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…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Huang and Migration Agents Registration Authority and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] AATA 911
Decision Date: 20 September 2005

CaseChat Overview and Summary

Keith Huang, a qualified migration agent, applied to the Administrative Appeals Tribunal to review the Migration Agents Registration Authority's decision to suspend his registration for three years due to alleged breaches of the Code of Conduct. The Tribunal was required to determine whether Mr Huang breached the Code and, if so, what the appropriate penalty should be. The key legal issues were whether Mr Huang breached the Code and if so, what penalty was appropriate given the circumstances. The Tribunal found that Mr Huang breached several clauses of the Code, including holding himself out as possessing legal qualifications, lacking professionalism, failing to maintain a professional library, falsely guaranteeing the success of an application, and having insufficient funds to satisfy a no win, no fee policy. The Tribunal concluded that Mr Huang did not have an adequate understanding of his responsibilities as a migration agent and did not demonstrate the required level of knowledge, probity, honesty, and reliability. While the breaches did not involve personal gain and some arose through actions for which Mr Huang had to accept responsibility, the Tribunal found that Mr Huang's conduct fell short of the standards expected of a migration agent. Consequently, the Tribunal affirmed the decision to suspend Mr Huang's registration for three years, rather than cancelling it outright.

Orders