Nguyen and Migration Agents Registration Authority

[2020] AATA 1124

Nguyen and Migration Agents Registration Authority [2020] AATA 1124 (1 May 2020)

Division:GENERAL DIVISION

File Number(s):      2017/7543

Re:Hoan Tranh Nguyen

APPLICANT

AndMigration Agents Registration Authority

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:1 May 2020

Place:Sydney

The reviewable decision made on 14 December 2017, being the decision of the Migration Agents Registration Authority to cancel the registration of Mr Nguyen as a migration agent under section 303 of the Migration Act 1958 (Cth), is affirmed.

..........................[SGD]..............................................

Deputy President J W Constance

CATCHWORDS

MIGRATION AGENTS REGISTRATION – review of decision to cancel registration – where complaints made in relation to applicant’s conduct – whether applicant is a person of integrity – whether applicant breached the Code of Conduct for registered migration agents – where applicant misled the Authority – where applicant failed to properly supervise the work carried out by staff – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 292, 303, 304, 308, 309, 314

CASES

Australian Broadcasting Tribunal v Bond (1990)170 CLR 321
Briginshaw v Briginshaw (1938) 60 CLR 336
Mottaghi and Migration Agents Registration Authority (2007) 98 ALD 424
Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12

Taylor v Law Society of New South Wales [2017] NSWSC 948

SECONDARY MATERIALS

Code of Conduct for registered migration agents, 18 April 2017

REASONS FOR DECISION

Deputy President J W Constance

1 May 2020

A: Introduction	[1]
B: Background	[6]
C: Legislation	[13]
D: Issues for Determination	[19]
E: Evidence of Mr Nguyen	[21]
F: Consideration of the complaints made to the Authority as set out in the section 309 notice	[28]
F.1: Complaint CMP – 30483 Misleading advertising/provision of false document	[36]
F.2: Complaint CMP – 9446 Healthpac International (Australia) Medical Corporation Pty Ltd  (Healthpac)	[55]
F.3: Complaint CMP – 17084 Rainbow Cottage Early Childhood Centre (Rainbow Cottage)	[68]
F.4: Complaint CMP – 17085 TMIX Pty Ltd (TMIX)	[81]
F.5: Complaint CMP – 17086 All Imports Australia Pty Ltd (All Imports Australia)	[110]
G: Consideration of the Issues	[124]
H: Conclusion	[153]

A. INTRODUCTION

1. In 2005 Mr Nguyen was registered as a migration agent in accordance with the Migration Act 1958 (Cth) (the Act). He conducted a practice as such until December 2017.

2. On 14 December 2017 the Migration Agents Registration Authority cancelled Mr Nguyen's registration.[1] In these reasons I shall refer to this decision as “the reviewable decision”.[2] Under the Act a person whose registration has been cancelled must not be registered as a migration agent within five years of the cancellation.[3]

   [1] The power to cancel registration is provided by section 303 of the Act.

   [2] Exhibit A1 at 12.

   [3] Section 292 of the Act.

3. Prior to making the reviewable decision the Authority considered five separate complaints made against Mr Nguyen.[4] The cancellation followed findings by the Authority that Mr Nguyen:

   ·is not a person of integrity, or is otherwise not a fit and proper person to give immigration assistance; and

   ·has not complied with multiple clauses of the Code.[5]

   [4] Exhibit A1 at 13.

   [5] Exhibit A1 at 96.

4. Mr Nguyen has exercised his right to seek a review of the reviewable decision by the Tribunal.[6]

   [6] Section 306 of the Act provides the right to seek review of a cancellation decision made by the Authority.

5. For the reasons which follow the reviewable decision will be affirmed.

   B. BACKGROUND

6. Mr Nguyen’s initial registration as a migration agent took place on 31 March 2005. His registration was renewed annually up to the time it was cancelled.

7. During 2013 the Authority received four complaints[7] relating to Mr Nguyen's conduct as a registered migration agent. The Authority also considered a complaint of its own motion[8] following the withdrawal of a complaint made to it by a former client of Mr Nguyen in March 2014. The former client withdrew the complaint in November 2015.

   [7] CMP-9446, 17084, 17085 and 17086; see exhibit A1 at 13.

   [8] CMP-30483; see exhibit A1 at 13.

8. On 22 March 2016 the Authority sent Mr Nguyen a notice under section 308 of the Act.[9] The notice summarised the complaints and informed Mr Nguyen that it raised “possible issues”[10] under a number of specified clauses of the Code of Conduct for Registered Migration Agents (the Code).[11] It also required Mr Nguyen to respond to several questions in relation to the matters raised in the complaints and to provide to the Authority “the complete client files for the assistance provided”[12] in relation to a number of specified matters.[13]

   [9] Exhibit A3.

   [10] Exhibit A3 at 11.

   [11] The Code is provided for by section 314 of the Act.

   [12] Exhibit A3 at 12.

   [13] Exhibit A3 at 11-13.

9. Mr Nguyen provided his response to the notice by letter dated 27 July 2016 from his Solicitor. He also provided a statutory declaration made 26 July 2016.[14]

   [14] Exhibit A6.

10. On 18 April 2017 the Authority sent Mr Nguyen a notice under section 309 of the Act.[15] It notified Mr Nguyen that the Authority was considering cautioning him or suspending or cancelling his registration. The notice contained summaries of each of the five complaints referred to in the section 308 notice.

    [15] Exhibit A9 at 214ff.

11. Through his Solicitor, Mr Nguyen responded to the notice by letter of 5 June 2017.[16]

    [16] Exhibit A1 at 97 of the documents filed in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the s 37 T-documents).

12. On 14 December 2017 the Authority cancelled Mr Nguyen's registration.[17]

    [17] Exhibit A1 at 10.

    C. LEGISLATION

13. Subsection 303(1) of the Act provides, in part:

    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 was 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.

14. Section 292 of the Act relevantly provides:

    An applicant whose registration has been cancelled under section 303 … must not be registered within 5 years of the cancellation.

15. Subsection 309(2) provides:

    If the Migration Agents Registration Authority is considering making a decision under section 303 to cancel or suspend a registered migration agents registration, or to caution such an agent, it must inform the agent of the fact and the reasons for it and invite the agent to make a submission on the matter.

16. Subsection 304(1) provides:

    If the Migration Agents Registration Authority suspends the registration of a registered migration agent under section 303, the Migration Agents Registration Authority may:

    (a) set a period of suspension of not more than 5 years; or

    (b) set a condition or conditions for the lifting of the suspension.

17. Section 314 provides:

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

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

18. As described at paragraph 8 of these reasons, the Code has been prescribed in accordance with section 314. A copy of the Code is annexed to these reasons.

    D. ISSUES FOR DETERMINATION

19. The following issues arise:

    (1) Am I satisfied that Mr Nguyen has not complied with the Code of Conduct?

    (2)Am I satisfied that Mr Nguyen is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance?

    (3)If the answer to either or both of the above issues is “yes”, what is the appropriate sanction (if any) to be imposed under section 303 of the Act?

20. In its Statement of Facts and Contentions dated 4 May 2018 the Authority adopted the contentions in the section 309 notice as its contentions in this matter.

    E. EVIDENCE OF MR NGUYEN

21. Mr Nguyen provided a statutory declaration made 26 July 2017[18] (initially provided to the Authority in response to the section 308 notice) and gave evidence at the hearing.

    [18] Exhibit A6.

22. Mr Nguyen is 43 years old. He was admitted as a Solicitor of the Supreme Court of New South Wales in 2003, having graduated from the University of Sydney. He started to practise on his own account as a Solicitor and Registered Migration Agent in 2005.

23. In late 2010 Mr Nguyen employed Ms Q who, at the time, was an undergraduate studying law. In about March 2011 Ms Q was admitted as a Solicitor and registered as a Migration Agent. Mr Nguyen described her as “a good worker and a fast learner and she quickly earned my confidence and trust. I allowed her to handle money, do banking, and generally work under her own supervision. For immigration work, she had her own Immiaccount login and password.”[19]

    [19] Exhibit A6 at 2.

24. During 2012 Mr Nguyen was experiencing difficulties in his marriage which caused him to pay less attention to his practice than he would have otherwise.[20]

    [20] Transcript, 13 February 2019 at 15-16.

25. In April 2012 Mr Nguyen became involved in organising a major charity event in Vietnam. The event took place in December 2012. As part of his organising role Mr Nguyen travelled outside Australia during the following times:

    ·6-13 April 2012;

    ·10-20 July 2012;

    ·18-23 October 2012; and

    ·5 December 2012 – 22 January 2013.

26. Mr Nguyen described the circumstances of his return to his office from Vietnam in late January 2013 as follows:

    When I came back from Vietnam at the end of January 2013, I conducted a full review all (sic) the files done by my employees, and the review was satisfactory except for some files handled by [Ms Q]. I quickly noticed that there were some irregularities in the way the business had been running. I didn’t really have a chance to go into things with [Ms Q] since she was pregnant and was due to go on maternity leave from 7 February 2013. Actually she did not return to work after 31 January 2013.[21]

    [21] Exhibit A6 at [7].

27. I accept the evidence of Mr Nguyen set out in the preceding five paragraphs. His evidence in relation to each of the complaints will be referred to later in these reasons.

    F. CONSIDERATION OF THE COMPLAINTS MADE TO THE AUTHORITY AS SET OUT IN SECTION 309 NOTICE

    Weight to be given to Mr Nguyen's evidence

28. In considering the evidence in this matter I have concluded that Mr Nguyen was not a reliable witness. At times he was evasive when he was questioned by Counsel for the Authority and appeared to attempt to avoid answering questions put to him. Often he would engage in lengthy statements which did not address the questions he was asked.

29. Mr Nguyen did not always give careful consideration to the manner in which he answered questions. In relation to his client, Ms B, and the Healthpac complaint the following answers were given:

    COUNSEL FOR THE AUTHORITY: I want to suggest to you that [Ms B] was a client of East West Lawyers. Do you agree with that?

    MR NGUYEN: No.

    COUNSEL FOR THE AUTHORITY: You disagree, do you?

    MR NGUYEN: I disagree.

