Jin and Migration Agents Registration Authority

[2022] AATA 1251

Jin and Migration Agents Registration Authority [2022] AATA 1251 (27 April 2022)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/6856
GENERAL DIVISION	)

Re: Yuwen Jin
Applicant

And: Migration Agents Registration Authority
Respondent

DIRECTION

TRIBUNAL:  Emeritus Professor P A Fairall, Senior Member

DATE OF CORRIGENDUM: 17 May 2022

PLACE:           Sydney

IT IS DIRECTED, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, that the text of the decision in this application is to be altered such that on the first page of the decision, the name of the Respondent is to be replaced with “Migration Agents Registration Authority”.

..........................[sgd].........................................
Emeritus Professor P A Fairall, Senior Member

Division:GENERAL DIVISION

File Number(s):      2021/6856

Re:Yuwen JIN

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:27 April 2022

Place:Sydney

The decision under review is set aside and remitted for reconsideration to the Respondent, with a direction that Mr Jin is a fit and proper person and a person of integrity within the meaning of paragraphs 290(1)(a) and (b) of the Migration Act.

................................[sgd]........................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

MIGRATION – registration of migration agent – whether the applicant is a fit and proper person for the purpose of section 290(1) of the Migration Act 1958 (Cth) – whether the applicant is a person of integrity for the purpose of s 290(1) of the Act – issuance of natural justice letter – whether investigation or inquiry – decision set aside and remitted.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Migration Act 1958 (Cth) s 290, 306, 309

CASES

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

REASONS FOR DECISION

Emeritus Professor P. A. Fairall, Senior Member

27 April 2022

1. This case involves the ‘integrity’ and ‘fit and proper person’ requirements under paragraphs 290(1)(a) and (b) of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Mr Yuwen (‘Alex’) Jin, is a 31 year old citizen of the People’s Republic of China (‘China’). He was first registered as a migration agent with the Office of the Migration Agents Registration Authority (‘OMARA’ or ‘the Authority’) on 29 November 2018. On 20 November 2019 he applied successfully for re-registration. On 17 November 2020, he completed a second online application for repeat registration as a migration agent.[1] These proceedings are concerned with his most recent 2020 application.

   [1] T6/32-35 (Registration No AGA 0107335).

3. Mr Jin worked for Abacus Visa and Migration Services Pty Ltd (Abacus) as a migration assistant from 1 April 2019 to 23 October 2020. In 2020 he was employed by Edupi Migration (Edupi), a migration firm specialising in hospitality migration. He has worked as a registered migration agent for almost three years (2018-2021). On 7 September 2021, a delegate of the Authority wrote to Mr Jin to advise him that he did not meet the statutory requirements under paragraphs 290(1)(a) and (b). The delegate was of the view that he was not a fit and proper person to give immigration assistance, and was not a person of integrity. Mr Jin’s application for registration was therefore refused.[2]

   [2] T2/7.

4. As a result, Mr Jin is no longer employed by Edupi as a migration agent, but is working for the same company as an office manager.

5. On 17 September 2021, Mr Jin applied to the Administrative Appeals Tribunal (the Tribunal) for review of the refusal decision, as provided for under section 306 of the Act.

6. The Tribunal is satisfied that Mr Jin meets the registration requirements under subsection 290(1) of the Act.

7. My reasons are set out below.

   THE HEARING

8. The matter was heard on 2 February 2022. Mr Jin was represented by Mr A Conyer, and the Authority was represented by Mr J Hutton.

9. The Respondent submitted the relevant documents as required by subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (Cth). The Respondent also provided a Tender Bundle consisting of 69 pages, and a Statement of Facts, Issues and Contentions (RSFIC), dated 17 December 2021.

