Kearney and Migration Agents Registration Authority - [2024] AATA 1899

Kearney and Migration Agents Registration Authority [2024] AATA 1899 (21 June 2024)
Division:GENERAL DIVISION
File Number:2023/4917
Re:Simone Kearney
APPLICANT

AndMigration Agents Registration Authority
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:21 June 2024
Place:Melbourne

The Tribunal decides to affirm the reviewable decision dated 29 June 2023 that the Applicant’s registration as a migration agent is cancelled under s 303(1)(a) of the Migration Act 1958, and that the cancellation is for five years, ending on 28 June 2028.
.............................[signed]................................
Senior Member D. J. Morris
Catchwords
REGULATORY – registration of migration agents – registration cancelled – breaches of prescribed Code of Conduct – complaint made – further complaints made – authority cancels registration of agent – agent seeks review by tribunal – relevant Code is the Code that was in force at the time of the impugned conduct – has there been a breach of the Code – applicant admits certain breaches – is the applicant a person of integrity or otherwise a fit and proper person to give migration advice – powers available to caution an agent or suspend or cancel agent’s registration – what is appropriate sanction – many breaches over extended period of time – syntax of the relevant section of the Act – Tribunal makes finding that applicant is not a fit and proper person to give migration advice – cancellation is appropriate sanction – cancellation period to commence at time of original decision to cancel – decision under review is affirmed
PRACTICE AND PROCEDURE – applicant as a migration agent was dealing with a person who is currently subject to Court proceedings – Tribunal’s function is of an administrative character – undesirable for reasons relating to an administrative decision to potentially affect curial proceedings – order made prohibiting publication of a person’s name
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Agents Regulations 1998 (Cth)
Migration (Migration Agents Code of Conduct) Regulations 2021 (Cth)
Cases
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Kraues v Migration Agents Registration Authority [2018] FCA 664
Stolar and Migration Agents Registration Authority (2007) 95 ALD 437
Secondary Materials
Department of Immigration and Citizenship – Working with the Migration Advice Industry – Procedural Instruction dated 1 July 2019
REASONS FOR DECISION
Senior Member D. J. Morris
21 June 2024
OPENING NOTE

