Pilkington and Migration Agents Registration Authority
[2008] AATA 886
•19 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 886
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200500329
GENERAL ADMINISTRATIVE DIVISION ) Re BRIAN PILKINGTON Applicant
And
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Mr S Penglis, Senior Member Date19 September 2008
PlacePerth
Decision 1. The reviewable decision of the respondent dated 12 September 2005 is set aside.
2. In lieu thereof the applicant is barred pursuant to section 311A of the Migration Act 1958 (Cth) from being a registered migration agent for a period of 3 years commencing on 12 September 2005.
....(sgd) Mr S Penglis.................
Senior Member
CATCHWORDS
Immigration – registered migration agent – whether applicant not fit and proper person or not a person of integrity – applicant having financial interest in companies in which his clients invested and in respect of which representations were made to the Department in connection with 24 and 36 month reviews and notices advising of possible cancellation of visas –proper interpretation of clauses 2.1A and 2.1B of Code of Conduct – respondent’s finding that applicant not fit and proper and not a person of integrity not upheld - respondent nevertheless held to have contravened numerous clauses of the Code of Conduct, including by continuing to act notwithstanding conflicts of interests – respondent’s decision to bar the applicant for 5 years set aside and in lieu thereof applicant barred for 3 years.
Practice and Procedure – application to Member to disqualify himself on the basis of reasonable apprehension that Tribunal had pre-judged matter – relevant principles considered – application dismissed.
LEGISLATION
Migration Act 1958, ss 311(A) and 314
Code of Conduct, clauses 2.1A, 2.1B, 2.2, 2.8(a), 2.9, 5.2, 11.4 and 2.23.
CASES
Bienstein v Bienstein (2003) 195 ALR 225
Brigenshaw v Brigenshaw (1938) 60 CLR 336
Donald and Australian Securities and Investments Commission [2001] AATA 66
Motthehi & Migration Agents Registration Authority [2007] AATA 60
Narayanan v Migration Agents Registration Authority [2006] AATA 353
Quigley (A Practitioner) v The Legal Practitioners’ Complaints Committee [2003] WASCA 228
Re Keely & Anor: Ex Parte Ansett Transport Industries (Operations) Pty Ltd & Ors (1990) 94 ALR1
Rich v Australian Securities and Investments Commission [2004] HCA 42
Richmond River Broadcasters Pty Ltd & Anor v Australian Broadcasting Tribunal & Ors (1992) 106 ALR 671
Rozsy and Migration Agents Registration Authority [2008] AATA 434
Vakauta v Kelly (1989) 87 ALR 633
REASONS FOR DECISION
19 September 2008 Mr S Penglis, Senior Member 1. On 12 September 2005 the respondent made a decision barring the applicant from being a registered Migration Agent for a period of 5 years pursuant to section 311 of the Migration Act 1958 (Act).
2. That is the decision which, by this application, the applicant seeks to have the Tribunal review and set aside.
3. Evidence was received by the Tribunal over three days, followed by the provision of detailed written submissions and the provision of supplementary oral submissions at a further hearing before the Tribunal.
4. As the matter involves numerous former clients of the applicant, and numerous alleged breaches of the Migration Agents Code of Conduct (Code), a detailed notation and analysis of the evidence is required.
The Reviewable Decision
5. In its decision date 12 September 2005, and for the detailed reasons set out therein, the respondent held that
· the applicant had engaged in conduct in contravention of clauses 2.1A, 2.1B, 2.2, 2.8(a), 2.9, 5.2, 11.4 and 2.23 of the Code
· by reason of the facts given rise to such contraventions, the applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance and thereby decided to bar the applicant from being a registered agent for a period of 5 years pursuant to section 311A(1) of the Act.
6. As to the period of 5 years, the respondent wrote
“The Authority is satisfied that a 5 year barring is the appropriate sanction in the circumstances given the seriousness of the (applicants) breaches of the Code of Conduct. It is in the interest of consumer protection to ensure that the (applicant) is barred from being a registered migration agent for a period of 5 years”
Application to disqualify myself from hearing the application
7. During the course of the hearing Mr Rothstein, Counsel for the applicant, made an application that I disqualify myself on the basis of apparent bias. The short point was that by reason of questions I had asked of the applicant during the course of his evidence, and the tone of those questions, a reasonable apprehension was said to arise that I had prejudged the matter.
8. I dismissed that application and gave short reasons therefor during the course of the hearing, indicating that I would provide more detailed reasons as part of these reasons for decision.