10. The applicant provided an undated Statement of Issues, Facts and Contentions, as well as the following documents:

    ·An undated statement by Mr Jin;

    ·Statements by past and present employers and associates: Ms Linda McCreath, Mr Cheng Jang, and Mr Justin Browne;

    ·Letters from the Department of Home Affairs dated March 2018 and August 2016;

    ·A bundle of letters addressed to a particular address; and

    ·A Freedom of Information decision record from the Department of Home Affairs dated 29 August 2019.

11. The undated statement was provided by Mr Jin to the Tribunal for the purpose of these proceedings, and asked for the information contained in his statutory declaration of 30 March 2021 to be incorporated therein.

    LEGISLATION 

12. Section 290 of the Migration Act provides:

    (1)  An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:

    (a) the applicant is not a fit and proper person to give immigration assistance; or

    (b) the applicant is not a person of integrity; or

    (c) the applicant is related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship.

    (2)  In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:

    (a)the extent of the applicant's knowledge of migration procedure; and

    (c)any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:

    (i)     a fit and proper person to give immigration assistance; or

    (ii)    a person of integrity;

    (except a conviction that is spent under Part VIIC of the Crimes Act 1914 ); and

    (d)any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and

    (e)any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and

    (f)any disciplinary action that is being taken, or has been taken, against the applicant that the Authority considers relevant to the application; and

    (g)any bankruptcy (present or past) of the applicant; and

    (h)any other matter relevant to the applicant's fitness to give immigration assistance.

    (3)  In considering whether it is satisfied that an individual to whom the applicant is related by employment is not a person of integrity, the Migration Agents Registration Authority must take into account each of the following matters, so far as the Authority considers it relevant to the question whether the individual is not a person of integrity:

    (i)any conviction of the individual of a criminal offence (except a conviction that is spent under Part VIIC of the Crimes Act 1914 );

    (j)any criminal proceedings that the individual is the subject of;

    (k)any inquiry or investigation that the individual is or has been the subject of;

    (l) any disciplinary action that is being taken, or has been taken, against the individual;

    (m)any bankruptcy (present or past) of the individual.

    (4)  To avoid doubt, this section applies to all applicants (not just first time applicants).

13. The term ‘fit and proper’ is not defined in the Act. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380, Toohey and Gaudron JJ considered the meaning of the expression ‘fit and proper person’, albeit in a different legislative context:

    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. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

    BACKGROUND

14. On 17 November 2020, Mr Jin applied online to the Authority for registration as a migration agent.[3] He answered ‘No’ to the following question:[4]

    [3] T6/32.

    [4] T6/33.

    Are the following statements true and correct?

    i. I have not had a finding of guilt against me for a criminal offence (past or present) in any country other than previously declared by me to the Migration Agents Registration Authority; and

    ii. I am not currently the subject of any criminal proceedings in any country (I understand that I must declare any current proceedings); and

    iii. to the best of my knowledge and belief I have not been (other than previously declared by me to the Migration Agents Registration Authority) and am not currently the subject of an inquiry or investigation (I understand that I must declare any current investigations) by;

    • a department or agency of the Commonwealth; or

    • a department or agency of a State or Territory of Australia; or

    • a professional association; or

    • a corporate regulatory agency; or

    • a consumer protection organisation; and

    iv. no disciplinary action is being taken (I understand that I must declare any current actions), or has been taken against me (other than previously declared by me to the Migration Agents Registration Authority); and

    v. I have not been declared bankrupt or applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, or compounded with my creditors, or made an assignment of remuneration for the benefit of my creditors (other than previously declared by me to the Migration Agents Registration Authority); and

    vi. I have not been a director or executive officer of a corporation that became insolvent whilst I held one of these positions (other than previously declared by me to the Migration Agents Registration Authority).

    vii. I am not aware of any finding, conduct, or event or fact which would affect my fitness and propriety to provide immigration assistance or which goes to my integrity (other than that which is disclosed herewith or previously disclosed)

    viii. There are no other relevant matters which would cause the Authority to consider that I am not a fit and proper person or a person not of integrity, to provide immigration assistance.

