Paddock and Migration Agents Registration Authority (Migration)

Paddock and Migration Agents Registration Authority (Migration) [2019] AATA 3941 (27 September 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7479
Re:Tammy Paddock
APPLICANT

AndMigration Agents Registration Authority
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:27 September 2019
Place:Sydney

The decision under review is affirmed.
..........................[sgd]..............................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION AGENTS – registration – barring of registration – whether applicant complied with Code of Conduct – immigration assistance – lodgment of application without consent of client – failure to act diligently – charging excessive fees – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Kraues v Office of the Migration Agents Registration Authority and Another [2018] 158 ALD 493
Narayanan and Migration Agents' Registration Authority [2006] AATA 353
Re Christopher Gerald Narayanan and Migration Agents’ Registration Authority [2006] AATA 353
Rozsy and Migration Agents Registration Authority [2008] AATA 434
Shi v Migration Agents Registration Authority [2008] HCA 31
SECONDARY MATERIALS
Code of Conduct for Registered Migration Agents
REASONS FOR DECISION
Chris Puplick AM, Senior Member
27 September 2019
The Migration Agents registration scheme

The Migration Act 1958 (Cth) (the Act) provides a scheme whereby suitably qualified persons may be registered as migration agents.[1]
[1] Migration Act 1958 (Cth) Part 3.
The Act also establishes a regulatory body, the Migration Agents Registration Authority (MARA) which is charged with the administration of the scheme.[2] MARA is the Respondent in these proceedings.
[2] ss 275 and 315.
Once an individual is registered as a migration agent they are required to conform to all requirements of the Act and the Migration Regulations 1994 (Cth). In addition, they are bound to conform to the Code of Conduct for Registered Migration Agents (the Code).[3]
[3] s 314. The current Code came into effect on 18 April 2017.
The Act further provides for a system whereby complaints may be lodged against a migration agent for failure to operate according to the requirements of the legislation, the regulations or the Code. Those complaints may be investigated by MARA and if substantiated may result in penalties or sanctions being imposed on the agent.[4]
[4] ss 303, 311, 311A, 316.
Decisions of MARA can be reviewed by the Administrative Appeals Tribunal.[5]
[5] s 311F.
However such reviews when considering questions of a registration application or a possible disciplinary action are limited and confined.
In Narayanan the Tribunal made this explicit in the following terms:
[14] The power given to the respondent arises only if a complaint is made about a former registered migration agent, the complaint is in relation to the provision of migration assistance, the complaint is investigated and the respondent is satisfied that the subject matter of the complaint is made out.
[15] It is therefore clear that s 311A is limited to satisfaction with respect to the subject matter of a complaint. It does not extend to conduct outside that scope, even if it relates to the former registered migration agents dealings with the respondent with respect to the investigation of the complaint.[6]
[6] Re Christopher Gerald Narayanan and Migration Agents’ Registration Authority [2006] AATA 353.
THE ORIGINS AND MANAGEMENT OF THIS APPLICATION
Ms Tammy Paddock (the Applicant) was formally registered as a migration agent in November 2008. Her registration expired on 19 November 2017 subsequent to which she applied for re-registration on 21 November 2017.
On 20 June 2017 and on 15 December 2017, Mr Bui, a former client of the Applicant made two separate complaints against the Applicant which will be particularised below.
On 13 November 2017 MARA issued a notice to the Applicant, pursuant to s 308 of the Act requiring her to provide certain details and responses to MARA is respect of the compliant made against her. This notice, inter alia, required the Applicant to provide the relevant “complete client file” to the Authority by 27 November 2017The Applicant failed to comply with the due date and but after being granted an extension of time, managed to file a response but failed to provide the complainant’s file.
On 12 September 2018, following the second complaint by Mr Bui, MARA again issued a notice to the Applicant, on this occasion under ss 311EA and 331D of the Act requiring her to provide further client files to the Authority and to make any submissions she wished to in relation to the complaints made by Mr Bui. Again she failed to do so.
On 28 November 2018 MARA made a formal decision, under the Act, to cancel the Applicant’s registration as a migration agent for a period of 5 years commencing on that date. As from that date the Applicant ceased to be a migration agent and acquired the status of a “former registered migration agent” for the purposes of the Act.
On 19 December 2018 the Applicant lodged an application for a review of that decision with this Tribunal which listed the matter for hearing on 28 August 2019. However at that time the Applicant was unable to proceed due to illness and there were some issues raised by her legal representatives regarding their late receipt of formal instructions. The Tribunal vacated that hearing date and the matter was eventually heard by it on 24 September 2019. No additional material was presented to the Tribunal during this adjournment period by the Applicant.
The Tribunal notes that some of the material included in the section 37[7] Tribunal Documents were in the Vietnamese language and no translation was provided. However as neither party drew attention to any of this material, the Tribunal does not believe that this in any way compromised its understanding of the issues.
[7] Administrative Appeals Tribunal Act 1975 (Cth).
