Patel and Migration Agents Registration Authority (Migration)

[2018] AATA 4277

Patel and Migration Agents Registration Authority (Migration) [2018] AATA 4277 (16 November 2018)

Division:GENERAL DIVISION

File Number(s):      2017/6324

Re:Ketan Vallabhbhai Patel

APPLICANT

AndMigration Agents Registration Authority

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:16 November 2018

Place:Sydney

The reviewable decision made by the Office of the Migration Agents Registration Authority on 26 September 2017 is affirmed.

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Senior Member M Griffin QC

CATCHWORDS

MIGRATION – suspension of registration as a migration agent – whether the agent is a person of integrity – whether the agent is a fit and proper person to provide immigration assistance – whether the agent is honest – whether the agent has the knowledge of the migration scheme and the ability to fulfil the position of a migration agent – whether the agent dealt with his or her client competently, diligently and fairly – whether agent took all reasonable steps to maintain the reputation and integrity of the migration advice profession – decision affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

The Bell Group (In Liq) v Westpac Banking Corporation (No.9) [2008] WASC 239

SECONDARY MATERIALS

Code of Conduct for Registered Migration Agents

REASONS FOR DECISION

Senior Member M Griffin QC

16 November 2018

INTRODUCTION

1. Ketan Patel (Applicant), a registered migration agent (MARN 0321153), seeks review of a decision by the Office of the Migration Agents Registration Authority made on 26 September 2017 to suspend his registration as a migration agent for a period of 18 months pursuant to s.303 of the Migration Act 1958 (Cth) (Act). The application for review is brought pursuant to s.306 of the Act.

2. The decision to suspend the Applicant’s registration followed a finding by the Authority that the Applicant engaged in conduct contrary to his professional obligations under the Code of Conduct for Registered Migration Agents (Code) and that he was not a person of integrity, or was otherwise not a fit and proper person to give immigration assistance.

   BACKGROUND

3. On 22 April 2016, Mr Anand Rodrigues (the Complainant) lodged a complaint against the Applicant in relation to the Applicant’s conduct as a registered migration agent. The background facts, which are not contentious, were summarised by the Respondent:

   (a)The Applicant operated a business, SK Consultants (ACN 30 113 310 014), which was registered in New South Wales and provided migration advice and services.

   (b)In or around 2006, SK Consultants established several “associate offices” operating in India. In November 2015, there were three such offices, operating in Ahmedabad, Bangalore and Mumbai. The associate offices operated independently of the Australian office insofar as the associate offices were responsible for bearing their own operating costs, and derived their own income from providing migration services. The associate offices paid a commission to the Applicant in return for the use of the Applicant’s name, MARN and Australian contact details for their clients’ visa applications. None of the agents operating the associate officers were registered migration agents.

   (c)On 22 November 2014, the Complainant entered into a “Cost and Engagement Agreement”. That agreement specified the parties to the agreement as being the Complainant and SK Consultants, and identified SK Consultants’ address as being the Applicant’s business address in Sydney. The agreement was countersigned by Mr Sandesh Mainkar (of the Mumbai associate office) “For SK Consultants”. The agreement set terms for the provision of assistance to the Complainant in making an application for a Skilled - Nominated (Subclass 190) (Permanent) visa (PR visa).

   (d)The Complainant submitted an expression of interest via SkillSelect and, on 24 June 2015, was invited to make an application for a PR visa. On 28 July 2015, an application was lodged on behalf of the Complainant. The Applicant was listed as the authorised recipient for the Complainant, and received (and responded to) an acknowledgement of the application having been lodged. The email from the Department was sent to the email address [email protected].

   (e)On 17 September 2015, a delegate of the Minister conducted an initial assessment in connection with the PR visa application, and a request was made by the Department to provide documents, including a skills assessment, within 28 days. That request was sent to the email address [email protected]. No documents were received by the Department, and on 12 November 2015 the delegate refused the grant of the PR visa. Notification of the refusal was sent to the email address [email protected]. The Applicant contended that he forwarded each of these emails to Mr Mainkar.

   (f)The Complainant was not made aware that the PR visa had been refused, and instead was informed that his application was being “processed”. In April 2016, the Complainant sought the grant of a visitor visa in order to travel to Australia. In the course of doing so, he became aware (from the Australian High Commission in Delhi) that the PR visa had been refused.

4. On 8 June 2016, the Authority published the complaint to the Applicant and invited him to respond to the complaint. The Authority noted that the Applicant was the authorised recipient with respect to the correspondence sent by the Department on 28 July, 17 September and 12 November 2015.

5. The Applicant responded to the complaint in a statutory declaration, made on 8 July 2016. The Applicant deposed that he had had no contact with the Complainant in connection with the application for the PR visa, and that all contact with the Complainant (including with respect to the skills assessment and expression of interest) was conducted by Mr Mainkar. The Applicant deposed that he was the “named migration agent” and his contact details were provided in the application for the PR visa. The Applicant further deposed that he had forwarded the relevant correspondence from the Department to Mr Mainkar.

6. The Applicant accepted that the problem arose because he had allowed his associates in India to use his MARN and contact details in submitting visa applications “because this meant that it was [his] responsibility to make sure the visa applications went smoothly”.

7. On 14 December 2016, the Authority issued the Applicant a notice under s.309(2) of the Act (s.309 Notice). The s.309 Notice indicated to the Applicant that it would be open to the Authority to be satisfied he had breached cls.2.1 and 2.23 of the Code, and was not a person of integrity or otherwise not a fit and proper person to provide immigration assistance.