30. It was then pointed out to Mr Nguyen that earlier he had given evidence that he became aware of the matter involving Ms B when her visa approval was sent to Ms Q’s email in March 2013. He was asked whether that indicated to him that Ms B was a client of the firm at that stage. He said when he returned to his office in late January 2013 he looked at the file and saw there was a document in relation to the application prepared by Ms Q. He then agreed Ms B was a client of his firm, although he sought to qualify this in some way by saying she had “constructively” become a client.[22]

    [22] Transcript, 14 February 2019 at 148.

31. Mr Nguyen is a Solicitor of the Supreme Court of New South Wales. I do not accept that he was confused when answering the questions put to him concerning his professional relationship with Ms B.

32. I have taken into account that Mr Nguyen was requested by the Authority to produce files held in relation to the matters in issue. He did not do so despite acknowledging when he gave evidence before me that relevant files were in his possession.

33. On two occasions I gave Mr Nguyen the opportunity to produce relevant files to the Tribunal. He did not do so. I accept the submission of Counsel for the Authority that Mr Nguyen “has not been candid and frank with the Tribunal about the production of documents when asked to do so.”[23] At no stage did he offer an explanation as to why the relevant files he had in his possession were not produced to assist the Tribunal.

    [23] Transcript, 15 October 2019 at 45.

34. I have determined that I should consider Mr Nguyen's evidence with a degree of caution, unless it is corroborated by another source or his evidence is uncontentious.

35. It is alleged by the Authority that Mr Nguyen has engaged in serious misconduct. Findings that he has engaged in such conduct are likely to have grave consequences for Mr Nguyen. In considering the evidence and reaching the conclusions I have reached, I have taken into account the principles set out by Dixon J in Briginshaw v Briginshaw:[24]

    Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indifferent testimony, or indirect inferences.

    F.1:     Complaint CMP – 30483 Misleading advertising/provision of false document

    [24] (1938) 60 CLR 336 at 361-2.

    Section 309 notice

36. The following summary of this complaint is taken from the section 309 notice:

    Background

    7. A former client consulted with you following an advertisement where your agency claimed to offer assistance with applications for subclass 457 visas for people with ‘no English and qualifications.’

    8. The former client’s application for a subclass 457 visa was lodged with the Department on 9 September 2011 and refused on 20 October 2011. You were the representative migration agent for the purpose of the application. The basis for the refusal related to the fact that the applicant’s skills and qualifications did not meet the requirements of the nominated position. Namely, that the applicant’s Bachelor of Science (Chemistry) was not related to the nominated position of ‘Café and Restaurant Manager’.

    9. A review of the decision was submitted with the MRT [Migration Review Tribunal] on 8 November 2011 where you were the listed representative migration agent and attended the hearing with the applicant on 16 January 2014. The MRT affirmed the primary decision on 29 January 2014 and the decision record contained a number of findings in respect of the fraudulent nature of the supporting documentation submitted to the MRT. Specifically, the Diploma of Management and academic transcript, which were purportedly issued by TAFE NSW.

    10. The former complainant additionally submitted a complaint to the LSC [Legal Services Commission] in respect of the same matter and when such was raised with you on 9 July 2015 you submitted a number of documents to the Authority, including your response to the LSC dated 9 May 2014.

    Allegations

    11. The former complainant outlined the same allegations published to you by the LSC, a copy of which you had provided to the Authority together with your response to the same. Amongst other matters, the former client alleged that you:

    i. had misled clients of immigration services that ‘no English and no qualification for applying for Business (Long Stay) of any kind of skill visa’ was required given the information contained within your published newspaper advertisements;

    ii. led her to believe that she would meet the requirements for a subclass 457 visa;

    iii. had knowledge of the source of the ‘fake’ TAFE certificate she had received by post. [25]

    Statement of Ms T made 7 March 2014[26]

    [25] Exhibit A9 at 2-3 [7]-[11]; s 37 T-documents at 215-216.

    [26] Exhibit R1.

37. In her statement Ms T said that:

    ·“In July 2010, I commence to study Mater [sic] in Business at Charles Sturt University, the course commenced from 15/07/2010 and expected to complete on 30/10/2013. The course was too difficult for me and I was struggling to keep up with the study.”

    ·“The beginning of 2011, I saw the advertisement in the newspaper from East West Lawyer, Tranh Hoan Nguyen lawyer indicated that “no English and no qualification for applying for Business (Long Stay) or any kind of skill visa”. As the result for that advertisement, I went to visit Lawyer, Hoan Tranh Nguyen from East West Lawyers at [contact details omitted].”

    ·“At the initial consultation, I told the lawyer, Hoan Tranh Nguyen that I had only Bachelor of Chemistry and incomplete Master of Business Course. The lawyer, Nguyen confirmed that he could assist me with the Business (Long Stay) Visa application subclass 457 but I had to find a business which could provide a sponsorship for me. Following, I found the business, known as [name omitted] a restaurant…willing to provide sponsorship to me. The Lawyer, Nguyen then told me that he would apply for me with the position of working as the Cafe & Restaurant Manager.”

    ·in 2011 Mr Nguyen acted for Ms T and on her behalf lodged a Business (Long Stay) visa application with the Department;

    ·on 20 October 2011 the application was refused;

    ·Mr Nguyen did not explain to Ms T the reason for the refusal or provide to her a copy of the decision letter from the Department;

    ·upon receipt of the refusal advice Mr Nguyen advised Ms T to apply to the Migration Review Tribunal to review the Department’s decision;

    ·an application to the Tribunal was lodged in November 2011 and Mr Nguyen told her “not to worry and he would organise things for me”;

    ·prior to the hearing Ms T unexpectedly received a certificate from TAFE; she gave the certificate to Mr Nguyen who told her that the certificate was a result of her previous study at a College at which she had been enrolled;

    ·she was represented by Mr Nguyen at the hearing before the Migration Review Tribunal in January 2014;

    ·at the hearing before the Tribunal it was explained to her for the first time that her Bachelor of Chemistry was not relevant to the occupation in respect of which she had applied for the Business (Long Term) visa 457.

    Statement of Mr Pham, NAATI Accredited Translator

38. In the statement dated 19 July 2018[27] and tendered on behalf of Mr Nguyen, Mr Pham provided English translations of advertisements placed by Mr Nguyen in Vietnamese language newspapers during 2013.

    Translation of advertisements marked “A” and “C”

    [27] Exhibit A2.

39. The translation by Mr Pham read so far as relevant:

    East West Lawyers can sponsor in over 100 different industries and we do not require English language.

    *Accounting *Business Administration *Marketing *Finance *Transport & Logistics *Health & Medical *Building & Construction *I.T Computer Networking *Restaurant Chef *Hotel Management Tourism*Office Jobs *Wholesale & Retail.

    Translation of advertisement marked “B”

40. The translation by Mr Pham read so far as relevant:

    Last Chance for Vietnamese International Students

    Only need to complete Certificate IV or Diploma in Australia.

    With a Breakthrough Smart Visa Solutions

    * Sponsor family members, friends to Australia to work

    * Working Visa 547 long-term 4 years. No English language requirement

    * Apply for Permanent Resident Visa straightaway if have IELTS 4, 5 & working in Canberra, Adelaide, Perth, Darwin & Tasmania

    *Last chance for Vietnamese International students. Only need to complete Certificate IV or Diploma in Australia.

    * Visas within 4 months

    Immigration law will be changed on 1/7/2012 in relation to Employer Sponsored Permanent Resident Visa.

    Mr Nguyen’s response to the Authority

1. The Solicitors then acting for Mr Nguyen provided a response to the Authority by letter of 5 June 2017.[28] In summary they submitted that:

   ·the translation of the advertisements is incomplete and incorrect;

   ·the claim in the advertisement is to be seen in context;

   ·the client had the skills necessary to perform the stated occupation in accordance with the regulations in force at the time;

   ·Mr Nguyen was unaware that the documents in question were not genuine.

   [28] Exhibit A1, s 37 T-documents at 97-147.

   Mr Nguyen's evidence at the hearing

   Advertisements placed by Mr Nguyen

2. When he gave evidence Mr Nguyen disputed the accuracy of the translation by Mr Pham. In Mr Nguyen's opinion the word translated as “industries” is correctly translated as “occupations”. He said that so translated, the advertisement was correct according to the law applicable at the time of publication.[29] Further, he said that English was not necessarily required for a successful visa application for employment in a business in the listed categories i.e. there were occupations in each of the categories in respect of which a 457 visa could be issued without the applicant meeting any English requirements.[30] He agreed with the proposition that in an application for a 457 visa, whether a person is required to speak English at a particular level depends upon the particular industry or occupation.[31]

   [29] Transcript, 13 February 2019 at 32.

   [30] Transcript, 13 February 2010 at 35.

   [31] Transcript, 13 February 2019 at 75.

3. In relation to the advertisement marked “B”, Mr Nguyen agreed that what he intended to convey was “Working visa 457 long-term four years, it may be that there will be no English language requirement.”[32]

   Allegation concerning the false document provided to the Migration Review Tribunal

   [32] Transcript, 13 February 2019 at 86-87.

4. Mr Nguyen gave evidence that:

   ·he advised Ms T that he could assist her in making an application for a business long-stay subclass 457 visa;

   ·at the time he took instructions he was aware that she held the qualification of a Bachelor of Science and Chemistry;

   ·he was aware that she had undertaken some study in Australia in a Master of Business course;

   ·he considered all of the units she was currently studying and advised her that this could qualify her for a 457 visa for a restaurant manager position;

   ·he considered Ms T had a good chance of success in an application for a 457 visa before the Migration Review Tribunal on review;

   ·he recalled receiving a letter from the Migration Review Tribunal seeking further information as to Ms T’s qualifications;

   ·he recommended to Ms T that she undertake a course in hospitality management to improve her chances of success before the Migration Review Tribunal;

   ·he did not tell Ms T that he would “organise things for her”;

   ·Ms T delivered the document which purported to be a certified copy of a TAFE certificate to him and asked him to send it to the Migration Review Tribunal;

   ·he believed the document given to him was a genuine certificate;

   ·he did not know that TAFE NSW did not confer degrees.[33]

   [33] Transcript, 13 February 2019 at 64-73.

