Muthu and Migration Agents Registration Authority
[2004] AATA 608
•16 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 608
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2003/1225
)
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTOPHER SULAWET MUTHU Applicant
And
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Ms G Ettinger – Senior Member Date16 June 2004
PlaceSydney
Decision The Tribunal affirms the decision under review, being the decision made on 14 July 2003 by the Migration Agents Registration Authority (“MARA”) to cancel the registration of Mr Christopher Muthu as a migration agent pursuant to section 303(h) of the Migration Act1958 as he had not complied with the Migration Agents Code of Conduct from time to time. The Tribunal also affirms the decision of MARA made pursuant to section 303(f) of the Act, finding that Mr Muthu was not a person of integrity, or that he was otherwise not a fit and proper person to give immigration assistance.
[Sgd] Ms G Ettinger
Senior Member
catchwords
Migration agent – registration –– cancellation of registration – Applicant failed to comply with designated clauses of the relevant Codes of Conduct for migration agents – Applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance - decision affirmed.
legislation
Migration Act 1958 – ss 4, 290, 303, 314
Migration Agents Regulations 1998 – Code of Conduct (as at 1 August 1996, & 1 April 1998)
case law
Hakaoro and Minister for Immigration and Multicultural Affairs (1998) 26 AAR 534
Hughes and Vale Pty Ltd and Anor v State of New South Wales and Ors [No.2] (1955) 93 CLR 127
Lilienthal and Migration Agents Registration Authority (2001) 66 ALD 249; (2002) 34 AAR 371
Cunliffe and Anor v Commonwealth of Australia (1944) 182 CLR 272
Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12, 19 January 1998
ReLachmaiya and Department of Immigration and Ethnic Affairs(1994) 19 AAR 148
REASONS FOR DECISION
16 June 2004 Ms G Ettinger, Senior Member BACKGROUND
1. The matter for review before the Administrative Appeals Tribunal (“the Tribunal”) was the decision of the Migration Agents Registration Authority (“MARA”), the Respondent in these proceedings, which decided on 14 July 2003 to cancel the registration of Mr Christopher Muthu as a migration agent pursuant to section 303(h) of the Migration Act1958 (“the Act”) as he had not complied with the Migration Agents Code of Conduct, (“the Code”), from time to time. Further MARA stated that it was satisfied pursuant to section 303(f) of the Act that Mr Muthu was not a person of integrity or that he was otherwise not a fit and proper person to give immigration assistance.
2. The following Clauses of the Code were found by MARA to have been breached by Mr Muthu.
3. In relation to Complaint 1 (Re Mr Zaman Qamar & Mr Zuwen Richard Yuan):
The Code of Conduct applicable at 1 August 1996
Clauses 6, 7A, 23, 24, 27
The Code of Conduct applicable at 1 April 1998
Clauses 2.3, 2.8(a), 2.17, 2.19, 2.21, 2.23, 5.2(a), 5.2(b), 5.2(c), 5.4, 6.1(c), 7.4
4. In relation to Complaint 2, (Re Mr Danilo Bundoc):
The Code of Conduct applicable at 1 April 1998
Clauses 2.1, 2.3, 2.4, 2.6, 2.7, 2.8, 5.2, 6.1
5. At the Hearing Mr Muthu was represented by Mr M Newman of Newman and Associates, and the Respondent by Mr A Markus of the Australian Government Solicitor.
ISSUES FOR DETERMINATION
6. The issue for determination before me was the claim by Mr Muthu against the decision of MARA made on 14 July 2003 to cancel his registration as a migration agent pursuant to section 303(h) of the Migration Act1958 (“the Act”) as he had not complied with the Code, from time to time. Further MARA stated that it was satisfied pursuant to section 303(f) of the Act that Mr Muthu was not a person of integrity, or that he was otherwise not a fit and proper person to give immigration assistance.
7. In deciding what was the correct and preferable decision, I had to consider:
(a) Whether the Applicant failed to comply with designated clauses of the relevant Codes of Conduct for migration agents prescribed by the Migration Agents Regulations 1988 pursuant to section 314(1) of the Act:
· Clauses 6, 7A, 23, 24 and 27 of the Code applicable at 1 August 1996;
· Clauses 2.3, 2.8(a), 2.17, 2.19, 2.21, 2.23, 5.2(a), 5.2(b), 5.2(c), 5.4, 6.1(c), and 7.4 of the Code applicable at 1 April 1998;
(b) whether the Applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance pursuant to section 290 of the Act.
(c) Whether the decision by MARA to cancel Mr Muthu’s registration as a migration agent on 14 July 2003 should be affirmed, varied or set aside.
RELEVANT STATUTORY PROVISIONS AND REGULATIONS
8. The provisions of the Act relevant to this application are:
“4(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
9. What is relevant to this application is that pursuant to section 290(1) of the Act, an applicant must not be registered if MARA is satisfied that the applicant is not a fit and proper person to give immigration assistance; or the applicant is not a person of integrity.
10. Pursuant to section 290(2) of the Act, in considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, MARA must take into account a number of indicia (a) to (h) which are dealt with further on in these reasons.
11. Pursuant to section 303 of the Act, there is a discretion to cancel or suspend registration, provided MARA becomes satisfied that the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance or the agent has not complied with the Code of Conduct prescribed under section 314.
EVIDENCE BEFORE THE TRIBUNAL
12. The Tribunal had before it documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), the T-documents Volume 1 as Exhibit R1, and Volume 2 as Exhibit R2.
13. The Applicant and the Respondent each tendered additional written material which I have taken into account in making the decision. I note here in particular, the oral evidence of Mr Muthu, the statement of Mr Zuwen Richard Yuan, which was Exhibit A1 before the Tribunal, and the statement of Mr Danilo Bundoc, Exhibit R4.
SUBMISSIONS AND CONCLUSIONS
14. I had to take into account all the evidence, submissions, relevant legislation, the Migration Agents Code of Conduct and relevant case law to make the correct and preferable decision regarding whether the cancellation of Mr Muthu’s registration as a migration agent, MARA’s findings regarding breaches of the Code, and MARA’S finding that Mr Muthu’s was not a person of integrity and that he was otherwise not a fit and proper person to give immigration assistance, should be affirmed, set aside or varied.
15. When the matter commenced, Mr Newman informed me that he was instructed Mr Muthu conceded all issues with regard to both complaints, Complaint No.1 being that of Mr Marriott concerning Mr Zaman Qamar and Mr Zuwen Richard Yuan, and Complaint No.2 regarding Mr Danilo Bundoc.
16. Mr Newman, by reference to the criminal law, submitted that as Mr Muthu conceded all issues, the only issue before the Tribunal was penalty. What followed was discussion regarding whether Mr Muthu was required to give evidence. I considered it important to hear from the Applicant, and Mr Markus submitted that he wanted to cross-examine Mr Muthu which he was entitled to do. Accordingly Mr Muthu was called to give evidence.
17. Mr Newman also raised Complaint No.2 with regard to Mr Danilo Bundoc with me, referring to T72/568, a letter from MARA to Mr Bundoc dated 14 February 2001. Mr Newman sought to rely on that letter and to submit that the complaint of Bundoc had been finalised by that letter which stated relevantly:
“The Authority considered your complaint at its meeting on 14 November 2000.
The decision of the Authority found that the Agent demonstrated a less than sound working knowledge of migration procedures.
The Agent is therefore required to complete a sound knowledge course prior to his next registration a migration agent in addition to completion of his mandatory Continuing Professional Development requirements.
Once the Agent completes the sound knowledge course and his mandatory CPD requirements the matter will be closed. …”
18. I noted the submissions, but referred Mr Newman to T2, the reviewable decision which included Mr Bundoc as Complainant No.2. As Mr Muthu had appealed the findings to the Tribunal, I had to determine the issues raised.
19. Notwithstanding Mr Newman’s opening concessions made on behalf of Mr Muthu, the Applicant argued, almost immediately after commencing his evidence, that he did not concede breaches of the Code as found by MARA. Mr Muthu gave his evidence in chief, followed by cross-examination. Mr Muthu, whose date of birth is 30 May 1960, said that he migrated to Australia on 29 October 1989 and became an Australian citizen in March 1992. He commenced work as a migration agent in 1997.