RELEVANT LEGISLATION
The relevant sections of the Act are as follows:
303 Disciplining registered migration agents
(1) The Migration Agents Registration Authority may:
(a) cancel the registration of a registered migration agent by removing his or her name from the register; or
(b) suspend his or her registration; or
(c) caution him or her;
if it becomes satisfied that:
(d) the agent's application for registration was known by the agent to be false or misleading in a material particular; or
(e) the agent becomes bankrupt; or
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g) an individual related by employment to the agent is not a person of integrity; or
(h) the agent has not complied with the Code of Conduct prescribed under section 314.
308 Requiring registered migration agents to give information
(1) The Migration Agents Registration Authority may require a registered migration agent:
(a) to make a statutory declaration in answer to questions in writing by the Authority; or
(b) to appear before an individual or individuals specified by the Authority and to answer questions; or
(c) to provide the Authority with specified documents or records relevant to the agent's continued registration.
(2) If a registered migration agent appears before one individual to answer questions, that individual must record the questions and answers and give the record to the Authority.
(2A) If a registered migration agent appears before 2 or more individuals to answer questions, one of them must record the questions and answers and give the record to the Authority.
(3) A registered migration agent is not excused from giving information or providing a document on the ground that the information or provision of the document may tend to incriminate the person.
(4) However:
(a) any information or document provided in response to a requirement under subsection (1); and
(b) any information or thing (including any document) obtained as a direct or indirect result of information or a document provided in response to a requirement under subsection (1);
is not admissible in evidence against the registered migration agent in any criminal proceedings (except proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).
311A Barring former registered migration agents from being registered for up to 5 years
(1) The Migration Agents Registration Authority may decide to bar a former registered migration agent from being a registered migration agent for a period if, after investigating a complaint about him or her in relation to his or her provision of immigration assistance while he or she was a registered migration agent, it is satisfied that the subject matter of the complaint is made out.
Note: Before making such a decision, the Authority must invite the former registered migration agent to make a submission: see section 311D.
(2) The period must not be more than 5 years starting on the day of the Authority's decision.
311D Former registered migration agent may make a submission etc.
Invitation to make submission
(1) Before making a decision under subsection 311A(1), the Migration Agents Registration Authority must give the former registered migration agent a written notice:
(a) stating that the Authority proposes to make such a decision and the reasons for it; and
(b) inviting him or her to make a written submission to the Authority on the matter within 28 days after the notice is given.
Authority to consider any submission
(2) The Authority must consider any written submission received within that period.
No submission received
(3) If the Authority does not receive a written submission, it may decide the matter on the information before it.
Submission received
(4) If the Authority receives a written submission, it may:
(a) decide the matter; or
(b) give the former registered migration agent the opportunity to appear before it and then decide the matter.
311EA Requiring former registered migration agents to give information or documents
(1) This section applies if the Migration Agents Registration Authority is considering making a decision under section 311A to bar a former registered migration agent from being a registered migration agent for a period.
(2) The Authority may, by written notice given to the former agent, require him or her to provide the Authority with prescribed information or prescribed documents within the specified period and in the specified manner.
(3) A period specified in a notice under this section must end at least 14 days after the notice was given.
Offence
(4) A person commits an offence if:
(a) the person is subject to a requirement under this section; and
(b) the person contravenes the requirement.
Penalty: 60 penalty units.
(5) An offence against subsection (4) is an offence of strict liability.
Self-incrimination
(6) A person is not excused from giving information or providing a document incriminate the person.
(7) However:
(a) any information or document provided in response to a requirement under subsection (2); and
(b) any information or thing (including any document) obtained as a direct or indirect result of information or a document provided in response to a requirement under subsection (2);
is not admissible in evidence against the person in any criminal proceedings (except proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Act or the regulations).
314 Code of Conduct for migration agents
(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.
316 Functions of Migration Agents Registration Authority
(1) The functions of the Migration Agents Registration Authority are:
(a) to deal with registration applications in accordance with this Part; and
(b) to monitor the conduct of registered migration agents in their provision of immigration assistance and of lawyers in their provision of immigration legal assistance; and
(c) to investigate complaints in relation to the provision of immigration assistance by registered migration agents; and
(d) to take appropriate disciplinary action against registered migration agents or former registered migration agents; and
(e) to investigate complaints about lawyers in relation to their provision of immigration legal assistance, for the purpose of referring appropriate cases to professional associations for possible disciplinary action; and
(f) to inform the appropriate prosecuting authorities about apparent offences against this Part or Part 4; and
(g) to monitor the adequacy of any Code of Conduct; and
(h) such other functions as are conferred on the Authority by this Part.
(1A) In performing its function under paragraph (1)(c), the Authority may start, or complete, an investigation of a complaint about a person at a time when he or she is no longer a registered migration agent.
(1B) However, the Authority can investigate a complaint about a former registered migration agent only if the complaint is received within 12 months after he or she ceased to be a registered migration agent.