    Note: Some of these matters are notifiable events under Section 312 and migration agents are required to advise the Authority in writing within 14 days of any of these events occurring.[5]

    [5] T6/33.

15. By letter dated 5 February 2021, the Authority informed him that it was considering not approving his application by reason of certain matters of concern, and invited him to make submissions in relation to those matters, as required by subsection 309(1) of the Act.[6] On 7 April 2021, Mr Jin, having obtained legal assistance and an extension of time,[7] emailed a Statutory Declaration dated 30 March 2021 to the Authority.[8] The Tribunal has been provided with a copy of this declaration, which is appended to the applicant’s undated Statement.

    [6] T8/50.

    [7] T10/73.

    [8] T10/72.

16. The Decision Record (which is considered in more detail below) was attached to the Department’s refusal letter of 7 September 2021.[9] It appears that the delegate was concerned about the applicant’s failure to flag, in his 2020 online application for reregistration as a migration agent, the fact that he had received a natural justice letter from the Department in 2019 arising from his application for citizenship, thus putting him on notice that he was subject to an inquiry or investigation. The delegate was also concerned about irregularities in two previous applications; a 2016 visa application; and a 2018 citizenship application (subsequently withdrawn).[10] The irregularities were as follows:

    [9] T2/8.

    [10] T2/7.

    (a) 2016 Skilled Independent (subclass 189) visa application

17. On 28 January 2016, Mr Jin applied for a Skill (Independent) Subclass 189 visa and included a woman by the name of Ms Lu Zong as his de facto partner and as a dependant on the visa application. On 11 May 2016, Mr Jin and Ms Zong were each granted Subclass 189 visas.[11]

    [11] T3/23.

18. It subsequently transpired that certain documents (utility bills) had been provided to the Department as part of the visa application, and that the billing address had been fraudulently altered. Both Mr Jin and Ms Zong assert that the application was processed on their behalf by an agent, and that they had no knowledge of the alteration. Mr Jin and Ms Zhong are no longer in a relationship, and she has returned to China. Mr Jin accepts that the bogus documents were provided to the Department by their agent but denies that he had anything to do with the alteration.

19. I note in passing that on 4 March 2018, Ms Zong applied for Australian citizenship by conferral.[12] Her application was refused and on 18 June 2021, the Skilled Independent (class SI subclass 189) visa, granted to her on 11 May 2016, was cancelled. The delegate was satisfied that bogus documents had been provided to the Department as part of her application for the visa. The address as stated on the form carried the implication that Mr Jin and Ms Zong lived at the same premises over the relevant period, and therefore increased the likelihood that they were in a de facto relationship. The delegate was satisfied that had such documents not been provided, a different conclusion may have been reached as to whether she was in a de facto relationship with Mr Jin at the relevant time.[13]

    [12]  Letter from Department of Home Affairs dated 4 March 2018.

    [13] RTB/66, 69.

    (b) 2018 Australian citizenship application

20. On 19 November 2018, Mr Jin applied for Australian citizenship by conferral. On 30 July 2019, while processing his 2018 citizenship application, the Department of Home Affairs (the Department) wrote to Mr Jin to give him an opportunity to comment on adverse information that had come to the Department’s attention (the ‘natural justice letter’).[14]

    [14] T3/23.

21. The Department was concerned about his failure to provide accurate information relating to his residential addresses during the relevant period. Mr Jin gave his aunt’s home as his residential address, and answered ‘No’ to the question: Has the applicant had any other residential addresses in the past five years?  In fact, Mr Jin had moved several times and there is no dispute that he failed to provide accurate information in this application.

22. The Department was also concerned about the submission of bogus documents as part of his 2016 skilled visa application (discussed above).

23. By letter dated 5 August 2019, Mr Jin withdrew his application for citizenship. He apologised for failing to provide accurate information about his residential address. He stated:

    I did reside in other addresses apart from my address in Parramatta, including several locations in Burwood and Bankstown.  I should have put them down in my application. Instead, I was being sloppy and lazy. I totally understand that the citizenship application is very serious and it is never my intention to provide any incorrect answer.

