Kazi and Migration Agents Registration Authority - [2006] AATA 42

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 42
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/337

GENERAL ADMINISTRATIVE DIVISION )

Re MOFAZZAL HAQUE KAZI

Applicant

And

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Senior Member M D Allen
Date20 January 2006
PlaceSydney

Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision namely, that the registration of Mofazzal Haque Kazi as a Migration Agent is suspended for a period of three years as and from 16 March 2005.
That suspension shall be lifted after 6 months from today’s date upon the said Mofazzal Haque Kazi giving to the Respondent an undertaking that he will cease to provide immigration assistance with respect to protection visas.
(Sgd) M D ALLEN
..................................
Senior Member

2. The reasons for the decision are set out in document T2 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. This document must however be read together with the Respondent’s Statement of Facts and Contentions (Exhibit R1), together with the Respondent’s Statement of Particulars (Exhibit R2).
3. Subsection 303(1) of the Migration Act1958 reads inter alia:
(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:
(d) …

(e)…

(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or

(g) …

(h) the agent has not complied with the Code of Conduct prescribed under section 314.

4. Section 314 of the Act reads:
(1) The regulations may prescribe a Code of Conduct for migration agents.
(2) A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.

5. The “Code” referred to in section 314 of the Migration Act is found at Schedule 2 of the Migration Agents Regulations 1988. The relevant clauses read :
“Clause 2.1
A registered migration agent must always:
(a)act in accordance with the law and the legitimate interests of his or her client; and
(b)deal with his or her client competently, diligently and fairly.

Clause 2.4
A registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.
Clause 2.9
While a registered migration agent cannot be responsible for misinformation provided by a client, a registered migration agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.
Clause 2.17
If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) a registered migration agent:
(a) must not encourage the client to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] AATA 42
Decision Date: 20 January 2006

CaseChat Overview and Summary

The case of Kazi and the Migration Agents Registration Authority was heard in the Administrative Appeals Tribunal of Australia. The dispute centred around Mofazzal Haque Kazi's registration as a migration agent and whether he was a fit and proper person to provide immigration assistance, particularly in relation to protection visas. The Tribunal was required to determine if the Migration Agents Registration Authority's decision to cancel Kazi's registration was justified and if so, what the appropriate penalty should be.

The legal issues before the Tribunal included the standard of proof required to substantiate allegations of breaches of the code of conduct and the appropriate penalty for such breaches. The Tribunal had to consider the onus of proof, which was established to be on the balance of probabilities, and the relevant case law that provided guidance on similar issues. The Tribunal also needed to assess whether the breaches were severe enough to warrant a cancellation of registration or if a lesser penalty would suffice.

The Tribunal found that Kazi had indeed breached the code of conduct on several occasions. However, it concluded that a cancellation of his registration was not warranted. Instead, the Tribunal deemed a three-year suspension of Kazi's registration to be appropriate, which would be lifted after six months if Kazi provided an undertaking to cease providing immigration assistance concerning protection visas. This decision balanced the need to protect the public from unfit agents while also considering the potential detriment to Kazi's livelihood and the public interest in having qualified migration agents.

The Tribunal set aside the original decision of the Authority and substituted its own decision, namely that Kazi's registration as a migration agent would be suspended for three years, effective from 16 March 2005. The suspension would be lifted after six months if Kazi provided an undertaking to the Authority that he would cease providing immigration assistance in relation to protection visas. This outcome provided a structured path for Kazi to potentially return to practice under strict conditions.

Orders

Orders of the court

The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision namely, that the registration of Mofazzal Haque Kazi as a Migration Agent is suspended for a period of three years as and from 16 March 2005.

That suspension shall be lifted after 6 months from today’s date upon the said Mofazzal Haque Kazi giving to the Respondent an undertaking that he will cease to provide immigration assistance with respect to protection visas.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		MOFAZZAL HAQUE KAZI