Liu and Migration Agents Registration Authority

[2004] AATA 1282

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1282

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/598

GENERAL ADMINISTRATIVE DIVISION

Re:         GUO ZHONG LIU

Applicant

And:MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             2 December 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

. . . . . . . . . . . . . . . . . . . . . . . .

Member

MIGRATION - migration agent - cancellation of registration - breach of Code of Conduct - whether fit and proper person

Migration Act 1958 ss 290, 309, 314

Re Feng and Migration Agents Registration Authority [2002] AATA 709
Re Griffiths and Migration Agents Registration Authority [2002] AATA 247

Re Hakaoro and Minister for Immigration and Multicultural Affairs (1998) 26 AAR 534

REASONS FOR DECISION

2 December 2004  G.D. Friedman, Member

1.      This is an application by Guo Zhong Liu (the applicant) for review of a decision of the Migration Agents Registration Authority (the respondent) dated 20 April 2004 to refuse the applicant’s Application for Repeat Registration as a migration agent, on the grounds that the applicant had not complied with the Code of Conduct as required under the Migration Act 1958 (the Act).

2.      At the hearing of this matter on 16 November 2004 the applicant represented himself, with the assistance of an interpreter in the Mandarin language, and Mr M. Brereton, solicitor with the Australian Government Solicitor, represented the respondent.

3.      The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T9), plus three exhibits (Exhibits A1 to A3) lodged by the applicant.

BACKGROUND

4.      The applicant was born on 1 November 1963 in China and completed a Master of Computer Science degree at Beijing University.  In 1995 he migrated to New Zealand where he worked as a computer programmer.  In December 2000 he arrived in Australia and completed the Migration Agents course at Victoria University of Technology.  In 2001 he became a registered migration agent and was employed by Express Education & Migration Centre (EEMC).  His registration was renewed in 2002. 

5.      On 3 June 2003 the applicant applied for re-registration as a migration agent.  On 18 September 2003 the respondent received information regarding the applicant’s conduct as a migration agent in relation to a number of applications for occupational trainee visas, on which the applicant was listed as the registered migration agent, during the period 14 February 2003 to 6 June 2003.  The applications were unsuccessful because the visa applicants did not meet the definition of occupational trainee.

6.      On 4 September 2003 officers from the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) interviewed the applicant in relation to the matter and he made a written statement. 

7. On 15 March 2004 the respondent sent the applicant a letter advising that it was proposing to refuse the application for re-registration, under s 309(1) of the Act, because he had failed to act in accordance with the law or with the legitimate interests of his clients, and had failed to demonstrate a sound working knowledge of the Act, regulations and other legislation.

8.      The respondent also claimed that one of the visa applicants was to be employed in the company where the applicant worked, which was a breach of the Code of Conduct as the applicant had accepted work for a client in a situation of demonstrated conflict of interest.  One of the applications was rejected by DIMIA because the visa applicant’s existing knowledge exceeded the knowledge to be gained from the proposed training.  The respondent found that the applicant had not acted competently, diligently and fairly with the client and had not acted in accordance with the law and the legitimate interests of the client in a matter where the client was barred from applying for other than certain prescribed visas because the client had a cancelled student visa. 

9.      On 14 April 2004 the applicant provided a submission in response to the letter. On 20 April 2004 the respondent decided that the applicant was not a fit and proper person to give immigration assistance, or a person of integrity, as the applicant had breached clauses 2.1(b), 2.1A, 2.3A, 2.19 and 2.21 of the Code of Conduct. On 20 April 2004, under s 290 of the Act, the respondent refused to reregister the applicant. On 18 May 2004 the applicant applied to the Tribunal for review of the decision.

10.     The issue before the Tribunal is whether the applicant is a fit and proper person to be registered as a migration agent.

EVIDENCE

11.     In a written statement dated 4 September 2003 (T7 p56) the applicant said that there were seven trainee visa applications handled by EEMC, but he only knew three of the applicants and signed their applications, although his signature was on a fourth.  The applicant stated that he was just an employee who had to do as his employer wished.  He said that he supervised the person who handled one of the applications, and the other six were prepared by his colleague, Mr Wei Chen, who did not report to him and who asked him to sign on Mr Chen’s behalf, as instructed by their employer.  He said that he knew that these arrangements didn’t meet migration agent conduct very well.  The applicant said that he had recorded all his actions in the relevant case files.

