Khurana and Migration Agents Registration Authority
[2020] AATA 4482
•9 November 2020
Khurana and Migration Agents Registration Authority [2020] AATA 4482 (9 November 2020)
Division:GENERAL DIVISION
File Number(s): 2020/0034
Re:Biljana Khurana
APPLICANT
AndMigration Agents Registration Authority
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:9 November 2020
Place:Sydney
The reviewable decision made on 3 January 2020, being the decision of the Migration Agents Registration Authority to cancel the registration of Ms Khurana as a migration agent under section 303 of the Migration Act 1958 (Cth), is set aside. In substation it is decided that the registration of Ms Khurana’s registration as a migration agent under section 289 of the Migration Act 1958 is suspended until 3 January 2023.
............................[SGD]............................................
Deputy President J W Constance
CATCHWORDS
MIGRATION AGENTS REGISTRATION – review of decision to cancel registration – where applicant’s employee received clients’ money into her personal account – where applicant aware employee acting dishonestly - where applicant’s supervision and control of her employee was insufficient – where applicant failed to appreciate her failure to comply with the Code of Conduct – where applicant breached the Code of Conduct – Tribunal satisfied applicant not a fit and proper person to give immigration assistance – appropriate sanction – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 292, 303, 304, 306, 208, 309, 314
CASES
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Lilienthal v Migration Agents Registration Authority [2002] FCA 93
Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12
Taylor v Law Society of New South Wales [2017] NSWSC 948
REASONS FOR DECISION
Deputy President J W Constance
9 November 2020
A: Introduction [1] B: Background [6] C: Legislation [14] D: Issues for Determination [20] E: Evidence of Ms Khurana [21] F: Consideration of the Issues [50] Issue 1: Am I satisfied that Ms Khurana is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance?
Issue 2: What is the appropriate sanction to be imposed under section 303 of the Act?
[50]
[68]
G: Conclusion
[77] A. INTRODUCTION
From December 2008 until January 2020, Ms Khurana practised as a registered migration agent in accordance with the Migration Act 1958 (Cth) (the Act).
On 3 January 2020 the Migration Agents Registration Authority cancelled Ms Khurana's registration.[1] In these reasons I shall refer to this decision as “the reviewable decision”.[2] Under the Act a person whose registration has been cancelled must not be registered as a migration agent within five years of the cancellation.[3]
[1] The power to cancel registration is provided by section 303 of the Act.
[2] Exhibit R1 at 8.
[3] Section 292 of the Act.
Prior to making the reviewable decision the Authority considered six separate complaints made against Ms Khurana.[4] The cancellation followed findings by the Authority that Ms Khurana is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance.
[4] Exhibit R1 at 8.
Ms Khurana has exercised her right to seek a review of the reviewable decision by the Tribunal.[5]
[5] Section 306 of the Act provides the right to seek review of a cancellation decision made by the Authority.
For the reasons which follow the reviewable decision will be set aside. In substitution it will be decided that Ms Khurana’s registration as a migration agent under section 289 of the Act be suspended until 3 January 2023.
B. BACKGROUND
Ms Khurana’s initial registration as a migration agent took place on 16 December 2008. Her registration was renewed annually until the time it was cancelled.
At all material times Ms Khurana was the sole director of Migration Centre Pty Ltd (the Company).[6] In July 2013 the Company employed Ms Lertprasert as an education councillor to assist overseas students. In 2015 Ms Khurana sponsored Ms Lertprasert in her application for a Temporary Work (Subclass 457) visa.[7]
[6] Exhibit R1 at 117.
[7] Exhibit R1 at 27.
During 2018 and 2019 the Authority received a total of six complaints[8] relating to Ms Khurana's conduct as a registered migration agent. The following summary of the complaints is taken from the Respondent’s Statement of Facts, Issues and Contentions dated 7 May 2020[9] and is not in dispute:
[8] CMP-9446, 17084, 17085 and 17086; see exhibit R1 at 13.
[9] Respondent’s Statement of Facts, Issues and Contentions dated 7 May 2020, [7]-[13].
7. The first complaint (CMP-39467) was made on 14 August 2018 by [redacted]. [Redacted] alleged that:
7.1. She sought assistance from Migration Centre to transfer her Confirmation of Enrolment (COE) to another education provider. She was assisted by Ms Lertprasert and paid tuition fees of $14,600 to Migration Centre but only $2,000 was transferred to the education provider.
