Mao and Migration Agents Registration Authority - [2025] ARTA 686

Mao and Migration Agents Registration Authority [2025] ARTA 686 (30 May 2025)
Applicant/s:  Tianying Mao
Respondent:  Migration Agents Registration Authority
Tribunal Number:                2024/1980

Tribunal:General Member Darian-Smith
Place:Sydney
Date:30 May 2025

Decision:The Tribunal affirms the decision under review.

...............................[SGD]..................................
General Member Darian-Smith
Catchwords
MIGRATION – migration agent registration authority – refusal of Applicant’s registration – Applicant breached Code of Conduct – Tribunal not satisfied that the Applicant is a person of integrity or otherwise a fit and proper person to give immigration assistance at the time of the decision – Receiving reward for migration assistance while unregistered - Refusal decision under review affirmed by the Tribunal
Legislation
Migration Act 1958 (Cth) ss. 4, 276, 280, 281, 283, 290, 291, 314
Cases
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Grosfield and Tax Practitioners Board [2014] AATA 100
Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558
Mottaghi and Migration Agents Registration Authority [2007] AATA 60; (2007) 98 ALD 424; (2007) 45 AAR 37
Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12
Reptis and Migration Agents Registration Authority [2006] AATA 41
SRH and Comptroller-General of Customs (1995) 37 ALD 581
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
WKBF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3728
Secondary Materials
Code of Conduct for registered migration agents
Statement of Reasons

On 5 September 2023, the Applicant, Tianying Mao (Ms Mao), applied for registration as a migration agent.[1]
[1] T4, Joint Tender Bundle pages 465 – 488.
On 25 October 2023, the Respondent (MARA) issued Ms Mao with a notice under subsection 309(1) of the Migration Act 1958 (Cth) (the Act) (Section 309 Notice),[2] notifying her that it was considering refusing her application for registration.
[2] T5, Joint Tender Bundle pages 489 – 499.
On 22 November 2023, Ms Mao provided a written submission, with a bundle of supporting documents, in response to the Section 309 Notice (Section 309 Submission).[3] On 23 November 2023, Ms Mao provided a further response to the Section 309 Notice,[4] which dealt with her enrolment in certain courses concerning the Code of Conduct for registered migration agents (Code).[5]
[3] T6, Joint Tender Bundle pages 500 – 572.
[4] T7, Joint Tender Bundle pages 573 – 582.
[5] The Code is prescribed by regulations made under s. 314(1) of the Act.
On 8 March 2024, MARA refused Ms Mao’s registration on the basis that Ms Mao was not a fit and proper person to provide immigration assistance and was not a person of integrity, under subsections 290(1)(a) and (b) respectively of the Act (Refusal Decision).[6]
[6] T2, Joint Tender Bundle pages 327 – 344.
On 4 April 2024, Ms Mao filed an application with the Tribunal seeking a review of the Refusal Decision (Application for Review).[7]
[7] T1, Joint…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Mao and Migration Agents Registration Authority

Details

AGLC: Mao and Migration Agents Registration Authority [2025] ARTA 686
Case: [2025] ARTA 686
Decision Date: 30 May 2025

CaseChat Overview and Summary

In the case of Mao and Migration Agents Registration Authority, the Tribunal was asked to review a decision by the Migration Agents Registration Authority (MARA) to refuse Ms Mao's application for registration as a migration agent. Ms Mao argued against the refusal, citing various reasons for her eligibility. The key issues before the Tribunal were whether Ms Mao had provided immigration assistance while unregistered, received a reward for such assistance, provided false declarations in her application, and whether she correctly described her role and experience.

The Tribunal examined the evidence and submissions from both parties, focusing on the four main allegations made by MARA. These allegations included Ms Mao providing unregistered immigration assistance, receiving rewards for such assistance, making false declarations in her registration application, and providing conflicting information about her role and experience. The Tribunal found that the evidence did not support Ms Mao's claims that she was not involved in unregistered immigration assistance or that she was coerced into making false declarations. Furthermore, the Tribunal was not satisfied that Ms Mao had a clear understanding of what constitutes immigration assistance, which is critical for her role as a migration agent.

Based on the evidence and the principles of fitness and propriety, the Tribunal concluded that Ms Mao was not a fit and proper person to provide immigration assistance. The Tribunal upheld the MARA decision, affirming that Ms Mao was not a person of integrity or fit and proper to give immigration assistance. The Tribunal's reasoning was grounded in the lack of credibility in Ms Mao's explanations and her failure to meet the standards required of a migration agent.

