Liu and Migration Agents Registration Authority - [2022] AATA 215

Liu and Migration Agents Registration Authority [2022] AATA 215 (14 February 2022)
Division: GENERAL DIVISION
File Number: 2021/1435
Re:Kathy Liu
APPLICANT

Migration Agents Registration AuthorityAnd
RESPONDENT

DECISION
Tribunal:R Cameron Senior Member
Date:14 February 2022
Place:Melbourne

The Tribunal sets aside the reviewable decision and substitutes the following:
(a)Under section 303(1)(b) of Migration Act 1958 (Cth) the Applicant’s registration as a migration agent will be suspended for 12 months as and from 8 March 2021; and
(b)The Applicant’s registration is not to be renewed until such time as she provides evidence to the Respondent:
i.that she has completed a total of 10 Continuing Professional Development points (as approved by the Respondent) covering professional standards and ethics; and
ii.in the form of a statutory declaration stating that she has not made any immigration representations for a fee, has not advertised the provision of immigration assistance, and has not given immigration assistance whilst serving the period of suspension imposed by this decision.

......[sgd]..................................................................
R Cameron Senior Member
Catchwords
MIGRATION AGENTS REGISTRATION – breach of the migration agents code of conduct – is the applicant of integrity or otherwise not a fit and proper person to give immigration assistance – correct of preferable sanction – decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Migration Agents Regulations 1998 (Cth)
Cases
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Eckhardt and Migration Agents Registration Authority [2020] AATA 4088
Frugtniet and Migration Agents Registration Authority [2016] AATA 299
Kraues v Migration Agents Registration Authority [2018] FCA 664
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
R Cameron, Senior Member
14 February 2022
INTRODUCTION

The Applicant, a migration agent, seeks review of a decision made by the Migration Agents Registration Authority (“Respondent Authority”) on 8 March 2021 (“the reviewable decision”).[1]
[1] The reviewable decision is document T21 of the T documents.
The reviewable decision found that the Applicant had breached clauses 2.1, 2.8, 2.9 and 2.9A of the Migration Agents Code of Conduct (“the Code”). Her registration was suspended under section 303(1)(b) of the Migration Act 1958 (Cth) (“the Act”) for 18 months, and until such time as she had met conditions specified. Those conditions were that the Applicant:
(a)completes 10 Continuing Professional Development points (as approved by the Respondent) to cover professional standards and ethics, for every 12 months the suspension is in force;
(b)provides evidence that she passes the “Capstone” assessment to assess the Applicant’s ability to meet the Occupational Competency Standards for Registered Migration Agents; and
(c)provides a statutory declaration that she had not made any immigration representations for a fee, has not advertised the provision of immigration assistance, and has not given immigration assistance while suspended.
THE REGULATORY REGIME FOR MIGRATION AGENTS
Division 3 “Registration of migration agents” of Part 3 of the Act regulates the registration of migration agents. The division also gives the Respondent the power to undertake disciplinary action against registered migration agents. It includes…

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.

Continue reading Liu and Migration Agents Registration Authority

Details

AGLC: Liu and Migration Agents Registration Authority [2022] AATA 215
Case: [2022] AATA 215
Decision Date: 14 February 2022

CaseChat Overview and Summary

This matter concerned an application by a registered migration agent to review a decision by the Migration Agents Registration Authority. The applicant had lodged three visa applications on behalf of purported clients, which were subsequently found to be based on fraudulent documents and instructions, as the purported clients and their employer had no knowledge of the applications. The applicant had no prior disciplinary history and had been registered since 2009.

The legal issues before the Tribunal were whether the applicant had breached clauses of the migration agents Code of Conduct, specifically concerning acting in accordance with the law and the legitimate interests of clients, dealing with clients competently, diligently, and fairly, confirming instructions in writing, acting in accordance with client instructions, keeping clients informed, and not making misleading statements or misleading the Authority. The Tribunal also considered whether the applicant was a person of integrity or otherwise not a fit and proper person to give immigration assistance, as contemplated by section 303(1)(d)(g) of the Migration Act 1958 (Cth).

