Gu and Migration Agents Registration Authority - [2022] AATA 749

Gu and Migration Agents Registration Authority [2022] AATA 749 (13 April 2022)
Division:GENERAL DIVISION
File Number: 2020/8496
Re:Bo Gu
APPLICANT

Migration Agents Registration AuthorityAnd
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:13 April 2022
Place:Brisbane

The decision under review is set aside and the Tribunal substitutes, in lieu, that the registration of Mr Bo Gu as a registered migration agent is suspended from 21 December 2020 until 13 April 2022 after which date the suspension is lifted.
............[SGD].................................
Deputy President J Sosso
CATCHWORDS
MIGRATION – migration agent registration authority – cancellation of Applicant’s registration – Applicant breached Code of Conduct – Tribunal satisfied that the Applicant is a person of integrity or otherwise a fit and proper person to give immigration assistance at the time of the decision – Applicant disciplined through suspension until date of decision – decision under review set aside and substituted with the Tribunal’s decision that the Applicant’s registration be suspended until the date of this decision after which date the suspension is lifted
LEGISLATION
Criminal Code Act 1995 (Cth)
Explanatory Statement, Migration (Migration Agents Code of Conduct) Consequential Amendments Regulations 2021 (Cth)
Migration Act 1958 (Cth)
Migration Agents Regulations 1998 (Cth)
Migration (Migration Agents Code of Conduct) Consequential Amendments Regulations 2021 (Cth)
Migration (Migration Agents Code of Conduct) Regulations 2021 (Cth)
CASES
Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Altintas and Migration Agents Registration Authority [2004] AATA 978
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Briginshaw v Briginshaw (1938) 60 CLR 336
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Cunliffe v Commonwealth of Australia (1994) 182 CLR 272
Davies v Australian Securities and Investments Commission (1995) 59 FCR 221
Fieldhouse & Ors v Commissioner of Taxation (1989) 25 FCR 187
Griffiths and Migration Agents Registration Authority [2001] AATA 240
Hanna v Migration Agents Registration Authority (1999) 94 FCR 358
Hartnett v Migration Agents Registration Authority (2004) 140 FCR 388
Hudson v Migration Agents Registration Authority [2004] AAT 1007
Hughes and Vale Pty Ltd v State of New South Wales (No. 2) (1955) 93 CLR 127
Issa and Migration Agents Registration Authority [2017] AATA 1110
Joel v Migration Agents Registration Authority (2000) 110 FCR 202
Kazi and Migration Agents Registration Authority [2006] AATA 42
Kraues v Migration Agents Registration Authority [2018] FCA 664
Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85
Mottaghi v Migration Agents Registration Authority [2007] AATA 60
Narayanan and Migration Agents Registration Authority [2006] AATA 353
Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12
R. v. Hyde Justices (1912) I K.B. 645
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482
Re Stolar and Migration Agents Registration Authority (2007) 95 ALD 437
Salters and Telstra Corporation Limited [2000] AATA 734
Shi and Migration Agents Registration Authority [2005] AATA 904
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Stasos v Tax Agents’ Board of New South Wales [1990] FCA 379
Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165
SECONDARY MATERIALS
Department of Home Affairs, Code of Conduct for Registered Migration Agents (1 March 2022)
Department of Immigration and Border Protection, Code of Conduct for Registered Migration Agents (18 April 2017)

REASONS FOR DECISION
Deputy President J Sosso
13 April 2022
INTRODUCTION

On 21 December 2020, the Migration Agents Registration Authority (the Respondent) cancelled the registration of Mr Bo Gu (the Applicant) as a migration agent in accordance with s 303(1)(a) of the Migration Act 1958 (Cth) (the Act) – Exhibit 1 T38 pp. 3953 – 4009.
The registration decision, together with attachments, is 53 pages in length and outlines an anonymous complaint received initially by the Department of Immigration and Border Protection on 16 August 2017 about the Applicant’s conduct as a migration agent – Exhibit 6 p. 1 para 2. The complaint was subsequently brought to the attention of the Respondent. The complainant provided information that gave rise to the following allegations – Exhibit 1 T4 p. 11, T38 p. 3958:
·Ms NC had been employed by the Applicant at Auspac International Pty Ltd in the position as General Manager since April 2016;
·The Applicant assisted Ms NC in applying for a Regional Sponsored Migration Scheme (RSMS) nomination and visa (subclass 187), for another employer;
·The Applicant provided falsified and misleading documents in support of Ms NC’s subclass 187 visa application; and
·The Applicant provided false and misleading documents in support of other subclass 457, subclass 186 and subclass 187 applications.
The Applicant was first registered as a migration agent on 28 November 2006, and was renewed annually from that date. The Applicant subsequently owned and operated a migration agency trading under the name of Auspac International Pty Ltd in Brisbane – Exhibit 2 p. 5 para 12, Exhibit 6 p. 1 para 1.
It would appear that until the time the Respondent received the anonymous complaint, the Applicant had not been subject of any disciplinary action by the Respondent – Exhibit 1 T38 p. 3958 para 6, Exhibit 6 p. 1 para 1.
After receiving the complaint, the Respondent undertook a review of applications lodged by the Applicant. In particular, the Respondent reviewed applications lodged by the Applicant on behalf of clients, including Employer Nomination Scheme (ENS), Regional Sponsored Migration Scheme (RSMS), and "457 nomination” applications lodged between 1 January 2015 and 4 September 2018. In this period, the Applicant had lodged 269 applications, and the Respondent examined a sample of 27 nomination applications the Applicant had lodged on behalf of clients – Exhibit 1 T38 p. 3959 para 11.
On 22 November 2018, the Respondent gave the Applicant a Notice under s 308 of the Act – Exhibit 1 T4 pp. 11 – 16. Section 308 empowers the Respondent to require a registered migration agent to give specified information, which can include making a statutory declaration, appearing before an individual or individuals to answer questions, or to provide the Respondent with specified documents. This was the first of three Notices that were issued.
Paragraph 1 of the Notice stated as follows – Exhibit 1 T4 p. 11:
“On 16 August 2017, the Office of the Migration Agents Registration Authority (the Authority) received information from the Department of Home Affairs concerning your conduct as a migration agent. The Department had received information that businesses which you have represented for nomination applications under the Regional Sponsored Migration Scheme (RSMS) may have received payment to nominate employees for a visa. Specific allegations were made regarding your employee Ms [NC].”
Next, the Notice outlined four allegations – Exhibit 1 T4 p. 11 para 2:
“The information gives rise to the following allegations:
·Ms [NC] has been employed by you at Auspac International Pty Ltd in the position of General Manager since April 2016.
·You have assisted Ms [NC] in applying for a Regional Sponsored Migration Scheme (RSMS) nomination and visa, for another employer.
·You were complicit in providing falsified documents in support of Ms [NC’s] subclass 187 visa application.
·You have been complicit in the provision of falsified documents in support of other subclass 457 and subclass 187 applications.”
The Notice then dealt with Departmental records which indicated – Exhibit 1 T4 p. 12 para 3:
·Ms NC arrived in Australia on 14 April 2016 as the holder of a FA 600 Tourist visa. The visa was valid until 14 July 2016 and carried, as Condition 8101, “No Work”;
·On 27 June 2016, a RSMS nomination application was lodged by The Trustee for DH Family Trust which nominated Ms NC for the position of Café or Restaurant Manager. A related Class RN Subclass 187 visa application was lodged by Ms NC on the same date. The Applicant was the authorised migration agent for both applications;
·Ms NC was granted a Bridging Visa A (effective 27 June 2016) in relation to her RSMS visa application;
·The RSMS nomination application was refused on 5 February 2018 on the basis that the tasks of the nominated position did not correlate to the tasks of the nominated occupation;
·The refusal decision was appealed to the Administrative Appeals Tribunal (the Tribunal), and the Applicant was the authorised representative;
·The Applicant conducted VEVO checks on Ms NC’s visa status on 26 February 2016, 25 July 2016, 16 April 2017 and 23 March 2018.
The Notice then set out the sample 27 nomination applications which were examined – Exhibit 1 T4 pp. 12 – 13 para 7. As the legal representatives of the Applicant submitted, the Notice did not specify the basis for the selection of the nominated 27 applications – Exhibit 6 p. 2 para 5.
It was then stated that the examination of the 27 applications had revealed significant similarities – Exhibit 1 T4 p. 14 para 8:
·“The employment contracts provided for each of the above-listed applications, appear to be almost identical in; lay-out; font; and content such as work hours, proposed start date and other wording, in spite of being employment contracts for 27 different corporate entities, trading in a variety of industries.
·Letters of support from the nominators which were lodged with the Department in support of the visa applications, are also similar in lay-out, and show many similarities between the businesses. For example they have similar organisational structures despite there being no apparent relationship between the businesses such as shareholders or office bearers in common, except for the fact that they are all represented by you.”
