Miller and Migration Agents Registration Authority

[2008] AATA 659

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AAT 659

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200601218

GENERAL ADMINISTRATIVE  DIVISION		)
Re		WILLIAM MILLER

Applicant

And

MIGRATION AGENTS

REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Mr B.H Pascoe, Senior Member

Date30 July 2008

PlaceMelbourne

Decision The Tribunal sets aside the decision under review.

(sgd) B.H. Pascoe

Senior Member

Migration - Migration agent - bar from being registered for period of five years - alleged conflict of interest - failure to deal fairly with client - alleged dishonesty - unsubstantiated allegations

Migration Act 1958 s 311A

REASONS FOR DECISION

30 July 2008 Mr B.H Pascoe, Senior Member  

1.      This is an application to review a decision of the respondent Migration Agents Registration Authority (MARA) dated 20 November 2006 to bar the applicant, Mr W Miller, from being registered as a migration agent for a period of five years.

2.      At the hearing Mr Miller was represented by a friend Mr B Armitage. The respondent was represented by Ms K Miller of the office of the Australian Government Solicitor.  Evidence was given by Mr Miller and by Mr Shu Cheng Yang (Mr Yang) who had lodged a complaint with MARA against Mr Miller.

3. The decision of MARA was made pursuant to s 311A of the Migration Act 1958 (the Act) which provides:

(1)The Migration Agents Registration Authority may decide to bar a former registered migration agent from being a registered migration agent for a period if, after investigating a complaint against him or her in relation to his or her provision of immigration assistance while he or she was a registered migration agent, it is satisfied that the subject matter of the complaint is made out.

(2)The period must be more than 5 years starting on the day of the Authority’s decision.

Section 314 of the Act provides:

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

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

The Code of Conduct is applicable to the relevant time as contained in the Migration Agents Regulations 1998 made under the Act.  The clauses of this Code relied upon by MARA state:

2.1A 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, fairly and without any conflict of interest that would affect the legitimate interests of the client.

2.23A migration agent must take all steps to maintain the reputation and integrity of the migration industry.

10.1A migration agent must complete services as instructed by a client unless:

(a)the agent and client agree otherwise; or

(b)the client terminates the agent’s instructions; or

(c)the agent terminates the contract for just cause and gives reasonable written notice to the client.

4.Mr Miller was registered as a migration agent in the following periods:

·20 January 1999 to 19 January 2000

·23 November 2000 to 22 November 2001

·10 February 2003 to 9 February 2004

·22 April 2005 to 21 April 2006

5.      The origin of these proceedings was a letter of complaint to MARA from Mr Yang dated 7 July 2004. In this letter Mr Yang stated that in September 1999 he was introduced to Ms Li, Mr C Armitage and Mr Miller in Zhuhai, China.  He described Ms Li as an interpreter, Mr Armitage as fund receiver and Mr Miller as a migration agent who, together, were looking for Chinese people who wanted to migrate to Australia through investment.  The letter then stated:

I signed a contract respectively with Christopher and William and the photocopies of the contracts are hereby attached. As my migration agent, William agreed to handle my application for Visa Subclasses 456, 457 and 845. The first installment [sic] of Australian currency 28,000 dollars would be shared by Christopher and William; after Visa Subclass 845 was obtained, another 5,000 Australian dollars would be paid to William. They helped me apply for two Subclass 456 afterwards. After arrival in Australia to look at Christopher’s family factory “Asia Pacific Coating Pty Ltd” (1 Monterey Rd, Dandenong, Victoria), and investment of 161,000 Australian dollars was made including their service fees. In August 2000, they succeeded in handling my application for Visa Subclass 457. In October 2000, my whole family came to Australia.

On 1 August 2002, at my repeated request, the application for 845 was lodged.

The letter maintained that Mr Miller had prepared all of the documents for an 845 visa including an authority for Mr Miller to act.  It then said that the documents were given to a Mr Wall who worked for Mr Armitage and Mr Wall took Mr Yang to the Department of Immigration to lodge the documents without that authority.  Mr Yang then said that he discovered that Mr Miller was not then registered as a migration agent.  The letter concluded that Mr Miller and Mr Armitage had worked together to cheat Chinese families.

