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 the power to require registered migration agents to provide information or documents to the Authority in the course of an investigation. This did occur in this matter, more of which will be discussed later in these reasons.
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
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.
The Applicant explained that on several occasions she had heard Hu conversing with clients in her office and whilst processing the applications concerned, she did so in a genuine belief that the clients were aware of their applications and that their applications were being assisted by a migration agent. She conceded quite candidly in her evidence that she should have taken further steps to establish the authenticity of the clients concerned. She admitted her lack of diligence in this regard and observed that she had in fact contributed to a “blatant immigration fraud”.[4] The Tribunal accepts the Applicant’s evidence that at the time she genuinely believed that the clients were aware of the applications concerned and that they were being assisted by a migration agent.
[4] Applicant’s Statement of Facts, Issues and Contentions, paragraph 56.
Mr Rossi (“Rossi”), a principal director of First Financial, by 14 August 2017 had informed the Department that he did not know anything of the applications concerned and that none of the names of the visa applicants were familiar to him. An email to this effect from him to a Departmental officer was in evidence before the Tribunal.[5]
[5] Document T11.
In approximately mid-September 2017, the Applicant observed that several documents provided by Hu, specifically nominator supporting letters which were purportedly signed by Rossi and came from First Financial, did not seem to be authentic on their face.[6] The Applicant had investigated First Financial and considered it to be a substantial organisation and a professional one. This was, in her mind, confirmed by an examination of the company’s organisational chart. The letterhead provided by Hu did not appear to be professionally printed and overall had a bad or “tacky” general appearance.
[6] The letters are at pages 647 to 650 of the T documents.
This prompted the Applicant to telephone Rossi on 19 September 2017. In that telephone conversation she told him of the applications and that she was “touching base”. He advised her that he knew absolutely nothing about the applications concerned and asked her what she was talking about. He reiterated that he had no knowledge of the applications. She said that she was stunned by this revelation. The rest of the day she said became a blur.
The Applicant did undertake further steps concerning applications that had been given to her by Hu.
What the Applicant did do on the same day as her conversation with Rossi was to submit an “Appointment or withdrawal of an authorised recipient” form to the Department. In that form she advised she was terminating her appointment as the agent representing the nomination and the applications purportedly made by First Financial.
The Applicant did not provide a reason for withdrawing as migration agent or for that matter notify the Department. She did not inform Rossi or anyone else at First Financial that she was so withdrawing. She readily conceded in the witness box that, in hindsight, she should have notified the Department. She said she did not think that far ahead. The Applicant’s evidence was she thought it was possible that someone else in First Financial had knowledge of the applications. She did not think that every document could be forged as was in fact the case.
After the conversation with Rossi, the Applicant confronted Hu. She told him that she had spoken to Rossi and that he knew nothing about the applications. She told him that she was going to cease acting for the visa applicants. It was in that telephone call, that she discovered that Hu was not the direct referrer, and that someone else had referred the case to him. She stated that Hu was mad at her for contacting Rossi without his knowledge. She said he felt that by ceasing to act for the visa applicants they could “jeopardise the case”.
The Applicant then attempted to contact Rossi again on several occasions but was unsuccessful. It was at this stage, when she realised that Rossi knew nothing about the applications, she said she wished to have nothing further to do with Hu, or any matters he had referred to her.
Agrison Australia Pty Ltd
The next matter of relevance concerns documents lodged by the Applicant on behalf of Agrison Australia Pty Ltd (“Agrison”). These matters were another referral to the Applicant from Hu.
The Applicant lodged an application on 16 March 2017 on behalf of Agrison for the position of a mechanical engineer. The application was refused on 13 July 2017, in the absence of supporting documentation.
A related application on behalf of the mechanical engineer was also lodged. This application was withdrawn on 3 August 2017, by reason of the refusal of the nomination application.
A second application was lodged on 21 August 2017, for a mechanical engineer.
Once again, a related application on behalf of the mechanical engineer was lodged on 21 August 2017.
The instructions given to the Applicant, and all of the documents lodged by her with the Department, were provided by Hu.
Prompted by the revelations in the telephone conversation with Rossi on the same day (notwithstanding that she gave evidence that she was stunned, and the rest of the day became a blur), on 19 September 2017, the Applicant telephoned the listed contact at Agrison, Ms Yayintas (“Yayintas”). The Applicant’s evidence from the witness box was that she spoke to Yayintas, mentioned the section 186 application, and that she was sponsoring an engineer. Her evidence was that Yayintas was aware of the case.
