Kazacos and Migration Agents Registration Authority
[2007] AATA 1034
•31 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1034
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1262
GENERAL ADMINISTRATIVE DIVISION ) Re PARRIS KAZACOS Applicant
And
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Senior Member M D Allen Date31 January 2007
PlaceSydney
Decision The decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision namely:
THAT Parris Kazacos is suspended from practice as a Migration Agent as and from the close of business on the 18th day of September 2006 up to and including the 31st day of January 2007 at least.
AND THAT the lifting of any suspension of the Agent’s right to practice is dependant upon him complying with the following conditions, namely:
i. The successful completion of private tuition in Professional Ethics for a minimum of four hours conducted by an individual or individuals approved by the Migration Agents’ Registration Authority who is either an immigration law specialist or a Migration Agent with a minimum seven years experience; and
ii. The Agent provides to the Migration Agents’ Registration Authority a statutory declaration in Commonwealth form stating that he has not made immigration representations for a fee or given immigration assistance as defined in the Migration Act 1958 while suspended.
(Sgd) M.D. ALLEN
...........................................
Senior Member
CATCHWORDS
MIGRATION AGENT – Code of Conduct – discussion of the ability of a migration agent to incorporate his or her practice – findings made in relation to a number of breaches with respect to three former clients – decision under review set aside and substituted with Tribunal’s decision that the Applicant is suspended from practice from 18 September 2006 to 31 January 2007 at least, and the suspension lifted upon fulfilment of conditions imposed.
Migration Act 1958 – ss 276, 280, 286, 314
Acts Interpretation Act 1901 – para 22(1)(aa)
Legal Profession Act 2004 – ss 141, 143, 150Re Hudson v Migration Agents Registration Authority [2004] AATA 1007
Hanna v Migration Agents Registration Authority [1999] FCA 1657REASONS FOR DECISION
31 January 2007 Senior Member M D Allen 1. By application made the 22nd day of September 2006, the Applicant sought review of a decision by the Respondent made the 18th day of September 2006, suspending his registration as a Migration Agent for a minimum period of six months and imposing conditions to be fulfilled before the lifting of the suspension.
2. The decision of the Respondent was made following findings that the Applicant had breached clauses of the Migration Agents Code of Conduct.
3. Section 314 of the Migration Act 1958 provides that Migration Agents must conduct themselves in accordance with a Code of Conduct, and the said Code is at Schedule 2 to the Migration Agents Regulations 1998. So far as the present proceedings are concerned, it is alleged that the Applicant breached the following provisions of the code with respect to the following former clients, namely:
(a)Mr Wilkinson – Clauses 2.1 and 2.7
(b)Mr MacDonald – Clauses 2.1, 2.6, 7.2 and 10.2
(c)Ms Adams – Clauses 10.4 and 10.6
4. As pointed out by the Solicitor for the Applicant in his submissions, there has been no allegation by the Respondent, that contrary to section 290 of the Migration Act, the Applicant is not a fit and proper person to give immigration assistance.
5. A matter which is pertinent to these proceedings is the ability of a Migration Agent to incorporate his or her practice. Section 280 Migration Act states:
“(1) Subject to this section, a person who is not a registered migration agent must not give immigration assistance.”
Whereas section 286 states:
“Individuals may be registered as migration agents in accordance with this Part.”
In other words, only natural persons can be registered as Migration Agents (see paragraph 22(1)(aa) Acts Interpretation Act 1901).
6. Section 286 does not mean, however, that a Migration Agent cannot conduct his practice by means of a corporation. Subsection 281(2) Migration Act states:
“(2) Subject to subsection (3), a person must not ask for or receive any fee or other reward for the giving of immigration assistance by another person who is not a registered migration agent.”
Paragraph 22(1)(a) Acts Interpretation Act provides that in any Act, unless the contrary intention appears, the word “person” includes a body corporate.
7. This matter is not one in which to undertake an examination as to the status of an employed Migration Agent vis a vis an employer whether incorporated or a partnership. Suffice it to say this matter has demonstrated that there is a lacuna in the Migration Act and Regulations made there-under regarding the effects of the incorporation of a Migration Agents’ practice or the employing by another corporate body or partnership of a Migration Agent.
8. What is clear is that the Department of Immigration (or whatever it is entitled from Government to Government) needs to address the incorporation of Migration Agents’ practices, and a possible solution is to have regard to the provisions of Part 2.6 of the Legal Profession Act 2004 (NSW), especially at sections 141, 143 and 150.