24. He also indicated that he wished to withdraw his application “due my personal reason (family reason in China)”.[15]

    [15] T5/30; T4/28.

    THE DECISION RECORD

25. I return to consider the Decision Record in more detail.  The delegate notes that Mr Jin made submissions on four broad issues:[16]

    ·His relationship with Ms Zhong;

    ·The documents provided in support of his 2016 subclass 189 visa application;

    ·His 2018 citizenship application;

    ·His 2020 declaration to the Authority.

    [16] Decision record, para 34: T2/16.

26. In respect of the first[17] and second[18] matter the delegate made no findings.

    [17] Decision record, para 36: T2/16.

    [18] Decision record, para 39: T2/17.

27. In respect of the third[19] and fourth[20] matters, the delegate made adverse findings. The delegate rejected Mr Jin’s “sloppy and lazy” defence in relation to his failure to provide an accurate list of residential addresses in his 2018 citizenship application. It was simply not good enough. It showed that he was “irresponsible and dishonest”. He had undertaken studies to become a migration agent and knew, or should have known, of the serious consequences of making false statements in a citizenship application. [21]

    [19] Decision record, para 47, 51: T2/19, 20.

    [20] Decision record, para 58.

    [21] Decision Record, paras 49 – 52: T2/19.

28. The delegate was especially concerned about Mr Jin’s failure in his 2020 application for reregistration to draw attention to the natural justice letter dated 30 July 2019 sent to him by the Department in relation to his 2018 citizenship application. The delegate considered that the applicant’s failure to treat the natural justice letter as an ‘investigation’ was an attempt to withhold information that was relevant to his registration application from the Authority.[22] The delegate found that this went to Mr Jin’s integrity and would cause the Authority to think that he was not a fit and proper person or a person of integrity to provide immigration assistance and that it should have been declared.

    [22] Decision Record, paras 58: T2/20.

    THE HEARING

29. Mr Jin gave the following evidence to the Tribunal. 

30. In relation to his 2016 visa application, he denied any knowledge of the falsification of documents in connection with the application. He did not dispute that utility bills submitted with the application had been altered, but believed that this had been done by an immigration agent engaged by Ms Zong by the name of Jackson, who had since disappeared. He had made some efforts to find Jackson, by looking for the office where they had met, but had not succeeded in finding him.

31. As to his 2018 citizenship application, he refreshed his apology to the Tribunal for his failure to provide a comprehensive list of residential addresses in his citizenship application. He said that he had a number of temporary homes but used his aunt’s address because it was a permanent address for the purpose of communicating with the Department.

32. He also provided a cogent reason as to why his citizenship application was withdrawn. He said:

    I withdraw my citizenship application mainly because my parents because when I told my parents about my - I had lodged my Australian citizenship application, they were not happy…  But just they don't want me to give up my Chinese citizenship since China does not recognise dual citizenship, and since I'm the only child, in the future if they wish to pass me some properties and moneys, there will be huge amount of paperwork and also big amounts of the duty tax money.  They try to avoid that.  That's why I - and basically I lost my registration in China and also cause a lot of other troubles basically, and I will have to (indistinct) to go back to China and if they need me to go back home immediately, that I'm not able to do that.  And that's why they have this concern, and they hope me to reconsider.  And at the time when I got this letter, I just feel it's - it would be a good opportunity for me to change my (indistinct), and that's why ask (indistinct) withdraw my citizenship application. 

    And in addition to that, I understand, when I got this letter, there's a risk I might be refused to citizenship if I proceed.  So I just don't want to run the risk this week as well. If my parents (indistinct) happy about it, why I should continue to run the risk?  And then I subsequently withdraw my application.[23]

    [23] Transcript of proceedings, 2 February 2022, 9.

