Nah and Migration Agents Registration Authority (Migration)

[2019] AATA 4376

Nah and Migration Agents Registration Authority (Migration) [2019] AATA 4376 (24 October 2019)

Division:GENERAL DIVISION

File Number(s):      2018/6158

Re:Ki Chune Nah

APPLICANT

AndMigration Agents Registration Authority

RESPONDENT

DECISION

Tribunal:Senior Member Katter

Date:24 October 2019

Place:Brisbane

The reviewable decision made by the Office of the Migration Agents Registration Authority on 8 October 2018 is affirmed.

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Senior Member Katter

CATCHWORDS

Cancellation of registration as a migration agent – whether the agent is a person of integrity – whether the agent is a fit and proper person to provide immigration assistance – whether the agent is honest – whether the agent dealt with his or her client competently, diligently and fairly – whether agent took all reasonable steps to maintain the reputation and integrity of the migration advice profession – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

Migration Agents Regulations 1998 (Cth)

CASES

Kraues v Office of the Migration Agents Registration Authority (2018) 158 ALD 493; [2018] FCA 664

Re Altintas and Migration Agents Registration Authority [2004] AATA 978

Narayanan and Migration Agents Registration Authority (2006) 43 AAR 5; [2006] AATA 353

REASONS FOR DECISION

Senior Member Katter

24 October 2019

INTRODUCTION

1. Dr Ki Chune Nah (the “Applicant”) seeks a review of a decision by the Office of the Migration Agents Registration Authority made on 8 October 2018 to cancel his registration as a migration agent pursuant to s 303(1)(a) of the Migration Act 1958 (Cth) (the “Act”).

   BACKGROUND

2. The Applicant was first registered as a migration agent on 11 April 2016[1].  The registration identifies the Applicant as an employee of PNC Legal Pty Ltd ABN 42 600 073 863[2] (that entity having the business name Park & Co Lawyers).  The registration of the Applicant was renewed annually, with the Applicant lodging a further application for registration on 11 April 2018[3]. 

   [1]           T7(a), page 140, paragraph 2.  

   [2]           T7(a), page 140, paragraph 3.  

   [3]           T7(a), page 140, paragraph 2.  

3. On 17 November 2017 the Respondent received a complaint as to the Applicant from Mr Matthew Kim, on behalf of Mr Soohwan Lee (“Mr Lee”)[4].  The following background facts stated in that complaint are not in contention:

   a.Mr Lee had resided in Australia for seven years and was required to depart Australia after his sub-class 572 student visa application was refused[5];

   b.Mr Lee communicated with Park & Co Lawyers, seeking assistance as to remaining in Australia[6];

   c.The Applicant was appointed to Mr Lee’s matter and provided assistance as         to a review by the Migration & Refugee Division of this Tribunal of the decision as to Mr Lee’s sub-class 572 student visa application[7]; and

   d.After this Tribunal decided to affirm the decision of the then Department to refuse the visa of Mr Lee, Mr Lee received an email communication from the   Applicant on 12 May 2017[8].

   [4]Respondent’s Statement of Facts, Issues and Contentions dated 10 June 2019, paragraph 14.

   [5]           T7(a), page 140, paragraph 5.

   [6]           T7(a), page 140, paragraph 5.

   [7]Respondent’s Statement of Facts, Issues and Contentions dated 10 June 2019, paragraph 14.

   [8]Respondent’s Statement of Facts, Issues and Contentions dated 10 June 2019, paragraph 15.

4. The email of 12 May 2017 by the Applicant to Mr Lee was not in English and was in Korean[9].  The translation[10] of that email, which translation is not in contention, states[11]:

   “We have received a response from AAT.  Please find attached the file.      We are regrettable for the outcome. 

   You must depart Australia by 9 June.  Our firm decided that the best option           for you is to change your name after departing Australia and return back to      Australia. You should use the automatic entry system in Brisbane Airport when you return to Australia and you must obtain the automatic ETA tourist visa.  This is because working holiday visa or other type of visas will require further information of identification in order to check whether or not your name has been changed.

   You must not bring any suspicious items in your luggage. Just come as a mere tourist.  Necessary documents should be scanned and emailed to us in            advance.  The necessary documents are the new family relationship certificate, basic certificate and certificate of Korean criminal record (it can be obtained in English by visiting a close-by police station for the purpose of getting an overseas visa), after changing your name. Once you receive these documents, email us. 