   Evidence of Ms Lam, NAATI 3 Interpreter

5. Following the statement of Mr Pham being taken into evidence and Mr Nguyen disputing his translation of advertisements “A” and “C”, Counsel for Mr Nguyen applied for leave to call another Vietnamese interpreter who had not been told what he/she would be asked to interpret. As Counsel put it, “I’m leaving myself in the hands of what the interpreter might say.”[34] After receiving submissions by both Counsel I gave the leave sought on the basis that it may be necessary to adjourn the hearing to permit the Authority to call Mr Pham to give evidence.

   [34] Transcript, 14 February 2019 at 168.

6. The following day Counsel for Mr Nguyen called Ms Lam to give evidence. Ms Lam was asked to translate the relevant sentence in the advertisement marked “A” referred to in paragraph 38 of these reasons. Ms Lam translated the sentence as:

   East West Lawyers can sponsor over 100 different career and we do not need English.[35]

   [35] Transcript, 15 February 2019 at 178.

7. When cross-examined, Ms Lam agreed with Counsel for the Authority that the word she translated as “career” could also be translated as “industry”.[36]

   [36] Transcript, 15 February 2019 at 178.

8. Ms Lam was then asked to translate the relevant sentence in the advertisement marked “C”. She replied:

   East West Lawyer are able to sponsor over 100 different industry and we do not need English.[37]

   [37] Transcript, 15 February 2019 at 179.

9. In response to a question by Counsel for Mr Nguyen Ms Lam said:

   If I just translate precise, word to word, the word industry, I would use. But when I read it, I translate – I interpret in my mind, (indistinct) mind, my thought would be career.[38]

   [38] Transcript, 15 February 2019 at 180.

   Discussion

   Advertisements

10. On the basis of the evidence of Mr Pham and Ms Lam I am satisfied Mr Nguyen placed advertisements in Vietnamese newspapers during 2013 which would reasonably have been understood by readers to mean that 457 visas could be granted in over 100 different industries (including those specified) without the need for an applicant to meet English language requirements. I am satisfied the advertisements “A” and “C” went further than the interpretation put by Mr Nguyen, namely that it referred to “occupations” rather than to “industries”.

11. On the basis of the evidence of Mr Nguyen I am satisfied that advertisement “B” was imprecise in its wording and could have misled prospective clients.

12. However, taking into account the evidence of Mr Nguyen, Mr Pham and Ms Lam I am not satisfied that Mr Nguyen intended to mislead prospective clients with the advertisements he placed. No doubt, like all advertisers, he intended to attract clientele. In view of what was said in Briginshaw I do not make any findings adverse to Mr Nguyen in respect of the advertising.

    Provision of false document

13. Again, taking into account the principles in Briginshaw, in the absence of further evidence from Ms T as to the circumstances in which the falsified TAFE NSW certificate was received and delivered to Mr Nguyen, I am not satisfied that he was aware the document was false when he provided it to the Migration Review Tribunal.

14. In reaching this conclusion I have given consideration to the Authority’s argument that it was apparent on the face of the document that it was false by reason of its reference to TAFE NSW conferring a degree rather than a diploma. However I am not satisfied that Mr Nguyen noticed or, if he did, appreciated, this distinction.

    F.2:Complaint CMP – 9446 Healthpac International (Australia) Medical Corporation Pty Ltd (Healthpac)

    Section 309 notice

15. The following extracts are from the section 309 notice prepared by the Authority:

    13. On 5 December 2012, while in your employ, [Ms Q] lodged a business nomination application on behalf of business sponsor, Healthpac International (Australia) Medical Corporation Pty Ltd and a subclass 457 Temporary work visa application on behalf of [Ms B]. The applications indicated that [Ms B] was nominated for the position of a Customer Service Manager. The 956 form, dated 25 August 2012, submitted with the visa application indicated that [Mr Nguyen] was the primary migration agent appointed and that [Ms Q] was the secondary migration agent.

    14. On 10 December 2012, the Department approved the nomination application and on 13 March 2013 [Ms B’s] subclass 457 visa was granted.

    15. On 17 June 2013, you advised the Department (by way of email) that the sponsor instructed you to give a notice of withdrawal of the sponsorship and nomination in association with [Ms B] as she had failed to commence her employment with the sponsor. You included a completed 956 Form with this notice, signed by Dr Tan on 8 August 2012, as evidence of your authorisation to act on his behalf.

    16. On 6 August 2013, the Department conducted a site visit to the sponsor’s premises as part of a routine business monitoring activity. Departmental officers met with Dr Tan, the Medical Director and Proprietor of Healthpac International Australia.

    17. Amongst other things, Dr Tan advised the following:

    oHe does not know [Ms B] and had never sponsored her to work for the company; and

    o[Ms L] was the only employee the company had sponsored in association with a visa.

    18. On the same day (6 August 2013), Dr Tan was requested to provide details in relation to the employees which were sponsored by the company.

    19. On 20 August 2013, you notified the Department that you were appointed by Dr Tan to represent the sponsor in association with the monitoring activity and submitted documentation in response to the request of 6 August 2013. Amongst other matters, you indicated that the company had only sponsored one individual for the purpose of a subclass 457 visa, namely [Ms L]. Further, in response to the request for “Details of Any Primary Sponsored Subclass 457 Visa holders who have ceased employment,” you indicted [sic] “Not Applicable” thereby not specifying details associated with [Ms B].

    20. On 30 August 2013, the Department requested that you provide information in relation to [Ms B’s] nomination application approved on 10 December 2012 and the subclass 457 visa granted to her on 13 March 2013. On 6 September 2013, you advised the Department, by way of e-mail, that the information will be provided shortly. Despite your indication that the documentation would be provided, Departmental records reveal that no such information was received.

    21. On 25 October 2013 Dr Tan provided a Witness Statement to the Department indicating the below listed matters:

    a.He engaged East West Lawyers to represent his business, Healthpac International (Australia) as Migration Agents;

    b.On 3 July 2012, East West Lawyers to lodged (sic) a Standard Business Sponsorship application which was approved by the Department on 8 August 2012;

    c.On 21 August 2012 East West Lawyers lodged a nomination for [Ms L] which was approved on 25 August 2012;

    d.On 6 August 2013, he was made aware, by the Department, that [Ms B] was nominated and granted a subclass 457 visa in association with his company;

    e.He does not know [Ms B];

    f.He did not instruct East West Lawyers to lodge a nomination or subclass 457 visa application for [Ms B];

    g.He neither provided the Letter of Offer of Employment for [Ms B] nor did he offer her employment;

    h.The letter of employment submitted to the Department did not have the correct company logo nor did it bear his signature; and

    i.He had no knowledge of the notice sent to the Department advising that [Ms B] had failed to commence her employment nor did he instruct East West Lawyers to send such a notice on his behalf.

    22. 18 November 2013, the Authority received a complaint from the Department in respect of the information submitted as part of the business nomination and subclass 457 visa applications for [Ms B]. [39]

    [39] Exhibit A9 at 3-5.

16. A copy of the statement of Dr Tan is exhibit R11 in these proceedings.

    Mr Nguyen's evidence

17. Mr Nguyen first took instructions from Dr Tan in mid-2011. He assisted Healthpac to sponsor a number of employees.

18. In mid-2012 Mr Nguyen assisted Healthpac to successfully sponsor Ms L who was in Australia on a student visa. As part of that process Dr Tan provided Mr Nguyen's firm with electronic documents, including letterhead and business information.

19. In the statutory declaration made 26 July 2016 which he provided to the Authority, Mr Nguyen said:

    [Ms B] became a client of [Ms Q] in around mid-2012. I recall that during one appointment with [Ms Q] in around August or September 2012, [Ms B] consulted me about some issues with their student visas and how she and her husband could get residency visa options in Australia. She gave me her employment and education background and her husband’s employment and education background, and I told her that the only chance she would have would be to find a sponsor who would be willing to employ her. Her background was in medical secretarial work. I recall seeing them come and see [Ms Q] on subsequent occasions, but I was not consulted.

    I had no knowledge of the sponsorship and nomination that was lodged by [Ms Q] on the same day that I left the country on 5 December 2012 to spend 2 months in Vietnam working on the Red Cross Charity Run project. I now know that the application was lodged without any knowledge or authority on the part of Dr Tan, using information and documents that were already on our records from the previous sponsorship and other business dealings that I had with him.

    The first I knew about the matter was when the visa approval was sent to [Ms Q's] email in March 2013. By that time [Ms Q] was on maternity leave and her emails were redirected to me. I looked through the files and I became suspicious about the whole thing, because I did not recall hearing anything before I left about Healthpac wanting to sponsor [Ms B]. I tried to contact [Ms Q] about it, but she would not speak to me.

    I became very worried that something unlawful had been done by [Ms Q]. I probably should have acted earlier, but I still hoped to be able to sort it out if [Ms Q] gave me an explanation.

    Finally, on about 2 or 3 June 2013 I went to see Dr Tan at his Healthpac clinic … I said “My staff lodged an application under your company without your knowledge or authority. That was a breach of trust and unprofessional.” He was deeply shocked. He asked “How did that happen?” I couldn’t tell him because I had been unable to speak to [Ms Q]. He asked me to do what I could to withdraw any applications that had been lodged under his name.

    Since I already had a form 956 signed by Dr Tan I sent that to the Department to advise that the sponsorship and nomination were withdrawn, and that [Ms B] had never started working for Healthpac.

    …

    I did not provide false information to the Department by saying that I was instructed to withdraw the sponsorship. As set out above, Dr Tan instructed me to fix the mess by withdrawing whatever had been lodged under his name. It was correct to say that [Ms B] “failed to commence her employment with the sponsor”, although I accept that the wording of my response was clumsy. It was most certainly not intended to mislead. My primary concern was to have Healthpac’s name cleared in respect of the sponsorship and nomination, as instructed by Dr Tan. [40]

    [40] Exhibit A6 at 6-7.

    Discussion

20. Mr Nguyen agreed that the application lodged by Ms Q contained false and misleading information and the supporting documents were false. He also agreed he should have acted more quickly in informing Dr Tan of what had happened.[41]

    [41] Transcript, 14 February 2019 at 158.

21. In his statutory declaration made 26 July 2016 (referred to above) Mr Nguyen stated that Ms B became a client of Ms Q in mid-2012. He gave evidence at the hearing that he understood a reference to a client of Ms Q was in fact a reference to a client of his firm.[42] Notwithstanding his earlier statements, when he gave evidence before me Mr Nguyen said Ms B had never become a client of his firm but was only a “prospective client.”[43] Later he said he had become aware that Ms B was a client of his firm when he read the email from the Department notifying Ms B of the grant of her visa in March 2013.[44]

    [42] Transcript, 14 February 2019 at 147.