1. In summary, Mr Jin did not think that he had done anything wrong in his 2016 visa application. He conceded that his failure to provide a complete list of residential addresses in his 2018 citizenship application was a mistake, but it was not intended to deceive. As to his 2020 reregistration application, it did not occur to him that he was the subject of a current investigation by reason of having received the 30 July 2019 natural justice letter in connection with his withdrawn 2018 citizenship application. It did not occur to him that it may amount to an ‘investigation or inquiry’ in the relevant sense. Had he thought otherwise, he would have answered differently.

   Did he answer No or Yes, and does it matter?

2. The Department’s letter of 5 February 2021 addressed to Mr Jin states that he answered ‘Yes’ to the question Are the following statements true and correct?[24] This assertion is repeated in the Decision Record attached to the refusal letter of 7 September 2021,[25] and repeated in the RSFIC at paragraph [14].

   [24] T8/50, 56.

   [25] T2/19, para 54.

3. The 2020 application form is reproduced in the materials before the Tribunal, and it is clear that Mr Jin did not answer ‘Yes’ to the global question.  In fact he answered ‘No’.[26] The statements to the contrary in the letters of 5 February 2021 and 7 September 2021, and the RSFIC, are incorrect.

   [26] T6/33.

4. In answering ‘No’ to the question ‘Are the following statements true and correct?’ Mr Jin informed the Department that at least one of the statements on the list was not true and correct. It is not clear to the Tribunal whether the online application form provided sufficient space or a drop down tab to provide details. At the very least, one might expect the Authority to have invited the application to elaborate on his reasons for answering in the negative.

5. The gravamen of the case against the applicant was not that he answered ‘Yes’ to the question (as stated in the Respondent’s Statement of Facts, Issues and Contentions, and  the Decision Record) but that he answered ‘No’ but then failed to provide further details about which of the particular matters applied to him. This is borne out by in cross examination.

6. I note the following passages:

   [Mr Hutton]: Now, in applying for repeat registration, you failed to mention the letter that you had received, the invitation that you'd received from the department inviting you to comment on the omission of a number of addresses and on these bogus documents which was dated the 30th of the 7th 2019, why did you fail to refer to that letter, that invitation?---

   [The applicant] So, at the time when I re-registered my application I just - the invitation to comment just didn't cross my mind to be considered as an enquiry or investigation.  It just (indistinct) my mind and I also feel like I have done nothing wrong and so - and that's why I didn't declare that part.[27]

   [27] Transcript of proceedings, 2 February 2022, 11-12.

7. He was asked about the importance of candour.

   [Mr Hutton]  [D]id you believe that it was important when completing this application to be as candid as you possibly could be, as in, to disclose everything that may be necessary for MARA to be able to determine whether or not you were - that there were any issues in terms of re-registering you as a migration agent?---

   [The applicant] Yes.  Anything - yes.  I will say I should do (indistinct).

   [Mr Hutton] Yes.  Now, if I can take you to page 33, there are a series of questions asked about whether statements are true and correct, and one of those is that to the best of your knowledge and belief, whether you were currently the subject of an inquiry or an investigation by, among other things, the department or agency of the Commonwealth, and I think it's your understanding that you believe that you were not the subject of an inquiry or an investigation arising from the natural justice letter;  is that right?---Yes.

   And can you just explain why you think that?---Well, I guess - because this actually was my second renewal, so in my first renewal I actually answered the same - I provide with the same answer.

   Yes?---So, it's at the time - it just didn't cross my mind that invitation to comment is something amount to inquiry or investigation.  It just didn't cross my mind.

