Mohammad and Migration Agents' Registration Authority
[2004] AATA 1401
•24 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1401
ADMINISTRATIVE APPEALS TRIBUNAL )
)No N2004/455 & 1068
GENERAL ADMINISTRATIVE DIVISION ) Re Arif MOHAMMAD Applicant
And
MIGRATION AGENTS' REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Ms R Hunt, Senior Member Date24 December 2004
PlaceSydney
Decision The Tribunal affirms the decision under review
….[sgd]Ms R Hunt…
Senior Member
CATCHWORDS
MIGRATION AGENTS’ REGISTRATION – suspension of applicant’s registration as migration agent – no repeat registration possible - breaches of the Code of Conduct for migration agents prescribed under Migration Agents’ Regulations 1998 - finding that Code of Conduct breached – finding that applicant not a fit and proper person to give immigration assistance – purpose of scheme to protect the public – part period of suspension already served.
LEGISLATION
Migration Act 1958 (Cth) ss. 290, 300, 303 and 314.
Migration Agents Regulations 1998 (Cth) sch 2. Code of Conduct.
REASONS FOR DECISION
24 December 2004 Ms R Hunt, Senior Member summary
1. The Applicant, Mr Arif Mohammad, was registered as a migration agent until 8 April 2004, when the Respondent (the Authority) decided to suspend his registration for 2 years for breaches of the Migration Agents’ Code of Conduct (the Code). The Tribunal stayed the Authority’s suspension decision conditionally on 19 May 2004 and 7 June 2004 so that the suspension did not take effect until 30 June 2004.
2. The suspension decision arose from complaints concerning Mr Mohammad’s conduct of 13 applications for protection visas. The Federal Court noted that in respect to one of Mr Mohammad’s clients, Mr Kumar, he had failed to lodge an application for review with the Refugee Review Tribunal (the RRT) within the required deadline. The Department of Immigration & Multicultural Affairs (the Department) notified the Authority about the conduct of this matter and 12 similar matters. The Authority found, after making enquiries and meeting with Mr Mohammad, that Mr Mohammad had failed to comply with aspects of the Code prescribed by section 314 of the Migration Act 1958 (the Act). Consequently, the Authority determined he was not a fit and proper person to give immigration assistance and made the suspension decision. In addition, on 19 July 2004, the Authority decided not to implement Mr Mohammad’s application of 20 January 2004 for repeat registration as a migration agent. At the hearing, the Tribunal heard the parties as to the suspension decision and the decision to refuse repeat registration on the same day. The Tribunal has decided that both decisions of the Authority should be affirmed for the reasons set out below.
law and issues
3. At issue is whether Mr Mohammad has breached certain clauses of the Code prescribed under section 314 of the Act . Section 314(2) of the Act requires a registered migration agent to conduct himself in accordance with the prescribed Code. The power to cancel or suspend an agent’s licence is enlivened by section 303 of the Act where breaches of the Code have occurred. The authority may suspend or cancel an agent’s registration under subsection 303(1). Under the terms of section 303(1)(f), the Authority may find that an applicant is not a fit and proper person to give immigration assistance and suspension or cancellation of registration may result. Once Mr Mohammad’s registration is suspended, repeat registration cannot take place as the relevant provision in section 300 is based on continuation of existing registration.
4. The Authority decided to suspend Mr Mohammad’s registration as a migration agent for a period of two years under paragraphs 303(1)(b) and 303(1)(h) of the Act for breach of several clauses of the Code. Those clauses of the Code in question include clauses 2.1, 2.4, 2.6, 2.8, 2.17, 2.18, 2.19, 2.23, 6.1 and 11.3. In particular, in view of the failure to lodge review applications with the RRT by the deadline and the comments of the Federal Court, I note that clause 2.18 provides that a migration agent must act in a timely manner if the client has provided all the necessary information and documentation for statutory deadlines.
5. As well, section 290(1) of the Act provides that an applicant must not be registered if the Authority is satisfied that, among other things, the applicant is not a fit and proper person to give immigration assistance. In reaching such a conclusion, the Authority is required to take into account the extent of the applicant's knowledge of migration procedure as well as any criminal convictions and other matters set out under the subsections.
6.
evidence and submissions
7. The complaints about Mr Mohammad came to the Authority’s attention through the Department. Mr Mohammad does not dispute that he provided immigration assistance to the applicants named by the Department, one of whom was the subject of a judgment by the Federal Court of Australia. The Court affirmed a decision by the RRT that the applicant had not made an application for review of a decision by the Department within the relevant statutory time period. The information from Department to the Authority was that "this case was one of 13 cases submitted by that agent with identical statements".