The Applicant was required to answer a number of questions, both in relation to Ms NC, as well as in relation to the 27 businesses. Further, the Applicant was required to provide specified documents – Exhibit 1 T4 pp. 14 – 15 paras 11 – 15.
On 21 December 2018, the Applicant, through his legal representatives (Christopher Levington & Associates), provided a response to the s 308 Notice of some 86 pages – Exhibit 1 T9 pp. 39 – 126.
On 13 May 2019, the Applicant received a second s 308 Notice. The second Notice sought specific information regarding Ms NC – Exhibit 1 T19 pp. 1454 – 1456.
In response to the second Notice, the Applicant provided copious documentation to the Respondent – Exhibit 1 T22 – T30 pp. 1549 – 3416.
On 24 October 2019, the Respondent issued a third Notice to the Applicant. An Officer of the Respondent emailed the Applicant in the following terms – Exhibit 1 T30 p. 3375:
“I have considered your response, and the documents you have provided. It is noted that the majority of the documents you have provided are not in English, and are not accompanied by a NAATI-accredited translation.
It is further noted that the client files are quite voluminous, especially if considered in their entirety, and I appreciate that obtaining accredited translations of the entire client files would be both time-consuming and costly. Whilst I would welcome the entire files to be translated, I have nonetheless considered documents of particular interest, and would like to request, pursuant to s308 of the Act, the following pages to be translated by a NAATI-accredited translator…”
The Officer then outlined specified pages in Cases 2, 3, 4, 7, 14, 16 and 18 – Exhibit 1 T30 pp. 3375 – 3376.
Finally, the Officer asked the Applicant questions in relation to possible commission from health insurers, WeChat conversations and any personal file notes kept by the Applicant in relation to the nominated 27 Cases – Exhibit 1 T30 p. 3376.
On 9 December 2019, the Applicant responded to the Officer with translation documents and answers to the Questions posed – Exhibit 1 T30 pp. 3378 – 3456. The Applicant made the following statement – Exhibit 1 T30 p. 3378:
“I hereby declare that there is never or even been any illegal or unlawful issues involved for all my email communications with our clients at all the time.”
On 6 April 2020, the Applicant was sent correspondence from the Respondent pursuant to s 309(2) of the Act – Exhibit 1 T31 pp. 3457 – 3493.
Subsection 309(2) provides as follows:
“If the Migration Agents Registration Authority 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 Delegate of the Respondent stated on consideration of the evidence before her, it was open for her to be satisfied that – Exhibit 1 T31 p. 3465:
·“[the Applicant] ha[d] engaged in conduct in breach of clauses 2.1, 2.2, 2.8, 2.9, 2.9A and 5.2 of the Code of Conduct for registered migration agents (‘the Code’); and
·[the Applicant] [was] not a person of integrity or otherwise not a fit and proper person to provide immigration assistance.”
The Delegate outlined findings that were open to her in relation to integrity, fitness and propriety – Exhibit 1 T31 pp. 3481 – 3482:
“142.Your conduct, as discussed in this notice, and the possible breaches of the Code of Conduct raise serious questions as to whether you are a person of integrity and are fit and proper to give immigration assistance. You are alleged to have lodged false and or misleading documents to the Department in connection with the nomination and visa applications discussed in this notice.
143. The findings open to the Authority include:
·You have utilised your knowledge of the nomination and visa processes to advise clients on how to lodge application forms and supporting documents, including organisation charts, training and financial documents, in order to create a false appearance of genuine documents and genuine positions within profitable businesses.
·You have assisted, or offered to assist, clients to procure training documents to evidence training that was not undertaken, and was paid for retrospectively, in support of their applications, thereby encouraging clients to provide information or make statements in support of applications which you know to be misleading and inaccurate.
·You have encouraged clients to amend their financial documents in order to make their business appear more profitable and to maintain consistency in the documents that were being fabricated.
·You have attempted to mislead and/or deceive the Department by lodging applications for positions which you knew were not genuine, and then advised the persons involved on the methods to create the illusion that the position was genuine in order to assist with obtaining a positive visa outcome.
·You have placed your financial interests ahead of the legitimate interests of your client by referring clients to businesses from which you received a commission.
·Your actions set out above may amount to breaches of Australian law by acting contrary to:
(i)Section 234(1) of the Migration Act 1958 by providing information and documents to an officer exercising powers under the Migration Act which you knew to be false or misleading in a material particular.
(ii)Section 137.2 of the Criminal Code Act 1995 by providing a document to a Commonwealth entity, knowing that the document is false and misleading.
144. The lodgement of 25 sponsorship or nomination applications without any agreement or written instructions from the clients is a significant breach of professional obligations. An Agreement for Services and Fees is an important obligation under the Code, which allows clients to affirm their consent to the fees and services stipulated within. Your explanation for the lack of this documentation that you did not charge any fees, is not acceptable.
145.It likely that you were remunerated by the visa applicants for the immigration assistance provided to the employers. This, coupled with the questionable genuineness of the nominated positions as discussed throughout this notice, may indicate that the visa applicants were paying for positions which did not exist, in businesses which did not necessarily require the staff. If found, such conduct is in breach of sections 245AR and 245AS of the Act, relating to paying for visa sponsorship, to which civil and criminal penalties apply.
146.The evidence and issues raised with you in this notice are of a very serious nature. It may further be open to the Authority to find that:
·You were able to influence the amount each client was invoiced for training to reflect the amount they required to satisfy the training requirement for their relevant application.
·In light of your ongoing relationship with Q & T Accountants, you were able to influence them to create documents in line with your instructions.
·You were actively involved in the creation of falsified records, and encouraging your clients to make false or misleading statements to the Department.
·As the common link between these applications, you were not only aware that records and information were falsified, but appear to be the instigator of this potential fraud.
147.The allegations discussed in this notice are matters that relate to your honesty and integrity, and it may be open for the delegate to find that you are not a person of integrity and/or are otherwise not a fit and proper person to give immigration assistance.
In summary, the Delegate outlined nine separate allegations against the Applicant, namely:
1)he had entered into a client-agent relationship with 27 business sponsors, but had failed to execute an Agreement for Services and Fees with 25 of the sponsors, hereafter referred to as the “Agreement Allegation”;
2)he failed to provide evidence that he was instructed or authorised by the business sponsors to lodge applications on their behalf, “Instructions Allegation”;
3)he lodged an application on behalf of Ms NC on the basis of falsified documents, “NC Allegation”;
4)he coached clients to create an illusion of genuine applications lodged for genuine positions, “Coaching Allegation”;
5)he made statements, or encouraged clients to make statements, in support of misleading or inaccurate applications to meet training requirements, “Training Allegation”;
6)he provided direction to Q & T Accountants on how to create the illusion of genuine applications lodged in respect of genuine positions, “Financial Documents Allegation”;
7)he provided, or actively encouraged the provision of, false and misleading information to the Department in respect of employment contracts provided in support of the nomination applications, “Contracts Allegation”;
8)subsequent to being given the s 308 Notices, he provided false and misleading information to the Respondent, “Response Allegation”; and
9)he obtained commissions from referring clients to various health insurance providers without disclosing to those clients the financial benefit he obtained, “Remuneration Allegation”.
The Applicant availed himself of the opportunity to respond and, on 8 May 2020, provided a 23 page document which dealt with each of the issues raised by the Delegate concerning his integrity, fitness and propriety – Exhibit 1 T32 pp. 3496 – 3518. The Applicant also sought to have the opportunity to supplement his reply with a Statutory Declaration which would have annexed to it documents referred to in his reply, including translations and email correspondence. Further, the Applicant submitted that if this opportunity was denied, he asked to appear before the Delegate and present evidence and oral arguments – Exhibit 1 T32 p. 3517.

