration agent must avoid the submission of applications under the Migration Act or Migration Regulations in a form that does not fully reflect the circumstances of the individual and prejudices the prospect of approval.
…
2.21A registered migration agent must not submit an application under the Migration Act or Migration Regulations without the specified accompanying documentation. For example, in a marriage case, threshold documentation would include a marriage certificate and evidence that the sponsor is an Australian citizen, and Australian permanent resident or an eligible New Zealand citizen, without which assessment of the case could not proceed (unless the agent has a reasonable excuse or the client has requested the agent to act despite incomplete documentation).
…
2.23A registered migration agent must take all reasonable steps to maintain the reputation and integrity of the migration advice profession.
…
6.1A 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
(ii)the agent and any relevant statutory authority; and
(iii)the agent and the Department regarding the client; and
(c)     file notes of every substantive or material oral communication between:
(i)      the client and the agent; and
(ii)     the agent and an official of any relevant statutory authority; and
(iii)    the agent and the Department regarding the client.
6.1AA registered migration agent must keep the records mentioned in clause 6.1 for a period of 7 years after the date of the last action on the file for the client.
…
6.3A registered migration agent must respond to a request for information from the Authority within a reasonable time specified by the Authority.
…
9.3If 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 agents 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.
On the first day of hearing, counsel for the applicant conceded his client had been in breach of paragraphs 2.8(a), 6.1(c), 6.3 and 9.3 of the Code (Transcript, p. 14-15 and 80-83).
THE COMPLAINT
The respondent’s decision had its genesis in the complaint made by the Department on 23 November 2010 which made allegations against the applicant in relation to four of his clients (who will be identified later by their initials). Following the complaint and as part of the investigation process, the respondent obtained from the Department its files of the applications made by 3 of those 4 clients pursuant to s 321 of the Act (T27, p. 1202).
In its complaint, the Department also made allegations about the applicant’s conduct in relation to the files of 15 other clients. The notice provided to the applicant in accordance with s 308 of the Act set out the particulars of the complaint and the response required from him. He was required to answer 39 questions in relation to the complaints that were made. Additionally, the applicant was asked to provide the files of 6 identified clients, pursuant to s 308(1)(c) of the Act.
The applicant responded to the s 308 notice in the form of a statutory declaration (T47, p. 1384-1387) attached to an email from his solicitor on 10 February 2012.
THE ISSUES
Lodging incomplete protection visa application forms
In 2010, a person who applied for a protection visa was required to submit a Form 866C (Application for an applicant who wishes to submit their own claims to be a refugee) to the Department. The front cover of the form recorded that all questions, within the form, must be answered and failure to do so may lead to your application being considered invalid.
Each form, for present purposes, contains the following questions:
42.      Why did you leave that country?
43.      What do you fear may happen to you if you go back to that country?
44.      Who do you think may harm/mistreat you if you go back?
45.      Why do you think this will happen to you if you go back?
46.Do you think the authorities of that country can and will protect you if you go back? If not, why not?
The 4 clients of the applicant identified in the s 308 notice and the decision under review, MS, MHA, BTC and IK, each lodged a Form 866C, which was completed by hand, by the applicant. The answer to each of the above questions, in each application, contained the words to be provided or please note documents to be attached or please refer to the attachments (MS – T8, p. 233-236; MHA – T15, p. 663-666; BTC – T57, p. 1641-1644; IK – T21, p. 844-847).
In the s 308 notice, the applicant was asked (question 6) why he did not forward a detailed statement of claim in respect of the protection visa application made by MS. In his statutory declaration, in response, the applicant’s answer (found at paragraph 9) was an application without a Part C is an invalid application (T47, p. 1385). The applicant said the statutory declaration was prepared by his legal representative (a person upon whom he relied on… wholly). He believed it was prepared in haste and due to his personal circumstances at the time he gave it a cursory view (Transcript, p. 43-46).
In a statement prepared prior to the hearing (Exhibit A1), the applicant recorded at paragraph 16:
In circumstances where the client has not completed the personal statement in time for a deadline (eg if the client will be detained or lose his rights if his substantive visa expires) I make an application with the substantive documents i.e. Form 866B, 866C, Form 80. In Form 866C I then include statements such as “to be provided later”. The presentation of these documents, I believe, complies with requirements for the lodgement of a valid Protection application. I believe this is substantial compliance.
In his evidence the applicant was asked to reconcile his response in his statutory declaration with paragraph 16 of his statement. He said, well I’ve consistently argued that while substantial compliance, and I believe this was an inadvertent error, I did not mean to say “an invalid application” (Transcript, p.19).
In his statement the applicant explained his procedure for obtaining instructions and completing a Form 866 (Exhibit A1 at paragraphs 11-17).
He recorded that during an interview with a client he would determine whether the claim for protection as plausible and if he was satisfied that it was, he would ask the client to prepare a detailed written statement. At a subsequent interview, issues would be clarified and if there was a lack of evidence, he would ask the client to provide documented corroborative evidence. When all of those materials were received the Form 866 would be completed.
In his cross-examination, the applicant said there might be a period of between 2 and 4 weeks before a client obtains documentation to permit him to be satisfied that a claim for protection could be substantiated. Only when he reached that level of satisfaction would he lodge the application (Transcript, p. 40).
In his statement, the applicant recorded that the answers to questions 42-46 in the application form, are merely the précis form of the client’s claims in their lengthy written statement (paragraph 14).He also recorded that the application forms sometimes have statements signed by a client attached or a client’s circumstances may be presented in the form of a statutory declaration. Additionally, he would provide a covering letter:
… which highlights the reasons for the claims made by the applicant. Essentially the covering letter has the core claims of the Protection applicant presented. The covering letter is a further summary of the claims presented by the protection applicant (paragraphs 15).
In circumstances where a visa was about to expire and a personal statement had not been completed by the client, the applicant recorded that he would complete questions 42-46 with words to the effect of to be provided later (paragraph 16).He recorded that he has not ever had a claim form refused where he has used similar words. He regarded an application containing those words to be valid because there had been substantial compliance with lodgement requirements (paragraphs 16–17).
In evidence, he said that there have been occasions where clients have approached him when their visas are about to expire. He advised them that unless a protection application was lodged, they may be found to be residing illegally in Australia. In those circumstances, an application may be lodged, to permit the client to legally remain in Australia during the processing of the application. However, the clients were advised, orally, that they may not ultimately satisfy Convention requirements.
The applicant said that despite his practice of lodging application forms where questions 42-46 have not been answered, in circumstances involving urgency, it was his belief that he had substantially complied with the requirement of completing the form by acknowledging in a covering letter that relevant documentation in support had not been provided to him and he was acting on a promise made to him by his clients that supporting documentation would be provided. He was reassured in his belief of having substantially complied with the requirement to complete the forms because none had ever been determined to be invalid. Nonetheless, he conceded that he was, at the date of hearing, of the view that lodging an incomplete form did not constitute substantial compliance (Transcript, p 40, 41 and 42), despite that concession not being made in his statement made 4 weeks earlier (Transcript, p. 47).
When this issue was pursued in cross-examination, the applicant said he had not undertaken any investigation into whether the Code referred to obligations for completion of applications. He said there was a concept of substantial compliance within the Department because applications were never deemed to be invalid when incomplete (Transcript, p. 49).
In re-examination, the applicant said that at the date of hearing, if he lodged a Form 866 with questions 42-46 completed only with the words to be provided or similar, with a covering letter recording the basis for seeking a protection Visa, in précis form, it would be a valid application because there had been substantial compliance. If a covering letter did not accompany the application, it was his opinion that there would not be substantial compliance. If an application was lodged, without any words against questions 42-46 but with a covering letter recording the basis for seeking a protection Visa in précis form, it would, subject to the delegate, amount to substantial compliance (Transcript, p. 74).
