Paddock and Migration Agents Registration Authority (Migration) - [2019] AATA 3941

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Paddock and Migration Agents Registration Authority (Migration) [2019] AATA 3941
Case: [2019] AATA 3941
Decision Date: 27 September 2019

CaseChat Overview and Summary

This matter concerned an application by Ms Paddock to review a decision by the Migration Agents Registration Authority (MARA) to bar her from being a registered migration agent for a period of five years. The dispute arose from complaints made by Mr Bui concerning Ms Paddock's conduct as a registered migration agent. MARA's decision was based on findings that Ms Paddock had failed to act diligently, charged excessive fees, and lodged a visa application without client consent.

The Tribunal was required to determine whether Ms Paddock had complied with the Migration Agents Code of Conduct, specifically in relation to acting diligently, charging reasonable fees, and obtaining client consent before lodging applications. The Tribunal also had to consider the evidence before it at the time of its decision-making, including any new or additional material not available to MARA.

The Tribunal applied the principles established in *Shi v Migration Agents Registration Authority* [2008] HCA 31, which affirmed that the Tribunal must make its decision based on the most up-to-date material available to it, as the primary object of MARA's disciplinary powers is the protection of the public, not the punishment of agents. The Tribunal considered Ms Paddock's oral and written evidence, including her assertions that she acted on client instructions, had a written fee agreement, and that laptop issues led to the loss of documentation. However, the Tribunal also considered evidence from MARA and departmental records, including findings that Ms Paddock failed to act on instructions to withdraw a nomination, did not advise of a visa refusal, charged fees significantly higher than the industry average, and lodged an application without clear authorisation, with a subsequent withdrawal of a different application using the same reference number.

The Tribunal affirmed MARA's decision to bar Ms Paddock from registration for five years, finding that the complaints were substantiated.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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].

Decision

Reasons for decision

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].

Ratio Decidendi

Legal Principle Established

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