In response, the Delegate, in an email of 11 May 2020, extended the time for the Applicant’s final response to 31 May 2020, to allow him the opportunity to provide any additional information, documents and/or evidence – Exhibit 1 T33 p 3519.
On 1 June 2020, the Applicant provided the Delegate with a Statutory Declaration together with 30 supporting documents – Exhibit 1 T34 pp. 3522 – 3937.
On 22 June 2020, the Applicant emailed the Delegate requesting an oral hearing – Exhibit 1 T36 pp. 3942 – 3943:
“As stated in my statutory declaration, I understand that my previous practice as a migration [agent] may not be perfect. However, I really consider myself a person with honest, kindness and integrity all the time. I do not claim perfection but I have always trying my best play a good role in my life, not only as a migration agent for my business, but also as a father to my family and the only son to my elderly parents.
I really appreciate your time spending on my case, and from the bottom of my heart, I do cherish this unique opportunity to review all my past work and perfect and improve my work in the future. No matter what questions or concerns you may still have after reviewing all my submission, I really wish you could give me a opportunity such as oral hearing to further explain and address all these questions to the Authority. As stated, I have never and ever done anything illegal or unlawful against the law. If such an oral hearing is offered and required, I will be really grateful and confident to stand up to face all these allegations and express myself clearly to you and the Authority in person.
Once again, it is a job I perform with pride and it my livelihood, and I really implore you to take the proper and sympathetic course of enabling me to continue my professional endeavours…”
The next day, the Delegate responded to the Applicant, and declined his request for an oral hearing – Exhibit 1 T36 p. 3942:
“I acknowledge your request for an oral hearing.
You have been informed of the allegations made about your conduct in the complaint and the information before the Authority. You provided your response to the allegations in the section 308 notice. After considering your response, you were sent a notice under section 309 of the Act to inform you of the possible findings the Authority may make after consideration of your response to the allegations and documents you provided in response to the section 308 notice. The section 309 notice also invited you to make written submissions and to provide any information, documents or evidence in support of your response, which you have done. In addition, where I have had further questions, such as in the email chain below, I have asked for written clarification from you. You have been afforded the opportunity to present your case, including extensions of time to respond.
I will take into consideration your statements in your email below, and any information which you submit before a decision is made and the delegation exercised, but will not be offering you an oral hearing.”
The Applicant emailed the Delegate on 23 July 2020 with further information concerning a break-in robbery of his business premises on 2 May 2019 where work phones left on the premises were either destroyed or stolen by intruders – Exhibit 1 T37 pp. 3948 – 3952.
On 21 December 2020, the Delegate decided to cancel the Applicant’s registration as a migration agent. In doing so, the Delegate found that that the Applicant had engaged in conduct in breach of his obligations under cl. 2.1, 2.2, 2.9, 5.2, 6.1 and 6.1A of the Code – Exhibit 1 T38 pp. 3953 – 4009.
The Delegate made the following findings with respect to the nine Allegations set out above:
1)Agreement Allegation. The Delegate found that the Applicant failed to enter into an Agreement for Services and Fees with 25 business sponsors and breached his obligations under cl. 5.2 of the Code. It was also found that this was part of the Applicant’s general practice, indicating a deliberate disregard for his obligations under the Code – Exhibit 1 T38 pp. 3972 – 3974;
2)Instructions Allegation. The Delegate was not satisfied that the Agent did not receive instructions in respect of the lodgement of the 27 applications examined, and specifically the eight ENS nomination applications. However, the Delegate was satisfied that the Agent did not confirm the instructions in writing for each ENS client, in breach of cl. 2.8 of the Code. Further, the Delegate was satisfied that the Applicant failed in his record keeping obligations under Part 6 of the Code – Exhibit 1 T38 pp. 3974 – 3977;
3)Coaching Allegation. The Delegate found that the Applicant actively encouraged clients to provide exaggerated or misleading information and documents to the Department. The documents investigated appeared to be “carefully orchestrated to create the illusion of genuine circumstances which align with the requirements of the applications…” Further, the Delegate noted that the Applicant reminded clients what information need to be included in documents which “indicates the Agent’s knowledge that inaccurate or misleading information…is being provided to the Department in support of applications.” The Delegate was, therefore, satisfied that the email exchanges examined evidenced the Applicant’s “dishonest business practices and methods.” The Delegate was satisfied that the Applicant actively encouraged the provision of false information to the Department, was in breach of the law, and, specifically, was in breach of cl. 2.1 and 2.9 of the Code – Exhibit 1 T38 pp. 3978 – 3985;
4)Training Allegation. The Delegate, having reviewed the evidence, was unable to make a finding in respect of this Allegation – Exhibit 1 T38 pp. 3985 – 3987;
5)Financial Documents Allegation. The Delegate was satisfied that the Applicant engaged in the creation of falsified records, and assisted his business sponsor clients to make false and misleading statements to the Department. In particular, the Delegate found that the Applicant’s longstanding relationship with Q & T Accountants, enabled the submission of falsified financial documents for business sponsor clients, who otherwise would not meet the application criteria. Those documents were intended to create a positive but inaccurate or false statement of the client’s financial situation. The Delegate, therefore, found that the Applicant was in breach of obligations owed under cl. 2.9 of the Code – Exhibit 1 T38 pp. 3987 – 3990;
6)Contracts Allegation. The Delegate noted that the employment contracts provided in support of the nomination applications by the 27 businesses were almost identical in content and format, with differences only in the names, contact details and different letterheads. However, the Delegate accepted that although the businesses were provided the same template, these were available on the Fair Work Commission website. In conclusion, the Delegate accepted that the Applicant’s clients were predominantly of a non-English speaking background and may have required such assistance. No adverse finding was made – Exhibit 1 T38 pp. 3990 – 3991;
7)NC Allegation. This was the initial allegation made against the Applicant, and the Delegate found that, in her opinion, having regard to the “inconsistencies and contradictions in the information” before her in respect of Ms NC and the position for which she was nominated, she was satisfied that the Applicant had knowingly lodged the relevant application on the basis of falsified documents. Accordingly, the Delegate was satisfied that the Applicant’s actions constituted a breach of cl. 2.1 and 2.9 of the Code – Exhibit 1 T38 pp. 3991 – 3993;
8)Response Allegation. Clause 2.9A of the Code provides that a registered migration agent must not mislead or deceive the Respondent, whether directly or by withholding relevant information. The Delegate first referred to information provided by the Applicant in relation to the break-in of his premises on 2 May 2019, and accepted the Applicant’s explanation that an unintentional error had been made in respect of a Queensland Police Service Case ID number. However, the Delegate went on to note there were discrepancies between the Applicant’s responses and the contents of the client files noted by the Respondent. The Delegate found that the manner in which the Applicant maintained his client file notes was in breach of cl. 6 of the Code – Exhibit 1 T38 pp. 3993 – 3994; and
9)Remuneration Allegation. The Applicant conceded that he received a financial benefit from health insurance providers for referring clients to them. The Delegate did not accept the Applicant’s statement that he notified his clients verbally of the commissions he received. Accordingly, the Delegate was satisfied that the Applicant’s conduct in respect of obtaining a financial benefit from BUPA and Medibank without notifying his clients constituted a breach of cl. 2.2 of the Code – Exhibit 1 T38 pp. 3994 – 3996.
The Delegate then addressed s 290 of the Act, which provides that an applicant must not be registered if they are not a person of integrity or not fit and proper. Subsection 290(1) provides:
“An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:
(a)the applicant is not a fit and proper person to give immigration assistance; or
(b)the applicant is not a person of integrity; or
(c)the applicant is related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship.
The Delegate made the following findings – Exhibit 1 T38 p. 3998:
“213.I have considered the Agent’s statement that he does not ‘claim perfection’ but nonetheless considers himself to be honest, kind and acting with integrity ‘all the time’. I do not accept this claim. I am satisfied the Agent’s actions have been dishonest and that he has failed to act with integrity in relation to all 27 cases examined by the Authority.
214.The Agent has potentially engaged in criminal conduct by lodging applications for nominations for non-genuine positions relying on the provision of false and misleading information to obtain permanent residence for the visa applicants. The Agent lodged these applications with the Department even though he knew that the applications were not genuine. Knowingly providing false or misleading information to the Department is unacceptable conduct by a registered migration agent. It undermines the trust that the Department places in registered migration agents that they lodge applications on behalf of clients which meet the visa criteria and are supported by genuine documents and accurate and truthful information. The sheer number of the cases in which the Agent has been dishonest indicates his willingness to contravene the law, and breach the trust placed in him. Such behaviour is incompatible with honesty, integrity and moral character required of a registered migration agent. Through this dishonesty the Agent has caused significant detriment to the reputation and integrity of the migration advice profession.
215.The findings discussed in this notice are matters that relate to the Agent’s honesty and integrity. On the basis of the findings made, I find that the Agent’s conduct is indicative of someone who is not a person of integrity and/or otherwise not a fit and proper person to give immigration assistance.”
The Delegate determined to cancel the Applicant’s registration as a registered migration agent under s 303(1)(a). Pursuant to s 292, a migration agent who has had their registration cancelled must not be registered within 5 years of the cancellation. Accordingly, the Delegate’s cancellation decision would, if not substituted, be in effect for 5 years from 21 December 2020 – Exhibit 1 T38 p. 4001 paras 231 – 235.
On 22 December 2020, the Applicant lodged an Application for Review of Decision with the Administrative Appeals Tribunal – Exhibit 1 T2 pp. 3 – 8.
THE LAW
Part 3 of the Act is a comprehensive regime for the regulation of persons giving immigration assistance. The primary purpose of this statutory scheme is to “protect aliens against incompetent and unscrupulous advisers” – Kraues v Migration Agents Registration Authority [2018] FCA 664 at [10] per Perry J (Kraues).
Subject to s 280, a person who is not a registered migration agent must not give immigration assistance – s 280(1). Further, subject to s 281(3), a person who is not a registered migration agent must not ask for or receive any fee or other reward for giving immigration assistance – s 281(1).
The Act also provides, subject to s 284, that a person who is not a registered migration agent must not advertise that he or she gives immigration assistance – s 284(1).
The term “immigration assistance” is defined by s 276 as follows:
(1) For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:
(a)preparing, or helping to prepare, the visa application or cancellation review application; or
(b)advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or
(c)preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or
(d)representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.
(2) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:
(a)preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or
(b)advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or
(c)representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.
(2A) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:
(a)preparing, or helping to prepare, a request to the Minister to exercise his or her power under section 351, 417 or 501J in respect of a decision (whether or not the decision relates to the other person); or
(aa)preparing, or helping to prepare, a request to the Minister to exercise a power under section 195A, 197AB or 197AD (whether or not the exercise of the power would relate to the other person); or
(b)advising the other person about making a request referred to in paragraph (a) or (aa).
(3)Despite subsections (1), (2) and (2A), a person does not give immigration assistance if he or she merely:
(a)does clerical work to prepare (or help prepare) an application or other document; or
(b)provides translation or interpretation services to help prepare an application or other document; or
(c)advises another person that the other person must apply for a visa; or
(d)passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.
(4)A person also does not give immigration assistance in the circumstances prescribed by the regulations.”
[Bold in original]
Subsection 287(1) provides that the Migration Agents Registration Authority must keep a register, known as the Register of Migration Agents, listing individuals who are registered as migration agents.
As a general rule, the registration of a migration agent lasts for 12 months after the registration – s 299(1).
Section 290 provides that an applicant must not be registered if they are not a person of integrity or not a fit and proper person. Subsection 290(1) has been set out above, but for ease of reference, the entire section is set out below:
(1) An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:
(a)the applicant is not a fit and proper person to give immigration assistance; or
(b)the applicant is not a person of integrity; or
(c)the applicant is related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship.
(2) In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:
(a)the extent of the applicant’s knowledge of migration procedure; and
(c)   any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:
(i)     a fit and proper person to give immigration assistance; or
(ii)    a person of integrity;
(except a conviction that is spent under Part VIIC of the Crimes Act 1914); and
(d) any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and
(e)any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and
(f)any disciplinary action that is being taken, or has been taken, against the applicant that the Authority considers relevant to the application; and
(g)any bankruptcy (present or past) of the applicant; and
(h)any other matter relevant to the applicant’s fitness to give immigration assistance.
(3) In considering whether it is satisfied that an individual to whom the applicant is related by employment is not a person of integrity, the Migration Agents Registration Authority must take into account each of the following matters, so far as the Authority considers it relevant to the question whether the individual is not a person of integrity:
(a)any conviction of the individual of a criminal offence (except a conviction that is spent under Part VIIC of the Crimes Act 1914);
(b)any criminal proceedings that the individual is the subject of;
(c)any inquiry or investigation that the individual is or has been the subject of;
(d)any disciplinary action that is being taken, or has been taken, against the individual;
(e)any bankruptcy (present or past) of the individual.
(4) To avoid doubt, this section applies to all applicants (not just first time applicants).
Section 290 was considered by Perry J in Kraues. Her Honour made the following observations:
“12In considering whether it is satisfied that an applicant is not fit and proper or not a person of integrity, subs 290(2) provides that the Authority must take into account among other things: any relevant convictions, criminal proceedings, or inquiries or investigations of the applicant; any relevant disciplinary action; any bankruptcy; and, finally, ‘any other matter relevant to the applicant's fitness to give immigration assistance’. This last consideration emphasises the width of considerations which are potentially relevant to an applicant's fitness to give immigration assistance, in accordance with the natural and ordinary meaning of the concept of a ‘fit and proper person’. As Dixon CJ, McTiernan and Webb JJ explained in Hughes and Vale Pty Ltd v State of New South Wales (No. 2) (1955) 93 CLR 127 at 156:
‘The expression ‘fit and proper person’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things, honesty knowledge and ability: ‘honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it’ - Coke.’
(emphasis original)
13Nor can the concept of a fit and proper person be divorced from the office to which the inquiry relates. As Toohey and Gaudron JJ held in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380, the expression ‘fit and proper person’:
‘…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 will 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.’
(See also e.g. Davies v Australian Securities and Investments Commission (1995) 59 FCR 221 at 232-233 (Hill J).)”

