Maarbani and Migration Agents Registration Authority
[2008] AATA 727
•20 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 727
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/913
GENERAL ADMINISTRATIVE DIVISION ) Re MOHAMMED MAARBANI Applicant
And
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Mr D Connolly AM, Member Date20 August 2008
PlaceSydney
Decision The decision under review is affirmed. ................[sgd]..............................
Mr D Connolly AM
Member
CATCHWORDS
MIGRATION – migration agent registration – cancellation of registration – fit and proper person to give migration assistance – person of integrity – breaches of MARA’s Code of Conduct – applicant not a person of integrity and not a fit and proper person to give migration assistance – decision under review affirmed
Migration Act 1958 – Sections 303, 308, 309, 313, 314, 347
Migration Agents Regulations 1998 – Clauses 2.1, 2.8, 2.9, 2.19, 2.21, 2.23, 3.2A, 5.1, 5.2, 5.4, 5.5, 6.1, 6.3, 7.1, 7.1A, 7.2
Re Peng and Department of Immigration [1998] AATA 12
Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558; [2002] FCA 93
Woods v Migration Agents Registration Authority (2004) 39 AAR 519; [2004] FCA 1622
Briginshaw v Briginshaw (1938) 60 CLR 336
REASONS FOR DECISION
20 August 2008 Mr D Connolly AM, Member BACKGROUND
1. The Applicant, Mr Mohammed Maarbani, applied to the Administrative Appeals Tribunal (“the Tribunal”) seeking a review of the decision made on 19 February 2007 by the Migration Agents Registration Authority (“MARA”) pursuant to s 303(1)(a) of the Migration Act 1958 (“the Act”), to cancel Mr Maarbani’s migration agent registration. Mara found that:
·pursuant to s 303(1)(h) of the Act, Mr Maarbani failed to comply with any, or all, of clauses 2.1, 2.8, 2.9, 2.19, 2.21, 2.23, 3.2A, 5.1, 5.2, 5.4, 5.5, 6.1, 6.3, 7.1, 7.1A, and 7.2 of the Code of Conduct for migration agents, as at 1 July 2005 (“the Code”), prescribed by the Migration Agents Regulations 1998, pursuant to s 314(1) of the Act;
·pursuant to s 303(1)(f) of the Act, Mr Maarbani was not a person of integrity or otherwise a fit and proper person to give migration assistance
2. Mr Maarbani was first registered as a migration agent under Part 3 of the Act on 18 September 1997 with the Registered Migration Agents Number 9793353.
3. On 1 June 2006 Mr Maarbani was cautioned by MARA for 12 months and until he completed private tuition in ethics, professional practice, record keeping and file management on the basis that MARA had found that Mr Maarbani had failed to properly supervise staff, failed to return client files and documents when requested by clients, failed to provide client files to the MARA when requested, failed to keep clients informed in writing and failed to maintain proper files.
4. Subsequently, MARA received 3 separate complaints relating to Mr Maarbani which were investigated. The result of that investigation was MARA’s decision of 19 February 2007.
ISSUES
5. The issues before the Tribunal are whether Mr Maarbani has failed to comply with the Code, and whether he is a person of integrity, and is otherwise a fit and proper person to give immigration assistance.
BREACHES TO THE CODE OF CONDUCT
6. The relevant clauses of the Code, as at 1 July 2005, are set out at Annexure A.
The first complaint
7. On 12 July 2006 MARA received a complaint against Mr Maarbani from Ms Jomana Ghemraoui (“Complainant A”) concerning allegations that she gave Mr Maarbani the application fee for a spouse visa on 4 April 2006 which was not paid to the Department of Immigration and Citizenship (“the Department”). She claimed that she had been advised by Mr Maarbani to place the fee in his wife’s bank account. Complainant A terminated Mr Maarbani’s services on 24 May 2006 and asked for her documents back. On 5 June 2006 she called Mr Maarbani and was told that her application could be picked up. She went to Mr Maarbani’s office on 6 June 2006 and was told that there had been an error with the receipt for the payment of the application fee, but the application was ready.
8. Complainant A claimed that by 21 June 2006 the visa application had been received in Beirut, but the application fee she had given Mr Maarbani had not been paid. She asked him why the fee had not been paid and was told that it had been paid to the Department, but that there had been a problem with the receipt and the payment had not been cancelled, so he was not willing to have two transactions on his credit card. She also stated that Mr Maarbani told her that the payment could not be done over the phone.
9. Complainant A said that On 23 June 2006 she paid the application fee over the phone using her own credit card. On 5 July 2006 Mr Maarbani refunded her the money she had paid for the application fee and $250 of his professional fees.
10. Mr Maarbani was notified by MARA of the first complaint pursuant to s 308(1) (c) of the Act, by letter dated 1 August 2006. He was requested to provide a written response by 5 September 2006 and produce the visa applicant’s file. In his response, received on 7 September 2006, Mr Maarbani stated “there are some points which are correct, and, some which are totally incorrect or misunderstood”. He stated that the “remaining payment of the application fee had been deposited into my wife’s account” and that “my wife was formerly my business partner”. In regard to the non-payment of the application fee, he did not dispute that this had not occurred and stated that it was as a result of a mistake on his part. He thought that it had been paid, but the payment made was for another client. Mr Maarbani admitted that he was unable to pay the fee as his credit card had been “blocked” and he had placed the money given to him in April 2006 for the application fee into his credit card account and he did not refund Complainant A the money until 5 July 2006.
11. When MARA published the complaint to Mr Maarbani he was also requested to provide certain audit documents by 5 September 2006, namely:
·the original of the file of Hicham Kamel Ghazzaoui;
·a copy of bank statements for his clients’ account for the past 12 months;
·a receipt for a subscription to either Legend.com or LexisNexis Australian Immigration Law including PAMS and MSIs;
·a copy of his standard contract or service agreement;
·a copy of records for the past 2 months demonstrating that he provided his clients with a copy of the Information on the Regulation of the Migration Advice Profession (IRMAP).
12. None of the above documents were supplied to MARA by the due date and Mr Maarbani was sent a notice pursuant to s 309(2) of the Act on 19 September 2006, alerting him to a potential breach of clause 6.3 of the Code. A response was due on 24 October 2006 and the documents were received on 25 October 2006.
13. Mr Maarbani provided bank statements. For the period 20 October 2005 – 30 January 2006 the statement provided was for a ‘Premium Business Account’. For the period 31 January 2006 - 2 February 2006 Mr Maarbani provided a bank statement for a ‘Streamline Account’. For the period 30 January 2006 - 7 March 2006 he provided a statement for a ‘Cheque Account’. For the period 8 March – 19 June 2006 he provided statements for an ‘Overdraft Cheque Account’. For the period 20 June 2006 - 29 September 2006 he provided statements for a ‘Streamline Unlimited Account’. All of these statements indicated very little, if any, financial activity, and the Streamline Unlimited Account was $10,994.29 in debt on 29 September 2006.
14. Mr Maarbani stated in response to the s 309(2) notice that he had arranged a temporary overdraft with his bank, and that this account was to be closed soon. A new account was to be re-opened with another bank, and Mr Maarbani would use that account “under strict code instructions”. He claimed that the account had gone into debt balance to refund client fees and to pay the application fees for his clients. Mr Maarbani further stated that the payment of application fees for his clients were paid directly into “our” credit card account. Mr Maarbani claimed that once the fees are processed from the credit card account, he generally charged fees progressively and that application fees were debited from the credit card account.
15. None of the bank statements provided to MARA indicated that the words ‘clients’ account’ were in the titles.
16. Mr Maarbani also provided MARA with a copy of MARA’s complaints brochure, not with records that he had provided copies of IRMAP to his clients in the two months prior to the date of the decision, as requested by MARA.
17. Due to Mr Maarbani’s failure to comply with MARA’s request for documents by a specific date, MARA found on 30 October 2006 that Mr Maarbani had breached clause 6.3 of the Code. As the documents were ultimately provided, no further action was taken, but Mr Maarbani was put on notice that this breach may be taken into account in future deliberations.
18. In an interview with MARA Mr Maarbani agreed that Complainant A had paid the application fee to him and that he had not paid it to the Department. He claimed that he had offered her a cheque which she did not accept.