9. The relevant principles were conveniently summarised by the Full Court of the Supreme Court of Western Australia in Quigley (A Practitioner) v The Legal Practitioners’ Complaints Committee [2003] WASCA 228 where, at para [94], Parker J, with whom Malcolm CJ and Anderson J agreed, said this:
“It is accepted that the test of perceived bias is whether “a fair minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that [the member of the Tribunal] might not bring an impartial and unprejudiced mind to the resolution of the question”: Webb v R (1994) 181 CLR 41 at 67 – 68. Substantial grounds need to be established before a member of a court or tribunal ought to disqualify himself or herself, and if substantial grounds are not established the member’s duty is not to disqualify himself or herself: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 10 at 87; Re Finance Sector Union of Australia; Ex Part Illaton Pty Ltd (1992) 107 ALR 581; Clenae Pty Ltd v ANZ Banking Group [2000] HCA 63 at par 30, 137 and 174.”
10. A court or tribunal must be careful to ensure that questions or comments put during the course of a hearing do not permit of a conclusion, even if it not be the fact, that the court or tribunal has prejudged any aspect of the matter. That, however, is not to say that a court or tribunal ought remain mute during the course of evidence: it is entirely proper for a court or tribunal to ask of a witness a question to elicit a fact which is not apparent to the court or tribunal having regard to questions which have been asked of that witness by Counsel for the parties.
11. Moreover, it is entirely appropriate for any provisional view of a witness’s evidence that a court or tribunal may be forming to be put to the witness to allow that witness an opportunity to deal with the matter.
12. In this regard, I refer, for example, to the decisions of the High Court of Australia in Richmond River Broadcasters Pty Ltd & Anor v Australian Broadcasting Tribunal & Ors (1992) 106 ALR 671: Vakauta v Kelly (1989) 87 ALR 633: Re Keely & Anor: Ex Parte Ansett Transport Industries (Operations) Pty Ltd & Ors (1990) 94 ALR1: Bienstein v Bienstein (2003) 195 ALR 225.
13. Whilst, as I have said, these propositions are applicable to both courts and tribunals, they are even more apposite to a tribunal invested with a primary jurisdiction of the merit-based review of an administrative decision. In this regard I note that power is given to this Tribunal to determine facts of a broader nature than those of a court; see for example the power under the Administration Appeals Act for the Tribunal to summons a witness of its own initiative.
14. I do not consider the questions I asked of the applicant, or the manner in which I asked them, to come anywhere near that which the courts have held to be such as to reasonably form an apprehension of bias or prejudgment.
Legislation and Policy
15. The following portion the respondent’s Statement of Fact Issues and Contentions provides a concise summary of the relevant legislation and policy:
“11. Section 311A states as follows:
(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.
(2)the period must not be more than 5 years starting on the day of the authority’s decision.”
12. The Tribunal in Narayanan v Migration Agents’ Registration Authority [2006] AATA 353 (30 March 2006) held, at [14] as follows:
“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 immigration assistance, the complaint is investigate and the respondent is satisfied that the subject matter of the complaint is made out.
It is therefore clear that s311A is limited to satisfaction with respect to the subject matter of a complaint. It does not extend outside that scope, even if it relates to the former registered migration agent’s dealings with the respondent with respect to the investigation of a complaint.”
13. Section 314 of the Act states as follows:
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.
14. The Code of Conduct is prescribed under Regulation 8 of the Migration Agents Regulations 1998 and is set out in Schedule 2 of those Regulations. The Code of Conduct can be found in the amended section 37 documents filed by the respondent.
15. The Tribunal in Narayanan stated at [31] that is it open to it to consider any evidence or breaches of the Code of Conduct it considers appropriate, so long as the same form part of the “subject matter” of the complaints made to the respondent concerning the applicant.
16. The relevant provisions of the Code of Conduct are as follows:
Clause 2.1A
A migration agent must not accept a person as a client if the agent would have any of the following conflicts of interest:
(a)the agent has had previous dealings with the person, or intends to assist the person, in the agent’s capacity as a marriage celebrant;
(b)the agent, is or intends to be, the employer, sponsor or nominator of the person in a visa application or cancellation review;
(c)the agent is, or intends to be, involved with the person in a business activity that is relevant to the assessment of a visa application or cancellation review application;
(d)there is any other interest of the agent that would affect the legitimate.
Clause 2.1B
If it becomes apparent that a migration agent has a conflict of interest mentioned in clause 2.1A in relation to a client, the agent must, as soon as practicable taking into account the needs of the client, but in any case within 14 days;
(a) tell the client about the conflict of interest; and
(b)advise the client that, under the code of conduct the agent can no longer act for the client; and
(c) advise the client about appointing another migration agent; and
(d)cease to deal with the client in the agent’s capacity as a migration agent.
Clause 2.2
If a registered migration agent:
(a)gives advice of a non-immigration nature to a client in the course of giving immigration assistance; and
(b) could receive financial benefit because of the advice;
the agent must tell the client in writing, at the time the advice is requested or given, that the agent may receive a financial benefit.
Clause 2.8(a)
A migration agent must:
(a)within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing.