9. This matter illustrates some of the problems that can arise from incorporation of a practice, and it is clear that the applicant has used corporate structures to avoid full compliance with the Code of Conduct and investigations by the Respondent.
10. On 24th March 2006 the Applicant was interviewed by an officer of the Respondent. In the record of that interview he described the structure of his practice. That structure is that a company, Parrish & Shah Pty Ltd, was incorporated on 1 February 2000. Originally the Applicant and one Hemang Shah were the shareholders and directors of the company. Currently the Applicant is the sole shareholder and director of the company. The company is the registered proprietor of the business name Parris & Shah Migration Specialists. The company also trades under the business name of Australian Migration Specialists.
11. The Applicant stated in his Record of Interview that the two trading names, namely Australian Migration Specialists or Parris & Shah Migration Specialists, would be used for clients of Parris & Shah Pty Ltd. When looking at the copies of various correspondence in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, it seems clear that both trading names are used indiscriminately.
12. In reviewing the specific complaints against the Applicant I am puzzled as to why no finding as to his fitness to practice as a Migration Agent was considered by the Respondent. What is apparent from a perusal of the Applicant’s correspondence to, and the Record of the Interview between him and an officer of the Respondent, is that his attitude towards the Respondent is one of contumely, whereas his correspondence with former clients, if they express dissatisfaction with his services or have the temerity to ask for a refund of fees for work not carried out, is one of vituperation and vilification.
13. One of the Applicant’s major defences to two of the complainants in these proceedings was that at the time he rendered advice to them regarding their prospects of success in obtaining a visa to migrate to Australia, they were not clients and hence the provisions of the Migration Agents Code of Conduct did not apply.
14. The fact situation is that the two complainants, Messrs Wilkinson and MacDonald, had completed an on-line assessment provided in a website by one of the entities under which the Applicant traded (Australian Migration Specialists). As a result of these on-line assessments the Applicant advised the complainants that they were eligible for visas to migrate. In response to allegations that the advice offered was negligent, or at the very least over confident, the Applicant asserted that at the time the complainants were not yet clients.
15. In Re Hudson and Migration Agents Registration Authority [2004] AATA 1007, Senior Member Dwyer at paragraph 92 stated:
“I accept that a person does not become a client of a professional adviser simply by making an enquiry or seeking information. It is necessary for the professional, in this case a migration agent, to agree to give some advice or to perform some work within the person’s area of expertise. For a person to become a client, usually, except in cases of a free consultation or work being done and “pro-bono”, there will be a fee paid or an agreement or understanding that a fee will be paid.”
However, Senior Member Dwyer went on to state at paragraph 97:
“The appropriate meaning of the word “client” in the code is its “ordinary meaning” bearing in mind the context of the Act, which provides, in s 314, for the code. Part 3 of the Act, which covers “migration agents and immigration assistance” includes s 280 which prohibits a person who is not a registered agent from giving “immigration assistance. The following sections include restrictions on the charging of fees for the provision of immigration assistance and provision for the registration of Migration Agents. Section 316(b) of the Act provides that the function of MARA includes the monitoring of the conduct of Migration Agents “in their provision of immigration assistance.” Thus I accept that the term “client”, as used in the code, refers to a person who uses the services of a Migration Agent to obtain “immigration assistance.” That is also the affect of the Section 306C definition.”
16. The term “immigration assistance” in section 276 Migration Act refers to assistance to a visa applicant. At the time Messrs Wilkinson and MacDonald made their on-line enquiries they were not visa applicants but merely enquirers. Until such time as the Applicant was engaged by the complainant as their agent, and the retainer paid or agreed, no client relationship existed.
17. It therefore follows that no breach of the Code of Conduct can be ascribed to the Applicant in regard to any dealings with these two complainants prior to their advising the Applicant that they wished to engage his services and would be transferring the required fees.
18. Similar comments can be made regarding the refusal to refund fees to Messrs Wilkinson and MacDonald. Although the Applicant sought primarily to rely upon the payment of the fees to Parris & Shah Pty Ltd and not to him personally, it seems to me that once the complainants had terminated the Applicant’s engagement to act on their behalf then they were no longer clients.