7.2. She sought assistance from Migration Centre to apply for a visa for her partner’s brother. She paid $13,096 in visa and tuition fees. Ms Lertprasert provided a fraudulent COE and the visa application was found to be invalid as no COE had been provided. [Redacted] requested that the application be withdrawn and her monies refunded. Only $2,900 was refunded.
8. The second complaint (CMP-38931) was made on 20 August 2018 by [redacted]. [Redacted] alleged that she paid a cash amount of $11,232 for student visas for two others and was provided with fraudulent COEs.
9. The third complaint (CMP-39313) was made on 6 September 2018 by [redacted]. [Redacted] alleged that Ms Lertprasert had:
9.1. created and provided fraudulent COE documents, Overseas Student Health Cover (OSHC) policy documents and Recognition of Prior Learning (RPL) certificates to clients
9.2. accepted money for AAT applications and provided fraudulent receipts of same
9.3. misled clients into transferring money for payment of Migration Centre services into her personal bank account
9.4. received money for tuition fees that was never passed onto education providers
9.5. lodged applications which were refused due to lack of a COE, evidence of OSHC or due to a failure to satisfy the genuine temporary entrant (GTE) criteria.
10. The fourth complaint (CMP-39355) was made on 9 September 2018 by [redacted]. [Redacted] alleged that he had sought assistance from Migration Centre to obtain an RPL certificate as he intended to apply for a Regional Sponsored Migration Scheme (subclass 187) visa. He claimed to have paid $2,500 and he was not provided with the certificate.
11. The fifth complaint (CMP-39356) was made on 9 September 2018 by [redacted]. [Redacted] alleged that she sought assistance for the lodgement of a partner visa. She met with Ms Lertprasert and paid $9,530 to Migration Centre and no service was rendered.
12. The sixth complaint (CMP-39413) was made on 11 September 2018 by [redacted]. [Redacted] alleged that she sought assistance from Migration Centre to obtain a RPL certificate. She claimed that she paid $4,500 and was not provided with a certificate.
13. On 19 July 2019, Ms Lertprasert was found guilty of three counts of dishonestly obtaining financial advantage by deception for fraud committed over the period 4 April 2016 until 17 August 2018. The Police facts sheets refer to the circumstances of the first, second, fourth, fifth and sixth complainants as well as 14 other victims of similar conduct and indicate that in total $98,399.20 was defrauded from the victims.
On 1 February 2019 the Authority sent Ms Khurana a notice under section 308 of the Act.[10] The notice summarised the complaints and informed Ms Khurana that it raised “possible issues”[11] under a number of specified clauses of the Code of Conduct for Registered Migration Agents (the Code).[12] The clauses specified were not exhaustive. It also required Ms Khurana to respond to several questions in relation to the matters raised in the complaints and to provide Client Account Information for the period January 2018 – September 2018 and a copy of Ms Lertprasert’s employment contract to the Authority.
[10] Exhibit R1 at 151.
[11] Exhibit R1 at 153.
[12] The Code is provided for by section 314 of the Act.
Ms Khurana provided her response to the notice by letter dated 11 March 2019.[13] She also provided a statutory declaration made 11 February 2019.[14]
[13] Exhibit R1 at 162.
[14] Exhibit R1 at 200.
On 16 October 2019 the Authority sent Ms Khurana a notice under subsection 309(2) of the Act.[15] It notified Ms Khurana that the Authority was considering cautioning her or suspending or cancelling her registration. The legislative basis of the proposed decision was paragraph 303(1)(f) that “the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance …”.[16]The notice contained summaries of each of the six complaints referred to in the section 308 notice.
[15] Exhibit R1 at 244.
[16] Exhibit R1 at 244.
Through her Solicitor, Ms Khurana responded to the notice on 29 November 2019.[17]
[17] Exhibit R1 at 270.
On 3 January 2020 the Authority cancelled Ms Khurana's registration.
C. LEGISLATION
Subsection 303(1) of the Act provides, in part:
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:
…
(f)the agent is not a person of integrity was otherwise not a fit and proper person to give immigration assistance; or
…
(h)the agent has not complied with the Code of Conduct prescribed under section 314.
Section 292 of the Act relevantly provides:
An applicant whose registration has been cancelled under section 303 … must not be registered within 5 years of the cancellation.