The Applicant said that as a result of the telephone conversation with Yayintas she was comfortable that she was aware of the matter. However, she did not want to continue to have anything more to do with Hu. In that telephone conversation, she did not advise Yayintas that she was proposing to cease to act for Agrison. It should be noted that a file note of that telephone conversation made by the Applicant was in evidence before the Tribunal. It recorded that Yayintas was “out” and “asked to call back another time”.[7] It should be observed that from a reading of this file note it is difficult to accept that Yayintas was aware of the matter.
[7] The file note is at page 1211 of the T documents.
On 19 September 2017, following the conversation with Yayintas, the Applicant lodged a Form 956 (Appointment or withdrawal of an authorised recipient (including migration agent)) (“the Form”) with the Department, in which she withdrew her representation in respect of this application.[8] She did this following her conversations with Rossi and Yayintas, and when she reached the conclusion that she did not want to have anything further to do with Hu. It was common ground that she did not inform Agrison or Yayintas of the fact that she was intending to cease acting and lodge the form with the Department.
[8] The form is at page 1146 of the T documents.
The Department subsequently received information that Agrison was not aware of, and did not authorise, the applications lodged by the Applicant on its behalf.
Three other companies
Another matter concerning these applications was that the Applicant received instructions from Hu to lodge applications and related applications for three other companies. They were Skysal Nominees Pty Ltd, Star Combo Australia Pty Ltd and Australia Oriental Film & Television Production Pty Ltd. Such applications were lodged prior to the First Financial applications. None of them has made any complaint with the Department or Authority. However, it is acknowledged that the Applicant had no direct contact with these clients and acted on instructions only from Hu. Documentation lodged by the Applicant with the Department with respect to these clients was lodged before the documents concerning First Financial.
In December 2018, the Applicant received a visit from officials of the Australian Border Force. The purpose of such visit was to discuss the documents that had been lodged by her purportedly on behalf of First Financial. She contended that it was during this meeting that she became aware for the first time that all documentation provided with respect to First Financial had been forged or was otherwise false.
Section 308 notices
A section 308 notice was served by the Respondent on the Applicant on 18 June 2019 (“the first section 308 notice”). [9] The notice concerned a complaint regarding First Financial. The Applicant responded to the first section 308 notice on 17 July 2019.[10]
[9] The first section 308 notice is at page 484 of the T documents.
[10] The Applicant's response is at page 488 of the T documents.
A second section 308 notice was served by the Respondent on the Applicant on 2 June 2020 (“the second 308 notice”).[11] The second 308 notice concerned a complaint regarding Agrison. The Applicant responded to the second section 308 notice on 30 June 2020[12].
[11] The second section 308 notice is at page 1127 of the T documents.
[12] The Applicant's response is at page 1148 of the T documents.
A third section 308 notice was served by the Respondent on the Applicant on 6 July 2020 (“the third section 308 notice”).[13] The third section 308 notice required the Applicant to produce further information in the form of a list of all clients referred to her by Hu. The Applicant responded to the third section 308 notice on 10 July 2020.[14]
[13] The third section 308 notice is at page 1379 of the T documents.
[14] The Applicant's response is at page 1382 of the T documents.
ISSUES FOR DETERMINATION BY THE TRIBUNAL
The following issues arise for determination by the Tribunal in this application:
(a)Did the Applicant breach clauses 2.1, 2.8, 2.9 and 2.9A of the Code?
(b)Is the Applicant not a person of integrity, or otherwise not a fit and proper person to give immigration assistance? and
(c)What is the appropriate disciplinary action under section 303(1) of the Act?
(A) Did the Applicant breach clause 2.1, 2.8, 2.9 and 2.9A of the Code?
(i) Did the Applicant breach clause 2.1 of the Code?
This clause requires a migration agent to act in accordance with the law and the legitimate interests of his or her client and to deal with the client competently, diligently and fairly.
The Applicant has denied that she has breached this clause of the Code of Conduct on several grounds.

Reference should be made to a contention that she raised in her Statement of Facts, Issues and Contentions at paragraphs 58 and 59. She has argued that if she had been more diligent in confirming direct client instructions, she would have discovered the fraud at the outset. This would mean that no client or agent relationship would ever have arisen. Therefore, clause 2.1 of the Code would not apply.
