Huang and Migration Agents Registration Authority

[2005] AATA 911

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 911

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/204

GENERAL ADMINISTRATIVE DIVISION

Re:         KEITH HUANG

Applicant

And:MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:             20 September 2005

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

MIGRATION - migration agent - suspension of registration - breach of Code of Conduct  

Legal Practice Act 1996 (Vic) s 314(1)

Migration Act 1958 (Cwth)ss 290, 303

Re Feng and Migration Agents Registration Authority [2002] AATA 709
Re Griffiths and Migration Agents Registration Authority [2002] AATA 247

REASONS FOR DECISION

20 September 2005  G.D. Friedman, Senior Member

1. Keith Huang (Mr Huang) is a 62-year old civil engineer who migrated to Australia from China in 1989. He became an Australian citizen and qualified as a registered migration agent in 2000. On 14 February 2005 the Migration Agents Registration Authority (MARA) suspended his registration for three years (or until he satisfied certain conditions) for breaching the Code of Conduct for migration agents (the Code), which is contained in Schedule 2 to the Migration Agents Regulations 1998: 2.1.

2.      MARA’s decision was made under s 303 of the Migration Act 1958 (the Act) for breaches of the following clauses of the Code: clause 2.1 (holding himself out as possessing legal qualifications), clause 2.3 (lack of professionalism), clause 2.5 (failing to maintain a professional library), clause 2.10 (falsely guaranteeing the success of an application) and clause 7.6 (having insufficient funds to satisfy a no win, no fee policy).

3.      Mr Huang maintains that he was unaware of many of the breaches of the Code and was only following the instructions of his employer.  He said that he acted appropriately at all times; and that the breaches, if any, were not serious enough to justify suspension of his registration for such a long period.

4.      The Tribunal has to decide whether Mr Huang breached the Code and, if so, what is the appropriate penalty.

DID MR HUANG BREACH THE CODE?

5.      In written statements (Exhibits A8, A10) Mr Huang explained that he was employed by the Golden Faith Group Pty Ltd (GFG) from July 2003 until 10 June 2004.  He was the sole migration agent from July 2003 to January 2004, because the owner of the business was only registered as a migration agent on 9 January 2004.  Mr Huang stated that his duties were confined to consulting and the preparation of documentation, and that he had little contact with clients.

6.      Mr Huang acknowledged that GFG placed advertisements in Chinese-language newspapers offering a 110 per cent refund on a no win, no fee policy.  Mr Huang also acknowledged that his migration agent registration number appeared in the advertisements.  However, he said that he was unaware of the contents of the advertisements at the time of their publication, and was adamant that no contracts  containing these terms were signed during his period of employment at GFG.  Mr Huang said that GFG had sufficient financial resources to meet the requirements  of this policy.  However, he acknowledged that the bank records of GFG (T8, pp58 62), over a seven‑month period, showed that a final balance exceeded $1800 only once, and on many occasions did not exceed $1000.  He said that he was not involved in the marketing activities of GFG and was unaware that the advertisements contained statements such as (You) can definitely migrate if (you) have relatives in Australia (special this week), which he acknowledged was misleading; and statements such as As long as you can guarantee that you will study properly in the next semester we can help you retain your visa which he claimed was not misleading.

7.      Mr Huang said that he was aware of the requirement to maintain a professional library, but the cost of subscribing to an online service was prohibitive, so he borrowed a version of the Act and Regulations on an unauthorized CD‑ROM from a friend, to copy onto his personal computer.  Under cross-examination he agreed that he did not obtain all the updates from his friend.  Mr Huang also said that when necessary he borrowed a loose-leaf service from a migration agent whose office was close to his.  He said that his actions complied with the requirements of the Code.

8.      In respect of clause 2.1 of the Code, Mr Huang agreed that the Service Contract & Agreement, drawn up by GFG and signed by clients before work commenced, contained the words Legal/Administrative fees and that he was not legally qualified, but said that he did not see the contracts and never questioned the owner of the business about their contents or about any other aspect of the business. 

9.      Mr Huang told the Tribunal that he has a good knowledge of migration law, and produced letters of commendation from two migration agents and a former employee of GFG (Exhibits A3, A5 and A6), who described him as hard-working, dedicated and knowledgeable.     