19. Pursuant to s 309(2) of the Act, MARA wrote to Mr Maarbani on 15 December 2006 advising him that it was considering cautioning him, or cancelling or suspending his registration as a migration agent. In his response Mr Maarbani corrected his earlier statement that the remaining part of the application fee was deposited in his wife’s account, and claimed that he meant to state that it was the remaining part of his professional fee which was deposited into that account. He apologised for sending the documents late, claiming that he had been in hospital for two weeks and a support staff member was also absent at that time. He admitted that he had received the application fee from the complainant and that she had paid the application fee to the Department which resulted in him having to refund it to her. He accepted that this had not occurred until 5 July 2006, but claimed that it was not a breach of the Code because “this was not done deliberately”. He further admitted that there was no contract on the relevant file as Mr Ghazzaoui “did not want me to represent him. I only charged him to complete the visa applications and relevant forms.”
20. MARA claims that Mr Maarbani misled Complainant A in relation to the payment of the application fee for her husband’s visa application and only admitted that he had not paid the fee when Complainant A was advised by the Department that the fee had not been forwarded by him. Mr Maarbani also gave Complainant A misleading information, claiming that he could not pay the fee over the telephone, nor could he pay using his credit card because it was “blocked”.
21. MARA further claimed that:
·Mr Maarbani failed to provide the documents requested by MARA within the specified time and only after a s 309(1) notice had been sent and over three months had elapsed since the date of the original request.
·Mr Maarbani failed to keep money received from complainant A in his clients’ account until the disbursement had been paid as he was unable to provide her with a refund for a considerable time. If the account had been operated in accordance with the Code this would not have occurred.
·Mr Maarbani failed to confirm Complainant A’s instructions or the visa applicant’s instructions in writing. Under the Code Mr Maarbani is required to confirm client’s instructions in writing when providing migration assistance. MARA contended that Mr Maarbani’s claim that he failed to provide a contract because the visa applicant didn’t want him to represent him does not make sense.
·The bank statements provided to MARA did not have the words ‘clients’ account’ in the title, nor was there evidence that the accounts had been used as a clients’ account or that any ‘clients’ accounts’ were maintained by Mr Maarbani.
·According to the Code, an agent’s clients’ account should not be in debit.
22. MARA claimed that no proper explanation was provided as to why the accounts provided were in debit. Money should only be transferred out of the account when work has been performed and an invoice issued or disbursements have been paid. There is no evidence that any funds were placed in the clients’ account in the twelve month period covered by the bank statements. There were invoices on the clients’ files which indicated that Mr Maarbani accepted fees up front. MARA concluded that Mr Maarbani was not operating a clients’ account in accordance with the Code.
23. MARA further contended that Mr Maarbani had not taken reasonable steps to maintain the reputation and integrity of the migration advice profession by his failure in not paying the application fee when he advised Complainant A that he had done so, and should have been able to refund the money immediately when she paid the fee herself to the Department.
The Second Complaint
24. On 3 October 2006 the Migration Review Tribunal (MRT) wrote to MARA alleging that Mr Maarbani had misinformed his clients and failed to pay application fees on their behalf despite having been paid by his clients. Consequently, their applications to the MRT were invalid and ineligible for review. The MRT provided information in respect of four applicants. Messrs Abboud, El-Azzaz, Lababidi and Adriaan. It was alleged that Messrs Abboud and Adriaan had paid application fees to Mr Maarbani, who failed to pass them on to the MRT; they had told MARA that they were not aware that he had made an application for a fee waiver on their behalf.
25. Two other matters, concerning Messrs El-Azzaz and Lababidi, had been dismissed by the MRT for want of jurisdiction, as the applications for review had been lodged out of time. However, although no application fees had been paid in those cases, fee waiver applications had been made on behalf of those clients by Mr Maarbani.
26. On 26 October 2006, pursuant to s 308(1)(c) of the Act, MARA wrote to Mr Maarbani requesting him to provide the client files relating to his four clients referred to in the MRT complaint.
-- Mr Adriaan
27. On 15 December 2006 MARA advised Mr Maarbani by letter that an analysis of his clients’ files had revealed that, in relation to Mr Adriaan, he had paid a $1,400 application fee to the MRT on 9 June 2006. The application for review had been lodged on 13 June 2006 without the application fee. An application for a fee waiver dated 6 July 2006 was submitted in relation to a second review application. Mr Maarbani had written on behalf of the client that he was short of funds and would pay the application fee as soon as possible. Mr Adriaan had advised MARA that he did not instruct Mr Maarbani to lodge this fee waiver application.
28. The Tribunal noted that the fee waiver application form contains a warning that a false or misleading statement constitutes an offence under the Act. The form also states that the fee waiver application is made on the basis that the payment of the application fee will cause, or is likely to cause, severe financial hardship.
29. The client’s file contained no evidence that Mr Maarbani had been instructed to make a fee waiver application, or that Mr Maarbani was instructed not to pay the fee, as claimed by Mr Maarbani at his interview.
30. The MRT’s decision disclosed that no application fee was paid in relation to Mr Adriaan for the first review application. Although credit card details had been provided by Mr Maarbani to pay the fee, the credit card had been declined on 14 June 2006. Mr Maarbani was advised of this and he advised the MRT that he would make the payment, but no payment was received. Consequently, Mr Adriaan’s application was dismissed by the MRT because the application fee had not been paid within the time limit for lodging the review application and no fee waiver application had been made.
31. Mr Maarbani, in his response to the s 309(2) notice, submitted that he had acted in accordance with the verbal instructions of his client. However, Mr Adriaan stated in his complaint to MARA that he had provided the application fee to his agent in relation to the review on the cancellation decision (being the first review application) and that he was advised that it had been paid. He further alleged that, in relation to the second review application to the MRT, Mr Maarbani had requested a fee waiver without instructions. There is nothing on the client’s file to support Mr Maarbani’s assertion that he was acting on written or verbal instructions.
-- Mr Abboud
32. A fee waiver application was made on behalf of Mr Abboud. However, in conversation with MRT staff, his new agent had advised the MRT that his client was unaware that the fee had not been paid to the MRT, as he had paid the fee to Mr Maarbani. Furthermore, he was not aware that a fee waiver application had been made on his behalf. There is nothing on the client’s file to support Mr Maarbani’s claim that he was acting upon verbal instructions. The MRT subsequently wrote to Mr Maarbani, advising him that the fee waiver application had been unsuccessful and that the fee needed to be paid. Mr Maarbani replied that he needed further time to pay and that the payment would be made “once payments are received”. Despite Mr Maarbani having received that fee from Mr Abboud, no fee was paid to the MRT and, consequently, the application for review was deemed to be invalid.
-- Mr El-Azzaz
33. Mr Maarbani lodged an application for review to the MRT on behalf of Mr El-Azzaz and he applied for a fee waiver at the same time. The application for a fee waiver was refused and Mr Maarbani was asked to pay the application fee by 17 February 2006. The MRT found that the application had been lodged out of time and thus invalid. The history of the fee waiver application was set out in the MRT’s decision. Mr Maarbani made two requests for extension of time to pay and told MRT officers that payment would be made, first by credit card and then by cheque. However, as at the date of the MRT decision no payment had been received. Mr Maarbani confirmed with the MRT that payment of the application fee had been received by him by 1 March 2006 but he appeared to be representing that he had not received it before that date. The client’s file disclosed that he had paid the application fee by 5 December 2005, and that this amount was refunded by Mr Maarbani on 24 July 2006. There is nothing on the file to support Mr Maarbani’s assertion that he was instructed to lodge a fee waiver request with the MRT because his client was considering returning to Lebanon and lodging a spouse application there.
-- Mr Lababidi
34. The MRT decision discloses that a fee waiver application had been made at the same time as Mr Lababidi’s application for review was lodged. It was ultimately deemed invalid as it was not filed within time. The fee waiver application was considered and rejected and a request for payment of the fee was sent by the MRT to Mr Maarbani on 30 January 2006. Mr Maarbani contacted the MRT after the date for payment had passed, requesting further time to provide documents to demonstrate why his client could not pay the fee. A statutory declaration by the client was lodged by Mr Maarbani, but the refusal decision was maintained and Mr Maarbani was advised to pay the fee by 11 April 2006. According to the MRT decision dated 19 May 2006 no fee was ever paid.
35. While it would appear that Mr Lababidi was aware that a fee waiver application had been made on his behalf in light of the statutory declaration signed by him, there is nothing on the client’s file to support Mr Maarbani’s assertion that the application fee was not paid to the MRT because the client did not wish to proceed with the application.