It is probably appropriate at this junction to draw attention to paragraph 69 of the decision under review where an extract from what appears to be a delegates’ practice manual is reproduced:
12 INCOMPLETE FORMS
12.1If material information is missing
If the form 866:
·is incomplete and
·omits material information or information allowing a decision maker to consider the substantive issues raised by the application in accordance with the principle of substantial compliance, the application is invalid. (As an example, a form 866 that does not provide information in response to questions in Part C relating to the applicant’s reasons for claiming protection should not be accepted as a valid application, as there has not been substantial compliance with the requirements for completing a Visa application) (emphasis reproduced).

In relation to protection visa applicants generally, the applicant recorded that they are very difficult, not sophisticated and often do not speak English. They often have mental health issues and are desperate. He recorded that he works with psychologists, the Red Cross and the Asylum Seekers Resource Centre. If he became assured of their claims and they met Convention criteria he would proceed to complete an application (Exhibit A1 at paragraphs 18-21). In evidence the applicant said that most of his protection visa clients expressed to him a fear of persecution should they be returned to their country of origin. He said that if he was unable to be convinced that a claim for persecution could be established, it was his practice to advise the client not to proceed. He said his confidence in the advice he gave to his clients was based on his experience in assessing the instructions he has been given and his knowledge of the persecution that is experienced by members of some religious minority groups (Transcript, p. 42).
In his statement, the applicant provided explanations for his conduct when he was acting for MS, MHA, BTC and IK, the clients whose files were the basis for the complaint by the Department.
MS
The applicant first met MS with a friend in early 2010 when he was lawfully in Australia. He was told that MS was seeking asylum. The applicant sent an email to MS and his friend requesting information and supporting documents on 10 February 2010. Neither MS, nor his friend, responded.
The applicant was contacted by MS on 29 September 2010 after he had been detained by the Compliance Section of the Department. Instructions were taken from him and he later visited him at the Maribyrnong Immigration Detention Centre. On that occasion he learnt, during a one-hour conversation, that MS feared persecution because of his conversion to a particular religious faith. He was assured by MS that a detailed statement would be provided. MS also told him that he intended to contact members of that faith in Sydney to obtain supporting letters. He recorded that MS indicated that he needed to meet with them (members in Sydney) face-to-face in order for them to be reassured about his circumstances (paragraph 27). An application for release from detention was made but denied.
It appears that the applicant’s visa was about to expire and the Form 866 was lodged on 30 September 2010. The applicant recorded that he was given oral instructions from MS to submit the application. (The applicant’s 2 page covering letter lodged with the application acknowledged that the application form was incomplete and his client sought protection because he feared persecution and harm if he returned to his country of origin (T13, p. 351-352). The application was accepted as valid on 1 October 2010 (T13, p. 335)). The applicant said it was his belief on the information given to him that his client was in danger and he had grounds for protection (Transcript, p. 75).
MHA
The applicant recorded that MHA was in a distressed state when they first met because his visa was about to expire. He obtained verbal instructions and was satisfied the application had merit. He advised his client that he had to prepare a statement before his application for protection could be lodged.
The Form 866 was lodged on 23 August 2010, without a statement (it was never provided) or completion of questions 42 – 46 (other than the words docs to be attached). In the covering letter, the applicant stated that a substantial submission, together with additional information will be provided to the Department shortly (T15, p. 652). On 25 August 2010, the applicant wrote to the Department and advised that a detailed submission will be provided. In that letter he summarised his client’s basis for seeking protection (T15, p. 648-650). The application was accepted as valid (T15, p. 603). The applicant said on the information given to him it was his belief that his client would be a target if he was to return to his native country (Transcript, p. 75).
BTC
The applicant recorded that BTC first instructed him shortly before his visa was due to expire. He was satisfied, on the basis of advice given to him, that the application for protection had merit. He asked BTC to provide him with a written statement, in order to determine the prospect of the application succeeding. It was never provided.
An application was lodged on 27 August 2010, upon the verbal instructions of his client because of his precarious visa status (paragraph 56). The response recorded against questions 42-46 was details to be provided (T15, p. 1641-1644). A (brief) covering letter was attached to the application, which recorded that a substantial submission would be posted shortly, with reports from a treating psychologist and a treating doctor in support of the application for protection. The letter also recorded that BTC would suffer serious harm and persecution as a member of a religious minority if he was returned to his country of origin (T57, p. 1626). The application was accepted as valid (T57, p. 1616). The applicant said he believed, on the information given to him, that his client would be harmed if he returned to his native country (Transcript, p. 76).
IK
The applicant recorded (paragraph 64) that he was instructed that his client feared persecution because of his conversion to a particular faith. He obtained verbal instructions and made an application on a Form 866 on 31 May 2010 (T21, p. 838). Unlike the above 3 applications, a statutory declaration completed by IK was submitted with the application (T21, p. 879-880). The responses in the application to questions 42‑46, being please refer to attachment, would appear to be a reference to the Statutory Declaration. The application was accepted as being valid on 2 June 2010 (T21, p. 703).
Submissions
In her reasons for the decision under review, at paragraph 79, the decision‑maker contended that by lodging a Form 866 which was incomplete, the applicant jeopardised his clients’ protection applications (T2, p. 21). In the absence of information being recorded against questions 42-46 inclusive, an application could have been rejected or refused because nothing pointed to the basis for seeking protection. It was also open to the Department to find that the applicant’s clients were seeking to extend their time in Australia and the applicant was not, in the circumstances, acting in their legitimate interests. Additionally, the applicant had not advanced any information which would satisfy the Department that the applications, in the absence of relevant information, should not be treated as vexatious or without foundation.
The decision-maker also contended that by lodging a potentially invalid PV application, the applicant was failing to deal with his clients’ in a competent, diligent and fair manner.
Finally, in the absence of any evidence that the applicant had received instructions from his clients to lodge incomplete application forms, it was open to conclude that the applicant had also failed to advise his clients in writing that their applications were unfounded.
Mr Ternovki submitted on behalf of the applicant that I need not consider whether the applications were invalid in the absence of information being provided against questions 42-46 because there was substantial compliance with the requirements to complete the form. Additionally, officers of the Department had accepted the incomplete forms as being valid. Counsel relied on s 47(3) of the Act which records that the Minister is not to consider an application that is not a valid application. In the absence of the Act defining a valid application, Counsel asserted that the Minister had a duty not to consider an invalid application. He also relied on s 25C of the Acts Interpretation Act1901 which he submitted was authority for the proposition that if an Act prescribes that a form be used, strict compliance with it was not necessary, rather substantial compliance was sufficient.
Mr Eteuati, who represented the respondent, was seriously unwell on the second day of the hearing and the brevity of his closing submissions was a consequence of his poor health. He declined an invitation to provide written submissions at a later date.
In comprehending the respondent’s attitude to the applicant lodging incomplete protection applications, I have had regard to the Statement of Facts and Contentions lodged on behalf of the respondent prior to the commencement of the hearing. Commencing at paragraph 7, it was submitted that failing to properly complete a Form 866 will constitute an invalid application. It followed that the applicant failed to act diligently and in the legitimate best interests of his clients and put them at risk of their applications being refused. The remainder of the contentions on this part largely reflected the reasons expressed by the respondent decision‑maker (refer to paragraphs 40-42).
The first page of Form 866 provides that failure to answer all of the questions contained within it may lead to your application being considered invalid. The 4 applications, upon which the respondent relied to support its contention that by failing to respond to questions 42-46, the applicant had breached the Code, were not refused when lodged. Indeed the T-documents contain letters from Department officers acknowledging receipt of valid applications (T13 p. 335; T15, p. 603; T21, p. 929 and T57, p.1616). There would not appear to be an inconsistency between the front cover of a Form 866 and the Department Manual at paragraph 12 (refer to paragraph 29) which records that an application which is incomplete and has material information omitted will be invalid only if a decision maker is unable to consider the substantive issues raised by the application.
I am not satisfied that the applications scrutinised in this review were invalid by the omission of information at questions 42-46.