The Tribunal cannot accept this contention. As was submitted by the Respondent, a “client” is defined in the Migration Agents Regulations 1998 (Cth) as “a person to whom the agent agrees to provide immigration assistance”. The Applicant submitted applications in relation to the visa applicants and submitted Form 956’s showing that she was the appointed migration agent. For this reason, a client agent relationship and the obligations it cast upon her under clause 2.1 of the Code were triggered. The Applicant’s lack of diligence would not abrogate her responsibilities.
The Applicant received all her instructions and documents from Hu. There were no steps by way of crosschecking taken by the Applicant, such as making contact by telephone, email or some other electronic medium with an appropriate officer of the applicants concerned, to verify that she was indeed instructed to act on their behalf. Had any one of these elementary steps been undertaken, the true situation, not to mention (as she put it) “such blatant immigration fraud” would have seen the light of day.[15] It was only later, after documents had been lodged with the Department, when her concerns were raised prompting her to telephone Rossi and subsequently revealing the true situation.
[15] In her evidence from the witness box the Applicant stated that when she was visited by officers from the Australian Border Force, they described them as "phantom applications" and that everything on them apart from the name was false.
The Respondent contends, and the Tribunal agrees, that the need for heightened diligence in the unusual circumstances surrounding referrals via Hu was readily apparent. This need was only amplified by the fact that when the Applicant suggested to Hu that she contact the applicants directly he was adamantly against it. This should have rung alarm bells. She stated that she did not insist on making direct contact with each of the clients because it would have damaged her relationship with Hu. She described it as a business decision, as he had offered decent rates for them to do the work. She acknowledged however that it was a very poor professional decision.[16] The Tribunal agrees. It is apparent that she was highly motivated by a desire to maintain a continuing business relationship with Hu, and the significant fees that such a relationship would generate for her.
[16] In particular see the Applicant's statement in response to a section 308 notice at page 508 of the T documents.
Some other matters concerning the alleged breach of clause 2.1 of the Code warrant reference. The Respondent referred to two documents that were forwarded by Hu to the Applicant, purportedly on behalf of First Financial. The documents were received a day apart. The signatures on both of them are purportedly signed by Rossi. An examination of them reveals that they bear absolutely no resemblance to each other. They are contained on the Migration Agent Representation Agreement dated 6 June 2017, and the Form 956 dated 7 June 2017. It is apparent that had these signatures been compared, the obvious differences would have alerted the Applicant to question their authenticity; and almost certainly prompted her to make further enquiries as to whether, amongst other things, she was actually instructed to act on behalf of First Financial.
The Applicant now accepts that the signatures purportedly provided by Rossi are “significantly different”. She contends that because they were received on different days there was no reason for her to suspect the signatures were forged. She concedes there was a certain degree of inattention but submits that it was within reason.
The Tribunal cannot accept this contention and instead accepts the contention of the Respondent; the Applicant took instructions directly from Hu which reveals there was a heightened need for diligence with respect to all documents received, yet she made no enquiries to crosscheck the accuracy of those instructions. It is correct to contend that the Migration Agent Representation Agreement and the Form 956 were the very foundation upon which the Applicant considered herself authorised to act for First Financial. They were the only indicator of consent furnished by First Financial for the Applicant to act. The Tribunal agrees that in such circumstances the failure to compare the signatures was indicative of a lack of competence and diligence within the meaning of clause 2.1 of the Code.
When probed in cross-examination, the Applicant did concede that in hindsight, she should have checked the signatures and did not. She further conceded that it did demonstrate a lack of diligence. The Tribunal agrees with this self-assessment.
The Tribunal should also observe that the Applicant’s capacity to pay significant attention to detail was indeed revealed when she examined the letters purportedly signed by Rossi that led to her telephoning him. It showed that she was perfectly capable of, and indeed did when necessary, carefully examining documents and questioning their authenticity. It was both telling and a significant lack of judgement, that she did not pay the same level of attention to detail with respect to the signatures on the Migration Agent Representation Agreement and the Form 956.
The Respondent contends, and the Tribunal agrees, that the Applicant’s conduct with respect to First Financial in lodging documentation with the Department without the client’s knowledge or authorisation is not acting in the legitimate interests of her client; and is certainly not dealing with the client competently, diligently and fairly within the meaning of clause 2.1 of the Code.