8. The Applicant responded to the s.309 Notice on 3 February 2017, providing a further statutory declaration (made on 25 January 2017) and written submissions responding to the s.309 Notice. In summary, the Applicant contended that he had never represented to the Complainant that the associate offices were registered migration agents or that they had ever claimed to be so, that prior to the complaint he never had reason to believe that the associate offices were anything other than competent, and denied that he intended to deceive the Department by allowing Mr Mainkar to use his MARN and contact details.

   ISSUES

9. The Respondent argued that the following issues arose:

   (a)First, with respect to the Applicant’s conduct:

   (i)Whether the Applicant was an agent of the Complainant;

   (ii)Whether the Applicant failed to act with competence and diligence with respect to the Complainant; and

   (iii)Whether the Applicant failed to take all reasonable steps to maintain the integrity of the migration advice profession.

   (b)Secondly, whether the Applicant is a fit and proper person to practise as a migration agent.

   (c)Thirdly, if the Applicant is not a fit and proper person, the appropriate sanction to be imposed upon him.

10. The Respondent contends that the Applicant was the agent of the Complainant.

11. The Applicant contends on the review that he was not the agent of the Complainant, but merely his “authorised recipient”.

    CONSIDERATION

12. An agency relationship will arise “where the parties mutually consent for the agent to act on behalf of, and under the control and direction of, the principal in respect of a defined matted” (The Bell Group (In Liq) v Westpac Banking Corporation (No.9) [2008] WASC 239 at [6166]).

13. The Complainant entered into a service agreement with the Applicant’s business, SK Consultants. The scope of that agreement went far beyond SK Consultants passing on information to the Complainant. While the Applicant himself was not the signatory for the execution of the agreement, the Applicant clearly contemplated that his associates in India had the capacity to enter into such agreements on behalf of his business, with the consequence that he would be responsible for the visa applications.

14. The Tribunal considers that it is unnecessary to analyse in legal terms or in depth the relationship established between the Applicant and the Complainant. The Applicant, by licencing his MARN and allowing his associates to enter into agreements with prospective clients on behalf of the Applicant’s business, put in train by those acts and agreements, the potential for establishing a relationship with the Complainant whereby the Applicant was, in reality, acting as the Complainant’s migration agent in every respect. The parties in India were mere intermediaries.

15. Clause 2.1 of the Code provides:

    A registered migration agent must always:

    (b) deal with his or her client competently, diligently and fairly

16. It is not in dispute that the Applicant received communications from the Department. The Applicant was obligated to pass on these communications to the Complainant. Plainly, this was not done. Instead, the Applicant forwarded that correspondence to Mr Mainkar.

17. Not only did the Applicant fail to act with competence and diligence with respect to the substantive aspects of the Complainant’s visa application, he failed to provide the relevant correspondence from the Department to the Complainant. The Applicant took no actions to ensure that his basic obligation of providing correspondence from the Department to the Applicant was met.

18. The Tribunal finds, therefore, that the Applicant has breached cl.2.1 of the Code.

19. Clause 2.1 of the Code provides:

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

20. The Applicant’s website, and the use of the @skmigration.com domain by both him and his associate, gave the clear impression that the Applicant and the associate offices were part of the same company under the direction of the Applicant, and that there was no indication that the associate offices operated independently of the Applicant. Further, while the Applicant had allowed the associates to use his MARN, he had no authority to do so. The Applicant acknowledges this.

21. The conduct by the Applicant in allowing the associates the use of his MARN in return for a fee undermined the regulatory framework of the migration advice industry and had damaged the reputation and competence of the migration advice profession.

22. The Applicant admits his conduct in licensing his MARN and suggests he was authorised to do so.

23. In light of the breaches of the Code committed by the Applicant, the Respondent contends that the Applicant is not a fit and proper person to give immigration assistance (per s.303(1)(f) of the Act). The key matters to which the Respondent refers as to whether the Applicant is fit to practise as a migration agent are:

    (a)whether the Applicant is honest; and

    (b)the Applicant’s knowledge of the migration scheme and ability to fulfil the position of a migration agent.

24. The Respondent contends that the Applicant could not be said to have demonstrated a level of knowledge or ability to fulfil the position of a migration agent. The Applicant has:

    (a)shown a disregard for his obligations under the Code and his duty owed to clients;

    (b)shown though his arrangements with the associates a disregard for the regulatory scheme for the migration advice industry, which had continued for many years and continued even after the complaint was published to him; and

    (c)displayed no insight into the fact that his that his practice of licensing the use of his MARN and contact details to unqualified, overseas agents was both unauthorised and undermined the integrity of the regulatory scheme and the confidence of consumers.

25. The Tribunal accepts these submissions.

    CONCLUSION

26. Having regard to the objective seriousness of the Applicant’s conduct and the lack of insight displayed by the Applicant in this regard, the Tribunal considers the Applicant is not a fit and proper person to give migration advice.

27. Having regard to the seriousness of the Applicant’s conduct and the principle that the purpose of disciplinary proceedings is, in part, the protection of the public, the sanction imposed upon the Applicant (being his suspension for a period of 18 months, with conditions) is an appropriate sanction.

    DECISION

28. Accordingly, the reviewable decision made by the Office of the Migration Agents Registration Authority on 26 September 2017 is affirmed.

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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Associate

Dated: 16 November 2018

Date(s) of hearing:	5 October 2018
Applicant:	In person
Solicitors for the Respondent:	Sparke Helmore Lawyers