The Tribunal found the applicant to be a credible and truthful witness who acknowledged her mistakes and faced her responsibilities. Despite the fraudulent nature of the applications, the Tribunal accepted the applicant's evidence that she had not knowingly made misleading statements or misled the Authority, but rather had been deceived by a third party, Howard Hu. The Tribunal concluded that while the applicant had breached certain provisions of the Code of Conduct, the reviewable decision to cancel her registration was not the correct or preferable sanction. The Tribunal set aside the Authority's decision and substituted it with a suspension of the applicant's registration for 12 months, commencing from 8 March 2021. Furthermore, the applicant's registration was not to be renewed until she provided evidence of completing 10 Continuing Professional Development points in professional standards and ethics, and a statutory declaration confirming she had not provided immigration assistance for a fee, advertised immigration assistance, or given immigration assistance during her suspension.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal considers it appropriate at this juncture to make some observations about the Applicant’s evidence given on affirmation during the hearing. The Tribunal observed the Applicant to be a witness who was credible and truthful. She readily acknowledged the mistakes that she had made and faced up to her responsibilities. It was an embarrassing and emotional experience for her. A number of concessions amounting to admissions against interest were made. She was searchingly and competently cross-examined. She left the witness box with her credibility intact. The Tribunal accepts her evidence unless it is stated to the contrary.RELEVANT FACTS The Applicant was registered as a migration agent on 14 September 2009. She has no prior disciplinary history. Her business was conducted through the corporate vehicle of Southern Stone International Pty Ltd. In approximately December 2015 the Applicant was contacted by telephone by a Shanghai-based businessman known as Howard Hu (“Hu”). Hu was known to the Applicant by reputation as being the principal of a migration business in China known as the “Awesome Group”. The Awesome Group was well known in Chinese circles and apparently held some form of license to conduct the business of a migration agent or its equivalent in China. Hu then attended at the Applicant’s office. He stated that his business had considerable experience in conducting business visa applications. It was explained by Hu that he wanted to engage Australian migration agents to assist with paperwork for employer-sponsored visa categories. They then entered into a signed Migration Service Agreement.[3][3] The Migration Services Agreement is at page 604 of the T documents.First Financial Pty Ltd In approximately April 2017, Hu informed the Applicant that he had a referral for an Australian business called “First Financial Pty Ltd” (“First Financial”), for three Chinese visa applicants (“visa applicants”) for sponsorship on Employer Nomination Scheme visa (subclass 186) (“applications”). Communications followed via email and a Chinese language app known as “WeChat”. The Applicant agreed to act as the migration agent for the three applications. She received a signed Form 956 and a service agreement, purportedly from each of the visa applicants concerned. On 5 June 2017, the applications were lodged by the Applicant with the then Department of Immigration and Border Protection (now the Department of Home Affairs (“the Department”)). It is common ground that the Applicant did not have any direct dealings with either First Financial or the other visa applicants referred to her by Hu. All alleged dealings with them were purportedly arranged through or by Hu. As became apparent later, First Financial did not know of the existence of such applications, or for that matter the visa applicants; nor had it given instructions to the Applicant to lodge the applications with the Department. Also, clearly neither had it instructed Hu. The documents were fraudulent.

Evidence

Evidence Before The Court

It is appropriate to reproduce the clauses of the Code which were the subject of the reviewable decision and considered in this application.2.1 A registered migration agent must always:(a)act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client; and(b)deal with his or her client competently, diligently, and fairly.However, a registered migration agent operating as an agent in a country other than Australia will not be taken to have failed to comply with the code if the law of that country prevents the agent from operating in compliance with the Code.2.8 a registered migration agent must:(a)within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing to the client; and(b)act in accordance with the client’s instructions; and(c)keep the client fully informed in writing of the progress of each case or application that the agent undertakes for the client; and(d)within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client’s case or application.2.9 A registered migration agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.2.9A in communicating with, or otherwise providing information to, the Authority, a registered migration agent must not mislead or deceive the authority, whether directly or by withholding relevant information.OBSERVATIONS ON THE APPLICANT’S EVIDENCE The Tribunal considers it appropriate at this juncture to make some observations about the Applicant’s evidence given on affirmation during the hearing. The Tribunal observed the Applicant to be a witness who was credible and truthful. She readily acknowledged the mistakes that she had made and faced up to her responsibilities. It was an embarrassing and emotional experience for her. A number of concessions amounting to admissions against interest were made. She was searchingly and competently cross-examined. She left the witness box with her credibility intact. The Tribunal accepts her evidence unless it is stated to the contrary.RELEVANT FACTS The Applicant was registered as a migration agent on 14 September 2009. She has no prior disciplinary history. Her business was conducted through the corporate vehicle of Southern Stone International Pty Ltd. In approximately December 2015 the Applicant was contacted by telephone by a Shanghai-based businessman known as Howard Hu (“Hu”). Hu was known to the Applicant by reputation as being the principal of a migration business in China known as the “Awesome Group”. The Awesome Group was well known in Chinese circles and apparently held some form of license to conduct the business of a migration agent or its equivalent in China. Hu then attended at the Applicant’s office. He stated that his business had considerable experience in conducting business visa applications. It was explained by Hu that he wanted to engage Australian migration agents to assist with paperwork for employer-sponsored visa categories. They then entered into a signed Migration Service Agreement.[3][3] The Migration Services Agreement is at page 604 of the T documents.First Financial Pty Ltd