(2) So long as the Institute is appointed under section 315, the Migration Agents Registration Authority also has the function of advising the Minister on the adequacy of any Code of Conduct.
THE TWO COMPLAINTS FROM MR BUI
The Respondent has set out the details of the complaints received from Mr Bui in the following terms:[8]
[8] Respondent’s Statement of Facts, Issues and Contentions; section 37 Supplementary Tribunal Documents at [1].
6. On 20 June 2017, the Authority received a complaint about the applicant’s conduct from a former client of hers, Mr Long Bui (MARA complaint CMP-31600)
7. In his complaint, the Complainant made the following allegations:
7.1 He had engaged the applicant to lodge a number of Temporary Work (subclass 457 – Temporary Work Visa) visa applications.
7.2 The applicant charged him $120,000 for the assistance provided in relation to the lodging of the visa applications.
7.3 The applicant was difficult to contact and changed her phone/email regularly, often without informing the Complainant.
7.4 The applicant’s partner, Mr Vinh, provided migration advice without being a registered migration agent.
11. On 15 December 2017, the Complainant made additional allegations in relation to the Applicant’s submissions on behalf of a Ms Nguyen, as follows:[9]
11.1 On 3 January 2017, the applicant had lodged a visa nomination in the name of the Complainant’s company (LVNB Pty Ltd) in respect of a Ms Thi Xua Thu Nguyen without the Complainant’s knowledge.
11.2 the Complainant did not authorise the applicant to lodge this nomination and did not know the nominee.
11.3 the Complainant did not sign the paperwork related to the nomination.
[9] Section 37 Supplementary Tribunal Documents at [519].
THE MARA INVESTIGATION: NARRATIVE
When a formal complaint is made against a registered migration agent, MARA has the responsibility to investigate that complaint and does so in accordance with procedures which are laid out in sections 308 to 311 of the Act. The course of the MARA investigation was as follows:[10]
[10] The narrative is set out in Section 37 Tribunal Documents at [39]-[42].
·13 November 2017 MARA wrote to the Applicant giving notice that, under s 308 of the Act it required her to produce certain documents and to respond to allegations made by Mr Bui in his first complaint (20 June 2017). At the same time the Applicant was advised that her alleged conduct raised questions as to her compliance with several sections of the Code.[11] The notification indicated that a response was required by 27 November 2017.
[11] Specifically sections 2.1(b) – diligent dealing with clients ; 2.8(a) – confirming instructions in writing; 3.4 – having accessible contact arrangements; 5.1 – charging “reasonable” fees; 5.3 – unnecessarily increasing costs to clients and Part 8 – failing to meet duties to employees.
·28 November 2017 the Applicant requested an extension of time to respond and this was granted by MARA until 12 December 2017.
·14 December 2017 a response was received from the Applicant, details of which appear below.
·1 February 2018 the Applicant provided further information in relation to the first compliant.
·12 September 2018 MARA issued a notice to the Applicant under s 311EA of the Act requiring her to provide information in relation to matters raised in Mr Bui’s second complaint (15 December 2017). This response was required by 26 September 2018.
·As of 28 November 2018 the Applicant had not responded to the s 311EA notice.
·On 12 September 2018 MARA sent the Applicant an additional notice, on this occasion under s 311D of the Act in which it advised her that, as a result of its investigation of and findings in relation to Mr Bui’s complaints that it was considering whether or not to bar her from being a registered migration agent. This notice gave the Applicant until 10 October 2018 to respond.
·27 September 2018 the Applicant requested an extension of time to respond to the s 311D notice and she was granted that extension until 15 October 2018.
·15 October 2018 the Applicant requested a further extension of time on the basis of her health-related problems.
·16 October 2018 MARA advised the Applicant that in order to assess her further request for an extension of time she needed to provide supportive medical evidence to confirm her claims of medical-related inability to comply and that such evidence was required by close of business that day. She was advised that, in the absence of such corroborative evidence MARA would proceed with its investigations on the basis of material then to hand.
·13 November 2018 the Applicant requested a further extension of time on the basis that she was preparing for a heart operation and would need further recuperation time after that. On this occasion she provided no medical evidence in support of this application. She was then advised by MARA could not act on any request for further extension of time in the absence of corroborating medical evidence of her claims.
·As at 28 November 2018 no response had been received by MARA from the Applicant in relation to the s 311D notice.
·28 November 2018: acting upon the material then in its possession MARA made a determination under s 311A of the Act to bar the Applicant for being registered as a migration agent and she was advised of this and of her right to seek a review of that decision by the Tribunal.[12]
[12] Section 37 Tribunal Documents at [34]-[36].