12.     In a statutory declaration dated 13 April 2004 (T9 p73) the applicant said that he was only aware of two of the applications, and had supervised another employee in the preparation of one, and  signed the other four applications on Mr Chen’s behalf, as instructed by their employer.  He stated that normally he would take responsibility for clients and would not sign anything that he did not know about.

13.     In oral evidence the applicant told the Tribunal that the principal of EEMC was not a registered migration agent, and had instructed him to sign applications prepared by other members of staff.  He said that he supervised non-qualified staff, and that one other migration agent was employed by the company.  He said that he was responsible for only three of the applications for occupational trainee visas, and emphasised that the success or failure of a visa application often depends on individual DIMIA case officers, rather than actions of the migration agent.

14.     In cross-examination the applicant agreed that he was aware that breaches of the Code of Conduct and the Act were occurring in the making of applications to DIMIA, but he said that he was required to follow his principal’s instructions or risk losing his job.  He also agreed that he made no attempt to inform DIMIA or the respondent of the breaches.     

15.      The applicant told the Tribunal that he had discussed his review application with his former employer and colleagues at EEMC and others who could speak on his behalf, but all had been too busy or unwilling to attend the hearing or provide written material in support.  

16.     In a written statement dated 16 July 204 (Exhibit A1) Ms G. Kam, of Worldwide Education & Migration Centre (formerly EEMC), said that in three of the applications for occupational visas, Mr Chen’s signature was on the form, not the applicant's.

CONSIDERATION OF THE ISSUES

17.     The relevant sections of the Act are:

290(1)     An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:

(a)the applicant is not a fit and proper person to give immigration assistance; or

(b)the applicant is not a person of integrity; or

…

(2)          In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:

(a)the extent of the applicant’s knowledge of migration procedure; and

…

(4)          To avoid doubt, this section applies to all applicants (not just first time applicants).

…

314(1)     The regulations may prescribe a Code of Conduct for migration agents.

(2)          A registered agent must conduct himself or herself in accordance with the prescribed Code of Conduct.

The Code of Conduct is contained in Schedule 2 to the Migration Agents Regulations 1998 (Statutory Rule Nº 53 of 1998) as at 1 July 2003.  The relevant clauses are:

2.1A migration agent must always:

(a)…

(b)deal with his or her client competently, diligently, fairly and without any conflict of interest that would affect the legitimate interests of the client.

2.1AA migration agent must not accept a person as a client if the agent would have any of the following conflicts of interest:

(a)the agent has had previous dealings with a person, or intends to assist the person, in the agent’s capacity as a marriage celebrant;

(b)the agent is, or intends to be, the employer, sponsor or nominator of the person in a visa application or cancellation review application;

(c)the agent is, or intends to be, involved with the person in a business activity that is relevant to the assessment of a visa application or cancellation review application;

(d)there is any other interest of the agent that would affect the legitimate interests of the client.

…

2.3AA migration agent’s professionalism should be reflected in the making of adequate arrangements to avoid financial loss to a client.  The Authority recommends the holding of adequate professional indemnity insurance as a suitable arrangement.

…

2.19Subject to a client’s instructions, a migration agent has a duty to provide sufficient relevant information to the Department to allow a full assessment of all the facts against the relevant criteria. For example, an agent should avoid the submission of applications under the Migration Act or Migration Regulations in a form that does not fully reflect the circumstances of the individual and prejudices the prospect of approval.

…

2.21A migration agent should not submit an application under the Migration Act of Migration Regulations without the specified accompanying documentation. For example, in a marriage case, threshold documentation would include a marriage certificate and evidence that the sponsor is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, without which assessment of the case could not proceed (unless the agent has a reasonable excuse or the client has requested the agent to act despite incomplete documentation).

18.     Mr Brereton submitted that the applicant’s evidence was vague and inconsistent with his written statements.  He said that in the statement of 4 September 2003 and in the statutory declaration dated 13 April 2004 the applicant had said that he knew other employees were preparing applications for him to sign, and that he did not know the substance of the applications.  However, the applicant later stated that his name and migration agent number were used in applications without his knowledge or permission.