Clause 2.9
While a migration agent cannot be responsible for misinformation provided by a client, an agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the make of statements, which he or she knows or believes to be misleading or inaccurate.
Clause 5.2
A migration agent must:
(a) before starting work for a client, give the client:
(i)an estimate of fees in the form of charges for each hour or each service, and disbursements that the agent is likely to incur as part of the work; and
(ii) an estimate of the time likely to be taken in performing a service; and
(b)as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of the terms of the work to be done; and
(c)give the client written confirmation of the terms of the service to be rendered; and
(d)give the client written notice of any material changes to the estimated cost of providing a service, and the total likely cost because of the change, as soon as the agent becomes aware of the likelihood of a change occurring.
Clause 11.4
A migration agent who has an internet website must provide a link to the copy of the Code that is displayed on the Authority’s website.
Clause 2.23
A migration agent must take all reasonable steps to maintain the reputation and integrity of the migration industry.”
Overview of the alleged breaches of the Code and the applicant’s position with respect to them
16. The positions adopted by the parties with respect to each alleged breach of the code of conduct were helpfully summarised in their respective Statements of Facts and Contentions filed and exchanged prior to the commencement of the hearing. The relevant portions of the same are reproduced below to usefully indicate where the “lines were drawn” in respect of each issue.
Clause 2.1A and 2.1B
17. The respondent’s position was summarised as follows (which also accurately encapsulates the position adopted by the applicant):
“23. The respondent was satisfied that the applicant had a conflict of interest in respect of Chu Khyun Cheer, Rudy Djaja, Glen Hendra Gunadirdja, Tio Poh Hock, Wibobo Taufan Styawardjaja, Arief Karnardi and Hendra Widjonarko. The Tribunal found the applicant was involved with those clients in business activities that were directly relevant to the assessment of their visa applications or cancellation review applications at the same time as making submissions to the Department in response to issued Notices of Intention to Consider Cancelling his client’s visas or assisting his clients with the preparation of their 24-month or 36-month surveys.
24. The respondent was also satisfied that the applicant wrote to the Department on behalf of Suharjono Sutanto in his capacity as Mr Sutanto’s migration agent and that the applicant had been involved with Mr Sutanto in business activities which were relevant to Mr Sutanto’s visa application and cancellation review process. Mr Sutanto had invested in Kingscourt Holdings Pty Ltd and Goldzen Holdings Pty Ltd of which the applicant was a director.
25. The applicant appears to acknowledge that there were conflicts of interest but contends that clause 2.1A only applies to accepting clients after 1 March 2003 and does not apply to conflicts of interest with pre-existing clients. The respondent contends that such a construction of clause 2.1A would lead to a perverse result. The clear and unambiguous purpose of clause 2.1A is to prohibit migration agents from acting for clients with whom they have a conflict of interest. There can be no sensible construction which would allow a Code of Conduct to permit conflicts of interest.
26. In relation to clause 2.1B, the respondent submits that the applicant’s contention that he was not aware of the conflict of interest in not sustainable. The applicant was obliged to apprise himself of the provisions of the Code of Conduct and it would have been apparent that the provision of migration advice to clients with whom he had a business relationship would constitute a conflict of interest.”
Clause 2.2
18. The respondent’s position was summarised as follows (which also accurately encapsulates the position adopted by the applicant):
“19. The respondent was satisfied that the applicant had breached clause 2.2 of the code of conduct as he did not always disclose in writing to his clients at the time when his immigration advice and investment advice were given that he could receive a financial benefit from that advice.
20. Specifically, the Authority was satisfied that:
20.1the applicant had arranged for his clients, Fong king Fun, Arief Karnadi Tjong, Lucas Bong, Rudy Djaja, Johannes Alexander Iwan Gunadirdja, Glen Hendra Gunadirdja, Hendra Kusuma, Yew Niew Mee Hay Leong Fah, Linda Majuki, Dicky Permana, Wibobo Taufan Satyawardja and Hendra Herjadi Wodjoarko to invest in Ezy Storage Pty Ltd of which the applicant was the Executive Director;
20.2a number of the applicant’s clients paid fees to Goodland Properties Pty Ltd of which the applicant was a director and shareholder;
20.3the applicant arranged for his clients Tio Pho Hock and Shui Khyun Chee to invest in Realsun Pty Ltd of which the applicant was a director;
20.4a Project Management Agreement between Realsun Pty Ltd and Goodland Properties Pty ltd stated that Goodland Properties Pty Ltd would charge a project management fee to Realsun Pty Ltd and be entitled to a profit share to be agreed between the Directors of Realsun Pty Ltd and Goodland Properties Pty Ltd; and
20.5Ezy Storages Pty Ltd, Realsun Pty Ltd and Goodland Properties Pty Ltd were all companies associated with the applicant which received or could receive a financial benefit because of investments made by the applicant’s immigration clients and that the applicant would have gained a financial benefit from this.