6.      Mr Yang’s application for a subclass 845 visa was refused on 16 February 2004.  This decision was affirmed by the Migration Review Tribunal (MRT) on August 2004.  The MRT noted allegations by Mr Yang that a number of parties, including a migration agent, had perpetrated a deliberate and extensive fraud on him.  By letter of 4 January 2005 the MRT advised MARA of these allegations and attached a letter of complaint by Mr Yang dated 23 June 2004.  It was in a similar vein to that of 7 July 2004 to MARA but gave more detail of his problems with his investment in Asia Pacific Coatings Pty Ltd (APC).  Three matters contained in this letter need to be highlighted as a consequence of subsequent evidence. Again Mr Yang described Ms Li as an interpreter to whom he was introduced at the meeting in Zhuhai in 1999.  He stated that he signed a contract with Mr Miller after he came to Australia for a second visit in January 2000.  He stated also that he had lost his investment of $250,000.

7.      On 10 May 2005 Federal Senator Tsebin Tchen wrote to the Minister for Immigration, Multicultural and Indigenous Affairs enclosing a summary of an alleged Investment Migration Fraud with details of what the Senator had been told by Mr Yang.  Again it refers to a first meeting in 1999 with Ms Li, an interpreter, Mr Armitage and Mr Miller. It describes a formal contract to invest $250,000 in APC, the concerns of Mr Yang as to his alleged shareholding and the failure of Mr Miller to submit a visa application for him.

8.      For the purpose of these proceedings, an affidavit of Mr Yang dated 9 April 2008 was tendered (Ex R1). In this affidavit he stated that he had heard of Mr Miller and Mr Armitage from a friend and before 30 September 1999 he met these two with Ms Li acting as interpreter.  It stated that his understanding that Mr Miller and Mr Armitage worked together and were offering a package deal whereby I would invest in a business owned by Mr Armitage and Mr Armitage and the applicant would allow me to migrate to Australia. On 30 September 1999, Mr Yang signed a contract with Mr Miller for preparation of applications for subclass 456, 457 and 845 visas.  Mr Yang then stated that he did not see Mr Miller in October or November 1999 but Ms Li gave him the 456 application to sign.  This application was approved on 18 November 1999. Mr Yang travelled to Australia from 5 to 15 December 1999.  He stated that Ms Li gave him another 456 visa application in December 1999.  He again visited Australia between 13 and 25 January 2000.  He said that on his first visit he visited the factory of APC.  On 13 January 2000 he invested $101,000 in APC with a further $60,000 on 15 May 2000. He believed that he was allotted 30 per cent of the issued share capital of APC.  Mr Yang stated that he met with Mr Miller and Mr Armitage in or about August 2000 in Guangzhou, China where a subclass 457 visa application was discussed and signed.  This visa was granted on 25 August 2000 and Mr Yang and his family arrived in Australia on 10 October 2000.

9.      Mr Yang stated that he contacted Mr Armitage by telephone on several occasions between April and July 2002 asking about progress on his subclass 845 visa application.  He did not contact Mr Miller.  He stated that he met with Mr Miller at the office of APC in late July 2002 where application forms for the 845 visa were completed and signed.  He said that the forms were given to a Mr Wall who accompanied him to the offices of DIMIA to lodge the applications.  Mr Yang said that he believed that one of the forms he signed appointed Mr Miller as his migration agent although this was said by DIMIA to have not been included.  Mr Yang stated that Mr Miller called him in or about February 2003, came to his house and informed Mr Yang that his agent’s registration had expired and Mr Yang should find another agent. Mr Yang stated that he had no further contact with Mr Miller and appointed a Mr P. Chan to act for him in relation to the 845 application.  After the visa application was refused, Mr Yang said that he contacted Mr Armitage who informed him that his investment had been lost.  There was no further contact with Mr Armitage. Subsequently, Mr Yang was granted a Skilled-Designated Area-sponsored subclass 139 visa.