36. When Mr Maarbani lodged applications for fee waivers in the names of Mr Adriaan, Mr Abboud and Mr El-Azzaz, he failed to supply any supporting documentation or provide sufficient information upon which the applications could be assessed. On the fee waiver application form there is a statement:
You must attach the following documentary evidence:
You and your partner’s most recent income tax assessment notices;
bank statements for the past six months for all accounts operated by you and your partner;
2 current payslips or payment statement(s) from Centrelink;
credit card statements for the past 6 months;
evidence of rent paid and any expenses beyond regular living expenses.
You may attach any other evidence that you believe is relevant to your fee waiver application and attach additional statements or submissions.
37. In relation to the application lodged on behalf of Mr Adriaan for a fee waiver, Mr Maarbani failed to provide any details in relation to his assets, providing only a total amount for his fortnightly costs with no breakdown of expenses and only an estimate of his fortnightly income and no supporting documentation.
38. Mr Maarbani explained that “the documentation for fee waiver were not submitted, as they were going to be lodged at a later date. If the documentation was lodged it did not mean that the fee waiver would be granted. The instruction from my clients were to lodge the application and documentation would be provided later” (sic). However, there is nothing on the relevant client file to support this assertion.
39. Mr Maarbani also included incorrect information in the fee waiver applications for Mr El-Azzaz and Mr Adriaan. It was stated that Mr El-Azzaz had paid Mr Maarbani $500, but the receipt on file shows an amount of $1,400. In relation to Mr Adriaan, he paid Mr Maarbani $2,900, but the fee waiver application states that he paid Mr Maarbani only $1,000.
40. MARA concluded that Mr Maarbani made false, misleading and inaccurate statements in support of fee waiver applications under the Code. He accepted money for application fees from clients, but failed to pay the fees to the MRT and falsely represented his clients as being unable to pay the application fee and falsely represented how much they had paid him for his services.
41. There is no evidence before the Tribunal which supports Mr Maarbani’s claims that he was acting upon instructions, while his clients have claimed that they were unaware that fee waiver requests had been made on their behalf. The client files produced in response to the MRT complaint did not contain file notes of conversations with clients or their instructions, although Mr Maarbani asserted to the Tribunal that he acted upon verbal instructions. Furthermore, there is nothing on the files to demonstrate that Mr Maarbani provided a statement of services to his clients. When the relevant Clause 5.5 of the Code was brought to his attention, Mr Maarbani stated that he did not believe he had breached this clause as “payments received were for application fees, or part payment of professional fees.” This does not address his failure to provide a statement of services to his clients.
The Third Complaint
42. In addition to MARA receiving a complaint from the MRT in relation to Mr Maarbani’s dealings with Mr Adriaan and the three other clients, MARA also received a separate complaint from Mr Adriaan, claiming that he had engaged Mr Maarbani to lodge an application at the MRT. He stated that he instructed Mr Maarbani to lodge an application and pay the fee, which would have entitled him to a bridging visa for the period of time required to have his application decided.
43. Mr Adriaan stated that Mr Maarbani had advised him that he had paid the fee to the MRT. Mr Adriaan subsequently received a letter from the MRT indicating that Mr Maarbani had applied for a fee waiver on his behalf. Mr Adriaan asserted that Mr Maarbani was not instructed to do this and, furthermore, Mr Maarbani had not advised him that he had applied for a fee waiver on his behalf. Mr Adriaan provided a fee invoice indicating that he had paid the $1,400 application fee on 9 June 2006 at the same time as he had paid Mr Maarbani’s professional fees. The application was lodged on his behalf with the MRT on 13 June 2006, and the matter was finalised and deemed invalid as no application fee was paid. The MRT’s decision record indicates that Mr Maarbani’s credit card details were submitted with the application, but the transaction was declined.
44. Mr Maarbani lodged another application for Mr Adriaan with the MRT on 7 July 2006, together with a further application for a fee waiver on his behalf. Mr Adriaan stated that he was told by Mr Maarbani that the first application was going to be withdrawn and that he had applied for a fee waiver with the second application so that Mr Maarbani would not be billed twice. When Mr Adriaan contacted the MRT he was advised that the first application had not been assessed as the fee had not been received, despite his having already paid his agent $1,400 for the application fee. Mr Adriaan finally paid the fee himself for the second application and terminated Mr Maarbani’s services on 29 September 2006. Mr Adriaan requested a refund of the application fee and the professional fee. As at the date of the complaint, no refund had been received. Mr Maarbani provided a cheque for $1,400 which was dishonoured when banked.
45. In his written response, Mr Maarbani confirmed that fees totalling $2,900 were paid by Mr Adriaan, of which $1,400 were for an application fee. Mr Maarbani stated that the fee was not paid due to a problem with his credit card. He acknowledged that the failure to pay the fee on time would result in the application being found invalid by the MRT. He stated that he informed the client of the situation and lodged a second application together with a fee waiver request on instructions received over the telephone. He stated that the client decided to pay the application fee for the second application and he gave the client a refund cheque, but requested that it not be deposited until Mr Maarbani received confirmation from the MRT that the first application had been withdrawn. He acknowledged that the cheque had been dishonoured but claimed that this was because the client had not waited as requested before depositing the cheque.
46. The client’s file contains no material which supports Mr Maarbani’s assertions. There is no file note regarding a conversation about lodging a fee waiver application and no material supporting the claim that Mr Maarbani was arranging to withdraw the first application. There is a letter on file written by Mr Maarbani, and apparently signed by the client, but no evidence that these instructions were communicated to the MRT. There are no file notes or any other written advice which Mr Maarbani states were given concerning withdrawing from the first application and pursuing a second application.
47. The fee waiver form on the client’s file is not signed by the client but written by Mr Maarbani. It contains the statement: “I am currently short of funds. I will pay the application fee, as soon as possible”. On the fee waiver form it states:
I declare that all the information provided by me in this form is true and that I can verify the information with original documents. I seek a waiver of the review application fee on the grounds that the payment of the fee has caused me, or is likely to cause me, severe financial hardship.
This is followed by a warning that it was an offence under s 234(1)(b) of the Act to make a false or misleading statement which could attract imprisonment of up to 10 years or a substantial fine or both. Mr Maarbani had written Mr Adriaan’s name under this declaration on the waiver application form.
48. In addition to his complaint to MARA, Mr Adriaan also lodged an application with the Consumer Trader and Tenancy Tribunal against Mr Maarbani which was successful. Mr Maarbani was ordered to refund the total fees paid ($2,900).
Mr Maarbani’s evidence
49. On 6 September 2007 Mr Maarbani provided the Tribunal with a statement of facts and contentions. Mr Maarbani contended that he met the test of fitness and proprietary. He accepted responsibility for his actions and endorsed the need to maintain the integrity of the migration agent profession. He did not accept that he “would be regarded as disgraceful or dishonourable by his professional colleagues of good repute and competency”. He sincerely regretted the way in which he handled the cases of the clients who lodged complaints against him. He did not intend to harm or misrepresent his clients; consequently, he did not believe that his actions were disgraceful or dishonourable. He wrote: “I am stating that I was wrong in the way I had acted”, but he asserted that his actions in some cases, were caused as a result of his financial problems or because his clients were dishonest to him as some clients had not paid his professional fees.
50. He stated that in future he would open another “client account” to be compliant with the Code. He accepted that his previous practice was not correct and claimed that the bank account which had a debit balance had been closed.
51. Mr Maarbani denied that he had failed to previously accept responsibility for the state of his financial affairs. He believed that none of his clients had been financially disadvantaged as some had been deemed ineligible for review by the MRT. He claimed that:
·Regarding Mr El-Azzaz – refund of application fee had been finalised. He lodged an offshore spouse application and has since migrated back to Australia;
·Regarding Mr Adriaan – application for review did not proceed, refund delayed as a result of Mr Maarbani’s financial problems;
·Regarding Mr Abboud - application fee returned to him. His spouse relationship broke down and his application for review would not have succeeded even if the application had been deemed valid.
52. Mr Maarbani contended that if sufficient funds were injected into his business he would be able to properly manage it. He had been an agent for 10 years and there were no complaints for a period of 5 years, when his financial affairs were satisfactory. The cancellation of his registration has had an adverse effect on his income and livelihood. He is married with three dependent children and he loved his work.
53. Mr Maarbani maintained that it is incorrect to state that the fee waiver requests lodged with MARA were “applications”. Consequently, Mr Maarbani did not believe that he breached the clauses of the Code relating to this issue.
54. He claimed that it was arguable that he had developed a “pattern of behaviour” relating to the lodgement of fee waiver requests, as the circumstances in each case were different. He agreed that the fee waivers were lodged without his clients’ consents in writing. But he claimed that he advised them individually before he lodged the requests.