Subsection 309(2) provides:
If the Migration Agents Registration Authority is considering making a decision under section 303 to cancel or suspend a registered migration agents registration, or to caution such an agent, it must inform the agent of the fact and the reasons for it and invite the agent to make a submission on the matter.
Subsection 304(1) provides:
If the Migration Agents Registration Authority suspends the registration of a registered migration agent under section 303, the Migration Agents Registration Authority may:
(a) set a period of suspension of not more than 5 years; or
(b) set a condition or conditions for the lifting of the suspension.
Section 314 provides:
(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.
As described at paragraph 9 of these reasons, the Code has been prescribed in accordance with section 314.
D. ISSUES FOR DETERMINATION
The following issues arise.
(1)Am I satisfied that Ms Khurana is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance?
(3)If the answer to the above issue is “yes”, what is the appropriate sanction to be imposed under section 303 of the Act?
E. EVIDENCE OF MS KHURANA
Ms Khurana provided a statutory declaration made 12 June 2020[18] and gave evidence at the hearing. Her Statutory Declaration dated 11 February 2019, provided to the Authority, sets out a more detailed response to the allegations against her.[19]
[18] Exhibit A1 at 176.
[19] Exhibit R1 at 200.
Ms Lertprasert was employed to assist students with college enrolment and other matters such as accommodation, English classes and finding employment. The Company received a commission from colleges based on enrolments referred by it. The Company would pass on some of the commission received to the student involved, thus giving the student a discount of approximately ten percent of the college fees otherwise payable.
As Ms Lertprasert spoke Thai she attracted Thai students to the business. Some of these students also sought immigration assistance which was provided by Ms Khurana. Separate files were kept for all clients, including those who sought assistance other than migration assistance.
The Company also employed an Office Assistant, Ms J, who provided assistance to both Ms Khurana and Ms Lertprasert.
Staff raised an invoice and issued a receipt from a paper receipt book for money received. They also maintained digital records of the transactions. The usual practice was that Ms Lertprasert would go to the bank late in the afternoon and deposit any cash received during the day.
In April 2018 Ms Khurana was advised by one of the colleges she dealt with that students’ fees had not been paid on time by her office. When she spoke to Ms Lertprasert about this, Ms Lertprasert at first denied any knowledge of the delay. She later admitted that she had received payments from students of that college which she had deposited into her personal account. A couple of weeks later, following insistence from Ms Khurana, Ms Lertprasert agreed to pay the outstanding fees by instalments.
When asked what her response was to this situation Ms Khurana said:
Well I requested her to start repaying the money back, and I told that if she doesn’t that she will lose her job and also she will have to (indistinct) with her visa because, you know, if she stops working for me she cannot continue to stay in Australia legally.[20]
Ms Khurana told Ms Lertprasert that in future she was not to receive any money into her personal account. Ms Lertprasert was denied access to the office outside normal business hours.
[20] Transcript, 13 July 2020 at 8.
Following this discussion Ms Lertprasert made one payment to the college and then defaulted on the arrangement. She then told Ms Khurana that the Commonwealth Bank had “closed” her account due to unusual activity[21] and that she could not access $39,000 held in that account.[22] When this account was closed Ms Lertprasert began to use an account with another bank to receive payments from students.[23]
[21] Transcript, 13 July 2020 at 53.
[22] Transcript, 13 July 2020 at 7.
[23] Transcript, 13 July 2020 at 53.
After learning of Ms Lertprasert’s conduct, Ms Khurana and her other two staff members watched Ms Lertprasert to see how she dealt with funds received. They were able to do this because it was an “open office”.[24]
[24] Transcript, 13 July 2020 at 8-9.
Ms Khurana was asked about the following incident reported in a New South Wales Police Facts Statement presented to the District Court:
On the 4th of May 2018 the victim attended the migration office of the Accused [Ms Lertprasert] to extend her Visa. The victim was quoted $2000 for this Visa extension, school enrolment and health insurance.
On the 9th of May 2018 the victim transferred $2684 into [redacted] bank account BSB [redacted] Account number [redacted], this is the Accused personal bank account.
On the 12th of June the Accused sent the victim the COE [Confirmation of Enrolment] for [named college] to commence on the 23rd of July 2018. On the 23rd of July 2018 the Accused told the victim not to attend until the 24th as she had to confirm the orientation. On the 24th of July the Accused told the victim not to go before Friday 27th of July 2018.
