Jackie Chang and Migration Agents Registration Authority - [2014] AATA 235

[2014] AATA 235

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/3864

Re

Jackie Chang

APPLICANT

And

Migration Agents Registration Authority

RESPONDENT

DECISION

Tribunal
Deputy President RP Handley

Date 22 April 2014

Place Sydney
The decision under review to cancel Mr Chang’s registration as a migration agent is affirmed.

........................[sgd]................................................
Deputy President RP Handley
Catchwords
MIGRATION – migration agents registration – immigration assistance – conflict of interest – breach of the Migration Agents Code of Conduct – fit and proper person –decision under review affirmed
Legislation
Migration Act 1958 (Cth) 276, 290, 303, 313, 314
Migration Agents Regulations 1998 (Cth) Sch 2, cl 1.12, 2.1, 2.1A, 2.1B, 2.4, 2.8, 2.9A, 5.1, 5.2, 5.5, 6.1, 7.1, 7.2, 7.4
Cases
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Howarth and ASIC [2008] AATA 278
Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127
Irving v Minister for Immigration for Local Government and Ethnic Affairs (1996) 68 FCR 422
Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558
Narayanan and Migration Agents Registration Authority [2006] AATA 353
REASONS FOR DECISION
Deputy President RP Handley

Mr Chang has applied to the Tribunal for the review of a decision made by the Migration Agents Registration Authority (MARA) to cancel Mr Chang’s registration as a migration agent.
BACKGROUND
Mr Chang was first registered as a migration agent on 1 October 2002. His registration was last renewed on 23 November 2011. His business operated under the trading name ‘Chinatown Migration and Education Services’.
MARA first received a complaint about Mr Chang in 2007. The complaint alleged that Mr Chang had failed to provide sufficient information to the Department of Immigration in order for the complainant’s application for a spouse visa to be successful. The complaint also alleged that Mr Chang conducted himself unsatisfactorily in the appeal to the Migration Review Tribunal.
MARA found that Mr Chang breached the Migration Agents Code of Conduct in a number of respects: by failing to declare he had provided immigration assistance to the complainant, failing to provide the complainant with a statement of services, and not keeping proper records. On 21 January 2009, Mr Chang was issued with a one year caution by MARA. A condition of the caution was that Mr Chang complete four hours of tuition in office and file management, and four hours’ tuition in ethics. An email from Mr Chang to MARA on 30 May 2012 indicates that he had not undertaken such tuition by that time. He has still not undertaken the required tuition.
In the period May to July 2009, MARA received five complaints regarding Mr Chang’s conduct. MARA required that he provide his client files for each of the complainants. Having interviewed Mr Chang in relation to the complaints and having reviewed his file documents, MARA dismissed the fifth complaint on the ground that there was insufficient evidence to establish that Mr Chang provided a service to the complainant.
MARA received a further two complaints regarding…

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.

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Details

Case: [2014] AATA 235
Decision Date: 22 April 2014

CaseChat Overview and Summary

Jackie Chang has applied to the Administrative Appeals Tribunal (the Tribunal) for a review of a decision made by the Migration Agents Registration Authority (MARA) to cancel his registration as a migration agent. Mr Chang was first registered on 1 October 2002 and last renewed his registration on 23 November 2011. His business operated under the name ‘Chinatown Migration and Education Services’. MARA first received a complaint about Mr Chang in 2007. The complaint alleged that Mr Chang had failed to provide sufficient information to the Department of Immigration for the complainant’s spouse visa application to be successful. The complaint also alleged that Mr Chang conducted himself unsatisfactorily in the appeal to the Migration Review Tribunal. In the period May to July 2009, MARA received five further complaints regarding Mr Chang’s conduct. In May and July 2011, MARA received two further complaints. On 10 August 2012, after reviewing submissions from Mr Chang and documents for each of the six complaints, MARA decided to cancel Mr Chang’s registration as a migration agent. This was on the basis that its investigation of the six complaints revealed that Mr Chang had breached a number of clauses of the Migration Agents Code of Conduct. MARA also found that Mr Chang was not a person of integrity or a fit and proper person to provide migration assistance. Mr Chang applied to the Tribunal for a review of MARA’s decision to cancel his registration on 4 September 2013. The Tribunal was required to determine whether MARA’s decision to cancel Mr Chang’s registration as a migration agent was lawful, rational and procedurally fair. The Tribunal found that the decision was made in accordance with the Migration Act 1958 (Cth) and was therefore lawful. The Tribunal found that the decision was rational and based on substantial evidence. The Tribunal found that the decision was procedurally fair as it gave Mr Chang an opportunity to make submissions and review the evidence against him. The Tribunal affirmed the decision to cancel Mr Chang’s registration as a migration agent.