In the Full Federal Court decision of SZGME v Minister for Immigration and Citizenship and Another and SZJOZ v Minister for Immigration and Citizenship and Another (2008) 247 ALR 467, the majority of the Court discussed the concept of substantial compliance in the context of Form 866. Relevantly, the Court decided that substantial compliance is to be determined by the document as a whole and not by individual parts (at [79]). The critical issue is whether the incomplete form did demonstrate a basis of claim for protection (at [81]). In SZGME, the form together with the signed statement and the covering letter did reveal the basis for the claim. It was open to the Department officer to conclude that there had been substantial compliance and therefore, the application was valid (at [84-86]). The Court also decided that upon review of any unfavourable decision the applicant would not be confined to the contents of the form lodged when initiating the application (paragraph 87).
The applicant has a practice of lodging incomplete protection applications on behalf of his clients because he asks them to complete a statement addressing the responses required by questions 42-46. The statement, if completed, is lodged at a later time with the Department. On a number of occasions that practice has caused delay in the applications being processed.
It is difficult to understand that practice because the applicant said in evidence that he spends considerable time with his clients obtaining information from them in order to satisfy himself that they have a plausible basis for application.
I would have thought that efficiency would dictate that the information obtained in order to determine the plausibility of an application could be recorded on the forms by the applicant on behalf of his clients. Such information would have been likely to satisfy the Department that his clients had a legitimate basis for claiming protection, would not arouse suspicion that he was not conducting his practice in a manner which was less than competent, diligent or fair and not arouse a suspicion that he was acting without instructions.
In concluding this part, I will not make an adverse finding against the applicant on the issue, alone, of lodging incomplete protection applications because I am satisfied, as apparently were Department officers, that they should be accepted and processed as valid applications.
However, his failure to provide all relevant documents caused delay in processing applications and a decision eventually being reached. Delay endured by vulnerable applicants, no less than when the representative is largely responsible, having failed to take proper instructions and supply documented evidence, is a consequence of a practice which is less than competent and diligent. Having lodged an application without supporting documents, the applicant could not have provided accurate and timely advice. He has breached paragraphs 2.1, 2.3 and 2.19 of the Code. His clients were also at risk of adverse decisions being made, in the absence of the supporting evidence he expected his clients would provide.
The respondent also contended on this issue, in the context of failing to produce client files, as requested, that lodging incomplete application forms pointed to the absence of written instructions from the client to lodge applications that were incomplete and potentially unfounded and without written acknowledgement from the clients, in breach of paragraphs 2.8 and 2.17 of the Code. Consideration of the failure to provide files to the respondent, and consequent breaches of the Code, will be addressed later in these reasons.
Causing delay in processing applications
In cross-examination, counsel for the respondent adopted the file of BTC as an example of the applicant’s practice and consequent delays in processing protection applications.
The applicant acknowledged that he was aware that a decision must be made by the Minister on an application for a protection visa within 90 days of the date of lodgement (s 65A of the Act). However, he said delays were also caused by officers of the Department processing protection applications. He gave examples of interviews not being scheduled or if they were, on arrival at the Department offices, rooms were not booked or interpreters were not present. He said he was reluctant to notify officers that 90 days had elapsed from the date of lodgement of protection applications and said:
…the whole industry is beset by these problems of not rattling the cage and not shaking the tree. I mean, I live in that environment on a daily basis. And I have received threats (Transcript, p. 62).
When asked to explain that allegation he said:
… you will go to the back of the line and had also been told we’re going to make it difficult for you (Transcript, p.62).
He declined to identify the persons who made those comments.
The applicant said he interviewed BTC on approximately 6 occasions, over an aggregate period of about 9 hours before his application was lodged (Transcript, p. 63 and 65). He said he reminded his client of the need to provide a statement and on each occasion he said he was informed by BTC that he was working on it. He said his client had asked for additional time to do so, he did not have monies to obtain a psychologist’s report and he had been unable to obtain documents from overseas.
The applicant agreed that the application was lodged on 27 August 2010, upon his client’s instructions and was scheduled for interview on 5 October 2010. In his statement, the applicant recorded that the interview was rescheduled, at his request and on his client’s instructions because more time was needed to obtain documents and prepare his statement (Exhibit A1 at paragraph 58).
The interview was rescheduled for 20 October 2010. The statement of BTC had not been prepared. The applicant said he learnt prior to the meeting that BTC suffered a mental illness and the officer was notified of it during the interview. Medical evidence in support of it had not been obtained. The applicant acknowledged that information was important to the outcome of the application. On 3 November 2010, the applicant asked for another adjournment in order to obtain medical reports and an extension was granted to 17 November 2010 (T57, p. 1511). On 18 November 2010 the applicant forwarded the statement from his client, a psychologist’s report, a copy of BTC’s passport and various newspaper cuttings and reports (T57, p. 1510).
In his statement the applicant recorded I cannot explain my client’s actions with respect to their tardiness as in this case. I can only respond to delegates if I have information (Exhibit A1 at paragraph 61-62). In evidence, he said it was also important to understand the urgency in some cases-in this particular case he needed not to lose his work rights so we had to get the application in quickly (Transcript, p. 63).
The applicant was challenged about his contention that this application required urgent processing and his attention was drawn to paragraph 54 of his statement where it is twice recorded that BTC consulted him with very little time. In evidence, the applicant said that he first consulted with BTC approximately 4 weeks before the application was lodged. He said well, in terms of this whole process, a month goes away very quickly (Transcript, p. 67).
The applicant was referred to questions 42- 46 of Form 866. He was asked whether he could explain why, having consulted with BTC on 6 occasions during an aggregate of about 9 hours for about one month prior to the application being lodged, that he was unable to record why his client left his country of birth (Q 42), what he would fear if he returned (Q 43) what harm he would suffer if he returned (Q 44) why he thought harm would occur (Q 45) and whether he thought authorities of that country would protect him if he returned (Q 46).
The applicant said he provided a covering letter with the application in précis form, and it was very important that he had BTC’s personal statement before he would commit pen to paper on this document (Transcript, p. 65). The covering letter attached to the Form 866, omitting irrelevant parts records (T57, p. 1626):
I wish to advise that the substantial submission will be posted shortly together with additional information including photos of my client. My client will provide reports from a treating Psychologist and a treating Doctor in support of his claims of protection.
An abridged version would include the following:
The persecution and the harm feared by my client indicated that he would suffer serious harm for Convention reasons. My client is a religious minority in … He is a … living in ... My client is also an ethnic .... He suffered persecution as a consequence of his religious beliefs and ethnicity.
In his statement, the applicant has given an explanation for the delays in processing applications made by a number of his clients.
The applicant recorded that his client MS was in immigration detention when he interviewed him in September 2010 and MS feared persecution because of his conversion to a particular faith (Exhibit A1 at paragraphs 24-39). An application was made to release him from detention to enable him to meet with other members of that faith. The application was rejected. Only 2 days remained to lodge the Form 866 before MS’s visa expired. An application was lodged upon the client’s instructions. Subsequent client interviews with Departmental officers were adjourned in the absence of a detailed statement being provided by MS. When an interview was subsequently scheduled, the applicant recorded that his client encountered difficulty with the interpreter but the delegate refused to adjourn the interview to permit a suitably qualified interpreter to be present. The interview was eventually adjourned. The interview was again adjourned, on 2 further occasions because his client had difficulty accessing a computer at the detention centre where his client was preparing documents.

In his statement, the applicant recorded that he first met MHA shortly before his visa was due to expire and when his client was very distressed (Exhibit A1 at paragraphs 40-53). He recorded that he notified his client that a personal statement was absolutely necessary before application forms can be forwarded to the DIAC. A statement was not provided. A Form 866 was lodged without responding to questions 42-46. Applications to adjourn interviews were subsequently granted. However, the applicant temporarily lost contact with his client. An interview was eventually scheduled on 6 December 2010 (5 months after the application was lodged) which had to be rescheduled because the interpreter was dismissed. The application for protection was subsequently refused. The applicant lodged an application with the Refugee Review Tribunal. The applicant subsequently notified it that he again lost contact with his client. The applicant personally attended his client’s place of residence looking for him and was advised that he had departed Australia.