   After scanning your face, if you are questioned whether you have previously stayed in Australia under the name of Soohwan Lee, you must not lie.  Rather, please give a reasonable reason and state that you will go back after spending some time with friends.  Please consider well a reasonable reason.  It would be ok to think about this and consult with us. 

   With the appeal related fees, we will send you an account in due course.

   We hope that you enjoy your trip to Korea and see you again when you come back.

   Thank-you.”

   [9]           Transcript, 26 July 2019, P-21 at lines 10-19.

   [10]          Translator accredited by the National Accreditation Authority for Translators and Interpreters. 

   [11]          T4, page 43.

5. On 20 June 2018 the Respondent sent to the Applicant a notice pursuant to s 309(2) of the Act, communicating that it was considering cautioning, suspending or cancelling the Applicant’s registration further to s 303(1) of the Act[12].  The Respondent specifically referred to clauses 2.1, 2.4 and 2.23 of the Code of Conduct for Registered Migration Agents at Schedule 2 to the Migration Agents Regulation 1998 (Cth) (the “Code”)[13].  In that notice of 20 June 2018 the Respondent invited a written response to the notice, from the Applicant, by 18 July 2018[14]. 

   [12]          T4, pages 12-18.

   [13]          T4, page 14.

   [14]          T4, page 17.

6. By a statutory declaration dated 17 July 2018 the Applicant, in response to the notice of 20 June 2018 from the Respondent, stated[15]:

   [15]          T5(a), page 71.

   “22.     I appreciate that, to a layperson reading my email for the first time and without context, it could appear to raise some questions.  However, it was not discrete advice and was not in the loaded terms now alleged (for example “invent” a story, etc). Rather, the email was simply an additional explanation in layperson’s language to help Mr Lee’s understanding … following some questions he had raised with me in conversation the previous day.

   a.“Our firm decided that the best option for you is to change your name after departing Australia and return back to Australia” (emphasis added): The first aspect of the email may not have been expressed well, but was just an introductory reference to the fact that in our conversation Mr Lee had been negative (that is, not optimistic) about his prospects of satisfying the requirement for a partner visa or a business visitor visa. In that sense, I was seeking to convey that on such a basis, there was only one remaining option that Mr Lee had raised with me, when he had asked about changing his name and asked about ETA visas.

   b.“You should use the automatic entry system in the Brisbane Airport when you return to Australia … ”: This was just a statement of how the ETA visa works – the person approaches and uses the automatic entry area of the arrivals section.

   c.“ … you must obtain the automatic ETA tourist visa. This is because working holiday visa or other type of visas will require your details and ask whether or not your name has been changed.”: This statement was simply reminding him that he wanted to apply for is the subclass 601 ETA visa and explaining the difference between this visa and others such as this visa application has no question such as “Have you ever been known by any other name?”.

   d.“You must not bring any suspicious items in your luggage. Just come as a mere tourist.”: I was trying to convey that as the visa is for a temporary visitor, Mr Lee had to come to Australia as a genuine temporary visitor. Particularly, as a key aspect of the ETA visa is that the person satisfies the GTE requirements, and it was important that Mr Lee carried nothing that could contradict his GTE status.

   e“Necessary documents should be scanned and emailed to us in advance. The necessary documents are the new family relationship certificate, basic certificate and certificate of Korean criminal record (it can be obtained in English by visiting a close-by police station for the purpose of getting an overseas visa), after changing your name. Once you receive these documents, email us”: This was intended to be a reference to letting Mr Lee know that if he wanted us to help him again with any legal matters as we provide comprehensive legal service, we might need some of them. I can see that to a lay person, this information – coming immediately after the remarks about not bringing any suspicious items – could be stretched to look questionable, but the two concepts weren’t intended to be connected. It probably should just have been a new paragraph.

   f.“After scanning your face, if you are questioned whether you have previously stayed in Australia under the name of Soohwan Lee, you must not lie. Rather, please give a reasonable reason and state that you will go back after spending some time with friends. Please consider well a reasonable reason. It would be ok to think about this and consult with us.”: As mentioned above, there is no question on an ETA application which asks whether a person has been known by another name. It is simply that sometimes the facial recognition software recognises the person, and sometimes the person is questioned by DIBP officers. We were emphasising here to Mr Lee that he must tell the truth (my emphasis). When we spoke the previous day, Mr Lee had not given any detail for the reason for which he would perhaps consider applying for an ETA visa, so I emphasised he would need to think about that and reasonably satisfy the GTE requirements.

   g.Overall, it was my intention – with Mr Park’s supervision given his greater knowledge of the legal position – to convey this information in a layperson’s language to help his understanding. To the best of my knowledge, based on my conversations with Mr Park at the time (and subsequently, in the context of this complaint) I believe the advice conveyed the truth of the legal position in relation to ETA visas.

   h.In short, the email message dated on 12 May 2017 was not of itself discrete advice, but rather represented my additional explanation in layperson’s language following our brief conversation on 11 May 2017 and my discussion (which I had said to Mr Lee I would undertake) with my supervisor.”