8. At the Tribunal hearing, the Authority’s representative conceded that the information supplied with the application for a visa made by Mr Mohammad, on behalf of the person who was the subject of the Court’s judgment, contained a different statement from the other 12 applications lodged by Mr Mohammad. The answer to question 39 of the protection visa application form read that the applicant “being a Hindu supports [sic] the Ethnic Muslim League in Kerala and have [sic] a different political social opinion to that of RSS”. The 12 remaining applications all answered question 39 by referring to an attachment. The attachment is a one page statement about the RSS and the fear of persecution claimed by the applicants. The 12 applicants were all Muslim according to the information supplied.
9. On 17 August 2001, the Authority asked Mr Mohammad to produce the originals of the 13 nominated client files. Mr Mohammad wrote that the 13 applicants had borrowed their files to make photocopies and never returned them up to the date of his response to the Authority. Before the Tribunal also is a letter dated 30 August 2000 from a Mr Muneer acknowledging receipt of the copies of the protection visa applications, which Mr Mohammad lodged on 23 August 2000, and undertaking to return them after copying. At the Tribunal hearing, Mr Mohammad produced 13 empty manila folders as evidence that he had kept files for the 13 clients. Copies of the actual applications were before the Tribunal but Mr Mohammad told the Tribunal he had never received his copies back from Mr Muneer.
10. At the heart of the charges against Mr Mohammad is evidence as to whether he lodged applications for review of the refusal decisions of the Department with the RRT. The Federal Court held that he had not made an application within the required time and so left the RRT without jurisdiction. The Court commented that, if Mr Kumar was to be believed, he had been placed in a very unfortunate situation by his migration agent.
11. Mr Mohammad gave oral evidence to the Tribunal that he had prepared review applications and attempted to lodge them on time. Mr Mohammad told the Authority and the Tribunal that he used a courier to deliver the applications on the last day for filing of the review applications.
12. The Authority requested a copy of the original courier docket, a copy of which Mr Mohammad had furnished on 4 October 2001. The copy and the original receipt before the Tribunal have been issued by “DCS World & Country Wide Courier Service”. Mr Mohammad explained that he used this organisation (“DCS”) for the delivery of the 13 applications to the RRT, but it appeared to have gone out of business since. Mr Mohammad said that he had been unable to make contact with this courier service. In evidence, Mr Mohammad referred the Tribunal to a copy of a newspaper advertisement placed by DCS as well as the receipt issued to him. The Authority’s representative suggested that the advertisement before the Tribunal and the docket were designed to mislead the Authority and the Tribunal. The advertisement, when translated into the English language, revealed that DCS was in the business of transporting presents to Pakistan and was not a local courier business. Mr Mohammad agreed that the advertisement described DCS’s business as delivery of gifts such as flowers, cakes and sweets to Pakistan but denied that this was the only business of DCS. When asked why he had produced the advertisement as evidence of his relying on a courier service to deliver the review applications to the RRT for lodgement, Mr Mohammad said that he may have seen another advertisement by DCS. He believed he had given more than one advertisement to his solicitor and was not sure what the advertisements had said. He denied that he had made false claims about having paid for delivery of the review applications to the RRT.
13. Before the Tribunal are copies of an “agreement of services” dated 13 August 2000 which has been signed by Mr Mohammad and Mr Mohamed Kutty Moorikunnan on behalf of 13 named applicants. The fee for services agreed is $US1500 for each of the 13 applications. There is also a letter dated 5 September 2000 addressed by Mr Mohammad to Mr Moorikunnan asking for the payment agreed and the return of copies of the applications.
14. Mr Mohammad told the Tribunal that he had received some money from the applicants in US dollars and for that reason had no banking record of the amount. He had not in fact banked the money as it presented a difficulty, not being in Australian currency.
15. Mr Mohammad also gave oral evidence about how he received initial instructions to act for the 13 applicants. It was a Sunday and he was playing cricket when he was asked to go to his office urgently. The applicants, 18 people in all, approached him as a group and asked him to prepare protection visa applications urgently before their visitor visas expired. 13 of the 18 people took his services.