21. The applicant has conceded that many of his clients invested in companies he was involved in. The principal contention of the applicant appears to be that, because all investors were provided with an Information memorandum in respect of each company constitutes written notice that he might receive a financial benefit.
22. The respondent contends that the proper construction of clause 2.2 requires a migration agent to clearly and unambiguously advise the client that they may receive a financial benefit. Merely identifying yourself as a shareholder in a company memorandum from which a client may or may not deduce that an agent could receive a financial benefit does not comply with the requirements of clause 2.2.”
Clause 2.8(a)19. The applicants’ Statement of Facts and Contentions summarises the applicant’s position as follows:
“37. The applicant acknowledges that the files obtained by MARA do not, for the most part, contain copies of the confirmation in writing contemplated by Clause 2.8(a).
38. The applicant believes that he would have substantially complied with the requirement but to date has not noted evidence thereof. He was aware of the requirement and contends that his usual “modus operandi” was to confirm all client instructions in writing.
39. The applicant acknowledges that such confirmation was normally only provided at the time of an original visa application, and was not in the normal course of events provided for “follow up” work such as 24 month and 36 month surveys, and Notices of Intention to Cancel. This is because for the most part, the applicant’s services for follow up work was regarded as being part of the original fee charged by the applicant for the visa application.
40. The applicant nevertheless acknowledges that this arrangement should have in any event been recorded in writing and kept on the file.
41. To date the applicant has been able to establish that the client file of Mr Tio Poh Hock does show confirmation in writing of the client’s instructions. The contract was entered into on 14 April 1999 for an application to be made for a business Skills Visa. See Annexure A being a copy of the agreement.”
20. The respondents position was summarised in its Statement of Facts Issues and Contentions as follows:
“27. The respondent was satisfied, after inspection the applicant’s files, that the applicant had not complied with the requirement that an agent confirm a client’s instructions in writing in respect of the following clients:
27.1 King Fun Fong;
27.2 George Chandra;
27.3 Yohanes Tijoe Sucipto;
27.4 Shi Khyun Chee;
27.5 Poh Hock Tio;
27.6 Arief Karnardi Tjong;
27.7 Anthanasius Susanto Tirtawidjaja;
27.8 Ywe Nien Mee Hau Leung Fah;
27.9 Luca Bong;
27.10 Rudy Djaja;
27.11 Glen Hendra Gunadirdja;
27.12 Iwan Gunadirdja;
27.13 Hendra Kusuma;
27.14 Wibowo Taufan Satayawardjaja;
27.15 Hendra Herjadi Widjonarko;
27.16 Linda Majuki; and
27.17 Dicky Permana
28. The applicant has contended that he would have “substantially complied” with this requirement and that his “usual modus operandi was to confirm all client instructions in writing”.
29. The applicant has put forward a single document in relation to Poh Hock Tio as evidence of compliance with this requirement. No explanation has been put forward as to why there is nothing to demonstrate compliance in relation to the other sixteen clients identified above.
30. The respondent contends that it is clear that the applicant has consistently breached clause 2.8(a).”
Clause 2.9
21. The applicant’s position was stated in his Statement of Facts and Contentions as follows:
“43. The MARA have found the Applicant to be in breach of Clause 2.9 on account of a number of submissions made by the applicant with regards to the operations of Ezy Storage and the participation of its directors who were his migration clients.
44. In particular the MARA focuses at point 4.5.13 on a decision made by the Administrative Appeals Tribunal on 30 July 2004 with regards to an appeal by Dicky Permana against the cancellation of his business visa. The MARA contended that the applicant never intended for the directors to in any way have a meaningful opportunity to be involved in the senior management of Ezy Storage and therefore all the statements made about “active” involvement were misleading.
45. it is contended that
(a)the structure and set up of Ezy Storage did in face provide the opportunity for all directors of the company to be involved in the senior management of the company should they so choose, it is the applicants contention that all directors had the opportunity and the power through their shareholding to impact directly on the direction and control of the company;
(b)each of the clients who were the subject of the MARA’s findings had, at the time of acquiring an interest in Ezy storage, informed the applicant of their intention to play an active role in the management and growth of Ezy Storage. Each of those persons was a successful business person in their own right.
46. Furthermore, it is also the applicant’s evidence that had Ezy Storage developed to the size that it was originally planned it would do, that it would have provided further opportunities for all the directors to be further involved.
47. In the following cases, representations were made about future intentions, not factual past circumstances:
(a)The applicant represented on behalf of Fong King Fun in April 2001 that Mr Fong would join the management team of Ezy Storage as a director in charge of the company’s administration. We refer to page 238 of the T Documents. Mr Fong acquired his interest in March 2001.
(b)The applicant made representations on 30 July 2001 that Linda Majuki would become the Administration manager. We refer to page 1511 of the T documents. Ms Majuki acquired her interest in October 2000 and July 2001.