Decision

Reasons for decision

The Tribunal should note that the Respondent sought to reopen its case after the Tribunal reserved its decision. A directions hearing was convened for the purposes of considering this application, which was refused. The Tribunal refused the application on the grounds that the case had been closed and the Respondent is a model litigant who should have produced this evidence at the hearing of the application in the first place. No explanation was offered as to why this had not occurred.CONCLUSION The Tribunal considers that the reviewable decision should be set aside. The correct and preferable decision will be that the reviewable decision will be set aside and in substitution thereof:(a)Under section 303(1)(b) of the Act, the Applicant’s registration as a migration agent will be suspended for 12 months as and from 8 March 2021; and(b)The Applicant’s registration is not to be renewed until such time as she provides evidence to the Respondent:i.that she has completed a total of 10 Continuing Professional Development points (as approved by the Respondent) covering professional standards and ethics; andii.in the form of a statutory declaration, stating that she has not made any immigration representations for a fee, has not advertised the provision of immigration assistance, and has not given immigration assistance whilst serving the period of suspension imposed by this decision.

Ratio Decidendi

Legal Principle Established

The principal section applicable to this application is section 303 “Disciplining registered migration agents”. The section provides as follows:“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;(d)if it becomes satisfied that:(e)the agent’s application for registration was known by the agent to be false or misleading in a material particular; or(f)the agent becomes bankrupt; or(g)the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or(h)an individual related by employment to the agent is not a person of integrity; or(i)the agent has not complied with the Code of Conduct prescribed under s 314.” Under section 314 the regulations may prescribe a Code of Conduct for migration agents, requiring a registered migration agent to conduct themselves in accordance with the Code. A Code has been prescribed pursuant to the power contained in section 314. The Code was in evidence before the Tribunal.[2][2] The Code of Conduct is document T4 of the T documents. It is appropriate to reproduce the clauses of the Code which were the subject of the reviewable decision and considered in this application.2.1 A registered migration agent must always:(a)act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client; and(b)deal with his or her client competently, diligently, and fairly.However, a registered migration agent operating as an agent in a country other than Australia will not be taken to have failed to comply with the code if the law of that country prevents the agent from operating in compliance with the Code.2.8 a registered migration agent must:(a)within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing to the client; and(b)act in accordance with the client’s instructions; and(c)keep the client fully informed in writing of the progress of each case or application that the agent undertakes for the client; and(d)within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client’s case or application.2.9 A registered migration agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.2.9A in communicating with, or otherwise providing information to, the Authority, a registered migration agent must not mislead or deceive the authority, whether directly or by withholding relevant information.OBSERVATIONS ON THE APPLICANT’S EVIDENCE The Tribunal considers it appropriate at this juncture to make some observations about the Applicant’s evidence given on affirmation during the hearing. The Tribunal observed the Applicant to be a witness who was credible and truthful. She readily acknowledged the mistakes that she had made and faced up to her responsibilities. It was an embarrassing and emotional experience for her. A number of concessions amounting to admissions against interest were made. She was searchingly and competently cross-examined. She left the witness box with her credibility intact. The Tribunal accepts her evidence unless it is stated to the contrary.RELEVANT FACTS