8. He was also asked about the doctored documents on the visa application.

   Yes. You'd been put on notice by the natural justice letter that there were fraudulent documents on a visa application made in your name.  You'd gone and undertaken an FOI exercise where you'd identified those fraudulent documents and reviewed them and considered that they were fraudulent, and you'd been sent a natural justice letter which suggested that material meant that you may not have been a person of good character.  Why do you say that those were not events or facts which either went to your integrity or which would cause the authority to consider that you were not a person of integrity?—

   [The applicant]  I didn't do anything wrong.  I didn't - I mean, in relation to that, I didn't do anything wrong because I didn't fake this document.  I have no knowledge of that.  I feel like I'm innocent.  That's why I answered no, and I don't think - because being innocent, I don't think that will affect my fitness and proprietary to be a migration agent, and I firmly believe I am a person of - have a good integrity.  That's why I answered no. [29]

   [29] Transcript, 2 February 2022, 43.

9. In his closing submission, the Respondent’s solicitor observed that Mr Jin answered ‘No’ to the crucial question, although without noting the error in the Decision Record or the RSFIC. His argument was simply that Mr Jin was or had been the subject of an inquiry or investigation, and there were events or facts which would affect his fitness and propriety, or other relevant matters, and that he failed to make full disclosure in the reregistration form. In closing submissions he said:

   So, what this boils down to, in our submission, is a question of candour here, in terms of not telling OMARA of this information, because, obviously, it is contrary to the applicant's interests. 

   And, rather than notifying OMARA, which appears to be the purpose of the scheme, in our submissions, so that OMARA can be aware, and can consider these matters, the applicant simply said 'no' to that question. 

   Rather than notifying OMARA, and explaining his innocence, or his lack of connection to the bogus documents - the fraudulent documents, he just simply said 'no'.[30]

   [30] Transcript of proceedings, 2 February 2022, 75.

10. In other words, if there was some matter of contention, simply saying ‘No’ would not be sufficient to put the Agency on notice - some further expansion and explanation of the specific matter would be required.

    CONSIDERATION

11. In relation to his 2016 visa application, having heard the evidence given by Mr Jin, I am satisfied that he was unaware that falsified documents had been provided to the Department as part of his application. I note that the Delegate made no adverse findings with respect to his knowledge of the falsification of documents in connection with the application.

12. In relation to his 2018 application for Australian citizenship, I am satisfied that Mr Jin intended to make a false statement and provide false information by providing his aunt’s Parramatta address as his sole residential property and by not providing a comprehensive account of his residential addresses. I am satisfied that he provided the information as a matter of convenience, and he had no ulterior motive or intention to deceive.

13. I am not, however, satisfied that the citizenship application was withdrawn to cover up his misdeed or to cover his tracks.

14. Mr Jin refreshed his apology to the Tribunal for his failure to provide a comprehensive list of residential addresses in his 2018 citizenship application. He acknowledged his mistake and I do not accept that his withdrawal of his citizenship application was an attempt to avoid the consequence of making a false statement. Although his failure to provide the complete list of residential properties was a clear error, I am not satisfied that it should lead to a finding that he is not a fit and proper purpose at the present time.

15. In relation to his 2020 application for reregistration as a migration agent, the confusion around whether Mr Jin answered ‘No’ or ‘Yes’ to the character question has caused the Tribunal some difficulty.

16. I am concerned that Mr Jin and his representative may have been misled or confused as to the basis upon which the Respondent questioned his integrity. It appears that the issue was not that he had provided a false answer as such (he had not), but that he had failed to provide specific details in the application form for reregistration.

17. The letter of 5 February 2021 from the Authority informed Mr Jin that the Authority was considering not approving his application by reason of certain matters of concern, and invited him to make submissions in relation to those matters, as required by subsection 309(1) of the Act.[31] The letter incorrectly asserted that he had answered ‘Yes’ to the global question, and highlighted two paragraphs in particular – paragraph (vii) relating to ‘any finding, conduct or event or fact’ relevant to fitness or integrity; and (viii) ‘other relevant matters’.[32] 

    [31] T8/50.

    [32] T8/51.