Then there is the conduct of the Applicant concerning Agrison. The Tribunal accepts, and the evidence was not challenged, that following the Applicant’s withdrawal of the representation of the application, the Department received information that Agrison was not aware of and did not authorise the application lodged by the Applicant on its behalf.
Once again, had the Applicant made contact with Agrison prior to lodging the documentation with the Department, the true situation would have seen the light of day and presumably she would not have proceeded. It was an elementary step that a competent migration agent, acting in the legitimate interests of her client and dealing competently, diligently and fairly would have undertaken. It was a significant lapse of judgement on the part of the Applicant that she did not do so.
The Applicant says that the sole purpose of her telephone call with Yayintas was to establish whether Agrison was aware of the application made on its behalf. As a result of the brief conversation she had with Yayintas, she stated she was amply satisfied that they were.
If that is the case, the immediate cessation of representation of Agrison for the purposes of the application that she had lodged without further consulting with it or seeking instructions to do so is not acting in the legitimate interests of the client or dealing with such client competently, diligently and fairly. The Tribunal should also observe that it was surprising, given the very brief conversation that the Applicant had with Yayintas, that the Applicant did not make a further telephone call to her to accurately determine what she was to do, be that continuing to act or ceasing to do so. This is particularly so given that Yayintas requested that she call back. It would not have been difficult, and a practitioner acting competently, diligently and fairly would have done so. In the witness box the Applicant admitted that it was an “breach of duty” not to inform Agrison that she was withdrawing.
It should be recalled that this conversation with Yayintas occurred on the same day and shortly after the conversation with Rossi from First Financial, which clearly alerted the Applicant, at the very least, of the irregularities with matters that had been introduced to her by Hu. Alarm bells should also have been ringing with respect to anything concerning Agrison. It is surprising indeed, that there was not a prompt telephone call (or for that matter an email) later on to Yayintas to accurately get to the bottom of the matter. Once again, had that occurred the true situation would have seen the light of day. Also, she could have explained to Yayintas and if necessary, sought her instructions about formally ceasing to act in the matters concerned for Agrison.
Similarly, the Tribunal should also note that if the Applicant was not satisfied that Agrison was aware of the application and duly authorised it, her failure to make a further telephone call to Yayintas to verify precisely whether she was instructed, and if so what for, was a failure to act in the legitimate interests of her client and deal with her client competently, diligently and fairly, in breach of clause 2.1 of the Code.
Either way, had the Applicant followed up her telephone call with Yayintas and properly probed her as to the true circumstances, there seems little doubt that the true situation would have been revealed. She could then have taken such further action as she may have considered appropriate, including ceasing to act and, one would expect, notifying the Department.
The Tribunal should also refer to a contention of the Applicant concerning her dealings with Agrison. She asserted that the applications were not materially affected by reason of her ceasing to act on behalf of it. Whilst this may be so in a strict technical sense, it is beside the point. The requirements of clause 2.1 of the Code requires a migration agent to act competently, diligently and fairly. The Tribunal considers that ceasing to act for a client without informing them, notwithstanding that it may not affect the progress of an application, is hardly the conduct of a migration agent acting competently, diligently and fairly. It also needs to be seen with a degree of realism. It would have been very easy for the Applicant to have contacted Yayintas, or anyone else at Agrison, and inform them her intentions to cease acting and the reasons why. Had she done so, no criticism could have been levelled against her.
By reason of the foregoing matters, the Tribunal is satisfied that the Applicant has breached clause 2.1 of the Code.
(ii) Did the Applicant breach clause 2.8 of the Code?
This clause requires a migration agent to confirm their client’s instructions in writing, act in accordance with those instructions, and keep the client fully informed in writing of the progress of the case.
The Applicant conceded that she had breached clause 2.8 of the Code. She acknowledged that she failed to confirm directly the client’s instructions in writing and failed to verify those instructions. She says she will take full accountability for such conduct.
It was apparent that the Applicant, amongst other things, failed to confirm within a reasonable time, the clients’ instructions in writing; and to act in accordance with each client’s instructions, keeping them fully informed in writing of the progress of each case or application that she undertook. It seems to the Tribunal, on any objective analysis of the material, that had she undertaken any one of these steps the true facts would very quickly have been established, and the “blatant immigration fraud” would have been exposed.