On the 10th of August the victim found out the first COE was fake, and the Accused had not enrolled her into the course or applied for her new Visa. The victim tried to contact the Accused but could not reach her. The victim attended the school to find that her name was not in the system. The victim spoke to the manager of the school who advised that the COE issued was fraudulent. The victim enrolled in the school and paid fees directly to the school being $1750. The victim then purchased her own health insurance for $427.34.
The victim is out of pocket $2684 for her Visa application, health insurance and
school fees which she never received. The victim has also been disadvantaged as she has had to pay another $1750, and $427.34 as a result for these items not being paid by the Accused in the first instance.[25]
[25] Exhibit R1 at 232-233.
Ms Khurana agreed that when she told Ms Lertprasert she was not to receive clients’ money into her personal account she did not prevent her receiving money from clients otherwise. Ms Khurana permitted Ms Lertprasert to continue to receive money from clients as she was the only person in the office who spoke Thai. Ms Lertprasert did not tell Ms Khurana that the client referred to in the preceding paragraph wished to make a visa application.
When giving evidence Ms Khurana said:
So I had no reason to believe her that she will continue doing the things opposite to what I have given instructions. But I have no way of policing this because she was speaking Thai with those people. I will never know what was the actual – she can tell me any story she wants. …… I was believing she will do the appropriate thing because she didn’t want to lose her visa and leave Australia.[26]
[26] Transcript, 13 July 2020 at 11.
Ms Khurana’s attention was drawn to another incident reported to NSW Police in which it was alleged that a client attended Ms Khurana’s office on 23 May 2018 and handed $2,776.00 in cash to Ms Lertprasert for fees which included $566.00 for a visa application and $1,700.00 for college fees. At that meeting Ms Lertprasert asked the client to borrow $5,000.00 and lend it to Ms Lertprasert as this would “speed up” her college application.
On 6 June 2018 the client attended the office and handed Ms Lertprasert $5,000.00 as requested. Ms Lertprasert gave the client a loan contract and told her that the $5,000.00 would be repaid within the month.
On three separate occasions the client attended the college to commence her schooling but was refused enrolment as her fees had not been paid.
On 9 August 2018 the client received confirmation from Ms Lertprasert that her application for a visa had been lodged. However, the school fees and health check fee had not been paid and the victim paid these directly herself. The loan was not repaid in full, leaving the client with a loss of $4,710.00.
Ms Khurana claims that Ms Lertprasert’s conversations with clients were in Thai and that she had no way of knowing what was going on with this client. She had agreed with Ms Lertprasert that students would be told to pay fees directly to the colleges rather than through her office.[27]
[27] Transcript, 13 July 2020 at 13.
In relation to her supervision of Ms Lertprasert, Ms Khurana said:
So my state of mind that time was that I believe that she’s a good person, okay? But now knowing what I know after the fact, I believe that she did so many things hiding from me for – for – for so long, so how can I be held responsible for something that I didn’t even know existed at the time, you know, and I had no reason to be suspicious. You know? I believe that, you know, if I tell her, that she will do the – the right thing, you know? Because I was believing she is an honest person, you know?[28]
[28] Transcript, 13 July 2020 at 18.
Ms Khurana was on holidays and away from the office from 30 June 2018 until 25 July 2018. Before she left the office, she instructed Ms Lertprasert that all payments received by her were to be handed to Ms J (the Office Assistant) for processing. While she was absent Ms Khurana contacted her office daily.
Up to and including July 2018 it was part of Ms Lertprasert’s duties to contact clients who owed fees to the business. From time to time she informed Ms Khurana of those clients who continued to owe fees, including a client, Ms W.
On 5 July 2018 Ms Khurana received an email from Ms W, stating that she had paid the fees in question. She provided a copy of a receipt for the fees dated 18 April 2017, signed by Ms Lertprasert. When Ms Khurana returned from leave she identified the receipt as having been issued from a receipt book kept by Ms Lertprasert, not by the Company.[29]
[29] Exhibit A1 at 71-72.
On 6 July 2018 Ms Khurana sent an email to Ms Lertprasert in the following terms:
As you can see the clients are not bad, what is bad is you lying to me each day. This is not working for me and I have given you so many opportunities to show me you have changed by this keeps happening. I can assume all people have paid but you kept all the payments from the list I gave you. You have costed this business so much money that it’s not possible for me to trust anything that you say.