   (Emphasis in original)

7. The decision of 8 October 2018 of the Respondent found that the Applicant had engaged in conduct in breach of the obligations under clauses 2.1, 2.4 and 2.23 of the Code as at 18 April 2017[16]. Further, the Respondent found that the Applicant was not a person of integrity or otherwise a fit and proper person to give immigration assistance within the meaning of s 303(1)(f) of the Act[17]. It was decided by the Respondent, further to s 303(1)(a) of the Act, to cancel the registration of the Applicant[18]. The decision took effect, as stated in the decision of 8 October 2018, in accordance with s 305(3) of the Act, when the Applicant was given notice of it[19]. At paragraph 115 of the decision it is stated that, in accordance with s 292 of the Act, an agent who has had their registration cancelled must be not be registered within 5 years of the cancellation[20].  

   [16]          T7, page 136.

   [17]          T7, page 136.

   [18]          T7, page 136.

   [19]          T7, page 136.

   [20]          T7, page 162.

   ISSUES

8. The issues are:  first, whether by reason of the email by the Applicant of 12 May 2017[21], the Applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance (s 303(1)(f)) or has not complied with the Code (s 303(1)(h)); and second, if there is ‘satisfaction’ of the above that either the Applicant is not a person of integrity or is otherwise not a fit and proper person or has not complied with the Code, the appropriate discipline to be imposed[22].

   [21]          T4, page 43.

   [22]Respondent’s Statement of Facts, Issues and Contentions dated 10 June 2019, paragraph 4.

   LEGISLATION

9. Section 303 of the Act relevantly states[23]:

   [23]          T9.

   “303     Disciplining registered migration agents

   (1)The Migration Agents Registration Authority may:

   (a)cancel the registration of a registered migration agent by removing his or her name from the register; or

   (b)suspend his or her registration; or

   (c)caution him or her;

   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.

   Note 1:The Authority is required to caution a registered migration agent or cancel or suspend a registered migration agent’s registration in certain circumstances: see Division 3AA.

   Note 2:If the Authority is considering making a decision under this section, it must invite the registered migration agent to make a submission: see sections 309 and 310.

   …”

10. Clause 2.1 of the Code provides[24]:

    “A registered migration agent must always:

    (a)       act in accordance with the law … and the legitimate interests of his … client;

    (b)       deal with his … client competently, diligently and fairly … ”

    [24]          T10, page 169.

11. Clause 2.23 of the Code states[25]: 

    “A registered migration agent must take all reasonable steps to maintain the reputation and integrity of the migration advice profession.” 

    [25]          T10, page 173.

    CONSIDERATION

12. As to the email by the Applicant of 12 May 2017[26], the Applicant ‘accepts’ that the email is “questionable” but submits that, in characterising the conduct of the email, it only makes sense and can only be understood properly once the context is understood[27].  The Applicant submitted that the context of the discussions between Mr Lee and the Applicant on 11 May 2017 are important as to the email of 12 May 2017[28].  The Applicant submits, “critically”, that Mr Lee ‘raised the question of changing his name and then coming back to Australia after that’[29].  The Applicant submitted in that regard that it ‘does raise questions as to why a client would be wanting to change his name and then come back to Australia’, but ‘its lawful and an advisor doesn’t sit in judgement of what the merits of the proposed action are’[30].  As to the reference in the email of 12 May 2017[31] to the ETA visa, the Applicant submitted that it would ‘certainly be improper for an advisor to suggest to a client to manufacture, to falsely pretend to just be a visitor, when the advisor knows full-well that’s not true, but that that was not the circumstance here’[32].  As to the statement in the email of 12 May 2017[33] as to the purposes for coming to Australia, it is submitted that that statement is out of context ‘and looking at the words used it is poorly worded and it should be much clearer’[34].  The Applicant submitted that the email of 12 May 2017[35] was a genuine effort to convey advice, once ‘other options’ had been ruled out, that the ETA was the best chance for Mr Lee, that Mr Lee had to be a genuine visitor, had to have a genuine reason and that Mr Lee could communicate in advance of travel, as that was the only option[36].  The Applicant submitted that the email of 12 May 2017[37] ‘does indicate some standard of communication, ‘lower than one would hope’, however, that the email is not such as to ‘fall short’ of the requirements of the Code of Conduct’[38].   