18. I note that in his response by way Statutory Declaration of 30 March 2021, prepared prior to obtaining legal advice, he said that ‘the only reason I ticked yes is that I believe I am innocent, and I thought as OMARA is part of the Home affairs, they should have everything about me, and I am not trying to hide anything from OMARA’.  His explanation proceeded on the false assumption that he ‘ticked yes’. Had he looked at his application (assuming he had a hard copy of the online application) he would have seen that he said No. This raises the possibility that he intended to make an affirmative response, but this is to enter the realm of speculation. But in substance, he was saying that he had done nothing wrong.

19. It seems to the Tribunal that Mr Jin’s unadorned negative answer should have led the Authority to invite him to elaborate on his reasons for saying that at least one of the statements in the relevant question was not true. This may also have provided him with an opportunity to provide further information about his 2016 visa and 2018 citizenship applications.

20. It is not known to the Tribunal whether the online application process used in the 2020 reregistration application contained room to provide full particulars on character matters. I note that the current OMARA user guide for repeat registration states:

    Character tab

    Complete all the required fields for relevant information you have not previously declared. If you answer Yes to any of the questions, you will be prompted to provide additional details and will be required to upload relevant documents with your application at the Documents tab.[33]

    [33] >

    Out of an abundance of caution, it would have been prudent to bring to the attention of the Authority all the matters, including his receipt of the natural justice letter, the use of bogus documents by his agent in the 2016 visa application, and his failure to provide a proper list of residential properties in his 2018 citizenship application.

21. In summary, I accept Mr Jin’s evidence that he was unaware that the address line on the utility bills had been altered in his 2016 visa application, and while I accept that he deliberately provided incorrect address information in his 2018 citizenship application, and that this was a serious lapse, I do not consider that it is by itself sufficient to justify an adverse character finding, in light of all the evidence presented to the Tribunal. I am satisfied that his failure to advert to the natural justice letter, in the particular circumstances of this case, do not support a finding that he is not a fit and proper person to act as a migration agent.

22. Overall, I find that the correct and preferable decision is to find that Mr Jin is a fit and proper person and a person of integrity.

23. In reaching this conclusion I have also taken into account a reference from Ms Linda McCreath, legal practitioner, registered migration agent, and Managing director of Abacus. She confirmed Mr Jin’s employment with Abacus as a migration agent. She said that she was fully aware of the issues relating to the refusal decision.

    9. Despite my knowledge of the OMARA's decision, I am able to say that I have found Alex to be a person of integrity and professionalism. If he had any faults, they would relate to an occasional lack of attention to detail at the beginning of his employment at Abacus. However, this is something that we spent a great deal of time training Alex to ensure he put more emphasis on the quality rather than the quantity of his work. I am happy to say that Alex showed vast improvement on this during his employment at Abacus.

24. I note that Mr Jin was subsequently employed by Edupi, whose principal and director, Mr Justin Browne, gave evidence to the Tribunal. He praised Mr Jin’s work ethic and professionalism, and did not consider that his mistakes compromised his standing as a fit and proper person. When his re-registration was refused on 7 September 2021, Mr Browne kept him on as an office manager.

25. I also note the positive character reference of Mr Cheng Jang, who worked with Mr Jin at a private education provider.

26. I have no doubt that this experience will provide a salutary lesson, namely, to be exceedingly careful and diligent in attending to the completion of forms required by all government departments.

    DECISION

27. The decision under review is set aside and remitted for reconsideration to the Respondent, with a direction that Mr Jin is a fit and proper person and a person of integrity within the meaning of paragraphs 290(1)(a) and (b) of the Migration Act.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member.

............................[sgd]............................................

Associate

Dated: 27 April 2022

Date(s) of hearing:	2 February 2022
Solicitors for the Applicant:	Mr. A Conyer, Diamond Conway Lawyers
Solicitors for the Respondent:	Mr. J Hutton, Australian Government Solicitor

[28] Transcript, 2 February 2022, 42 - 43.

Version date: 12 November 2021, 25.