The applicant also explained the circumstances relating to IK’s application (Exhibit A1 at paragraphs 64-70). IK did provide the applicant with a written statement which was attached to his Form 866 and lodged on 31 May 2010. At an interview in September 2010 the delegate requested additional documents and an extension of time was granted until 13 October 2010. IK was waiting for information to be provided to him from (his native country). An adjournment of 5 days was requested and rejected pending receipt of further information. That information was provided on 14 October 2010. The protection application was refused on 20 October 2010 but subsequently remitted to the Department by the Refugee Review Tribunal, following a review hearing in November 2011.
Paragraph 79 to 92 of the applicant’s statement referred to 7 other clients where delays were alleged by the respondent. There was no evidence during this review concerning any of these clients or the circumstances surrounding the delays. The applicant acknowledged delays concerning those clients which he said were caused either by the clients’ failure to provide supporting medical reports, outstanding requests for documents under the Freedom of Information legislation or scheduled interviews clashing with other commitments of the applicant where he was listed to appear elsewhere.
The applicant also experienced personal difficulties from 2008 and especially in July 2011 which are set out in his statement (Exhibit A1 at paragraphs 3-8 and 71-78).
The applicant had been working part-time since January 2008 as a consequence of unsuccessful surgery. He did not disclose the reasons for him conducting a part-time practice to Departmental officers. The applicant did not record in his statement why or whether engaging in part-time practice was responsible for delays in processing his clients’ applications.
The applicant made a request of Department delegates not to schedule any interviews of his clients in July 2011. He made that request because his wife was admitted to hospital on 30 June 2011. She had been unwell for many years. The applicant himself was unwell and had a medical appointment arranged for 16 July 2011.
On 30 June 2011 the applicant appeared on behalf of a client before the Refugee Review Tribunal. He attended the Department later that day to participate in an interview on behalf of another client. He checked his telephone and was alerted to a missed call and a text message (SMS) which notified him that his wife had been admitted to hospital that morning. He attended the interview but sought an adjournment. He showed a Department officer the SMS on his telephone. He recorded that he was kept waiting for 30 minutes whilst that officer sought advice from a colleague whether his adjournment would be permitted. Despite his request to not have any client interviews scheduled in July, 2 applications were listed for interview which he attended. He also had 2 matters listed before the Refugee Review Tribunal where he appeared.
The applicant appended a number of medical reports to his statement. But for two invoices dated 1 July and 22 August 2011 (one indicating that the applicant’s wife was admitted as an emergency patient at a hospital) all of the other reports and documents were prepared, in relation to treatment, in 2013. It may be reasonably inferred, from the contents of those documents, which will not be recorded here, that the applicant’s wife has suffered a long-standing serious illness.
Mr Ternovski conceded that a chronology of events concerning MS, MHA, BTC and IK, found within the respondent’s Statement of Facts and Contentions was accurate. However, he contended that delay occurred because the clients didn’t provide to him the documents on time (Transcript, p. 107).
It was submitted that the applicant’s clients were not sophisticated, they were seeking protection, one was held in immigration detention, they required interpreters and frequently needed to obtain reports from doctors or from overseas sources. It was also submitted that the applicant, being aware of the 90 day limit under s 65A of the Act, worked under some pretty tight deadlines and it would be surprising if they (the clients) always did provide the documentation on time (Transcript, p.108.)
I acknowledge on some occasions there was delay caused by difficulties with having appropriately qualified or suitable interpreters at interview with the Department. However, the overwhelming cause of delay in processing applications is referable to the applicant’s practice.
As recorded earlier, the applicant had a practice of interviewing clients, and lodging partially completed application forms (Form 866) without a statement, reports and other information which the clients were expected to prepare or obtain. It is inevitable that practice would lead to delay and experience should have caused the applicant to review his management of clients’ applications. Unfortunately, the applicant’s practice did not change, delays continued, efficient and timely processing of his clients’ applications did not occur and, not surprisingly, the applicant’s relationship with the Department caused it to enquire whether he was a fit and proper person to practice.
On review of the evidence and in considering the actual processing delays in these 4 applications, I agree with the respondent’s contention that the management of those applications has been responsible for i) causing delay in the processing of his clients’ applications and ii) preventing Department officers from complying with their statutory obligation under s 65A of the Act (Statement of Facts and Contentions at paragraph 24).
A feature of the applicant’s evidence was him frequently failing to acknowledge any personal responsibility for the delays. He persistently explained that it was his clients who did not provide him with documents, as he had requested of them, or had failed to provide him with a statement of their circumstances to permit him to complete the Form 866. Put another way, it was the clients who were responsible for delays, not him.
Attachment A to the respondent’s decision contains a summary of 15 protection visa applications lodged by the applicant who was engaged as the migration agent (T2, p. 87). The summary records, in each case, many instances of delay by scheduled events being adjourned and, more often than not, continuing adjournments because of persisting failure by the applicant to lodge written materials in support of his clients. I conclude from this summary that the instances of the applicant causing delay are not confined only to the 4 principal clients identified in this review.
The applicant’s explanation that his clients seeking a protection visa are either vulnerable or distressed or suffer mental illness is not an explanation for delay. Surely it was incumbent on the applicant, having agreed to act on behalf of those clients, more often than not at times when existing visas were about to expire, that he as their agent would be doing the work for them. I do not understand how he could responsibly commence to act on their behalf, by lodging an incomplete Form 866 without adequate instructions and without supporting evidence. I am also at a loss to understand why he would then expect them to obtain the evidence in support of their applications. His management practice exposed his clients to delay which in turn was likely to contribute to continuing uncertainty about whether their protection applications would be allowed. The delay is also unlikely to have ameliorated their sense of vulnerability and distress.
The respondent contended that the applicant had failed to call any client, or at least produce a client’s statement, to corroborate that he acted on client instructions on the occasions when he sought extensions of time. I agree and add that the applicant’s failure to comply with the section 308 notice and produce his files prohibits any documentation within them being scrutinised to determine whether any written instructions were obtained or any file note exists confirming that his requests for adjournments (consequently being responsible for delay) were upon client instructions.
Counsel for the applicant contended in his submissions that the respondent alleged that the applicant’s clients were victims of the delays that he had caused (Transcript, p.110). It would be extraordinary, he contended, that those persons should be called. I reject that submission. I do not understand why at least one client could not have been called to confirm that the applicant had been instructed to lodge an incomplete Form 866 and/or that the client had been advised by the applicant that a scheduled interview would have to be adjourned in the absence of that client providing requested documents. Such evidence had the potential to strengthen the applicant’s case and dispel the suggestion that at least one client was a victim.
Counsel for the applicant also submitted that the failure to call witnesses could be explained by the relationship between them and the applicant having ceased some time ago and all of the main witnesses were unavailable (to be called) (Transcript, p. 110). The applicant said at the commencement of the proceedings that some of his former clients had either returned to their country of origin or if they had remained in Australia, he was not aware of their location. But he also said that he continued to act for 3 named persons (Transcript p.19). It was not explained whether they were approached to give evidence in support.
The applicant’s practice as a migration agent, as learnt by these proceedings, being responsible in very large part for the delay in processing applications satisfies me that he has been in breach of paragraphs 2.1(b), 2.3, 2.4, 2.19, 2.21 and 2.23 of the Code.
Failing to provide files and respond to the respondent’s enquiries
The respondent contended that the applicant failed to respond to the s 308 notice because he did not answer question 39 and did not provide the files of 6 identified clients. The applicant conceded in his statement that he was in breach of paragraphs 6.3 and 9.3 of the Code (Exhibit A1 at paragraph 103).
In evidence the applicant said he had never come across these section 308 or section 309 notices. He instructed Mr Levingston, a solicitor in Sydney to act on his behalf and was thereafter guided by him. He said he handed over the matter to Mr Livingstone (sic) because the Code of Conduct and 308 were too difficult for me to handle at that point in time (Transcript, p. 52-53).