    [26]          T4, page 43.

    [27]          Transcript P-22, lines 28-37. 

    [28]          Transcript P-22, lines 39-40. 

    [29]          Transcript P-23, lines 20-21.

    [30]          Transcript P-23, lines 21-26.

    [31]          T4, page 43.

    [32]          Transcript P-24, lines 1-5.

    [33]          T4, page 43.

    [34]          Transcript P-24, lines 34-36.

    [35]          T4, page 43.

    [36]          Transcript P-24, lines 38-42.

    [37]          T4, page 43.

    [38]          Transcript P-24, lines 45-47.

13. The Respondent relevantly submitted that[39]:

    “Looking at the email, as a whole, it’s plainly apparent from the email that advice was given by the [A]pplicant to [Mr Lee] to return to Korea, change his name and then come back to Australia and apply for a visa in which less consideration would be given, or less attention would be given, to [Mr Lee] in terms of his previous migration history in arriving in Australia. …
    [I]t was accepted, when put to him, that the [A]pplicant knew that [Mr Lee] wouldn’t be a tourist on … return.  The [A]pplicant knew that [Mr Lee] wouldn’t be coming to Australia to visit friends. Rather the [A]pplicant’s evidence was that [Mr Lee] wanted to return to Australia to close some businesses but had no idea of how long that would take.
    … That’s significant because the [A]pplicant has advised [Mr Lee] on a course of action which bears no consistency with what [Mr Lee]’s actual intended purpose was of returning to Australia and … [the Applicant] advised [Mr Lee] to undertake a different identity so as to mitigate the risk of his previous unsuccessful attempt being detected by the Government.  Had it been detected by the Government, you would see that [Mr Lee] has been refused visas in the past because of concerns with his status as a genuine temporary entrant.  So, this is what gives rise to [the Respondent’s] concern with [Mr Lee] being a genuine temporary entrant in the country.  …
    

    [39]          Transcript P-41 line 4 to P-42 line 15.

    [The Respondent] … accept[s] on review that a conversation did occur [on 11 May 2017] but that the [A]pplicant’s record of that conversation is, in some respects, implausible … [E]ven if [the Respondent] did accept that the meeting did take place, there were concerns with the [A]pplicant’s conduct in any event and [the Respondent] adopt[s] th[e] position on review … that the [A]pplicant was not restricted to what was told to him, or told to him by [Mr Lee], and also that the [A]pplicant should have had express regard to [Mr Lee’s] circumstances when providing him advice, irrespective of what was put to [the Applicant] in the conversation on the previous day.”

14. The email of 12 May 2017[40] from the Applicant uses direct language, whereas the translation of the diary note of the discussion on 11 May 2017 includes questions which are not direct in their language[41]. The Applicant by the email of 12 May 2017 was not competently and diligently dealing with Mr Lee, in that Mr Lee was at risk of contravening a section or sections of the Act, if Mr Lee took the actions referred to by the direct language in the email of 12 May 2017. Therefore, it is found that the Applicant did not deal with Mr Lee competently and diligently: clause 2.1(b) of the Code.

    [40]          T4, page 43.

    [41]          Transcript P-25 lines 31-47.

15. The email of 12 May 2017[42] did not dissuade Mr Lee from any course of action that, if taken, may be a contravention of the Act. It is found that by the email of 12 May 2017 the Applicant did not take all reasonable steps to maintain the reputation and integrity of the migration advice profession:  clause 2.23 of the Code.  

    [42]          T4, page 43.

16. There is therefore satisfaction that the Applicant has not complied with the Code of Conduct prescribed under s 314: s 303(1)(h) of the Act.

1. The Respondent further contends that the Applicant is also not a person of integrity or is otherwise not a fit and proper person to give immigration assistance: s 303(1)(f) of the Act. The Respondent submits that the Applicant’s ‘willingness to encourage Mr Lee to adopt a different identity in order to take advantage of a particular visa option raises a serious question with respect to his integrity, fitness and propriety to give immigration assistance’[43]. By the email of 12 May 2017 the Applicant did not dissuade Mr Lee from a proposed course of action. Further, the Applicant stated in the email of 12 May 2017 to Mr Lee things that Mr Lee should do: use the automatic entry system, not bring any suspicious items, come as a mere tourist and scan and email the documents in advance to the Applicant. There is satisfaction that the Applicant is not a fit and proper person to give immigration assistance in all the circumstances: s 303(1)(f) of the Act.