    [43] Transcript, 14 February 2019 at 146. 

    [44] Transcript, 14 February 2019 at 148.

22. I am satisfied that no later than March 2013 Mr Nguyen was aware Ms B was a client of his firm.

23. Following his meeting with Dr Tan on 3 or 4 June 2013, Mr Nguyen wrote to the Department on 17 June 2013[45] concerning Ms B as follows:

    We are instructed by the Business Sponsor [Healthpac] to give Notice of Withdrawal of A Business Sponsorship and Nomination for the above nominated employee [Ms B]. This notice is effective immediately.

    We are further instructed that, after 4 weeks since the visa was approved on 14 March 2013, the above nominated employee had failed to commence her employment with sponsor as per employment contract. The above nominated employee had never commenced her work with the business sponsor.[46]

    [45] Transcript, 14 February 2019 at 162.

    [46] Exhibit R2, s 37 T-documents at 1016.

24. When giving evidence at the hearing Mr Nguyen agreed he had not been instructed to advise the Department that “after 4 weeks since the visa was approved on 14 March 2013, the above nominated employee had failed to commence her employment with sponsor as per employment contract” and he should not have given this advice.[47] He said that he never had an intention to mislead the Department and did not think what he wrote would be misleading.[48]

    [47] Transcript, 14 February 2019 at 164-5.

    [48] Transcript, 14 February 2019 at 165.

25. The following exchanges took place as Mr Nguyen gave evidence:

    COUNSEL FOR THE AUTHORITY: The whole letter is misleading because it gives the impression the reason that the sponsor is withdrawing a business sponsorship is because of what is contained in the first sentence of the second paragraph?

    MR NGUYEN: No.

    COUNSEL FOR THE AUTHORITY: Do you agree?

    MR NGUYEN: No. It’s not my intention to create that impression. The notice of withdrawal of nomination just to confirm the Department that the business sponsor no longer – withdraw the sponsorship nomination for this person.

    COUNSEL FOR THE AUTHORITY: I want to suggest to you that it was your intention to inform the – it was your intention when you sent that letter to advise the Department that the reason why the business sponsor – in this case, Healthpac International Australia Medical Corporation had withdrawn its business sponsorship of [Ms B] was because after four weeks since the visa was approved on 14 March 2013, the nominated employee, [Ms B], had failed to commence her employment with the sponsor as per her employment contract. That is what you were trying to – that is what you were conveying to the Department wasn’t it? Yes or no?

    MR NGUYEN: It’s not my intention to convey this. My intention and the instruction were to inform the Department, yes, Dr Tan want to give notice to the Department that he withdraw the sponsorship for this person and secondly to confirm this person never worked for his business.

    COUNSEL FOR THE AUTHORITY: Why did you include the second paragraph at all?

    MR NGUYEN: I shouldn’t …

    COUNSEL FOR THE AUTHORITY: Were you worried that someone might follow it up?

    MR NGUYEN: No, you know, I shouldn’t (indistinct) in that way and the second part shouldn’t be in the paragraph in there and I, you know, it – I guess, you know, at that time I under tremendous, you know, pressure and, you know, something clouding my mind. I shouldn’t, you know …

    …

    DEPUTY PRESIDENT: Why did you tell the Department that the nominated employee had failed to commence her employment with the sponsor as per employment contract when you knew there wasn’t an employment contract by that stage?

    MR NGUYEN: I really don’t know. I don’t know why I put that to be very honest. I, you know, I should – I shouldn’t have put that in there but I didn’t know – you know, I draft that, that’s why…… [49]

    [49] Transcript, 14 February 2019 at 166-167. 

26. Having considered the evidence of Mr Nguyen, the statement of Dr Tan and the letter of 17 June 2013, I am satisfied Mr Nguyen deliberately sought to mislead the Department as to the circumstances giving rise to Healthpac withdrawing its sponsorship of Ms B. When he wrote to the Department Mr Nguyen clearly conveyed to any reasonable reader that Mr Tan had withdrawn his sponsorship as a result of Ms B not commencing her employment as she had agreed to do. Mr Nguyen knew this was not the case, yet he has continued to maintain that he did not intend to mislead the Department. I do not accept this evidence.

1. I am satisfied that Mr Nguyen attempted to mislead the Department to disguise the actions of Ms Q and his failure to properly supervise her. I am satisfied that, in making the representations to the Department in the letter of 17 June 2013, Mr Nguyen failed to take “all reasonable steps to maintain the reputation and integrity of the migration advice profession” in breach of the provisions of 2.23 of the Code. He then attempted to mislead the Authority in his statutory declaration of 26 July 2016,[50] the relevant parts of which are set out in paragraph 59 of these reasons. In so doing he failed to take reasonable steps to maintain the reputation and integrity of the migration advice profession.

   [50] Exhibit A6.

   F.3 Complaint CMP – 17084 Rainbow Cottage Early Childhood Centre (Rainbow Cottage)

2. The following extracts are from the section 309 notice prepared by the Authority:

   24. On 12 March 2012, [Ms Q] as the representative migration agent lodged a business nomination application on behalf of sponsor, Rainbow Cottage Early Childhood Centre …… and a subclass 457 Temporary Work Visa application on behalf of [Ms D]. The application submitted included a Letter of Appointment for the position which specified that [Ms D] was nominated for the position of ‘Customer Service Manager’ with a salary of $50,000.

   25. On 26 March 2012, the nomination application was approved, followed by the grant of [Ms D’s] subclass 457 visa on 15 May 2012.

   26. On 27 August 2013, the Department conducted a site visit to the sponsor’s premises as part of a business monitoring activity. Departmental officers met with Ms Brew, the Director of Rainbow Cottage Early Childhood Centre, and [Ms D].

   57. According to the site visit report, the following information was acquired as a result of the site visit:

   a. Ms Brew advised that [Ms D] was sponsored with the assistance of [Ms D’s] solicitor who completed the forms but did not have much further dealings with them

   b. Ms Brew presented a copy of the Letter of Appointment for [Ms D];

   c.Upon comparing the Letter of Appointment presented by Ms Brew and the letter submitted to the Department, Department officers observed that the letter presented by the sponsor was not the same as the one submitted with the nomination application;

   d. Ms Brew advised that she had never seen the Letter of Appointment that was submitted to the Department and was surprised that the nomination was lodged for a Customer Service Manager and not for the position of a Childcare Worker;

   e. Ms Brew also advised that as the sponsor, she did not pay for any costs to sponsor [Ms D], including the fee for the sponsorship nomination application. Ms Brew explained that the ‘visa holders solicitor’ rang her, asked if they would like to sponsor [Ms D], stated that they would organise everything and advised that [Ms D] would pay for all the costs involved;

   f. Ms Brew was unaware of the sponsorship obligations as she had never been advised about them by the ‘agent’;

   g. [Ms D] advised that she was made aware of the migration agency through a Vietnamese Newspaper and a cousin in Sydney;

   h. [Ms D] stated that she paid the lawyer about $3000 for the visa sponsorship and nomination and $10,000 for the lawyers service fee. She added that the lawyer told her that she could acquire a permanent resident visa in 2 years; and

   i. [Ms D] indicated that she was not aware that the Letter of Appointment submitted by her lawyer to the Department did not specify the role she performed. She stated that she signed the letter but did not see the job description.[51]

   [51] Exhibit A9 at5-6.

   Mr Nguyen's evidence

3. In his statutory declaration provided to the Authority Mr Nguyen said:

   48. To my knowledge [Ms D] had been working for Rainbow Cottage for a number of months as the holder of a student visa. She contacted [Ms Q] and said that she had qualifications in childcare and that the employer wanted to sponsor her for a 457 visa. I spoke to her a few times on the phone about her situation. I recall she told me that her employer wanted to sponsor her. I advised that we would need to speak to the employer to confirm that.

   49. [Ms Q] then spoke to Ms Brew. After that the employer sent us an offer of employment, but it was not satisfactory. It was a very simple document stating only that they wanted to offer [Ms D] employment as a “Room Leader”…

   50. The first problem was that the occupation as described was not on the Consolidated Skilled Occupations List. Also the document was not the type of employment contract that is required by Immigration to comply with the nomination requirements.

   51. I recall that I did speak to Ms Brew briefly on one or two occasions but it was [Ms Q] who ran the case. To the best of my knowledge [Ms Q]explained the issues to Ms Brew and discussed whether the business was prepared to employ [Ms D] as a Client Services Manager, which would involve her doing various tasks including dealing with parents of the children, and Ms Brew asked her to draw up the contract in the correct form.

   52. It was my belief that the sponsor had agreed to all the changes. I also expected that [Ms Q] would have advised Ms Drew about her obligation to pay for the sponsorship and nomination costs.[52] [Errors in the original].

   [52] Exhibit A6 at 9-10.

4. Mr Nguyen denied that he had any knowledge of any alterations to the employment contract made without the sponsor’s approval. On the question of legal costs he said his practice had “strict internal procedures and guidelines in place to ensure that the sponsor paid for the cost of the business sponsorship and nomination applications as required by Migration Regulation 2.87.”[53] He was not aware that Ms Q did not follow the practice’s internal procedures.

   [53] Exhibit A6 at 10.

5. In an email to the Authority dated 1 March 2016 Ms Brew stated:

   I don’t think I spoke to either of these lawyers [Mr Nguyen and Ms Q]. The only person I spoke to via phone was someone called Peng ([Ms D] said that she worked at her lawyer’s) [sic]. Peng asked me to fax business related documents which were needed to show that we were a viable company. I don’t recall any other contact with anyone from East West Lawyers.[54]

   [54] Exhibit R7, s 37 T-documents at 1068-1069.

6. When he gave evidence, Mr Nguyen said that Ms Brew was lying when she made this statement.[55]

   [55] Transcript, 14 February 2019 at 121.