(c)On or about September 2001 representations were made to DIMIA that Arief Karnadi Tjong would be involved in developing and managing the marketing of the Ezy facility. We refer to page 452 of the T Documents. He acquired his interest between March and August 2001.
48. The applicant contends that his submissions for these individuals were based on information provided to him. With reasonable expectation of the clients carrying out their intentions, the applicant made his submissions accordingly.
49. With regard to those visa holders that the applicant made representations about their past activities, that those statements were not incorrect or misleading. The applicant believed that those individuals concerned had been involved in the capacities as stated.
50. At no time did the applicant make any statement that an individual actually performed a duty which it has been found that the individual did not do. The applicant only made statements as to an individual’s actual position within the company and what projects, if any, they had been “involved” in.
51. DIMIA did on a number of occasions accept that a visa holder’s participation in the operations of Ezy Storage did amount to the appropriate level of participation.
52. It is also contended that what amounts to the satisfaction of section 134 of the Act has been regularly argued in the Administrative Appeals Tribunal and is still the subject of conjecture with various decisions providing a variety of often conflicting opinion.
53. The applicant therefore contends that at all times he believed that he was making statements that were in accordance with the legislation, and were supported by those decision of DIMIA that accepted that various applicants were in fact involved on a day to day basis.
54. Based on the above, it is submitted that the Applicant did not knowingly make statement which he believed to be incorrect or misleading.”
22. The position on behalf of the respondent was summarised as follows:
“31. The respondent was satisfied that the applicant had over a period of time advised the Department that a number of his clients were directors of Ezy Storage Pty Ltd and actively participating in the day-to-day management of Ezy Storage Pty Ltd at a senior level.
32. The authority was satisfied that statements to this effect made by the applicant in respect of his clients Fong King Fun, Glen Hendra Gunadirdja, Linda Makuki, Wibowo Taufan Statywaedjaja, Dicky Permana, Areif Karnardi Tjong and Hendra Herjadi Widjonarko were statements which the applicant knew to be misleading or inaccurate.
33. The respondent contends that the applicant, as a director of Ezy Storage Pty Ltd, must have known that none of his clients were actively participating in the day-to-day management of Ezy Storage Pty Ltd at a senior level.
34. The respondent contends that the statements made by the applicant in respect of these clients were made in an attempt to convince the Department that his clients were satisfying the requirements of section 134 of the Act. The respondent further contends that the applicant knew that these statements were misleading or inaccurate.”
Clause 5.2
23. The respondent’s position was summarised as follows:
“35. The respondent was satisfied, after inspection the applicant’s files, that there was no evidence of any contracts between the applicant and his clients, no evidence that the applicant had obtained written acceptance from his clients of the work to be done and no evidence that the applicant had given his clients written confirmation of the terms of the service to be rendered.
36. The applicant has conceded that the client files he provided “do no, for the most part, contain copies of evidence of the writing contemplated by Clause 5.2”.
37. The respondent therefore contends that the breach of Clause 5.2 has been made out.”
24. The applicant’s position was summarised as follows:
“56. The applicant acknowledges that the files obtained by the MARA do not, for the most part, contain the copies of evidence of the writing contemplated by Clause 5.2.
57. It is contended that this is because for the most part, the applicant’s services were provided free of charge to the majority of those who were invested in Ezy Storage and RealSun or to whom the applicant had a personal/business relationship.
58. The applicant acknowledges that this arrangement should have in any event been recorded in writing as even in those cases where no fees were charged, there would have been a reimbursement of disbursements to the applicant.
59. In the case of Ms Chee, reference is made to page 2482 of the T documents being a letter from Mr Koh to Ms Chee advising her of the cost of Pilkington & associates attending to the 24 month survey. The letter asks for Ms Chee’s signature as confirmation of acceptance of the terms of the contract.
60. Page 2474 of the T Documents appears to contain Ms Chee’s signature.
61. We also refer to the client agreement between Pilkington & Associates and Mr Tion Poh Hock as previously mentioned.”
Clause 11.4
25. The respondent’s position was summarised as follows.
“63. The applicant had two websites available on the internet, ausimmigration.com.au and goodland.com.au, neither of which had links to the Code of Conduct.
64. The applicant contends in his Statement of Facts and Contentions that the reasons ausimmigration.com.au failed to have a link to the Code of Conduct is because he ceased using the website prior to the introduction of Clause 11.4 and forgot the website existed. The respondent contends that forgetfulness is not a reasonable excuse in all the circumstances.
65. In relation to goodland.com.au the applicant has contended that the webpage was unrelated to the applicant’s migration practice and the applicant was not bound to provide a link to the Code of Conduct.
66. The respondent contends that it is clear that the applicant’s migration and property business interest were interlinked and that many of the clients to whom the applicant provided migration assistance were also involved in property development projects in which Goodland Properties acted as project manager.