APPLICANT’S RESPONSES
Although inadequate and only partial, the Applicant made a number of responses to the complaints outlined by Mr Bui and to the section 308 notice which she had been served. In essence, her response, in writing and at the Tribunal hearing, was in the following terms:[13]
·A great deal of the work which she undertook for Mr Bui was based on verbal understandings and agreements between them and verbal instructions from him to take action his behalf. Such arrangements are common practice within and between members of the Vietnamese community and it is commonplace that no formal or written records of such agreements are created;
·She agreed that the Complainant had been charged $120,000 for work on 7 files over 4 years however she stated that she had only received payment to the extent of $80,000 and that after being threatened by Mr Bui she had refunded $50,000[14] leaving a balance of charges of $30,000;
·Mr Bui and his wife had been given the Applicant’s contact details, and that while there may have been some occasional difficulties contacting her she was generally available to speak to him until such time as he became threatening at which stage she limited her communications with him;
·Mr Vinh did not provide any migration advice rather, he was a friend of the Applicant who occasionally drove her to Canberra for meetings with Mr Bui and when required, assisted as her interpreter;
·Included in her charges to Mr Bui were cost incurred which resulted from her having to travel to Vietnam to interview potential sponsorship candidates nominated by Mr Bui and to make several visits to consult in person with Mr Bui in Canberra (she being resident in Sydney);
·Her inability to produce files or documents was as a result of a computer malfunction which resulted in the loss of all her data.[15]
[13] Applicant, Statement of 18 August 2019 and section 37 Tribunal Documents at [38]-[39].
[14] The Respondent in their Statement of Facts, Issues and Contentions gives two different figures for the refund, namely $45,000 (at [9]) and $50,000 (at [30]). The evidence of the Applicant, Statements of 18 August 2019 asserts the correct figure to be $50,000.
[15] Applicant, Statement of 18 August 2019 and email to Tribunal Registry dated 16 July 2019.

The Applicant also provided to the Tribunal a significant number of medical records which attest to the fact that she has suffered cardiac problems (atrial fibrillation and left ventricular impairment)[16]; respiratory problems (shortness of breath)[17] and sleep disorders (severe sleep apnoea)[18]. There is no medical evidence before the Tribunal related to potential or actual heart surgery.
[16] Section 37 Tribunal Documents at [14-15] Dr Peter Tjeuw.
[17] Ibid at [18]-[19] Liverpool health Service Discharge summary.
[18] Applicant’s Submission dated 4 March 2019 Attachment B, Dr Geoffrey Williams.
However, it was pointed out, rightly, by the Respondent that all of this medical evidence post-dates the time when the Applicant was actively engaged in providing migration agent services for Mr Bui. The Applicant herself told the Tribunal that until that time she had been in good health. The principal diagnostic records date from July 2018 and November 2018.[19]
[19] Section 37 Tribunal Documents at [18} and [14] respectively.
It should also be noted that prior to the complaints of Mr Bui no adverse reports had been made to MARA in relation to the Applicant’s undertakings as a registered migration agent.
THE BASIS OF THE MARA DECISION
MARA’s investigation of the complaints against the Applicant focussed on three principal issues: failure to act diligently in dealings with Mr Bui; the charging of “excessive” fees and the lodging of an application without the knowledge or consent of the client involved.
(a)Acting diligently: The Applicant was initially engaged to provide advice and assistance in relation to the securing of a 457 visa for Mr Quach Quoc Bao who was being sponsored by Mr Bui. At some stage Mr Bui asked the Applicant to withdraw this nomination and the Applicant formally acknowledged these instructions on 26 April 2017.[20] However she failed to act upon them and as at 23 October 2017 they were still in process.[21] MARA found that this constituted a failure to act in accordance with Mr Bui’s instructions.
[20] Section 37 Supplementary Tribunal Documents at [230].
[21] Ibid at [568].
In a further matter, Ms Phoung Thao Le was sponsored for a 457 visa by Mr Bui’s company (LVNB Pty Ltd) but this application was formally refused by the (then) Department of Immigration and Border Protection on 23 February 2017 and the Applicant was notified accordingly.[22] Nevertheless she continued to take instructions in relation to this application as late as April 2017[23] and appears not to have advised Mr Bui of the earlier refusal decision.
(b)Charging excessive fees: As mentioned above, the Applicant concedes that she charged Mr Bui a total of $120,000 for work undertaken in association with three nominations for 457 visas, involving 7 files dealt with over a 4 year period. In further evidence the Applicant put to the Tribunal that Mr Bui only paid $80,000 from which she subsequently remitted $50,000. Regardless of the final payment ($30,000) the question considered by MARA was the raising of the initial charge of $120,000 which the Applicant says was part of a “written agreement” with Mr Bui.[24]
Part 5.1 of the Code provides:
“There is no statutory scale of fees. However a registered migration agent must set and charge a fee that is reasonable in the circumstances of the case.”
The Tribunal acknowledges that MARA has considerable experience (which the Tribunal does not) in assessing whether fees charges by registered migration agents are reasonable or excessive in terms of the circumstances of each case. The Professional Standards Officer who investigated this matter at MARA noted that the Applicant’s charges were in the order of $40,000 per nominee compared with an average range of $2,000 to $ 5,000 in the period of 2016/7.[25]
The Tribunal notes MARA’s assessment that the fees in this instance were excessive and that the complaint made by Mr Bui about them was established.