7. At the hearing Mr Nguyen said that it is usual practice for the sponsor to pay the legal fees incurred in progressing a sponsorship application in relation to a 457 visa. On 26 May 2012 East West Lawyers rendered an account to [Ms D] which included disbursements of the visa application fee of $350.00 and a police check of $45.00.[56] Mr Nguyen said that Ms Q sent the invoice and, at the time, he was unaware that she had done so.[57]

   [56] Exhibit R9, s 37 T-documents at 1072.

   [57] Transcript, 14 February 2019 at 122.

8. Mr Nguyen was working in his office during May 2012. He said his firm was acting for both the sponsor and the visa applicant but that no fees were rendered to the sponsor. He accepted his supervision and control of Ms Q was insufficient and did not comply with his obligations under Part 8 of the Code.

   Discussion

9. On the basis of the statements made by Ms Brew to the Authority I am satisfied that at the relevant time Ms D was not employed in a position which would have entitled her to the issue of a 457 visa. I am also satisfied that Ms Q lodged a forged Letter of Appointment with the Department which misrepresented to the Department the nature of the position in which Ms D was employed.

10. I am satisfied on the balance of probabilities that Ms Q did not follow the usual procedure in relation to the application of Ms D. Even though her employer was acting for both parties I am satisfied that she rendered all fees payable to Ms D. These fees included those normally payable by the sponsor. This supports the view that there was some irregularity in the manner in which the applications were made.

11. Although I have reservations as to the reliability of Mr Nguyen’s evidence unless it is corroborated, in the absence of sworn evidence from Ms Brew I am not persuaded to the necessary degree of satisfaction that Mr Nguyen was aware of the basis on which Ms Q made the application to the Department. In particular I am not satisfied that, at the time, he was aware a false document was lodged in support of Ms D’s application.

12. I am unable to make a finding as to whether Mr Nguyen spoke to Ms Brew concerning the application. Despite the provisions of clause 6.1 of the Code and of good legal practice, Mr Nguyen did not produce to the Tribunal copies of file notes recording the conversations which he says he had with Ms Brew.[58] I note that Ms Brew was unable to be located by the Authority’s representatives.

    [58] Transcript, 14 February 2019 at 128-9.

13. Mr Nguyen agrees that he did not supervise Ms Q properly. In the matter being considered, at least by the actions of Ms Q, his firm was seriously at fault in the manner in which it acted for its clients and in the manner in which it dealt with the Department. Mr Nguyen’s failure to properly supervise Ms Q had serious consequences. At the time Mr Nguyen had some knowledge of the matter and was not overseas.

14. I find that his conduct was in breach of the following provisions of the Code:

    ·Clause 2.23 – failing to take reasonable steps to maintain the reputation and integrity of the migration advice profession;

    ·Clause 6.1 – failing to maintain proper records;

    ·Clause 8.1 – failing to exercise effective control of his office;

    ·Clause 8.2 – failing to properly supervise the work carried out by staff.

    F.4: Complaint CMP – 17085 TMIX Pty Ltd (TMIX)

15. TMIX first became a client of Mr Nguyen's firm in early 2012. During that year Ms Q lodged several applications for 457 visas on behalf of clients sponsored by TMIX. As an employee of Mr Nguyen, Ms Q also acted on behalf of the company in respect of these applications.

16. Allegations made by the Authority against Mr Nguyen in the section 309 notice include:

    65. You were aware that [Ms Q] submitted false and manufactured letters to the Department in relation to Offers of Employment in association with the nomination and subclass 457 visa applications lodged on behalf of the sponsor for the following [six named] clients …

    66. You were aware that [Ms Q] lodged nomination and subclass 457 visa applications without the sponsor’s knowledge or authority and submitted false and manufactured letters to the Department in relation to the Offers of Employment for the following [six named] clients …

    67. You provided false and misleading information to the Department as part of your submission dated 25 October 2012, when you stated that the sponsor:

    (i) Employed [employees A,B, and C] as ‘Assistant Restaurant Managers’: and

    (ii) After reviewing their skills the sponsor found that they required further training and as a result terminated their employment ‘with a view of sponsoring them at a later date’ on subclass 442 visas.

    68. You provided false and misleading documentation to the Department as part of your submission dated 25 October 2012 by providing:

    (i) Position descriptions where it revealed that the sponsor employed [employees A, B and C] as ‘Assistant Restaurant Managers’; and

    (ii) Offer of Employment letters that were not those held by the sponsor.[59]

    [59] Exhibit A9 at 14.

    Mr Nguyen's evidence

17. In 2012 Mr Nguyen received instructions from TMIX to act in relation to various 457 visa sponsorships. As a result of the difficulties he experienced during that year, Mr Nguyen gave the carriage of matters to Ms Q.

18. Mr Nguyen saw the file established by Ms Q in relation to instructions from TMIX. When he gave evidence he said that the file was presently held in his office storage room.[60]

    [60] Transcript, 15 February 2019 at 236.

19. A Director of TMIX, Mr Schlebusch, informed Mr Nguyen that the company’s Operations Manager, Mr Lowe, would represent the company in dealings in relation to any visa applications. From this point, Ms Q took instructions from Mr Lowe.

20. Mr Nguyen denied the allegations set out in paragraph 82 above. He believed all work done by Ms Q was authorised by Mr Lowe.

21. By letter of 26 September 2012 the Department requested further information from TMIX concerning its sponsorship of several 457 visa applications.

22. On 4 October 2012 the Department conducted an announced site visit to one of TMIX’s business premises. Mr Nguyen and Mr Schlebusch were present at the premises during the visit.

23. On 9 October 2012 Mr Nguyen met with Mr Schlebusch. During this meeting, for the first time, Mr Nguyen became aware that Mr Schlebusch was alleging that East West Lawyers had made visa sponsorship applications on behalf of TMIX without approval to do so. Mr Schlebusch informed Mr Nguyen that all future communication with TMIX was to be made directly to him.[61]

    [61] Transcript, 15 February 2019 at 259-260.

24. On return to his office the same day Mr Nguyen spoke to Ms Q who told him that all the applications had been approved by Mr Lowe, some by email and some by telephone. Mr Nguyen was unable to produce copies of the emails as data for the relevant period had been retained on an old server in his office and had been corrupted.[62]

    [62] Transcript, 15 February 2019 at 262.

25. When Mr Nguyen was giving evidence the following exchange took place between Mr Nguyen and myself:

    DEPUTY PRESIDENT: So, when you spoke to [Ms Q] immediately after this meeting on 9 October 2012, did she show you the files in relation to the applications that you were concerned about? Did she go and get the files and say, look, here’s my files?

    MR NGUYEN: She get me the file and she show me the copy of the correspondence and then, you know, with the email she sent to Ron. She showed me that copy but I couldn’t find the evidence – the email evidence, written evidence, from Mr Ron sent to her and that is the – the confirmation I would like to have so to back up my position.

    DEPUTY PRESIDENT: So, you didn’t get that file note?

    MR NGUYEN: I didn’t get that and [Ms Q] didn’t give me that, you know. She got instruction from…you know, he give me instruction to the phone and also by email but I couldn’t clearly get the – the written email confirmation, yes, he agreed to that.

    DEPUTY PRESIDENT: All the right. So, this is in October 2012?

    MR NGUYEN: Yes.

    DEPUTY PRESIDENT: Did you instruct [Ms Q] that in future she was to keep a proper paper file with all the information?

    MR NGUYEN: Yes, I did. Yes, I did.

    DEPUTY PRESIDENT: And did she do that?

    MR NGUYEN: Yes

    DEPUTY PRESIDENT: After 9 October 2012 she kept proper paper files?

    MR NGUYEN: Yes. Yes, sir.

    DEPUTY PRESIDENT: Right. Do you still have those files?

    MR NGUYEN: The file?

    DEPUTY PRESIDENT: The paper files, have you still got them?

    MR NGUYEN: Yes.[63]

    [63] Transcript, 15 February 2019 at 264-265.

26. On 15 October 2012 Mr Nguyen received a letter from Mr Schlebusch in the following terms (omitting formal parts):

    Thank you for meeting with us in our Head Office on Tuesday 9^th October 2012 to discuss TMIX Pty Ltd 457 Visa Applications and Approvals.

    As you are aware we have a letter from Immigration dated 26 September 2012; with regards to a request for records and information of employees listed within. At this stage it became evident to us that we have not approved all applications that were currently sitting on the 457 visa.

    We discussed what our concerns were and how we needed to move forward.

    Can you please advise me the status of where we are with regards to the status of all employees currently sitting on the TMIX Pty Ltd 457 VISA.

    Below is a list of employees that I have approved to be sponsored by TMIX Pty Ltd on the 457 VISA.

    … [A list of six names followed]

    All other employees as discussed, need to be withdrawn from the application and removed from the 457 VISA immediately. Any pending applications not listed above need to be withdrawn.

    You advised us at this meeting you would sort out the applications and withdrawals as our records do not match yours as supplied to immigration. An example of this is the Letters of Offers that currently sit in our staff files to the ones that you supplied to immigration, which concerned us greatly and only became evident at the meeting we arranged and requested the documents supplied to immigration by your firm.

    I am satisfied that you will be able to remove/withdraw applications that have not been approved by us. But I need an update with regards by COB Monday 15 October 2012.[64]

    [64] Exhibit R18, s 37 T-documents at 517.

27. On 22 October 2012 Mr Nguyen received a letter from Mr Schlebusch as follows (omitting formal parts):

    Thank you for supplying all the documents at the meeting held in Head Office on 9 October with Ron, Nichole & Myself present.

    As advised we were not aware that we had an obligation to employee [employees A, B, C and one other] on a 457 VISA as they do not meet this requirement and we were not advised the same.

    The above mentioned should have been sponsored on a 442 VISA as discussed at the meeting. These employees are training staff, as advised by you, and were being paid a training wage. At the meeting I absolutely had no knowledge and was not informed by you in relation to the same.

    No doubt you witnessed my reaction as I walked out of the meeting, and became very upset.

    Apart from the salaries we have invested substantial training hours and financial resources to these employees – [employees A, B and C]

    We are committed to providing appropriate and professional training to all our sponsored employees. We pride ourselves in complying with all regulations and as far as immigration issues concerned we rely on you as Immigration lawyers with experience and expertise in this area. We have always had a great relationship with the Immigration Department and as an approved sponsor; this cannot be jeopardised under any circumstance.

    We take our obligations seriously when it comes to sponsoring employees in this country.