In these reasons some thirteen businesses are named. Nothing in these reasons should be taken to reflect in any way upon these businesses. They are, or were at the time of these events, legitimate businesses operating in Australia.
INTRODUCTORY
The Applicant in this matter, Mrs Simone Kearney, became a registered migration agent in 2011, and had renewed her registration each subsequent year. On 29 June 2023, the Office of the Migration Agents Registration Authority (‘OMARA’) cancelled her registration under s 303(1)(a) of the Migration Act 1958 (‘the Act’). What prompted the cancellation decision was a complaint received from the Department of Home Affairs (‘the Department’) in September 2018 and then, in June 2019, OMARA itself raising its own complaints in relation to the conduct of the Applicant.
On 6 July 2023, the Applicant sought review of the cancellation decision. The Tribunal convened a hearing on 18 January 2024. Mr Christopher Levingston of Christopher Levingston & Associates represented the Applicant. The Respondent was represented by Ms Kylie McInnes of counsel, instructed by Mr Adam Cunynghame of Sparke Helmore Lawyers. On that day, the Tribunal noted that the Applicant was not proposed to be called to give evidence. Mr Levingston said that she did intend to give evidence. The Respondent objected to the hearing proceeding, on the basis that a hearing certificate had been lodged which did not contain witnesses.
Accordingly, the Tribunal adjourned the hearing until 12 March 2024 to enable fresh hearing certificates to be furnished and any witness statements provided. When the hearing resumed, the Applicant gave evidence and was cross-examined. No other witnesses were called.
The Tribunal had regard for an Amended Statement of Facts, Issues and Contentions of the Applicant, and an Amended Statement of Facts, Issues and Contentions of the Respondent. In addition, documents were submitted by the Respondent in compliance with s 37 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). Other documents were lodged which are described in the annexure to these reasons. At the conclusion of the hearing on 13 March 2024, the Tribunal reserved its decision.
The Tribunal noted that a person who had a business relationship with Mrs Kearney is mentioned extensively in submissions by both parties. The Tribunal was advised that this person is currently facing Court proceedings in New South Wales. The Tribunal expressed the view that it would be undesirable for published reasons for an administrative decision to make observations about the conduct of an identifiable person who awaits curial proceedings. What is before the Tribunal for review is a sanction made by the Respondent relating to the conduct of the Applicant as a registered migration agent, not the conduct of other persons. Accordingly, without objection from the parties, on 27 March 2024 the Tribunal decided to make an order under s 35 of the AAT Act to assign an anonym to the person. He will be referred to as ‘SWWJ.’
BACKGROUND
The Applicant was first registered as a migration agent in October 2011, and her registration has been renewed annually, most recently on 13 September 2022.
In September 2018, OMARA received a complaint about the Applicant’s conduct from the Department. The complaint alleged that Mrs Kearney had lodged a nomination application under the Regional Sponsored Migration Scheme against the knowledge and permission of the sponsoring business.
In April 2019, OMARA sent Mrs Kearney a notice under s 309(2) of the Act advising that it was considering cautioning her, or alternatively suspending or cancelling her registration as a migration agent. The Applicant was invited to provide written submissions in response, which she did through her legal representatives in September 2019.
In the meantime, in June 2019, OMARA itself raised complaints following investigations which revealed the Applicant had lodged eight Employer Nominated Scheme nomination applications and corresponding visa applications without the knowledge or permission of the eight associated employers.
In August 2019, OMARA sent Mrs Kearney a further notice under s 309(2) of the Act, and a notice under s 305C of the Act, requiring her to produce copies of certain complete client files. On 31 October 2019, the Applicant responded to the s 305C notice.
In November 2019, the Applicant responded to the further s 309(2) notice.
On 29 June 2023, OMARA decided to cancel the Applicant’s registration as a migration agent, pursuant to s 303(1)(a) of the Act. The Respondent found that Mrs Kearney had breached her obligations under clauses 2.1, 2.8, 2.9, 5.2, 6.1, and 6.1A of the Code of Conduct for registered migration agents (‘the Code’). In summary, these parts of the Code require an agent to provide clients with a written agreement for services and fees, to confirm client instructions in writing, to maintain file notes, and to not provide misleading or inaccurate information to the Department.
The Respondent was further satisfied that the Applicant was not a person of integrity or otherwise a fit and proper person to give immigration assistance within the meaning of s 303(1)(f) of the Act. It is this decision of 29 June 2023 that Mrs Kearney has brought to the Tribunal for review.
THE LEGISLATIVE REGIME
OMARA exists within the Department and its legislative authority is set out in ss 286-289 of the Act. One of the functions of the authority is to regulate and discipline registered migration agents.
Section 303 of the Act provides that the Respondent has the power to suspend or cancel the registration of a migration agent, or to caution an agent, if satisfied that he or she is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance, or has not complied with the Code. It has been held that the purpose of the disciplinary powers provided for in s 303 of the Act is protection of the public, and not punishment as such: Kraues v Migration Agents Registration Authority [2018] FCA 664, at [17].
Division 5 of Part 3 of the Act provides that a migration agent must comply with certain standards of behaviour and, at s 314, that an agent must conduct him or herself in accordance with the prescribed Code.
Section 303(1)(h) of the Act does not require a threshold of clauses in the Code which must be breached before action may be taken, an agent is required to comply with all the Code provisions. In Stolar and Migration Agents Registration Authority (2007) 95 ALD 437 (‘Stolar’), Deputy President Hack, SC, said (at [63]):
In my view, it does not matter how many clauses of the Code are breached; what is important is that there be a failure to comply with the Code. Once the respondent (or the Tribunal) is satisfied that there has been such a failure, the disciplinary power is enlivened. That power is exercised by reference to the nature of the underlying conduct and the extent to which, by reference to that conduct, the applicant’s conduct fell below the standard expected. The factual findings made inform the exercise of [the] respondent’s disciplinary powers.
The Code is prescribed by regulations made under s 314(1) of the Act. The current Code is that prescribed by the Migration (Migration Agents Code of Conduct) Regulations 2021. The Respondent submitted that, given that the conduct of Mrs Kearney that is in question and the decision of the authority predated the commencement of the current Code, the applicable Code in this matter is the one then in force, set out in Schedule 2 of the Migration Agents Regulations 1998. The Tribunal notes that the Applicant’s legal representative agreed with this submission, and finds that the 1998 Code applies in this matter.
QUESTIONS BEFORE THE TRIBUNAL
The Respondent submitted, and the Applicant did not contest, that the questions before the Tribunal may be distilled as follows:
(a)Whether the Applicant has failed to comply with the Code pursuant to s 301(1)(h) of the Act; and/or
(b)Whether the Tribunal is satisfied that the Applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance pursuant to s 303(1)(f) of the Act; and
(c)If the answer to either of the above two questions is ‘yes,’ whether the Tribunal should exercise the powers in s 303(1) of the Act to cancel or suspend the Applicant’s registration, or to caution her.
THE APPLICANT’S SUBMISSIONS
Mr Levingston submitted that the Applicant does not dispute the factual matters set out in paragraphs 1 to 104 of the Respondent’s Decision Record (TD, pp 4-50). The Tribunal will therefore summarise those, for ease of reading.
The first complaint – made by the Department
Nomination for Aromas On Sea restaurant
In September 2018, the Department made a complaint that the Applicant had lodged a nomination form under the Regional Sponsored Migration Scheme where the sponsoring business, Aromas On Sea (‘Aromas’), a restaurant in New South Wales, had no knowledge of the application and had not given permission for such an application to be lodged. The Director of Aromas, Mr GS, advised the Department that he had received an email on 29 May 2018 from Ms GC of Affordable Visa Solutions (‘AVS’) (i.e. the Applicant’s migration agency) regarding supporting documentation for a nomination application. The email relevantly said:
As the application has been lodged for over a year, we need to update the financial to avoid a negative decision from immigration: Could we please have:
·Financial report or Profit and loss for FY 16/7
·Last Bases [sic] available after Feb 2017
The provided financial as were for FY15/16 and Bases up to Feb 17, we need to show immigration that the business is still actively running and can support to sponsor a full time employee.
(Spelling errors corrected. It is presumed ‘Bases’ here means Business Activity Statements.)
Mr GS advised the Department that he had no knowledge of this nomination for his business and that he had not nominated the named employee, Mr AS. Mr AS was an applicant for a subclass 187 visa. Further, Mr GS requested that if any nomination application had been lodged in the name of his business, that it be withdrawn.
As a result of this complaint, Mrs Kearney was sent a notice by OMARA under s 309(2) of the Act advising that it was considering cautioning her, or suspending or cancelling her registration. She was invited to make written submissions.
The Applicant responded and stated that her business, AVS, included her and her employees. The Applicant said that she and AVS had been the victims of an apparent fraud, as had Aromas.
Mrs Kearney stated that the documents referred to in the notice had been provided to her by SWWJ who she said was working with Aromas and acting as an intermediary between the restaurant and AVS. She said that, as such, she was unaware that the documents provided to the Department were fraudulent.
The Applicant said that the fraudulent documents originated outside of her control or that of her staff, who were not knowingly involved in the apparent fraud. Mrs Kearney noted that she had been a migration agent since 2011 operating her business, AVS. She said she employed three staff: two full-time registered migration agents and one part-time administrative assistant.
The Applicant stated that she had stepped back from running AVS between June 2016 and February 2019 to “grieve the death of her son, to care for physically ill and mentally ill family members, and to care for her then 3-year-old daughter, and to care for her newborn son born in 2018.” She said that during this period an AVS employee, Ms RR, assisted her to run the migration practice and her role was “limited to approximately 1 hour per day to provide general oversight of her business”.
The Applicant said that Ms RR commenced working for AVS in 2016 as an administrative assistant and became a registered migration agent in January 2017. Mrs Kearney said that Ms RR had ‘primary conduct’ of the nomination lodged on behalf of Aromas and its prospective employee, Mr AS. She noted that Ms RR ceased working for AVS in August 2017.
Mrs Kearney said she returned to working at AVS on a full-time basis in February 2019 after receiving full clearance from her psychologist, and that all email correspondence from AVS was sent to and from her personal ‘Hotmail’ email address to ensure control of all ingoing and outcoming email correspondence.
In regard to her interactions with SWWJ, Mrs Kearney said he was contacted by him in October 2016. She understood him to operate a business which provided hospitality training to employees sponsored under the Regional Sponsored Migration Scheme. She said she and Ms RR travelled to Sydney to meet with SWWJ and some restaurant owners ‘in his network.’ She said that at the time she received the s 309 notice, she had provided migration services to 15 visa applications to the Department for ‘approximately’ 13 businesses that had been introduced by SWWJ.
Mrs Kearney said that between April 2017 and January 2019, AVS prepared and followed up work in respect to the Aromas nomination. She said that by coincidence, AVS had been engaged by Mr AS to provide him with immigration assistance in relation to an appeal he had before the Administrative Appeals Tribunal about another visa application.
She said in April 2017, SWWJ sent her an email that contained a number of documents including a copy of Aroma’s financial statements, and Mr AS was copied in on the email.
She said AVS sought further information from SWWJ and in particular whether the position for cook at Aromas had been advertised. She said that in April 2017 SWWJ forwarded to her what appeared to be an email chain between him and Mr GS and other documents. One of the documents was a letter of support from Wallace Accountants. Others included a financial report for the financial year 2015-2016 and Business Activity Statements (BAS) for Aromas and for Mr GS and his wife, trading as Aromas On Sea.
Mrs Kearney said AVS sought further information from SWWJ in relation to the salary and outcomes of advertising for Aromas. AVS also sought an organisational chart from Aromas, and salary information on cooks, and SWWJ forwarded an email chain between himself and Mr GS regarding staff at the restaurant.
In May 2017, the nomination application was lodged on behalf of AVS through the immigration account of AVS.
Mrs Kearney said AVS emailed a Regional Certifying Body (RCB) to conduct an assessment required for the nomination, and attached documentation supporting a Regional Sponsored Migration Scheme nomination for Aromas. In June 2017 AVS received approval from the RCB for the nominated position.
OMARA put to the Applicant in the s 309 notice that the RCB had received six applications for Aromas since June 2014, five of these for chef positions and one for restaurant manager. Mrs Kearney said she had no knowledge of the RCB’s advice to the Department; she said she was unaware of any previous nominations made on behalf of Aromas. She said that AVS had only been involved in Mr AS’s nomination, and she speculated that the other applications may have also related to false documents.
In relation to interactions with Mr GS, Mrs Kearney said that her staff member Ms EC contacted Mr GS by telephone in May 2018 to request updated financial statements in regard to Mr AS. Mrs Kearney said that Ms EC recalled that Mr GS could not remember a nomination being lodged on behalf of Mr AS but ‘seemed familiar’ with the fact that other sponsored visas had been lodged in the past for other employees. Mr GS asked Ms EC to send him an email setting out what information was required and the name of the employee, which Ms EC did on the same day.
Ms GS responded that he “did not have this candidate at Aromas” and inquired as to why financial statements were needed in respect of Mr AS. Mrs Kearney said that Ms EC did not believe this response was unusual at the time because the nomination form had been lodged one year before.
In May 2018, Ms EC forwarded Mr GS’s email to SWWJ asking him to ‘sort the issue out with the owner’. SWWJ replied: “I will talk to him and fix but please don’t ever go direct again without me.”
The Applicant replied to SWWJ, stating: “I am sure you can understand our situation and that the employer needs to be aware of all applications. Immigration will possibly call the employer.” SWWJ responded, “of course. But still better to go through me first … we will have documents hopefully in next few days for you.”
Mrs Kearney told OMARA that AVS had no further contact with Mr GS. On 27 September 2018, SWWJ provided updated financial statements for Aromas. The Applicant said it was assumed that SWWJ had clarified the issue with Mr GS, and she forwarded the financial statements to the Department.
In January 2019, the Applicant received a natural justice notification from the Department, which she forwarded to Mr AS for his instructions. She said she provided a Form 1446 to request the withdrawal of Mr AS’s visa application in February 2019 and the Department advised AVS that the application had been withdrawn on 16 April 2019.
OMARA raised with Mrs Kearney concerns about a letter purportedly prepared by Wallace Accountants. The Applicant accepted there were inconsistencies in the letter. She advised that this document had been provided to AVS by SWWJ and had been sent to the Department because the documents “appeared to be (albeit on a cursory glance) genuine documents sourced by the employer.”
The subsequent complaints – made by the Respondent