The Tribunal, therefore, is also satisfied that the Applicant breached clause 2.8 of the Code.
(iii) Did the Applicant breach clause 2.9 of the Code?
This clause provides that a registered migration agent must not make statements in support of an application under the Act or Regulations which he or she knows to be misleading or inaccurate.
The Respondent contends that as the Applicant failed to notify the Department that she had lodged statements and other documentation, in support of an application, that she became aware were misleading or inaccurate breached clause 2.9 of the Code.
The Respondent pointed, by way of example, to the Application for Employer Nomination for a Permanent Appointment.[17] It contained a declaration that the Department would be informed in writing immediately the Applicant became aware of any change in circumstances or change relating to information that had been provided with the application whilst it was being considered. It is common ground that once the Applicant became aware that the application had not been authorised by First Financial, she did not notify the Department.
[17] See for instance document T10 of the T documents at page 286. The Document was lodged on behalf of First Financial by the Applicant with the Department.
The Respondent contends that by failing to notify the Department that she had lodged statements, in support of an application, that she became aware were misleading or inaccurate breached clause 2.9 of the Code.
The Tribunal accepts the evidence of the Applicant that until she spoke with Rossi from First Financial on 19 September 2017, she believed the documents lodged by her to the Department to be true and accurate.
The Tribunal cannot accept the construction that the Respondent places on clause 2.9 of the Code. To do so places too broad a construction on the language used. There is no evidence before the Tribunal that the Applicant made a statement in support of an application or encouraged the making of such statements which she knew or believed to be misleading or inaccurate. The language used in clause 2.9 does not impose on a person in the position of the Applicant a positive obligation to notify the Department that she had in fact lodged statements in support of an application which she had since found to be misleading or inaccurate. It only captures conduct contained in statements made or lodged by her or so encouraged, which she knew were believed to be misleading or inaccurate at the time they were so made.
The Tribunal should observe that a failure to notify the Department after becoming aware that a document was false and/or forged would be conduct captured particularly by the provisions of clause 2.1 of the Code. It would be an example of failing to act in accordance with the law, the legitimate interests of her client, and deal with her client competently, diligently, and fairly.
Therefore, the Tribunal finds that the Applicant did not breach clause 2.9 of the Code.
(iv) Did the Applicant breach clause 2.9A of the Code?
This clause provides that the migration agent must not mislead or deceive the Authority, whether directly or by withholding relevant information.
This alleged breach of the Code of Conduct arises from the Applicant’s response to the first Section 308 Notice.[18] Amongst other things it sought, at question 8(b), if there was “any further information or details supplementary to this statement that you would like to provide to the authority”. It also asked for copies of “any correspondence engaged in with Howard Hu”.
[18] The first section 308 notice is document T13 of the T documents.
The Applicant strenuously denies consciously or intentionally misleading the Respondent Authority. When one examines the language used in this clause of the Code it is apparent that there is no need to establish an intention to mislead or deceive the Respondent. It is sufficient that it is established they have been misled or deceived regardless of intention.
The Applicant’s response to question 8(b) of the first Section 308 Notice was confined to matters relating to her dealings with or on behalf of First Financial. There was no reference to any of the other parties on whose behalf she had lodged documentation, including Agrison, Skysal, Star Combo and AOFTP. Details concerning each of these parties only emerged in response to the second and third Section 308 Notices. Agrison was disclosed in response to the second Section 308 Notice and Skysal, Star Combo and AOFTP were disclosed in response to the third Section 308 Notice.
The Applicant gave evidence that the reason she did not mention the other parties was that on reading the content of the first Section 308 Notice it only related to allegations made by the Department concerning First Financial. She also mentioned, which the Tribunal understands and accepts, that she had been visited by officers of the Australian Border Force who only discussed matters relating to First Financial. She reiterated that she had almost forgotten about the question of Agrison, and it did not leave a plausible imprint on her memory. It was put to her in cross-examination that she had deliberately withheld information from the Respondent, which she steadfastly denies. She said she had forgotten about Agrison until the second Section 308 Notice was served on her. The Tribunal accepts this evidence from the Applicant.