   [43]          Respondent’s Statement of Facts, Issues and Contentions dated 10 June 2019, paragraph 40.

   DISCIPLINE

2. The purpose of the disciplinary powers in s 303 of the Act is the protection of the public and not punishment as such[44]. In Narayanan and Migration Agents Registration Authority [2006] AATA 353 at [132], reference was made to the following factors to be considered when determining what sanction should be imposed:

   [44]          Kraues v Migration Agents Registration Authority [2018] FCA 664 at [17] per Perry J.

   “•The nature of the professional’s breach, particularly whether the professional is acting in good faith during the commission of the breach;

   •whether there were any factors that were beyond the professional’s control and could have reasonably contributed to the professional’s breach;

   •the professional’s willingness to accept that a breach may have occurred;

   •the professional’s efforts to rectify or mitigate the effect of the breach, where possible;

   •whether the client sustained any loss as a result of the professional’s breach;

   •the professional’s actions, if any, to compensate the client for any loss arising out of the possible breach;

   •the professional’s record of prior disciplinary breaches;

   •the professional’s community and professional reputation;

   •the extent to which any sanction may be harsh, unjust or oppressive in the circumstances taking into account the extent to which such a sanction would affect the professional’s financial earning capacity and livelihood;

   •the professional’s co-operation with the disciplinary authority;

   •whether a sanction, if any, would deter other professional[s] from similarly breaching their duties to a client; and

   •whether a sanction, if any, will ensure that the public’s confidence in the professional’s industry will be maintained."

3. The Applicant, as referred to above, ‘accepts’ that the email of 12 May 2017 is “questionable”[45], but does not otherwise accept that a breach may have occurred. There is no evidence as to Mr Lee actually suffering a loss as a result of the Applicant’s breach. The Applicant has no record of prior disciplinary breaches. The Applicant has provided three references as to his character professionally, which state his professional reputation. The Applicant has been able to continue to work in the same law firm, Park & Co Lawyers, and the cancellation has therefore not been harsh, unjust or oppressive in affecting the Applicant’s financial earning capacity and livelihood[46]. The Applicant has responded as required to the Respondent.

   [45]          Transcript P-22, lines 28-37. 

   [46]          Transcript P-8, lines 5-7:  working in the commercial division, doing leasing and conveyancing. 

4. In Re Altintas and Migration Agents Registration Authority [2004] AATA 978 at [159], it was held that a suspension (s 303(1)(b)) could be an appropriate sanction in two situations. The first is where a person has been found to be not a fit and proper person to give immigration assistance, but there is reason to believe that during a period of suspension, that circumstance will change, for example, if he or she studies in an area where his or her knowledge has been found to be deficient. There is no evidence as to current or future learning by the Applicant, such as to provide a ‘reason to believe’ that during a period of suspension, that circumstances will change[47].  

   [47]See Transcript P-9, lines 12-27:  previous undertaking of continuing legal development programs; no undertaking of ‘disciplinary training’; previous undertaking of internal seminar and DVD as to legal ethics.  

5. The second situation identified in Re Altintas is where the person has not been found not to be a fit and proper person to give immigration assistance, but there are serious findings or concern about the person’s breaches of the Code. In such a situation it may be considered that a period of suspension will impress upon a person the necessity to improve his or her conduct and practices as to compliance with the Code.  That is not the circumstance here. 

6. In Narayanan there were the two further factors:  as to whether a cancellation order deters other professionals from similarly breaching their duties to a client; and whether it will ensure that the public’s confidence in registered agents will be maintained.  The sanction of cancellation is an appropriate sanction, in all the circumstances referred to above, for the protection of the public. 

   DECISION

7. Accordingly, the reviewable decision made by the Office of the Migration Agents Registration Authority on 8 October 2018 is affirmed.

I certify that the preceding 23 (twenty three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter

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Associate

Dated: 24 October 2019

Date of hearing:	26 July 2019
Closing submissions received:	16 August 2019
Counsel for the Applicant:	Mr M. Black
Solicitors for the Respondent:	Sparke Helmore Lawyers
Solicitor for the Applicant:	Mr A. Cunynghame