55. At the hearing, Mr Maarbani stated that he closed his trust account when his registration was cancelled. He said that there was another general account for expenses. He claimed that he had asked his bank to put the words “Clients’ Account” on the cheque book. The Tribunal found no reference to this terminology on the bank statements provided as evidence.
56. The Tribunal asked Mr Maarbani whether was he aware that this arrangement was not the same as a trust account. He responded by noting that this had been previously raised by MARA before the AAT in 2003, when a stay was granted on the basis that he would operate proper clients’ accounts in future. The Tribunal further noted that later, in 2006, MARA raised a number of ethical issues, including failing to keep proper client files and to keep clients informed in writing about the progress of their applications, as well as an issue about failure to properly supervise staff. This resulted in a caution being issued to Mr Maarbani on 1 June 2006.
57. The Respondent told the Tribunal that within two months after issuing the caution there were new complaints against Mr Maarbani: on 12 July 2006, 5 October 2006 and 16 November 2006. Mr Maarbani acknowledged his failures but claimed that the new claims against him had sapped his morale and he had failed to meet his earlier undertakings.
58. Mr Maarbani confirmed that there were no written instructions between Complainant A and himself. When the Code’s instructions on written confirmation were read to him, he replied “Yes, I am aware of that.”
59. Mr Maarbani contended that his client was Mr Ghazzaoui, who was the visa applicant, not his wife, Mrs Jomana Ghemraoui (Complainant A), who made the complaint to MARA after her husband returned to Lebanon. Mr Maarbani confirmed that he had taken the application fee in April 2006 and a deposit on his professional fee as Mr Ghazzaoui had said that he would sign the agreement but he failed to do so before leaving Australia.
60. Complainant A took over communications with Mr Maarbani on behalf of her husband around May 2006. She was told by Mr Maarbani that her husband’s visa application forms had been completed for lodgement with the Department. She agreed to pay the application fee and professional costs and asked for a receipt. On 24 May 2006 Complainant A by letter asked that her husband’s visa application be withdrawn as she couldn’t pay the full account of $1,750 to Mr Maarbani for his charges and professional fees and wished to terminate his services. Mr Maarbani told the Tribunal that in April 2006 he had explained to Mr Ghazzaoui and Complainant A that as her husband had a record of previous applications, including a protection claim, he may have to pass a character test under s 501 of the Act, and that he did not know what his fees would be in advance. Mr Maarbani disputed Complainant A’s claim that he charged her undisclosed fees and she had claimed a refund. He asserted that for two years Complainant A’s husband had not been charged “one cent.”
61. Mr Maarbani confirmed to the Tribunal that he had not put the application and professional fee monies in his account but into the account of his wife because the account which he used for his clients was in debit and he was facing financial problems at the time. (In addition to the 4 bank accounts mentioned above in para 13, there was also a joint account with his wife which was closed in January 2006 and he was subjected to a bank overdraft limit to cover a client refund of $5,000). Mr Maarbani stated that he arranged for application fees from clients to be placed in an American Express Account from which he then paid the fees to the Department. He conceded that this was not a Trust Account and that it “may be seen” to breach the Code, but he claimed that he did not deliberately misuse people’s money and was remorseful about what he had done.
62. Mr Maarbani accepted that Complainant A had on 20 April 2006 visited his office and paid him $750 in cash. He told her that the fee would be $1,750. She could not pay the full amount and up to that point had paid him only $1,250. On 24 May 2006 she instructed him to terminate his services. Mr Maarbani stated that in total he had received from Complainant A a professional fee of $1,250 and an application fee of $1,305.
63. MARA contended that Mr Maarbani misled Complainant A in relation to the payment of the visa application fee to the Department. Mr Maarbani admitted to the Tribunal that while he had made a mistake, he claimed that Complainant A had volunteered to pay the fee to the Department even though she had already paid him. He denied having forced her to pay the fee as she had asserted, and that when she had asked for the money back a repayment was made over two weeks. Mr Maarbani said that he had misled Complainant A in regard to the payment of the application fee because of his financial problems at the time.
64. The Tribunal noted Mr Maarbani’s claim that he did not regard Complainant A as his client, as she was not the visa applicant. However, the Tribunal observed that she did attend his office in the company of her husband and both were providing information and instructions in relation to Mr Ghazzaoui’s visa application. At the very least, she was her husband’s agent and had a legitimate interest in the outcome, as she was his official visa sponsor and, after he returned to Lebanon, she was the sole conduit for instructions and payments to Mr Maarbani, who provided her in return with disinformation in regard to payments not made but allegedly made, and she ended up having to pay the Department an application fee which she had already paid Mr Maarbani.
65. With regards to failing to provide MARA with relevant documents, Mr Maarbani claimed that he had met MARA’s requests subject to the following:
·Mr Maarbani claimed that he was unwell when the request was received and it was correct that he failed to provide the information on time because there was an issue with the bank statements which he did not have in his possession. He also claimed that he was in hospital for two weeks and a staff member was also absent at the time. No medical evidence was submitted.
·Mr Maarbani claimed that he had sent his clients a copy of the IRMAP brochure with his contract. He also confirmed that he had been a migration agent for the past 9 years and had always sent the same brochure. He was not aware that there was another document described as a booklet which he was supposed to send clients. The Tribunal was informed by the Respondent that the booklet had been in use since October 2002.
·Mr Maarbani told the Tribunal that he had met MARA’s requirements in having a copy of the Code displayed on the wall of his office and always provided clients with a copy when the contract was signed.
66. Mr Maarbani confirmed to the Tribunal that he was not operating his clients’ accounts in accordance with the Code and that he did not have a proper account established specifically for the collection and safe keeping of his clients’ funds. There was no trust account in use at the time of the complaints, although previously he had always operated a trust account. Mr Maarbani changed his system in 2002, when he began using a credit card account and clients’ fees were placed in that account. He was aware that MARA had previously raised this issue with him in 2003, and he made a subsequent appeal to the AAT for a stay application, which was granted on the basis that he would operate proper clients’ accounts in future.
67. Mr Maarbani raised before the Tribunal the issue as to whether these were applications under the Migration Act. The Respondent claimed that the application for a fee waiver was an application as part of the application for review and thus was provided for under the Act and the Code, which refers to the requirement that certain information be provided in support of any application under the Act or Code.
68. The MRT had identified four matters in relation to review visa applications lodged by Mr Maarbani for Messrs Adriaan, El-Azzaz, Aboud and Lababidi, where a concern was raised that applications for fee waiver had been made and, although unsuccessful, no fee had been paid, which rendered the visa applications invalid.
69. The Tribunal noted that Mr Maarbani had lodged all these applications with fee waiver requests, although he claimed in his defence that a request was not looked at in law as the same as an application because the MRT has the right to accept or reject a request and if the latter, then the MRT will allow time for the payment of the application fee.
70. Mr Maarbani disagreed with the claim in the Respondent’s statement of facts and contentions (para 47) that in the case of Mr Lababidi, “the MRT decision discloses that a fee waiver application had been made at the time his application for review was lodged. This application was ultimately deemed to be invalid as it was not filed within the time. However, the fee waive of application was considered and rejected and a request for payment of application fee sent on 30 January 2006”. According to Mr Maarbani, Mr Lababidi was in hardship at the time of application living in a Lebanese refuge and unable to find the money. He was charged no professional fees as a result, and Mr Maarbani believed that he had acted correctly by his former client when he made the request on his behalf.
71. In the case of Mr Adriaan a receipt was issued by Mr Maarbani indicating that $1,400 had been paid by his client as an application fee to the MRT, and professional fees of $1,500, making a total of $2,900. It was contended by the Respondent that the application contained very little information in support of fee relief such as details on partner assets if any, very brief details on financial assets of $500, and a reference to a payment to a migration agent of $1,000, when the Tribunal understood that the payment to Mr Maarbani was for $1,500. No explanation was offered.
72. The Tribunal noted that in the MRT’s referral, Mr Adriaan alleged that he had paid the $1,400 fee to Mr Maarbani. Mr Adriaan also indicated that he was told by Mr Maarbani that he had withdrawn his application and that was why he was getting a refund of the $1,400 fee. The evidence indicates that Mr Adriaan’s application was lodged on 13 June 2006 and credit card details were provided for the payment of the review fee. The credit card was declined on 14 June 2006. The last day within the prescribed period that the visa applicant could have made the application was 13 June 2006 and the prescribed application fee was not paid by that date, nor had the visa applicant or Mr Maarbani sought a waiver of the fee.