In June 2019 OMARA began investigating conduct by Mrs Kearney because of information received by the Department. This information indicated that eight Employer Nomination Scheme (ENS) nomination applications and corresponding subclass 186 visa applications had been lodged by the Applicant without the knowledge or permission of the eight employers.
In August 2019, OMARA sent a second s 309 notice advising that it was considering suspending or cancelling her registration as a migration agent, or cautioning her. OMARA advised the Applicant that it may be open to a delegate to be satisfied that she had engaged in conduct that breached her obligations under clauses 2.1, 2.8, 2.9 and 2.23 of the Code and that it may also be open to find she was not a person of integrity or otherwise not a fit and proper person to provide immigration assistance. She was invited to provide a written response to the notice and, after two requests for extension of time to respond, a response was given in November 2019.
In the response, Mrs Kearney said that around 2015 she had been contacted by Mr Joe Nasr who said he was seeking a registered migration agent to provide services for his business clients. The Applicant said that Nasr told her he was a solicitor in New South Wales and held himself out as acting as solicitor for eight businesses which were seeking to employ applicants from overseas. Nasr employed several associates, Mr SL, Ms GM and Mr MH.
Mrs Kearney said she met Nasr around three times, but otherwise all the communications between AVS and Nasr and his associates was by telephone or email.
Mrs Kearney said that the mode of business was as follows. After AVS received a nomination from Nasr to initiate a nomination application, AVS would request relevant documents from Nasr. Where the documents provided were incomplete or insufficient for the nomination application, AVS would request further papers from Nasr, and he advised he would obtain the required documents from the respective businesses.
Mrs Kearney said she would create and amend documents in support of the nomination applications of the businesses from information and documents provided by Nasr, including position descriptions and market salary comparison documents. The Applicant said that the documents she created were authentic documents as they were created on the authority and instructions of Nasr, and were then reviewed and approved by him on behalf of the businesses he represented. She said that in order to provide an expedient service for her client, she would often create these documents by amending an existing document.
The Applicant said that at no time did AVS communicate with the various businesses; she said she considered it ‘inappropriate’ to contact these entities given that Nasr was acting in the capacity as their solicitor, and it was reasonable to rely on representations he had made.
Nomination for Nature Care College
In September 2015, Nasr contacted AVS and requested assistance for his client, Nature Care College, in relation to the nomination of Mr JL. Nasr provided company documents which were forwarded by AVS to the Department.
In November 2015, AVS emailed Nasr and asked for further information relating to the salary for the position. Nasr emailed in response, saying “We have forwarded your query to the company and will let you know as soon as they reply.” The Department approved the nomination in February 2016.
In May 2016 AVS lodged a subclass 186 visa application for Ms JI with the Department. In February 2017, the Department sent the Applicant a notice under s 57 of the Act. Mrs Kearney then asked Nasr about the nomination application. He responded that the position at Nature Care College was no longer available because the person who offered it was no longer employed there. When AVS inquired further, Nasr said that the position was no longer available because it had taken so long. The Applicant said she had no reason to suspect that there were any issues in relation to the position or the documents to be lodged.
In March 2017, the Applicant sent an email to the Department requesting withdrawal of Ms JI’s visa application and a refund of the visa application charge.
Nomination for Australian Glass Group
In April 2016, Nasr told the Applicant he and his associates were acting on behalf of Australian Glass Group. Nasr sent some documents to Mrs Kearney in May 2016 and his associate Mr MH sent further documents in July 2016.
Mrs Kearney said she realised after lodging the nomination in May 2016 that financial and training information about the business that had been lodged with the Department was incorrect. She said she clarified the information with Nasr to correct the answers in December 2016.
On 30 August 2017, the Department refused the nomination. Nasr contacted Mrs Kearney and advised that the business did not wish to proceed with a review by the Administrative Appeals Tribunal.
The Applicant stated that she had no reason to doubt the authenticity of documents relating to the company given to her by Nasr. She created and amended the ‘Corporate General Manager’ position for Australian Glass Group and the ‘market salary comparison’ on the instructions of Nasr. The delegate noted that the metadata properties of these documents had the author as ‘Simone.’
In response to queries from OMARA about the material, Mrs Kearney said it was common practice for her to create position descriptions on behalf of her clients, and she admitted she may have transposed a logo from the offer of employment to the position description when she created it. She said after she created the document, she would send it to Nasr for approval before submitting it to the Department.
In the second s 309 notice, concern was raised about inconsistencies in documents signed by a Mr Fagan who appeared to have resigned from Australian Glass Group two years before the dates of the documents. Mrs Kearney agreed that the inconsistencies in the dates could mean that Mr Fagan did not sign the documents but said her knowledge of the business and employees was limited to what information Nasr provided her. She said she was unaware Mr Fagan was no longer employed by the company and had no need to make inquiries to verify the information Nasr provided.
Nomination for KLM Spatial
In June 2017, Nasr sent the Applicant an email relating to a nomination by this company. She emailed Nasr around the beginning of October 2017 advising there was information outstanding that was required to lodge the nomination. On the same day, Nasr responded and said, “[y]ou will have all of this by COB tomorrow. Just waiting on some updated information from the client.” Nasr provided the information the following day and the nomination was lodged the next day after. The paperwork related to sponsorship for a subclass 186 visa nomination.
Nothing further happened in relation to this particular nomination until May 2019 when the Department contacted the Managing Director of KLM Spatial, Mr L. As a consequence of the Department’s discussions with Mr L, a s 57 notice was issued advising that the nomination was not considered to be genuine. By this time, Mrs Kearney was no longer in contact with Nasr. She decided to withdraw the nomination, which happened in May 2019.
Nomination for WAM Home Décor
In May 2015, Nasr emailed AVS advising that a client, WAM Home Décor, wanted to nominate Mr Zhijan Liu in the position of Corporate General Manager. He also provided supporting documentation. AVS lodged the nomination application with the Department on 1 June 2015.
The Department contacted Mrs Kearney and requested further information to demonstrate the need for the position, including evidence that a vacancy existed. The Applicant contacted Nasr to seek additional documents. Based on instructions received from Nasr, she submitted the documents in October 2015.
The Department requested further information. Mrs Kearney contacted Mr Nasr who said his father was ill, so she sought and received an extension of time to provide the information to the Department. In her correspondence she referred to Nasr as WAM Home Décor’s business contact. She the provided further documents to the Department in December 2015.
The company documents submitted to the Department for WAM Home Décor contained the signature and details of a Justice of the Peace (JP). Mrs Kearney said that as Nasr had told her that a JP had signed the documents, she had no reason to doubt the genuineness of the documentation.
The Applicant said that she created and amended an undated WAM Home Décor letter under ‘dictation and instruction’ from Nasr, as well as a market salary document and position description, which were approved by Nasr prior to being lodged with the Department.
Nomination for Greystanes Child Care Centre Pty Ltd
In February 2015, Nasr contacted the Applicant asking that she lodge a nomination application on behalf of his client, Greystanes Child Care Centre Pty Ltd (‘Greystanes’). He provided additional documents to AVS. The nomination concerned a Ms Gu.
In June 2015, the Department refused the nomination. Mrs Kearney contacted Nasr to inform him of the refusal. On the same day Nasr informed the Applicant that, as a result of the nomination refusal, Greystanes had decided it no longer wanted to proceed with the nomination.
In November 2017, the Director of Greystanes, Ms B, advised the Department that she had never sponsored anyone from overseas or appointed any person to lodge an application to the Department on her behalf. Mrs Kearney advised the Department that she was not aware of this information, and that by November 2017 she was no longer in contact with Nasr.
The Greystanes documents provided by Nasr were certified by the same JP who had certified documents for WAM Home Décor, so Mrs Kearney told OMARA that she considered it reasonable to presume the documents had been genuinely certified.
OMARA raised with Mrs Kearney in the s 309 notice that the information submitted for Greystanes and for another nomination, for Cawarra Cosmetics, contained an identical proposed base salary and guaranteed annual earnings. The Applicant conceded that she had created these documents and may have effectively created one document by amending the other.
Mrs Kearney told OMARA that the information contained in the documents came from Nasr and she did not consider the identical base salary and annual earnings for the two different sponsors was an issue. She opined that Nasr had likely provided both businesses with the same advice regarding base salaries and guaranteed annual earnings. She maintained that any document she created or amended was sent to Nasr for approval before being lodged with the Department.
Nomination for Multipro Oil
In March 2015 Nasr contacted Mrs Kearney to ask that she lodge a nomination application on behalf of his client, Multipro Oil, for the position of Corporate General Manager. He then emailed her some documents. She said she obtained all the documents subsequently submitted to the Department in relation to Multipro Oil and the corresponding subclass 186 visa application for a Mr Peng, from Nasr.
In October 2015, the Department requested more information from the Applicant about this nomination. Mrs Kearney said she sought further information from Nasr. Shortly afterwards, she said she was advised that Mr Nasr’s father had become unwell and been hospitalised. She sought and was granted an extension of time by the Department.
Mrs Kearney agreed that the extension of time was identical in general terms with that sought in relation to documents for the WAM Home Décor nomination, but she had no reason to doubt the legitimacy of the circumstances.
In November 2017 Multipro Oil advised the Department that it had never sponsored Mr Peng or nominated any other person for the position of Corporate General Manager.
Nomination for Cawarra Cosmetics
In May 2015, Nasr contacted the Applicant and requested she lodge a nomination application on behalf of his client, Cawarra Cosmetics. He then emailed her supporting documentation. The application was lodged on 26 May 2015.
The metadata properties for the position description of ‘Corporate General Manager’ and ‘market salary comparison’ reveal the author to be the Applicant. Mrs Kearney stated that all documents created or amended by her were done with the approval of Nasr.
Nomination for Pharma Cosmetics
In May 2015, Nasr contacted Mrs Kearney and requested she lodge a nomination application on behalf of his client, Pharma Cosmetics. He told the Applicant he and his associates were acting on behalf of that company. Later in the same month, Nasr emailed supporting documents to the Applicant, and these were lodged with the Department with the nomination application. In June 2015, a corresponding subclass 186 visa application was lodged for a Mr Yu.
On 11 November 2015, the Department refused the nomination and sent an invitation to comment for the nominee, Mr Yu. Mrs Kearney told OMARA that when she discussed the matter with Nasr he said, “whilst the rejection was unfortunate, the business contact that he communicated with within the company had left and the position was no longer available.”
Mrs Kearney submitted that she created or amended the position description document on behalf of Nasr’s client, Pharma Cosmetics. She acknowledged to OMARA that it was ‘concerning’ that the following wording:
“obtaining soil and rock samples at different depths across different sites and testing samples to determine strength, compressibility and other factors”
was included for the position at a cosmetics company, and said that the most likely explanation for the job description containing references to duties that were entirely unrelated to the position proposed for Mr Yu to occupy was because she had amended a previous job description but failed to amend the text to reflect the different businesses and roles. Mrs Kearney told OMARA that, while this oversight was unfortunate, she regularly amended existing job descriptions when she was instructed to do so by a client in order to save time and provide an expedient service. She said it was ‘unfortunate’ that Nasr did not identify this error when she said he reviewed and approved the document for submission.
Response on other points to OMARA, accepted as accurate by the Applicant
Mrs Kearney confirmed her Hotmail email address and that it was used by AVS to interact both with clients and the Department. She agreed that the above nomination applications and corresponding subclass 186 visa applications were lodged by AVS with her as the appointed migration agent.
The Applicant conceded that, in the light of the Department’s contact with the eight businesses, there were concerns as to the validity of documents submitted in support of the nominations. Mrs Kearney accepted OMARA’s preliminary view that the businesses had no knowledge of the nomination applications she made on their behalf. She said she and her staff genuinely believed they were acting on the authority of the businesses, given Nasr represented himself as the solicitor in relation to the each of the eight businesses.
Mrs Kearney said she had conducted ‘many successful’ nominations for other clients of Nasr and did not believe it would make sense for her to question his ‘bona fides’ in relation to these eight applications.
Mrs Kearney conceded that a finding by OMARA that a significant number of documents, including training receipts provided in relation to the Australian Glass Group nomination and a letter of support from Pharma Cosmetics signed by a Mr Marcus Richmond, were not genuine documents, would be a ‘valid finding.’
The Applicant stated that she always received and confirmed instructions with Nasr via email for each of the eight nominations but said that her Hotmail account in-box had a limited capacity and, owing to the volume of emails sent to and from this account, an employee of AVS was forced to delete many of these emails to allow space for new ones. She rejected the suggestion that she may have made statements in support of any application which she knew or believed to be misleading or inaccurate, or that she encouraged such statements.
In mitigation, Mrs Kearney said to OMARA that she had updated AVS procedures and policies. She said she had been forthcoming in responding to notices from the Department. She regretted the damage that her conduct may have caused to the reputation of the migration agent profession. She said that the nominations represented a very small percentage of the hundreds of nominations she had worked on, and that she had an otherwise flawless record.
She said that in the period between 2015 to 2018, she had played a ‘lesser role in the operation of her business and was experiencing significant hardship’. She said she had now returned to full-time work and had oversight of all matters and policies. The Applicant said she is the primary caregiver for her mother and that the income from her business was the family’s sole source of income. She said if she cannot practice as a migration agent in the future, this would affect her three employees and her family. She submitted that OMARA should consider that the matters that had been identified were isolated incidents that resulted from her relying on the representations of Nasr.
Submissions by Applicant
Mr Levingston submitted that the Applicant was at all times of the reasonable belief that she was in fact acting on instructions from SWWJ, in the case of Aromas, and from Nasr in relation to the other eight businesses.
He submitted that the apparent access of SWWJ and Nasr to business records of the nine businesses acted to reinforce the reasonable belief driving the Applicant’s conduct. He submitted that the fact of the ‘fraud of SWWJ and Nasr’ acted to vitiate any client relationship between AVS and SWWJ and Nasr.
Mr Levingston said that the absence of bulletins or other notifications from OMARA regarding the risk of fraud where primary interactions were with third parties other than directly with the employer/sponsors operated to reinforce Mrs Kearney’s belief that she was in fact dealing with the employer/sponsor, albeit through a third party.
He said that the Respondent’s conclusion of a breach of Clause 1.12 of the Code, which states that an agent has an overriding duty to act at all times in accordance with the law and in the lawful interests of her clients, was incorrect.
Mr Levingston said that the delegate’s conclusion, at paragraph 211 of the Decision Record, that “I am satisfied that the Agent knew, or should have reasonably known, that many of these documents were not genuinely authorised” in effect seeks to cast the Applicant in the role of a co-conspirator and should be rejected by the Tribunal.
Mr Levingston submitted that the Code applicable at the time of the eight nominations did not, unlike the current Code in force, create an agent-client relationship upon the fact of an agent providing ‘immigration assistance’ and said that while it was accepted immigration assistance was in fact provided to SWWJ and Nasr, the relevant ‘intention’ to do so did not overcome the fact that the frauds perpetuated by them at all material times infected their relationship with the Applicant to such an extent that the relationship between Mrs Kearney, SWWJ and Nasr could not be that of agent and client.
Mr Levingston conceded that the retention of client documents including credit card details of the visa applicants did constitute a breach of the Code, but that the data was not ‘unsecured’ as was alleged by the Respondent. He also submitted that the fact that ‘some emails’ had been removed from the server by reason of “space/data constraints” that is a breach of the Code of Conduct as identified in paragraph 218 [of the Decision Record] is not evidence in support that the Applicant acted in a manner capable of being construed as undermining the integrity of the Migration Program, nor does it demonstrate, as the delegate found, “disregard for the migration law and the reputation of the migration advice profession.”