When one reads the contents of the first Section 308 Notice, it is not difficult to see how a reader in the position of the Applicant could have misconstrued what information it was seeking; particularly the two sentences that have been referred to about any further information or details and copies of any correspondence engaged in with Hu. It appeared to relate exclusively to the First Financial matters. At the commencement of the first Section 308 Notice “Complaints summary”, all the allegations articulated concern First Financial. It also included a copy of a statement of 9 January 2019 made by the Applicant to the Australian Border Force in relation to the First Financial applications. Under the heading “Documents required” five classes or categories of documents were sought of which four related exclusively to the First Financial matters. Indeed, the Respondent itself in paragraph 15 of its Statement of Facts, Issues and Contentions described the first Section 308 Notice as “setting out a complaint received regarding First Financial”.
It would have been very easy to have adopted language in the first Section 308 Notice in clear and unequivocal terms seeking further information and correspondence concerning all dealings with Hu. It did not do so.
However, it again should be borne in mind that the language used in clause 2.9A does not require any intention to mislead or deceive be established on the part of the person communicating with the Respondent. The language used in the first Section 308 Notice might not have been as clear and unequivocal as one might hope for. Regardless, the gravity of the investigation and the fraud that had been revealed with respect to First Financial, of which the Applicant was aware, would surely have prompted the recipient of the notice, at the very least, to have advised the Respondent Authority that there were other matters, further information and other correspondence in her possession relating to the other applications, and offered to produce it. Had the Applicant done so, no criticism of her conduct could have been levelled against her.
Therefore, notwithstanding the Applicant’s explanation, the Tribunal finds that her response to the first Section 308 Notice did mislead and deceive the Respondent, in breach of clause 2.9A of the Code.
(B) Integrity, Fitness and Propriety
The Respondent cited several passages from well-known authorities on the question of the meaning of a fit and proper person. They need not be reproduced for the purposes of these reasons. They were contained in Australian Broadcasting Tribunal v Bond,[19] and Shi v Migration Agents Registration Authority.[20] Fitness being referable to a person’s honesty, knowledge and ability.
[19] (1990) 170 CLR 321 at 388.
[20] (2008) 235 CLR 286.
The Respondent points to three matters that reflect upon the Applicant’s integrity, fitness and propriety. It is worthwhile repeating those in this consideration.

Firstly, she acted for clients without their knowledge or legal authority. It is contended that she did so not in the client’s best interests but based upon a potential business relationship with Hu. This does raise questions about the knowledge she has and her appreciation for both migration procedure and obligations under the Code.
Secondly, in the concept of integrity, the Applicant did not inform the Department when she realised the immigration fraud had been committed with respect to the First Financial applications. She simply withdrew as the authorised recipient without taking any further steps. She also did not inform the client that she was proposing to do this even though the applications were indeed fraudulent. The Respondent referred to a comment from Deputy President Forgie in Frugtniet and Migration Agents Registration Authority “while the focus of the registered migration agent will be much narrower than that of a legal practitioner, the same commitment to honesty is required of candour and frankness irrespective of self-interest and embarrassment”.[21]
[21] [2016] AATA 299 at [136].
The Respondent contends that the Tribunal should find that the Applicant was well aware that the First Financial, and perhaps other, application(s) was fraudulent by 19 September 2017; and that she consciously decided not to inform the Department of that fact.
The Applicant stated that she was stunned, and the rest of that day became a blur. She did not think to notify the Department. She just wanted nothing further to do with Hu. The Tribunal accepts this evidence from the Applicant. However, it does not reflect well upon her capacity to exercise professional judgement and does reflect negatively upon her knowledge and ability as a migration agent.
Even if on 19 September 2017 she was stunned and the rest of the day became a blur, one would have expected that at the very least by the next day, she would have had the opportunity to carefully reflect on the matter and recognise that it was essential the Department be notified that the applications were not authorised by the clients concerned, or the possibility that that was the case. She could have taken further steps to protect her position and that of the clients concerned. These steps could have included further attempts at telephoning the people concerned, including Rossi and Yayintas, and/or emailing them to get to understand the matter. It was a poor professional judgement call not to do so.
Similarly, the Respondent has contended that the Applicant at least initially failed to disclose the full extent of her dealings with Hu. It also argued that this was deliberate conduct attempting to minimise the exposure of her wrongdoing and avoid further scrutiny from the Authority. The Tribunal does not find that her conduct as such was deliberate or conscious. It was inadvertent. It was yet again another example of a poor professional judgement call. Nonetheless, as inadvertent as it was, it fell well short of the standard of conduct that one expects of a registered migration agent.