(c)Improper lodgement of application: on 3 January 2017 the Applicant lodged a 457 visa application on behalf of Ms Thi Xuan Thu Nguyen listing LVNB Pty Ltd as the business sponsor.[26] LVBN is a company of which Mr Bui is a Director and the documentation accompanying the application included a letter on company letterhead with the signature of Mr Bui who is shown as an “authorised signatory” in his capacity as a “company director”.[27]
In his complaint of 15 December 2017 Mr Bui stated that (1) he had not authorised the Applicant to lodge such an application, (2) he did not know Ms Nguyen and (3) the purported signature on the letter accompanying the application was not his.[28]
When details of this series of events was put to the Applicant by MARA in their section 311D notice of 12 September 2018 she failed to respond to the accusations made.
It subsequently transpired that on 26 October 2017 a different migration agent (Robert Jun-Keong Liu, listed as a “Visa Specialist Lawyer”) submitted to the (then) Department of Immigration and Border Protection a “withdrawal of visa application form” (Form 1446) which gave as the original application number (EGODCDF8NM) exactly the same departmental reference number as that related to the original application on behalf of Thi Xuan Thu Nguyen but purported to be on behalf of a certain Ms Phuong Thao Le.[29]
[22] Ibid at [676].
[23] Ibid at [230].
[24] Section 37 Tribunal Documents at [58]; Supplementary Tribunal Documents at [361].
[25] Ibid at [48] paragraph 51.
[26] Ibid at [472].
[27] Section 37 Supplementary Tribunal Documents at [460].
[28] Ibid at [519].
[29] Ibid at [512]-[513].
The Professional Standards Officer examined all of these transactions in forensic and comprehensive detail.[30] She came to the conclusion that:
“The evidence supports the complainant’s assertion that the Former Agent (the Applicant) was not honest in her dealings with him and had misled him with respect to the applications submitted, most notably that an application was lodged without authority, given the Former Agent’s concerted efforts to conceal it from the complainant. There is no evidence before the Authority that the sponsor, and purported employer, had any knowledge of the nomination application associated with Ms Nguyen. The evidence available to the Authority appears to indicate that Mr Bui neither knew nor agreed to sponsor Ms Nguyen.”[31]
[30] Section 37 Supplementary Tribunal Documents at [45]-[47] paragraphs 37 to 48.
[31] Ibid at [47] paragraph 45.
In addition to breaches of sections 2.1 (diligently dealing with clients) and 2.8(b) (acting in accordance with the client’s instructions), the Officer found that sections 2.9 and 2.23 of the Code had been breached.
(2.9) “A registered migration agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statement, which he or she knows or believes to be misleading or inaccurate”
(2.23) “A registered migration agent must take all reasonable steps to maintain the reputation and integrity of the migrant advice profession”
The Officer found that Mr Bui’s complaint of 15 December 2017 had been established. The Tribunal completely endorses that finding.
The Professional Standards Officer also considered Mr Bui’s complaint about the Applicant not being accessible or contactable and that she did not respond to him in a timely fashion when he was seeking advice and that migration advice was provided by Mr Vinh. In the absence of any evidence on this matter the Officer concluded that this aspect of Mr Bui’s complaint was not established.[32]
EVIDENCE BEFORE THE TRIBUNAL
[32] Section 37 Tribunal Documents at [48] paragraph 56.
The range and status of the evidence
The High Court, in a decision specifically relating to the operations of MARA made it clear that this Tribunal is required to determine matters on the basis of the evidence before it at the time of its decision-making, including any evidence which was not previously available to the original decision-maker. It stated:
[37] …. But ultimately it was for the Tribunal to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. …
Further
[50] This reasoning is further strengthened by an appreciation that the fundamental object of the exercise of the Authority's power to cancel or suspend the registration of an agent under the Migration Act is the protection of the section of the public that deals with migration agents. It is not, as such, the punishment of agents. This object is best achieved by the Tribunal making its decision upon the most up to date material available to it at the time of its own decision. It would be impeded if the Tribunal were confined to the facts and circumstances subsisting at the time of the Authority's original decision weeks, months or even years in the past.[33]
[33] Shi v Migration Agents Registration Authority [2008] HCA 31 per Kirby J.
Ms Paddock’s evidence
In addition to the written submissions from the Applicant, referred to above, she gave extensive oral evidence at the Tribunal hearing. The principal elements of that were:
·The Applicant stated that on all occasions she acted only on the instruction of her client, Mr Bui. This included acting to secure a visa for Ms Nguyen pursuant to a verbal agreement with Mr Bui that his company would act as her sponsor;
·All monies paid by Mr Bui resulted from him agreeing to her “Fixed Fee Agreement” which specified a rate of $40,000 (plus GST) to deal with each application and that additional expenses, such as a trip to Vietnam or travelling to Canberra were authorised by him. In addition, costs associated with the nominees training courses in Vietnam[34] or in accordance with enrolment in prescribed TAFE courses, were required and authorised expenditures;
·Major problems with her laptop computer had resulted in the loss of all relevant documentation with the further result that none of this material could be supplied to either MARA as requested, nor to the Tribunal for its proceedings;
·At all times the Respondent had been accessible to Mr Bui but that when he became “aggressive” towards her, as a result of delays and lack of success in progressing his nominations, she refrained from taking his calls and she advised him, in writing of her position to that effect;[35]
·Evidence before the Tribunal, in the form of a Departmental record, establishes that Mr Bui was personally hostile towards her and was determined to see her put “out of business”.[36]
[34] Section 37 Supplementary Tribunal Documents at [15]-[17].