73. Mr Maarbani told the Tribunal that the fee application was in the client’s file and that no fee application was lodged with the MRT because there were two applications before the MRT at the same time. The first was a visa cancellation and the second a student visa refusal. Mr Maarbani told the Tribunal that he had only two working days prior to cancellation for the first visa and approximately two weeks before the time expired for the visa refusal application. Mr Adriaan had told him that the Department had cancelled his visa and before cancellation he had tried to lodge a further application for a student visa which was refused. In this context, Mr Maarbani had to decide whether to seek review of the visa cancellation or review the refusal of the student visa application. He recommended to his client that they go for the review of the visa cancellation. For this service he took in cash the visa application fee of $1,400 and $1,500 for his professional fee. Mr Maarbani stated that he believed his client came to his office late on 9 June to pay the money and he sent the application, but was unable to get to his bank before it closed his account. As the next day was a public holiday, the application would have been invalid. The only alternative was to send the application by fax and to pay by credit card, but as the funds were not in the account the fee could not be taken from the credit card account. Mr Maarbani agreed with the previous evidence that the MRT had contacted him on 15 June, but by then the application was already invalid. He said that he contacted Mr Adriaan on 15 June and explained the situation and they agreed to lodge a review for the visa cancellation. The second application was then lodged, but Mr Maarbani couldn’t recall why they had not lodged a fee. He later informed Mr Adriaan that his refund had been delayed as a result of Mr Maarbani’s financial problems, but would be finalised soon. Mr Maarbani told the Tribunal that the money was still owing.
74. The Tribunal noted that on the MRT file there was a reference to a telephone conversation with Mr Maarbani on 15 June 2006, advising him that the credit card had been declined and no fee paid. He asked if he could pay the fee at that time and was told that the MRT would accept it. No subsequent payment was made and Mr Adriaan’s application was finalised on 18 September 2006 as an invalid application.
75. Mr Maarbani told the Tribunal that Mr Adriaan was aware on 15 June that the application for cancellation was not proceeding as they were out of time. He claimed that his client then came to him and requested a refund of the $1,400 and he issued a cheque (which was dishonoured). He claimed that the fee waiver was lodged on Mr Adriaan’s instructions, although he conceded that it had not been given in writing.
76. In his letter of complaint Mr Adriaan stated that he paid $2,900 to Mr Maarbani and that it was his understanding that there would be an immediate lodgement for an MRT review. The fee was not paid and he was required to attend the Department every two weeks to renew his temporary visa. He claimed that Mr Maarbani had told him that he had paid the MRT fee, but the MRT stated that it was never paid and ultimately he received the rejection letter.
77. According to Mr Adriaan’s letter of complaint, after a month of non-payment he received a letter from the MRT stating that his agent had applied for a fee waiver for his application. Mr Maarbani informed him that he had decided to withdraw the first application and switch applications from an appeal for reviewing a visa cancellation to an appeal for refusal of a new visa, and that he applied for a fee waiver because he was afraid he may be billed twice. Mr Adriaan claimed that the application for a fee waiver was not communicated to him until the MRT informed him. Two month later, Mr Adriaan stated that he went to the MRT and paid the application fee. Mr Maarbani promised to refund the original $1,400 and Mr Adriaan received a bridging visa in one day through his own efforts. The refund cheque was received and dishonoured when presented for payment.
78. Mr Adriaan stated that he was told by the MRT that the first visa application had been refused as there were no funds in Mr Maarbani’s account and that the MRT had never received an application for withdrawal, so the application was rejected. Mr Maarbani told the Tribunal that he had made a partial refund to Mr Adriaan but that there was still a shortfall of $700 to be repaid.
79. The Tribunal is satisfied that there were two applications made to the MRT on behalf of Mr Adriaan. In regard to the first application, no fees were paid and no waiver application made. Consequently, the application was rejected. A second application was made and a fee waiver application lodged, which was also rejected, despite the fact that the visa applicant had paid Mr Maarbani $1,400 for that application. The Tribunal has noted Mr Adriaan’s claim that he wasn’t aware that an application for fee waiver had been made on his behalf and the lack of material on Mr Adriaan’s file supports the conclusion that there was no discussion on this matter and Mr Adriaan paid the $1,400 application fee to his agent in the expectation that it would be forwarded to the MRT. Later he had to pay the MRT directly, which meant that he paid twice for the same service. The Tribunal also noted a file note made by an MRT officer dated 15 June 2006 stating that Mr Maarbani was informed that the review applicant’s authorisation was required because the review application was signed only by Mr Maarbani. There is no evidence that Mr Adriaan signed the application. In view of Mr Adriaan’s evidence, in this context, an application for a fee waiver was unnecessary as the fee had been paid and a waiver application would have little grounds for success unless it was shown that the payment would cause demonstrated financial hardship to the visa applicant.
80. Mr Maarbani conceded to the Tribunal that he had not provided the MRT with sufficient background information on his client’s financial situation upon which a decision could have been taken irrespective as to the timing and payment issues involved. He agreed that in effect his client was required to pay the fee twice. The Tribunal is satisfied that the issue of Mr Maarbani’s integrity arises from the fact that, even on his own version of events, he received the $1,400 in cash on the Friday before the long weekend. He was advised by the MRT that payment could still be made on 15 June and yet he took no action on behalf of his client.
81. Mr Maarbani lodged fee waiver applications on behalf of Messrs Adriaan, Abboud and El-Azzaz to the MRT, but the questionnaires were in all cases incomplete and there was inadequate supporting documentation for them to be assessed by the MRT. For example, Mr Abboud’s statement concluded “I am financially dependent upon my brother. He is currently going through financial problems at present”. As to his reason for seeking a waiver of the review fee, written on the application is: “I don’t have funds to pay the fee, I am in severe financial hardship. My brother will try to assist me soon.” There was no evidence that the application had been signed by Mr Abboud, and Mr Maarbani confirmed that the handwriting was his. The reason he gave to the Tribunal for not submitting the documentation was that it would be lodged at a “later date.”
82. Mr Maarbani told the Tribunal that he denied Mr Abboud’s claim that he had never received instructions to lodge an application for a fee waiver. He had only met his client once or twice when preparing the application for permanent residence and he had been paid $1,000 (out of $1,400) to lodge the permanent visa application, which he had done. Mr Abboud had been married overseas and there was a child, but the marriage was not recognised by the Department. Mr Abboud entered Australia on a prospective marriage visa and couldn’t apply on de facto grounds. Mr Maarbani claimed that Mr Abboud was told that the only visa application available to him was a permanent visa which was not assured success unless it was refused by the Department, rejected on appeal by the MRT and then referred to the Minister to exercise his option at a later stage. At that time Mr Abboud was separated from his spouse and asked Mr Maarbani to communicate in future with his brother.
83. Mr Maarbani contended that he lodged the permanent visa application with the Department, which was refused. He then took the matter on review to the MRT. Mr Abboud’s brother, with whom he was now dealing, promised to pay the $1,400 application fee prior to 17 April 2006, as that was the last day for lodgement. Mr Maarbani said that he kept warning the brother of the time issue and was told to lodge a waiver request on the grounds that the visa applicant’s brother didn’t have the money. He signed the form on the brother’s behalf because he couldn’t come to the office. A month later he brought $1,000, not $1,400, for the visa fee, and never paid the full professional fee of $1,000. Consequently, Mr Maarbani did not reimburse the application fee, although he had lodged the permanent residence application. At best he was paid $1,000 for his professional fees and $400 part payment for the application fees. Later, Mr Abboud’s brother told Mr Maarbani that Mr Abboud did not wish to continue with the application, so the application fee was not forwarded to the MRT. Mr Maarbani confirmed that when he lodged the waiver request, Mr Abboud’s brother had paid him only $1,000 in March 2006 for the permanent application visa. The second payment made in May 2006 was for $1,400 to cover his costs as well as a part payment to enable him to pay the MRT application fee. A further $1,000 was to be paid to Mr Maarbani to cover the application fee but it was never received. Mr Abboud decided not to continue with the application and he was refunded $900 out of the $1,400 and a new agent was subsequently appointed.