The applicant said he did not instruct Mr Levingston to provide his files to the respondent. He said he told Mr Levingston that he had an obligation to his clients, because of the sensitive nature of their applications and would only make his files available if his clients instructed him to do so. He agreed he did not consult s 308 of the Act or the Code, nor did he have any need to do so, because he did not have any issue initially with compliance with s 308. He said he did comply with the notice to the extent of providing a statutory declaration in response to the questions asked of him. He said he would provide his clients files if he had been instructed by Mr Levingston to do so. He said he was not advised by his solicitor to refrain from releasing the files, indeed Mr Levingston advised him that the files should be released (Transcript, p. 76). The applicant acknowledged in evidence that it was wrong for him to refuse to provide the files (Transcript, p. 55).
On 30 November 2012 the respondent issued the applicant with a notice pursuant to s 309(2) of the Act. The notice records that consideration was then being given to either cautioning the applicant or suspending or cancelling his registration as a migration agent. He was invited to make a submission in response, on or before 11 January 2013, as to why the respondent should not take such action. The notice comprises 26 pages and has a number of documents attached (T69, p. 1744-1871). Specific allegations and a final request for provision of 21 client files were made. The applicant did not respond to that notice.
The applicant said he again instructed Mr Levingston to act on his behalf in relation to that notice. Whilst he accepts responsibility for the failure to properly respond to the s 308 notice and for failing to respond at all to the s 309 notice, the applicant said he understood that Mr Levingston had prepared a submission on his behalf, (in response to a 9 page letter of instructions dated 21 December 2012 – refer Exhibit A1, Tab 12) and had lodged it with the respondent. The applicant said:
… to my horror and amazement [the submission] did not appear in the MARA investigation. There was no record of this information that I provided to my representative (Transcript, p. 56 and 60).
Having waived client privilege, the applicant said that Mr Levingston had suggested to him after he received the s 308 notice that he should take 12 months off (Transcript, p. 46 and 57). When he learned later that Mr Levingston had not prepared the submission, he said he ceased instructing him and sought advice from 2 other migration lawyers in Melbourne. The applicant said he obtained other legal advice because his livelihood was at stake. He alone earned income to support his family and his credibility, his practice and the interests of his clients were at stake (Transcript, p. 57-58).
The applicant’s statement contains copies of emails between the applicant and Mr Levingston commencing on 4 January 2013 (Exhibit A1, Tab 13). Of some significance, I think, is an email dated 17 January 2013 from the applicant to his solicitor, which in part records I wish to remind you that a response to Angela Huang (the decision-maker) was required by 14 January 2013. The T-documents contain a copy of an email sent from Mr Levingston to Ms Huang on 17 January 2013 recording, in part, that he had:
… just received a call from my client who is helping me with formulating the reply to the section 309 notice.… I will need an extension of time. Apparently his wife has had a stroke and he is not able to manage to attend to this matter in accordance with your timetable (T69, p.1871).
Ms Huang replied on the same date seeking medical evidence in support of the reasons for the extension of time to lodge a response to the s 309 notice. On 31 January 2013, in the absence of the medical evidence sought, Ms Huang extended the time for the provision of the evidence or a response to the notice to 14 February 2013. Mr Levingston replied on the same date acknowledging the extension of time. On 4 February 2013, Ms Huang wrote to Mr Levingston and advised him that unless medical evidence in support of the illness of the applicant’s wife was received before 18 February 2013, a decision would be made by the respondent on the basis of the information that it held (T69, p. 1866-1871).
As recorded above, the respondent requested in its s 309 notice, pursuant to s 308 of the Act that the applicant provide the files of 21 named clients. They were never provided.
This hearing was listed to commence on Tuesday 24 September 2013. On 19 and 20 September 2013, a number of emails were exchanged between the applicant and Mr Eteuati, the respondent’s representative, concerning the provision of 7 files (from the list of 21 sought by the s 309 notice ‑ Exhibit A3). It was eventually agreed that the applicant would provide those files to Mr Eteuati’s office in Melbourne (subject to a Harman implied undertaking by the respondent). The applicant produced the files on the afternoon of Friday 20 September 2012 and the solicitors arranged for an agency to copy the files over the weekend, being a total of 5500 pages.
Mr Eteuati indicated that insufficient time was available to examine the files, which, had there been compliance with the s 309 notice, would have been undertaken by the respondent. Copies of the files were not made available to the Tribunal nor tendered as an exhibit. Rather than apply for the hearing to be adjourned, to permit inspection of the documents, the respondent was prepared to proceed on the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. However, it continued to maintain, and would contend during closing submissions, that the applicant was in breach of the Code by failing to provide the files. Additionally, it was foreshadowed that the respondent would contend that the applicant was not a fit and proper person to be registered as a migration agent because he had failed to comply with the s 309 notice and the absence of the files prohibited any scrutiny of them or of his conduct as a migration agent.
Mr Ternovski conceded that his client was in breach of paragraphs 6.3 and 9.3 of the Code by failing to provide the files as he was obliged by the s 308 notice. However, he contended that from the time the respondent made the reviewable decision there was no longer any obligation to provide the files because the s 308 notice was spent (Transcript, p. 8-9).
He submitted that I should find that the applicant was at relevant times completely misguided about the MARA process (Transcript, p. 88). That theme ran consistently through the submissions to explain the applicant’s failure to provide files as directed by the s 308 notice; the decision consciously made by the applicant to refuse to provide the files because they were privileged and he did not have instructions from his clients to release them; the statutory declaration prepared by the applicant in response to the s 308 notice, especially the brevity of the answers to questions asked of him; the failure to answer question 39; the written instructions to Mr Levingston (described as a rant at Transcript, p. 92) and communications with his solicitor and his lack of comprehension of and obligations under the Code.
Mr Eteuati submitted that the applicant was in breach of paragraph 2.1, 2.4, 6.1, 6.3 and 9.3 of the Code by his failure to provide client files as he was directed and by regard also to the contents of his statutory declaration in response to the s 308 notice.
It was submitted that the failure to provide client files amounted to a refusal on the part of the applicant to allow his conduct to be scrutinised by the respondent being the agency responsible for overseeing the conduct of migration agents (Statement of Facts and Contentions at paragraph 28).
Of the 5 issues concerning the applicant’s conduct giving rise to this review, I am satisfied that the applicant’s failure to respond to the respondent’s enquiries and provide his files, are by far the most serious issues facing him.
The respondent was established pursuant to s 315(1) of the Act. Its functions are specified in s 316. Relevantly, it is empowered:
…
(b)to monitor the conduct of registered migration agents in their provision of immigration assistance…
(d) to take appropriate disciplinary action against registered migration agents…
Section 317 provides that the respondent has power to do all things necessary or conveniently done for, or in connection with, the performance of its functions.

Section 308(1) of the Act empowers the respondent to require a registered migration agent to make a statutory declaration in answer to questions in writing by the Authority and to provide the Authority with specified documents or records relevant to the agent’s continued registration.
Section 309(2) of the Act provides that if the respondent:
… is considering making a decision under section 303 to cancel or suspend a registered migration agent’s registration, or to caution such an agent, it must inform the agent of that fact and the reasons for it and invite the agent to make a submission on the matter.
The legislative basis for the Code is found at s 314 of the Act. A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct (s 314(2)).
The s 308 notice served on the applicant in December 2011 put him on notice that the respondent was investigating a complaint that it had received from the Department concerning his conduct as a migration agent. He was notified of the allegations that had been made by the Department, namely that a number of complaints had been made that protection visa applications he had made were vexatious and caused some clients’ stay in immigration detention to be prolonged; Form 866 applications were incomplete and detailed submissions had not been provided; he had employed substantial delay tactics therefore, failing to act in his client’s best interests and had failed to respond to requests for further information and documentation concerning the incomplete protection applications (T27, p. 1198).
The notice also asked him to provide by statutory declaration a response to 39 questions asked of him and to produce the files of 6 clients. The respondent notified the applicant that it held files from the Department for 3 of those clients. He was asked to provide the statutory declaration and the files by no later than 29 December 2011.
The statutory declaration (which I will address later) was provided on 10 February 2012 (T47, p.1384-1387). That it was delayed hardly inspires confidence that the applicant understood the nature of the investigation, the allegations that were made and the consequences of failing to comply. That it was also incomplete and failed to answer a material question (question 39) was also unlikely to endear the respondent to him.