[35] Section 37 Supplementary Tribunal Documents at [62].
[36] Section 37 Tribunal Documents at [66].
She further asked the Tribunal to take into account that she had been practising as a migration agent for many years without any complaints being made against her; that she only learned of the MARA decision (which was made public under the requirements of s. 305A of the Act) when advised by members of her community,[37] much to her embarrassment and distress and that cancellation of this registration had led her to suffer great reputational and financial harm and had resulted directly in her no longer being able to secure work and income.
[37] On 6 December 2018 on the SBS Vietnamese language website an article appeared headed “A Cabramatta immigration representative was stripped of his (sic) 5-year license” and the Applicant’s case and details were reported at length and in detail.
Mr Bui’s evidence
Mr Bui gave evidence by telephone from Canberra where he operates a series of beauty shops. The applications which he was seeking to sponsor were for both an office manager and for trained staff to work in one or other of his five shops.
Apart from confirming the details of the formal complaints which he had made (outlined above), Mr Bui’s evidence was to the effect that:
·He agreed that he had sought out the Applicant to act as his migration agent due to recommendations in her favour from members of the Vietnamese community and that he had entered into an agreement with her to pay $40,000 (plus GST) per nomination for her services;
·She had travelled to Canberra on at least five occasions to meet with him and that he had authorised one trip for her to go to Vietnam to meet with the sponsored nominees;
·He had only agreed to sponsor three nominees (Quach Quoc Cuong; Quach Quoc Bao and Le Phuong Thao);
·He had not authorised the nomination of Ms Thi Xuan Thu Nguyen, was unaware of who she was, had never met her and had never signed any documentation related to, or on behalf of this person;
·The Applicant had failed to inform him of the failure or refusal of the nominations of Quach Quoc Bao or Thi Xuan Thu Nguyen at the time of their initial refusal and had subsequently transferred responsibility for managing their cases to Mr Robert Liu;
·He had paid $60,000 to the Applicant (being 50% of the agreed fee for each of three nominees) and had received $45-50,000 in refunds from the Applicant.
He reported that, due to the failure to secure the services of the nominated applicants, his business was in considerable financial difficulty and he was having problems with his relationship with other partners in the business. He was suffering considerable financial and personal stress. He admitted to being angry and frustrated with the delays which had been occasioned in the processing of his nominations and, while having no personal hostility towards the Applicant, agreed that he wanted to see her prevented from continuing as a migration agent – he wanted to see her “stop doing what she’ doing” because he felt let down and failed by her and he did not want other members of his community to be exposed to the same risk.
In relation to this last point of Mr Bui’s evidence and the Applicant’s claim that Mr Bui’s complaints were motivated by personal animosity, the Tribunal makes it clear that this is not a matter of any relevance in these proceedings. The motivations of any complainant are not relevant, save to the extent that any legislation provides that consideration of complaints which are clearly vexatious, frivolous or misconceived can be dismissed on such grounds. In this instance the complaints were properly made and stand to be judged on their intrinsic merit.
CONSIDERATION OF ISSUES
It is appropriate to consider the evidence as it relates to the three principal disciplinary grounds identified by MARA.
Failure to act diligently
In the first instance it is clearly not acceptable practice for any migration agent to keep files and records in such a manner as to put them at risk of being totally lost or rendered inaccessible as a result of a single, simple laptop failure. It is negligent in the extreme not to have backup arrangements in place.
The evidence establishes that in relation to the nominations of Mr Quach Quoc Bao and Ms Phoung Thao Le, the Applicant failed to act on Mr Bui’s instructions to withdraw the nominations and continued to act upon them. In relation to the latter it is clear that the Applicant failed to inform Mr Bui of the refusal of the initial application when she accepted instruction to withdraw a nomination which she knew had already been determine.
MARA’s assessment that the Respondent failed to act diligently in relation to these nominations is a correct assessment.
Charging of excessive fees
As has been made clear, the Code requires that fees be “reasonable in all the circumstances”. Needless to say, the Code itself gives no guidance as to what might be “reasonable” and there is no longer a published scale of fees to provide any guidance.
It would be useless for the Tribunal to wander into the limitless territory of trying to give a precise definition of what constitutes “reasonableness” in setting fees which are agreed between parties.