20. I found it difficult to elicit replies from Mr Muthu, who was, I found, being evasive. He also gave inconsistent answers to questions asked of him. Accordingly, I addressed this with Mr Muthu, and quote here from page 41 of the Transcript of the Hearing, as follows:
“There are some inconsistent answers you have given, sometimes two or three times, and I need to point that out to you because ultimately it will be up to me to assess that evidence. You have been very unclear about your knowledge of the code, what you understood and what you did. Just then you said you were not ignoring the code but you weren’t clear about the extent of the severity (sic). Earlier on you said the costs agreement covered everything, the clients knew what their obligations were, and in a small business things are done differently. So that is a completely different answer and ultimately if you want me to believe you, that is going to be very difficult because your answers have been very, very different each time to the same question, ….”
21. Mr Muthu’s cross-examination by Mr Markus concluded abruptly towards the end of the morning of the Hearing when the Applicant asserted that he had been unfairly treated by MARA, that there had been deliberate efforts to discredit him by the airing of his name on a television program on the ABC, as well as claiming that MARA had removed documents from his files which he had submitted at their request.
22. The cross-examination of Mr Muthu by Mr Markus with regard to the complaint of Mr Yuan, and in relation to Clause 7A of the Code precipitated the sudden conclusion of the cross-examination, which was followed by the luncheon adjournment. I have reproduced a part of the cross-examination here. (Transcript, page 45).
Mr Muthu: “I think that there is a letter given to the Tribunal confirming this fact, you know, this particular clause 7A of the code talks about confirming client’s instructions in writing, if I’m correct, and act in accordance with the client’s instructions and keep the client fully and regularly informed in writing of the progress. Well, Richard (Yuan) was next door to my office – … I was in 4 Station Street and he was in 6 Station Street.”
Mr Markus: “Did you comply with these requirements?”
Mr Muthu: “I did comply with this one and basically not as per the interpretation of MARA, the way they have interpreted it, no.”
Mr Markus: “Your evidence is that you in fact complied with these requirements. Now Mr Muthu, your file in relation to Mr Yuan appears, I think, or commences at page 115 of the exhibit that is presently before you. Could you please identify to the Tribunal your written confirmation of your instructions in that matter.”
Mr Muthu: “There is no written confirmation there.”
...
Mr Markus: “Mr Muthu you are taking a lot of time.”
Mr Muthu: “Yes, because I can’t sort of see that – I sent all my files to MARA and they returned it – for almost two years. … And they sent it back to me with lots of documents missing …”
Mr Markus: “Is it your evidence that MARA - that there are documents missing from your files?”
Mr Muthu: “Two years later they send it back to me.”
…
Mr Markus: “You are serious Mr Muthu? You are making the allegation that MARA has removed documents from your original files?”
Mr Muthu: “Well, what they are determined to do towards me, I can’t even, you know, you see …”
Mr Markus: “… Mr Muthu, you just explained to the Tribunal earlier today and the Tribunal has already warned you about your inconsistent evidence, but you have just told the Tribunal that you operate differently in a small office. You don’t always make file notes, you don’t always confirm things in writing. You have said that you – inconsistently with that proposition – you have said that you have failed to understand the import or the significance or the meaning of the code of conduct. Now you are saying that in fact you probably have complied with the code, but MARA has removed documents from your files. That is your evidence is it?”
Mr Muthu: I said quite a few documents are missing when they – like roughly two years they held the papers and send it back to me.”
Mr Markus: “Mr Muthu, thank you. I am finished, thank you.”
23. Immediately after the luncheon adjournment, Mr Newman held up a prescription for a drug, Diaformin, saying that Mr Muthu’s “bizarre” answers to questions about the loss of his documents by MARA before the luncheon adjournment had been due to the effects of his diabetes. Mr Newman indicated that Mr Muthu was under doctor’s orders to take two tablets with breakfast, and one at night. He suggested that diabetes was known to cause effects on cognition and suggested perhaps a medical opinion should be sought. I asked Mr Newman:
“Is that what you are really asking? Or really asking as to try and redeem a situation where someone has not told it as it is ..?”
Mr Newman: “You may be right but I don’t know. I really don’t.” Mr Newman asked permission to recall Mr Muthu to explain. I permitted that course.
24. When Mr Muthu was recalled, he apologised for having said that documents had been purposely withheld or taken from his files, saying that was not what he had intended. He did not however, at any time during the Hearing retract the statement that documents were missing from the files he had given to MARA.
25. Mr Muthu told me however that he had not had breakfast or his medication because he had been in a hurry to get to the Tribunal that morning. However he was either unwilling or unable to say he felt unwell, and indicated instead that he had drunk water during the morning of the Hearing.
26. In connection with health issues, I was mindful that prior to the Hearing, Mr Newman had written to the Tribunal on 12 May 2004 attaching a faxed medical certificate of Dr B S Aggarwal, orthopaedic surgeon of Panchkula, India dated 10 May 2004. In it, Dr Aggarwal stated that he had examined Mr Muthu at the Hotel Mount View who “complained of severe back pain after air travel with inability to walk on his right leg. I diagnosed him as suffering from acute PIVD with right sided sciatica. I have advised him complete rest in bed for at least six weeks.” Dr Aggarwal also prescribed medication for Mr Muthu. Mr Newman stated in his letter of 12 May 2004 to the Tribunal that he was seeking clarification of Mr Muthu’s fitness to travel, to ascertain whether he would be attending the Hearing at the Tribunal scheduled for 19 May 2004.
27. In fact Mr Muthu did attend the Hearing (albeit arriving late). In his oral evidence during the morning of the Hearing, however, Mr Muthu did not mention anything about having been ill. He did express general dissatisfaction over the way the Respondent had treated him, and added “… And then my family is almost like, you know, it is in the way of separation since last year, and it’s a disaster situation I have to run away to look after my 80 year old mother to India.” (Transcript page 21).
28. During the morning I had drawn the inconsistencies in his evidence to Mr Muthu’s attention, and indicated that I did not have confidence that he was answering questions directly. My doubts about his credit were confirmed when he was recalled. (Transcript pages 51 – 57).
APPLICANT’S SUBMISSIONS
29. Mr Newman submitted that MARA had been “spiteful” with regard to Complaint No.1, made by Mr Marriott. He referred to the Complaint at T9/63 and paragraph 12 of page 64 where Mr Marriott had stated, in relation to Mr Qamar, that:
“In this instance, it is my view that Mr Muthu has conspired with his client to lodge an application which both he and the client knew was not genuine. In doing this, it is further my view that Mr Muthu is an agent lacking in professionalism and integrity.”
30. Mr Newman referred me to the Conduct Advisory Panel Recommendation dated 7 December 2000 (T18/79 & 80), submitting that the Panel had recommended dismissing the complaint.
31. Mr Newman referred further to the complaint about Qamar, submitting that from Ms Jamieson’s point of view, the marriage was genuine, and that she had indicated she sought emotional support from Mr Qamar.
32. Mr Newman also referred me to T18/81, where the Panel had discussed a lack of professionalism (but he submitted, not integrity), on Mr Muthu’s part. He submitted further, that for integrity to come into play, there must have been dishonest intent, and not just a failure to write letters as described in paragraph 59 of Exhibit R3, the Respondent’s Statement of Facts and Contentions. In that regard Mr Newman submitted that Mr Muthu had been linked with technical breaches of the Code and his situation could not be compared with that for example, in Lilienthal and Migration Agents Registration Authority (2001) 66 ALD 249; (2002) 34 AAR 371, where the Applicant had claimed (without such qualifications), to be a rabbi and a lawyer, and where the totality of events pointed to serious breaches.
33. Mr Newman submitted that Mr Muthu’s case was a very different one from Lilienthal (supra), and not one where the cancellation of the registration was appropriate. Rather, he submitted, it was a case of being made aware that the Code had to be adhered to by the undertaking of further education or supervision, and by giving undertakings.