10.     It was accepted by all parties that an agreement dated 30 September 1999 was entered into by Mr Yang and Mr Miller.  That agreement provided that:

·Mr Miller would prepare, lodge and arrange 456, 457 and 845 visa applications for Mr Yang.

·Mr Yang would immediately pay RMB2,500 to Mr Miller for his preliminary work and out of pocket expenses.

·Mr Miller would complete and lodge a 456 visa application on confirmation that Mr Yang had paid Australian Corporate Alliances Pty Ltd (ACA) A$30,000.

·Mr Miller would complete and lodge a 457 visa application on confirmation that at least A$102,000 had been invested in a suitable Australian business and at least A$100,000 had been deposited into Mr Yang’s new company bank account in Australia.

11.     On the same day an agreement was entered into between Mr Yang and ACA which provided that:

·ACA would arrange the formation of a new company in which Mr Yang would have a 75% shareholding for A$102,000.

·Mr Yang would commit to an investment of $202,500 being;

A$500 – non refundable contract signing fee
A$30,000 – first instalment of company investment
A$72,000 – balance of company investment
A$100,000 – funds for new company bank account to be controlled by Mr Yang.

·the $102,000 company investment to be applied by ACA to the acquisition of assets of an existing business and development of new business

·the $30,000 to be paid into a new Bank of China account requiring signatures of Mr Yang and Ms Li with a conditional order to pay such sum to ACA.

·Mr Yang would travel to Australia to further examine the business proposal within 21 days of grant of visa.

·If Mr Yang provides written notification within 28 days of visa approval of intention to withdraw from the contract, A$12,000 of the A$30,000 would be paid to ACA and $18,000 refunded to Mr Yang.

12.     The only evidence of any payment by Mr Yang was for an amount of A$101,000 paid direct to APC on 13 January 2000 and a further $60,000 paid direct to APC on 15 June 2000. In his oral evidence, Mr Yang did not think that he paid any money direct to Mr Miller although he also said that it was possible he paid Mr Miller some RMB. He believed he had given Mr Armitage RMB5,000.  He said that he assumed that ACA were acting on behalf of APC and that the A$30,000 was part of the A$160,000 paid. Mr Yang accepted that the agreement with ACA did not proceed but believed that its intention was followed with the $202,500 being renegotiated down to A$161,100.

13.     Mr Miller in his evidence gave a different version of the events.  He said that Ms Li introduced him to Mr Yang in September 1999.  He knew Mr Armitage from an earlier meeting in Taiwan at which he arranged to introduce Mr Armitage to a supplier of products in Taiwan.  He had since provided migration services on a few occasions for business clients of Mr Armitage.  He said that both agreements of 30 September 1999 were in existence when he arrived at the meeting in Zhuhai and he assumed that they had been prepared by Ms Li.  His understanding was that Ms Li was a law graduate from Melbourne University, had permanent residence status in Australia but, since 1989, had been mainly resident in Guangzhou, China.  He understood that she acted as agent for Chinese nationals.  He noted that the 30 September 1999 agreement with him required Mr Yang or his authorised agent to provide all information and documentation for preparation of visa applications.  He understood Ms Li to be that authorised agent.

14.     Mr Miller was firm that he prepared no visa application for Mr Yang because Mr Yang did not complete his side of the agreement by paying either the RMB2,500 to him or the A$30,000 or any funds to Act.  He understood that the 456 and 457 visa applications were prepared by Ms Li.  Mr Miller said that he was fluent in the Mandarin language and Ms Li did not act solely as interpreter as stated by Mr Yang.  He said that he did meet Mr Yang in Guangzhou in August 2000 at the request of Ms Li as he was in that city at the time.  He said that his sole role was to explain the visa procedures and requirements to Mr Yang.  He was adamant that he did not prepare the 457 visa application which he understood had already been lodged and he was not registered as a migration agent at that time.

