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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2013] AATA 905
Decision Date

CaseChat Overview and Summary

The case involved George Vassiliou, a registered migration agent, and the Migration Agents Registration Authority (MARA). Vassiliou was subject to a suspension of his practice and the imposition of supervisory and practice conditions by MARA, which Vassiliou sought to review. The primary issue was whether Vassiliou was a fit and proper person to continue practicing as a migration agent, given his failure to maintain proper records, confirm instructions in writing, and his lack of sound knowledge of the relevant laws. These failures raised questions about his integrity, competence, and capacity to provide accurate and timely advice.

The court had to determine whether Vassiliou's conduct warranted the suspension of his registration and the imposition of conditions on his practice. It needed to assess Vassiliou's fitness and propriety based on his record-keeping practices, his knowledge of the Act and the Code, and his overall professional conduct. The court also had to consider the statutory provisions that allow for the suspension or cancellation of a migration agent's registration if they are not fit and proper to practice. The decision hinged on whether Vassiliou's actions and knowledge justified the stringent measures imposed by MARA.

The court found that Vassiliou had indeed failed to meet the standards expected of a registered migration agent, particularly in his record-keeping and knowledge of the relevant laws. These deficiencies suggested that Vassiliou could not competently and fairly deal with his clients, which was a breach of his professional obligations. The court was satisfied that Vassiliou was not a fit and proper person to give immigration assistance, given the deficiencies in his practice and knowledge. Consequently, the court affirmed the decision to suspend Vassiliou's practice and impose conditions, but varied the period of suspension to expire not before 26 June 2014, contingent upon Vassiliou meeting the specified supervisory and practice conditions.

The final orders included affirming the decision to suspend Vassiliou's practice and the imposition of supervisory and practice conditions, with the suspension period varied to expire not before 26 June 2014, subject to Vassiliou meeting the outlined conditions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.

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