34. Mr Newman also referred to the complaint about Mr Yuan. He submitted that there had been breaches of the Code in regard to the matter Mr Muthu had handled for Mr Yuan, but that there was no dishonesty by Mr Muthu. He emphasised that Mr Yuan worked next door to Mr Muthu, who accordingly had not sent correspondence next door. He agreed with the finding of MARA that little correspondence had been sent from Mr Muthu to Mr Yuan.
35. In relation to the complaint of Mr Bundoc, Mr Newman submitted that MARA had occasioned delay in dealing with the complaint. He drew my attention to the letter at T71/567 dated 7 February 2001, which was that of Mr Bundoc referring to his complaint lodged on 30 July 1999, and inquiring about a time frame for processing complaints. Mr Newman also said that it was “obscene” that the complaint of Mr Bundoc had been raised by MARA in its decision to cancel Mr Muthu’s registration as a migration agent, given its letter of 14 February 2001 (T72/568). In it Mr Newman emphasised, MARA had written that:
“The decision of the Authority found that the Agent demonstrated a less than sound working knowledge of migration procedures.
The Agent is therefore required to complete a sound knowledge course prior to his next registration …
Once the Agent completes the sound knowledge course and his mandatory CPD requirements the matter will be closed.”
36. Mr Newman submitted that Mr Muthu had completed the educational requirements, and that MARA’s letter of 14 February 2001 disposed of the complaint. He also submitted that any breaches were technical only, and submitted that Mr Muthu’s integrity was not attacked in relation to the Bundoc complaint.
37. Mr Newman also raised the complaint of Mr Muthu that he had, at the relevant time, suffered detriment because his name had been aired on ABC television in relation to the activities of migration agents which had been criticised.
RESPONDENT’S SUBMISSIONS
38. Mr Markus referred to Exhibit R3, the Respondent’s Statement of Facts and Contentions, submitting that the Respondent relied on every breach mentioned therein.
39. Mr Markus remarked on the inconsistencies in the Applicants’ evidence, noting that at the commencement of the Hearing, he had, (through Mr Newman), conceded all the breaches as found by MARA, followed by retractions.
40. Mr Markus said that he had stopped his cross-examination short because he had formed a view that Mr Muthu had demonstrated a level of untruthfulness in giving his evidence which established his lack of integrity, warranting the affirming by the Tribunal of the decision of MARA. He referred me to section 290 of the Act and the powers in section 303 of the Act.
41. Mr Markus raised the case of Re Hakaoro andMinister for Immigration (1998) 26 AAR 534 in regard to the issue of Mr Muthu’s integrity, and the finding of MARA that he was not a fit and proper person to give immigration assistance. He referred me to pages 540 & 544 of the judgment, in which I noted the meaning of a “fit and proper person” and case law in that regard was discussed.
42. Mr Markus also submitted that Mr Muthu, notwithstanding inconsistencies in his evidence, admitted that since his registration as a migration agent in 1997 he had been aware of the statutory requirements regarding the Code pursuant to section 314(2) of the Act. Mr Markus reminded me that Mr Muthu had given evidence that he had the Code displayed in his office as he was required to do, and that he was aware that it was to inform his clients of their rights and obligations. Mr Markus pointed out also that notwithstanding the awareness of the Code Mr Muthu had expressed, he had also excused himself with regard to his breaches of it by saying he was a small business and therefore operated differently, and also had made a further excuse that he lacked training, and did not understand the requirements of the Code fully. In that regard Mr Markus submitted that Mr Muthu was aware of his statutory obligations and yet declined to comply with them, or in the alternative, was aware of the Code and the obligations under it, yet did not bother to take the time to familiarise himself with it sufficiently.
43. Mr Markus also submitted that Mr Muthu several times in his evidence intended to mislead the Tribunal, namely after admitting that he had not kept file notes and generated appropriate correspondence, then alleging that his client files were defective because MARA had removed documents from them. Mr Markus submitted further that Mr Muthu’s lack of integrity was demonstrated in the way he conducted his practice, either deliberately breaching requirements of the Code, or in the alternative that he did not bother to take the time to familiarise himself with it sufficiently.
44. Mr Markus also raised the issue of Mr Newman’s submissions regarding Mr Muthu’s acceptance of the breaches of the Code in relation to Mr Bundoc, with Mr Newman also raising the letter at T72/568 which MARA wrote to Mr Bundoc about Mr Muthu obtaining further education, and representing that as the complaint having been resolved. The fact was, Mr Markus submitted, that the letter at T72 was not the determination of MARA which was in fact at T2, and made findings against Mr Muthu in respect of Mr Bundoc’s complaint.
45. As to the comments regarding Mr Marriott being spiteful; Mr Markus submitted that the complaint had been made (Qamar and Yuan), and dealt with by MARA, and that was the relevant document for the Tribunal. Mr Markus, referring to Mr Marriott’s complaint, submitted that Mr Muthu should have been aware of Ms Jamieson’s condition when he witnessed her statutory declaration, and realised that the marriage to Qamar was not a genuine marriage.
46. Mr Markus also submitted that lodging applications without the relevant documentation, and with therefore unlikely prospects of success which Mr Muthu had done, indicated either he did not care about his client, or had reservations about whether he was able to provide the evidence. He also submitted that due to the lack of file notes and correspondence, it was difficult to discern what Mr Muthu’s instructions were, in particular cases. This went to integrity and fitness to give immigration assistance, he said.
47. Mr Markus submitted that by being truthful at the Tribunal, Mr Muthu could have improved his condition. However given his conduct before the Tribunal, in particular in relation to the issue raised with regard to the medication after the luncheon adjournment, Mr Markus likened Mr Muthu’s case to that of Lilienthal (supra).He submitted that the decision for the Tribunal had been made easier as a result of the evidence the Applicant gave, because he had given “deliberately untruthful responses to the Tribunal” and attempted to mislead the Tribunal.
48. Accordingly Mr Markus submitted that the decision of MARA to find that Mr Muthu breached relevant clauses of the Code and was not a person of integrity or a fit and proper person to give immigration assistance be affirmed.
CONSIDERATION OF MARA’S FINDINGS OF BREACHES OF THE CODES OF CONDUCT
49. I moved then to consider the breaches of the 1996 and 1998 Codes found by MARA, noting that Mr Newman did not address each clause found to have been breached, either in the Applicant’s Statement of Facts and Contentions, through Mr Muthu or in submissions. Mr Markus stated that he relied upon the detail in the Respondent’s Statement of Facts and Contentions, and did not address each breach separately either at the Hearing. I have considered the evidence, submissions and documents before me. I did not have before me Mr Muthu’s files regarding Qamar, Yuan and Bundoc.
THE CODE OF CONDUCT FOR MIGRATION AGENTS MADE PURSUANT TO THE MIGRATION AGENTS REGULATIONS 1988 AND THE MIGRATION ACT 1958
50. Section 314 of the Act provides that the Regulations may prescribe a Code of Conduct for migration agents. As relevant section 314 follows:
“314 Code of Conduct for migration agents
(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.”
51. I was mindful that Mr R Marriott, a departmental officer made Complaint No.1 which was with regard to the conduct of Mr Muthu in handling migration matters relating to Mr Zaman Qamar and Mr Zuwen Richard Yuan. The breaches with regard to Mr Qamar and Mr Yuan related to the Code as at 1 August 1996 as well as various clauses relating to the Code as it applied at 1 April 1998, whereas the breaches relating to Complaint No.2 (Mr Danilo Bundoc), which is also discussed in the paragraphs below, related only to the Code as it applied at 1 April 1998.
52. MARA concluded that:
“Section 314(2) of the Act states that a registered agent must conduct himself in accordance with the prescribed Code of Conduct. The Authority, pursuant to section 303(a) of the Act and following consideration of the facts before it, to cancel the registration of the Agent by removing his name from the register as it was satisfied pursuant to section 303(h)of the Act that the Agent has not complied with the Code of Conduct applicable from time to time and, further, as it was satisfied under section 303(f) of the Act that the agent is not a person of integrity or he is otherwise not a fit and proper person to give immigration assistance.”