However, the breaches of the Code may be categorised, which have been outlined above, it must be repeated that her conduct fell well short of that expected of a migration agent’s skill, care and responsibility or knowledge and ability. It leads to the conclusion that she is not a fit and proper person to provide immigration assistance.
(C) The Correct or Preferable Sanction
The disciplinary powers conferred upon the decision maker by section 303 of the Act, it should be borne in mind, is primarily protection of the public; and not to be seen as a punishment of the Applicant.[22]
[22] Kraues v Migration Agents Registration Authority [2018] FCA 664.
In considering how to exercise the powers conferred upon the decision maker by section 303, the Respondent referred the Tribunal to a passage from the decision of Deputy President Forgie in Eckhardt and Migration Agents Registration Authority (“Eckhardt”)[23] which warrants repeating:
The gravity of any breaches of those obligations must be viewed against the expectations of the registration scheme generally. They must also be weighed against their practical consequences for individual clients and/or for the community. Whether they are isolated incidents or part of systemic operating failures of a registered migration agent or of his or her office will also be relevant. So too will any means of rectifying matters that led to the breach or breaches.
[23] [2020] AATA 4088 at [47].
The transactions concerned in this matter can be considered to be “isolated incidents” of the kind identified by Deputy President Forgie in Eckhardt. They were confined solely to the limited number of referrals that came from Hu. It is a relevant factor in deciding what sanction or sanctions to apply under the section.
Additionally, the Applicant points to a number of factors in her favour as follows:
(a)She has practised since 2009;
(b)There is no history of disciplinary action;
(c)There is the impact of her suspension on her financial position. She has not practised as a migration agent since the reviewable decision was made and it has had a substantial financial impact upon her. However, it should be noted that her practice as a migration agent was not her only source of income;
(d)She has produced six favourable character references, which the Tribunal has considered. The references were impressive and referred to her enduring qualities of integrity, professionalism and diligence;
(e)The adverse findings of this Tribunal will have an impact on her capacity to seek admission to practise in future as an Australian legal practitioner, should she complete her Doctor of Jurisprudence study which she has been undertaking at Deakin University. She will need to declare these findings to the Board of Examiners;
(f)The Tribunal is satisfied that the Applicant has gained an insight and understanding into her professional failings. Her evidence on this topic was credible and persuasive;
(g)She has shown contrition and remorse for her conduct. The Tribunal accepts her expressions of contrition and remorse that were given in evidence; and
(h)The cases concerned occurred approximately four years ago. Since that time, she has conducted herself appropriately and has learned from the experience. There have been no further complaints about the quality or standards of the services she has rendered as a migration agent since.
The Tribunal has taken the abovementioned factors into account. However, it considers that a substantial period of suspension is warranted in the circumstances. There was a significant lack of judgement on the part of the Applicant, to which she has readily admitted. It must be reiterated that the documents she lodged with the Department on behalf of First Financial were forgeries. On her own admission, they were part of a “blatant immigration fraud”. This lack of judgement goes to the heart of Australia’s immigration scheme. Such a scheme is dependent upon registered migration agents rendering their services with the utmost skill, care and diligence as required by the Code. Protection of the public demands nothing less.
The Tribunal does not consider that it is a necessary condition that the Applicant should be required to sit the “Capstone” assessment as was imposed by the reviewable decision. Such a condition is in effect requiring the Applicant to requalify as a migration agent. Practical skills and knowledge necessary to be a migration agent are well possessed by the Applicant. She contends, and it was not contested, that over the course of her career as a migration agent she has provided a high level of assistance to her clients. Her only mistakes were with respect to those matters which have been referred to in these reasons. The Tribunal considers that the Applicant’s shortcomings are addressed by the condition requiring her to complete 10 Continuing Professional Development points (as approved by the Respondent) covering professional standards and ethics for every 12 months the suspension is in force.
In reaching this conclusion, the Tribunal observes that this experience has been a wake-up call for the Applicant. The Tribunal is satisfied that the Applicant has learnt from the experience and will not make the same mistakes again. It is quite appropriate to observe that the experience has been devastating for her.
FURTHER EVIDENCE
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; 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.

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

.....[sgd]....................................................
Associate
Dated: 14 February 2022

Date of hearing: 1 September 2021

Applicant: Self-represented

Advocate for the Respondent:

Solicitor for the Respondent:

Jonathan Barrington

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