In his opening oral submissions at the hearing, Mr Levingston said that the Applicant concedes that there is no dispute that Mrs Kearney was responsible for immigration assistance given by her staff at AVS.
Respondent’s opening oral submission
The Respondent submitted that questions before the Tribunal were whether the Applicant had lodged nominations without authority; whether she had failed to enter into service agreements and whether she had failed to keep required records. Ms McInnes said the question is also whether the Applicant was complicit in a fraud or indifferent, and said the delegate was correct in concluding that the Applicant was still in a service relationship with SWWJ and Nasr regardless of whether there had been a fraud. Ms McInnes said that the Respondent’s submission was that the Applicant was not a person of integrity.
ORAL EVIDENCE
Mrs Kearney adopted her two witness statements (Exhibits A1 and A2) with annexures.
Under cross-examination, the Applicant agreed that she started her business AVS in 2011, and that she worked full-time in the business until 2016 when she went part-time. She said she had daily involvement and when asked whether she worked for about an hour a day at that time, responded “a bit more, I can’t recall.”
Mrs Kearney agreed that she employed other administrative staff including other registered migration agents, but retained oversight of AVS.
Ms McInnes asked whether it was true that the Applicant returned to work full-time in the business in February 2019. She said she was unsure of the exact date, and that it was a traumatic time; she said she disputed that she returned full-time in that month.
When asked about the Aromas nomination in early 2017, Mrs Kearney said she was working part-time at that time. Mrs Kearney was shown a letter (TD, pp 237-238) addressed to the Department dated 12 April 2017 from Wallace Accountants in which Mr David Wallace wrote, apropos the Aromas On Sea restaurant,
It is my opinion the business could currently support another full-time employee at a salary of $41,000 plus 9.5% superannuation.
There was an email dated 26 April 2017 from Ms R, acting on behalf of the Applicant, to SWWJ, in which she asked, “is the role only being paid $41,000 full-time?"
SWWJ responded to Ms R half an hour later, saying “Will change contract.”
Ms R then emailed SWWJ to clarify that the amount was in the letter from the accountants. SWWJ then replied and said “I will fix that one. Will go there now and have for you later today.”
At TD p 287 was another letter from Wallace Accountants, still dated 12 April 2017, which is identical in text to the letter at TD, pp 237-238 except the second paragraph is in noticeably distinguishable font from the rest of the letter, and states:
In my opinion, this business can easily support three sponsored employees earning $55,000 each plus entitlements.
Mrs Kearney agreed with Ms McInnes that this paragraph does not look the same as the rest of the letter.
The second page of this letter, at TD, p 288, which is the page Mr Wallace apparently signed, is identical to that at p 239.
Ms McInnes stressed that it was not part of the Respondent’s contentions that the Applicant altered the letter, but the Respondent did submit that Mrs Kearney should have known it had been changed, notably because the date of the letter had not changed, it was still put as 12 April 2017. She responded, “I probably have 300 letters. He said he was going to the accountant to have it fixed, and I took his word on that.”
Ms McInnes took the Applicant to a letter from Regional Development Australia – Central Coast NSW dated 1 June 2017. She asked if the Applicant remembered seeing it. She responded, “I may have had, it was seven years ago.” She agreed she ordinarily would see such correspondence.
The letter stated that the organisation had concerns regarding the application on the basis that they had previously assessed six applications since June 2014 for Aromas, five for positions as chef, and one for a restaurant manager, and that the restaurant had noted that two of the applicants are ‘not noted’ as working for the organisation.
Mrs Kearney agreed that she would have concerns about the business if she had read the letter. When asked whether she took any steps to raise these concerns with anybody, the Applicant responded, “I am not sure whether I did, or didn’t.” She agreed with Ms McInnes that nothing was done.
On 29 May 2018, AVS emailed the proprietor of Aromas, Mr GS, directly, asking him for updated financial statements to support the nomination of Mr AS as sponsored by the restaurant. Mr GS responded the following day and said:
… please note we DO NOT have this candidate at Aromas. Why is there a need for financials when this candidate has not been employed by Aromas? Please advise, we look forward to your reply.
An employee of the Applicant, Ms GC, then emailed SWWJ, stating:
There must have been some confusion with the nomination of [Mr AS], could you please sort this out with the owner to avoid withdrawing the nomination of [Mr AS]. Also updated financials are critical for a positive outcome of the nomination.
SWWJ replied to the Applicant and said “I will talk to him and fix but please don’t ever go direct again without me. It only causes confusion.”
Mrs Kearney agreed that Mr AS was not employed at Aromas. She said that if AVS did not have authority to lodge the nomination, they did not have authority to withdraw it. She said Ms EC spoke to Mr GS and he withdrew the nomination (TD, p 359).
Mrs Kearney agreed that she uploaded financial statements to the Department in September 2018, which was after she had been told she did not have a client. She responded, “I would have to talk to my staff, I am unsure.”
Ms McInnes suggested to the Applicant that she did not go back to Mr GS because he had said to withdraw the nomination. She responded, “I can’t tell you what happened six years ago, I wish I could.”
Ms McInnes suggested that the doctored letter from Wallace Accountants and the letter of concern from Regional Development Australia should have put the Applicant on notice that there was a problem with the nomination. Mrs Kearney responded that SWWJ had said he was going to the accountant to get the matter ‘fixed.’
Ms McInnes suggested an easy step would be to ask Mr GS directly. Mrs Kearney said, “Yes. It was contacted by my officer directly. To ask for further information when he said he didn’t have that person.”
Ms McInnes suggested that there was no evidence of emails of any such contact, and this was being mentioned for the first time in this oral evidence.
Mrs Kearney agreed that she handled eight business nominations from Joe Nasr (which are listed above). She told the Tribunal she had received a s 305C notice requiring her to produce documents and she believed she had provided all of the documents as complete client files.
Ms McInnes noted that the Applicant had said other emails existed but had not been saved. She responded, “My Hotmail account got too big. A number were deleted before I got a new email address. I got an IT man out, but I don’t have them.”
Ms McInnes asked if the Applicant sometimes created documents for Nasr such as position descriptions. She responded, “Throughout my career, I have done that. Sometimes I help employers draft letters of offer.”
Ms McInnes took the Applicant to a letter from Pharma Cosmetics (TD, p 2681) for an Engineering Project Manager. Mrs Kearney said she did not remember whether she created the letter.
At TD, p 2690 was a letter dated 23 April 2015 to Mr Yu offering employment as an Engineering Project Manager with Pharma Cosmetics based in Silverwater, New South Wales. Ms McInnes asked if the Applicant had created the letter. Mrs Kearney said she did not recall.
Ms McInnes then noted that in 2019 the Applicant accepted that metadata indicated she did create this letter, and when asked if she accepted that, Mrs Kearney said she did.
Ms McInnes noted that the letter of offer included that the Engineering Project Manager’s duties would include obtaining soil and rock samples. Mrs Kearney agreed this was nothing to do with cosmetics. The Applicant accepted it was possible that she created the letter from another document.
Counsel asked the Applicant whether she recalled whether she sought instructions before lodging the letter with the Department. Mrs Kearney said she did not recall. When asked why she did not go to Pharma Cosmetics directly, the Applicant said that all communications were with Nasr.
Ms McInnes noted that no email was produced indicating that she sought instructions from Nasr. The Applicant responded, “No evidence I can obtain, correct. All documents were given to Nasr to get approval or rejection. We didn’t have authority. When we altered a document, it would’ve gone back to Nasr.” She agreed she had nothing that would prove that.
Ms McInnes took Mrs Kearney to an email she sent to Mr SL, who she said worked for Nasr, which forwarded the refusal from the Department of the nomination by Pharma Cosmetics.
The Applicant wrote to Mr SL, after summarising the Department’s remarks that the nature of the position of ‘obtaining soil and rock samples’ did not match the nature and scope of the employer’s core business, and then wrote: “Dodgy bastard … all future application have the position description removed and we do them ourselves ….”
Ms McInnes asked Mrs Kearney to whom she was referring by the description ‘dodgy bastard.’ The Applicant responded, “I don’t know.” Ms McInnes suggested that the Applicant meant Nasr. She responded, “I would not agree.”
In the electronic client records for Pharma Cosmetics were documents from two other businesses, Formscaff Form Division Pty Ltd (‘Formscaff’) and Bass Concreting Pty Ltd. They were in a folder marked ‘Don’t upload.’ Among the documents was a letter of offer from Formscaff addressed to Mr Yu, who was also the nominee in the Pharma Cosmetics application. The employment offer was dated 23 April 2014 and was for the position of ‘Corporate General Manager/Engineering’ with a salary of $182,000 and marked with the annotation ‘do not use’.