You can forget getting salary until you return all the money. I am not paying a single dollar any more and I have every right because you keep steeling money from the business. You lie looking into my eyes so now you need to returning the payments you took and then I will start paying again. Not paying you the salary is not substitute for your debts to the company, it’s punishment for doing all the wrong things and causing problems for the business. You have spend no time doing what I asked you, you keep doing your own work and manipulating students payments to suit your needs. You have not regards to the company so the company will not have any regard for you till you actually start working for the company again.
Call me when you get this message, when I left I told you I will not tolerate this behaviour and you have proven to be just liar who steel money and if this is who you want to be then please stop coming to office and I will report this to the authorities to deal with you.
[Errors in original.]
Ms Khurana gave evidence that:
·when she wrote that “this keeps happening” she was aware of about ten similar incidents with clients for whom she had done work as a migrant agent;
·prior to sending the email she had spoken to Ms Lertprasert who admitted she had taken money payable to the Company;
·during the same conversation Ms Lertprasert agreed to repay the money she had taken;
·she decided that the Company should continue to employ Ms Lertprasert so as to give her an incentive to continue to pay the money she owed to clients and not leave Australia;[30]
·at the time she wrote the email she was aware that Ms Lertprasert was operating her own company and doing her own work outside the business and manipulating student payments to the business;[31]
·she was aware that Ms Lertprasert had created a false letterhead using the business logo.[32]
[30] Transcript, 13 July 2020 at 23.
[31] Transcript, 13 July 2020 at 27-28.
[32] Transcript, 13 July 2020 at 29.
On 19 July 2018, while she was still on leave, Ms Khurana caused one of the Company’s employees to deliver a letter to the New South Wales Police.[33] The letter was as follows:
[33] Exhibit A1 at 47.
I would like to authorise [Ms M] to make statement on behalf of the company in regards to reporting stolen money from the company account.
Ms Natthariya LERTPRASERT (DOB …) is employee of Migration Centre. She is a holder of visa 457 and has been working for the company for 4 years.
For the past 7 months we have been noticing money has not arrived in account when clients pay and when confronted Ms LERTPRASER she admitted they have paid her and she kept the money to pay personal debts.
She has outstanding debts to many of the colleges where we send students because many of the payments she received for the tuition fee were not paid to the colleges and the students had problems with the college.
I believe strongly that she might decide to leave the country because she has many people chasing her and Commonwealth bank closed her account because she was using it to run business on the side and could not explain where the transactions were coming from.
I have given her opportunity many times to return the money and those given to her in loan form which I have contracts and she is always postponing. The amount is close to $100,000 but I cannot be sure because I have to contact few more clients to find out if they have paid her.
Please notify the Border Force and I will also email them to withdraw the sponsorship for her visa. I do not wish her to run away before she refunds all the payments she has taken from the students and the company account.
If you need more information, please do not hesitate to contact me at any time. I’m currently on holiday until 24th July …
[Errors in original.]
When she wrote this letter, Ms Khurana was seeking Police assistance to prevent Ms Lertprasert leaving Australia.[34]
[34] Transcript, 13 July 2020 at 37; Exhibit A1 at 47.
Shortly before Ms Khurana returned to her office on 25 July 2018, she became aware that Ms Lertprasert was moving emails (including emails seeking payment) from the office inbox into student files. Moving emails in this way made it unlikely anyone but Ms Lertprasert would view them.
Shortly after her return she discussed the situation with Ms Lertprasert “a couple of times”[35] and on each occasion Ms Lertprasert assured her that she would stop acting as she had done in the past. Ms Khurana accepted this assurance.[36]
[35] Transcript, 13 July 2020 at 42.
[36] Transcript, 13 July 2020 at 42.
About a week later Ms Khurana learned that one of her clients (who later complained to the Authority) had made a payment to Ms Lertprasert in December 2017 and that Ms Lertprasert had not accounted for this receipt to the company.
On 10 August 2018 Ms Khurana dismissed Ms Lertprasert from her employment by the Company. Until that time Ms Lertprasert continued to meet clients of the business.[37]
[37] Transcript, 13 July 2020 at 44.
At the time she was dismissed, Ms Lertprasert owed the Company $84,000.00.[38]
[38] Transcript, 13 July 2020 at 46
F. CONSIDERATION OF THE ISSUES
Issue 1: Am I satisfied that Ms Khurana is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance?
In Australian Broadcasting Tribunal v Bond,[39] Toohey and Gaudron JJ said:
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.
…
The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
[39] (1990) 170 CLR 321 at 380 and 388.
