Jackie Chang and Migration Agents Registration Authority
[2014] AATA 235
•22 April 2014
[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, 7.4Cases
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 353REASONS 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 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.
Immigration assistance is defined in s 276 of the Act. A person gives immigration assistance if, amongst other things, they use, or purport to use, knowledge of, or experience in, migration procedure to assist a visa applicant, cancellation review applicant or other person by preparing immigration documentation, giving advice or providing representation in relation to immigration matters.
Section 314 of the Act states that the regulations may prescribe a Code of Conduct for Migration Agents. The section also states that a registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct. The Code of Conduct (the Code) is set out in Schedule 2 of the Migration Agents Regulations 1998. The Code includes in its aims establishing a proper standard for the conduct of a registered migration agent, and setting out minimum attributes and abilities that a person must demonstrate to perform as an agent. Clause 1.12 of the Code imposes on a registered migration agent:
… an 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.
Clause 2.1A states that an agent must not accept a person as a client if the agent has one of a number of conflicts of interest including “any other interest that would affect the legitimate interests of the client”.
Clause 5.1 states that there is no statutory scale of fees. However, an agent “must set and charge a fee that is reasonable in the circumstances of the case”. Clause 5.2 requires an agent to give a client an estimate of fees and obtain written acceptance from the client of those fees. Clause 5.5 draws attention to s 313(1) of the Act which states that an agent is not entitled to be paid a fee or other reward for giving immigration assistance to another person unless the agent gives the person a statement of services.
The principal issue in these proceedings is whether Mr Chang’s registration should have been cancelled. During the course of the hearing, Mr Chang conceded that he no longer challenged the findings made by MARA in its decision. These findings, outlined below, were that the complaints revealed that Mr Chang had breached a total of 13 clauses of the Code and was also not a person of integrity or was otherwise not a fit and proper person to give immigration assistance.
THE COMPLAINTS
The six complaints relevant to these proceedings were made by six clients of Mr Chang while he operated a business under the trading name Chinatown Migration and Education Services.
The four 2009 complaints involved the complainants providing money to Mr Chang to pay English tuition fees at a rate well in excess of the actual fees charged to Mr Chang by the relevant Australian educational institutions. Mr Chang retained this excess amount. On top of this, he received a commission from the institutions themselves. The total amount that Mr Chang retained ranged from about 54 to 58 percent of the total tuition fees paid by the student to Mr Chang. The two 2009 complaints also involved the payment of tuition fees and the retention of some of those fees by Mr Chang. In addition, the two complaints alleged that Mr Chang signed enrolment forms without the complainants’ consent. He denies this, but MARA found his explanation to be implausible.
Many of the breaches of the Code arose from agreements entered into by Mr Chang with, on the one hand, a Chinese agency, Zhaolong Education Consulting Services Co Ltd (Zhaolong) and, on the other hand, Australian educational institutions. In brief, Zhaolong promoted courses offered by Australian institutions to Chinese students, for example by advertising in Chinese newspapers. Students who were interested in applying to study in Australia could retain Zhaolong to assist them in finding an appropriate course and in making the necessary arrangements to facilitate their study. Zhaolong charged its clients a fee for its services. Mr Chang said he is not aware of how much Zhaolong charged.
Mr Chang said he provided information to Zhaolong about courses offered by Australian institutions in Sydney, including a schedule of enrolment and tuition fees. If students expressed interest in undertaking a course at such an institution, the arrangement with Zhaolong was that Mr Chang would provide immigration assistance for the students by helping them with their visa applications, together with educational assistance in helping them enrol in their preferred course. Mr Chang agreed with Zhaolong not to charge potential students a fee. The payment for his services took the form of first, a discount permitted by the colleges on its fees and, second, a commission based on a percentage of the actual fees paid to the college. From the commission, which averaged about 30% of the tuition fees paid to the college, Mr Chang paid 10 to 15% of the tuition fees to Zhaolong. Mr Chang had similar agreements in place with other Chinese agencies.