19. The behaviour of a Migration Agent to former clients is addressed in Part 10 of the Migration Agents’ Code of Conduct, and thus any breach of obligations to former clients must be found within that Part, and not in Part 2, which deals with standards of professional conduct towards clients. As was pointed out by Tamberlin J in Hanna and Migration Agents’ Registration Authority [1999] FCA 1657, the Migration Agents Regulations are proscribing a standard of conduct, and as they are penal in effect must be construed strictly, quoting Bennion, “Statutory Interpretation” 3rd edition, at pages 637, 652 and 657.
20. The attitude of the Applicant towards refunds to former clients is clearly set out in his letter to the Respondent dated 26 January 2006, referring to Mr Wilkinson’s claim. He stated:
“No refund. I personally have no power to offer a refund in this matter. A decision was taken by Parris & Shah Pty Ltd on the basis of the information before it not to offer a refund. There was a fundamental issue of Parris Kazacos having worked with Parris & Shah Pty Ltd for many years and the money grab for a refund by Mr Wilkinson. I do not wish to be held personally responsible for the decision not to refund. This is a purely commercial matter between Parris & Shah Pty Ltd and Mr Wilkinson that should be addressed elsewhere.
This is of course quite ingenuous as at all relevant times the Applicant was the sole Director of, and shareholder in, Parris & Shah Pty Ltd.
21. So far as the balance of Mr Wilkinson’s complaint is concerned, it is that the Applicant did not give him accurate advice as to the qualifications needed to obtain a Skills Visa.
22. Mr Wilkinson, a resident of the United Kingdom, completed an on-line assessment on 2 November 2003 after viewing an advertisement by Parris & Shah Pty Ltd or one of its trading names on a website. In this assessment, Mr Wilkinson stated his occupation as “fire fighter”, but under the heading of “employment background” added “apprentice joiner from school three years then self-employed joiner for six years then joined fire service aged 25. Carried on working as a joiner on days off, varied hours and not every day.”
23. On 3 November 2003 Australian Migration Specialists emailed Mr Wilkinson stating inter alia:
“Please be advised that your problem will most likely not be your education and training but the recent work experience requirement. Please call me to discuss this with you”.
24. The next action taken is disputed, but in the absence of evidence from Mr Wilkinson I am prepared, given the seriousness of this matter to the Applicant’s livelihood, cf the discussion in Brigenshaw and Brigenshaw (1938) 60CLR 336, especially at 362, per Dixon J (as he then was) notwithstanding that the Applicant did not expose himself in the witness box, to find that the Applicant, in a telephone conversation with Mr Wilkinson informed him that he had to be able to demonstrate that he was in paid employment as a joiner for at least 20 hours a week, and that Mr Wilkinson informed him that he had continued to work for family and friends as a joiner for remuneration for at least 20 hours a week whilst employed as a fireman.
25. On 9 June 2004 the Applicant informed Mr Wilkinson that professional fees had to be paid “up front.” Payment was to be made to Parris & Shah Pty Ltd.
26. On or about 22 January 2004 Mr Wilkinson engaged “Parris & Shah” and stated the sum of $3,300 being professional fees would be forwarded. Correspondence ensued between the parties relating to Mr Wilkinson’s ability to provide material evidencing that he had worked 20 hours a week for remuneration in his trade as a joiner in the period 1992 to May 2003. It is clear from the material in evidence that Mr Wilkinson was either unable or unwilling to provide this material.
27. By email dated 8 April 2004 the Applicant advised Mr Wilkinson that the points required for Skilled Independent Visas had increased and that he was now short of the required number.
28. As a result of these developments, Mr Wilkinson withdrew his instructions from the Applicant and asked for a refund of fees paid on behalf of himself and his partner. The Applicant refused this request stating, as referred to above, that he personally had no power to offer a refund and that the decision not to offer any refund was taken by Parris & Shah Pty Ltd.
29. While the actions of the Applicant regarding any refund of fees is totally reprehensible, at that time Mr Wilkinson was no longer his client – the instructions having been withdrawn – therefore, no breach of duties towards a “client” can be made out. Also the refusal was not by the Applicant but by the company Parris & Shah Pty Ltd.
30. So far as the actions of the Applicant towards Mr Wilkinson whilst a client are concerned, I find that at the initial stage, before being engaged to act, he held out undue optimistic expectations but that whilst a client the Applicant acted in his best interests, and it was no fault of the Applicant that Mr Wilkinson could not provide the required evidentiary material.
31. The case of Mr MacDonald is somewhat similar. Again, expectations were raised following the initial on-line assessment. As a result, Australian Migration specialists replied to Mr MacDonald on 5 September 2004, requesting further information.