COMPLAINT NO.1
RE MR ZAMAN QAMAR AND MR ZUWEN RICHARD YUAN
clause 6 of the code of conduct as at 1 august 1996
“6. An agent’s professionalism should be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and a capacity to provide accurate and timely advice. An agent must treat clients fairly and give due regard to their dependence on the agent’s knowledge and experience. An agent must take appropriate steps to maintain and improve his or her knowledge of the Migration Act and Migration Regulations and keep that knowledge up to date, for example:
. by maintaining a library containing the latest version of the Act, new Regulations and amendments to old Regulations, and the Procedures Advice Manual;
. by undergoing a written or oral examination, or both, when appropriate.”
53. MARA held that Mr Muthu failed to demonstrate a sound working knowledge of the Migration Act and Migration Regulations, and a capacity to provide accurate and timely advice in contravention of Clause 6 of the Code of Conduct as at 1 August 1996. In particular, MARA held that Mr Muthu breached Clause 6 of the Code because he lodged an application on behalf of Mr Yuan in circumstances in which Mr Yuan did not hold a qualifying visa.
54. The Applicant’s evidence was that he had knowledge of the Codes and legislation, having been registered as a migration agent since 1997. However he submitted that at the time, the requirements were less stringent.
55. In the Applicant’s Statement of Facts and Contentions, Mr Muthu submitted that he made a visa application on behalf of Mr Yuan on the basis that his client held a qualifying visa. Accordingly, he submitted there was no breach of Clause 6 of the 1996 Code, neither of Clause 2.3 of the 1998 Code.
56. Mr Markus, in his Statement of Facts and Contentions, submitted the finding of MARA that Mr Yuan was not the holder of a qualifying visa at the time of lodgement of his application justified its finding that Mr Muthu had breached the Clauses of the Code.
57. I have taken both submissions into account, and refer to the evidence given and submissions made. I have accepted the detail regarding Mr Yuan’s visa situation as put by the Respondent and found by MARA. I find therefore that Mr Muthu breached Clause 6 of the Code in that he lodged an application on behalf of Mr Yuan in circumstances in which Mr Yuan did not hold a qualifying visa, thus either failing to demonstrate a sound working knowledge of the Migration Act and Migration Regulations or in disregard of the Code.
clause 7a of the code of conduct as at 1 august 1996
“7A An agent must:
. within a reasonable time after agreeing to represent a client, confirm the client's instructions in writing;
. act in accordance with the client's instructions;
. keep the client fully and regularly informed in writing of the progress of each case or application that the agent undertakes for the client;
. within a reasonable time after the case or application is decided, inform the client in writing of the outcome of the client's case or application.”
58. MARA found that Mr Muthu’s file in respect of Mr Yuan did not contain any evidence that he had confirmed his client’s instructions, always acted in accordance with his client’s instructions or kept his client fully and regularly informed, in breach of Clause 7A of the Code.
59. Mr Muthu’s evidence in that regard was that Mr Yuan’s office was next door to his, and he communicated orally with him rather than in writing. Indeed the Applicant expressed futility in writing to someone next door. He also said that migrants often did not like receiving letters, he conducted a small business and had different methods of his own for communicating with his clients. Mr Muthu said that the costs agreement for him to act which clients signed, was sufficient, he thought, to let them know their rights and responsibilities.
60. Mr Markus, in the Respondent’s Statement of Facts and Contentions, agreed with the findings of MARA, noting that Mr Muthu appeared to concede that he did not keep Mr Yuan fully and regularly informed in writing. He noted from Mr Yuan’s agreement in his Statement that Mr Yuan accepted that due to their proximity, correspondence with him from Mr Muthu was superfluous. Mr Markus emphasised that compliance with the Code was not a matter of choice either by the client or the migration agent.
61. I have taken both submissions into account, and refer to the evidence given and submissions made. I find that as Mr Muthu conceded he did not communicate in writing as required pursuant to Clause 7A of the Code, he breached Clause 7A of the Code. I find from his evidence that he acted intentionally in blatant disregard of it, and that this goes to his integrity and fitness to give immigration advice.
clause 23 of the code of conduct as at 1 august 1996
“…A migration agent must provide a statement of fees at the start of work for a client in the form of charges per hour, or per particular service and an estimation of the likely time to be taken in performing a service….”
62. MARA found that Mr Yuan’s file did not include a statement of fees as required by Clause 23 of the Code. Mr Markus submitted similarly in the Respondent’s Statement of Facts and Contentions.
63. Mr Muthu told me he did not feel obliged to follow the Code to the letter as he was a small business and Mr Yuan worked next door. I noted that Mr Yuan said in his Statement that in return for Mr Muthu acting for him as his migration agent in 1998, he (Mr Yuan) supplied translation services in exchange for the representation.
64. I have taken the evidence into account, and find that if the provision of translations was to be the payment to Mr Muthu from Mr Yuan, that arrangement should have been detailed in Mr Yuan’s file. As it was not, Mr Muthu was in breach of Clause 23 of the Code in relation to Mr Yuan’s matter.
clause 24 of the code of conduct as at 1 august 1996
“24 An agent should advise clients of the method of payment of fees, including Departmental fees”
65. MARA found that Mr Yuan’s file did not include information regarding payment of fees as required by Clause 24 of the Code. Mr Markus submitted similarly in the Respondent’s Statement of Facts and Contentions.
66. Mr Muthu’s comments in relation to Clause 24 were as for Clause 23 above.
67. I have taken the evidence into account, and find that as there was no information regarding payment of fees on Mr Yuan’s file, and no satisfactory explanation was given, Mr Muthu was in breach of Clause 24 of the Code in relation to Mr Yuan’s matter.
clause 27 of the code of conduct as at 1 august 1996
“27. An agent must maintain records that can be made available for inspection on request by the Migration Agents Registration Board, including files containing a copy of each client's application, copies of each written communication between the client and the agent, and file notes of each oral communication between the client and the agent.”
68. MARA held that Mr Muthu’s file for Mr Yuan did not include all the records required by Clause 27.
69. Mr Muthu’s excuse was that because Mr Yuan’s office was next door, he felt he was not required to include a number of formal communications in writing. Mr Muthu also alleged that he supplied files relating to the complaints to MARA as required, and that when they were returned to him some three years later, documents were missing from them. Mr Muthu implied that the documents had been intentionally withheld from him. After the luncheon adjournment, this evidence, described as “bizarre” by Mr Newman was attributed to the effects of diabetes, because Mr Muthu allegedly had not taken his daily medication with breakfast on that day. However when recalled to the witness box, Mr Muthu apologised for having said that documents had “purposely” been “withheld or taken”, but some moments later in reply to my question:
“Mr Muthu did you bring up the medication issue just to try and cover up the situation regarding what you said this morning about the documents being lost?”
Mr Muthu: “I express my apology ma’am, there was a serious misunderstanding on my part in terms of – because MARA send the documents late to me after two years, and they raised an issue which is four years later, that it made me to believe maybe there may be documents missing and so on, but whatever issues they have raised, I have to simply consider and say that …”
Senior Member: “Do you still think maybe they lost some documents?”
Mr Muthu: “Yes, but I tend to believe that way, but now since they have made this issues and so on, now I have to simply consider and say that whatever this position they have made, I have to agree with that and ….”
Senior Member: “You don’t have to agree with anything. The decision is here for review.”
70. Mr Muthu also said that he had been given “a serious run-a-round” by MARA over the last three or four years, and that MARA had been “hounding me for various things and allegations without any foundation”, adding MARA had treated him unfairly.
71. When I asked Mr Muthu whether the medication issue was an excuse, Mr Muthu did not give me a satisfactory answer. This was not the first time I found his replies to questioning evasive. I was satisfied there was no language difficulty involved, and that he was simply being evasive.