The agreements Mr Chang entered into with the Australian educational institutions provided that, in addition to him receiving a discount on the tuition fees, the colleges would pay him a commission for each student whose enrolment he procured based on an agreed proportion or percentage of the tuition fees for the student.
For example, the first of the 2009 complainants, who enrolled in a 50 week English course at Cambridge College International in Sydney, paid $15,488 to Mr Chang’s business, in addition to the fees she paid to Zhaolong. The $15,488 comprised:
·tuition fees totalling $14,500 calculated on the basis of weekly fees of $290 for a total of 50 weeks.
·an enrolment fee of $150.00.
·the required health insurance for international students - a premium of $348
·a visa application fee of $450
·bank charges of $40.
However, unknown to the first complainant, and pursuant to his agreement with Cambridge College, Mr Chang received a discount on the tuition fees. This took the form of the College accepting payment from Mr Chang for 50 weeks at $180 per week, rather than at $290 per week. As a result, while the student remitted $14,500 for tuition fees to Mr Chang, he only paid $9,000 to the College. Mr Chang retained the discount of $5,500.
In addition, Mr Chang told me that the College paid him a 30% commission on the $9,000 paid to the College. Relying on the tax invoices issued by Mr Chang to Cambridge College, it appears the College paid Mr Chang a commission of $2,970. The combined result of the discount and commission arrangements was that, of the $14,500 in fees paid by the complainant, only 42% of the fees were actually received by the College. The other $8,470 was retained by Mr Chang. From this he paid a commission to Zhaolong, which Mr Chang said was 10 to 15% of the $9,000 paid to the college. None of this was revealed to the first complainant.
The exact amount retained by Mr Chang in respect of each of the 2009 complainants, however, remains unclear. In the Respondent’s Statement of Facts of Contentions, the following Table appears (the names of the clients have been omitted):
Client
Tuition Fee paid by client
Amount retained by Mr Chang including commission from the school
Percentage of Tuition fee retained
Agent fees paid directly to Zhaolong
1
$14,500.00
$8,470.00
58%
Y37,000
2
$15,200.00
$8,500.00
56%
Y10,000
3
$13,920.00
$7,920.15
57%
Y8,000
4
$14,550.00
$7,850.00
54%
Y8,770
The Tribunal notes that the amounts shown in the Table do not reflect the 10 to 15% commission that Mr Chang paid to Zhaolong, about which there appears to be no documentary evidence. In the case of the first complainant, MARA records the commission paid to Zhaolong as $2,900. However, this appears to be a misunderstanding on the part of MARA, who were under the impression that the commission paid to Zhaolong was based on the total tuition fees paid by the complainant rather than the discounted amount.
Notwithstanding the lack of clarity in the figures, it is evident that Mr Chang received a significant proportion of the tuition fees as payment for his services. The students were unaware of this, and were also unaware of both Mr Chang’s agreement with Zhaolong and his agreements with the colleges. His evidence at the hearing was that he had agreements in place with most of the colleges in Sydney including some universities. Some of the agreements with the Sydney colleges predated his agreement with Zhaolong. He said he had a particularly good relationship with about ten colleges and tended to focus on them unless a student requested otherwise. The commission he received varied from 10% to 50%, with an average of about 30%. (He estimated that he received 30% commission from most of the colleges). He told me that in the case of the Central Queensland University, he was paid a commission of 12% of the student’s tuition fees for the first year of their program.
Mr Chang said after the 2009 complaints he changed the arrangement for the payment of tuition and other fees so that instead of the student or agent paying tuition fees to him, the student or agent paid the tuition fees directly to the college. The college would then pay him his agreed share of the fees once the student had enrolled. About 60 to 70 students were enrolled on this basis. Mr Chang said the payment he received remained very much the same - as much as 50% for some of the English language colleges. Mr Chang said, in total, he was handling applications from 70 to 80 students per year. Over a two year period, about 70 of these students were English language students, of whom 30 to 50 students came through Zhaolong and the remainder through two or three other Chinese agents.