84. The MRT finalised the case and disallowed the fee waiver application and Mr Maarbani was advised that the fee had to be paid within 14 calendar days. He sent an email to the MRT requesting an extension of time until 26 June 2006 to pay $1,400. A further request for an extension was made, and on 14 August 2006 the fee had still not been paid. Subsequently, Mr Abboud employed a new agent, Mr Haber, who told the MRT staff that he had no idea that the review fee had not been paid as he knew that his client had paid the fee to the previous agent, Mr Maarbani. His client, Mr Abboud, was unaware that Mr Maarbani had lodged a fee waiver on his behalf.
85. On the basis of the evidence in the various files, the Tribunal is satisfied that none of this material had been communicated by Mr Maarbani to his client Mr Abboud, who was unaware that a fee waiver application had been made and believed that the fee had been paid.
86. The Tribunal was informed that Mr El-Azzaz applied for a partner visa which was refused by the Department. Mr Maarbani as his agent made an application for review to the MRT and requested a fee waiver of $1,400 for his client. He was subsequently advised that the request had been refused and that payment should be made within 14 days from 18 January 2006. The Tribunal noted that on Mr Maarbani’s file there is an invoice indicating that on 5 December 2005 an amount of $1,400 was paid by Mr El-Azzaz to Mr Maarbani and the details of service were described as “Representations with applicant for spouse visa with Migration Review Tribunal”. The file also contained an invoice indicating professional fees and charges including application fees of $2,900, later reduced to $2,800. Later an email was sent by Mr Maarbani to the MRT requesting an extension of time until 17 February 2006. A further extension of time until 27 February was also granted. On 1 March another email referring to a telephone discussion stated that the payment had been received and Mr Maarbani was waiting for funds to clear and he would authorise payment from his credit card account within seven days. The MRT gave him a further extension of time until 8 March 2006. On 15 March 2006 Mr Maarbani telephoned the MRT saying that he would forward credit card details that day. He failed to do so. On 24 March 2006 he phoned to say that a cheque would be sent at the time of the decision on 18 May 2006. The fee was not paid. As the application for review was lodged after the prescribed period for lodgement, the MRT did not have jurisdiction in any event.
87. In his written submission, Mr Maarbani claimed that the fee waiver was lodged on instructions from his client. However, there is nothing on the file which supports this claim. In his evidence before the Tribunal Mr Maarbani stated that Mr El-Azzaz had two applications. The first was a permanent visa application, with fees of $2,800 including application fees plus a professional fee of some $600 to $700. The visa applicant and sponsor were interviewed, but the Department refused the application. On 5 December 2005 a sum of $1,400 was paid to the MRT as an application fee. There was no charge for professional fees as the visa applicant said that he couldn’t pay it. Before lodging the fee, Mr El-Azzaz asked Mr Maarbani by telephone whether it could be waived. According to Mr Maarbani, his client was aware of the situation and an application for a fee waiver was lodged. He confirmed that he did not put this understanding with his client in writing. The application was sent by express post one or two days before expiry, but the MRT claimed that it didn’t arrive until 23 December 2005. Mr Maarbani recalled that his client intended returning to Lebanon in February or March 2006 and would lodge an offshore application. He put this visit off and Mr Maarbani requested an extension of time to pay the application fee, which was granted. Finally Mr El-Azzaz went overseas and Mr Maarbani refunded his fee of $1,400 on 24 July 2006.
88. The Respondent drew the Tribunal’s attention to the fact that no instructions were apparently given in writing in three of the matters under review. Nor were there any signatures on the applications sent to the MRT. This clearly contravened the requirements of the Code. As Mr Lababidi signed a statutory declaration, the Tribunal accepts that he instructed his agent to make a fee waiver application to the MRT, but there is no instruction to this effect on the file.
89. Mr Maarbani told the Tribunal that he had found dealing with Mr Lababidi extremely difficult because he had no fixed address. The only way he could correspond was by mobile phone. He had explained his difficulties to the MRT officials and believed that his client was a definite case of hardship. The Tribunal pointed out to him that this explanation did not satisfactorily explain why, as his agent, he had failed to maintain detailed notes on his client’s file of the telephone conversations etc. Mr Maarbani said that he thought he had kept computer notes but they were not on file.
90. In 2003 Mr Maarbani made an application for repeat registration which was refused by MARA. He appealed that decision to the AAT and the decision was stayed subject to a number of conditions being met, including the maintenance of separate client accounts. Mr Maarbani signed a statement that he would comply with the Code. Subsequently, there were a number of complaints which were examined by MARA and on 1 June 2006 Mr Maarbani received a caution for 12 months until he completed private tuition on ethics and professional practice, record keeping and file management. There was a finding by MARA that he had failed to properly supervise staff, failed to return files and documents when requested by clients, failed to provide client’s files to the Authority when requested, failed to keep clients informed in writing and failed to maintain proper files.
91. The last three points are relevant to the present hearing. Although the previous decision was dated 1 June 2006, the investigation by MARA was in progress for some time prior to that date and Mr Maarbani had been on notice for several years beforehand that complaints had been made in relation to these issues, resulting in a s 309(2) notice being sent to him on 1 August 2005 which required that the matters of concern be put to Mr Maarbani for comment. Consequently, Mr Maarbani was well on notice that there were concerns about his file keeping and communications with clients. Despite the fact that these matters had previously been brought to his attention, it would appear from the state of his files relevant to the present cases that he made no attempt to improve his practices. The present cases further highlight additional serious matters of concern in relation to the management of clients’ funds to help solve cash flow problems in Mr Maarbani’s business, but which have caused his clients financial loss. The Respondent concluded that under the circumstances the cancellation of Mr Maarbani’s licence was the only option available to the Tribunal.
92. Mr Maarbani responded that the decision made by MARA on 1 June 2006 to caution him related to 7 clients who had made complaints going back to 2002-2004, which primarily involved a person who was no longer his business partner but at the time was working under his registration. He did not query MARA’s decision to caution him in June 2006, but the complaints started in August, September and later November 2006, and he did not have time to improve the conduct of his business.
93. Mr Maarbani contended that most of his former clients have had their money refunded and he looked at the others as to whether he had caused them hardship or other problems. He admitted that it had taken too long to provide refunds, but most of his problems during that period were financial, involving clients not paying him.
94. When asked to explain his lack of a trust account as required by the Code, Mr Maarbani said that the clients’ application fees went into a credit card account. He agreed that it was a personal credit card account, but it was used for the purpose of paying the fees. The Respondent pointed out that the pertinent issue was that MARA had requested bank statements in relation to those client accounts and there was no reference to a credit card account. Mr Maarbani asserted that there was such an account for 3 to 4 years, and that there was immigration fee activity in that account. It was pointed out to Mr Maarbani that even if such an account existed, he had not answered the question as to where the funds are being held when clients pay in advance for services and until their delivery. Mr Maarbani confirmed that in most cases he placed application fees and part payments into his personal account.
95. It was pointed out to Mr Maarbani that had the credit card account been used exclusively for holding funds prior to disbursements, there would have been no reason for the bank to block the account and cause him financial difficulties. He stated that there were 2 credit card accounts, one was used to pay application fees to the Department and the other was used for payment of fees to the MRT, because the MRT would not accept American Express so he had to have a Visa card as well. The Tribunal pointed out that all these business accounts were in deficit, which means that clients’ funds are not being exclusively held and used for dispersal in their interests. Mr Maarbani agreed that that was not the way his accounts were working. It was noted that clause 7.2 of the Code as at 1 July 2005 stated:
A registered migration agent must hold, in the clients’ account, an amount
of money paid by a client for an agreed block of work until:
(a) the agent has completed the services that comprise the block of work; and
(b) an invoice has been issued to the client for the services
The Tribunal noted that such an arrangement cannot operate in a credit card environment.
FINDINGS
96. The Tribunal has made the following findings in regard to Mr Maarbani’s alleged breaches of the Code as at 1 July 2005.
97. Clause 2.1: The Tribunal does not accept as a reason for his conduct Mr Maarbani’s claim that his client was Mr Ghazzaoui and not his wife, Complainant A. The Tribunal accepts Mr Maarbani’s evidence that no contract was signed with Mr Ghazzaoui prior to his departure for Lebanon, but Mr Maarbani breached the Code by his failure to get a signed contract from either Mr Ghazzaoui or his wife. However, there was clearly verbal contact involving Mr Ghazzaoui and Complainant A, as her husband’s agent as well as his visa sponsor, and she had a legitimate interest in the visa being issued expeditiously. The Tribunal accepts that on 4 April 2006 Mr Maarbani received full payment for the visa application fee ($1,305) from Complainant A which was not forwarded to the Department, as required, and a deposit of $1,250 for his professional fee of $1,750. In April 2006 Complainant A attended a meeting in Mr Maarbani’s office with her spouse and both provided him with information and instructions which were not confirmed in writing. Following Mr Ghazzaoui’s departure, Mr Maarbani continued to have contact with Complainant A in regard to the progress of the visa application up to 24 May 2006, when she asked Mr Maarbani by letter for a receipt and told him that they could no longer afford his services.