32. Further correspondence ensued during the course of which Mr MacDonald raised a concern about his ability to provide evidence of having work experience as an electrician as the firm which had employed him had gone into receivership. The Applicant forwarded to Mr MacDonald advices as to how to overcome this disability.
33. Ultimately an application was made to Trades Recognition Australia for recognition of Mr MacDonald’s qualifications as an electrician but this application was declined. From that point the relationship between Mr MacDonald and the Applicant broke down.
34. When the application by Trades Recognition Australia by Mr MacDonald was declined the Applicant advised him to “appeal” to the Ombudsman and offer to undertake that work without charging further fees. That offer was declined.
35. As Mr MacDonald did not “appeal” to the Ombudsman it is not possible to comment upon his chances of success. I note however, that the Applicant claims, and it was not disputed by the Respondent, that at the same time two other clients of his appealed to the Ombudsman regarding the rejection of their claims by Trades Recognition Australia and the decisions were overturned.
36. Following the breakdown in the relationship between Mr MacDonald and the Applicant, Mr MacDonald requested the return of his documents and a refund of fees. Some documents were returned but in the initial return other documents were omitted.
37. Notwithstanding follow-up emails by Mr MacDonald it was not until much later, namely 25 June 2005, that the missing documents were returned to Mr MacDonald. Quite clearly the return of the documents was well outside the seven days required by Clause 10.2 of the Code of Conduct. Although the Applicant attributed responsibility to a staff member, the responsibility to return the documents is the agents and cannot be evaded by attempting to blame employees.
38. I am not prepared to find that the Applicant, while acting for Mr MacDonald in an agent/client relationship, was not frank and candid about his chances of success. Had Mr MacDonald provided all the information in his possession at the relevant time and proceeded with a complaint to the Ombudsman regarding the refusal to acknowledge his trade qualifications the result may well have been different.
39. The Respondent has found that the Applicant has breached Clause 7.2 of the Migration Agents’ Code of Conduct in respect of Mr MacDonald. Clause 7.2 reads:
“A registered migration agent must hold, in the client’s account, an amount of money paid by a client for an agreed block of work until;
(a) the agent has completed the services that comprised the block of work; and
(b) an invoice has been issued to the client for the services.”
40. Technically the Applicant has breached this Clause and Clause 7.1 in respect of each and every client who he has requested pay fees direct to Parris & Shah Pty Ltd. The Clause does not take into account the situation either of an incorporated practice or more importantly the situation of an employed Migration Agent.
41. As stated above, this is a technical breach and can only be taken seriously when the Respondent addresses the existence of Migration Agents in the employ of others including legal or accounting firms.
42. As matters stand therefore, I find that the Applicant has breached Clause 10.2 of the Code of Conduct with respect to Mr MacDonald but there has been a technical breach of Clause 7.2.
43. Ms Adams was the third complainant whose complaints led to the imposition of a penalty. The breach of the code in respect of Ms Adams refers to Clause 10.4:
“A registered migration agent must not withhold a document that belongs to a client, part of a claim that the agent has a right to withhold a document by a lien over it, unless the agent holds a current legal practising certificate issued by an Australian Body authorised by law to issue it.”
It is not disputed that the Applicant does not hold a current practising certificate as a legal practitioner.
44. The facts pertaining to Ms Adams are quite simple. The Applicant was acting for her when she became dissatisfied with the level of service he provided including an allegation of over-charging. As a result she withdrew her instructions from the Applicant. On 19 January 2005, the complainant requested her original FBI Police Clearance from the Applicant’s files. On 7 April 2005, he replied to her stating inter alia:
“I would like to reiterate my comments to you as follows:
(1) I cannot provide you of anything of your file now.
(2)I require my fees to be paid in full. You do not need to pay the fees for addressing the character matters. You simply need to pay for the works in relation to my time spent at immigration assisting you with your detention matter.”
45. On 8 April 2005 the Applicant twice emailed the complainant. The first email timed at 2.11 pm read inter alia:
“You terminated myself as your Agent and requested your file. I advise that I would find time to prepare your documents in the next couple of days.
I have now been advised and I believe that you have also been advised that Parris & Shah Pty Ltd is holding your documents until the outstanding debts are paid to it.”
46. A later email timed at 6.20 pm stated inter alia:
“With regards to your documentation please be advised that Parris & Shah Pty Ltd are retaining your documentation until your outstanding debts are paid to the company. In accordance with the Migration Agents’ Code of Conduct I am more than willing to provide you with your documentation as our relationship has been terminated by you. However the documents are in the possession of a company with whom you have contracted, that being Parris & Shah Pty Ltd.”