Mrs Kearney told the Tribunal, “I have never had any dealings with Formscaff or Bass Concreting.” When asked why the letter would have been on her client file, she responded, “I can’t answer that.”
Counsel noted that the position created by the Applicant in Pharma Cosmetics had a salary of $182,000 (TD, p 2691), and asked if the Applicant thought it was odd that the same visa applicant was being offered the same salary in two different jobs. She responded, “No, because he had limited English. I didn’t think it was unusual. Mr SL was doing recruitment.”
Ms McInnes put to the Applicant that it was highly improbable that Mr Yu could be offered two jobs at different times but on the same salary, and suggested to Mrs Kearney that this should have raised concerns with her. She responded, “I didn’t think it was unusual. Legislation allowed people with high level skills to come in [with limited English].”
Counsel took the Applicant to the KLM Spatial nomination where the offer of employment was for a salary of $182,000. There was an exchange with Ms VS at a consultancy firm with an email to Mrs Kearney saying they would advertise a position for between $80,000 and $100,000. Mrs Kearney agreed she might have spoken to Ms VS but could not explain why the salary had been changed.
Ms McInnes noted that the delegate found two documents had been spliced together. Mrs Kearney said it would not have been uncommon to cut and paste things. She could not say why it was necessary to create a new letter of offer. She said sometimes clients would ask AVS to change salaries.
In response to a direct question from the Tribunal that it would have been better to ask the client to send her a fresh offer, the Applicant said, “In an ideal world, that’s correct.”
The Applicant was taken to an offer of employment for a Corporate General Manager on the letterhead of Greystanes Child Care Centre. She was asked whether she created the offer (TD, p 1790). Mrs Kearney responded, “I’m not sure – I don’t know if I did, or I didn’t.”
The letter of offer states that the salary would be $180,200 per annum to be paid weekly on a Thursday (TD, p 1791).
The Applicant was then taken to a letter (TD, p 2438) on Cawarra Cosmetics letterhead, also for the position of Corporate General Manager. The salary was to be $180,200 per annum to be paid ‘monthly on a Thursday.’
Mrs Kearney agreed that the two letters looked similar. She said she was unsure whether she created them, but it was a possibility.
Ms McInnes noted that they were quite different industries, and that the salary was quite high. The Applicant responded, “I am unable to answer that without doing research.”
Mrs Kearney agreed there was no evidence of any email instructions in regard to these letters of offer from Nasr.
The Applicant was taken to a letter of offer of employment by Nature Care College (TD, p 691) dated 10 July 2015 to ‘Li Jianting’ for the position of Traditional Chinese Medicine Practitioner and Course Developer/Coordinator. The starting salary cited is $189,000 per annum. When asked if she created the letter, Mrs Kearney said she was unsure.
The OMARA delegate noted that in the files for Nature Care College was a letter dated 24 March 2014 on the letterhead of a company called Precise Training, also to ‘Li Jianting’. This letter was to offer the position of ‘Student Counsellor,’ with an annual starting salary of $182,700 per annum. Ms McInnes asked Mrs Kearney, when comparing the two letters, whether it was likely that she created the Nature Care College offer based on the earlier letter. She responded, “I don’t know if I did, or didn’t.”
Ms McInnes suggested to Mrs Kearney that the salary for a student counsellor was well above what would be expected. The Applicant responded, “I wouldn’t be able to tell you without a document in front of me about what a counsellor would be paid in 2014.” Ms McInnes said that the OMARA delegate looked up the average salary for a student counsellor at that time, and found it was in the region of $92,000. The Applicant responded, “That sounds correct.”
Ms McInnes asked the Applicant whether it wouldn’t have struck her as odd that a Chinese medicine practitioner would be offered a position at that level. The Applicant responded, “Very much so.”
The Applicant was taken to an email from Mr SL written by one of her staff at AVS dated 17 November 2015 which stated:
The position of Education Manager for Nature College is proving to be difficult to justify the 189k salary, after much research and some creativity
The Tribunal directly asked the Applicant what was meant by the word ‘creativity’ in this email. She responded, “You try very hard to justify the salaries to the Department.”
She agreed that she had concerns about the salary being too high and said Ms GM, who was the wife of Mr SL and an associate of Nasr, was asked to go back to the company.
On 23 February 2017, the Department wrote to Ms Jainting Li (TD, p 768) inviting comment on adverse information the Department had received. The Department contacted a Ms Hilder at Nature Care College, who was the person listed on the nomination form. Ms Hilder responded the same day to say that Ms Jainting Li was not an employee of Nature Care College, and further, that Nature Care College had never sponsored a person to be employed as an Education Manager; in fact, they had never lodged a permanent employer sponsored application with the Department.
That letter was sent to the Applicant as a person nominated to receive correspondence on behalf of Ms Jainting Li. In the papers was an email also dated 23 February 2017 from Mrs Kearney to Nasr forwarding the Department’s letter and writing, ‘Shit…’.
At TD, p 777 was an email reply, dated 23 February 2017, to the Applicant from Nasr saying:
I know I heard…
Maybe we need to lodge updated offers for the last remaining old ones so they dont have to call,,
I am coming to Melbourne on Sunday afternoon until Tuesday night – maybe we can catch up and go through some things and future work etc.
Joe
Ms McInnes asked Mrs Kearney what she thought Nasr meant in this email. She responded, “So he wouldn’t be called by the Department, so he wouldn’t be caught out.” When pressed on whether she thought the use of ‘we’ in the email included her, the Applicant said, “I don’t know what he was thinking; you would have to ask Mr Nasr.”
Ms McInnes noted that Nasr said he was coming to Melbourne and suggested they catch up, and what was Mrs Kearney’s view about a potential meeting. She responded, “Not.”
The Tribunal then asked the Applicant was she saying that her relationship with Nasr ended then and there. She responded, “Yes.”
The Tribunal then asked the Applicant whether Nasr came to Melbourne at that time. She responded, “I don’t remember. I met him in total about four times.”
The Applicant was taken to an email dated 24 February 2017 (TD, p 778) saying: “Hi Simone, I feel pressure today, any suggestions for this matter? Sorry. June.” She confirmed that ‘June’ was the wife of Nasr’s China-based associate. Mrs Kearney responded, “I’ll chat to Joe and see what’s the situation ….”
There was a further email dated 21 March 2017 from June about Ms Jainting Li’s visa nomination (TD, p 783) which states: “Hi Simone? To the deadline, what are we going to do with this? June.”
Ms McInnes asked the Applicant if she responded to the emails. She responded, “It doesn’t look like it.” The Applicant was then asked if she dealt with the visa applicant directly. Mrs Kearney responded, “I don’t recall, sorry.”
At TD, p 784 was an email from the Applicant to the Department about the Jainting Li nomination dated about three hours later, saying, “We wish to withdraw this application. The employee who offered this position to my client is no longer employed and the position no longer available….”
Mrs Kearney was asked if she had dealt with Nasr in relation to the withdrawal. She responded: “I am unsure. It wouldn’t have been my decision. It would be Nasr’s, as he purported to represent the employer.”
Ms McInnes then noted that there were no emails asking Nasr or either of his Chinese associates whether or not to withdraw the nomination. The Applicant responded, “I think that is where some were deleted.”
It was suggested to the Applicant that she withdrew the nomination with no instructions to stop the Department looking further. She said she would never do that without being asked to do so.
Mrs Kearney agreed that there is no record of any payment to her from Nasr’s clients. She agreed that none of the businesses paid her, and she was being paid a flat fee by the visa applicants. Ms McInnes asked the Applicant if she can see the problem with the visa applicant paying. She responded, “Asking me that now, yes.”
Ms McInnes asked the Applicant what has changed. She replied, "My level of trust. Dotting the i’s and crossing the t’s. I put my faith in a third party, stupidly in hindsight. I believed a lawyer who said he represented companies actually did.”
The Applicant was asked about the delegate’s finding that she had credit cards and security details for visa applicants. She agreed that she did, and added, “It was not a general practice to keep credit cards. They weren’t deleted. That was my fault. We didn’t have BPAY then.”
When asked who deleted the Hotmail account emails, the Applicant responded, “My staff member. Possibly me. I am unsure.”
The Applicant was asked who decided which emails to delete. She said she was not sure and another migration agent in the AVS was very ‘tech savvy’ whereas she is not.
Ms McInnes said there were no documents produced showing that Nasr had his client’s authority to lodge nominations. Mrs Kearney said she never saw any, never asked to see any, and never asked the businesses themselves.
Questions in reply
Mr Levingston asked how the English language exemption works in regard to minimum salaries for visa nominees. The Applicant said that it used to be that anyone who was proposed to fill a position with a salary over $180,000 p.a. didn’t have to get a skills assessment.