In Taylor v Law Society of New South Wales,[40] the Supreme Court of New South Wales considered the above extracts from Bond, reasoning that:
… the question whether the plaintiff is currently a fit and proper person falls to be decided referable to what the evidence reveals about a range of matters, including whether improper conduct has occurred (as to which there is no dispute in these proceedings); what motivated that course of conduct; whether there is likely to be a repetition of the misconduct or whether it can be assumed that it will not recur such that the community can have confidence that it will not be repeated in the course of the plaintiff discharging her duties and obligations as a legal practitioner.
[40] [2017] NSWSC 948 at [33].
In considering the conduct of registered migration agents, the Tribunal has taken into account the honesty of the agent.[41]
[41] Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12.
As noted in paragraph 9 of these reasons, the Agency notified Ms Khurana of several provisions of the Code with which she may have failed to comply. These included:
2.23 A registered migration agent must take all reasonable steps to maintain the reputation and integrity of the migration advice profession.
8.1 A registered migration agent has a duty to exercise effective control of his or her office for the purpose of giving immigration advice and assistance.
8.2 A registered migration agent must properly supervise the work carried out by staff for the agent.
8.3 All immigration assistance must be given by a registered migration agent unless the assistance is permitted under section 280 of the Migration Act.
8.5 A registered migration agent must ensure that his or her employees are of good character and act consistently with the Code in the course of their employment.
On the basis of the evidence I have referred to, I find that Ms Khurana has breached the Code in that she:
·failed take all reasonable steps to maintain the reputation and integrity of the migration advice profession (clause 2.23);
·failed to exercise effective control of her office for the purpose of giving immigration advice and assistance (clause 8.1);
·failed to properly supervise the work carried out by staff (clause 8.2);
·failed to ensure that her employee was of good character and acted consistently with the Code in the course of the employee’s employment (clause 8.5).
In the following paragraphs 56 to 63 inclusive I set out my reasons for reaching this conclusion.
As early as April 2018 Ms Khurana was aware that Ms Lertprasert was acting dishonestly and that her breach of her obligations as an employee of the Company was extremely serious. In addition, Ms Lertprasert initially denied any wrongdoing. Having decided not to dismiss Ms Lertprasert at that time, Ms Khurana failed to properly supervise her and failed to put in place systems to protect clients from repeated wrongdoing by the Company’s employee. She allowed Ms Lertprasert to remain in a position to be able to continue to defraud and seriously disadvantage Ms Khurana’s clients.
Ms Lertprasert was permitted to receive money on behalf of the Company. The only action taken to control Ms Lertprasert was to tell her that she should not continue to bank office receipts into her personal account. Ms Khurana admitted that the extra supervision of Ms Lertprasert by physical observation, and preventing her from attending the office after hours, was ineffective. No steps were taken to more closely supervise Ms Lertprasert’s meetings with clients or to check the files of clients with whom she was dealing. Even after Ms Lertprasert defaulted on her agreement to make payments to a college, no further action was taken.
By reason of Ms Khurana’s failure to supervise, Ms Lertprasert’s fraudulent conduct continued until at least July 2018.
Even at the hearing of this application Ms Khurana appeared not to appreciate the seriousness of her failure to comply with the Code. In her evidence recorded in paragraph 38 above, Ms Khurana did not understand how she could be held responsible for her employee’s conduct of which she was unaware at the time, notwithstanding that Ms Lertprasert had continued that conduct from April 2018 until July 2018.
When she learned in July 2018 that Ms Lertprasert had issued a false receipt to a client and retained the fees for her own use, she still did not act decisively. Rather, in her email of 6 July 2018 she again gave Ms Lertprasert the option to continue working for the Company and repaying the money owed to it. At the time she was aware that Ms Lertprasert was operating her own business, had created a false letterhead using the Company logo and was “manipulating” student funds. Notwithstanding this, Ms Khurana permitted Ms Lertprasert to continue to deal directly with clients until she was dismissed on 10 August 2018.
I do not accept Ms Khurana’s evidence that she was acting solely in the interests of her clients when she reported the matter to the Police on 19 July 2018. In her letter to the Police she referred to debts owed to clients and the Company. I am satisfied that Ms Khurana was hoping to have Ms Lertprasert remain in the employ of the Company for as long as possible in an endeavour to have her repay money owing to both clients and to the Company controlled by herself. I do not accept that Ms Khurana did not appreciate the substantial risk that clients would look to her to recover some of the funds taken by Ms Lertprasert.