19.     Mr Brereton referred to Re Griffiths and Migration Agents Registration Authority [2002] AATA 247 in which the Tribunal accepted that the object of disciplinary proceedings in relation to professional people is to protect the public and to maintain proper standards in the relevant profession and not to take action by way of punishment. The Tribunal stated (at para 28):

…The migration agent should therefore be person who has a good knowledge of the migration laws, is able to prepare applications competently and should be a person of such reputation and ability that officers of the relevant Department may proceed upon the footing that the applications lodged by the agent have been prepared honestly and competently.

Mr Brereton noted that the applicant admitted breaching the law and the Code of Conduct, but took no action to bring the matter before appropriate authorities.

20.     With regard to whether the applicant is a fit and proper person under the Act, Mr Brereton referred the Tribunal to Re Hakaoro and Minister for Immigration (1998) 26 AAR 534, in which the Tribunal stated (at para 32):

…In the context of the registration scheme, it is not enough, however, to be a person of honour, reliability, honesty and soundness of moral character in his or her life generally.  A person must be all those things and more.  He or she must be a person who has knowledge of migration procedure. Unless he or she has that knowledge, he or she cannot be relied upon to give competent migration assistance as that assistance is described in section 276.  Unless he or she has that knowledge, he or she cannot fulfil the functions and responsibilities of a migration agent.

He submitted that the applicant had not displayed reliability or competence.

21.     Mr Brereton said that in Re Feng and Migration Agents Registration Authority [2002] AATA 709 the Tribunal stated (at para 67):

…The role played by migration agents in the system is a matter of national interest and questions as to whether the person is a fit and proper person or a person of integrity to be registered as a migration agent are to be considered in the context of requiring a finding of probity on the part of the person in addition to honesty, knowledge and competence in performing the duties of such an agent.

He submitted that the applicant had not displayed probity, honesty, knowledge and competence.

22.     In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.  The Tribunal agrees with Mr Brereton that the applicant’s oral evidence was vague and was inconsistent with his written statement dated 4 September 2003 and his statutory declaration dated 13 April 2004.  With regard to the visa applications the Tribunal finds that the applicant signed some of the applications that were prepared by another person without satisfying himself that the applications were prepared correctly, or he knowingly permitted his name and migration agent number to be included on applications that he had not prepared.  The Tribunal does not accept the applicant’s evidence that he bears no responsibility for the applications prepared by other persons, or that the refusal of the applications was due to the particular DIMIA case officer who considered them.

23.     The Tribunal finds that some of the applications had little or no merit, and that in one application the visa applicant was not eligible to be granted the visa sought.  For these reasons the Tribunal finds that the applicant’s actions constituted a breach of clauses 2.1(b), 2.1A, 2.3A, 2.19 and 2.21 of the Code of Conduct.

24. In considering whether the applicant is a fit and proper person to be registered as a migration agent under s 290 of the Act, the Tribunal does not accept as a relevant factor the applicant’s claim that at all times he acted under the direction of his principal. The applicant was aware of his responsibilities as a migration agent and he failed to conduct himself appropriately. The applicant has not conceded that he has been at fault, and has shown no genuine remorse for his actions or the consequences to the visa applicants.

25.     The Tribunal takes into account that no material has been placed before it by persons other than the applicant in support of his application or to corroborate his version of events except for the written statement dated 16 July 204 (Exhibit A1) by Ms G. Kam.  In allowing unqualified persons to prepare visa applications, whether in his name or in another’s, the applicant failed to act appropriately.  On the applicant’s own evidence he was aware that he was committing breaches of the Code the Conduct and the Act, but at no time did he bring these matters to the attention of relevant authorities or seek to remedy the situation.

26.     On balance the Tribunal is satisfied that the applicant’s conduct fell short of that expected of a migration agent.  In all the circumstances, the Tribunal finds that the applicant did not display an adequate knowledge of migration procedure and was not able to be relied upon to give competent migration assistance.  He did not demonstrate honour, probity, honesty and reliability.  Applying the guidelines set out in Re Griffiths, Re Hakaoro and Re Feng, under s 209 of the Act the Tribunal finds that the applicant is not a fit and proper person to be registered as a migration agent, and his application does not succeed.   

DECISION

27.      The Tribunal affirms the decision under review.

I certify that the twenty-seven [27] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  16 November 2004

Date of decision:  2 December 2004
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr M. Brereton
Solicitor for respondent:              Australian Government Solicitor