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.
..............................................................
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

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
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.
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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Nah and Migration Agents Registration Authority (Migration)

Details

AGLC: Nah and Migration Agents Registration Authority (Migration) [2019] AATA 4376
Case: [2019] AATA 4376
Decision Date: 24 October 2019

CaseChat Overview and Summary

Dr Ki Chune Nah, a registered migration agent, sought review of a decision by the Office of the Migration Agents Registration Authority (the Respondent) to cancel his registration. The cancellation was based on allegations that Dr Nah was not a person of integrity, not fit and proper to provide immigration assistance, dishonest, and had not dealt with his client competently, diligently, and fairly, nor taken all reasonable steps to maintain the reputation and integrity of the migration advice profession. The dispute arose from advice provided by Dr Nah to a client, Mr Soohwan Lee, following the refusal of Mr Lee's student visa application.

The primary legal issue before the Court was whether the Respondent's decision to cancel Dr Nah's registration was justified. This required the Court to determine if Dr Nah's conduct, particularly in relation to an email sent to Mr Lee on 12 May 2017, demonstrated a lack of integrity, honesty, or competence, and whether it breached the Code of Conduct for migration agents, specifically clause 2.23 concerning the maintenance of the profession's reputation and integrity. The Court also considered whether the advice given by Dr Nah was consistent with Mr Lee's actual intentions for returning to Australia and whether Dr Nah had adequately considered Mr Lee's circumstances.

The Court considered Dr Nah's submission that the email was a genuine attempt to provide advice in difficult circumstances, arguing that Mr Lee had raised the possibility of changing his name. However, the Respondent contended that the email plainly advised Mr Lee to return to Korea, change his name, and re-enter Australia under a new identity to avoid detection of his previous migration history, and that Dr Nah knew Mr Lee did not intend to be a genuine tourist. The Court found that Dr Nah's advice was inconsistent with Mr Lee's stated purpose for returning to Australia and that Dr Nah should have had express regard to Mr Lee's circumstances. The Court concluded that the sanction of cancellation was appropriate for the protection of the public and to maintain public confidence in registered agents.

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

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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 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. 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.”