47. By letter dated 8 April 2005 the complainant’s solicitors wrote to the Applicant enclosing an Authority and requesting the complainant’s file. In that letter the solicitors reminded the Applicant of the Migration Agents Code of Conduct, Clause 10.6 which reads:
“If the client terminates the instructions, a registered migration agent must take all reasonable steps to deliver all documents quickly to the client or any other person nominated by the client in writing. If the agent claims a lien on any documents, the agent must take action to quantify the amount claimed and tell the client in a timely manner.
Notes:
“(1) Only registered migration agents who hold a current legal practising certificate issued by an Australian Body authorised by law to issue it are able to claim a lien on any client documents.
(2) …”
48. In a complaint made to the Respondent Ms Adams’ solicitors stated:
“When instructions were withdrawn we wrote to Ms Kazacos requesting that he forward to us his file records and forward our client’s authority together with a copy of the Form 956 that we had forwarded to the department. We enclose a copy of this letter. Mr Kazacos responded refusing to forward any documents until an outstanding account, which our client disputes, has been paid. He has not replied in writing. We have on several occasions requested Mr Kazacos to provide us with the documents, and in particular, the USA Police Report which he holds and which he was instructed to forward to the department. He has refused to do so. Our client’s case is now held up pending the forwarding of this report.”
49. When interviewed by an officer of the Respondent in relation to a complaint by Ms Adams, the following exchange took place:
“Did Parrish Patience request the file from you?
A: Yeah.
Q: And refused to give it over?
A: Yeah.
Q: Why did you refuse that?
A:I didn’t refuse it, Parris & Shah refused it because they had funds outstanding, Common Law lien, so like I said she handed the documents to Parris & Shah the company that was looking after her matter, OK. I have access to those files, those documents to do with her application, as you know.”
and then reiterated that Parris & Shah were relying upon a common law lien.
50. Although this is not the case in which to define the relationship between a Migration Agent and an incorporated practice, suffice it to say that the Applicant was the mind and controlling body of Parris & Shah Pty Ltd. The Code of Conduct places responsibilities upon the Applicant personally and there is no evidence whatsoever that the Applicant took any steps to comply with Clause 10.2. To my mind it is no answer to the personal obligations placed upon the agent to state that some other person or body has the documents. If that is the case then it is the agent’s responsibility to obtain the said documents.
51. This responsibility is even more pronounced where, as in this case, the agent is to all intents and purposes one and the same as the body corporate who he claims has possession. In particular, I refer to the Applicant’s email of 7 April 2005 to the complainant in which he states:
“I require my fees to be paid … ” (Tribunal’s emphasis)
52. The breach of Clause 10.2 is proved as is the breach of the said clause in relation to Mr MacDonald. There is also a technical breach of Clause 7.2.
53. Given that only some of the breaches of the Code of Conduct found by the Respondent have been confirmed upon review it is proper to reduce the penalty imposed upon the Applicant.
54. No stay upon the decision under review was sought from or imposed by the Administrative Appeals Tribunal. Consequently, the Applicant’s suspension from practice has run from the date of its imposition, namely the 18th of September 2006. The most realistic course is to reduce that suspension so that it ends on 31 January 2007. So far as the conditions upon lifting the suspension, I consider that these are entirely proper and they will be maintained.
55. The decision under review is set aside and the Tribunal substitutes its decision, namely that Parris Kazacos is suspended from practice as a Migration Agent as and from the close of business on the 18th day of September 2006 up to and including the 31st January 2007 at least. And that the lifting of any suspension of the agent’s right to practise is dependant upon his complying with the following conditions, namely:
(i)the successful completion of private tuition in Professional Ethics for a minimum of four hours conducted by an individual or individuals approved by the Migration Agents’ Registration Authority who is either an immigration law specialist or a Migration Agent with a minimum seven years experience; and
(ii)the Agent provides to the Migration Agents’ Registration Authority a statutory declaration in Commonwealth form stating that he has not made immigration representations for a fee or given immigration assistance as defined in the Migration Act 1958 while suspended.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: [Amanda Aitken] .....................................................................................
Associate
Date of Hearing 17 January 2007
Date of Decision 31 January 2007
Solicitor for the Applicant Kessels, Goddard & Ajuria
Solicitor for the Respondent DLA Phillips Fox
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