Section 303 deals with disciplining registered migration agents. The Respondent is empowered to cancel or suspend the registration of a registered migration agent or to issue a caution. Section 303 is set out below:
“(1) The Migration Agents Registration Authority may:
(a)cancel the registration of a registered migration agent by removing his or her name from the register; or
(b)suspend his or her registration; or
(c)caution him or her;
if it becomes satisfied that:
(d)the agent’s application for registration was known by the agent to be false or misleading in a material particular; or
(e)the agent becomes bankrupt; or
(f)the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g)an individual related by employment to the agent is not a person of integrity; or
(h)the agent has not complied with the Code of Conduct prescribed under section 314.
Note 1: The Authority is required to caution a registered migration agent or cancel or suspend a registered migration agent’s registration in certain circumstances: see Division 3AA.
Note 2: If the Authority is considering making a decision under this section, it must invite the registered migration agent to make a submission: see sections 309 and 310.
Unpaid registration status charge
(2) The Authority may also suspend the registration of a registered migration agent if any registration status charge payable by him or her remains unpaid after the time when it becomes due for payment.”
Section 311A empowers the Respondent to bar a former registered migration agent from being a registered migration agent for a period of not more than five years if, after investigating a complaint about him or her in relation to the provision of immigration assistance, it is satisfied that the subject matter of the complaint is made out.
Subsection 314(1) provides that the Regulations may prescribe a Code of Conduct for registered migration agents. Subsection 314(2) requires a registered migration agent to conduct himself or herself in accordance with the prescribed Code of Conduct (Code).
The Code, at the time of the reviewable decision, was contained in Schedule 2 of the Migration Agents Regulations 1988 (Cth).
The Applicant was found to have breached cl. 2.1, 2.2, 2.9, 5.2. 6.1 and 6.1A of the Code, as it then existed.
For the purposes of this decision, reference will be made to the Code as it existed prior to 1 March 2022, as the conduct that was the subject of the Allegations set out above occurred when it was in force.
After the Hearing was concluded and final submissions were received, Regulation 8 and Schedule 2 of the Migration Agents Regulations 1988 (Cth) were repealed. In place of Schedule 2, the Code is now contained in the Migration (Migration Agents Code of Conduct) Regulations 2021 (Cth). These Regulations came into force on 1 March 2022. Although this decision will primarily reference the pre-1 March 2022 Code, when appropriate, reference will be made to the comparable post 1-March 2022 Code provisions.
The Code is not intended to displace any duty or liability that exists under the common law, or statute law of the Commonwealth, a State or Territory, in relation to a matter covered by the Code – cl. 1.9.
The aims of the Code and overarching principles are set out below:
“1.10 The aims of the Code are:
(a) to establish a proper standard for the conduct of a registered migration agent;
(b) to set out the minimum attributes and abilities that a person must demonstrate to perform as a registered migration agent under the Code, including:
(i)     being a fit and proper person to give immigration assistance;
(ia) being a person of integrity and good character;
(ii) knowing the provisions of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, in sufficient depth to offer sound and comprehensive advice to a client, including advice on completing and lodging application forms;
(iii) completing continuing professional development as required by the Migration Agents Regulations 1998;
(iv)    being able to perform diligently and honestly;
(v)    being able and willing to deal fairly with clients;
(vi) having enough knowledge of business procedure to conduct business as a registered migration agent, including record keeping and file management;
(vii) properly managing and maintaining client records;
(c) to set out the duties of a registered migration agent to a client, an employee of the agent, and the Commonwealth and its agencies;
(d) to set out requirements for relations between registered migration agents;
(e) to establish procedures for setting and charging fees by registered migration agents;
(f)     to establish a standard for a prudent system of office administration;
(g)    to require a registered migration agent to be accountable to the client;
(h) to help resolve disputes between a registered migration agent and a client.
1.11 The Code does not list exhaustively the acts and omissions that may fall short of what is expected of a competent and responsible registered migration agent.
1.12 However, the Code imposes on a registered migration agent the overriding duty to act at all times in the lawful interests of the agent’s client. Any conduct falling short of that requirement may make the agent liable to cancellation of registration.”
The relevant clauses of the Code referred to either in the reviewable decision or in other interchanges between the Respondent and the Applicant are set out below:
“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 a 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.
…
2.2   If a registered migration agent:
(a) gives advice of a non‑migration nature to a client in the course of giving immigration assistance; and
(b)    could receive a financial benefit because of the advice;
the agent must tell the client in writing, at the time the advice is requested or given, that the agent may receive a financial benefit.
…
2.9A registered migration agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.
…
2.9A In communicating with, or otherwise providing information to, the Authority, a registered migration agent must not mislead or deceive the Authority, whether directly or by withholding relevant information.
…
5.2    A registered migration agent must:
(a)    before starting work for a client, give the client:
(i)     an estimate of charges in the form of fees for each hour or each service to be performed, and disbursements that the agent is likely to incur as part of the services to be performed; and
(ii)    an estimate of the time likely to be taken in performing the services; and
(b) as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of:
(i)     the estimate of fees; and
(ii)    the estimate of the time likely to be taken in performing the services; and
(c) give the client written confirmation (an Agreement for Services and Fees) of:
(i)     the services to be performed; and
(ii)     the fees for the services; and
(iii) the disbursements that the agent is likely to incur as part of the services; and
(d) give the client written notice of any material change to the estimated cost of providing a service, and the total likely cost because of the change, as soon as the agent becomes aware of the likelihood of a change occurring.
…
6.1 A registered migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing:
(a)    a copy of each client’s application; and
(b)    copies of each written communication between:
(i)     the client and the agent; and
(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.
6.1A A 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.”
[Bold in original]
The Applicant’s legal representatives contend that the Tribunal is obliged to apply the “Briginshaw” test when determining whether or not it is satisfied of the allegations of misconduct made against him – Exhibit 6 pp. 6 – 7 para 34.
In particular, it is contended that, where a finding that the Applicant has engaged in fraudulent conduct such as:
(a)knowingly placing false documents before the Department;
(b)engaging in dishonest business practices;
(c)falsifying documents; and
(d)disregarding the law;
“a very high level of satisfaction” should be reached before making such a finding – Exhibit 6 pp. 6 – 7 para 34.
The Tribunal accepts that, when findings are required to be made which carry with them serious, and potentially life-changing, decisions, the very gravity of the consequences colour the degree of satisfaction required. In short, a very high level of satisfaction is required where the gravity of the consequence flowing from the decision are manifest to a decision-maker.
The “Briginshaw” test refers to the case of Briginshaw v Briginshaw (1938) 60 CLR 336, and, in particular, to dicta of Dixon J (as he then was). The Tribunal’s attention was drawn to the Full Federal Court decision (Madgwick, Finkelstein and Dowsett JJ) of Hartnett v Migration Agents Registration Authority (2004) 140 FCR 388 and, in particular, the following observations of the Court:
“84 As is well-known, in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362, Dixon J (as his Honour then was) said:
‘The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.’
85 It was submitted by Mr Hartnett that the Tribunal was obliged to apply the Briginshaw test in determining whether or not it was satisfied as to the allegations of misconduct made against Mr Hartnett, and that it failed to do so. The submission was made primarily in connection with the Misleading Statements point. It seems that the Tribunal was referred to the decision in Briginshaw and appears to have appreciated the serious consequences for Mr Hartnett of an adverse finding. (See [133].) Nonetheless our concerns regarding the Tribunal's reasoning may suggest that the Tribunal did not appreciate the gravity of the matter. As we have concluded that the finding concerning the Misleading Statements point must be set aside, it is not necessary to consider the Briginshaw point further in connection with it. As to the Late Lodgment point, we cannot see that any question could arise as to the application of Briginshaw. The relevant facts appear to have been beyond dispute. As to the Inadequate Advice point, there is no appeal.
The Respondent contended, and the Tribunal agrees that, for the purpose of s 303(1)(h), it does not matter how many clauses of the Code are breached, rather the focus of attention is a failure to comply with the Code – Exhibit 2 p. 8 para 27. Reference was made to Stolar and Migration Agents Registration Authority (2007) 95 ALD 437 where the following observations were made 447/[63]:
“The respondent was at pains, or so it seemed to me, to attach as many labels of breach of the code as possible to the applicant’s conduct. I do not share the enthusiasm for attaching labels. In my view, it does not matter how many clauses of the code are breached; what is important is that there be a failure to comply with the code. Once the respondent (or the tribunal) is satisfied that there has been such a failure, the disciplinary power is enlivened. That power is exercised by reference to the nature of the underlying conduct and the extent to which, by reference to that conduct, the applicant’s conduct fell below the standard expected…”
THE HEARING
A Hearing was convened in Brisbane between 8 – 10 November 2021.
The Applicant was represented by Ms King of Counsel and the Respondent by Mr Nolan of Counsel.
The Applicant appeared and gave evidence over all three days of the Hearing. The only other person who gave evidence was Mr Qing Lai who gave testimony on 9 November 2021.
CONSIDERATION
Introduction
In written submissions lodged after the Hearing, dated 8 December 2021, the Respondent narrowed those matters in contention to the following – Respondent’s Written Submissions (RWS) pp. 3 – 4 para 16:
1)Agreement Allegation – the Applicant entered into a client-agent relationship with each of the 27 business sponsors without signing an Agreement for Services and Fees with 25 of the clients;
2)Instructions Allegation – the Applicant failed to provide evidence that he was instructed or authorised by the business sponsors to lodge applications on their behalf;
3)Coaching and Financial Allegation – the Applicant provided direction to clients and associated parties on how to create the illusion of genuine applications lodged in respect of genuine positions;
4)Remuneration Allegation – the Applicant obtained financial benefits by referring clients to health insurance providers, without disclosing to clients the financial benefits; and
5)Record Keeping Allegation – the Applicant was in breach of his record keeping obligations.
Ironically, having regard to the genesis of the Respondent’s investigations of the Applicant, in the Respondent’s Written Submissions in Reply (RWSR) dated 14 December 2021, it was stated: “As the Respondent’s submissions show, it no longer presses the “[NC] Allegation” - RWSR p. 1 para 6.
Having regard to the concession made by the Respondent, the Tribunal does not have to deal with the NC Allegation. This Allegation, together with the others where no findings were made against the Applicant, will not be further ventilated.
Objections to evidence
At the Hearing, Ms King objected to the admission into evidence of English translations of Chinese character documents. Those translations were required of the Applicant by the Respondent on the basis of a Notice issued pursuant to s 308. Ms King submitted that there was no legal basis for the Respondent to require the Applicant to obtain a translation.
The following exchange between the Tribunal and Ms King explains the thrust of her submissions – Transcript (Tr.) 8.11.2021 p. 10:
“MS KING:…If we now turn back to section 308, it’s the applicant’s contention that the terms of section 308 do not authorise …the issuing of a notice requiring the production of documents which are, in fact to be created by a third party…
DEPUTY PRESIDENT: Sorry to interrupt you, so the crux of your submission is section 308 allows the Authority to require a person, an agent, to produce to the Authority extant documents, not to create new documents?
MS KING: Not just that, Deputy President. That section 308 can require the creation of documents at the hand of the agent and that would be authorised by section 308(1)(a), say, for example, but not the creation of documents by a third party. And this section 308 or purported section 308 notice requires not Mr Gu a statutory declaration but in its terms says, ‘The following pages to be translated by a Naati-accredited translator.’”
The Tribunal did not make a definitive ruling on this submission as it was only raised on the day and the issue was able to be disposed of by different means, which is discussed below.
Whilst it is not strictly necessary to resolve this matter, it is referred to by the Applicant’s legal representatives in the Submissions of the Applicant (SA) dated 8 December 2021.
The Tribunal’s attention was drawn to the Full Federal Court decision of Fieldhouse & Ors v Commissioner of Taxation (1989) 25 FCR 187. That matter involved consideration of s 264 of the Income Tax Assessment Act 1936 (Cth), which provided in part:
“(1) The Commissioner may by notice in writing require any person, whether a taxpayer or not, including any officer employed in or in connection with any department of a Government or by any public authority –
(a) to furnish him with such information as he may require; and
(b) to attend and give evidence before him or before any officer authorised by him in that behalf concerning his or any other person’s income or assessment, and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto.”
The Commissioner of Taxation issued notices under s 264(1) to a number of persons/entities, requiring, inter alia, the recipients to create, or otherwise obtain, copies of specified documents.
Lockhart J made the following observations (194 – 195):
“There is some force in the view that the notice requires the provision only of existing copies but it is, I think, unreal. A sensible recipient of the notice would consider that he is not obliged to provide the originals of documents, but is required to provide copies of the documents or classes of documents specified in the notice however he obtains them, for example, existing copies in his possession, copies from other persons or by thereafter copying documents so that he may produce a copy to the Deputy Commissioner. He would know that the notice must be complied with, otherwise he may be liable to prosecution for an offence against the Act. In my view the recipient would be likely to conclude that, however he obtains one, a copy must be produced. The notice could by appropriate language have made it clear that only copies in existence when the notice is served are to be provided; but the notice to Perron Investments does not do this. Indeed, the notice is not even confined to the production of copies of documents in the recipient's custody or under his control. This is the language of s 264(1)(b) and it is not mentioned in the notice. Section 264(1)(b) only extends to documents in the custody or under the control of the recipient when he receives the notice and does not support a construction that requires copies to be brought into existence. If it did, a serious question would arise as to whether the section was in that respect a valid exercise of the power of the Commonwealth Parliament under the Australian Constitution: see s 51(xxxi). It follows that the notice is bad at least in so far as it requires the recipient to provide copies.”