Mr Chang acknowledged that the students did not know that the tuition fees paid by them included a substantial component which went to Mr Chang, as a result of an agreement he had with the college in which they enrolled. He claimed that students would have known about this without being told because it was an open secret. He said, at the time, he thought the students were the clients of Zhaolong rather than his clients. However, he acknowledged that once a student was referred to him by Zhaolong, he would talk with the student over the phone with regard to their visa application and about its progress. He did not make a record of these conversations.
In the case of each of the first four complaints, the complainant deposited money for the tuition and other fees into the bank account ‘The East (Asia) Pty Ltd’. Mr Chang has accepted that this is his bank account. Mr Chang said he maintained two business accounts with the St George Bank: a client account and an operating account. He kept money remitted from the student in his operating account from which he would pay the required fees. He kept the proportion of the commission payable to the Chinese agent until the student’s application was finalised.
Mr Chang said he had offered to refund ‘some’ of the funds he received to the four complainants. (I interpreted the way he spoke about this as suggesting that he made the offers begrudgingly.) Some accepted his offer while others did not. The first complainant instituted proceedings in the Consumer, Trader and Tenancy Tribunal (CTTT) which found in her favour. Mr Chang said he did not appear at the hearing because his plane was delayed and he therefore appealed to the District Court. I note, however, that the CTTT decision was set aside in the District Court by consent but only after Mr Chang had paid the full amount of $5,500 that the CTTT had ordered Mr Chang to pay to the first complainant, together with $126.58 interest, $223 filing costs and Legal Aid’s costs of $2,701.90.
Mr Chang was asked about the two 2011 complaints, which raised, in part, similar issues with regard to tuition fees to those raised by the four 2009 complaints and, in part, allegations about his having forged student signatures on enrolment forms and transferring students into a college without their consent. It is unclear to me exactly what happened and, while Mr Chang agreed to accept MARA’s findings, he disputes at least part of what MARA found to have occurred. It appears that, as a result of the closure of a college called Uniworld, students were transferred, unless they chose otherwise, to Oxford College to undertake a similar English course. Mr Chang then used money already remitted to him by the students to pay the necessary deposit to Oxford College. He disputed having forged the students’ signatures.
Mr Chang said that about 98% of his clients were happy with the service he provided because generally he is a helpful, careful and well-organised person. For each applicant, he would set up a folder with file notes in Word format. The digital folder was backed up on disc.
Mr Chang said he is currently working as an education agent and not performing any immigration work. He assists with enrolling students in Australian colleges. His company, of which he is the sole director and which trades as Chinatown Migration and Education Service, retains the immigration business but employs a migration agent to undertake all immigration assistance. He has not undertaken any immigration assistance since his registration was cancelled. At his company’s business premises, the agent has one office and he has another. Mr Chang said he is also a NAATI accredited interpreter and translates documents from Mandarin into English. Mr Chang said his business no longer has any Chinese students or any engagement with Chinese agents. The students who lodged complaints with MARA caused a lot of trouble for the Chinese agents. In one case, the family of a student attended Zhaolong’s office and allegedly smashed their office furniture. He has very little contact with Zhaolong as a result.
Mr Chang acknowledged that he has not completed the extra tuition required by MARA’s caution of 21 January 2009. Prior to his registration being cancelled, he had contacted a private provider who could give him the required tuition but he did not go ahead with this. He said that every year, when he completed his continuing professional development, there was a component of ethics and office management, and he thought this might be sufficient. However, he agreed that he had not asked MARA whether this would satisfy the conditions to which his caution was subject. He also claimed MARA had not set an end date by which the tuition had to be completed. I note the caution was to remain in place for 12 months and until Mr Chang provided MARA with documentation demonstrating that he had successfully completed the required tuition.