The applicant did not provide the files. He contended in this review and it was submitted by his counsel that release of the files would offend client confidentiality especially when the respondent’s complainant was the Department. In his statement, he recorded that he was concerned that release of the files could also prejudice the applications of his clients that were currently before the Department (Exhibit A1 at paragraph 105).
His refusal to provide the files was a clear breach of s 308 of the Act and a number of paragraphs within the Code. It also points to him failing to understand his obligations as a registered migration agent.
The applicant chose to engage a legal representative – which of course, he was entitled to do – but rather than seeking timely advice, bearing in mind Christmas intervening between the receipt of the notice and the requested date of response, the applicant wrote a 9 page letter to his solicitor on 20 December 2012, almost 3 weeks after the notice was served and 9 days before his response was due to be lodged. In the letter, the applicant made a number of allegations and complaints about the Department and the respondent. It was this letter that Mr Ternovski identified in submissions as a rant.
The letter did express his concern that provision of the files would breach client confidentiality but rather than receive advice on that issue from his representative, he was advised that an application should be made for his RMA file. In his response to that suggestion the applicant instructed his solicitor to apply for his RMA file and asked the question whether to do so will give us more time (Exhibit A1, Tab 12). It is difficult to escape the conclusion that the applicant was incapable of comprehending the complaint contained within the s 308 notice and the opportunity that was being given to him to explain his conduct. His inefficiency in practice as a registered migration agent was also demonstrated in relation to his personal dealings with the respondent.
The response, in the form of a statutory declaration, contained superficial and almost meaningless answers to the questions asked of him. The applicant admitted an error at question 9 by declaring that applications without answers to questions 42-46 were invalid, despite declaring that his answers were true and correct in every particular.
The s 308 notice was part of an investigation process following a complaint lodged with the respondent by the Department. The applicant’s solicitor was advised by the decision‑maker in a letter of 22 December 2011 that the respondent had not received any complaints from the applicant’s clients (T39, p. 1356).
Had the applicant comprehended his statutory obligations under the Act and the Code and responded to the s 308 notice in a timely, efficient and competent manner where he explained his practices by giving more comprehensive responses to the questions asked of him, the possibility of the respondent not taking the matter any further cannot be denied.
His failure to provide files as requested further tarnished his credibility and raised further suspicion with the respondent because it was denied the opportunity to scrutinise those files and determine whether there was any merit in the complaints of his failure to keep and maintain records and the reasons for lodging incomplete protection applications. The respondent was also denied the opportunity to gain some insight into why there were frequent instances of delay in progressing applications. The failure to provide the files was a clear breach of both the Act and the Code.
Mr Ternovski submitted:
there was nothing particularly culpable about the way that my client had responded to the request for the files. They were requested very late and they were provided (Transcript, p. 97).
I think nothing more needs to be recorded at this stage, other than to acknowledge that counsel faithfully made that submission on his client’s instructions.
It is difficult to not draw the conclusion that the provision by the applicant of the files to the respondent’s solicitors within a few days of the first day of hearing was intended to ensure that no proper examination of the contents of them could have been undertaken before this hearing commenced.
In evidence the applicant said that he had at all relevant times understood that he had a loyalty and an allegiance to his clients and disclosure of the files could cause them prejudice. It was for those reasons that he refused to make the files available. In evidence the applicant said that his position was incorrect and he:
made those documents available without reservation. I mean you have made copies of those, I haven’t withdrawn any documents. I’ve given you a free hand on those documents. Now whether those documents help or hinder me is really up to the tribunal to make a determination (Transcript, p.71).
Some of those files were requested in the s 308 notice delivered in December 2011. Other files were requested by the s 309 notice delivered in November 2012. The response reproduced above cannot be taken seriously. I am satisfied that the applicant frustrated the opportunity that would have been given to the respondent to scrutinise the files if he had complied with the notices under s 308 and s 309 of the Act. The respondent was not given a free hand to inspect the files. Whilst the applicant has conceded that he did fail to keep or maintain proper records and he had failed to provide files and respond to enquiries of the respondent, it is difficult to resist the inference that by his failure to provide the files, inspection of them would have revealed information which was detrimental to him. The extent of his failing to comply with the Code cannot be determined.
In concluding this part, I note that the applicant was issued with a notice pursuant to s 309(2) of the Act. He was notified that consideration was being given to either cautioning him or suspending or cancelling his registration. He was invited to make a submission in response to the issues contained within the document. The applicant did not respond to that notice.
Falsely certifying copies of documents
The respondent contended that the applicant had certified documents as true copies of originals that he had not seen. That alleged conduct, according to the decision maker, was a serious breach of s 234 of the Act which exposed the applicant to the potential of penal sanctions (T2, p. 25 at paragraphs 98-100).
The allegations against the applicant with respect to this alleged conduct and his explanations are found in departmental documents and correspondence (T60-61, p. 1694‑1705).
In his statement, the applicant recorded that a number of documents, which he identified, provided to him by his clients, were copies. He recorded that he had not been provided with original documents and did not believe that I would have stamped a copy of these documents as a true copy of the original. He recorded that he was unable to verify the belief held by an officer of the Department that he had falsely certified documents because copies of them were not included in the T‑documents (paragraphs 96-100).
The applicant conceded that if he had certified documents, by only having sighted copies, it would have been an inadvertent mistake. He said that the practice in (country) was for issuing officers to place original stamps on copies of documents. He also identified a number of documents where he did observe copies with an original stamp. He admitted in his statement that he had mistakenly believed the document provided to me by the client (copy with an original stamp) to be the actual original. He recorded that during a client interview, one such document was drawn to his attention. He acknowledged that he had certified from a copy of a document with an original stamp. He then admitted his mistake and removed my signature from the certified copy (paragraph 98).
In evidence the applicant said that clients of (country) origin understood, and had told him, that documents with an original stamp are treated, in that country, as originals. He said he had also learnt from those clients that carbon copies of documents are also deemed to be an original. He said if a document is presented to me as an original and I have no doubt to disbelieve that, then I accept that (Transcript, p. 70).
Mr Ternovski submitted that his client did certify some documents as true copies of original documents. He said his client acknowledged that he had been in error because he had observed copies of documents that had an original stamp. When he was notified by an officer of the Department that he had certified from a copy of a document with an original stamp, he withdrew the document that he had, in error, certified as a copy of a true original.
The correspondence between the applicant and officers of both the Department and the respondent in volume 3 of the T-documents between pages 1694 and 1705 indicate that enquiry was being made of the applicant concerning a number of documents on behalf of a number of clients. The allegation against the applicant with respect to false certification of documents concerns one client only, Mr Z.
Mr Ternovski submitted that it would appear from the respondent’s decision that it was alleged that there were other documents in the possession of the respondent over which it was alleged the applicant had made a false certification. That submission appears to emerge from the applicant’s statement where he recorded that in response to a request from an officer of the Department, he provided originals of all of the documents except for some that he identified (Exhibit A1, paragraph 94). Those documents were not within the T-documents, they were not produced at the hearing and the applicant was therefore, prohibited from addressing them in evidence.
Additionally, it was contended that the respondent knew, by the contents of the applicant’s statement lodged well in advance of the hearing that this contention would be put yet no explanation was given why those documents were not produced into evidence.
It was submitted that the applicant did not have any forensic or technical skills that would permit him to determine whether a document with an original stamp was itself an original document or a copy. It was emphatically denied that the applicant had committed any criminal offence to which the decision-maker alluded at paragraph 98 of the decision under review.
The applicant has acknowledged that he was in error in respect of some of the documents. When he learned of the error, he withdrew the documents that he had certified as being true copies of originals from his client’s file. His admission and withdrawal of the documents, in these circumstances, does not offend the Code because the client could not rely on the (withdrawn) document and the Department did not make a decision on the basis of the document.
The respondent submitted that the integrity and reputation of the migration agent profession has not been maintained by the applicant by his conduct concerning certification of the other documents (contrary to paragraph 2.23 of the Code). In the absence of those documents, alleged to be in the possession of the respondent, being produced in this review, I am satisfied it would be improper to make any finding on this issue.