Mr Levingston referred to the salary for the offer of employment at Cawarra Cosmetics (TD, p 2438) of the position of Corporate General Manager with a salary of $180,200 and asked what that level of salary told her. Mrs Kearney responded, “Highly skilled with experience, but potentially limited or functional English.”
The Applicant was asked would that of itself by suspicious. She responded, “At the time we did a lot of different countries.”
Mr Levingston asked about the relationship with Nasr. Mrs Kearney said she entered into an agreement for payment with Nasr. He asked if she made any inquiries about Nasr. The Applicant responded that she went to the New South Wales Law Institute and googled his website. She understood him to be an in-house counsel for corporate clients. She said, “I believed because he was a lawyer, he would tell the truth. I made assumptions on his ethics.”
Mr Levingston asked Mrs Kearney whether she entered into an agreement with Joe Nasr to submit documents to the Department knowing them to be forgeries or false. She responded, “Emphatically, no.”
He then asked the Applicant whether she selectively culled her emails ostensibly to create space with a view to concealing evidence. She responded, “No, because lots of emails were me being directed or told to do things.”
Mrs Kearney agreed she was in breach of the requirement to keep records for seven years. She said that her business had subsequently purchased computer software packages and had new email addresses.
Mr Levingston asked about the Aromas nomination. He asked Mrs Kearney if she discussed with SWWJ the fact that Mr GS said he did not know about the proposed nominee. She replied, “I would have.”
She denied entering into a conspiracy with SWWJ that was false or misleading, but said she could not recall whether SWWJ had told her why Mr GS would have said he had no knowledge of Mr AS (the proposed chef at his restaurant).
Mr Levingston asked if this incident affected her relationship with SWWJ. She responded, “I wanted to end it, but lots of employers said they wanted to work through him.” She agreed she continued a relationship with SWWJ, but it was “very limited and always with the employer if necessary.”
Mrs Kearney said she was aware that under the new Code there is an obligation for an agent to deal with an employer directly.
Closing submission – the Applicant
Mr Levingston said there is no dispute there was fraud in the Aromas case, with SWWJ, and that all of the cases with Joe Nasr were fraudulent.
He contended that the Applicant took all reasonable steps to protect the integrity of the Migration Program, but admits to some failures which do not go to whether she engaged in the fraud.
Mr Levingston said that the Applicant did provide migration assistance but did not know she was agreeing to provide assistance to fraudsters.
Mr Levingston submitted that the Applicant was dealing with the tragic death of her son and a breakdown relating to her partner. He said she had stepped back from the business and was working part-time. He agreed that some deficiencies had emerged in the Department’s investigation in terms of record-keeping and removal of emails.
Mr Levingston submitted that the Applicant was manipulated by SWWJ and by Nasr. She did not go directly to employers and when she did, she was told by SWWJ ‘don’t ever go direct.’
He submitted that a new system is now in place under the new Code, and that Mrs Kearney’s breaches were ‘relatively minor’ relating to breaches in regard to record-keeping and sloppiness with retaining credit card details. He submitted that the Tribunal should set aside the cancellation decision and replace it with ‘at worse’ a suspension of the Applicant’s migration agent licence for, say, six months with a requirement to undertake some remedial professional development, and that this is the correct and preferable decision for the Tribunal to make.
Closing submission – the Respondent
Ms McInnes said that the Applicant was wrong to say that SWWJ and Nasr were her ‘clients,’ because the nine businesses were in fact the clients.
She noted that the Applicant has conceded that immigration assistance was provided, and once she prepared documents, that action constitutes immigration assistance.
Ms McInnes said that SWWJ and Nasr should correctly be seen as intermediaries; they were not the clients, and the claim of fraud foes not alter the factual basis of immigration assistance.
Ms McInnes submitted that whether an application was valid or not does not mean the Applicant did not factually prepare the application. The Respondent submitted that the Applicant was either indifferent to, or complicit in, whether dishonesty was being used to obtain visas.
The Respondent submitted that the Applicant knew, or ought to have known, that the nominations did not exist.
In terms of the Aromas nomination, there is no dispute that Mrs Kearney lodged the application. A staff member requested to see the letter from the accounting firm. The salary was queried, and SWWJ said he would change the contact. SWWJ then provided an updated letter, which should have been easily identified as being altered.
When in May 2018 Mr GS told the Applicant that there was no job, the Applicant now says she discussed this with her employee and they decided not to withdraw it because they did not act for Aromas, but she had not put this argument before.
The Respondent submitted that the Applicant is not a witness of the truth, and that the Tribunal should make a credibility finding.
Ms McInnes noted that after Mr GS had said he was not offering a job, the Applicant still pursued the application, and that this was not a mistake: the Applicant took no steps because she knew Mr GS did not want to proceed, but the visa applicant did.
In terms of Nasr’s business clients, the Respondent said the Applicant could have called any of the representatives of these businesses to give evidence.
In respect of the Pharma Cosmetics nomination, the Applicant admitted she amended the position description and that it was likely produced from an earlier document for Formscaff Form Division Pty Ltd.
Ms McInnes submitted that it makes no commercial sense for a business to nominate a person and propose to pay $80,000 above the market rate to avoid the English test, and this should have been an indicator to check directly with the business.
In respect of a finding by the delegate (paragraph 199) about a signature purportedly to be that of Mrs Kearney, Ms McInnes said that she accepts the signature did not resemble that of the Applicant and the Respondent no longer seeks to rely on that particular finding of the delegate.
CONSIDERATION
The Tribunal is satisfied that the Applicant provided migration assistance to the nine businesses referred to above, one where SWWJ was the intermediary (Aromas) and the other eight where Mr Joe Nasr, sometimes through his associates, was the intermediary.
The Tribunal is satisfied that the Applicant breached provisions of the Code in place at the time she provided immigration assistance to these nine businesses, and notes her concessions of certain breaches in respect of poor record-keeping and retaining credit card and bank details of clients in breach of the Code.
In respect of the Aromas nomination, the Tribunal considers that the letter purportedly from a firm of accountants, which SWWJ said he would have changed, was clumsily altered (very likely by SWWJ) to modify the salary. Mrs Kearney in her own evidence agreed that the typed text of the letter had been obviously changed. She said that she had previously only given the letter a ‘cursory glance.’
The letter also changed the wording from an assessment by an accounting firm that a business could ‘currently support another full-time employee’ at a nominated salary, which is something an accountant could be expected to express a view upon, having knowledge of the balance sheets of the business, to new wording that the restaurant ‘can easily support three sponsored employees’ at a higher nominated salary. This was advice from an accountant’s perspective, which apparently suddenly morphed into a view relating to sponsoring visa holders, which would not be an opinion an accounting firm would be expected to express.
The date of the purported letter had not changed, so it should have been immediately apparent that a part of the first page of the letter had been fraudulently altered, given it was still purportedly signed by a principal of the accounting firm. It would have been apparent even from a ‘cursory glance.’ It would have been a simple matter for the Applicant to have gone back to SWWJ and ask him to have the accounting firm provide a fresh letter of a current date, verifying that the restaurant could sustain a salaried position as proposed.
However, the Applicant did not do that. She appears to have accepted the letter, with the obvious change and therefore with an at least doubtful, and I consider false, date, without question, as supportive of the papers which had to be lodged with the Department. This is no reflection on the apparent author of the letter, because all the evidence points to it having been doctored after it was signed.
More egregiously, having done that and having received a direct email from the owner of the restaurant, Mr GS, that he did not have any knowledge of Mr AS, the visa nominee, let alone that he was sponsoring him for a position in his restaurant, the Applicant persisted in providing information to the Department. By this time she knew that Aromas was not a client business. She therefore had no basis to send any information relating to the restaurant to the Department.
Alarm bells should have sounded to Mrs Kearney when SWWJ admonished the Applicant for going directly to Mr GS, especially as, in logic, Aromas was the client of the migration agent, not SWWJ.
The Tribunal marries this wilful approach by the Applicant with her admission that, even after the Aromas application was withdrawn, she continued to deal with SWWJ on other applications. By this time she must have at least suspected that the documents he had given her in relation to the position at Aromas were fabricated. Her only excuse was that she ‘wanted’ to severe ties with SWWJ, but that other persons in that part of New South Wales wanted to use SWWJ and that, after this, she said she ensured she had direct contact with the nominating businesses.
In relation to the eight businesses introduced to the Applicant by Nasr, it is very clear to the Tribunal that, as Mr Levingston conceded, all of these nominations were fraudulent.
I am satisfied that the Applicant should have known that the nine businesses were her clients in terms of her obligations under the Code, not SWWJ or Nasr. She did not at any stage obtain instructions from her clients, even through SWWJ or Nasr. She relied only on the fact that they forwarded her material which she considered they ‘must have’ obtained from the respective businesses – material that is now proven to have been fabricated.
In respect of Aromas there is no evidence of any authority to act for the client. This is a breach of clause 2.8(a) of the then Code. In respect of Australian Glass Group there is no evidence of any instructions to act from the business or from Nasr. In respect of WAM Home Décor there is no evidence of any instructions to act from the business or from Nasr. In respect of Pharma Cosmetics there is no evidence of any instructions from that business or Nasr to act as migration agent.
In respect of KLM Spatial, Greystanes Child Care Centre, Cawarra Cosmetics and Nature Care College there is no evidence of instructions from any of the businesses or from Nasr to act as a migration agent for the clients. In relation to the last, there is evidence that the Applicant was finding it difficult to ‘justify’ the $189,000 salary proposed to be offered, after some research and ‘creativity’. This inclines the Tribunal to the view that the Applicant was creating positions and salary levels of her own volition, without any direction from clients or even without apparent specific instruction from Nasr.
The Tribunal is satisfied that the Applicant did not act in pursuit of the legitimate interests of her clients in the nine businesses. This is a breach of clause 2.1 of the then Code. The Tribunal is also satisfied that there was no service agreement between AVS or any of the nine businesses. This is a breach of clauses 2.1 and 5.2 of the then Code. The Tribunal considers that a hallmark of the way the Applicant managed each of these nine applications and their linked visa applications was a lack of diligence and, consequently, she showed a disregard for migration law and the reputation of the migration advice profession in general. This offends clause 2.23 of the then Code.
It is clear from the contact the Department made that in several instances (for example Graystanes Child Care Centre) the business owner had no knowledge of the visa nominee or, indeed in that case, they had never nominated any person for a visa to work in their business. However, the citation of a salary of $180,200 for a position of ‘Corporate General Manager’ of a childcare centre should have immediately raised concerns with the Applicant. Apart from the fact that it is not clear why even a relatively large childcare centre would employ a ‘corporate’ general manager, such a high salary would not seem proportionate in that industry sector. This would have been apparent on its face.
In respect of WAM Home Décor and Greystanes Child Care Centre, the Applicant said that because a Justice of the Peace had certified some documents, she thought they were genuine. However, all the JP was doing was certifying a copy of another original document she had sighted. If the original document before the JP was itself a fake one, that is not something the JP could be expected, on its face, to know. The evidence of a JP’s certification is supportive that Nasr was engaged in putting forward some documents that had the appearance of being sourced from the businesses, but that does not excuse the Applicant from then creating or altering other documents, on the letterhead of these businesses, for submission to the Department.
The Applicant admitted that she created the position description for the job at Pharma Cosmetics which included as one of the tasks of the appointee that they would be ‘obtaining soil and rock samples at different depths across sites and testing samples to determine strength, compressibility and other factors.’ She admitted that she ‘most likely’ inserted this text because she was cutting and pasting from another existing document for a different position. Not only does this display recklessness, it has the characteristics of being complicit in creating a fake position to underpin an immigration outcome.
The Tribunal is disturbed at the blasé attitude of the Applicant about this particular activity. She said that she ‘regularly’ had created position descriptions to assist clients. While the Tribunal might accept that a migration agent may, in the course of liaising directly with a business with a skill shortage who wants to sponsor a non-citizen to fill a job gap, assist the business in its submissions to the Department, these are not such cases. These are cases where there is no evidence that the Applicant ever had any contact with any of the eight businesses brought to her by Nasr. There is also, in spite of her oral evidence at this hearing, no evidence that she ‘would have’ emailed Nasr to obtain his final approval for any job description before it was sent to the Department. Any such emails, if they ever existed, were allegedly deleted from the Applicant’s Hotmail system.
It is clear to the Tribunal that this was a completely fabricated job description for a job that did not exist, without any knowledge from the cited business. Mrs Kearney’s attitude that it was ‘unfortunate’ that content was included in a cosmetics company’s job description that related, instead, to metallurgy, and also ‘unfortunate’ that Nasr did not identify the error when he apparently approved the document for lodgement, seems completely disengaged from a grasp of her own responsibilities as a registered migration agent. The fact is that she admits she cut and pasted the duties from an unrelated document, and she also admits there is no proof that she either sent the draft position description to Nasr or that he responded and approved it.
On several occasions the Tribunal noted that the Applicant did not recall significant interactions, and then when documents were put before her, she then conceded the point. Whilst the Tribunal might accept that there were significant and tragic personal events that led to the Applicant ceasing full-time work with her migration firm for a period, she did concede that she continued to work for ‘at least’ an hour a day during this period, and also accepted that, as the owner of AVS, when one of her employees, even if another registered migration agent, was undertaking some task, they were doing so in her name.
Mrs Kearney’s evidence was that Formscaff had ‘never’ been her client. Yet she did not explain why documents from that company were in her files with a notation ‘do not use’ and yet some of the contents appear to have been cut and pasted into other documents sent to the Department in support of one of the businesses Nasr purportedly represented.
As Deputy President Hack rightly said in Stolar, a migration agent need only breach one provision of the Code for that breach to trigger a potential sanction. In this case, the Respondent drew the Tribunal’s attention to the Complaint Classification Matrix, in the Department’s document titled ‘Working with the Migration Advice Industry.’
Mr Levingston on behalf of the Applicant concedes that credit card and bank details of former visa applicants should not have been retained by AVS. He also concedes that the deletion of emails relating to the Applicant’s interactions with clients, or third parties was also a breach of the Code. Both of these concessions would appear to fit into the category of ‘office practice deficiencies’ which are described in the matrix as ‘minor breaches that are rectifiable and/or isolated.’ They are breaches of clauses 6.1 and 6.1A of the then Code.
The Matrix also includes, under the classification of ‘moderate’ breaches, the following: breaches of the Code of Conduct indicating systemic poor practices; indifference to professional responsibilities; and multiple breaches of the Code of Conduct.
The Tribunal is satisfied that, although new systems may now be in place, for several years there were systemic poor practices in the Applicant’s migration agency business. There are several breaches of the then Code and the Tribunal’s view is that while one or a small number of minor breaches might lead to a conclusion of a lower level of non-compliance, when there are a large number of minor breaches, the level of seriousness is raised.
The Tribunal is significantly concerned about the Applicant’s deletion of a large number of emails relating to her business, including emails the Applicant alleges would support her contentions that she was acting on the instructions of Nasr in relation to several of the eight business nominations referred to above. Even were that so, she had a proper obligation to her clients (i.e. both the businesses and the visa applicants themselves) to keep complete and proper records relating to their applications. The Applicant suggested that another staff member ‘might’ have deleted them, or perhaps she ‘might have.’ It was, at best, illustrative of poor office-keeping and, at worse, redolent of deletion of emails that might have revealed other breaches of the Code. Having said that, I am not satisfied to make a finding that these emails were deliberately deleted to advantage the Applicant in the investigation by OMARA.
The Tribunal is satisfied to find in the nine cases which were the subject of the OMARA investigation that the Applicant was completely indifferent to her professional responsibilities. A migration agent has a responsibility not only to his or her client (i.e. the business concerned, and the linked visa applicant), but also to support the integrity of Australia’s migration system. This includes not providing misleading or false information to the Department. Mrs Kearney did provide such misleading information in relation to Aromas and the other eight businesses.