RESPONDENT’S SUBMISSIONS
Mr Eteuati, for the Respondent, submitted that the most significant issue arises from the arrangements Mr Chang had in place both with Zhaolong and the Australian colleges. As a result of his agreements with the Australian colleges for the provision of a discount and payment of a commission to him from the tuition fees paid by the students, part of which was paid to Zhaolong, there was an undeclared conflict of interest between his interests and those of the students. Mr Eteuati said it was reasonable for the students to assume that money paid in respect of tuition fees was for that purpose. They had no way of knowing that a substantial cut would be taken by Mr Chang.
Mr Eteuati noted that the students were vulnerable: some were under the age of 18, they had limited knowledge of English and of Australia, and they were reliant on the advice provided by Mr Chang. Even after the first four complaints, the change made in the arrangements by Mr Chang was merely for the tuition fees to be paid directly to the institution rather than to him, with the institution remitting the agreed commission to him on the student’s enrolment. The students still did not know that Mr Chang was receiving a substantial part of the tuition fees as a result of his agreement with the colleges. Even after he was made aware of the first four complaints to MARA in 2009, there was no change in the disclosure that Mr Chang made to his clients.
The six complaints followed a previous complaint made against Mr Chang in 2008, as a result of which Mr Chang was issued with a caution and required to undertake tuition in ethics and office management. He has not undertaken the required tuition. Had he done so, he might have a better understanding of his obligations as a migration agent. Mr Eteuati said it is a real concern that, until the second day of the hearing in this matter, Mr Chang did not understand the conflict between his obligations in providing migration assistance to students and his financial interest in securing the students’ enrolment in colleges with whom he had an agreement to pay him a substantial commission.
Mr Eteuati said the Respondent contends that cancellation is the appropriate sanction in this case. In the alternative, if the Tribunal was to decide that cancellation is not appropriate, then a suspension should be for a period of four years with conditions.
MR CHANG’S SUBMISSIONS
Mr Chang said it was not his intention to breach the Code. He thought he was acting appropriately and the breaches were inadvertent. He had been working since 2002 and the breaches were limited to the particular arrangements he had in place at the time of the complaints. He hopes to work as a migration agent again in the future and believes that because he knows the language and culture, he can provide real assistance to Chinese applicants.
Mr Chang acknowledged that, until the second day of the hearing, he had not fully understood conflicts of interest and this is why the problems arose. He has approached a migration law specialist with a view to undertaking the further tuition identified by MARA. If he is able to obtain registration again in the future, he will focus on migration work and will not provide educational services. He is very depressed about his situation. He has learned a lot from this experience and, with the benefit of further tuition and professional development, these problems will not arise in the future.
DISCUSSION
As stated above, the principal issue to be determined is whether Mr Chang’s registration should have been cancelled. During the course of the hearing, Mr Chang conceded the findings made by MARA which identified breaches of a total of 13 clauses of the Code and found that he was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance.
A number of the breaches of the Code identified by MARA have not been discussed in this statement of reasons. These include failure to maintain proper records (clause 6.1), failure to pay money paid by the client to the agent for fees and disbursements into a separate clients’ account (Clause 7.1), failure to hold money paid for particular work performed in the clients’ account, until the work has been completed and an invoice has been issued to the client (clause 7.2), and failure to maintain proper records relating to the clients’ account (clause 7.4).