    Our organisation is a national organisation and not only do we want to sponsor employees, but want to cooperate, assist and apply relating to immigration in Australia.

    Our other external professional providers always send through to us “Draft” copies for our approval before submitting them, obviously this is done for the purpose that any material or document submitted are correct.

    As professional immigration Law adviser’s documents have been submitted to the Department of Immigration & Citizenship without our approval and knowledge.

    We bring to your attention a submission of [one of employees A, B and C], dated 12 March 2012 sent by East West Lawyers to immigration; which is different from our documents delivered to the employee in store. If this document had been reviewed by us; in “Draft” prior to submitting, we would have advised you that it is in fact incorrect.

    We point out the following;

    1.     Nominated occupation is incorrect and it has been noted as Restaurant Manager. She is employed as a Training Kitchen Manager and is currently being trained. As you know we are exceptionally experienced in the food and beverage industry we would never consider let alone employ such a person as a qualified Restaurant Manager, this position requires expertise.

    2.    The application states the applicant has a 457 VISA this is incorrect it should have been submitted as a 442 Training VISA.

    Surely as experienced immigration lawyers you know that on a 457 VISA they need to display and have experience and add value to the business. This certainly is not the case with this applicant.

    The issue we have is [employees A, B and C] are on 457 VISA’s and should have been on 442 VISA’s. The obvious implication is the salaries and nominated occupations.

    We always clearly understood and were told that the rate of pay and hours for these training employees was clearly stated in an email from East West Lawyers.

    As you can see I have great concern that I must not only appear to comply with the Department of Immigration but must comply if there is any issues that you do not agree with the issues I have raised in this letter to you.

    We are dealing with human lives, that have come to this country employed by us and I am very concerned and conscious about the impact that any decisions have on them, but we need to comply with the Department of Immigration.

    We need to resolve the issues amicably, and give some consideration to the employees we confirm have been incorrectly sponsored on a 457 visa and put them on the correct 442 VISA’s with the correct entity as discussed. These are [employees A, B and C].

    To ensure there is no repetition of previous errors submitted to the Immigration Department, please submit any letters or applications to Nichole Schlebusch in “Draft” to review before you submit documents.[65]

    [65] Exhibit R18, s 37 T-documents at 514-515.

1. On 26 October 2012[66] Mr Nguyen sent a letter dated 25 October 2012 to the Department of Immigration & Citizenship. In part it read as follows:

   [66] Exhibit A13.

   We refer to the above matter and your letter dated 26 September 2012 and advise that we have been instructed to submit on behalf of TMIX Pty Ltd the following as requested:

   ……….

   2.     Details of Any Primary Sponsored Subclass 457 Visa holders ceasing employment

   [A table was included providing the names and respective dates of birth of three employees, A, B and C and in each case a date of cessation of 9 October 2012]

   In relation to the above the three employees, [employees A, B and C], have been employed by the Sponsor as Assistant Restaurant Managers on the Subclass 457 Visa. After a review of the Employees skills the Sponsor has found the employees required further training to uplift their skills. As a result, the Sponsor has terminated the employment of the three employees, with the view of sponsoring them at a later date on the Subclass 442 Occupational Trainee in the very near future.[67]

   [67] Exhibit R18, s 37 T-documents at 520-521.

2. Annexed to the letter from Mr Nguyen was a document purporting to be a Job Description for the positions of Assistant Restaurant Manager said to have been held by each of employees A, B and C. The document read:

   Job Description:

   Assistant Restaurant Manger

   ANZSCO 141111

   Task include:

   -    Taking Reservations, greeting guests and assist in taking orders

   -    Managing, developing and supervising restaurant wait staff

   -    Ensuring all staff adhere to the Restaurants standards, policies and procedures.

   -    Planning and organizing special functions and orders on request

   -    Staff Rostering

   -    Maintaining stock levels and ordering of products as required

   -    Conferring with customers to assess their satisfaction with meals and services.

   -    Ensuring the Restaurant dining facilities comply with health regulations and are clean, functional and of suitable appearance.

   -    Liaising with the Kitchen and managing floor staff to ensure service in a timely manner.[68]

   [68] Exhibit R18, s 37 T-documents at 525.

3. At the hearing, Mr Nguyen gave evidence that after receiving the letter dated 22 October 2012 from Mr Schlebusch and before he sent the letter of 25 October 2012 to the Department, he sought and obtained the approval of Mr Schlebusch on behalf of TMIX as to the content of the latter letter.

4. Mr Nguyen said that, when he received the letter of 22 October 2012, he understood that his instructions were that employees A, B and C had never been employed as restaurant managers.[69] In his view, when the draft letter to the Department was approved by the client the instructions changed and “we [were] obliged to – to follow it and respect instruction.”[70]

   [69] Transcript, 24 May 2019 at 297-298.

   [70] Transcript, 24 May 2019 at 304.

5. Further Mr Nguyen said: “clearly from my recollection 100 per cent I did send them the rough response [emphasis added] based on the content of the final content is sent on the 25^th to the Department. They approve and – and instruct me to send out to the Department… I need to send to them and confirm that in writing before doing anything, and that I got evidence, I got the email, but I couldn’t locate which copy of the email I sent to them, or the rough for them to approve the content of the letter before I got instruct to send to the Department.”[71]

   [71] Transcript, 24 May 2019 at 306.

6. At the commencement of the resumed hearing on 15 October 2019 Mr Nguyen produced for the first time copies of emails which he said were exchanged between his office and TMIX on 25 and 26 October 2012.[72]

   [72] Exhibits A11, A12 and A13.

7. The email copies indicate the following:

   ·at 4.55pm on Thursday 25 October 2012 Ms Q sent an email to Nichole Schlebusch (copied to Mr Schlebusch) as follows:

   Please see attached for your final approval.

   I need this to be sent to Immigration in the next few minutes, as such if you could urgently let me know if I can send this off[73];

   [73] Exhibit A11.

   ·the email copy records that there were four attachments; on the evidence before me I am unable to determine the content of these attachments;

   ·at 9.26am on Friday 26 October 2012 Ms Q sent an email to Nichole Schlebusch (copied to Mr Schlebusch) as follows:

   Please see attached final letter.

   Further to my email bellow [sic] can you urgently provide me with your final instructions on the matter as this needs to be forwarded to the migration department within the next half hour[74];

   ·unlike the email sent the previous day, the copy of the email of 26 October 2012 does not record that there were any attachments to the original;

   ·at 10.09 am on 26 October 2012 Mr Schlebusch sent an email to Ms Q (copied to Mr Nguyen) as follows

   This is good to go … [75];

   ·at 10.40am on 26 October 2012 Mr Nguyen sent an email to an officer of the Department (copied to Mr Schlebusch and Ms Schlebusch) forwarding a copy of the letter to the Department dated 25 October 2012 and referred to in paragraph 94 of these reasons.[76]

   [74] Exhibit A12.

   [75] Exhibit A12.

   [76] Exhibit A13.

   Discussion

8. For reasons stated earlier in relation to Mr Nguyen's evidence, I am not satisfied that he did obtain the approval of the content of the actual letter sent to the Department. In evidence he referred to having made a “rough response” of the information which was provided to the Department in the letter of 25 October 2012. I do not have sufficient evidence to enable me to determine the document, if any, approved by Mr Schlebusch on 26 October 2012.

9. Despite it being clear in the section 309 notice of 18 April 2017 that the emails of 25 and 26 October 2012 would be relevant documents, copies were not produced by Mr Nguyen until very late in the hearing before me. However, notwithstanding the unsatisfactory state of the evidence of Mr Nguyen, in the absence of sworn evidence from Mr Schlebusch, I am not able to determine on the balance of probabilities whether or not Mr Nguyen obtained the approval of his client before responding to the Department.

10. Even assuming that Mr Nguyen did obtain instructions to advise the Department precisely as he did, I am satisfied on the balance of probabilities that Mr Nguyen attempted to mislead the Department when he sent it the letter on 26 October 2012.

11. On 9 October 2012 Mr Nguyen was told by Mr Schlebusch that East West Lawyers had made applications for 457 visas without the authority of TMIX as the sponsoring party and that he (Mr Schlebusch) regarded this so seriously that all future communication regarding the matter must be with him. Following this Mr Nguyen received the letter of 15 October 2012 confirming what had been said at the meeting. This was followed by the letter of 22 October 2012 re-iterating Mr Schlebusch’s previous instructions and referring to how upset he was at the meeting.

12. In these circumstances I am satisfied that on 26 October 2012, when Mr Nguyen sent the letter dated 25 October 2012 to the Department, he knew that:

    ·the two employees referred to as being employed as Assistant Restaurant Managers by TMIX were not so employed;

    ·TMIX did not terminate their employment by reason of their requiring further training;

    ·the position descriptions provided did not reflect the actual terms of employment of the employees referred to.

13. When he gave evidence Mr Nguyen sought to justify his representations to the Department on the ground that his instructions had changed and he was “obliged to follow …… and respect” those instructions.[77]

    [77] Transcript, 24 May 2019 at 304.

14. I am satisfied also that in misleading the Department Mr Nguyen sought to avoid disclosing to the Department the conduct of his employee, Ms Q, and his failure to properly supervise her. In so doing he risked damaging the reputation of his client as a sponsor of employees on 457 visas, which he knew was very important to the client.

15. I am satisfied that, in making the representations to the Department in the letter of 25 October 2012, Mr Nguyen failed to take “all reasonable steps to maintain the reputation and integrity of the migration advice profession” in breach of the provisions of 2.23 of the Code.

16. Further I am satisfied that in relation to the instructions of TMIX, Mr Nguyen failed to properly supervise Ms Q in breach of clauses 8.1 and 8.2 of the Code.

    F.5: Complaint CMP – 17086 All Imports Australia Pty Ltd (All Imports Australia)

17. The following facts are not in dispute:

    ·on 12 July 2012 Ms Q, as the representative migration agent, lodged a business nomination application on behalf of a business sponsor, All Imports Australia Pty Ltd, in respect of a Mr H;[78]

    ·on 30 July 2012 Ms Q lodged a subclass 457 Temporary work visa application on behalf of Mr H;[79]

    ·both applications included a copy of a “Letter of Offer of Employment” dated 23 May 2012 on the letterhead of All Imports Australia Pty Ltd;[80]

    ·the “Letter of Offer of Employment” provided for the signature of “Eddie Tran On behalf of All Imports” but was not signed by him;[81]

    ·the document was signed by Mr H (recording his acceptance of the offer) on 30 May 2012;[82]

    ·on 14 July 2012 the Department approved the nomination application and on 18 September 2012 Mr H’s subclass 457 visa was granted.[83]

    [78] Exhibit A9 at14.