Section 303(1)(f) of the Act provides that the Respondent (or the Tribunal standing in its shoes) may take one of three actions against a registered migration agent if satisfied that
the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance
The syntax of this particular clause is important. The Respondent urged the Tribunal to find that Mrs Kearney is not a witness of the truth and make an adverse credibility finding about her evidence at the hearing. The Tribunal has carefully considered her responses, and has set them out in detail above in these reasons. On occasions the Tribunal considers the Applicant was not forthcoming and some of her answers had the flavour of defiance. But the Tribunal also notes the Applicant’s consistent responses that she accepted information given to her by SWWJ in the case of Aromas, and by Nasr or his agents in the other eight cases. Accordingly, the Tribunal declines to make a finding that the Applicant is not a person of integrity.
However, the conduct of the Applicant in dealing with these nine businesses reveals very unsatisfactory conduct, and unsatisfactory conduct spanning several years. It is particularly concerning that, even when she knew Mr GS was not sponsoring Mr AS for a visa, Mrs Kearney still pursued the application by providing material in support of the grant of a visa to the Department.
It is also particularly concerning that she was creating position descriptions for positions with businesses, by ‘cut and pasting’ other documents from unrelated visa applications, and altering proposed salaries, and forwarding this material to the Department in support of visa applicants.
Having failed to obtain from Nasr proof that he was acting on behalf of these eight businesses, the Applicant was – at the very best – completely incurious. It is not enough for her to say to the Tribunal that she thought it was all above board because Nasr was a solicitor. Just one telephone call to one of these businesses could have either confirmed that the job offer linked to a visa application was legitimate, or otherwise sounded a klaxon. Nine telephone calls would have revealed that none of them was.
In her oral evidence, as set out above, when asked whether she sought any proof Nasr was acting on behalf of these eight businesses, she said she ‘never saw any, never asked to see any, and never asked the businesses themselves.’ In the Tribunal’s view this was negligent conduct.
The fact that Mrs Kearney chose not to make any direct inquiries, in the Tribunal’s view, meant she was recklessly indifferent as to the authenticity of the job offers. A substantial element in support of that conclusion is her own admission that in some cases it was she who was creating the job descriptions and set the salaries. As in the case of the Aromas application, a simple direct contact by the Applicant to one of the eight businesses, or a request to Nasr to obtain from them – not create herself – a position description, would have either verified that they were legitimate business nominations for real jobs, or that they were fakes.
The Tribunal has come to the conclusion that the conduct of the Applicant falls within the classification of ‘major’ breaches in the matrix. As such, the submissions of Mr Levingston that the appropriate sanction is suspension and compulsory professional development is rejected. For completeness, Mr Levingston’s submission that Mrs Kearney’s actions are vitiated because of the fraud perpetuated by SWWJ and Nasr is also rejected. They may have been acting fraudulently in holding themselves out as intermediary agents, but the clients of the Applicant were in fact nine factually legitimate business concerns, which did exist. But the incurious conduct of the Applicant in regard to not assuring herself that any of these businesses were actually seeking to sponsor visa applicants is unsatisfactory conduct as a migration agent separate from any improper conduct with which SWWJ and Nasr were engaged.
The three sanctions available at the beginning of s 303(1) of the Act are: cancellation of the registration of a registered migration agent by removing his or her name from the register (s 303(1)(a)); suspension of his or her registration (s 303(1)(b)); or a caution (s 303(1)(c)).
In the High Court decision Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Toohey and Gaudron JJ said, at [36]:
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.
Mr Levingston contended, and the Tribunal accepts, that from 2011 when she first was placed on the register of migration agents, Mrs Kearney had many years of successful and professional activity as a migration agent before her association with SWWJ and then Joe Nasr. She was, therefore, not a newly registered migration agent unsure of his or her responsibilities under the Code. The Tribunal has not made a finding that she is not a person of integrity. However, she has admitted a number of breaches of the then Code of Conduct for registered migration agents. Above that, she participated in an arrangement with SWWJ where she knew the business in question was not, in fact, sponsoring a person for a business visa. In regard to the eight businesses sent to her by Nasr, she readily involved herself in creating position descriptions, even though she admits she had doubts about some of the purported salaries offered, and where she has no evidence Nasr, or the businesses asked her to create the job descriptions.
Not once did she contact even one of these businesses to obtain other information, let alone to verify they were wanting to employ an overseas worker. Had she done so, the game would have been up. But I am satisfied that Mrs Kearney, even if she did not know for sure that the businesses were not seeking to sponsor visas, at least harboured her own suspicions. I am amply satisfied that when she referred in an email to a ‘dodgy bastard,’ in spite of her contrary evidence to this Tribunal, she was in fact referring to Nasr. There is no other person to whom she could reasonably be referring, in the context of that email.
The Tribunal is satisfied to make the following findings.
The Applicant failed to comply with the (then) Code pursuant to s 301(1)(h) of the Act.
Because of the accumulation of instances of breaches over a period of time, the Tribunal is satisfied that by her unprofessional conduct in these cases she is not a fit and proper person to give immigration assistance within the meaning of s 303(1)(f) of the Act.
The Tribunal finds that, because of the number of breaches and the sustained period of time of unprofessional conduct in breach of the then Code, the appropriate sanction in all the circumstances is cancellation and removal of the Applicant’s name from the register.
Therefore, noting the Respondent’s concession in relation to paragraph 199 of the delegate’s decision, the Tribunal affirms the decision dated 29 June 2023 that the Applicant’s registration as a migration agent is cancelled under s 303(1)(a) of the Act and that the cancellation is for a period of five years ending on 28 June 2028.
DECISION
The reviewable decision of 29 June 2023 that the Applicant’s registration as a migration agent is cancelled for a period of five years ending on 28 June 2018 is affirmed.