72. Mr Yuan’s statement dated 14 January 2004 was Exhibit A1 before the Tribunal. The parties both made submissions regarding what weight should be accorded to it, in particular as Mr Yuan and Mr Muthu carried out work for each other. I agreed with the submissions made that little weight should be given to Mr Yuan’s statement, noting I did not have the opportunity of hearing any oral evidence from him.
73. The Respondent’s position was that the Code required full written records of communications which were lacking in the files produced by Mr Muthu.
74. I have taken both submissions into account, and refer to the evidence given, and submissions made. Accordingly, taking these into account, I find that Mr Muthu breached Clause 27 because Mr Yuan’s file did not contain the requisite documents specified in Clause 27 of the Code. I also find that Mr Muthu’s evidence was untruthful, and that the medication issue was raised in order to try and justify the allegation Mr Muthu made that MARA had removed documents from his files.
clause 2.3 of the code of conduct as at 1 april 1998
“2.3 A migration agent's professionalism should be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.”
75. MARA held that after Mr Yuan’s visa application was refused, Mr Muthu lodged an application for review with MIRO, which affirmed the decision. MARA stated that Mr Muthu should have known that the application would be unsuccessful because Mr Yuan did not hold a qualifying visa.
76. Mr Muthu insisted that he understood Mr Yuan held a qualifying visa.
77. Mr Markus, in his Statement of Facts and Contentions, justified the finding of MARA that Mr Yuan was not the holder of a qualifying visa at the time of lodgement of his application.
78. I have taken both submissions into account, and refer to the evidence given and submissions made. I have accepted the detail regarding Mr Yuan’s visa situation as put by the Respondent, and found by MARA. I find therefore that Mr Muthu breached Clause 2.3 of the Code, in that he lodged an application on behalf of Mr Yuan in circumstances in which Mr Yuan did not hold a qualifying visa, thus failing to demonstrate a sound working knowledge of the Migration Act and Migration Regulations.
clause 2.8 of the code of conduct as at 1 april 1998
“2.8 A migration agent must:
(a)within a reasonable time after agreeing to represent a client, confirm the client's instructions in writing; and
…”
79. MARA found that the files relating to Mr Qamar and Mr Yuan did not contain any evidence that Mr Muthu confirmed his clients’ instructions in writing.
80. Mr Muthu’s evidence before the Tribunal was, as stated above, that his method of communicating with his clients was more desirable, he operated in the nature of a small business, and conceded he did not confirm their instructions in writing.
81. The Respondent’s position was that non confirmation of clients’ instructions in writing was a breach of the Code.
82. I have taken both submissions into account, and refer to the evidence given and submissions made. I have noted the requirement of the Code that confirmation of clients’ instructions must be in writing. I have accepted Mr Muthu’s admission that he did not do so, and substituted his own system, which he found adequate. Accordingly I have found that Mr Muthu was in breach of Clause 2.8(a) of the Code in relation to Mr Qamar and Mr Yuan.
clause 2.17 of the code of conduct as at 1 april 1998
“2.17 If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) the agent:
(a) must not encourage the client to lodge the application; and
(b)must advise the client that, in the agent's opinion, the application is vexatious or grossly unfounded; and
(c)if the client still wishes to lodge the application — must obtain written acknowledgment from the client of the advice given under paragraph (b).”
83. MARA held that Mr Muthu lodged an application on behalf of Mr Qamar with the IRT without having contacted Mr Qamar, and without any supporting documentation, noting that Mr Muthu explained he was unable to contact his client, and hurried to apply in anticipation of a fee increase.
84. In his Statement of Facts and Contentions, Mr Muthu stated that he acted on his client’s instructions of 22 June 1998.
85. The Respondent submitted that in the absence of Mr Qamar’s instructions in writing, there was no evidence he gave such instructions.
86. Mr Muthu did not give any further explanation regarding this action in his oral evidence. I accepted MARA’s finding and confirmed that Mr Muthu was in breach of Clause 2.17 of the Code.
clause 2.19 of the code as at 1 april 1998
“2.19 Subject to a client’s instructions, a migration agent has a duty to provide sufficient relevant information to the Department to allow a full assessment of all the facts against the relevant criteria.”
87. MARA found that Mr Muthu’s file for Mr Qamar showed that his spouse visa application form was not fully completed, and certain declarations were omitted to be lodged. When given the opportunity of submitting further information by the case officer, further inaccuracies were found, and Mr Muthu did not respond properly. Mr Muthu was also found to have lodged an application for his client with the IRT without any supporting documentation. Accordingly MARA was satisfied that Mr Muthu was in breach of Clause 2.19 of the Code.
88. Mr Muthu did not attempt to refute this finding in his oral evidence. However in his Statement of Facts and Contentions, he contended that not all documentation had to be lodged at the same time, and submitted that he had written a letter stating that the Applicant was in the process of obtaining further material.
89. The Respondent gave detail in his Statement of Facts and Contentions regarding the application in the Qamar matter, including the fact that Mr Muthu did not reply satisfactorily to the case officer when given an opportunity of explaining the relationship between Mr Qamar and Ms Jamieson.
90. I have taken both submissions and the written material in relation to Clause 2.19 of the Code into account. I accept the facts as found by MARA, and accordingly I affirm the breach of Clause 2.19 of the Code.
clause 2.21 of the code of conduct as at 1 april 1998
“2.21 A migration agent should 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).”
91. In relation to Clause 2.21 of the Code, MARA held similarly to its findings in relation to Clause 2.19, namely that the application made on behalf of Mr Qamar was not completed correctly or in sufficient detail.
92. Mr Muthu’s explanation in writing was as noted above, whereas the Respondent supported the findings of MARA.
93. I have taken both submissions into account, and as the fact that documentation was not supplied in accordance with requirements, and accordingly I affirm the breach as found by MARA in relation to Clause 2.21 of the Code.
clause 2.23 of the code of conduct as at 1 april 1998
“2.23 A migration agent must take all reasonable steps to maintain the reputation and integrity of the migration industry.”
94. MARA held that in relation to Mr Qamar, that Mr Muthu:
· Lodged an application on behalf of his client with the IRT without contacting his client and without any supporting documentation;
· Mr Muthu failed to reply to questions raised by the case officer;
95. Accordingly MARA held that Mr Muthu had breached Clause 2.23 of the Code.
96. This situation has been canvassed in the paragraphs above, and I find, referring to the evidence given and submissions made, that on the evidence, the breach as found by MARA in relation to Clause 2.23 of the Code must be affirmed.
clause 5.2 of the code of conduct as at 1 april 1998
“5.2 A 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…
(ii) an estimate of time likely to be taken in performing a service; and
…”
97. MARA held that Mr Muthu’s files in relation to Mr Qamar and Mr Yuan did not contain any evidence that he gave his clients an estimate of fees in writing, and therefore breached Clause 5.2(a) of the Code. The Respondent agreed with MARA in this regard.
98. Mr Muthu’s replies in this regard have already been noted in the paragraphs above, in particular that with regard to Mr Yuan no professional fees were charged. This was however not documented anywhere.
99. I have taken both submissions into account, and refer to the evidence given and submissions made, and find that as the required documentation regarding fees did not form part of the relevant files, I was satisfied that Mr Muthu was in breach of Clause 5.2(a) of the Code.
clause 5.2 of the code of conduct as at 1 april 1998
“5.2 A migration agent must:
…
(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;
…”
100. MARA held that Mr Muthu’s files in relation to Mr Qamar and Mr Yuan did not contain any evidence that Mr Qamar and Mr Yuan gave written acceptance of the terms of the work that Mr Muthu would render.
101. Mr Muthu’s evidence on this point was as stated above, that his practices were in line with those of a small business, and that the documentation he provided was adequate.
102. The Respondent’s position supported that of MARA.
103. I have taken both submissions into account, and refer to the evidence given and submissions made. Taking into account Mr Muthu’s own admission that his practices did not comply with the requirements of Clause 5.2(b) of the Code, I find that he breached Clause 5.2(b) of the Code as held by MARA.
clause 5.2 of the code of conduct as at 1 april 1998
“5.2 A migration agent must:
…
(c)give the client written confirmation of the terms of the service to be rendered;
…”
104. MARA found that Mr Muthu’s files in relation to Mr Qamar and Mr Yuan did not contain any evidence that the Applicant gave his clients written confirmation of the terms of the service to be rendered.