67. The respondent has contended above that this represented a conflict of interest on the part of the applicant and that the applicant was also in breach of the code of Conduct by not advising client of the conflict of interest.
68. The requirement to include a link to the Code of Conduct on websites operated by migration agents is to ensure that clients of migration agents are aware of the Code of Conduct. A link to the Code of Conduct of goodland.com.au would have provided an opportunity for the applicant’s client to be aware that the conflict of interest was impermissible.
69. The respondent contends that the applicant clearly breached clause 11.4 of the Code of Conduct.”
26. The applicant’s position was summarised as follows:
“63. The applicant acknowledges that he did set up a website by the name of ausimmigration.com.au. He contends that it was set up prior to the existence of the Code of Conduct requirements to have a link to the Code of Conduct.
64. Furthermore, before the existence of Clause 11.4 of the Code of Conduct the applicant ceased to make use of the website and did not make further amendments to the web page.
65. He took no steps to keep the web page hosted on the world wide web and as a result he forgot of its existence. The webpage continued to remain on the internet after the introduction of clause 11.4. No link to the Code of Conduct was created.
66. The web page by the name of goodland.com.au was owned and operated by the applicant’s company Goodland Properties Pty Ltd.
67. The web page was unrelated to the applicant’s migration practice, but rather was used by Goodland Properties to advertise its property development and construction business.
68. It is submitted that as Goodland Properties, the owner of this website, was not an entity related to the provision of migration assistance, it is not bound by the Code of Conduct to provide a link to the Code of Conduct.”
Clause 2.23
27. The respondent alleged that clause 2.23 had been breached by the applicant by reason of the matters set forth above with respect to the alleged breaches of the clauses of the Code of Conduct previously referred to.
28. The applicant’s position was summarised as follows.
“70. MARA have alleged that the applicant has breached Clause 2.23 based on the allegations that the applicant breached other elements of the Code of Conduct.
71. It is the applicant’s contention that he has taken all reasonable steps through out his 17 year career in the Migration Advise Industry to maintain its reputation and integrity. It is noted that:
(a)The applicant has worked for over 17 years in the migration industry, successfully assisting many individuals with migration related matters and has never been the subject of any prior complaint;
(b)That the complaints which have arisen in this matter do not arise from a complaint made by any client;
(c)The applicant was active in trying to improve the quality of the profession, acting for a period of time on executive on the Migration Institute of Australia (“MIA”) and also being involved in various advisory groups that worked with DIMAI to improve the industry.
(d)For his service to the industry, the MIA awarded the applicant the title of Fellow for the MIA, the highest level of membership awarded by the MIA; and
(e)The applicant is regarded by others in the migration industry to be a person of integrity and strong moral character.
72. The applicant does acknowledge that there is not written evidence in the files obtained by the MATA which show that clients were made aware of the Code of Conduct. The applicant does however contend that a copy of the Code of Conduct was always on display in his office and one was always available to a client should a client have requested to view a copy.”
The Applicant’s Evidence
29. The applicant “set up an accredited business migration agency” in 1988. At that time there was no system as exists today to become a registered migration agent. However, one could become an accredited business migration agent and give advice on business migration matters, accreditation being provided by the Department of Immigration.
30. In about 1989 the applicant together with a “small group of other accredited migration agents in Perth which included a local migration agent by the name of Allan Hodder created the Migration Institute of Australia (MIA) in Western Australia” which “organisation had as its primary objective the introduction of professional standards by way of a Code of Conduct plus an ongoing professional education programmed for its members”.
31. The applicant was elected Sate President of the Migration Institute of Australia (WA) in 1992 and served on the national executive of that organisation.
32. He was subsequently made a Fellow of the Migration Institute of Australia for the work he did and contribution he made to improving professional standards within in the immigration advice industry.
33. Over the period of his involvement with that organisation the applicant also contributed in the form of professional and educational input.
34. In the 17 years that he has practised in the profession prior to the subject of these proceedings (in 2005) “not one complaint had been made about the services rendered or my credibility”.
35. Pilkington & Associates Pty Ltd was the entity through which the applicant conducted his migration practice. The company was established in 1998.
36. Goodland Properties Pty Ltd was formed in or about May 1998, with the three shareholders and directors in the beginning being the applicant, his “business partner” Eddie Wijona and Yohanes Sucipo. Mr Sucipo ceased to be a shareholder and director in 2000.
37. Messrs Wijona and Sucipo were of Indonesian/Malaysian origin, had migrated to Australia and had a number of contacts in Indonesia and Malaysia. They saw a demand from that market to set up business projects in Australia.
38. Goodland Properties was set up to manage project companies which were created for the purposes of undertaking specific projects, most of which were invested in by overseas investors.