16. One man told Mr Mohammad he was the leader of the group. He first took instructions from this man as he spoke Hindi and most of the people in the group spoke a language that he did not understand. He was instructed they all belonged to the same political group and had travelled to Australia as entertainers with the “Shastri Production Group”, in order to obtain visitor visas. They did not tell him if they were genuine film producers but said they all belonged to the Muslim League in Kerala. They had identical claims for protection so he prepared identical protection visa applications except that, as Mr Kumar was a Hindu, he added that fact to Mr Kumar’s application. The other members of the group were all Muslims.
17. Mr Mohammad did not worry about the lack of detail in the applications as he thought the Department would request more information and he would supply more details then. Mr Mohammad said he asked the applicants when they joined the party and they claimed they had left their membership cards at home. They all told him they had been arrested on 13 April 2000. He was not concerned that their stories were superficial as he thought they would provide more information later. He denied that he was less than diligent and told the Tribunal he had warned the applicants he needed more information.
18. Although it was put to him that the detail in the applications was scanty and identical for all but Mr Kumar and could have been prepared in little time, Mr Mohammad said that he spent most of a week interviewing the applicants. Mr Mohammad clamed that he saw all the applicants two or three at a time. As they spoke a language which he did not understand, an interpreter was present. He said the interviews each took three or four hours over a week. He saw all the individuals during the week following the initial approach on the Sunday. In the 13 application forms, he had correctly identified the essential details such as names, families and dates of birth.
19. When he received the Department’s rejection letters, he told the Tribunal that he tried to contact the applicants. He only had mobile phone numbers for them. Some of them said they would supply more information to him and some did not. They took a long time to approach him and he still had not been paid his service fees. He said he had agreed with the applicants to lodge appeals whenever someone came in to see him. When he prepared the RRT appeals, they were urgent and he did not have time to make copies before he gave them to the courier for delivery to the RRT.
20. Mr Mohammad said he did not enquire about whether the RRT received the applications until an applicant, who had been detained by the Department while working in a service station, rang him to complain that he was unable to obtain a bridging visa. Mr Mohammad then rang the RRT and learned that they had not received the applications. He then tried to contact the courier but no one answered the phone. Someone told him the business had closed.
21. Mr Mohammad argued that he had observed the Code except for the failure to include a statement about the existence and purpose of the Code in contracts with his clients.. Mr Mohammad believed that he had been diligent and said, regarding his not having contacted the RRT before the deadline for lodgement, “we can all look back”. He was aware of the requirements of the Code and did not concede that he failed the applicants. As to record keeping, he had kept copies of the visa applications and believed this was sufficient. He had explained why he had been unable to produce the copies to the Authority. He agreed that he had acknowledged to the Authority that he had kept inadequate records at the interview according to the transcript at T13, 117.
analysis
22. I have first considered the credibility of Mr Mohammad’s evidence about the length of time he spent interviewing his clients and recording their stories. I find it unlikely that Mr Mohammad spent the best part of a week on compiling the applications. Apart from the short statement in Mr Kumar’s application at question 39 that he is a Hindu, the responses in the other applications are virtually identical. An identical attachment has been included in each application to cover question 39 asking why the applicant thinks he or she will be mistreated “if you go back”.
23. I do not accept that the time taken to obtain copies of passport pages and to note down information set out in the application forms before the Tribunal was three or four hours for each applicant. The applications show passport numbers, names, addresses, details of dependents, language spoken, the occupations of the applicants and education they had obtained. While the spaces for appropriate responses at several points in the application form ask for details and are quite large or suggest that extra pages may be added, the responses supplied by Mr Mohammad are minimal. Most of the spaces for information to be inserted are left blank.
24. Mr Mohammad was retained to lodge the applications for a fee of $US1,500 as is clear from the ‘Agreement of Services’ before the Tribunal. The fee of $US1,500 is a considerable amount and does not in my view represent appropriate payment for the amount of work put into the applications indicated in the forms before me. While it may be correct that Mr Mohammad made efforts to contact the applicants by phone and never actually received the full payment agreed, Mr Mohammad has produced no record to substantiate that he did any more than lodge the initial scanty applications with the Department. He has produced no diary notes and no notes about the individuals concerned despite claiming lengthy interviews took place. His representative has argued that the applications are a sufficient record but the lack of any further records does not support his story about the time and effort he expended on the applications. I note as well that no financial or banking records have been produced although Mr Mohammad admitted to the receipt of some payment from his clients, albeit less than he required. Mr Mohammad has not indicated what amount he actually received. He has not produced evidence that he gave a receipt and kept the money’s separate from his personal funds.
