[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
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 321Shi 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…
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- Case
- [2013] AATA 905
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.