An internet examination of services offered by migration agents reveal that this this is a highly competitive industry where levels of fees charged may vary by very considerable amounts. In 2015 the Office of Migration Agents Registration Authority released a table showing average fees charged by migration agents for various visa categories. At that time the range of fees for processing 475 visa applications was from $1,800 to $5,000. As noted above, the Professional Standards Officer related the Applicant’s charges to “average charges in the range of AUD $2000 to $5000”.
Given that Mr Bui was additionally responsible to pay for any successful applicant’s travel costs to come to Australia and any TAFE costs (even for unsuccessful applicants),[38] and for the Applicant’s travel to Vietnam to assist the nominees on their paperwork, the fee of $40,000 seems manifestly excessive.
[38] Mr Bui paid a Training Benchmark Contribution, as required under the 457 visa scheme of $7,050.28. Section 37 Supplementary Tribunal Documents at [52], [163].
However, it must be noted that the Applicant was perfectly up-front with Mr Bui about her proposed scale of fees and he entered into the arrangement to pay $40,000 per nomination with his eyes open. Caveat emptor.
It is true that the majority of payments made by Mr Bui to the Applicant were refunded. However, even here there is uncertainty. In written evidence,[39] and in oral testimony both parties agreed that Mr Bui had paid the Applicant $60,000. This of course should be $66,000 when the GST is included. On the other hand, the Applicant’s Statement of Reply dated 18 August 2019 states:
“The fee of $120,000 was an agreed fee between Mr Bui and I. However, I only received from Mr Bui in total $80,000 and refunded $50,000.”[40]
[39] Section 37 Tribunal Documents at [65].
[40] Applicant’s Evidence at [Tab 1].
The gullibility of clients is something which a migration agent (especially one who is also a qualified solicitor) should not use to their advantage. Most clients have only limited experience in the field that is why they seek the assistance of an agent. The agent has a responsibility, under the Code to act in a fair and ethical fashion. That includes not charging excessive fees.
It is the level of fees set and charged, rather than the amount received, less refunds, which is material in this case, although if Mr Bui’s payments were only $60,000 and his refund $50,000, the personal impact upon him would be less than were he have actually paid $80,000.
By any standard the fee of $40,000 per nominee was grossly excessive and in this respect MARA’s finding to that effect was correct.
An authorised nomination: an unresolved inconsistency
It is very difficult to establish exactly what the truth is in relation to the nomination of Ms Nguyen. It will be recalled that the Applicant stated that she acted in this matter pursuant to a verbal agreement or instruction from Mr Bui. He denies this.
In relation to the paperwork, Mr Bui denies that any of the signatures on the eleven documents are his. The Applicant says that from time to time Mr Bui authorised her to sign documents on his behalf and she said in her sworn evidence that this was done, with his consent, on a number of occasions.
Throughout the proceedings the Respondent has maintained that Mr Bui only authorised the lodging of three applications. However the Departmental record of a conversation between Mr Bui and a departmental officer, dated 2 February 2018, states:
“He (Mr Bui) confirmed he had authorised Ms Paddock to lodge 6 applications (1 sponsorship, 4 nominations and 1 visa application).”[41]
[41] Section 37 Tribunal Documents at [66].
Emails from the Applicant to Mr Bui are irresolvably ambiguous in referring to a principal case and then mentioning, in addition, “together with the 3 existing matters”[42] or “the other 3 nominees”[43]as if there were a total of four matters on foot.
[42] Section 37 Supplementary tribunal Documents at [230].
[43] Ibid at [238].

The Respondent suggests to the Tribunal that, in relation to the departmental note, this should be discounted on the basis that Mr Bui may have been confused about the multiple nature of a couple of the applications, at least one having been submitted twice and the reference to sponsorship and visa being perhaps subsumed in the category of nominations. As to the emails, the Respondent suggests that they be read as referring only to 3 matters/nominees, and this is a possible interpretation.
The most difficult aspect of the Nguyen application arises from posing Cicero’s famous question, “Qui bono?” Who stood to benefit from the submission of this nomination?
It may be argued that Mr Bui was a potential beneficiary in that he would have obtained a much needed employee if Ms Nguyen were able to be employed in place of the rejected Ms Le. It may be argued that the Applicant stood to benefit as there was another $40,000 to be earned from processing such an application.
The answer may well lie in parallel with Sherlock Holmes’ dog that failed to bark. There is simply no material, in any form, before the tribunal in which the Applicant communicates with Mr Bui about Ms Nguyen’s application and there is certainly no evidence that any fee was charged in relation to it – in an environment where the Applicant was otherwise assiduous in making sure that invoices were rendered. There are no suggestions of Ms Nguyen being involved in any training classes either in Vietnam or through TAFE.
One has Mr Bui’s sworn testimony that he never authorised and did not sign the relevant applications against the Applicant’s equally sworn testimony that she had verbal instructions to act and authorisation to append signatures.
The evidence suggests strongly to the Tribunal that Mr Bui’s testimony is to be preferred and that Ms Nguyen’s nomination was lodged by the Applicant without the knowledge or consent of Mr Bui as the potential employer.