39. The individual project companies were ordinarily structured so that persons who invested in them, in addition to becoming shareholders, also became directors. The applicant said the purpose of this “was to give each investor the security of knowing they had control over the company and their investment. The level of involvement of each investor was entirely up to the investor”.
40. The applicant said that “for the most part, the investors would normally leave it up to the management team to make most of the decisions, but in some cases the investors would, as was their right, take an active interest in or participate in the strategic management of the businesses”
41. Goodland Properties derived a financial benefit through the management agreements between the project companies and itself.
42. The applicant said that Goodland Migration Services was set up in 1998 to provide migration services in Indonesia to Indonesian clients. He said that Messrs Wijona and Sucipo provided the “working capital in Indonesia” and that he provided the migration advice to all clients they brought in. Goodland Migration Services continued operating until 2005.
43. As for Ezy Storage Pty Ltd, the applicant said it was incorporated in 2000 by Mr Wijono and himself, to give effect to their recognition that there existed a business opportunity to establish storage facilities close to Perth airport. The applicant said that, because of his involvement in the migration industry, he “also appreciated that the business had the potential to offer business visa holders a legitimate entity to be involved in to meet the requirements of their visa”. He said that as such “Eddie and I set it up in such a manner that it would allow the investors to also be involved as directors so that they could be actively involved in the development and overall management of the business. The intention was to grow the business… It was decided that the investors who were to be involved needed to have a high level of business skills. The aim was to try and get as many directors with as many varied skill sets as possible”
44. Two Information Memoranda were prepared for the project. The applicant said: “the first one would have come into existence before October 2000. This was for the initial investors. The second was prepared in October 2001 for those investors who became involved after that date”.
45. The applicant said that everyone who showed an interest in the project was provided with a copy of an Information Memorandum.
46. As to the activity of investors, the applicant’s evidence was “nearly all of the investors, when they first became involved, advised Eddie and I that it was their intention to become actively involved in the businesses directly. Most indicated that they were planning on spending more time in Australia to take advantage of the favourable economic conditions and uncertain political times in Indonesia. Generally over time, however, many of the investors did not live up to their stated intention. The political and economic position in Indonesia and South-East Asia improved and it appears that as a result their initial enthusiasm often waned. Some of the investors did however become involved in a meaningful manner and contributed to the development and operation of the business”.
47. The applicant said that because of the lack of investor input, Mr Wijono and he ended up having to “invest a lot more of our time into the businesses than was the original intention. The result of the lack of assistance has been that the company has never achieved its full potential. Had the company developed as had been originally intended, and had all of the investors contributed as planned, I believe that the business would have been much more successful, developed a lot quicker and expanded further”.
48. The applicant said that RealSun Pty Ltd was established in October 2002 by Goodland Properties Pty Ltd as a project company, with the particular project to be the development of a site in Wanneroo.
49. Again, an Information Memorandum was provided to all investors prior to their investment in the company.
50. The applicant said the project had been “very successful” and “those people who invested had made about 62% return on their money”.
51. The applicant then gave evidence with respect to each of the clients the subject of the reviewable decision.
52. With respect to Fong King Fun, the applicant was first introduced to Mr Fong in 1992. The applicant assisted Mr Fong to obtain a 127 Business Owner visa in December 1992.
53. Between 1992 and 2000 the applicant was regularly involved with Mr Fong, assisting him and his family with a variety of matters relating to their migration to Australia.
54. The applicant and his family became friends with Mr Fong and his family and Mr Fong would often talk to the applicant about various investment opportunities.
55. During 2000, Mr Fong and the applicant discussed Mr Fong’s need to apply for a resident return visa, during which discussions “it became apparent that he may be unsuccessful in his application as he had not spent enough time in Australia and his previous business activities did not appear to amount to enough to satisfy the requirements of a new resident return visa”.
56. The applicant said that, accordingly, Mr Fong was looking for an additional business investment and that “because of our longstanding relationship” the applicant gave him an Ezy Storage Information Memorandum, as a result of which Mr Fong invested $55,000 in Ezy Storage.
57. The applicant said that Mr Fong “was at all times aware of my involvement in Ezy Storage” and that he had advised Mr Fong that if his investment in Ezy Storage was going to be used for the purposes of being the basis for his resident return visa, then he would need to ensure that he was actively involved in the company.
58. The applicant said that Mr Fong advised him that he had the intention of spending more time in Australia and therefore he would be able to be of assistance in setting up and developing the business. Accordingly, in April 2001, when the applicant assisted Mr Fong in making a resident return visa application, in the applicant’s submissions with respect to the application to DIMIA “based on the representations made to me by Mr Fong, I submitted that he would become involved in the business”.
59. The applicant did not charge Mr Fong for his assistance in preparing the resident return visa application and Mr Fong continues to remain a shareholder and director of Ezy Storage.