25. As to Mr Mohammad’s further submissions in relation to the requirements of the Code, I note that his evidence according to the transcript of interview by the Authority, which is before the Tribunal, and that the evidence he gave before me has not always been consistent. For example, Mr Mohammad is recorded as telling the Authority’s interviewer that he was taking notes when speaking to the applicants, but he has produced no notes. Before the Tribunal, Mr Mohammad said he did not take notes but interviewed people two or three people at a time and filled in the forms. In the letter dated 10 May 2002 written by his solicitors to the Authority on his behalf, he describes all 13 applicants being in his office at a meeting and made no mention of smaller groups being interviewed subsequently. Mr Mohammad has produced several empty client folders to the Tribunal. However, he did not mention these folders previously according to the interview or in correspondence.
26. Mr Mohammad has given evidence that he took instructions to lodge review applications with the RRT. However, there is no conclusive evidence that he did lodge these applications. There are no copies of the review applications before the Tribunal. Mr Mohammad has told the Tribunal he did not have time to make copies and that he was also concerned about the cost of photocopies as he was still owed his service fees. His documentary evidence of lodgement consists of a receipt from the organisation which he claims he paid to deliver the applications to the RRT. The receipt is issued in the name of DCS, which advertised as a service that delivered presents to recipients in Pakistan. The advertisement before the Tribunal did not offer courier services in Australia.
27. The receipt proffered as evidence that Mr Mohammad did attempt to lodge the review applications does note as the delivery address the address of the RRT in Sydney, but does not refer to the name of the organisation. There is nothing before the Tribunal to show that the documents ever arrived at the RRT. The veracity of the receipt cannot be independently tested as the issuer has ceased to trade. Mr Mohammad did not follow up his late effort to lodge the review applications until well after the due date. Mr Mohammad told the Tribunal he made enquiries about whether the RRT received the applications only after one of his clients was detained and refused a bridging visa. He did not previously check whether the review applications arrived at the RRT. At best, the evidence before the Tribunal that Mr Mohammad attempted to lodge the review applications for his 13 clients is slim.
28. In terms of the Code, I have first considered the requirements of clause 2.1. This requires that an agent act in accordance with the legitimate interests of the client. On balance, I find that, by failing to address the specific history of the 13 clients who came to him for his professional assistance and lodging 13 applications containing the same claims without any attempt to differentiate their circumstances, Mr Mohammad has not acted in accordance with the legitimate interests of his clients and infringes clause 2.1(a) of the Code. Further, by not lodging applications for review with the RRT he has not acted competently, diligently and fairly towards his clients.
29. In regard to clause 2.4, which states that a migration agent must have due regard to a client’s dependence on his or her knowledge and advice, I find on balance that Mr Mohammad has not demonstrated due regard to the interests of the clients but has based his poor conduct of their applications on his dissatisfaction with being underpaid. He has allowed this to adversely colour his conduct of these applications. He has not formally withdrawn his services for non-payment but has simply provided inadequate service. Mr Mohammmad has given oral evidence that he asked the clients for more information. However, in my opinion, he has not provided reliable evidence that he advised the clients about the prospects of success of the visa applications or of the review applications. It follows that, on balance, I am satisfied he breached clause 2.4 of the Code.
30. Concerning clause 2.6, Mr Mohammad has not demonstrated that he was frank and candid about the prospects of success of the 13 applicants. He has given oral evidence that the parties indicated they would furnish more information and that they failed to do so despite his calls for supporting documentation. I have not made a finding on this point as I accept Mr Mohammad’s expectation that more information would be forthcoming. His letter to Mr Moorikunnan requesting payment is some confirmation that he expected to have a continuing relationship at least to this extent.
31. Concerning clause 2.8, I am satisfied that Mr Mohammad has not duly kept his clients “fully and regularly informed in writing of the progress of each case or application”. In addition, he has not informed them in writing of the outcome of the applications “within a reasonable time” or at all. He has offered the excuse that he did not have forwarding addresses for the clients or that they kept on changing addresses. However, it is notable that he did write to Mr Moorikunnan about his outstanding fees. He might equally have written to Mr Moorikunnan about the progress or otherwise of the applications. Mr Mohammad has not suggested that he did ever write to his clients. The Respondent has submitted that the clients knew of their position only because the Department wrote to them and they contacted Mr Mohammad. Mr Mohammad claimed that he chased them by phone but he has produced no record of conversations. He produced empty manila folders to the Tribunal at the hearing of his case and I find these are further evidence that he undertook no correspondence with his clients apart from the letter to Mr Moorikunnan produced. I therefore find that Mr Mohammad has breached clause 2.8 of the Code.