Orders

Orders of the court

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Background

Background to the litigation

Mr Chang has applied to the Tribunal for the review of a decision made by the Migration Agents Registration Authority (MARA) to cancel Mr Chang’s registration as a migration agent.BACKGROUND Mr Chang was first registered as a migration agent on 1 October 2002. His registration was last renewed on 23 November 2011. His business operated under the trading name ‘Chinatown Migration and Education Services’. MARA first received a complaint about Mr Chang in 2007. The complaint alleged that Mr Chang had failed to provide sufficient information to the Department of Immigration in order for the complainant’s application for a spouse visa to be successful. The complaint also alleged that Mr Chang conducted himself unsatisfactorily in the appeal to the Migration Review Tribunal. MARA found that Mr Chang breached the Migration Agents Code of Conduct in a number of respects: by failing to declare he had provided immigration assistance to the complainant, failing to provide the complainant with a statement of services, and not keeping proper records. On 21 January 2009, Mr Chang was issued with a one year caution by MARA. A condition of the caution was that Mr Chang complete four hours of tuition in office and file management, and four hours’ tuition in ethics. An email from Mr Chang to MARA on 30 May 2012 indicates that he had not undertaken such tuition by that time. He has still not undertaken the required tuition. In the period May to July 2009, MARA received five complaints regarding Mr Chang’s conduct. MARA required that he provide his client files for each of the complainants. Having interviewed Mr Chang in relation to the complaints and having reviewed his file documents, MARA dismissed the fifth complaint on the ground that there was insufficient evidence to establish that Mr Chang provided a service to the complainant. MARA received a further two complaints regarding Mr Chang in May and July 2011. On 7 March 2012, MARA issued Mr Chang with a notice stating that, on the basis of the six complaints (the four remaining 2009 complaints and the two 2011 complaints), it was considering taking action to caution Mr Chang or to suspend or cancel his registration. On 10 August 2012, after reviewing submissions from Mr Chang and documents for each of the six complaints, MARA decided to cancel Mr Chang’s registration as a migration agent. This was on the basis that its investigation of the six complaints revealed that Mr Chang had breached a number of clauses of the Migration Agents Code of Conduct. MARA also found that Mr Chang was not a person of integrity or a fit and proper person to provide migration assistance. On 4 September 2013, Mr Chang applied to the Tribunal for a review of MARA’s decision to cancel his registration.LEGISLATION AND ISSUES The disciplining of registered migration agents is governed by the Migration Act 1958 (Cth) (‘the Act’). Section 303 provides relevantly:(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: …(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or …(h) the agent has not complied with the Code of Conduct prescribed under section 314. …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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

However, as I have indicated above, the decision in this case should not be taken to mean that Mr Chang’s rehabilitation into the profession is not possible. It appears that he now has a greater understanding of the Code and its foundations than was formerly the case. It will be up to him to demonstrate that understanding and that he is a fit and proper person to give immigration assistance if, at the end of the five year period from the time of cancellation, he chooses to reapply for registration. DECISION The decision under review to cancel Mr Chang’s registration as a migration agent is affirmed.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3864
Re	Jackie Chang
APPLICANT
And	Migration Agents Registration Authority
RESPONDENT

Tribunal	Deputy President RP Handley
Date	22 April 2014
Place	Sydney