105. I was mindful of Mr Muthu’s evidence on this point as stated above, that his practices were in line with those of a small business, and that he believed the documentation he provided was adequate.
106. The Respondent’s position was that due to lack of written confirmation, Clause 5.2(c) of the Code had been breached.
107. I have taken both submissions into account, and refer to the evidence given and submissions made. On the basis of the evidence and MARA’s findings, I accepted that Clause 5.2(c) of the Code had been breached.
clause 5.4 of the code of conduct as at 1 april 1998
“5.4 A migration agent should advise clients of the method of payment of fees and charges, including Departmental fees and charges.”
108. MARA held that Mr Muthu’s files in respect of both Mr Qamar and Mr Yuan did not contain any evidence that he advised his clients regarding the method of payment of fees and charges.
109. Mr Muthu’s views have been stated in the paragraphs above.
110. Accordingly, the respondent maintained its view that Mr Muthu had breached Clause 5.4 of the Code.
111. I have taken both submissions into account, and refer to the evidence given and submissions made. On the basis of the evidence and MARA’s findings, I was satisfied that Mr Muthu breached Clause 5.4 of the Code in relation to Qamar and Yuan.
clause 6.1 of the code of conduct as at 1 april 1998
“6.1 A migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing:
…
(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.”
112. MARA held that there were no file notes of the meeting between Mr Muthu and Mr and Mrs Qamar on 22 June 1998. MARA noted that there was a case summary prepared at a much later date, and in response to a complaint made against the Applicant, and hence he had breached Clause 6.1(c) of the Code. MARA referred also to the lack of other file notes of substantive and material communications between the Applicant and his clients.
113. The Applicant’s replies to such allegations and findings were as given above, that is, his way of doing business was that of small business, and that documents had been removed from his files.
114. The Respondent submitted that whilst there was some documentation it was not contemporaneous and did not satisfy the relevant requirement.
115. I have taken both submissions into account, and refer to the evidence given and submissions made. I find on the basis of the evidence before me, and MARA’s findings that Mr Muthu had breached Clause 6.1 of the Code by not keeping the required documentation on his client files.
clause 7.4 of the code of conduct as at 1 april 1998
“7.4 A migration agent must keep records of the clients' account, including:
(a)the date and amount of each deposit made to the clients' account, including an indication of the purpose of the deposit and the client on whose behalf the deposit is made; and
(b) the date and amount of each withdrawal made in relation to an individual client, and the name of each recipient of money that was withdrawn; and
(c) receipts for any payments made by the client to the agent; and
(d) copies of invoices or accounts rendered in relation to the account.”
116. MARA stated that Mr Qamar and Mr Yuan’s files did not contain any evidence of the records referred to in Clause 7.4 of the Code.
117. Mr Muthu appeared satisfied with his records and did not comment specifically except to say that he did not charge Mr Yuan professional fees.
118. The Respondent agreed with the findings of MARA that Mr Muthu’s files in respect of Mr Qamar and Mr Yuan did not contain any evidence of financial records.
119. I have taken both submissions into account, and refer to the evidence given and submissions made. I was satisfied that Mr Muthu was unable to indicate to me that he had complied with Clause 7.4 of the Code, and accordingly, I accepted MARA’s findings that he had breached Clause 7.4 of the Code.
COMPLAINT NO.2 - MR DANILO BUNDOC
120. I noted that MARA dealt with Clauses 2.1, 2.3, 2.4, 2.6 and 2.7 together, and that MARA was satisfied that Mr Muthu had breached those clauses of the Code as applicable at 1 April 1998.
clause 2.1 of the code of conduct as at 1 april 1998
“2.1 A 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.”
clause 2.3 of the code of conduct as at 1 april 1998
“2.3 A migration agent's professionalism should be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.”
clause 2.4 of the code of conduct as at 1 april 1998
“2.4 A migration agent must have due regard to a client's dependence on the agent's knowledge and experience.”
clause 2.6 of the code of conduct as at 1 april 1998
“2.6 To the extent that a migration agent must take account of objective criteria to make an application under the Migration Act or Migration Regulations, he or she should be frank and candid about the prospects of success when assessing a client's request for assistance in preparing a case or making an application under the Migration Act or Migration Regulations.”
clause 2.7 of the code of conduct as at 1 april 1998
“2.7 An agent who is asked by a client to give his or her opinion about the probability of a successful outcome for the client's application should not hold out unsubstantiated or unjustified prospects of success when advising clients on applications under the Migration Act or Migration Regulations.”
121. MARA referred in its decision to Mr Bundoc seeking Mr Muthu’s assistance in lodging an “appeal” against a decision by TRA not to recognise his son’s trade qualifications. MARA noted also that Mr Muthu acknowledged in his correspondence to MARA that by the time Mr Bundoc consulted him, the time limit to appeal had long past, and noted that Mr Bundoc had had advice from a law firm advising him that nothing could be done. Mr Muthu added that Mr Bundoc was in a desperate situation, and Mr Muthu admitted he took on the case “against my better judgment”, and also stated in writing “I did not hold out any hope whatsoever”. Yet he took on the client, and charged Mr Bundoc $3,500. MARA commented that:
“The Agent’s files do not contain any evidence of the Agent or his firm having taken any action or done any work for the Agent’s client. The Agent’s client’s recollection of the circumstances surrounding this complaint differs from the Agent’s. … The Agent’s client’s file contains no information about the merits of this case at the time when the Agent accepted instructions. There are no file notes. There is no confirmation of the Agent’s client’s instructions.”
122. I have noted the above, and Mr Muthu’s further statement in the Applicant’s Statement of Facts and Contentions that when “it became apparent to the Applicant that he could not assist the client he advised him so.” He also said that he refunded the money. Mr Muthu maintained in his Statement of Facts and Contentions that accordingly he did not breach any of the Clauses of the Code of Conduct as alleged in that regard.
123. The Respondent, in its Statement of Facts and Contentions, submitted that Mr Bundoc’s recollection of what took place at the first meeting with Mr Muthu did not appear to be that of someone who was aware that the Applicant “did not hold out any hope whatsoever.” Rather, the Respondent asserted, Mr Bundoc stated that the Applicant agreed to handle the appeal. The Respondent submitted further that there was no evidence in the Applicant’s files that he or his firm had taken any action or done any work for Mr Bundoc. The Respondent added, there were no file notes and no confirmation of Mr Bundoc’s instructions.
124. I have taken both submissions into account, and refer to the evidence given, affirming that the findings of MARA are made out, in that Mr Muthu undertook to act on behalf of Mr Bundoc. It was not disputed that the application was out of time, and that Mr Muthu did not have file notes or a confirmation of Mr Bundoc’s instructions or do any work on his behalf. Notwithstanding the fact there was no dispute he had refunded Mr Bundoc’s money, I find that Mr Muthu, with his actions in regard to Mr Bundoc, has breached the abovementioned Clause of the Code.
clause 2.8 of the code of conduct as at 1 april 1998
“2.8 A migration agent must:
(a)within a reasonable time after agreeing to represent a client, confirm the client's instructions in writing; 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.”
125. MARA noted that Mr Bundoc complained he had not been able to contact Mr Muthu, and had not had progress reports, which Mr Muthu denied. MARA found that Mr Bundoc’s file contained no evidence of him having confirmed his client’s instructions nor was there any evidence that he kept Mr Bundoc informed in writing as required by the Code. Accordingly MARA held that Mr Muthu had breached Clauses 2.8(a) and (c) of the Code.
126. Mr Muthu did not specifically address these Clauses of the Code in his Statement of Facts and Contentions, neither did he deny the findings of MARA that he had not confirmed his client’s instructions, or that he had not kept Mr Bundoc informed in writing as required by the Code. I noted above Mr Muthu’s oral evidence regarding documentation, and have found those to be statements in blatant disregard of the requirements of the Code to keep comprehensive file notes and other documentation.