It will be noted that s 308(1)(c) is drafted in a somewhat broader manner than s 264 of the Income Tax Assessment Act 1936 (Cth). The latter statute limited the notice to books, documents and other papers in the custody or control of the recipient. There is no such limitation in s 308(1)(c) which simply requires the production of specified documents or records. Presumably, this broader drafting may impose a requirement on a recipient to produce documents or records which are in the possession of a third party, or which are in the public domain.
However, there is a clear line of Federal Court authority which has strictly construed the notice provisions, no doubt with the intention of ensuring that the requirement to produce documents or records is not used in a manner which would impose unfair and onerous burdens on recipients.
Mr Nolan drew the Tribunal’s attention (Tr. 8.11.2021 p. 22) to the following observations of Conti J in Joel v Migration Agents Registration Authority (2000) 110 FCR 202 at 242/[46]:
“…Counsel for the respondent has contended that authority for the respondent's requirement for provision of copies of the client account records is already to be found within s 308(1)(c) of the Act, but I would reject that submission. Whether or not the account records the subject of the second notice may be rightly described as ‘relevant to the agent's continued registration’ with s 308(1)(c), such statutory provision is in any event is silent as to any obligation to provide copies, in contrast for instance to ss 306D(2) and 306E(2).”
It is tolerably clear that although s 308(1)(c) is silent as to the production of copies, a Notice which gives a person the opportunity to provide original versions or copies would not be bad. It would, however, be a problematic Notice if a recipient were obliged to make copies without the option of providing original versions.
However, in this matter, the issue was not the question of copies, but whether s 308 is drafted in a manner which allows a Notice to be issued requiring the production of a new document either by the recipient, or, in this case, a third party at the behest of the recipient. In this matter, the Notice required the production of a new document, namely a translation, by a nominated third party; a person capable of producing a NAATI-accredited translation.
It will be recalled that the Officer who issued the Notice in question stated – Exhibit 1 T30 p. 3375:
“It is further noted that the client files are quite voluminous, especially if considered in their entirety, and I appreciate obtaining accredited translations of the entire client files would be both time-consuming and costly. Whilst I would welcome the entire files to be translated….”
It is clear that the Officer believed that she had the legal power, should she wish to exercise it, to require hundreds of pages of material to be translated at the cost of the Applicant. The fact that the Notice was limited to relatively few pages, was entirely due to the discretion exercised by the Officer.
Mr Nolan submitted that on a fair reading, s 308(1)(c) does allow a Notice to be issued requiring the translation of an existing document – Tr. 8.11.2021 pp. 22 – 23. In support of that proposition, Mr Nolan submitted that this was consistent with s 317. Section 317 provides as follows:
“The Migration Agents Registration Authority has power to do all things necessarily or conveniently done for, or in connection with, the performance of its functions.”
Section 317 is a general provision designed to facilitate the Respondent carrying out its statutory functions. It is not a stand-alone provision that empowers the Respondent to engage in any conduct it sees fit to do. In particular, it cannot be sensibly read as extending the operation of s 308(1)(c) or, indeed, any other like provision in the Act.
A fair reading of s 308(1)(c) does not, in the Tribunal’s opinion, disclose any power for the Respondent to require a registered migration agent to create new documents, irrespective of whether the registered migration agent creates the documents, or a third party creates them. The Respondent can require a registered migration agent to make a statutory declaration in answer to written questions or to appear and answer questions – s 308(1)(a)-(b). However, the power in s 308(1)(c) is limited to extant documents and records, and does not extend to the creation of new documents and records.
As Mr Nolan correctly submitted this finding does not result in the translations not being allowed to be admitted into evidence – Tr. 8.11.2021 pp. 23. The Tribunal is not bound by the rules of evidence and can, at its discretion, admit into evidence documents that were produced without proper legal foundation. Reference can be made to Salters and Telstra Corporation Limited [2000] AATA 734 and Griffiths and Migration Agents Registration Authority [2001] AATA 240.
At the Hearing, Mr Nolan made the following cogent submissions – Tr. 8.11.2021 pp. 23 – 24:
“The Rules of Evidence don’t apply to tribunal proceedings and the decision that my friend provided in the matters of Griffiths, in that decision Deputy President Forgie did consider section 308(1)(b) and found that the transcript of an interview with the applicant didn’t fall within section 308(1)(b) and, therefore…performed a balancing exercise, in determining whether to admit the document or not. The balancing exercise requires to balance the need to ensure that proper processes or proper procedures are followed against the probative value that the documents would have.
Now, Deputy President, if you were to actually apply that test here, the discretion would fall in favour of admitting the documents purely because a translation of the emails are not only highly probative, they’re critical to determining the decision that’s subject to review. Without a translation of the emails we won’t – the tribunal won’t be able to ascertain what was written in them. Not only that, the translations were provided by the applicant following a request made in March 2019. The translated emails and interpretation of them from the Authority was put to Mr Gu. He took no issue with it at that point.
The tribunal application was lodged in December 2020; again, Mr Gu took no issue with that. And the validity of this conduct again was not raised at any point in time until 8.34 this morning. So the upshot of that is that no point prior to now has the applicant either disputed that they’re an incorrect translation of the documents, nor has he suggested that these documents are irrelevant. We would say that they’re actually critical to determining the decision subject to review and that far outweighs the need to ensure proper procedures are followed.
Finally, Deputy President, even beyond that, let’s talk about this from a purely practical perspective, if Deputy President, if you were minded to actually not admit these translations, because they were raised now we would need to seek an adjournment of this five-day hearing and actually get them translated ourselves. So there is simply no practical point in actually making the decision because it would waste this hearing and we would ultimately go and get the translations that the applicant has now already accepted is a true translation of what the emails say. So purely from that practical point of view there is no utility in refusing the admission of those translations.”
After hearing further from Ms King, I then made the following observations – Tr. 8.11.2021 p. 26:
“…Assuming that the request was ultra vires there’s still, as you’ve indicated, Ms King and Mr Nolan conceded or pushed, a discretion in the tribunal whether to receive the documents or not based on a range of factors. Prejudice to Mr Gu is obviously one of the factors. The benefit that the reception of the documents would have for the resolution of these proceedings is another factor. But weighing on my mind is the final point that Mr Nolan made and that is if I say no he will seek an adjournment to have these documents translated.
And I can indicate now, without even any further submissions being made, that I would grant the request because he would be placed in a situation of disadvantage otherwise, and this matter would not be heard prior to Christmas. So it’s a question, I suppose, for me but I’ll put it firstly to you, Ms King, would you want this matter resolved prior to Christmas or would you want the matter to be adjourned until 2022, if we went down that path?”
The proceedings were then adjourned so that Ms King could obtain instructions from the Applicant. After the proceedings resumed, the following exchange occurred – Tr. 8.11.2021 p. 27:
“DEPUTY PRESIDENT: Yes, good afternoon again. Ms King, did you get an opportunity to get some instructions from Mr Gu?
MS KING: Yes, Mr Gu wishes very strongly to proceed with the hearing.
DEPUTY PRESIDENT: Thank you for that. I’ll proceed then with the documents included in the T documents and that we’ve been discussing, will remain admitted into evidence at this stage at least…”
If the Applicant believed he was at a disadvantage by having the translated documents remain admitted into evidence, he was given ample opportunity to object. The Applicant specifically instructed Ms King that he wanted the matter to be heard on the days allocated, and, as Mr Nolan pointed out, prior to the first day of the Hearing, no objection had been made. Both the Respondent and the Tribunal were surprised by the objection on the day of the Hearing.
Ms King invites the Tribunal to go over this matter again after it was fully ventilated on the first day of the Hearing – SA pp. 1 – 3 paras 2 – 8.
For the record, the Tribunal formed the view that the translations, which the Applicant organised, are not apt to create a misleading impression of conduct by the Applicant. The Tribunal accepts that only a few pages of lengthy email exchanges were translated. However, if the Respondent had directed that copious emails be translated, no doubt the Applicant would have objected on the basis of the cost impost. Further, if the Applicant believed that the translated emails created a misleading impression, he could have organised for further translations to be made.
To sum up, the Notice requiring the Applicant to translate documents was beyond power. There is no legal authority in s 308(1)(c) for the Respondent to require a registered migration agent to pay for the translations of documents. If the Respondent requires, in the future, documents to be translated, then that translation should be organised and paid for by the Respondent.
Next, the Tribunal has a discretion, however, to admit documents that were created by a Notice that was beyond power. As Mr Nolan pointed out, when making a decision on whether to admit such documents, a decision-maker has to engage in a potentially complex weighing exercise.
The Tribunal in this matter did not have to undertake a weighing exercise, because it was put to the Applicant that, if an adverse decision was made against the Respondent, the Tribunal would agree to an adjournment to allow the documents to be translated by the Respondent. The Applicant, having considered his options, instructed Ms King to proceed with the Hearing and not maintain his objection to the admission of the translated documents into evidence. With the constructive withdrawal of the objection, the Hearing resumed.
Malicious complaint
Ms King made submissions about the anonymous complaint that activated the Respondent’s investigation of the Applicant. It is submitted that the complaint was made an ex-employee of the Applicant, Ms YL, who had been threatened with litigation by the Applicant, and who subsequently became a business competitor – SA p. 3 para 9.
