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

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.
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
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…

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: Patel and Migration Agents Registration Authority (Migration) [2018] AATA 4277
Case: [2018] AATA 4277
Decision Date: 16 November 2018

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Migration Agents Registration Authority to suspend the registration of Mr Patel, a registered migration agent. The Authority's decision was based on findings that Mr Patel had not acted with integrity, honesty, or competence in his dealings with a client, and had failed to take reasonable steps to maintain the reputation and integrity of the migration advice profession. Mr Patel contended that he was not the agent of the complainant but merely an "authorised recipient" of information.

The primary legal issues before the Tribunal were whether Mr Patel had acted as a migration agent for the complainant, and if so, whether his conduct breached the Code of Conduct for registered migration agents. Specifically, the Tribunal considered whether Mr Patel had dealt with his client competently, diligently, and fairly, and whether he had taken all reasonable steps to maintain the reputation and integrity of the profession.

The Tribunal found that an agency relationship arises where parties consent for one to act on behalf of the other under their control. It determined that Mr Patel, by allowing his associates in India to enter into service agreements with clients under his business name and by allowing them to use his Migration Agents Registration Number (MARN), had effectively acted as the complainant's migration agent. The Tribunal concluded that Mr Patel breached the Code of Conduct by failing to pass on crucial correspondence from the Department of Immigration to his client and by not taking steps to ensure this basic obligation was met. Furthermore, the Tribunal found that Mr Patel's website and the use of a shared domain name created an impression of a unified company, misleading clients about the independence of associate offices, and that he had improperly allowed associates to use his MARN.

The Tribunal affirmed the reviewable decision of the Migration Agents Registration Authority, finding the 18-month suspension with conditions to be an appropriate sanction given the seriousness of Mr Patel's conduct and the need to protect the public.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

The Applicant contends on the review that he was not the agent of the Complainant, but merely his “authorised recipient”.CONSIDERATION 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]). 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. 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. Clause 2.1 of the Code provides:A registered migration agent must always:(b) deal with his or her client competently, diligently and fairly 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. 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. The Tribunal finds, therefore, that the Applicant has breached cl.2.1 of the Code. 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 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.