32. Clause 2.17 requires an agent not to encourage a client to lodge vexatious or grossly unfounded applications. I am not satisfied that Mr Mohammad breached every aspect of these requirements. While the applicants’ claims are deficient on essential detail and almost indistinguishable from each other, there is some possible basis for the claims made. To label them vexatious or grossly unfounded is excessive. However, Mr Mohammad would have been wise to obtain acknowledgement from the clients that he had given advice to them that their claims might be rejected without supporting evidence as provided in clause 2.17(c).
33. The Respondent has suggested that Mr Mohammad also breached clause 2.18 as, producing the courier’s receipt has made it possible to conclude that he must have had all the necessary information from his clients in time to meet the statutory deadline. I am not convinced that Mr Mohammad’s actions show that he ever had “all the necessary information and documentation in time for statutory deadlines”. In view of the poor level of information in the original visa applications and the lack of any further information put before the Tribunal, the more accurate position seems to be that Mr Mohammad acted without adequate instructions. I therefore have not found breach of clause 2.18 established.
34. Clause 2.19 states that an agent has a duty to provide sufficient information to the Department to allow a full assessment of all the facts against the criteria. I consider that Mr Mohammad has failed to do this. It may be that this conduct is excused by the proviso that the agent’s duty is expressed to be subject to a client’s instructions. I further note that each application contained personal details of the principal applicant and family. Accordingly, I have not made as finding that Mr Mohammad breached clause 2.19.
35. Clause 2.23 provides that a migration agent must take all necessary steps to maintain the reputation and integrity of the migration industry. The lodging of 13 almost identical applications with the Department caused an adverse reaction and resulted in failure of the applications. The Federal Court judgment also reflected badly on the industry in that it highlighted that, if Mr Kumar’s account was to be believed, Mr Mohammad had placed him in a very bad situation. Mr Kumar’s account largely has been confirmed by Mr Mohammad in that he has failed to show that he did lodge Mr Kumar’s review application. At best, he has shown that he paid a courier to deliver some documents to the address of the RRT. I therefore find on balance that Mr Mohammad did breach clause 2.23 of the Code.
36. Mr Mohammad claimed that he had no records about his clients as he had been obliged to hand over his files at the request of the clients. As to the requirements of clause 6.1 of the Code, nevertheless, I find that Mr Mohammad failed to maintain proper records. This finding is based on his own admissions as well as absence of documents before the Tribunal. Mr Mohammad has admitted to the Tribunal that he did not write to the clients. He has not produced any file notes although he claims to have noted the clients’ individual claims at interview. His counsel suggested that the copies of the visa applications which he had kept were sufficient to meet requirements. I do not agree with this submission and note that, apart from the copies which are missing but supposedly with the applicants, Mr Mohammad has produced no record of correspondence with the Department, with the clients and with the RRT. He produced only the one agreement for services, a receipt from a courier, some empty folders and a letter to Mr Moorikunnan, as records of his transactions with the 13 clients.
37. Finally, I find that Mr Mohammad breached clause 11.3(a) in that he did not include a statement about the existence and purpose of the Code in the contract made with the clients. He has produced only one contract which he made with Mr Moorikunnan on behalf of the clients. He has not produced individual client contracts, which reinforces the perception that he did not treat them as individuals with distinct claims for protection. The one contract that Mr Mohammad has produced contained no reference to the Code of Conduct. Mr Mohammad has admitted to this breach in his written submission to the Tribunal. His counsel has submitted that this omission is not one warranting 2 years suspension.
conclusion
38. Taking the findings above into account, and noting the lack of attention Mr Mohammad displayed towards the individual needs of his clients, I have decided that the decision of the Authority should be affirmed. Mr Mohammad has already served part of the suspension period of two years since June 2004. Because he has not been a registered migration agent since his suspension, it follows that he is not entitled to repeat registration pursuant to section 300(2) of the Act.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt, Senior Member.
Signed: .....................................................................................
Associate: Reuben MansourDate of hearing 12 October 2004
Date of decision 24 December 2004
Solicitor for the Applicant Michael Jones LawyersSolicitor for the Respondent Australian Government Solicitor
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