15.     Mr Miller was also adamant that he had no part in the preparation of the 845 visa application in July 2000.  Having recently seen the application, he produced evidence that the computer software used in its preparation was not at that time available to him.  Mr Miller maintained that a submission showing his name but unsigned and attached to the visa application was not prepared by him.  He said that he did not believe that Mr Yang was of the opinion that there was any continuing contract for his services as a migration agent and, while he could not recall any such advice to Mr Yang in writing, he was firm that he had made it clear verbally. He maintained that the agreement was not terminated but, simply, did not ever come into force from the failure of Mr Yang to fulfil his obligations.

16.     One of the issues raised by MARA was a failure of Mr Miller to disclose to Mr Yang that he had personally invested in a company, Avin Operations Pty Ltd, in which Mr B Armitage was a director and shareholder and Mr C. Armitage a director.  This was said to produce a conflict of interest. The investment consisted of a loan of $45,000 made in July and August 1999 and was secured by a debenture of 7 July 1999.  Mr Miller said that Avin Operations Pty Ltd was a then operating company.  He was then resident in Taiwan and concerned about the future of that country.  He wished to invest funds outside Taiwan and was considering migrating to Australia.  He believed that this company controlled by the Armitages would be a good investment.  The investment has since been lost.  Mr Miller said that Avin Operations Pty Ltd was quite separate from APC of which he had no knowledge.  He did not consider there was any conflict of interest in that he was not required or intending to provide any investment advice to Mr Yang under the agreement as he understood that such a role was to be provided by Ms Li and Mr C Armitage. 

17.     The major problem with this matter was the substantial difference in the evidence of Mr Yang and Mr Miller.  It is basically the word of one against the other.  It is of some concern that he decision under review is based on the unsubstantiated allegations of Mr Yang against Mr Miller all of which he strenuously denied.

18.     It is noted that there are several problems with the evidence of Mr Yang.  In all of his written material he refers to Ms Li as an interpreter and, in his letter of complaint to MARA, clearly states that, in September 1999, he was introduced to Lucy Li who worked as an interpreter for Christopher and William.  He appeared to be at pains to restrict her role to that of interpreter.  However, in his oral evidence, he admitted that he had met Ms Li well before 1999 and she was a friend of his wife.  He conceded, also, that it was Ms Li who introduced him to Mr Miller and Mr Armitage.  He acknowledged that Ms Li accompanied him on his visits to Australia in December 1999 and January 2000.  In addition to APC, Ms Li accompanied him on visits to several companies unrelated to APC.  While he would not admit to her being his business advisor or agent, he did acknowledge that he trusted Ms Li and followed her advice.  He maintained that he paid no fee for her services and assumed she was paid by businesses for whom she found an investor such as himself.  The evidence of Mr Yang was that it was Ms Li who gave him the 456 visa applications to sign in November and December 1999.  It is clear that Ms Li was involved also in the 457 visa application in August 2000.  Ms Li was also a shareholder in Zhongtian Holdings Pty Ltd, a company established by Mr Yang in January 2000. 

19.     It is clear that the 457 visa application and the 845 visa application were based on the alleged fact that Mr Yang had both invested in an eligible business and maintained direct and continuous involvement in the management of that business.  Mr Yang was prepared to give evidence of such alleged participation to the MRT on his appeal against the refusal of his 845 visa application.  It is noted that the MRT affirmed the refusal decision solely on the basis that the business was under the control of an external administrator. His evidence to this Tribunal clearly demonstrated that he had little, if any, involvement in the management of APC or any other Australian business.  Whilst it would appear that Mr Armitage was prepared to assist Mr Yang in obtaining an Australian visa by having him invest in APC and allowing him to pretend to be involved in its management, I am satisfied that Mr Yang was aware of the visa requirements and was prepared to fabricate his alleged participation in management.

