Gu and Migration Agents Registration Authority

Case [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…

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AGLC
Gu and Migration Agents Registration Authority [2022] AATA 749
Case
[2022] AATA 749
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Bo Gu against a decision by the Migration Agents Registration Authority to cancel his registration as a migration agent. The Authority's decision was based on findings that Mr Gu had breached the Code of Conduct for migration agents. The Tribunal was required to determine whether Mr Gu was a person of integrity and a fit and proper person to provide immigration assistance at the time of the Authority's decision, and what sanction, if any, was appropriate.

The central legal issues before the Tribunal were whether Mr Gu met the character requirements for registration as a migration agent and, if not, what disciplinary action was warranted. The Tribunal also considered objections raised by Mr Gu regarding the admissibility of English translations of Chinese documents, which the Authority had required him to obtain under section 308 of the relevant legislation. While the Tribunal did not make a definitive ruling on the admissibility of the translations, it noted that the issue had been raised by Mr Gu's representatives by reference to the Full Federal Court decision in *Fieldhouse & Ors v Commissioner of Taxation*.

The Tribunal found that at the time of the Authority's reviewable decision, Mr Gu did not satisfy the character requirements under section 303(1)(f). However, by the time of the Tribunal's own decision, Mr Gu did satisfy these requirements. The Tribunal reasoned that the appropriate sanction, given the circumstances between the Authority's decision and its own, was a suspension of Mr Gu's registration. The Tribunal therefore set aside the Authority's decision to cancel registration and substituted its own decision that Mr Gu's registration be suspended from 21 December 2020 until 13 April 2022, after which date the suspension would be lifted.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.