Ms King then made these submissions – SA p 3. paras 10 – 11:
“10.At the stage that MARA received the anonymous complaint they could not have known that it was maliciously motivated, but they did know that it was anonymous and thus less credible. Presumably because the complaint was anonymous, no attempts are recorded in the T documents to verify the material in the complaint beyond checking the visa statuses recorded in the complaint.
11.It is surprising that MARA placed any weight on the complaint once they undertook that exercise because as is recorded in Ex 1, T4 p 12 the allegation that Ms [NC] was holding a subclass 187 bridging visa was demonstrably false. The First s 308 Notice acknowledges as much at p 12 where it acknowledges that Ms [NC] was holding a RSMS bridging visa.”
There are two observations that can be made about these submissions, assuming that the complaint was, in fact, malicious.
First, as Ms King highlights, the Respondent would not have known when it received the anonymous complaint whether it was maliciously motivated or not. The Respondent investigated the complaint in a seemingly objective and professional manner. In the course of the Respondent’s investigations, it broadened the scope of its inquiry. Again, such a course of action was open to the Respondent and, no doubt, it could be contended, was an appropriate course of action having regard to the broad statutory charter which it holds. In short, whether the initial anonymous complaint was made bona fide or with malice, the Respondent acted appropriately and the course of action it adopted cannot be impugned.
Second, even if the complaint was motivated by mala fides, the relevance of that state of mind is firmly focused on the matter complained of, namely the status of Ms NC. As Mr Nolan has pointed out, “the motivation behind the complaint, is only relevant to the extent of that specific complaint. As the Respondent’s submissions show, it no longer presses the ‘[NC] Allegation.” – RWSR p. 1 para 6.
Credibility of the Applicant
The Tribunal had the benefit of observing the Applicant give evidence over three days. He was subject to vigorous, forensic and highly competent cross-examination by Nr Nolan. If there were flaws in the testimony of the Applicant, those flaws would have been exposed by Mr Nolan.
The Tribunal observed the Applicant to be a pleasant and cooperative witness. He attempted to answer all questions asked of him in a direct and non-evasive manner.
At no time during the Applicant’s evidence did the Tribunal form the view that he was trying to evade responsibility or gave answers that were less than truthful.
Moreover, the Tribunal agrees with the submission of Ms King that the manner in which he testified was broadly consistent with the exchanges he had with the Respondent during the course of its investigations – SA p. 4 para 15.
To sum up, the Tribunal found the Applicant to be a witness of credit and his testimony was believable.
Agreement Allegation
As previously noted, cl. 5.2 of the Code requires a registered migration agent to provide clients with a written Agreement for Services and Fees. The Agreement outlines the services to be performed by the registered migration agent and any fees and disbursements associated with those services. Similar requirements are to be found in s 46 of the Migration (Migration Agents Code of Conduct) Regulations 2021 (Cth).
Of the 27 nominated businesses audited, the Applicant only provided an Agreement for Services and Fees to two businesses. In response, the Applicant asserts that he was under no duty to provide such an Agreement to the relevant businesses as he was not charging a fee for his services.
On 21 December 2018, in response to a s 308 Notice, the Applicant gave the following responses to questions posed by the Respondent – Exhibit 1 T9 p. 48:
“Copies of agreement for services;
For this nomination application, I do not sign the agreement of service with the employer, as I do not charge any fee from the employer. We have signed a service contract with the visa applicant, as we only charged the service fee from visa applicant in this case.
Receipts for all payments made in relation to each application;
This question is asked related to the nomination application, as mentioned above, we do not charge any service fee for the abovementioned application, therefore, I do not have the payment receipts of payment to provide in this case.”
Prior to 1 April 2021, the definition of “client” was found in reg 3 of the Migration Agents Regulations 1998 (Cth):
“client, of a registered migration agent, means a person to whom the agent agrees (whether or not in writing) to provide immigration assistance.”
That definition was repealed and, in lieu, a new s 306C was substituted into the Act by the Migration Amendment (Regulation of Migrant Agents) Act 2020 (Cth). The new s 306C is set out below:
“306C Definition of client
(1) A client of a registered migration agent is a person to whom the agent has given, or has agreed to give (whether or not in writing), immigration assistance.
(2)    In addition:
(a)    if a registered migration agent becomes an inactive migration agent, a client of the registered migration agent (while the agent was registered) remains a client of the inactive migration agent; and
(b)     a person remains a client of a registered migration agent, or an inactive migration agent, even if the agent is deceased.”
[Bold in original]
As will be seen, there is no material difference between the two definitions.
There is a discussion in Kraues about the term “client”; however, neither Perry J, nor the Full Federal Court on appeal, referred to definition of “client” then contained in reg 3 of the Migration Agents Regulations 1988 (Cth). Indeed, Perry J stated that there was no definition of “client” apart from s 306C of the Act which, at the time, defined the circumstances in which a person was a “client” of a registered migration agent only for the purposes of Division 3A of Part 3, as it was prior to the amendments discussed above. It would appear that her Honour, and the Full Federal Court, apparently, proceeded on an incorrect assumption.
Perry J made the following observations:
“100Mr Kraues' submissions before the Tribunal and in this Court addressed the issue of whether he was in a client/migration agent relationship with the miners for the purposes of the Code in a highly technical manner. As earlier explained, in Mr Kraues' submission, properly construed, the agreements with the miners were only to be available (as in ‘on call’) to provide immigration assistance. The fact that separate provision was made in the agreements for payment for immigration assistance in blocks of work at hourly rates over and above the fixed fee for being retained, was said to avoid any conclusion that Mr Kraues was in such a relationship unless and until immigration assistance was in fact provided. At this point it was said that those provisions of the agreements relating to blocks of work (which, it was submitted, were compliant with the Code) would come into effect.
101Mr Kraues also argued that the Tribunal fell into error in relying on the understanding of the parties as to the agreements or their subjective intentions. Rather, in his submission the parties' intentions are to be assessed objectively and not subjectively, relying upon the High Court's decision in: Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; (2004) 219 CLR 165 (Alphapharm) at [42] (the Court). As such, Mr Kraues submitted, that the Tribunal erred in having regard to extrinsic evidence as to the parties' intentions and state of knowledge contrary to the parol evidence rule: see e.g. Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 (Codelfa Construction) at 347 (Mason J (with whose reasons Stephen J agreed)).
102Those submissions must be rejected.
103First, as the Tribunal correctly pointed out at [89]-[90], its task was not to determine matters of contract. The question of whether the miners pursued recovery of monies paid to Mr Kraues through the courts was a matter for them. Rather, the Tribunal correctly asked whether Mr Kraues's conduct in relation to the contractual relationship between him and the miners relevantly put him in breach of the Code (at [90]). As such, the issue for the Tribunal was not governed by decisions such as Alphapharm and Codelfa Constructions.
104Furthermore, in considering whether to take action under s 303 of the Act against a migration agent, neither the Authority nor the Tribunal are bound by the rules of evidence: s 311 of the Act and s 33(1)(c) of the AAT Act. Rather, the Authority, and the Tribunal ‘standing in its shoes’ on review, may have regard to evidence that is “logically probative” and relevant to the issues: Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482; appeal dismissed in Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 (Smithers, Evatt and Deane JJ (Smithers J dissenting)).
105Secondly, aside from s 306C of the Act, there is otherwise no definition of the term ‘client’ in the Act or in the Code. Section 306C of the Act defines the circumstances in which a person is a ‘client’ of a registered migration agent only for the purposes of Division 3A of Part 3. Division 3A (comprising ss 306A-306L) is concerned with ensuring that clients of inactive or deceased migration agents are not thereby disadvantaged by providing the Authority with powers to obtain client documents and return them to the client. Not surprisingly, in that context s 306C defines ‘client’ widely, extending the concept to cases where a registered migration agent ‘gave, or anticipated giving, immigration assistance to another person’. Nonetheless, Senior Member Dwyer in Hudson v Migration Agents Registration Authority [2004] AAT 1007 (Hudson) at [96] decided to adopt the s 306C meaning of the word ‘client’ generally for the purposes of the Code, as contended for by the migration agent. I note in this regard that no contrary submission was apparently made in that case by the Authority. However, while it is not necessary to decide the point, I would be slow to imply that the Code, in the context of defining obligations between migration agents and clients, intended to adopt a definition of ‘client’ employed otherwise only in the limited and special circumstances with which Division 3A is concerned. In this regard, I note the seriousness of the disciplinary measures which may be imposed on registered migration agents for non-compliance with the Code under s 303 of the Act, albeit that the purpose of taking such measures is not per se to punish the agent in question: Hanna v Migration Agents Registration Authority [1999] FCA 1657; (1999) 94 FCR 358 at [20] (Tamberlin J).
106That notwithstanding, in my view it is consistent with the purposes of the Act being to protect the vulnerable against unscrupulous migration agents and to maintain public confidence in the integrity of migration agents, for a common sense approach to be taken to the question of whether a person is a ‘client’ for the purposes of the Code, having regard to the reality of the relationship between the parties. Any other construction would leave open the door to permitting migration agents to structure their agreements with those seeking their advice so as to avoid the obligations that they would otherwise owe to such persons. In other words, the purposes of the Act suggest an approach to construction of the Code which gives effect to substance over form.”