The Tribunal's final order was to dismiss Ms Mao's application for review, thereby upholding the original decision by MARA to refuse her registration as a migration agent. This decision underscores the importance of adherence to the Code of Conduct and the high standards required for those seeking to provide immigration assistance in Australia.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal is not satisfied on the evidence before it that the Role Description Finding has been made out. EVIDENCE OF WITNESSES Material points which emerged from Ms Mao’s cross examination and which were focussed on by MARA, included: (a) Ms Mao’s evidence that the migration agents at Australianglobal were “teaching her” about student visa applications, it being unlikely that those migration agents would have confined their teaching instructions purely to the administrative aspects of visa applications.[80] (b) Ms Mao’s acknowledgement that in 2018 she knew that she was doing the wrong thing in aspects of her role, yet she continued with this conduct in the period from 2018 to 2023. Her evidence sought to mitigate her misconduct by reference to the coercive control of her ex-partner, but MARA’s submission is that insufficient reasons are given for her conduct in the period from late 2018 up until the birth of her son in late 2020.[81] (c) Ms Mao’s evidence that the evidence provided by Ms Zhao and Ms Yilmaz as to their respective limited contact with Ms Mao was false, and that both were lying. MARA submits that Ms Mao’s evidence should not be accepted on this point.[82] and (d) Ms Mao’s evidence, when taken to the definition of “immigration assistance” in section 276 of the Act, as to what tasks could be completed by a registered migration agent and what tasks could be completed by an (unregistered) migration agent assistant. MARA submits that “this evidence indicates that [Ms Mao] does not recognize the difference between what is and what is not immigration assistance meaning that [Ms Mao] is not a fit and proper person to give immigration assistance.[83][80] Respondent’s Submissions, [23(a)].[81] Respondent’s Submissions, [23(b)].[82] Respondent’s Submissions, [23(c)].[83] Respondent’s Submissions, [23(d)]. Ms Li is an important potential witness who was not called to give evidence by Ms Mao. Ms Li’s evidence may have assisted the Tribunal in testing aspects of the Findings, with reference to Ms Mao’s supervision and the other matters set out in the Li Reference Letter (referred to in paragraph 34(c) above). Further Ms Li’s evidence would have been of assistance in relation to the Role Description Finding and the issues raised by MARA as to the content of the Newpoint website relating to Ms Mao.CONSIDERATION: FIT AND PROPER AND PERSON OF INTEGRITY Section 290 of the Act provides that Ms Mao must not be registered if MARA is satisfied that she is not a fit and proper person to give immigration assistance or she is not a person of integrity. The relevant principles which are to be applied to the determination of fitness and propriety and of integrity in an applicant are set out below. In Australian Broadcasting Tribunal v Bond,[84] (Bond) a case concerning whether Alan Bond was a “fit and proper person” to hold a broadcasting license, Toohey and Gaudron JJ. said:“The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of those activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur” [85][84] (1990) 170 CLR 321.[85] (1990) 170 CLR 321, 380.