The proceedings focused on Mr Chang’s failure to recognise the complainants as clients for whom he was providing immigration assistance, and his failure to recognise the conflict between his own interests and those of his clients. The proceedings also focussed on the ramifications of those failures in terms of breaches of the Code and whether he is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance. The relevant clauses of the Code are: acting in accordance with the legitimate interests of the client and dealing with the client competently, diligently and fairly (clause 2.1), not accepting the person as a client if the agent has any other interest that would affect the client’s legitimate interests (clause 2.1A), advising clients of conflicts of interest (clause 2.1B), having due regard to the client’s dependence on the agent’s knowledge and experience (clause 2.4), confirming and acting on instructions (clause 2.8), misleading or deceiving MARA (clause 2.9A), setting and charging a reasonable fee (clause 5.1), providing fee estimates and obtaining instructions on those estimates (clause 5.2), and providing a statement of services (clause 5.5).
Mr Chang said he believed the complainants were the clients of Zhaolong and were not, therefore, his clients. In my view, such an explanation is implausible. Mr Chang was providing immigration services for individual students. He provided advice to the students on applying for a visa, assisted them in completing the documentation required for their visa applications, obtained the required visa application fees from them, submitted the visa applications and fees on their behalf, and monitored the processing of the application. The students were clearly his clients with the result that he had specific obligations to the students under the Code. Equally clearly, he breached those obligations, as Mr Chang conceded at the hearing. Of particular concern is what appears to have been the exorbitant payment he took from each client, which appears to have borne little or no relation to the work undertaken.
As to the conflicts of interest, had Mr Chang complied with the conditions of his 2009 caution, he might have had a better understanding of there being a conflict between his clients’ interest in his enrolling them in the most suitable program for their needs, and his personal interest in securing a commission for the clients’ enrolment from a college with which he had an agreement. For him to suggest that he was obliging the students by not charging them fees for providing immigration assistance is extraordinary.
I regard the breaches as serious. In particular, by allowing his interests to conflict with those of his clients, Mr Chang breached the overriding duty stated in clause 1.12 of the Code “to act at all times in the lawful interests of the agent’s client”. He is therefore liable to cancellation of his registration.
MARA also found that Mr Chang is not a person of integrity and not a fit and proper person to provide immigration assistance. The meaning of the phrase ‘fit and proper person’ was discussed by the High Court in Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, at 156 where Dixon CJ, McTiernan and Webb JJ found the word ‘fit’, in relation to an office, to involve honesty, knowledge and ability. The meaning of the phrase ‘fit and proper person’ was also discussed in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, where Toohey and Gaudron JJ said, at 380:
The expression ‘fit and proper person’, standing alone, carries no precise meaning. It 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.
As their Honours recognised, at 388, whether a person is a fit and proper person involves a value judgement to be made in the context of the particular activity to be licensed.
Section 290(2), set out above, provides a non-exhaustive list of considerations to be taken into account in making this determination. However, as was noted by Wilcox J in Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558, at [21]:
The Authority is not concerned with moral perfection in every aspect of life, but only those aspects of character and behaviour which go to fitness to give immigration assistance.
Among the matters to which s 290(2) refers is whether any disciplinary action has been taken against the agent. In Mr Chang’s case, he was the subject of disciplinary action on 21 January 2009 when MARA issued him with a caution. The caution was to remain in place for a period of 12 months and until Mr Chang provided documentation confirming his successful completion of four hours of private tuition on office and file management and four hours of private tuition on ethics. Mr Chang has not undertaken the required tuition. Had he done so, he might have had a better understanding of his ethical responsibilities and might not have become embroiled in the arrangements described above which led to the many breaches of the Code identified by MARA.
On the basis of Mr Chang’s breaches of the Code, and taking into account the previous caution and his failure to comply with the conditions, I am satisfied that Mr Chang was not a fit and proper person to give immigration advice at the time his registration was cancelled. Most significantly, Mr Chang’s lack of understanding of his responsibilities, and his participation in arrangements which allowed his interests to conflict with those of his clients, are fundamentally inconsistent with fitness to give immigration assistance.