It is tolerably clear that a registered migration agent owes a duty of care to his or her clients which entails the giving of accurate, timely and constructive information and advice. It is axiomatic that a registered migration agent is engaged so as to maximise a client’s chances of success when making an application. The Code, despite its contradictions and vagueness, is aimed broadly at achieving two goals. First, that properly trained registered migration agents provide professional and competent service to their clients. Second, that a registered migration agent does not engage in unprofessional conduct, including, but not limited to, providing deliberately misleading and inaccurate information to the Department. The fact that a registered migration agent engages in conduct aimed at bolstering their client’s chances of success is not, of itself, improper. The impropriety only arises where a client’s chances of success are bolstered by the provision of inaccurate, misleading or false information. “Coaching” is, itself, an imprecise term. Coaching could be interpreted as assisting, helping, bolstering or improving. Conversely, if motivated by mala fides, it could be misleading, deceptive or wrong. Unless there is evidence that a registered migration agent has breached the law, the focus of attention is whether particular behaviour falls below the broad standards mandated by the Code.
For the reasons outlined above, the Tribunal finds that the Applicant did not engage in improper coaching of his clients.
Financial Allegation
Attention can now be turned to the Financial Allegation, which previously was referred to as the “Financial Documents Allegation”.
The Respondent contended that the Applicant directed the creation of documents by Q & T Accountants and provided instructions as to details to be included in documents, including payslips and financial statements – Exhibit 2 pp. 11 – 12 para 56. Further, it is alleged the Applicant encouraged clients to engage the services of Q & T Accountants to prepare their financial documents, enabling the Applicant to obtain documents altered according to his instructions from Q & T Accountants.
The Respondent also contended that the purpose of engaging with Q & T Accountants was to ensure that information provided to the Department met the relevant criteria, rather than providing financial information which gave the Department a genuine and accurate position of the business in question – Exhibit 2 p. 12 para 58.
In short, the Respondent contended that the Applicant actively encouraged clients to provide false and misleading information to the Department in breach of cl. 2.9 of the Code – Exhibit 2 p. 12 para 60.
Subsequent to the Hearing, Mr Nolan made the following submissions – RWS pp. 16 – 17 paras 75 – 76:
“75.Mr Qing Lai, Director of Q&T Accountants, gave evidence. He confirmed that he took referrals from the Applicant for employers to use Q & T as their accountants. He advised that, in the course of pursuing visa applications, the Applicant would sometimes request that Q&T perform some formatting changes on documents. Mr Lai gave the example of the Applicant requesting changes to be made on ‘payslips’. He clarified his evidence and explained that the payslips are prepared for the previous two years, and are in the generic form. They are then sent to the Applicant, and he would recommend the inclusion of ‘general information’ such as the ‘name, date of birth, role, and the salary package and the superannuation and tax file number’.’
76.This is another example of the Applicant influencing the integrity of the documents. The state of the payslips play an important role, not only to show what the person earned during a particular period and when, but also that the employer was complying with workplace laws. This includes the provision of payslips in the correct form. It is submitted that the Applicant was advising the change of those documents to give the impression that the employer was providing payslips in the correctly prescribed form.”
The Tribunal had the benefit of listening to Mr Lai give evidence. He testified that he was a Certified Practising Accountant (CPA) and a tax agent and had been practising since approximately 2009 – Tr. 9.11.2021 pp. 134 – 135. Mr Lai testified that he established Q & T Accountants in 2010, was aware of his duties as a CPA and tax agent and had never been subject to disciplinary action – Tr. 9.11.2021 p. 135.
Most of Q & T Accountant’s clients are small businesses, and many of those clients have Mandarin speaking proprietors. Mr Lai testified that he was fluent in speaking Mandarin and writing in Chinese characters – Tr. 9.11.2021 p. 136.
Mr Lai’s firm employs approximately 25 staff, and he performs a supervisory role – Tr.9.11.2021 p. 137. Under cross-examination, Mr Lai testified that staff numbers fluctuate and, in August 2017, his firm had employed approximately 15 staff – Tr. 9.11.2021 p. 140.
The Applicant and Mr Lai first met around 2012/2013, and the Applicant was just one of five or six registered migration agents who were clients of Mr Lai. Occasionally, Mr Lai would refer clients to registered migration agents, including the Applicant. However, usually a client would come to Mr Lai after already engaging a registered migration agent. In any event, Mr Lai never charged a registered migration agent a referral fee – Tr. 9.11.2021 p. 137.
Mr Lai testified that his firm has an internal control system that is audited every 5 years by CPA Australia. Integral to the internal control system is the work of a “risk manager” who reviews documentation being prepared. Further, it is the usual practise of Mr Lai to “sign off” of documents before they are formally lodged with the relevant authorities – Tr. 9.11.2021 pp. 137 – 138.
Mr Nolan asked a number of questions of Mr Lai concerning the employment of a particular employee, Mr JJ Chen. Mr Chen is a tax accountant and, at the time of the Hearing, was still an employee of Q & T Accountants – Tr. 9.11.2021 p. 138. At the end of that line of questioning, I made the following observation – Tr. 9.11.2021 pp 143 – 144:
“DEPUTY PRESIDENT: I think from what I am hearing, what Mr Lai is saying is he went to Mr Gu because he’s a migration agent and was accepting the advice he was given by Mr Gu, with respect to ensuring that the relevant migration – legal requirements were met and if Mr Gu was to provide him with a template employment contract, then in the course – in the normal course, he would accept the advice of Mr Gu because he knew that this was in his field of expertise, is that correct, Mr Lai?
WITNESS: Yes. I would say that, yes….”
Mr Lai testified that he sent the Applicant taxation documents in draft form. He then clarified his testimony by stating that all documents are in “draft” form until the customer signs it. As Mr Lai testified – Tr. 9.11.2021 p. 145:
“So draft means the customer haven’t really signed off yet, that means not final.”
Mr Lai testified that draft documents were sent to the Applicant because they required his professional advice to ensure that the documents were “in line with migration requirements” – Tr. 9.11.2021 p. 145.
In particular, Mr Lai testified that the Applicant’s advice was sought about “formatting” – Tr. 9.11.2021 p. 146:
“…To make sure it’s clear and in line with….the immigration look at that, it’s the right format. Only the format – so we will never…fake any documentation because that’s not ethical to do it and we have our auditing – we have regular auditing done, so we can’t do that…”
Mr Nolan asked Mr Lai for an example of the formatting change that Applicant might recommend. In response, Mr Lai referred to payslips – Tr. 9.11.2021 p. 146:
“…So and when we send it to Mr Gu, Mr Gu come back to us, say you need to have names, so I repackage everything. That means not fake because we just – all we need just the formal format as a standard payslip thing. And then you’re just showing the number of hour and you are just showing like a salary package and everything. But it’s not normally what we provided….they just give a slip, very small slip…”
The “small” payslip usually only contained the name of the employee, the payment date and net pay – Tr. 9.11.2021 p.146. However, the Applicant advised Mr Lai that further information was required. Nonetheless Mr Lai testified – Tr. 9.11.2021 p. 146:
“…We can’t make it up because there’s no way for us to make it up because the payroll is payroll, once you are in the payroll, you can’t fake it. Payroll have to be correct and true, money have to come up from the bank statement, there’s no way for us…to make it up because you always have to mention which is the bank statement….”
Mr Nolan then asked critical Questions – Tr. 9.11.2021 p. 147:
“All right, Mr Lai, I am not suggesting that you’re making anything up, let me make that clear. What the payslips are being provided is to show that there is an established practice in those particular businesses that the employee is firstly, providing regular payslips, secondly, that adequate superannuation is being paid to the particular individual in accordance with the superannuation legislation, and that there’s an established practice that the person is paying the adequate amount of tax. So what I’m asking is, is that payslip that you are – Mr Gu is asking you to change, is that representative of what the employer was, in fact doing, but just wasn’t reported?---Yes.
Is that your understand?---No, no, it’s – I think it’s the format that we generated from the system. So when we generate, which normally – so that’s – if you are an accountant, so if you have an accountant background – so normally, we normally – when we give it to the employee…it would be only the payroll advice. So with the payroll advice, you have very simple information, we have the gross salary, tax withhold, super for that week or for that fortnight. What Mr Gu ask me is generate from the system, have the full salary package, everything in that…all we need just generate from the system in different format.
…
I see. So he’s asking you to provide payslips that, moving forward, that have that information?---…by the time we are talking to Mr Gu, in normal situation, it’s like the staff already working in that position for two years. So when they applied for that, they need to have a two years payslip to show the staff, or the employee and employer, fulfil the obligation of the migration – and also, showing that they are working there and working for that period, and also, showing that they are getting the right salary. So it will be the last two years, they are moving forward.”
Mr Lai testified that the advice sought from the Applicant was limited to immigration law, and that he had no practical input into other matters – Tr. 9.11.2021 p. 148.
Ms King, on behalf of the Applicant, submitted that the primary decision-maker’s finding that the Applicant’s longstanding relationship with Mr Lai enabled the submission of falsified financial records should be rejected based on the persuasive nature of Mr Lai’s testimony and the absence of cross-examination on that topic – SA p . 6 para 21.
The Tribunal was impressed with the testimony of Mr Lai. He gave forceful and direct responses to the questions posed by Mr Nolan. The testimony set out above discloses very clearly that there were no inappropriate interactions between the Applicant and Mr Lai and his business. On the contrary, it would appear that Mr Lai operates a large and efficient accountancy practice, and he has been fastidious in putting in place and operating risk management procedures to minimise the risk of any breaches of the law. The payslip exchange between Mr Lai and Mr Nolan disclosed no breach of the law, and no attempt by either Mr Lai or the Applicant to mislead the Department or to provide falsified information.
Based on Mr Lai’s testimony, his firm’s relationship with the Applicant’s business was conducted professionally and on a purely business level. There is no evidence before the Tribunal that both firms were engaging in an enterprise designed to provide misleading information to the Department or to prepare documentation designed to present a false picture to enhance the prospects of a client’s success. It would appear from the cross-examination that the Applicant’s input was limited to his area of expertise and that the advice he proffered, whilst focused on improving the success of a client’s application, was appropriate, focused and not designed to mislead or deceive.
Record Keeping Allegation
Clause 6.1 of the Code provides that a registered migration agent must maintain proper records that can be made available for inspection on request by the Respondent, and then sets out three broad categories of documents:
1)a copy of each client’s application;
2)copies of written communications between the registered migration agent and nominated persons/entities; and
3)file notes of every substantive or material oral communication between the registered migration agent and nominated persons/entities.
Mr Nolan submits that cl. 6.1 requires that client file notes be maintained on the client file, and not separately, as has been the practice of the Applicant – RWS p. 21 para 102.
Mr Nolan also points out that the Applicant has accepted that his record keeping process contained some gaps. In addition, Mr Nolan correctly points out that the Applicant continuously referred to client instructions when pursuing employer nominations even though no file notes were kept of those discussions, nor were file notes kept of the initial meetings he had with his clients and nominating employers – RWS p. 21 para 103. Reference can be made to the following concession made by the Applicant – Exhibit 6 p. 13 para 66:
“Mr Gu accepts that his record keeping process contained some gaps and has committed to reform his practice, starting with the rigorous entry into of Fee Agreements with all sponsoring employees in accordance with the expectations of MARA and the maintenance of contemporaneous file notes and records during the application process.”
It would appear that at least part of the problem with the Applicant’s failure to keep proper client file notes was his misunderstanding that the nominating/sponsoring employers were not his clients. However, the Tribunal also accepts the thrust of Mr Nolan’s submission that there were, overall, deficiencies in the Applicant’s record keeping. This state of affairs has been properly conceded by the Applicant (Exhibit 6 p. 20 para 109(b)) and, during his testimony, the Applicant expressed his contrition, and testified that if he were to recommence operating as a registered migration agent, he would be fully compliant with his record keeping obligations.
In her Opening Address to the Tribunal, Ms King made the following submission – Tr. 8.11.2021 p. 34:
“…Mr Gu is now halfway through his law degree. If there are any criticisms to be made of him in relation to his record-keeping practices he has undertaken so much further education to address those criticisms and will update the tribunal as the first issue to be dealt with in-chief with his current exam results, and it is a matter where even if there was criticisms to be made of Mr Gu in relation to his record-keeping practices in the past, that this whole experience has been thoroughly mortifying for him. He has endeavoured to comply with MARA at every single turn and the tribunal can be confident that Mr Gu will not allow this situation to arise again.”
Having observed the Applicant give evidence, the Tribunal is satisfied that he was contrite and embarrassed by his failure to keep proper file notes, and that this failure was not the result of any intention to withhold information from the Respondent.
The Tribunal, therefore, finds that the manner in which the Applicant maintained his client file notes was in breach of cl. 6.1 of the Code.
Remuneration Allegation
It is not disputed that the Applicant received a financial benefit from health insurance providers for referring clients them, and it is also not disputed that there was a failure by the Applicant to inform his clients in writing of the benefit he received.
The Applicant claimed that he was unaware that the referrals were of the character of migration advice – Exhibit 6 p. 17 para 88.
The Applicant subsequently altered his business practices so that visa applicants are notified of the relationship between the Applicant and health insurance providers and the benefits that could flow from a client taking out health insurance with those providers – Exhibit 6 p. 17 para 89.
The Tribunal finds that the Applicant’s conduct in obtaining a financial benefit from health insurance providers without disclosing this commission to his clients constituted a breach of cl. 2.2 of the Code.
Fit and proper person to give immigration assistance
The terms “person of integrity” and “fit and proper person” in s 303(1)(f) are not defined in the Act.
In Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12, Deputy President McMahon observed that “integrity” should be taken to mean “soundness of moral principle and character; uprightness, honesty” at [26]. This formulation was subsequently endorsed by Wilcox J in Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558 at [22].
The classic formulation for what constitutes a “fit and proper person” was provided by Dixon CJ, McTiernan and Webb JJ in Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at pp. 156 – 157, and a more recent formulation is provided by Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380. Both statements of the law were set out by Perry J in Kraues and were quoted at [44] above.
Mr Nolan submitted, and the Tribunal agrees, that s 303(1)(f) uses the partly disjunctive expression that a registered migration agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance – RWS p. 21 para 108.
Likewise, the Tribunal agrees with Mr Nolan’s submission that a finding that a person who is determined to lack integrity will necessarily preclude satisfaction of that person’s fitness – RWS p. 22 para 109.
It is also the case, however, that concepts of integrity and being fit and proper are closely related.
The Tribunal’s attention was drawn to observations made by Senior Member Taylor SC in Issa. As those observations are a helpful summation of the law, they are set out below:
“452. The MigAct1958 s 303(1)(f) criterion uses the partly disjunctive expression that the agent ‘agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance’. The criterion assumes a lack of integrity will preclude satisfaction of the agent’s relevant fitness. It does not assume the necessary accuracy of the converse proposition – that a person who is not ‘fit and proper’ is necessarily lacking in integrity: see Davies v Australian Securities Commission [1995] FCA 1496; (1995) 59 FCR 221 per Hill J at 233. The concepts of integrity and fitness are, however, closely related. Honesty, character and uprightness are relevant to both characterisations:- Peng at [26].
453. The characterisation of fitness and propriety depends on the person’s character, reputation and the quality of the contentious conduct. The characterisation may be informed by impressions about the hypothesised evaluation of the person’s conduct ‘by professional colleagues of good repute and competency’: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. The characterisation may also depend on impressions about the degree of probability that the contentious conduct will be repeated, or the degree of confidence with which its repetition can be discounted as improbable:- Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380. An additional relevant consideration, material to the present matter, is the particular purpose for which the characterisation is sought to be made. In the context of the statutory scheme regulating the conduct of migration agents, one purposive consideration is the ‘fitness’ of the person to attract the confidence of not only clients but also of decision makers administering the MigAct1958 and MigReg1994:- see Kazi and Migration Agents Registration Authority [2006] AATA 42 at [76].”