127. The Respondent submitted in its Statement of Facts and Contentions that Mr Muthu’s file relating to Mr Bundoc did not contain any estimate of the total fee, no written acceptance by the client of the terms of the work to be done, and no written confirmation of the services to be rendered.
128. Taking into account both these submissions, as well as the evidence before me, I find that Mr Muthu’s conduct in relation to Mr Bundoc was in breach of Clauses 2.8(a) and (c) of the Code.
clause 5.2 of the code of conduct as at 1 april 1998
“5.2 A 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…
(ii) an estimate of 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.”
129. MARA stated that Mr Bundoc’s file did not contain any estimate of the total fee, no written acceptance by the client of the terms of the work to be done and no written confirmation of the terms of the service to be rendered in breach of Clauses 5.2(a), (b) and (c) of the Code.
130. As regards documentation, I noted Mr Muthu’s evidence as given in relation to the other two files (Qamar and Yuan), detailed in the paragraphs above, and his attitude regarding the need to maintain files notes and other documentation as required by the Code.
131. The Respondent in its Statement of Facts and Contentions stated that Mr Bundoc’s file did not contain any estimate of the total fee, no written acceptance by the client of the terms of the work to be done and no written confirmation of the terms of the service to be rendered, and that he was accordingly in breach of Clauses 5.2(a), (b) and (c) of the Code.
132. I have taken both submissions into account and the evidence regarding the documentation into account, and find that Mr Muthu breached Clauses 5.2(a), (b) and (c) of the Code in relation to the Bundoc complaint.
clause 6.1 of the code of conduct as at 1 april 1998
“6.1 A 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.”
133. MARA stated that Mr Bundoc’s file did not contain any evidence of any work done by Mr Muthu on his behalf. Written communications and file notes were conspicuous by their absence. MARA was satisfied that Mr Muthu had breached Clause 6.1(b) and (c) of the Code.
134. Mr Muthu did not comment upon file notes and written communications in Mr Bundoc’s file. His attitude to such documentation has been noted in the paragraphs above.
135. The Respondent in its Statement of Facts and Contentions, submitted as in relation to Clause 5.2, that there were no file notes on file, and no copies of written communications made on behalf of Mr Bundoc on file, and that accordingly, Mr Muthu had breached Clauses 6.1((b) and (c) of the Code.
136. I have taken the evidence and both submissions into account, and find Mr Muthu’s record keeping was less than satisfactory in relation all three files, and find here that in relation to Mr Bundoc, Mr Muthu breached Clauses 6.1(b) and (c) of the Code.
THE TRIBUNAL’S FURTHER FINDINGS
137. I have noted the evidence and oral submissions of both parties, and those made in the Statements of Facts and Contentions. I am mindful of the role of migration agents in our community, note that the Migration Agents Registration scheme administered by the Migration Registration Authority is one that:
"seeks to achieve that object [effective administration of the Act] by protecting aliens from incompetent and unscrupulous advisers through the introduction of a regulatory regime which is designed to ensure that those who advise and represent aliens are competent and are persons of integrity." (Cunliffe and Anor v Commonwealth of Australia (1994) 182 CLR 272 at 294).
138. To ensure effective and proper administration of the Act the Respondent is entitled to be able to rely upon the honesty of those registered as migration agents.
139. I am mindful that section 290 of the Act is a mandatory section which states that an applicant must not be registered as a migration agent if MARA is satisfied that that person is not a fit and proper person to give immigration assistance or the person is not a person of integrity. As relevant section 290 of the Act follows:
“290(1) An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:
(a) the applicant is not a fit and proper person to give immigration assistance; or
(b) the applicant is not a person of integrity; or
(c)…
290(2) In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:
(a) the extent of the applicant’s knowledge of migration procedure; and
…
(e) any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and
…
(h) any other matter relevant to the applicant’s fitness to give immigration assistance.
…”
140. Section 303 deals with the discretionary cancellation or suspension of registration as a migration agent, and follows as relevant:
“303 Discretionary cancellation or suspension of registration etc.
The Migration Agents Registration Authority may:
(a) cancel the registration of a registered agent by removing his or her name from the register; or
…
if it becomes satisfied that
…(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
…
(h) the agent has not complied with the Code of Conduct prescribed under section 314.”
141. Section 303 of the Act enables MARA to cancel a registration by removing the agent’s name from the register, if it becomes satisfied that the migration agent is not a person of integrity, or is otherwise not a fit and proper person to give immigration assistance. That is in fact what occurred with regard to Mr Muthu by decision of MARA dated 14 July 2003. He had also been found to have breached various Clauses of the 1996 and 1998 Codes. I have in these reasons for decision, affirmed those findings of breaches of the Codes in the paragraphs above.
142. Section 290 of the Act is mandatory in its operation. I had thus to satisfy myself to the requisite standard in this matter, inter alia, as to whether the Applicant is a fit and proper person or a person of integrity in order to qualify to give immigration assistance. "Integrity" means "soundness of moral principle and character, uprightness; honesty" (see Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12, 19 January 1998).
143. In Peng (supra) at paragraph 26 Deputy President McMahon stated:
"The use of the word "assistance," in my view, extends not only to help given to would-be applicants, but also help given to the Department in the administration of immigration programs. In that regard, frankness and truth are of primary importance... If these standards are important in relation to individual applications, how much more important are they in relation to those who will, in the course of their practice, make many representations to the Department on behalf of those seeking to deal with immigration matters. The requirement to display integrity and fitness in order to qualify for registration as a migration agent [and here read remain so registered], has an element of mutuality. The need for probity is not only for the protection of the clients, but also for the open, honest and efficient administration of immigration matters in which the agent is involved."
144. I have agreed with, and relied on the statements made regards by Deputy President McMahon (as he was then), in Peng (supra).
145. In Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155 - 156 it was said:
"The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia".
146. A consideration of whether or not a person is one of integrity cannot be disassociated from the character of that person. It is on account of the above mentioned significant position occupied by a migration agent, that she or he is required to be a person of integrity or otherwise fit and proper to give immigration assistance. The responsibilities entailed in the rendering of assistance extend not only to prospective visa or migration applicants, but also to the Department administering the legislation.
147. With regard to “fit and proper”:
"... with respect to an office is said to involve three things, honesty knowledge and ability; "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it". (Hughes and Vale Pty Ltd and Anor v the State of New South Wales and Ors (No2) (1955) 93 CLR 127 at 156.)”
148. This concept of fitness and propriety is not however to be narrowly construed or confined:
"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 of "fit and proper" cannot be entirely divorcedfrom the conduct of the person who is or will be engaged in those activities. However, depending on the nature of the activities, the question maybe 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 will not occur. The list is not exhaustive, but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to grant a finding that a person is not fit and proper to undertake the activities in question". (Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 at 380; Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 34 ALD 324 at 328).”
149. There is thus an explicit link between fitness and propriety on the one hand, and character on the other. The establishment of good character is important in various areas of immigration practice.
150. Bearing in mind the above, I considered the evidence of Mr Muthu and submissions made. I have held in the paragraphs above that Mr Muthu breached those Clauses of the Codes as decided by MARA. The basis of the findings I have made included Mr Muthu’s own admissions when he gave his evidence, and point to either his lack of knowledge of the Code in relation to the keeping of records, confirmation of instructions, and other documentation, or his blatant disregard of the requirements of the Code. Mr Muthu’s evidence was that he displays the Code in his office so that his clients would know their rights and responsibilities, but was either unable to unwilling to say that he himself was “quite familiar” with it.
151. Noting his answers given to questioning at the Tribunal, I was satisfied that Mr Muthu had blatant disregard for the requirements of the Code, in explaining that he ran like a small business and adapted the requirements to that, rather than obeying the Code, and explaining away the requirement to confirm instructions and other documentation by saying that that migrants did not always like receiving correspondence. He explained away his lack of letter writing to Mr Yuan by stating that Mr Yuan worked next door to him. I have already found in the paragraphs above that Mr Muthu breached every Clause of the Codes of Conduct which MARA raised in the complaints about Qamar, Yuan and Bundoc. That put Mr Muthu in breach of section 303(h) of the Act which enlivened the discretion to cancel his registration.