MARA’s finding to this effect and to the effect that this constitutes the provision of fraudulent documents to the Authority is endorsed and supported by the Tribunal.
Each of the three elements central to MARA’s assessment of the complaint having been made out, the compliant itself is made out under the provisions of s 311A of the Act and within the constraints identified in Narayanan.[44] Such a finding leads inexorably to a finding that a penalty should be imposed and it is now for the Tribunal to determine the level of that penalty.
[44] Narayanan and Migration Agents' Registration Authority [2006] AATA 353.
THE APPROPRIATENESS OF THE PENALTY
The Tribunal makes two preliminary observations in relation to matters which it takes into account together with the evidence discussed above.
The first of these is that the Applicant is a qualified lawyer and possesses a practising certificate. In that respect she would be aware of all the obligations of members of that profession to act with honesty and integrity, to act in accordance with the law and to refrain from any fraudulent, dishonest or deceptive behaviour and above all not to act without, and in all instances to comply with, their clients’ instructions.
The second relates to the Applicant’s claim to have lost all of her files and data due to some computer problems and hence her inability to provide documents as directed. This is indicative of a degree of negligence on her part in failing to have any system of back-up in place. Best business practice, especially when dealing with matters as sensitive as the rights of individuals under migration law, require that competent practitioners do not expose their clients to such potentially catastrophic consequences.
The penalty regime under the Act is set out in sections 303 and 311A (see above) and comprehends the imposition of a ban for a maximum period of five years. The Court and the Tribunal have noted that the rationale of such sanctions is not in terms of punishment but rather in terms of protection of the public against incompetent or negligent migration agents.
In Kraues, the Federal Court stated:
[17] Importantly, the purpose of the disciplinary powers conferred by s 303 is protection of the public and not punishment as such.[45]
[45] Kraues v Office of the Migration Agents Registration Authority and Another [2018] 158 ALD 493.
In Rozsy and Migration Agents Registration Authority[46] the Senior Member Penglis stated:
397.It is well established that, although punishment is not an irrelevant consideration, the primary purpose of a power such as that given by s 311A of the Act is to protect the public from wrongdoing.
As I noted in Narayanan and Migration Agents Registration Authority:
“In fixing the appropriate period in which to ban the applicant, one needs to take account of the fact that Parliament has indicated that the maximum period is 5 years. That is obviously reserved for the most severe cases. The most severe cases would inevitably involve an element of fraud, dishonesty or incompetence”.
[46] Rozsy and Migration Agents Registration Authority [2008] AATA 434.
MARA submits that the degree of fraud perpetrated by the Applicant in relation to the application made, without authorisation, and apparently involving the use of a forged document, is of such a nature that the appropriate sanction should be at the maximum end of the scale.
Narayanan provides authority for the Tribunal to take into account the effect on the applicant’s financial earning capacity and livelihood.[47] It also, in its consideration of penalties, made the point that cases of dishonesty must be dealt with employing a higher level of penalty[48] and conscious of the desirable public policy outcome that:
“The Tribunal concludes that an order barring the applicant for a period will more likely than not ensure that the public’s confidence in the industry in which the applicant practices will be maintained.”[49]
[47] Narayanan and Migration Agents' Registration Authority [2006] AATA 353 at [131].
[48] Ibid at [139].
[49] Ibid at [131].
As noted, MARA has characterised the Applicant’s behaviour, especially in relation to the matter of the false representations made in relation to Ms Nguyen’s application as constituting behaviour attracting the highest level of the scale of penalties available to it. It reinforces this with further reference to an agent failing to act on the instruction of a client and charging excessive fees.
The Tribunal is not inclined to make a finding based on the question of fees given that Mr Bui specifically sought out Ms Paddock to be his agent and he entered into an agreement with her at a specified scale of fees. He apparently took no steps to seek information about what might be “reasonable” in terms of fees or to “shop around” for an agent (in Canberra as well as in Sydney) who might assist him for less. He was naive and gullible in that regard and may well have been taken advantage of, but he also has responsibility in this matter. As already stated, caveat emptor.
However, the Tribunal finds itself in agreement with MARA that the Applicant’s behaviour in relation to her responsibility towards her client was substantially less than diligent. In relation to Ms Nguyen it was also dishonest. Both are at the highest level of unacceptable and improper behaviour. Neither behaviour can or should be tolerated in a migration agent registered under the Act.
This is a case where the maximum penalty provided by the legislation is appropriate.
DECISION
The decision under review is affirmed.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

..............................[sgd]..........................................
Associate
Dated: 27 September 2019

Date(s) of hearing: 24 September 2019

Applicant: In person

Solicitors for the Respondent: Ms Mia Donald, Sparke Helmore Lawyers

[2019] AATA 3941

27 September 2019

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Date(s) of hearing:	24 September 2019
Applicant:	In person
Solicitors for the Respondent:	Ms Mia Donald, Sparke Helmore Lawyers