Failing to keep or maintain proper records
The respondent has also alleged that the applicant has failed to keep and maintain proper records and therefore, breached paragraphs 6.1 and 6.1A of the Code. This allegation is based on the applicant’s failure to produce his client files as requested in the s 308 and s 309 notices. In his statement, the applicant recorded that he did not provide client files to the respondent because of confidentiality concerns rather than due to inadequacy of record-keeping (Exhibit A1 at paragraph 117).
He conceded that he had not fully complied with record-keeping obligations under the Code because most of his communication with protection clients was oral. In relation to the clients whose files were requested by the s 309 notice, he recorded that while some notes were made, he may not have recorded all material oral communications as required by clause 6.1(c). He also conceded that in some instances, he did not confirm client’s instructions in writing as clause 2.8(a) also requires (Exhibit A1 at paragraph 118).
In cross-examination, the applicant was informed that the respondent would contend that an inference should be drawn against him that his failure to provide files prohibited scrutiny of them and therefore, supported a conclusion that records had not been properly made. The applicant reaffirmed that his decision to withhold the files was made in the absence of client consent and release of them could prejudice his clients. He said that he had now made files available, documents had not been withdrawn from them and he had given you (the respondent) a free hand on those documents (Transcript, p. 71).
Mr Ternovski said that his client had conceded that he had failed to confirm written instructions from clients contrary to paragraph 2.8(a) of the Code. He had also failed to make file notes of every material oral communication that can be made available for inspection as he was required under paragraph 6.1(c) of the Code.
The Code at paragraph 6.1A provides that the records must be kept for 7 years after the last action on the file. The applicant submitted that paragraph is concerned with keeping records as opposed to creating them. On the basis that the applicant admitted that he did not create records, he could not be in breach of paragraph 6.1A of the Code (because he could not keep records that he did not create).
I am satisfied that submission does not give the applicant any comfort. Paragraph 6.1 of the Code provides that a registered migration agent must maintain proper records of every written communication between the client and the agent (and others) and notes of every substantive or material oral communication between the client and the agent (and others) that can be made available for inspection by the respondent. Paragraph 6.1A refers to the records mentioned in paragraph 6.1. The records include files. The applicant has not contended that he only ever gave oral advice or that he never made written records. If that were so, he would virtually have no files at all. In evidence, he said he may not have always created written records and did not, in some instances, confirm the clients’ instructions.
It follows, that he must have some records of oral and written communications and instructions in some files. Records, including files must be retained for 7 years. Whilst a number of files were not produced to the respondent until a few days before the hearing, there is no evidence that he has failed to keep records. It may be reasonably inferred that the files that were produced did contain records that he did keep. I am not satisfied that the evidence points to paragraph 6.1A of the Code being breached, because there is no evidence that he has failed to keep records that were made.
In the absence of the client files until a few days before the hearing and the consequent inability to scrutinise them, the extent of the applicant’s admitted breaches of paragraphs 2.8(a) and 6.1(b) and (c) of the Code is unknown. However, the admission by the applicant that he did fail to make a file note of every, material oral communication and that he had failed to confirm client instructions in writing, is sufficient to permit me to find that paragraphs 2.8 and 6.1 of the Code have been breached.
The respondent contended that failing to keep records also constitutes a breach of paragraphs 2.1(b) and 2.4 of the Code because it would point to the applicant having failed to deal with his clients competently, diligently and fairly and he had not had due regard to a client’s dependence on his knowledge and experience.
By his own admission, the applicant failed to keep proper records and failed to confirm clients’ instructions in writing contrary to paragraphs 2.8(a) and 6.1(c) of the Code. I am satisfied the applicant did not have a sound knowledge of the Act, the regulations and the Code and absence of such knowledge casts doubt on his capacity to provide accurate and timely advice (paragraph 2.3 of the Code). It also suggests that he did not have due regard to his clients’ dependence on his knowledge and experience in further breach of paragraph 2.4. His lack of knowledge of the relevant laws, together with the deficiencies in his practice point also to a failure to competently, diligently and fairly deal with a client (paragraph 2.1(b). It is difficult to comprehend how the applicant could have adequately given advice and pursued his client’s interests in the absence of a written record of the instructions obtained and the advice given.
Is the applicant not a person of integrity or otherwise not a fit and proper person to give immigration assistance?
Section 290(1) of the Act empowers the respondent to refuse the registration of a person applying to be a migration agent and s 303(1) of the Act empowers the respondent to cancel or suspend a registered migration agent from practice or issue a caution.
Both provisions record that qualification to practice under s 290 or continuity of practice under s 303 will not be satisfied if a person is not a person of integrity or is not a fit and proper person to give immigration assistance. The qualifications for practice are disjunctive.

Mr Eteuati in his Statement of Facts and Contentions referred to both provisions but did not, correctly in my view, assert that both indicia of conduct must be satisfied.
The word integrity has been considered in a number of decisions in this Tribunal and in the Federal Court.
In Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12 at [26], the Tribunal adopted the Macquarie dictionary definition of soundness of moral principle and character; uprightness; honesty. A similar approach was adopted by the Federal Court in Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558 at [22]. In a recent decision of this Tribunal, Senior Member Britton decided that the concept of integrity is concerned with character, probity and scrupulosity (ReSalomonn and Migration Agents Registration Authority [2013] AATA 146 at 17).
In this application, it has not been alleged nor were any enquiries directed towards whether the applicant was a person of honesty or of poor character or failing in moral principle. Having observed the applicant and having read the extensive quantity of documents lodged, I am not satisfied that he is not a person of integrity.
Having made that finding, I am satisfied that the focus of attention should be upon whether the applicant is not a fit and proper person to give immigration assistance.
The expression fit and proper person has been considered on many occasions in this Tribunal, the Federal Court and the High Court.
In Salomonn, at [17], the Tribunal decided that the expression encompasses matters such as competence and technical skills. In Kolya v Tax Practitioners Board [2012] FCA 215 at [31] the Federal Court referred to a number of decisions that decided that the expression fit and proper person was synonymous with a person who is of good fame, integrity and character (refer also Stasos v Tax Agent Board (1990) 21 ALD 437 at 443-444).
An expansive consideration of whether a person is fit and proper was undertaken by the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 where Toohey and Gaudron JJ decided:
The expression “fit and proper person,” standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community with have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
In reaching the conclusion below, I note that s 290(2) of the Act specifies criteria that must be considered in deciding whether a person is not fit and proper. The only criterion which appears relevant in this application is the extent of the applicant’s knowledge of migration procedure (sub-s (2)(a)).
I have addressed the respondent’s allegations against the applicant above and have set out my findings, together with my reasons. In concluding this part, and by way of summary, I am satisfied:
a)the applicant did lodge incomplete protection visa application forms which, although accepted by the Department as valid, caused significant delays in processing the applications because all the relevant documentation had not been lodged. The applicant also made frequent requests to adjourn interviews with officers of the Department because insufficient supporting material had not been obtained, by the client. The delays offended good standards of efficiency and competence of practice on the part of the applicant and in turn were also responsible for officers of the Department being unable to meet the statutory objective of making a decision upon applications within 90 days of lodgement. I am satisfied that the applicant was in breach of paragraphs 2.1(a) and (b), 2.3, 2.4, 2.19 and 2.21, 2.23 of the Code.
b)The applicant did cause delay in the processing of applications, often for reasons recorded immediately above but also because the applicant, sought adjournments during interviews with Department officers when it then became apparent, in the absence of adequate instructions from his clients that information was missing. His explanation that it was his clients who were responsible for the deficiency in information is troubling because as the person registered as a migration agent, he was under a duty to competently and diligently pursue applications, to give advice based on his knowledge and experience and have regard to the dependence upon him by his clients, who were often vulnerable. I am satisfied that the applicant has been in breach of paragraphs 2.1 (a) and (b), 2.3, 2.4, 2.19, 2.21 and 2.23 of the Code.