152. However MARA had also found that he was not a person of integrity and was not a fit and proper person to give immigration assistance, so I moved to consider whether the decision to cancel his registration should be affirmed, varied or set aside. Section 290 of the Act deals with the issues of integrity and whether a person is a fit and proper person to give immigration assistance.
153. In doing so, I have considered the relevant case law, including Lilienthal (supra), Hughes and Vale Pty Ltd and Anor v State of New South Wales and Ors [No.2] (1955) 93 CLR 127 and Hakaoro (supra).
154. Mr Markus referred to Hakaoro (supra) in his submissions. I noted that in Hakaoro (supra), Deputy President Forgie referred to Hughes and Vale Pty Ltd and Anor v State of New South Wales (supra), in which their Honours referred to the expression “fit and proper person” as follows:
“The expression ‘fit and proper person’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purposes is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or idoneus’) with respect to an office is said to involve three things, honesty, knowledge and ability: ‘honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it.”
155. I was mindful that the Tribunal affirmed the decision of the Respondent not to register Hakaoro as a migration agent although it had found Hakaoro to be a person of integrity. Deputy President Forgie was however not satisfied that his knowledge of immigration issues was such that he should be registered.
156. I noted Mr Muthu’s evidence that he had not been proficient at file management and trust accounting because he had been registered since 1997 at a date before those subjects were required for registration. He said that he had since, in 2002, completed courses conducted by Deakin and Victoria Universities. I found however from Mr Muthu’s attitude to the requirements of various Clauses of the Codes that not only was he required to have detailed knowledge of the requirements of the Codes, but he exhibited blatant disregard for those requirements, particularly in documenting communications with clients, and in communicating with them.
157. Both representatives raised the matter of Lilienthal (supra), Mr Newman submitting that Mr Muthu had been linked with technical breaches of the Code, whereas the conduct of Lilienthal had pointed to serious breaches of the Code.
158. Mr Markus, on the other hand, likened the conduct of Mr Muthu, particularly in relation to the issue raised by Mr Muthu with regard to the medication after the luncheon adjournment, with that of Lilienthal (supra), citing in particular paragraph 106 of the decision in which Deputy President Purvis had stated:
“The Applicant displayed an inability to identify his professional obligations and the person to whom these were to be extended. The Applicant sought to terminate an agent/client relationship without a proper basis being established for such termination. This reflected upon his appreciation of his obligation towards a client. (See the Croation Radio matter and the Jameson matter). The matter of his fees did seem uppermost in his mind, this even where he had at the time demanded payment of his fees, and done little, to say the most by way of earning it (see the Drapac/Milacic matter). Of significance also is the attitude displayed by the Applicant towards the Department in suggesting that migration agents stand in an adversarial position to the Department, likening a visa applicant who sought information from the Department as “getting legal advice from the prosecutor”. The Department is a service operation, charged with the task of assessing visa applications and making decisions appropriate on the material placed before it. The need for the Department to have all available relevant information necessitates an agent and a client being frank and honest in their dealings with it.”
159. I noted further that at paragraph 107, Deputy President Purvis stated:
“The Tribunal is satisfied that there has been breach by the Applicant of the Codes of Conduct and that he has shown himself to be a person not of integrity and not fit and proper to give immigration assistance.”
160. I have already stated above, and referred to Mr Muthu for his comment at the Hearing, my views about inconsistencies in the giving of his evidence. I found his answers evasive, and formed the view that he was not a witness of truth. Accordingly his integrity was compromised, and his status as a fit and proper person to give immigration assistance. I find in considering the totality of the issues before me, that is, complaints relating to Qamar, Yuan and Bundoc, that Mr Muthu is not a person of integrity, and not a fit and proper person to give immigration advice. I have based those finding on the following:
· Before the Hearing, no contact could be made with Mr Muthu, and there was the issue of whether he had fallen ill in India. A doctor’s certificate was supplied to the Tribunal in the days leading up to the Hearing, but Mr Muthu referred in his evidence only to being in India to care for his 80 year old mother.
· When the Hearing commenced, Mr Newman submitted that Mr Muthu conceded he had breached all Clauses of the Code as claimed, and that he therefore did not need to give evidence. When I ruled that Mr Muthu should give evidence, Mr Muthu commenced almost immediately to withdraw that concession.
· Mr Muthu’s knowledge of the Code was in question back in 2001 when MARA wrote to Mr Bundoc (T72). MARA held there that the Applicant had “demonstrated a less than sound working knowledge of migration procedures”. Notwithstanding submissions made on his behalf, and his evidence that the Code was displayed in his office so that clients would know their rights and responsibilities, Mr Muthu was unable or unwilling to say he was familiar with the Codes of Conduct even though his evidence was that he had taken courses in 2002. Mr Muthu advanced excuses about having gained his registration in 1997 before there were particular requirements regarding knowledge of file management and trust accounting. I found he had breached every Clause of the Codes as found by MARA, and acted in blatant disregard to the Codes’ requirements.
· Mr Muthu also gave evidence that notwithstanding his knowledge of the Code, he operated as a small business and hence did not keep as many records as the Codes required, and did not write to the clients as required. He also excused himself from writing to Mr Yuan because Mr Yuan worked next door to him. That constituted breaches of various Clauses of the Codes.
· I was satisfied that Mr Muthu tried to blame MARA for having removed documents from his files in order to try and establish that he had kept certain records and correspondence as required by the Codes.
· I was satisfied from the submission of Mr Newman regarding Mr Muthu’s not having taken his diabetes medication before attending the Tribunal, and Mr Muthu’s own evidence about that, that the situation was not as submitted. Rather I find that it was simply a way of trying to retract evidence that MARA had intentionally removed documents from Mr Muthu’s files. That must go to integrity and fitness to given immigration advice.
· I was satisfied that Mr Muthu’s integrity is affected to the requisite standard by the fact he lodged a visa application for Mr Bundoc when it was abundantly clear to him that the application had little chance of success. In relation to the Bundoc complaint, I find that Mr Muthu is not a fit and proper person to give immigration advice.
· Notwithstanding Mr Newman’s submissions that from Ms Jamieson’s point of view the marriage to Mr Qamar was genuine, I was satisfied from the evidence before me that Mr Muthu should have known when he met Ms Jamieson and witnessed her documents that she was in the situation of a sham marriage. Accordingly I was satisfied that in regard to the complaint relating to Mr Qamar, Mr Muthu did not have the integrity and fitness to give migration assistance.
161. In summary then, I find that Mr Muthu breached the Clauses of the 1996 and 1998 Codes as held by MARA. That alone would not necessarily render Mr Muthu to not be a person of integrity, or otherwise not a fit and proper person to give immigration assistance. However, taking into account all the other evidence, and in reliance on the case law cited above, I find that Mr Muthu has shown himself not to be a person of integrity and not fit and proper to give immigration assistance. For the reasons as detailed above, the decision to cancel his registration as a migration agent based on the complaints relating to Qamar, Yuan and Bundoc was the correct decision, and that decision, which is the decision under review, must be affirmed.
DECISION
162. The Tribunal affirms the decision under review, being the decision made on 14 July 2003 by the Migration Agents Registration Authority to cancel the registration of Mr Christopher Muthu as a migration agent pursuant to section 303(h) of the Migration Act1958 as he had not complied with the Migration Agents Code of Conduct from time to time. The Tribunal also affirms the decision of MARA made pursuant to section 303(f) of the Act, finding that Mr Muthu was not a person of integrity, or that he was otherwise not a fit and proper person to give immigration assistance.
I certify that the 162 paragraphs above are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed:Neil Glaser .....................................................................................
Associate
Date of Hearing 19 May 2004
Date of Decision 16 June 2004
Solicitor for the Applicant Mr M Newman, Newman & AssociatesSolicitor for the RespondentMr A Markus, Australian Government Solicitor
1
6
0