I certify that the preceding 251 (two hundred and fifty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

...............................[signed]..................................
Associate
Dated: 21 June 2024

Dates of hearing: 18 January, 12 and 13 March 2024

Counsel for the Applicant: Mr Christopher Levingston

Solicitors for the Applicant: Christopher Levingston & Associates

Counsel for the Respondent: Ms Kylie McInnes

Solicitors for the Respondent: Sparke Helmore
ANNEXURE
Schedule of Exhibits
T documents, lodged 13 October 2023  Exhibit R1
Annexure to Respondent’s SFIC – Working with the
Migration Advice Industry, 1 July 2019  Exhibit R2
Witness statement – Simone Kearney, 31 January 2024     Exhibit A1
Annexure A to witness statement  Exhibit A2
Activity statement Bombini Ltd - December  Exhibit A3
Activity statement Bombini Ltd – March  Exhibit A4
Activity statement Bombini Ltd – September  Exhibit A5
RSMS Email chain – Mr AS  Exhibit A6
Saif Email chain  Exhibit A7
Cooks and Baker Email chain  Exhibit A8
Bombini urgent BAS Email chain  Exhibit A9

Dates of hearing:	18 January, 12 and 13 March 2024
Counsel for the Applicant:	Mr Christopher Levingston
Solicitors for the Applicant:	Christopher Levingston & Associates
Counsel for the Respondent:	Ms Kylie McInnes
Solicitors for the Respondent:	Sparke Helmore