98. In view of this relationship, the Tribunal finds that Mr Maarbani was required to comply with the Code when dealing with Complainant A. Mr Maarbani failed to pay Mr Ghazzaoui’s visa application fee to the Department and deliberately misled Complainant A and allowed her to pay a second application fee to the Department when he had placed the fee in his wife’s account because his account was in debt. The Tribunal does not accept Mr Maarbani’s claim that somehow his financial problems should negate his responsibilities to his clients, and finds that Mr Maarbani has breached Clause 2.1 of the Code.
99. The Tribunal was not convinced by Mr Maarbani’s defence that three of his clients had not been financially disadvantaged as a result of his actions because Mr El-Azzaz had had a refund of his application fee, Mr Adriaan’s application for review did not proceed and his refund was delayed due to Mr Maarbani’s financial problems, and Mr Abboud’s application fee had been refunded. Nor was it convinced by his claim that the fee waiver requests lodged with the MRT were not applications and Mr Maarbani had not breached the Code on this issue. Mr Maarbani admitted to the Tribunal that he had lodged the fee waivers without his clients’ consent in writing. Consequently, the Tribunal finds that Mr Maarbani was in breach of Clause 2.1 of the Code.
100. Clause 2.8: The Tribunal noted Mr Maarbani’s evidence that there were no written instructions between Complainant A and himself, and his confirmation in evidence that he was aware of the Code’s requirements in that respect.
101. The Tribunal is satisfied that Mr Maarbani did not advise his clients Messrs Lababidi, El-Azzaz, Abboud and Adriaan in writing about lodging a fee waiver application, nor did he advise the MRT of his intentions. He also failed to pay on time visa application fees on behalf of his clients to the Department, even though he was holding their funds which resulted in their applications being rendered invalid and ineligible for review. The Tribunal also accepts the claim that some clients had not requested Mr Maarbani to apply for fee waivers. Consequently, the Tribunal finds that Mr Maarbani acted in contravention of Clause 2.8 of the Code.
102. Clauses 2.9, 2.19 and 2.21: Mr Maarbani lodged visa applications with fee waiver requests for Messrs Abboud, El-Azzaz and Adriaan, but the visa applicants told MARA that they were unaware that fee waiver requests had been made on their behalf, without their written agreement and their signatures. The applications were not successful. No fees were ever paid to the MRT which rendered the visa applications invalid. Under Clause 2.9 of the Code, Mr Maarbani must not make nor encourage the making of statements under the Act or Regulations which he knows or believes are misleading or inaccurate. The Tribunal noted Mr Maarbani’s claim that his client Mr Lababidi was living in a Lebanese refuge and unable to pay the visa application fee. The MRT rejected this and the other fee waiver applications because of lack of information which Mr Maarbani should have provided. The Tribunal does not accept Mr Maarbani’s claim that an application for a fee waiver was part of an application for review and provided for under the Act, and does not require certain information be provided in support of an application. The Tribunal noted that under s 347(1)(c) of the Act an application for review must be “accompanied by the prescribed fee, if any”. However, in cases of severe financial hardship the fee need not be paid.
103. In all three cases it was contended that Mr Maarbani had failed to provide the MRT with the required fee or sufficient information to determine whether or not a fee waiver was appropriate. Under the Regulations, the information must include, for a visa applicant and spouse, a most recent income tax assessment notice, bank statements for the past 6 months, 2 current pay slips or Centrelink payment details, credit card statements for the past 6 months, evidence of rent paid and expenses beyond ordinary living expenses. This information was not provided to the MRT in sufficient detail to make favourable decisions.
104. The Tribunal finds that Mr Maarbani was in breach of Clauses 2.9, 2.19 and 2.21 of the Code for not paying the prescribed fee and for providing misleading or inaccurate statements which materially prejudiced the prospects of approval for his clients.
105. Clause 2.23: Mr Maarbani’s defence largely turned on his assertion that a large majority of his dissatisfied clients had had all, or some, of his professional fees and other expenses refunded and did not face hardship as a result. He claimed that his problems were largely financial because some clients had not paid him and he had a serious “morale” problem because of his financial difficulties which prevented him from attending the prescribed courses. The Tribunal does not accept Mr Maarbani’s claim that these were mitigating circumstances. It noted that he had previously received a s 309(2) notice on 1 August 2005, identifying matters of concern such as poor file keeping and communication with clients. He was cautioned in June 2006 and given 12 months to undertake specific courses of training to improve his administration, which he had failed to commence 8 months later when MARA cancelled his licence on 19 February 2007. The evidence before this Tribunal clearly showed that there has been no improvement prior to the hearing.
106. The Tribunal finds that Mr Maarbani did not take all reasonable steps to maintain the reputation and integrity of the migration advice profession and is in breach of Clause 2.23 of the Code.
107. Clause 3.2A: The Tribunal is satisfied on the basis of Mr Maarbani’s evidence that he did not provide his clients with the correct copy of Information on the Regulation of the Migration Advisory Profession or make a record in their files that the copy was provided as required by Clause 3.2A of the Code.
108. Clause 5.1: The Tribunal has received insufficient evidence to conclude that Mr Maarbani charged his clients a professional fee which was unreasonable under the circumstances of the specific cases. Consequently, the Tribunal finds that he did not breach Clause 5.1.
109. Clauses 5.2 and 5.4: The Tribunal received evidence from MARA which was confirmed by Mr Maarbani that he failed to provide written confirmation of the terms, fees and charges of the service to be rendered. Consequently he was in breach of Clauses 5.2 and 5.4 of the Code.
110. Clause 5.5: The Tribunal received evidence from Mr Maarbani confirming MARA’s claims that he failed to provide his clients with a full statement of services, as required under s 313 of the Act, upon which he based his fees and charges. His failure to do so entitled clients to seek a refund which, in the case of Mr Adriaan and others, was not forthcoming due to Mr Maarbani’s financial difficulties. The Tribunal found that Mr Maarbani failed to meet the requirements of Clause 5.5 of the Code.
111. Clause 6.1: The Tribunal is satisfied on the basis of the evidence submitted by MARA that Mr Maarbani failed to maintain proper records and client files containing client applications, copies of written communication between client and agent, with relevant statutory authorities and file notes of substantive or material oral communication between clients and Mr Maarbani and with relevant statutory authorities. For example, Mr Maarbani in his written submission claimed that the fee waiver was lodged on instructions from Mr El-Azzaz, but Mr Maarbani confirmed to the Tribunal that he failed to make a file entry. There is no evidence of instructions having been given in writing or notes having been kept for any of the matters under review, nor were there signatures on 3 waiver applications sent to the MRT. Consequently, Mr Maarbani was in breach of Clause 6.1 of the Code.
112. Clause 6.3: The Tribunal accepted Mr Maarbani’s claim that he provided MARA with the documentary material requested, but not on time, due to a delay in receiving the bank statements and his illness which required 2 weeks hospitalisation. No documentary evidence of his illness was provided and the Tribunal finds that Mr Maarbani was in technical breach of Clause 6.3.
113. Clauses 7.1, 7.1A and 7.2: Mr Maarbani confirmed before the Tribunal that he placed the funds provided by Complainant A, to cover the cost of her spouse’s visa application fee and Mr Maarbani’s professional fees, in his wife’s account and not, as required by the Code, in an operating account to cover operating expenses and in a client’s account for agent’s fees and disbursements. When asked to explain why he failed to have a trust account as required under the Code, Mr Maarbani said that clients’ application fees went into a personal credit card account used for paying fees. He was unable to satisfy the Tribunal that he held funds paid by clients in advance for services and until their delivery in a manner consistent with the requirements of the Code. Consequently, the Tribunal finds that Mr Maarbani is in breach of Clauses 7.1, 7.1A and 7.2 of the Code.
Is Mr Maarbani a person of integrity and otherwise a fit and proper person to give migration assistance?