Ms Khurana did not act dishonestly and she did not receive any benefit from Ms Lertprasert’s dishonest conduct. However, by failing to control her office and failing to properly supervise Ms Lertprasert, she permitted an employee to continue to engage in fraudulent conduct for at least 3 months after she became aware of that conduct. In so doing she exposed her clients to considerable financial loss and distress as well as exposing the Company to significant loss. In addition, she failed to ensure that Ms Lertprasert acted in accordance with the Code and she continued Ms Lertprasert’s employment by the Company when she knew Ms Lertprasert was not of good character.
I have taken into account that not all of Ms Lertprasert’s activities related directly to Ms Khurana’s migration practice. However, some of the money misappropriated was tendered in respect of visa applications and all of the fraudulent activity related to Ms Khurana’s clients. The additional services (such as college enrolment) offered by Ms Khurana were part of that practice
For the reasons set out above, I am satisfied that Ms Khurana is not a fit and proper person to give immigration assistance.
I have considered whether I should find also that Ms Khurana is not a person of integrity.
In Lilienthal v Migration Agents Registration Authority[42] Wilcox J said:
22 Mr Lilienthal also submitted that the Tribunal misdirected itself about the standard of integrity required by registered migration agents. In its reasons for decision, the Tribunal quoted with approval a number of statements about the concept of integrity in the context of s 290. Particular reference was made to a statement contained in Re Peng v Department of Immigration and Multicultural Affairs and AAT (1998) AATA 12. The statement was there made that integrity means soundness of moral principle and character, uprightness, honesty. Mr Lilienthal does not challenge this definition of the term; his challenge really harks back to the width of para (h) of s 290(2).
…
25 In any event, I do not think anything turns upon the statement in Peng or its adoption by Deputy President Purvis in the present case. The critical aspect of his references to authorities concerned the concept of integrity which, as I have said, is not contentious.
[42] [2002] FCA 93 at [22] and [25].
On the facts before me I am not satisfied that Ms Khurana is not a person of integrity.
Issue 2: What is the appropriate sanction to be imposed under section 303 of the Act?
As set out in section 303, the sanctions available are:
·cancellation of registration;
·suspension of registration; or
·a caution.
It is well accepted that the purpose of a regulatory process such as that under consideration is to protect members of the public and not to punish the agent involved.
In view of the findings I have made, clearly some form of sanction is appropriate. The reviewable decision made on 3 January 2020 was to cancel Ms Khurana’s registration.
Section 292 of the Act relevantly provides:
An applicant whose registration has been cancelled under section 303 … must not be registered within 5 years of the cancellation.
An applicant in those circumstances would be required to meet all of the eligibility criteria for an initial registration.
A suspension of registration under section 303 may be for any period not exceeding five years.[43]
[43] Section 304 of the Act.
In order to protect the public from the consequences of Ms Khurana’s actions, it is necessary to act to maintain the confidence of the public that the grant of registration as a migration agent will, as far as possible, ensure clients’ interests are protected.
Ms Khurana failed to protect her clients’ interests. Some of those clients suffered substantial financial loss after she became aware of Ms Lertprasert acting dishonestly. Even after she became aware of Ms Lertprasert’s repeated misconduct she failed to meet her obligations under the Code. However, in the circumstances of this case, taking into account that Ms Khurana placed unwarranted trust in her employee in the hope that the clients would be reimbursed, but did not act dishonestly, a sanction of cancellation of registration is not appropriate. A significant period of suspension will be substituted.
I have decided that the appropriate sanction is a suspension of registration for a period of three years from 3 January 2020.
G. CONCLUSION
The reviewable decision made on 3 January 2020, being the decision of the Migration Agents Registration Authority to cancel the registration of Ms Khurana as a migration agent under section 303 of the Migration Act 1958 (Cth), will be set aside.
In substation it will be decided that the registration of Ms Khurana’s registration as a migration agent under section 289 of the Migration Act 1958 be suspended until 3 January 2023.
I certify that the preceding 78 (seventy -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
............................[SGD]............................................
Associate
Dated: 9 November 2020
Date(s) of hearing: 13 July 2020 Counsel for the Applicant: N Poynder Solicitors for the Applicant: M Kah, Kah Lawyers Solicitors for the Respondent: D Watson, Australian Government Solicitor
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