In ascertaining whether a registered migration agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance, attention is directed to the state of affairs pertaining at the time the Tribunal makes its decision. The Tribunal would be in error if it limited its review to the facts and circumstances prevailing as at the time of the reviewable decision. Reference can be made to Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (Shi). Kirby J made the following observations (at [47] – [51]):
47 The nature and incidents of the decision under review in the present case do not support a contention that the review was limited to the particular time in the past when the decision was made by the Authority. The present was not a case where, of its nature, a decision was made falling to be determined by reference to the state of evidence at a particular time. Both the language of s 303 of the Migration Act and its purpose suggest otherwise.
48Section 303 of the Migration Act directs the Authority's attention, amongst other things, to whether an agent ‘becomes bankrupt’; whether he or she ‘is not a person of integrity’ or ‘otherwise not a fit and proper person’; and whether ‘an individual related by employment to the agent is not a person of integrity’. Each of these grounds is expressed in the present tense. Necessarily, the circumstances to which each is addressed could be altered by supervening events. Thus, the language in s 303 of the Migration Act clearly contemplates the possibility that circumstances may change between an initial decision of the Authority and a subsequent decision of the Tribunal, performing the ‘review’ which s 306 of the Migration Act contemplates and for which s 43 of the AAT Act provides.
49 Circumstantial changes may sometimes be adverse to an applicant before the Tribunal. Given the Tribunal's powers in certain circumstances to make a decision ‘in substitution for’ a decision of the Tribunal which has been set aside upon review, it would be remarkable if the substituted decision could not take into account evidence of relevant, and even critical, supervening events. Such events might include the intervention of bankruptcy, or a criminal conviction for an offence of dishonesty of significance for the continued registration of the agent under the Migration Act.
50This reasoning is further strengthened by an appreciation that the fundamental object of the exercise of the Authority's power to cancel or suspend the registration of an agent under the Migration Act is the protection of the section of the public that deals with migration agents. It is not, as such, the punishment of agents. This object is best achieved by the Tribunal making its decision upon the most up to date material available to it at the time of its own decision. It would be impeded if the Tribunal were confined to the facts and circumstances subsisting at the time of the Authority's original decision weeks, months or even years in the past.
51Moreover, to the extent that the essential function of the Tribunal is to provide a review ‘on the merits’, conducting such a review on the basis of the most up to date evidence available is conformable with the basic objectives of the AAT Act. In this particular context, the contrary approach, urged by the Authority, would be likely to attract the very criticisms addressed to the law predating that Act in the report of the Commonwealth Administrative Review Committee.”
Mr Nolan made the following submissions about the Applicant’s integrity and fitness – RWS p. 22 paras 114 – 116:
“114.As stated above, the Applicant had an established and repeated pattern of intruding upon the integrity of information and documents. This means that the Department cannot trust that the information and documents that the Applicant was providing convey an accurate representation of the actual position.
115.The decision maker should trust that the information supplied is based on the true position, free from any contamination by the agent as to what should be in the material.
116.In summary, it is contended the Applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance for the purpose of s 303(1)(f) of the Migration Act..”
It is not contested that the Applicant has breached the Code and the Tribunal has found that the Agreement Allegation, Instructions Allegation, Record Keeping Allegation and Remuneration Allegation have been made out. It is also the case that there have been multiple breaches of the Code over a considerable period of time. The mere fact that a registered migration agent has breached the Code does not automatically result in a finding that the registered migration agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance. A range of factors have to be considered, including the seriousness of the breaches, the number of breaches, the motivation of the registered migration agent and the harm caused. This is not an exhaustive list, and each matter is governed by its own factual matrix. Clearly, the Tribunal has to adopt a common-sense approach, and the great benefit of a Hearing is that questions of credit have been properly considered and weighed. As previously noted, the Tribunal has had the benefit of listening to the Applicant give evidence, and be cross-examined, over three days.
As the High Court held in Shi, the Tribunal’s task is to make a determination of integrity and fitness as at the time of this decision, and not as at the time of the reviewable decision.
In his Statutory Declaration of 11 October 2021, the Applicant deposed as follows – Exhibit 7 p. 8 para 31:
“…I admit some of my practices in the past might not be exactly appropriate and perfect, and I will endeavour to continue to improve them in the future. I am confident that I am always a person with integrity and honesty, not only as a professional for the practice at migration law, but also a person as friend, colleague, father, husband, and son in the society and my family.”
The Applicant deposed that after receiving the first s 308 Notice in November 2018, he started to reflect on how he could improve his skills and knowledge as a professional – Exhibit 7 p. 8 para 32. He then set out a large number of Continuing Professional Development (CPD) courses he had undertaken aimed at improving his knowledge of migration law, and, in particular, his ethical obligations. One of the courses undertaken in March 2019 was “Ethics and Professional Practice”. In September 2020, the Applicant undertook a further CPD ethics course, and he deposed as follows – Exhibit 7 p. 9 para 34:
“b. the Ethics Paper and Assessment – The unit help me to understand in-depth the Code of Conduct and to consolidate my knowledge of good ethical practice and how to avoid and deal with issues and complaints that may arise from clients.”
The Applicant also enrolled in a Juris Doctor Degree at Griffith University from July 2020. As at October 2021, the Applicant had completed eight subjects, together with one subject credit from Bond University, namely: Global Law (Distinction), Foundations of Law (Distinction), Constitutional Law (Credit), Property 1 (Distinction), Crime 1 (Distinction), Torts 1 (Credit) and Contracts 1 (Distinction) – Exhibit 7 pp. 10 – 11 para 34.
The Applicant also testified about his studies and his attempts to improve his knowledge of the law, the requirements of the Act and Code and generally his ethical obligations as a registered migration agent – Tr. 8.11.2021 pp. 40 – 42.
In Narayanan and Migration Agents Registration Authority [2006] AATA 353, Senior Member Penglis set out factors taken into account when considering the sanction that should be imposed pursuant to s 303 of the Act. The list, however, also provides a useful measure in determining if a registered migration agent has failed the tests of integrity and fitness – at [132]:
“By reference to a paper presented by, amongst others, an employee of the respondent, counsel for the applicant submitted that where a professional person is found to have acted in breach of their duties to a client, the following factors are often considered when determining whether, and how severe, a sanction should be imposed:
·The nature of the professional’s breach, particularly whether the professional is acting in good faith during the commission of the breach;
·whether there were any factors that were beyond the professional’s control and could have reasonably contributed to the professional’s breach;
·the professional’s willingness to accept that a breach may have occurred;
·the professional’s efforts to rectify or mitigate the effect of the breach, where possible;
·whether the client sustained any loss as a result of the professional’s breach;
·the professional’s actions, if any, to compensate the client for any loss arising out of the possible breach;
·the professional’s record of prior disciplinary breaches;
·the professional’s community and professional reputation;
·the extent to which any sanction may be harsh, unjust or oppressive in the circumstances taking into account the extent to which such a sanction would affect the professional’s financial earning capacity and livelihood;
·the professional’s co-operation with the disciplinary authority;
·whether a sanction, if any, would deter other professional from similarly breaching their duties to a client; and
·whether a sanction, if any, will ensure that the public’s confidence in the professional’s industry will be maintained.
Counsel for the respondent did not seek to take issue with this summary.”
Applying these factors, the Tribunal makes the following findings:
·whilst some of the Applicant’s Code breaches were technical, including the Record Keeping breaches, others were not. However, the Tribunal finds that the Applicant was acting in good faith throughout, albeit he proceeded on an incorrect belief about his various obligations under the Code;
·the Tribunal finds that there were no factors beyond the control of the Applicant which contributed to his breaches of the Code;
·the Applicant admitted to the Record Keeping and Remuneration breaches and, whilst he contested the Agreement and Instruction Allegations, it was on an honest, albeit incorrect, belief about the state of the law and his obligations;
·the Applicant has been proactive in attempting to rectify his breaches. In particular, as set out above, he has undertaken numerous CPD subjects aimed at improving his knowledge of migration law and practice, as well as completing a number of law subjects at Griffith University. The Applicant deposed that his hope was that after completing his Griffith University studies, he would be admitted as an Australian Legal Practitioner – Exhibit 7 p. 13 para 35;
·there is no information before the Tribunal that any of the Applicant’s clients suffered any loss as a result of his breaches of the Code;
·the Applicant has no prior history of disciplinary breaches, and he deposed that there have been no formal complaints by clients – Exhibit 7 p. 15 para 55;
·based on the numerous testimonials presented to the Tribunal (Exhibit 12), there is no reason to dispute the Applicant’s claim that he has an excellent community and professional reputation – Exhibit 6 p. 20 para 109(f);
·the cancellation of the Applicant’s registration has severely impacted the Applicant in that his earning capacity has been greatly diminished. This state of affairs has been compounded by the fact that the Applicant and his wife are only children, and both his parents and parents-in-law are dependent on him for emotional, psychological, physical and financial support. The Applicant deposed that he is the sole income earner for his extended family. Further, in September 2020, his wife was diagnosed with a serious illness which has symptoms of fever, insomnia and anxiety. In short, the cancellation of the Applicant’s registration has had a negative impact, both on him and his extended family – Exhibit 7 p. 17 paras 66 – 69;
·the extensive material in the T-Documents satisfies the Tribunal that the Applicant, at all times, actively co-operated with Officers of the Respondent. Indeed, the Applicant even requested that he appear in person to answer questions and to make oral representations. It is clear to the Tribunal that the time, effort and cost of responding to questions posed by the Respondent, would have been a significant impost on the Applicant. However, despite that impost, the evidence suggests that, at all times, he was cooperative and he answered all queries in detail;
·the Tribunal is not satisfied that the question of deterrence properly arises, as the Applicant’s breaches were inadvertent and not deliberate, and, in addition, the Code has since been replaced, and the new Code is better drafted and there is less likelihood of confusion and error arising;
·the question of sanctions is discussed below.
The Tribunal is tolerably satisfied that when the reviewable decision was made, having regard to the number of breaches of the Agreement and Instruction Allegations that it was open to the decision-maker to form the view that the Applicant was not a person of integrity or was not otherwise a fit and proper person to give immigration assistance. In reaching this conclusion, the Tribunal again emphasises that there is no compelling evidence that the Applicant was, at any time, motivated by mala fides. The breaches that the Applicant committed were caused by his ignorance of his regulatory duties. This, by no means excuses his behaviour, but it puts it in proper perspective.
However, the task of the Tribunal is not to be satisfied if the Applicant meets the standard prescribed by s 303(1)(f) when the reviewable decision was made, but whether that standard is met now when the Tribunal makes its decision.
The Tribunal was impressed by the evidence and candour of the Applicant. He has made mistakes and omissions and he has not avoided his culpability. However, the evidence presented does not suggest that, at any stage, he was a dishonest person who was motivated by bad or improper motives. He made a number of mistakes which resulted in breaches of the then Code. Those mistakes did not result in any of his clients being placed in a position of disadvantage. Moreover, despite submissions to the contrary, the Tribunal does not agree that the Applicant, at any time, was motivated to mislead any agency of the Commonwealth. Further, at all times when questioned by the Respondent, the Applicant cooperated to, what it seems, the best of his ability.
The Tribunal has stated throughout this determination that the Officers of the Respondent have acted appropriately and with fairness. The conclusions reached in the reviewable decision, based on the material then presented, were reasonably open to the decision-maker. A reading of the comprehensive and very well-reasoned decision delivered does not suggest to this Tribunal that there was not a very fair and a forensic exercise by the decision-maker.
However, the Tribunal has been presented with further evidence, and has, as previously noted, had the benefit of oral evidence.
The Tribunal finds that at the time of the reviewable decision, the Applicant did not satisfy the requirements of s 303(1)(f) because of his breaches of the Code discussed above. The next issue is what would have been the appropriate sanction to impose on the Applicant pursuant to s 303.
Three sanctions are permitted pursuant to s 303(1), namely:
(a) cancel the registration of a registered migration agent;
(b)suspend the registration of a registered migration agent; or
(c)caution a registered migration agent.
The Applicant’s legal representatives drew the Tribunal’s attention to the following observations of the Tribunal in Altintas and Migration Agents Registration Authority [2004] AATA 978 at [159]:
“A suspension could be an appropriate sanction in two situations. The first is where a person has been found to be not a fit and proper person to give immigration assistance, but there is reason to believe that during a period of suspension, that circumstance will change, for example if he or she studies in an area where his or her knowledge has been found to be deficient. The second is where the person has not been found not to be a fit and proper person to give immigration assistance, but there are serious findings of concern about the person’s breaches of the Code. In such a situation it may be considered that a period of suspension will impress upon the person the necessity to improve his or her conduct and practices as to compliance with the Code. I regret that MARA’s representatives at the hearing did not address the reasons why Mr Altintas’ registration as a migration agent should be suspended.”
In this matter, the circumstances of the Applicant fall clearly within the first of the two circumstances.
The Applicant made unfortunate mistakes in his dealings with some of his clients. Those mistakes were caused by his misunderstanding of his legal obligations under the Act and the Code. He has readily admitted that he made those mistakes and has taken positive steps to ensure that he will not make those mistakes again. He is, ostensibly, an honest man and is trying to the best of his endeavours to move forward. As a good father, husband and citizen, he has made some mistakes and has paid a very heavy price for them. The Tribunal sees no benefit for the community that he continues to be disadvantaged for his mistakes. This is a price that not only he pays, but also his extended family and previous employees.
Having regard to all of the evidence presented, the Tribunal makes the following findings:
(a)at the time of the reviewable decision, the Applicant did not satisfy s 303(1)(f);
(b)at the time of this decision, the Applicant does satisfy s 303(1)(f);
(c)the preferable sanction to be imposed between the time of the reviewable decision and this decision is that the Applicant’s registration as a registered migration agent be suspended; and
(d)the suspension concludes on the date of this decision.
DECISION
The decision under review is set aside and the Tribunal substitutes, in lieu, that the registration of Mr Bo Gu as a registered migration agent is suspended from 21 December 2020 until 13 April 2022 after which date the suspension is lifted.

I certify that the preceding 230 (two-hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

.............[SGD]...........................................................
Associate
Dated: 13/04/2022

Date of hearing: 8, 9, and 10 November 2021 (In-person)

Applicant:
Via Microsoft Teams

Date final submission received:
20 December 2021

Counsel for the Applicant:
Ms Ingrid King

Counsel for the Respondent:
Mr Phil Nolan

Solicitors for the Applicant:
Mr Timothy Smith
Tim Smith Lawyers

Solicitors for the Respondent: Mr Matthew Hawker
Sparke Helmore Lawyers

Date of hearing:	8, 9, and 10 November 2021 (In-person)
Applicant:	Via Microsoft Teams
Date final submission received:	20 December 2021
Counsel for the Applicant:	Ms Ingrid King
Counsel for the Respondent:	Mr Phil Nolan
Solicitors for the Applicant:	Mr Timothy Smith Tim Smith Lawyers
Solicitors for the Respondent:	Mr Matthew Hawker Sparke Helmore Lawyers