This is not to say that Mr Chang may not reform and be accepted as being a fit and proper person to give immigration assistance in the future. See for example, the Full Federal Court decision in Irving v Minister for Immigration for Local Government and Ethnic Affairs (1996) 68 FCR 422, at 431 to 432, where Lee J noted that a person may reform and thereafter be found to be of good character (albeit that being of good character is not synonymous with being a fit and proper person in the context of the particular activity). Mr Chang acknowledged that it was not until the second day of the hearing that he understood for the first time why the arrangements he had entered into gave rise to a conflict of interest.
Having found that Mr Chang has committed serious breaches of the Code and being satisfied that he is not a fit and proper person to give immigration assistance, I must decide the appropriate sanction to be applied pursuant to s 303(1) of the Act. Given that Mr Chang has already been cautioned and failed to comply with the conditions of that caution, a caution would not be appropriate. It is therefore a matter of whether his registration should be suspended or cancelled. Mr Chang contended that a three year suspension was appropriate, with conditions requiring that he undertake continuing professional development and, in particular, undertake private tuition in ethics and file and office management. Mr Eteuati contended that cancellation was appropriate given the serious nature of the breaches. In the alternative, if the Tribunal was to decide that cancellation was not appropriate, then Mr Chang’s registration should be suspended for a period of four years with conditions.
If Mr Chang’s registration is suspended, I must decide for how long it should be suspended and whether the suspension should be subject to conditions. Section 304 of the Act provides that a suspension may be for not more than five years and MARA may set conditions for the lifting of the suspension. In the case of cancellation, s 292 of the Act provides that where a person’s registration has been cancelled under s 303, the person must not be registered within five years of the cancellation. In other words, a person may not reapply for registration within five years of their registration being cancelled.
In Narayanan and Migration Agents Registration Authority [2006] AATA 353, at [132], the Tribunal identified factors that 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.
I note that administrative sanctions of this sort are not intended to punish those who have committed misconduct. Rather, they are intended to be protective of the public and with a view to maintaining proper standards in the conduct of that activity. The aims of the Code set out in clause 1.10 reflect this. When considering how best to protect the public and set proper standards, deterrence is a relevant matter, both in terms of the individual concerned and others who are engaged, or may engage, in such activity: see, for example, the discussion in Howarth and ASIC [2008] AATA 278 at [167] to [180].
I have stated above that, in my view, Mr Chang’s breaches of the Code are serious. As Mr Eteuati pointed out, it was reasonable for the students to whom Mr Chang gave immigration assistance to assume that money paid to him in respect of tuition fees would be used for that purpose. The students were vulnerable: some were under 18, they had limited knowledge of English and of Australia and its education system, and were reliant on Mr Chang. In providing them with assistance, essentially he held a position of trust. Yet, he did not reveal to the students the very substantial portion of the tuition fees that he intended on keeping, and did in fact keep, as payment for his services. Nor did he reveal the agreements he had with the Sydney colleges pursuant to which he received a commission. He breached the students’ trust.
If Australia is to attract international students to study here, it is imperative that the students’ interests should be properly protected. Clause 1.12 of the Code imposes on the agent the overriding duty to act at all times in the lawful interests of the client and states that any conduct falling short of that requirement may make the agent liable to cancellation of his or her registration.
Given the serious nature of the breaches, including of clause 1.12 of the Code, this is a case where the agent’s registration should be cancelled. This is not a case where a suspension is appropriate. There needs to be a clear message that such conduct is not acceptable in order to deter Mr Chang and others from engaging in similar conduct, and to ensure that the public’s confidence in the profession is maintained. This is particularly so given the previous caution and failure to comply with conditions, the late acceptance that breaches had occurred, and what I interpreted as the begrudging attitude of Mr Chang to remitting to the complainants that part of the tuition fees he received.
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.
I certify that the preceding 57 (fifty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley .................[sgd].......................................................
Associate
Dated 22 April 2014
Date(s) of hearing 7 - 9 April 2014 Date final submissions received 9 April 2014 Applicant In person Solicitors for the Respondent Mr T Eteuati, Clayton Utz Lawyers
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