114. MARA contended that Mr Maarbani was not a ”fit and proper person” to give migration assistance. There is clearly some overlap in the concepts of being a “fit and proper” person to give migration assistance and being a “person of integrity.” The former concept carries broader considerations than the latter. MARA believed that because Mr Maarbani misled the MRT by representing that his clients had instructed him to lodge fee waiver requests and application fees with the MRT, when they had not done so, he did not fit this definition. The Tribunal believes that the issue is not simply whether or not Mr Maarbani acted in accordance with his clients’ instructions. It goes to his motives which, on the basis of his admissions to the Tribunal, were closely allied to his financial difficulties as all his operating bank and credit card accounts were in deficit at the time. The immediate result of this conduct was that the MRT had insufficient information on which to properly assess the merits of his clients’ applications for fee waiver and visa review applications, and they were materially disadvantaged as a result.
115. A migration agent has an obligation not only to his clients but also to the Department to adhere to standards of honesty and truthfulness. This mutuality of obligation should be implied from the public interest in meeting the objective of the Act and in achieving its proper implementation: RePeng and Department of Immigration [1998] AATA 12; Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558; [2002] FCA 93.
116. The Tribunal is also mindful that the standard of conduct for migration agents is no less than the standard of conduct owed by lawyers: Woods v Migration Agents Registration Authority (2004) 39 AAR 519; [2004] FCA 1622. Mr Maarbani failed to act diligently and neglected his duty of care towards his clients and appeared to act in his own interests at their expense by misusing their funds and not protecting them in accordance with the requirements of the Code.
117. In these circumstances, the Tribunal has concluded that Mr Maarbani is not a fit and proper person to be registered as a migration agent.
118. The Tribunal appreciates that suspending or cancelling a migration agent’s registration carries with it severe consequences. The Tribunal should only make a finding of non-compliance with the Code where it is satisfied that there has not been compliance, and the standard of proof should recognise the potential consequences of that finding. As was said in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction’” should not be produced by inexact proofs, indefinite testimony or indirect inferences.
119. MARA contended that Mr Maarbani is not a person of integrity because Mr Maarbani would have been well aware from his previous experience over nearly a decade that his client’s review applications could not be considered unless the prescribed fees were paid. Had Mr Maarbani’s clients been aware that fee waiver applications had been made, there would be no need for them to give Mr Maarbani the money until their request was refused. The visa applicants gave Mr Maarbani the money to cover the fees because he told them that the funds were required when the visa applications were lodged. The evidence shows that these were not isolated instances, but demonstrate a pattern of behaviour which demonstrated neither honesty nor integrity on the part of Mr Maarbani.
120. Mr Maarbani continued to deny that he acted without instructions despite evidence to the contrary from the MRT and his own files, which do not support his assertions.
121. Mr Maarbani accepted money from his clients for application fees which he failed to pass on to the MRT. In two instances his clients were forced to, in effect, pay the application fees twice in an attempt to obtain a favourable outcome. Mr Maarbani in his evidence to this Tribunal claimed that he was remorseful about his past conduct but claimed that, in his view, there were few if any adverse consequences to his clients as a result of his actions.
122. Mr Maarbani claimed that he placed application fees in his credit card account but was unable to access the funds because of the deficit in his account. He initially told MARA that he would overcome his financial problems by not accepting clients’ application fees and requiring them to pay the fees themselves. In his statement of facts and contentions Mr Maarbani claimed that his problems would be overcome by an injection of funds into the business but provided no ideas as to how this would come about.
123. On 1 June 2006 Mr Maarbani was cautioned for his poor file management as a result of previous complaints. There is no evidence since then that Mr Maarbani has taken steps to improve his practice. Consequently, he has continued to breach the Code regarding file management and communicating with clients which were a condition for the lifting of the sanction.
124. On the basis of the evidence the tribunal has determined that Mr Maarbani was not a person of integrity.
DECISION
125. The tribunal has determined that MARA’s decision to cancel Mr Maarbani’s registration as a migration agent was the correct and preferable decision. The decision under review is affirmed.
I certify that the 125 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D Connolly AM, Member.
Signed: .................[sgd]..............................................................
AssociateDate of Hearing 13 March 2008
Date of Decision 20 August 2008
Advocate for Mr Maarbani self-represented
Solicitor for the Respondent Ms D Watson, Australian Government Solicitor
ANNEXURE A
Clause 2.1 of the Code of Conduct as at 1 July 2005 states:
A registered migration agent must always:
(a) act in accordance with the law and the legitimate interests of his or her client; and
(b) deal with his or her client competently, diligently and fairly.
Clause 2.8 of the Code of Conduct as at 1 July 2005 states:
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 and regularly 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.
Clause 2.9 of the Code of Conduct as at 1 July 2005 states:
While a registered migration agent cannot be responsible for
misinformation provided by a client, 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.
Clause 2.19 of the Code of Conduct as at 1 July 2005 states:
Subject to a client’s instructions, a registered 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, a
registered migration agent must 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.
ANNEXURE A
Clause 2.21 of the Code of Conduct as at 1 July 2005 states:
A registered migration agent must not submit an application under the
Migration Act or 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).
Clause 2.23 of the Code of Conduct as at 1 July 2005 states:
A registered migration agent must take all reasonable steps to maintain the
reputation and integrity of the migration advice profession.
Clause 3.2A of the Code of Conduct as at 1 July 2005 states:
Before starting to work for a client, a registered migration agent must:
(a) provide the client with a copy of Information on the Regulation of the Migration Advice Profession; and
(b) make a record that the copy has been provided.
Clause 5.1 of the Code of Conduct as at 1 July 2005 states:
There is no statutory scale of fees. However, a registered migration agent
must set and charge a fee that is reasonable in the circumstances of the case.
Clause 5.2 of the Code of Conduct as at 1 July 2005 states:
A registered migration agent must:
(a) before starting work for a client, give the client:
(i) an estimate of fees in the form of charges for each hour or each service, and disbursements that the agent is likely to incur as part of the work; and
ANNEXURE A
(ii) an estimate of the time likely to be taken in performing a service; and
(b) as soon as possible after receiving instructions, obtain written
acceptance by the client, if possible, of the terms of the work to be
done; and
(c) give the client written confirmation of the terms of the service to be
rendered; and
(d) give the client written notice of any material change to the estimated
cost of providing a service, and the total likely cost because of the
change, as soon as the agent becomes aware of the likelihood of a
change occurring.
Clause 5.4 of the Code of Conduct as at 1 July 2005 states:
A registered migration agent must advise clients of the method of payment
of fees and charges, including Departmental fees and charges.
Clause 5.5 of the Code of Conduct as at 1 July 2005 states:
A registered migration agent must be aware of the effect of section 313 of
the Act, and act on the basis that:
(a) the agent is not entitled to be paid a fee or other reward for giving
immigration assistance to a client unless the agent gives the client a
statement of services; and
(b) a statement of services must set out:
(i) particulars of each service performed; and
(ii) the charge made in respect of each such service; and
(c) a client is entitled by the Act to recover the amount of a payment as a debt due to him or her if he or she:
(i) made the payment to the agent for giving immigration assistance; and
(ii) did not receive a statement of services before making the
payment; and
(iii) does not receive a statement of services within 28 days after a final decision is made about the visa application, cancellation review
ANNEXURE A
application, nomination or sponsorship to which the immigration assistance related.
Clause 6.1 of the Code of Conduct as at 1 July 2005 states:
A registered migration agent must maintain proper records that can be made
available for inspection on request by the Authority, including files
containing:
(a) a copy of each client’s application; and
(b) copies of each written communication between:
(i) the client and the agent; and
(ii) the agent and any relevant statutory authority; and
(c) file notes of every substantive or material oral communication
between:
(i) the client and the agent; and
(ii) the agent and an official of any relevant statutory authority; and
Clause 6.3 of the Code of Conduct as at 1 July 2005 states:
A registered migration agent must respond to a request for information from
the Authority within a reasonable time specified by the Authority.
Clause 7.1 of the Code of Conduct as at 1 July 2005 states:
A registered migration agent must keep separate accounts with a financial institution for:
(a) the agent’s operating expenses (the operating account); and
(b) money paid by clients to the agent for fees and disbursements (the
clients’ account).
Clause 7.1A of the Code of Conduct as at 1 July 2005 states:
The words ‘clients’ account’ must be included in the name of the financial
institution account mentioned in paragraph 7.1 (b).
ANNEXURE A
Clause 7.2 of the Code of Conduct as at 1 July 2005 states:
A registered migration agent must hold, in the clients’ account, an amount
of money paid by a client for an agreed block of work until:
(a) the agent has completed the services that comprise the block of work; and
(b) an invoice has been issued to the client for the services.
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5
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