20.     The reason for the loss of the investment by Mr Yang is not a matter on which the Tribunal has adequate evidence nor is it a matter properly before the Tribunal.  Mr Yang alleges, without any evidentiary material, that a fraud was committed.  Mr Miller said that his understanding was that APC and its related companies failed because of an inability to compete with imported products.  The sole issue before this Tribunal is whether it can be said that Mr Miller was involved in any deliberate attempt to mislead Mr Yang.  There is simply no evidence to support such an allegation.  While it is clear that Mr Miller knew Mr Armitage prior to meeting Mr Yang and himself had invested money in a company controlled by the Armitage family, there is no evidence of his involvement in what Mr Yang alleges was a fraud against him.  The fact that Mr B Armitage, a director of APC until October 1999 and, it would appear, the father of Mr C Armitage, represented Mr Miller at the hearing indicates a close and continuing relationship with the Armitage family.

21.     A primary argument of Mr Miller was that the contracts of 30 September 1999 were not complied with by Mr Yang and Mr Miller had no obligation to perform the contracted service and did not do so.  It is clear that there is no evidence of the payment by Mr Yang of the RMB2,500 to Mr Miller or the payment of A$30,000 or any other amount to ACA.  The only evidence of payment was the $161,100 direct to APC.  Mr Yang acknowledged that the contract with ACA did not proceed.  The reason for the substantial change in the basis on which Mr Yang made his investment are quite unclear. 

22. The evidence of Mr Miller was clear and unequivocal. While making allowances for possible language difficulties of Mr Yang, his evidence was somewhat vague and, in some instances, clearly contradictory to what he had stated in his written complaints. It is accepted that he lost his investment, was angry and believed that he had been misled. However, it would seem that that anger was directed primarily at Mr C. Armitage and an assumption that, because he met Mr Miller at the same time as Mr Armitage that, somehow (unspecified), Mr Miller should be blamed also. It appears likely that some criticism could be levelled at Mr C Armitage in seeking to attract Chinese potential immigrants by lending his Australian business operations to a subterfuge that such as Mr Yang were legitimate business visa applicants. On the balance of probabilities I am satisfied that Mr Miller did not prepare visa applications for Mr Yang on the reasonable understanding that there was no completed contract to do so. Clearly Ms Li acted for Mr Yang to a much greater depth than he was prepared to admit. The involvement of a Mr Wall and a subsequent migration agent, Mr Peter Chan is unclear. It is relevant to note that, at the times when the 457 and the 845 visa applications were made, Mr Miller was not a registered migration agent. Section 311A of the Act applies only to the provision of migration assistance while registered.

23.     As indicated earlier, this is a case of different versions of accounts given by Mr Miller and Mr Yang.  On the basis of the evidence of both I am of the view that, on the balance of probabilities, the version of Mr Miller is the version which should be accepted.

24.     MARA was critical of the fact that Mr Miller did not disclose his investment in Avin Operations Pty Ltd to Mr Yang.  The investment was made in July and August 1999.  On 3 September 1999 an administrator was appointed to the company, prior to the date of that first meeting with Mr Yang.  However, the evidence indicates that, at that time, there was no clear arrangement for Mr Yang to invest in any company in which Mr Armitage was involved.  Mr Yang visited and considered several other unrelated businesses.  While Avin Operations Pty Ltd was controlled by the Armitage family there is no witness to suggest that it had any direct relationship with ACA.  While it may have been desirable for Mr Miller to have disclosed this investment to Mr Yang, I am unable to find that there was any conflict of interest.  It is possible to argue that, on the contrary, the knowledge of that investment may have given greater encouragement to Mr Yang to invest in another Armitage company.

25.     Having found that the evidence of Mr Yang was less than satisfactory and unable to be relied upon, I repeat my concern that MARA acted on this unsubstantiated allegation.  On balance, and considering all of the evidence, I am satisfied that the decision under review to bar Mr Miller from being registered as a migration agent for five years should be set aside.

I certify that the twenty-five (25) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H Pascoe, Senior Member

Signed:  Dianne Eva

Clerk

Dates of Hearing  9 April 2008, 16 April 2008, 29 April 2008
Date of Decision  30 July 2008
Advocate for the Applicant       Mr Barrie Armitage
Solicitor for the Respondent     Ms Katie Miller, Australian Government Solicitor