Decision

Reasons for decision

On 8 March 2024, MARA refused Ms Mao’s registration on the basis that Ms Mao was not a fit and proper person to provide immigration assistance and was not a person of integrity, under subsections 290(1)(a) and (b) respectively of the Act (Refusal Decision).[6][6] T2, Joint Tender Bundle pages 327 – 344. On 4 April 2024, Ms Mao filed an application with the Tribunal seeking a review of the Refusal Decision (Application for Review).[7][7] T1, Joint Tender Bundle pages 315 – 326. The Refusal Decision was based on the findings by MARA, which in turn were based around 4 main allegations, that Ms Mao: (a) provided immigration assistance when she was not registered, in breach of subsection 280(1) of the Act (Unregistered Assistance Finding).[8] (b) received a reward for giving migration assistance while unregistered, in breach of subsection 281(1) of the Act (Payment Finding).[9] (c) dishonestly answered “no” to each of the questions, “While not registered, have you ever given immigration assistance in Australia or New Zealand?”, “Have you ever been known by or used any other name?’ and “Have any documents referring to you ever used a different name to that in question 1?’, thus contravening her declaration in the application for registration (False Declaration Finding).[10] and (d) provided conflicting information concerning her job title and work experience (Role Description Finding).[11](Collectively the Findings).[8] T2, Joint Tender Bundle pages 335 – 340.[9] T2, Joint Tender Bundle page 340.342[10] T2, Joint Tender Bundle pages 337 - 339, 342.[11] T2, Joint Tender Bundle pages 337-338. Ms Mao has filed and relies upon written submissions comprised of the following documents: (a)Applicant’s Submission (with exhibits) dated 4 June 2024 (Submission).[12](b)Applicant’s Supplementary Submission (with exhibits) dated 13 August 2024 (Supplementary Submission).[13](c)Applicant’s Statement of Facts, Issues and Contentions dated 26 November 2024 (Applicant’s SFIC).[14] (d)Applicant’s Statement in Reply dated 6 January 2025 (Applicant’s Reply).[15] and (e)Written Closing Submissions dated 24 March 2025 (Applicant’s Submissions). Ms Mao relied upon three statutory declarations, the first dated 22 November 2024[16] and the second and third both dated 20 May 2024[17] (First, Second and Third Statutory Declarations respectively). Ms Mao gave evidence at the hearing and was cross examined.[12] A2, Joint Tender Bundle pages 2 – 230.[13] A3, Joint Tender Bundle pages 231 - 266.[14] A4, Joint Tender Bundle pages 267 - 280.[15] A5, Joint Tender Bundle pages 281 - 284.[16] A2, Joint Tender Bundle pages 74 – 75.[17] A2, Joint Tender Bundle pages 79 – 83, pages 86 – 88. MARA has filed and relies upon written submissions comprised of the following documents:(a) Respondent’s Statement of Facts, Issues and Contentions dated 16 December 2024. (Respondent’s SFIC).[18] and (b) Respondent’s Closing Submissions dated 27 March 2025 (Respondent’s Submissions). Paragraphs [18] to [54] of the Respondent’s SFIC set out the Respondent’s contentions in relation to the Findings, save that paragraph [35], [36] and the final 7 words of paragraph [27(c)] are no longer pressed.[19][18] R2, Joint Tender Bundle pages 287 – 304. [19] Respondent’s Submissions, [22].FACTS AND ISSUES FOR DETERMINATION

Ratio Decidendi

Legal Principle Established

Section 276 of the Act provides the definition of “immigration assistance”: “276 Immigration assistance (1) For the purposes of this part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by: (a) preparing, or helping to prepare, the visa application or cancellation review application; or (b) advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or (c) preparing for proceedings before a court or the ART in relation to the visa application or cancellation review application; or (d) representing the visa applicant or cancellation review applicant in proceedings before a court or the ART in relation to the visa application or cancellation review application. (2) For the purposes of this Part, a person also gives immigration assistance if the person uses or purports to use, knowledge of, or experience in, migration procedure to assist another person by: (a) preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or (b) advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or (c) representing the other person in proceedings before a court or the ART that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.” Sections 280(1), 281(1) and 283 of the Act, relevantly state, a few things a person who is not a registered migration agent must not do: “280 Restrictions on giving of immigration assistance (1)Subject to this section, a person who is not a registered migration agent must not give immigration assistance. Penalty: 60 penalty units. (1A) An offence against subsection (1) is an offence of strict liability.” “281 Restriction on charging fees for immigration assistance (1)Subject to subsection (3), a person who is not a registered migration agent must not ask for or receive any fee or other reward for giving immigration assistance. Penalty: Imprisonment for 10 years ...” “283 False representation that a person is a registered migration agent (1) A person who is not a registered migration agent must not directly or indirectly represent that he or she is such an agent. (2) A person must not directly or indirectly represent that another person who is not a registered migration agent is such an agent. Penalty: Imprisonment for 2 years.” The Code contains, in Part 2 Division 1, the following general duties: 13. General duty to act professionally, ethically etc. (1) A migration agent must act: (a) professionally; and (b) competently; and (c) diligently; and (d) ethically, honestly and with integrity … (2) A migration agent must not engage in conduct (whether in the agent’s capacity as a migration agent or in any other capacity) that is reasonably likely to damage the reputation of migration agents or the immigration advice industry.14. Duty to treat all persons with appropriate respect (1) A migration agent must treat all persons with appropriate respect. (2) In particular, a migration agent must not: (a) harass or coerce any person; or (b) engage in unconscionable conduct targeted at another person; or (c) without limiting paragraph (b), victimise a person on the basis of the person’s status under the migration law … 15. Duty not to make false or misleading statements A migration agent must not make a false or misleading statement.”EVIDENCE AND CONTENTIONS