    [79] Exhibit A9 at 14.

    [80] Exhibit A9 at 15.

    [81] Exhibit R6, s 37 T-documents at 1098.

    [82] Exhibit R6, s 37 T-documents at 1098.

    [83] Exhibit A9 at 15.

    Section 309 notice allegations

18. The following extracts are from the section 309 notice prepared by the Authority:

    75. Following contact made to the Department on 14 March 2013 by Mr Eddie Tran, Director of All Imports and purported sponsor of [Mr H], it was alleged that:

    i. A nomination and subclass 457 visa application in relation to [Mr H] were lodged without his knowledge, consent, or authority;

    ii. The nomination and visa applications submitted to the Department contained false and misleading information;

    iii.A fraudulent document was submitted to the Department in the form of a ‘Letter of Offer of Employment’;

    iv. You [Mr Nguyen] had misled [Mr H] into thinking that he was sponsored by All Imports Australia;

    v. You accompanied [Mr H] to the premises of All Imports in an attempt to have him employed with the company subsequent to the visa grant; and

    vi. You submitted false and misleading information to the Department when you advised the Department that you were instructed by the sponsor to withdrawal [sic] the sponsorship of [Mr H] on account that he was not found suitable for the job.[84]

    [84] Exhibit A9 at 15-16.

    Statement by Mr Tran

19. In the notice dated 22 March 2016 under section 308 of the Migration Act the Authority advised Mr Nguyen as follows:

    On 14 March 2013, Mr Tran, advised the Department by email of the following:

    i)On 7 February [2013], you [Mr Nguyen] accompanied [Mr H] to Mr Tran’s office for the purpose of securing a job placement with the company, however [Mr H] was declined a position with the company;

    ii)On 11 February [2013], [Mr H], “on his own accord”; telephoned Mr Tran; however Mr Tran was unable to understand him due to his level of English. [Mr H] then sent a text message to Mr Tran indicating that he was “under the impression” that All Imports Australia sponsored him for the subclass 457 Visa;

    iii)Mr Tran was surprised as he had not authorised any sponsorship in association with [Mr H’s] subclass 457 visa;

    iv)Mr Tran contacted you to enquire as to how you were able to apply for a subclass 457 visa without his authorisation at which time he was advised that you had completed the application by “electronic means”; and

    v)Mr Tran expressed concern in relation to whether other applications may have been lodged to the Department without his authorisation.[85]

    [85] Exhibit A3 at 2.

    Evidence of Mr Nguyen

20. In his statutory declaration made 26 July 2018[86] Mr Nguyen said, in part:

    [86] Exhibit A6.

    I first came to know Mr Eddie Tran, the director of All Imports in February 2010.

    …

    I was then retained to provide some legal advisory services to Eddie and his companies. As the mutual trust, confidence and respect grew, we become very good friends. As Eddie is older than me, I considered him my “older brother”.

    During the period from 2010 to July 2012, with my legal advisory services coupled with Asian business experience, I helped Eddie to solve a few major difficult situations, supported him 100% when he needed it and helped achieve outstanding outcomes for him, his business and family members…

    As Eddie is an extremely busy person, all his instructions had been orally given to me, and I trusted him and accepted his instructions orally without any doubt.

    …

    One of the businesses operated by All Imports is a second-hand car showroom … In the early part of 2012, Eddie told me that his All Imports business was doing very well and that most of his customers were wealthy Chinese business migrants who speak Mandarin and Cantonese. I asked him if he had any Chinese speaking staff who could help him to make more money. He said he did not. At that time I had a friend who knew a person in China who had been a Sales & Marketing Manager for Toyota and had more than 10 years’ experience. This was [Mr H]. So I told Eddie about him and I got a resume from [Mr H] and showed it to Eddie, and he thought it was a good idea. In about the middle of 2012 during a business meeting I had with Eddie at his office ..., we talked about many things in the business of All Imports, the idea of getting a new staff member who was a professional and experienced Chinese speaking Sales Manager was floated again. During this meeting, Eddie said he could sponsor [Mr H] for his All Imports business here, but he wanted to know if the position could be terminated after the employee arrived in Australia if he turned out not to be suitable for the job. I told him that he would have a right to terminate the employment contract like anyone else if the employee was not up to the job. He looked at the resume and said, “Ok, do it, sponsor this guy to come and work for me”.

    On the basis of Eddie’s oral instructions I told my employee [Ms Q] that All Imports had agreed to sponsor [Mr H]. Since we been working for them since 2010 we had all of the business information, and I told [Ms Q] that if there was anything else she needed just to deal directly with Eddie.

    [Ms Q] did all the paperwork, and on 5 December 2012 I went to Vietnam for two months. When I got back at the end of January 2013 [Mr H] had arrived in Australia. On about the first Saturday in February 2013, I met Eddie … I greeted him and told him that “the guy you sponsored to work for All Imports has arrived and is ready to work”. Eddie said to me in Vietnamese words to the effect “Yes, that’s great. Take him to my car showroom next week to work”. I asked him when and what time. He told me that 7 February 2013 at about 10 am in the morning would be perfect for him. On 7 February 2013 I went to Eddie’s All Imports office … [Mr H] got there by taxi. We greeted each other. Eddie then interviewed [Mr H] about his selling experience, but he was not very happy with his English skills. The interview lasted about one and half hours and Eddie said he would contact him in a few days.

    Later that same day Eddie spoke to me and asked me who this man was. I said he was the man that he had agreed to sponsor. After that Eddie went home and I believe he spoke to his wife about it. A couple of days later he spoke to me again he said, “How come you say that I sponsored this guy when I have no knowledge of it?” I reminded him about the discussions we had had and the oral instructions he gave me in 2012, but he denied it.

    On 12 February 2013, Eddie rang me. He said to me “I can’t remember when I instructed you to employ this guy.” I said “You saw his resume. I advised that you would sell more cars to Chinese people if you employed someone who spoke Mandarin.” At the end of the conversation Eddie instructed me to withdraw the sponsorship “immediately”, because the guy was not good for the job.[87]

    [87] Exhibit A6 at [10]-[20].

21. When he gave evidence Mr Nguyen agreed that both All Imports Australia and Mr H were clients of his firm at the time of the events described. He was aware at the time that he was obliged to confirm his clients’ instructions in writing as required by clause 2.8 of the Code. He said that he was preoccupied with the event in Vietnam and with the problems in his marriage and that he did not do this. He expected Ms Q would attend to it.[88] She prepared and did everything in relation to the applications.[89]

    [88] Transcript, 15 February 2019 at 193.

    [89] Transcript, 15 February 2019 at 206.

22. When he gave evidence Mr Nguyen said that he believed he had a file, prepared by Ms Q, in relation to the applications. He looked at the file shortly after his conversation with Mr Tran on 7 February 2013.[90] He recalled that there was correspondence on the file and to the best of his recollection he saw an employment contract.[91] He did not show a copy of this document to Mr Tran after Mr Tran told him that he had no knowledge of Mr H. He said that he did not do this as he thought Mr Tran already had a copy of the contract.[92]

    [90] Transcript, 15 February 2019 at 210.

    [91] Transcript, 15 February 2019 at 210.

    [92] Transcript, 15 February 2019 at 213.

23. On 12 February 2013 Mr Nguyen wrote to the Department as follows, omitting formal parts:

    RE: ALL IMPORTS AUSTRALIA PTY LTD – NOTICE OF WITHDRAWAL OF SPONSORSHIP (Sponsorship ID: …………)

    We have been instructed by All Imports Australia Pty Ltd to withdraw the sponsorship of the following employee:

    [Personal details of Mr H omitted]

    After the arrival in Australia, the Applicant has not commenced work with the business, as he was found not suitable for the job nominated. As such, the sponsor now wishes to withdraw their sponsorship effectively from today.

    We thank you for your assistance and if you require any further information please contact Tranh Nguyen. [93]

    [93] Exhibit R22, s 37 T-documents at 425.

24. In his statutory declaration submitted to the Authority Mr Nguyen stated, in part:

    I deny that I submitted false or misleading information to the Department in respect of the withdrawal of the sponsorship and nomination. I acted on the instructions given to me by Eddie on the 12^th of February 2013.[94]

    [94] Exhibit A6 at [25].

    Discussion

25. I do not accept Mr Nguyen's evidence in regard to his instructions from Mr Tran. Mr Nguyen denied that when he looked at the file on 12 February 2013 he knew the document alleged to be the employment contract was false. However, when pressed, he failed to give a satisfactory explanation as to why he did not then refer Mr Tran to the contract which had been signed by Mr H. His explanation that he did not do so because he thought Mr Tran would have a copy and the manner in which he gave this evidence was unconvincing. He offered no reason why a client of Mr Tran’s standing would suddenly change his instructions.[95] Again, Mr Nguyen failed to properly record his instructions and failed to confirm his original instructions. He did not produce to the Tribunal the file held in relation to those instructions.

    [95] Transcript, 15 February 2019 at 216.

26. At the hearing Mr Nguyen gave the following evidence:

    COUNSEL FOR THE AUTHORITY: So this is a genuine contract are you saying, is that right?

    MR NGUYEN: That is the [Ms Q], you know, from my belief this is the – you know, when I look at the – in the contract I look at the file and what Eddie get instruction and all the things, that is the employment contract, that is a genuine document. Because of Eddie, he denies everything, you know, I can’t remember – he can’t remember when he give the instruction and I reminded him everything so that is what I – I say but – this is a document I – you know, I didn’t – well this document provide to the department and everything to get with all the supporting documents are basically, you know, I didn’t have look at how things, you know, with the case, you know, (indistinct) and I especially do things so when I look at the things, that is the document I believed, you know, he drew up and approved and approved by Eddie, …

    …

    COUNSEL FOR THE AUTHORITY: On 12 February 2013 at the time that you had this conversation in paragraph 20, did you believe, after you looked in the file, that this document – when you saw this document at page 1096 to 1099 was a genuine contract of employment between All Imports and [Mr H]?