10.     On hearing the oral evidence and in considering the written material the Tribunal finds that Mr Huang did not have an appreciation of his responsibilities as a registered migration agent.  He admitted that the Service contract & agreement contained the words legal/administrative fees, and the Tribunal concludes that a client of GFG might reasonably believe that Mr Huang was holding himself out as legally qualified contrary to s 314(1) of the Legal Practice Act 1996 (Vic). As the only registered migration agent at GFG for several months Mr Huang knew, or should have known, the contents of the contracts used by the company and should have ensured that the wording was changed. The Tribunal finds that Mr Huang breached clause 2.1 of the Code.

11.     The Tribunal does not accept Mr Huang’s evidence that a lack of knowledge of the advertisements absolves him of his responsibilities and obligations as a registered migration agent.  In all likelihood, Mr Huang would have been aware of the contents of the advertisements from contact with the owner of the business or from the clients.  The guarantee (You) can definitely migrate if (you) have relatives in Australia (special this week) is a far-fetched general promise with no basis in migration law.  With respect to the guarantee As long as you can guarantee that you will study properly in the next semester we can help you retain your visa, the Tribunal notes that student visas normally have conditions relating to attendance and academic results, a breach of which would lead to cancellation.  Therefore, a guarantee based on a commitment to study properly in a future semester is misleading.  For these reasons the Tribunal finds that the claims in the advertisements were false or misleading, and this demonstrates that Mr Huang does not have a sound working knowledge of the Act and Regulations.  The Tribunal finds that Mr Huang breached clauses 2.3 and 2.10 of the Code.   

12.     The Tribunal does not accept that a copy of the Act and Regulations (which was not updated regularly and did not contain all the relevant information) on an unauthorised CD‑ROM, and borrowing a loose-leaf service from another migration agent, constitutes maintaining a professional library.   Consequently, the Tribunal finds that Mr Huang breached clause 2.5 of the Code.

13.     In respect of the conditional refund policy, the Tribunal notes Mr Huang’s evidence that he was not aware of any such contracts entered into in the relevant period, and that he had no control over the policy.  After examining the financial statements of GFG, the Tribunal is satisfied that there were insufficient funds in GFG’s bank accounts to meet the financial commitment of such a policy, and that as a registered migration agent Mr Huang bears responsibility, regardless of his position as an employee.  The Tribunal finds that Mr Huang breached clause 7.6 of the Code.

WHAT IS THE APPROPRIATE PENALTY?

14.     In Re Griffiths and Migration Agents Registration Authority [2002] AATA 247 the Tribunal accepted that the object of disciplinary proceedings in relation to professional people is to protect the public and to maintain proper standards in the relevant profession and not to take action by way of punishment. In the matter before it the Tribunal concludes that Mr Huang is a person who worked hard to establish a new career in migration and was successful in obtaining the necessary qualifications to assist GFG’s clients in the handling of their applications.

15.     In Re Feng and Migration Agents Registration Authority [2002] AATA 709 the Tribunal stated that questions as to whether the person is a fit and proper person or a person of integrity to be registered as a migration agent are to be considered in the context of requiring a finding of probity on the part of the person in addition to honesty, knowledge and competence in performing the duties of such an agent.

16.     In considering whether Mr Huang is a fit and proper person to be registered as a migration agent under s 290 of the Act, the Tribunal takes into account the statements by several persons in support of his application, but notes that there was no statement by the owner of GFG.  The Tribunal does not accept as a relevant factor Mr Huang’s claim that at all times he acted under the direction of the owner.  Mr Huang was aware of his responsibilities as a migration agent and he failed to conduct himself appropriately.  Mr Huang has not conceded that he has been at fault, and he has shown no genuine remorse for his actions.

17.     On balance, the Tribunal is satisfied that Mr Huang’s conduct fell short of that expected of a migration agent.  In all the circumstances, the Tribunal finds that Mr Huang did not display an adequate knowledge of migration procedure and was not able to be relied upon to give competent migration assistance.  He did not demonstrate honour, probity, honesty and reliability.  Applying the guidelines set out in Re Griffiths and Re Feng, under s 290 of the Act the Tribunal finds that Mr Huang is not a fit and proper person to be registered as a migration agent at present.

18.     However, the Tribunal takes into account that the breaches of the Code did not involve personal gain and that some of the breaches arose through actions for which Mr Huang had to accept responsibility even though he did not undertake those actions.  For these reasons, the Tribunal concludes that the appropriate penalty is a period of suspension for three years, rather than cancellation, or until Mr Huang satisfies the conditions set out in the decision under review.   

DECISION

19.     The Tribunal affirms the decision under review.

I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  12 September 2005

Date of decision:  20 September 2005
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr B. Wee
Solicitor for respondent:              Australian Government Solicitor