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

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).
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).
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…

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.

Continue reading Jin and Migration Agents Registration Authority

Details

AGLC: Jin and Migration Agents Registration Authority [2022] AATA 1251
Case: [2022] AATA 1251
Decision Date: 27 April 2022

CaseChat Overview and Summary

This matter concerned an application by Mr Jin for registration as a migration agent with the Migration Agents Registration Authority. The Authority had considered refusing his application on the grounds that he was not a fit and proper person or a person of integrity, as required by section 290(1) of the *Migration Act 1958* (Cth). Mr Jin sought review of this decision before the Administrative Appeals Tribunal.

The Tribunal was required to determine whether Mr Jin was a fit and proper person for the purposes of section 290(1) of the *Migration Act 1958* (Cth), and whether he was a person of integrity. This involved considering his conduct in relation to a 2016 visa application, a 2018 citizenship application, and his 2020 application for re-registration as a migration agent, including his disclosure of relevant matters to the Authority.

The Tribunal considered the meaning of "fit and proper person" as explained in *Australian Broadcasting Tribunal v Bond*, noting that it takes its meaning from context and can relate to past conduct, likelihood of future improper conduct, or public confidence. The Tribunal found that Mr Jin was unaware of falsified documents in his 2016 visa application. While Mr Jin made a false statement and provided incomplete residential address information in his 2018 citizenship application, the Tribunal was satisfied this was for convenience rather than deception, and that his subsequent withdrawal of the application was due to family concerns and a desire to avoid the risk of refusal, not to cover up misconduct. The Tribunal also noted confusion regarding Mr Jin's response to a question on his 2020 re-registration application and the Authority's subsequent natural justice letter, which incorrectly stated he had answered "Yes" to a character question.

Ultimately, the Tribunal was not satisfied that Mr Jin's conduct in relation to the citizenship application warranted a finding that he was not currently a fit and proper person. The Tribunal also found that the Authority's approach to Mr Jin's 2020 application was flawed, particularly concerning the natural justice letter and the basis of the investigation into his integrity. Consequently, the Tribunal set aside the Authority's decision and remitted the matter to the Authority to be reconsidered according to law.

Orders

Orders of the court

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Background

Background to the litigation

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 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; andii. I am not currently the subject of any criminal proceedings in any country (I understand that I must declare any current proceedings); andiii. 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; andiv. 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); andv. 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); andvi. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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

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