    MR NGUYEN: Yes, at that time I believe.

    COUNSEL FOR THE AUTHORITY: Why didn’t you then mention it to Mr Tran when he denied he gave you instructions to prepare the sponsorship agreement – why?

    MR NGUYEN: Yes. The reason is that I went to – Mr Tran contact me and in that sort of – and after or before of everything he rang me and he asked the question. We have a short conversation, we didn’t, you know, and at the time I already request to have a meeting with him and he didn’t want to meet me and – but then (indistinct) he rang me and he say, you know, and from the evening of the 7^th, after that he – you know, I couldn’t (indistinct) and his wife taking overseas the message, you know, yeah it’s me and then I also repeat that that the same summary what I told Eddie.[96]

    [96] Transcript, 15 February 2019 at 215-216.

1. In the absence of evidence from Mr Tran I am not able to make a finding as to the content of the initial instructions (if any) given by Mr Tran to Mr Nguyen in respect of the employment of Mr H. However I am satisfied that no later than 12 February 2013 Mr Nguyen was aware that his firm did not have, and never had, instructions from Mr Tran that All Imports Australia was prepared to enter a contract of employment with Mr H in the terms submitted to the Department.

2. I am also satisfied Mr Nguyen misled the Department by withholding information as to the circumstances in which All Imports Australia’s sponsorship of Mr H was withdrawn. I am satisfied that he did this to keep from the Department that his client’s instructions were that it had not entered a contract of employment with, nor had it agreed to sponsor, Mr H. I am also satisfied that he misled the Department as to the involvement of Ms Q in the making of the applications to it and his failure to supervise her.

3. On the same basis I am satisfied that Mr Nguyen misled the Authority when he provided his statutory declaration of 26 July 2016 to it, and particularly paragraph 25 thereof.

4. I find that Mr Nguyen's conduct was in breach of the following provisions of the Code:

   ·Clause 2.8 – failing to act in accordance with the client’s instructions;

   ·Clause 2.9A – misleading the Authority;

   ·Clause 2.23 – failing to take reasonable steps to maintain the reputation and integrity of the migration advice profession;

   ·Clause 6.1 – failing to maintain proper records;

   ·Clause 8.1 – failing to exercise effective control of his office;

   ·Clause 8.2 – failing to properly supervise the work carried out by staff.

   G.  CONSIDERATION OF THE ISSUES

   Issue 1:  Am I satisfied that Mr Nguyen has not complied with the Code of Conduct?

5. On the basis of the findings set out in section F of these reasons I am satisfied, for the reasons stated, that Mr Nguyen has not complied with the Code of Conduct.

   Issue 2:  Am I satisfied that Mr Nguyen is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance?

6. In Australian Broadcasting Tribunal v Bond,[97] Toohey and Gaudron JJ said:

   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 divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be 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 it 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 ground a finding that a person is not fit and proper to undertake the activities in question.

   …

   The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

   [97] (1990) 170 CLR 321 at 380 and 388.

7. In Taylor v Law Society of New South Wales,[98] the Supreme Court of New South Wales considered the above extracts from Bond, reasoning that:

   … the question whether the plaintiff is currently a fit and proper person falls to be decided referable to what the evidence reveals about a range of matters, including whether improper conduct has occurred (as to which there is no dispute in these proceedings); what motivated that course of conduct; whether there is likely to be a repetition of the misconduct or whether it can be assumed that it will not recur such that the community can have confidence that it will not be repeated in the course of the plaintiff discharging her duties and obligations as a legal practitioner.

   [98] [2017] NSWSC 948 at [33].

8. In considering the conduct of registered migration agents, the Tribunal has taken into account the honesty of the agent[99] and the agent’s knowledge of the migration scheme.[100]

   [99] Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12.

   [100] Mottaghi and Migration Agents Registration Authority (2007) 98 ALD 424.

9. Mr Nguyen repeatedly claimed that Ms Q was responsible for the improper conduct of matters on behalf of clients of his firm.  He did acknowledge that on several occasions he failed to meet his obligation to properly supervise her and that he failed to keep proper records as required by the Code.

10. Apart from the unsupervised conduct of Ms Q, Mr Nguyen’s conduct fell far short of what was required of a registered migration agent.  On three separate occasions[101] Mr Nguyen attempted to mislead the Department as to the circumstances under which sponsorships of visa applicants were withdrawn.  For the reasons already stated, I am satisfied that he did so in an attempt to protect his own position by disguising his failure to supervise his employee, Ms Q.  In so doing he did not properly represent the interests of his clients.

    [101] Correspondence in respect of the Healthpac, TMIX and All Imports Australia matters.

11. As a Solicitor of the Supreme Court of New South Wales, Mr Nguyen should have been acutely aware of his obligation to act with integrity in all actions on behalf of his clients.

12. When confronted with allegations that he had acted improperly, Mr Nguyen was not honest in his response to the Authority, nor was he honest in his evidence to this Tribunal.

13. As a registered migration agent, Mr Nguyen had an important role to play in the administration of the Act, an Act “relating to the entry into, and presence in, Australia of aliens …”.[102] On registration, Mr Nguyen obtained the benefit of being entitled to give prescribed “immigration assistance” to clients. He was able to hold himself out as being a person with expertise in the area.

    [102] Long title of the Migration Act1958 (Cth).

14. In acting in the manner in which he did, Mr Nguyen failed to fulfil his obligations to his clients and to the Department; in so acting he failed to meet his obligation “to maintain the reputation and integrity of the migration advice profession”.[103]

    [103] Clause 2.23 of the Code.

15. I have considered the evidence as to the character of Mr Nguyen given by Ms Chau at the hearing and the statement of Mr Paior.

16. Ms Chau is a Buddhist Nun.  She has known Mr Nguyen for twelve years, having met him at the Buddhist Temple he attended during that time.  He has acted as Ms Chau’s Solicitor and for people she has referred to him.

17. Ms Chau was unaware of the details of the matters which caused his registration to be cancelled.  The limited information she had was gained from media reports.

18. Ms Chau does not believe that Mr Nguyen has acted improperly as she trusts him, he is a good man and he provides good service to the Vietnamese community.[104]  She believes him to be “an honest and good person”.[105]

    [104] Transcript, 14 February 2019 at 93. 

    [105] Transcript, 14 February 2019 at 94.

19. Mr Paior provided a character reference dated 14 October 2019 for Mr Nguyen.[106]  He did not give evidence at the hearing.

    [106] Exhibit A14.

20. Mr Paior is a Legal Practitioner.  Since early 2018 he has had extensive business dealings with Mr Nguyen.  During that time Mr Nguyen has acted as a consultant to Mr Paior’s business.  Prior to his engagement Mr Nguyen disclosed to Mr Paior the circumstances of the cancellation of Mr Nguyen’s registration as a migration agent.

21. Mr Paior stated, in part:

    As a result of my commercial and business experience, I believe I am a good judge of character.  Mr Nguyen has, during the time I have known him. Has been completely ethical and honest in all his business dealings with us and our clients.  I have never had any reason to question his integrity and I have seen him perform many genuine acts of kindness often to his personal disadvantage.

22. This evidence is of very limited value in this application as neither Ms Chau nor Mr Paior were shown to have a detailed knowledge of the circumstances of Mr Nguyen’s conduct in relation to the matters under consideration.  Their evidence does not cause me to change the conclusions I have reached.

23. For the reasons set out above, I am satisfied that Mr Nguyen is not a person of integrity.  I am satisfied also that he is not a fit and proper person to give immigration assistance.

    Issue 3: What is the appropriate sanction (if any) to be imposed under section 303 of the Act?

24. As set out in section 303, the sanctions available are:

    ·cancellation of registration;

    ·suspension of registration; or

    ·a caution.

25. It is well accepted that the purpose of a regulatory process such as that under consideration is to protect members of the public and not to punish the agent involved.

26. In view of the findings I have made, it is clear that some form of sanction is appropriate. The reviewable decision made on 14 December 2017 was to cancel Mr Nguyen’s registration.

27. Section 292 of the Act relevantly provides:

    An applicant whose registration has been cancelled under section 303 … must not be registered within 5 years of the cancellation.

28. An applicant in these circumstances would be required to meet all of the eligibility criteria for an initial registration.

29. A suspension of registration under section 303 may be for any period not exceeding five years.[107]

    [107] Section 304 of the Act.

30. I approach the issue of the appropriate sanction on the basis that Mr Nguyen:

    ·failed to properly supervise his employee on several occasions;

    ·failed to maintain proper records of his activities as a migration agent;

    ·failed to act in accordance with the instructions of his client on more than one occasion;

    ·attempted to mislead the Department, the Authority and this Tribunal on three separate occasions.

31. In order to protect the public from the consequences of Mr Nguyen’s actions, it is necessary to act to maintain the confidence of the public that the grant of registration as a migration agent will, as far as possible, ensure clients’ interests are protected and information provided to the Department and the Authority is truthful in all respects.

32. I have considered whether a period of suspension of less than five years would be appropriate. In deciding to reject this option, I have taken into account that, even at the time of the hearing, Mr Nguyen did not appreciate the seriousness of the allegations or his responsibility for what happened beyond his admitted failure to supervise Ms Q.

33. Considering the matters referred to above, and Mr Nguyen’s adherence to the evidence which I have determined not to accept, I am satisfied that the protection of the public requires that Mr Nguyen not be eligible to be registered as a migration agent for the foreseeable future and certainly not before the expiration of at least five years from 14 December 2017.

    H. CONCLUSION

34. The reviewable decision made on 14 December 2017, being the decision of the Migration Agents Registration Authority to cancel the registration of Mr Nguyen as a migration agent under section 303 of the Migration Act 1958 (Cth), will be affirmed.

I certify that the preceding 153 (one hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

..............................[SGD]..........................................

Associate

Dated: 1 May 2020

Date(s) of hearing:	13-15 February 2019, 24 May 2019, 3 June 2019, 15 October 2019
Solicitors for the Applicant:	M Jones, Parish Patience Immigration Lawyers
Counsel for the Respondent:	M Cleary
Solicitors for the Respondent:	A Keevers, Sparke Helmore