Khurana and Migration Agents Registration Authority - [2020] AATA 4482

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2020] AATA 4482
Decision Date: 9 November 2020

CaseChat Overview and Summary

This matter concerned a review of the Migration Agents Registration Authority's decision to cancel Ms Khurana's registration as a migration agent. The dispute arose from six complaints lodged between August and September 2018, alleging misconduct by Ms Khurana's employee, Ms Lertprasert. These complaints detailed instances of fraudulent documents, misdirection of client funds into Ms Lertprasert's personal account, and failure to remit tuition fees to educational providers, resulting in significant financial loss to clients. Ms Lertprasert was subsequently found guilty of dishonestly obtaining financial advantage by deception.

The court was required to determine whether Ms Khurana was a person of integrity and otherwise a fit and proper person to provide immigration assistance, and if so, what the appropriate sanction should be under the Migration Act 1958 (Cth). The Authority had concluded that Ms Khurana was not a fit and proper person and had cancelled her registration.

Deputy J W Constance P found that Ms Khurana's supervision and control of Ms Lertprasert were insufficient, and that Ms Khurana failed to appreciate her own breaches of the Code of Conduct. While Ms Khurana was aware that Ms Lertprasert was acting dishonestly, including receiving client money into her personal account, the court was not satisfied that Ms Khurana had taken adequate steps to prevent this conduct or to ensure compliance with her obligations. The court applied the principles of assessing a migration agent's fitness and propriety, considering their honesty, integrity, and adherence to professional standards.

The court set aside the Authority's decision to cancel Ms Khurana's registration. In substitution, it was decided that Ms Khurana's registration as a migration agent would be suspended until 3 January 2023.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 clients9.2. 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 account9.4. received money for tuition fees that was never passed onto education providers9.5. 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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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]