c)The applicant’s failure to respond to the enquiries of the respondent and provide files to it was a very significant indicator of his failing to comprehend knowledge of the Code and the Act and his responsibility to assist the respondent in its duty to scrutinise him thereby, preserving the integrity of the profession. Although the applicant did engage a legal representative, his correspondence indicated an inability to comprehend the serious concerns that were held by the respondent and his inability to focus on the investigation that had been initiated. That he would also fail to respond to the s 309 notice or refuse to competently respond to the s 308 notice (as indicated by the answers to the questions asked of him) was a major failing. Even if I were to find that the applicant did honestly hold the belief that he could not release his clients’ files without their authority, he did not explain why, apparently, without authority, the files were eventually released a few days before the first day of hearing thereby, denying the respondent the opportunity to scrutinise them. The applicant conceded he was in breach of paragraphs 2.8(a), 6.1(c), 6.3 and 9.3 of the Code – those concessions were appropriate.
d)The evidence concerning the allegation of the applicant falsely certifying copies of documents was disturbing because the respondent, who apparently held the documents, did not include them in the T-documents nor produce them in evidence at the hearing. The applicant was denied the opportunity to properly respond to the respondent’s allegations with respect to those documents. I will not make any finding, in these circumstances. The applicant acknowledged an occasion where he erroneously certified a document. He withdrew the document from the client’s application. I consider that to be an appropriate response and was consistent with the applicant’s evidence of it being an inadvertent error.
e)The last issue between the parties was of the applicant failing to keep or maintain proper records. That issue was conceded by the applicant. The applicant’s failure to produce his files prohibits scrutiny of the extent of his failing to keep records and communicate with his clients, which he admitted, as a number of provisions of the Code require. I am satisfied that the applicant’s concession of breach of paragraphs 2.8(a) and 6.1(c) (although the extent is unknown) is appropriate. I am also satisfied he has breached paragraphs 2.1(b), 2.3 and 2.4.
f)Having heard and observed the applicant and read the documents lodged, including his own material, I cannot assume that the prior conduct of the applicant will not occur in the future nor can I assume that the general community will have confidence that it will not recur (Bond at 308).
Having read the material lodged by the applicant and having observed and heard him in evidence, I am not reassured that he will make any material change to his practice to ensure that applications will be properly lodged containing comprehensive detail in support of client applications. In his statement, the applicant records that he has improved his records system by dividing his filing system into PV and General Migration and has put in place processes which will confirm his clients instructions (Exhibit A1 at paragraph 119).
Nothing by that explanation reassures me that he will obtain adequate instructions and record them as the agent. He has recorded that he will confirm client instructions but has not recorded that he will make file notes of the requisite type nor whether he has changed or will change his practice to ensure that all relevant documentary information will be available at first client interview with officers of the Department.
Put another way, I am not satisfied that the change in practice will be by the applicant undertaking the work which he expected of his clients. In evidence, he said that if he lodged an application without answers to questions 42-46 but with a covering letter, he would be substantially complying with lodging requirements (Transcript, p 74). This disturbs me because there is no expression by him that his practice will change to ensure those questions will be answered and the delay previously caused by his omissions will not reoccur. Surely, if he spends 9 hours with a client (as he did with BC) before an application is lodged, he could obtain instructions to allow him to properly complete questions 42-46.
Additionally, I am not confident that he now understands his obligations under the Code or the Act, specifically his obligation to deal competently and diligently with his clients or to appreciate the reliance by his clients on his knowledge and experience. I am also not confident that he understands his responsibility to maintain the reputation and integrity of the migration agents’ profession and his duty to respond to enquiries of the respondent. Many of his answers to questions were equivocal and there was a distinct absence of any sense of him having failed his clients. These conclusions contribute to the finding I will later make of him needing to undertake professional development and supervision.
I am satisfied that his agreement to give some files to the respondent, aggregating 5500 pages, a few days before the hearing, 18 months after a request was made for them, gives him no credit. Rather, I am satisfied that failing to deliver them as the s 308 and later, the s 309 notices requested, denied the respondent an adequate opportunity to determine the true extent of his admitted breaches of the Code and question him during the hearing.
I acknowledge without reservation that the applicant’s daughter has experienced a serious illness and disability from birth and his wife has suffered severe poor health, especially in recent years. I also accept that his worry and concern for them and his responsibility, often as the sole carer, probably interfered with his practice and perhaps his judgement. Without any disregard for his responsibility to his wife and daughter, he has also had a significant professional responsibility to his clients, to the migration agents’ profession and to the respondent.
I also acknowledge that he has at all relevant times been a sole practitioner where there must have been occasions when he has been unable to delegate work to a partner or an employee, as would have occurred in a larger practice.
I am also satisfied that the applicant, having waived client privilege (for which he must be given credit) was poorly advised by his former legal representative in whom he placed considerable trust. During the period when he was expected to respond to the s 308 notice, he readily acknowledged that he was unable to focus on the issues confronting him because his wife suffered a stroke. However, in the period between December 2012 and February 2013, he did lodge 13 applications with the Department. This does not point to him suffering an incapacity to practice and being unable to diligently impress his solicitor to give him advice and complete the documents sought from the respondent.
I have taken account of the applicant’s circumstances that were heard and learnt during this review (Shi v Migration Agents Registration Authority (2008) 235 CLR 286). I am satisfied, on balance that the correct or preferable decision on the material before me during the review is to affirm the decision of the respondent save that the expiration of the period of suspension will be extended. Accordingly, I am satisfied that the applicant is not a fit and proper person to give immigration assistance.
A decision to have cancelled his registration would have been harsh, on the evidence heard and read in this review and perhaps appropriate only if he was found not to be a person of integrity, as defined (refer earlier). This review is not intended to punish, rather it is concerned with protecting the public and ensuring standards of proper practice. The decision to suspend the applicant’s registration accompanied also by conditions of further training and supervision is in my view, an appropriate balance between cancellation and caution.
I understand that the applicant earned income from his practice and the period of suspension will have economic consequences. However, he is not impecunious. He receives rental income from a shop he owns. Another shop, at the date of hearing, was rented by his son who was not paying rent. It would be open to the applicant, to seek rental income for those premises.
I think there is no doubt that the applicant would benefit by nor would it be harsh or unfair for him to engage in professional development, supervision, private tuition and adhering to the other conditions imposed by the respondent (T2, paragraph 143). I also agree that it would not be appropriate to re-register him and permit him to resume his practice as a migration agent until he has satisfied all of the conditions imposed.
Satisfying the conditions recorded above will give the respondent and potential clients reassurance of the applicant being a fit and proper person to give immigration assistance.
DECISION
On 27 June 2013 and 19 July 2013 I made Orders granting a partial stay of the decision under review, prohibiting the applicant from accepting instructions from protection visa applicants from 27 June 2013 and the remainder of his practice be supervised within the terms of Regulation 7B of the Migration Agents Regulations1998.
The decision of the respondent under review insofar as it concerned suspending the applicant from practice as a migration agent and imposing supervisory and practice conditions recorded at paragraph 143 (a) – (f) (T2) will be affirmed.
The period of suspension will be varied and shall expire not before 26 June 2014 and only when the applicant has satisfactorily completed the supervisory and practice conditions.

I certify that the preceding 170 (one hundred and seventy) paragraphs are a true copy of the reasons for the decision herein of

Mr John Handley, Senior Member

..........................[sgd]...............................
Associate
Dated 18 December 2013

Date(s) of hearing 24-25 September 2013

Counsel for the Applicant Mr D. Ternovski

Counsel for the Respondent Mr T. Eteuati

Solicitors for the Respondent Clayton Utz

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/2946
Re	George Vassiliou
APPLICANT
And	Migration Agents Registration Authority
RESPONDENT

Tribunal	Mr John Handley, Senior Member
Date	18 December 2013
Place	Melbourne

Date(s) of hearing	24-25 September 2013
Counsel for the Applicant	Mr D. Ternovski
Counsel for the Respondent	Mr T. Eteuati
Solicitors for the Respondent	Clayton Utz