60. With respect to Arief Karnadi Tjong, the applicant said he was introduced to Mr Karnadi in June 2000 through Mr Wijono. Mr Karnadi was seeking assistance concerning the lodgement of a 24 month survey, having been advised by DIMIA that he was required to provide additional information about his investment involvement in an Australian business. The applicant said that he made it clear to Mr Karnadi that he had obligations under his subclass 127 visa that he had to comply with in order to keep his visa, one of which was that he must own an interest and be involved in an eligible Australian business.
61. The applicant said Mr Karnadi advised him he had discussed business opportunities with Mr Wijono in which Mr Wijono told him about Ezy Storage Pty Ltd. He said that Mr Wijono had told the applicant that Mr Karnadi had been given a copy of the Ezy Storage Information Memorandum.
62. In 2001 Mr Karnadi invested $110,000 in acquiring an interest in Ezy Storage Pty Ltd. When doing so the applicant said that Mr Karnadi “led me to believe that it was his intention to become involved in the operations of the business. He advised me that because of all the trouble in Indonesia at that time that he was planning to come and live with his family in Perth”.
63. The applicant said that, based on what he had been told by Mr Karnadi, he made submissions to DIMIA as part of Mr Karnadi’s 24 month survey and in relation to a Notice of Intention to Cancel Mr Karnadi’s visa that Mr Karnadi had an intention to be involved in Ezy Storage Pty Ltd once it was up and running.
64. With respect to Lucas Bong, the applicant said that he assisted Mr Bong in September 2000 in an application for a subclass 457 visa. Mr Bong applied for his visa on the basis that he planned to set up a business in Australia using a business concept from the United States. Mr Bong was granted his subclass 457 visa in May 2001, after which the applicant did no further migration work for him.
65. In January 2001, Mr Bong emailed the applicant enquiring whether he knew of any business projects that might be of interest to Mr Bong. The applicant informed him about the Ezy Storage project, but also said that he was fully funded at that stage.
66. Mr Bong continued to make enquiries of the applicant about available business opportunities, until in or about August 2001, when the applicant informed Mr Bong that the Ezy Storage project required additional investors and that, accordingly, if Mr Bong was interested, there was now an opportunity for him to invest.
67. The applicant provided Mr Bong with a copy of the Information Memorandum. Mr Bong invested $55,000 into Ezy Storage Pty Ltd in March 2002 and became a director. He maintained his investment in Ezy Storage Pty Ltd until about November 2003, when another shareholder acquired his interest.
68. With respect to Rudy Djaja, the applicant said Mr Djaja was introduced to him by Mr Wijono.
69. The applicant was informed by Mr Wijono that he had provided Mr Djaja a copy of the Ezy Storage Information Memorandum.
70. Mr Djaja invested $55,000 into Ezy Storage Pty Ltd between October 2000 and August 2001.
71. The applicant said that when Mr Djaja first invested in the company, the applicant advised him that if he intended to use the investment for the purpose of his business visa, he had to play an active role in the business. The applicant said that Mr Djaja told him that it was Mr Djaja’s intention “to be involved in strategic marketing aspects of the company”. He also advised the applicant that it was his intention to move permanently to Australia which would allow him to give time to the company.
72. The applicant said that Mr Djaja did become involved in the operations of the company “and took responsibility for the marketing performance of the company. He was also involved in a feasibility study with regards to expanding the company’s facility by more than double in the second phase of expansion”. The applicant said that, based on Mr Djaja’s expressed intentions and actual activities, he made representations on behalf of Mr Djaja to DIMIA in regard to Mr Djaja’s 24 month survey and replied to the Department’s Notice of Intention to Cancel Mr Djaja’s visa.
73. The applicant said he did not charge Mr Djaja for the 24 month survey, but did charge him for dealing with the Notice of Intention to Cancel.
74. With respect to Johannes Alexander Iwan Gunadirdja, the applicant said Mr Gunadirdja originally applied for a subclass 127 visa in early 1999. The applicant acted for him. Mr Gunadirdja was granted his visa in October 1999.
75. Mr Gunadirdja was an “acquaintance” of Mr Wijono who, said the applicant, informed Mr Gunadirdja of Ezy Storage Pty Ltd and provided to him an Information Memorandum.
76. Between October 2000 and August 2001, Mr Gunadirdja invested $110,000 in Ezy Storage Pty Ltd.
77. The applicant said that, given Mr Gunadirdja’s background was in telecommunications “he was involved in the procurement and installation of the Ezy Storage facility security and telecommunications systems as this was his area of knowledge”. The applicant said that, based on Mr Gunadirdja’s involvement in Ezy Storage, he made submissions on his behalf in respect of his 24 and 26 month surveys, for which he did not charge.
78. With respect to Glen Hendra Gunadirdja, the applicant said Mr Gunadirdja was the brother of Johannes Gunadirdja. He said that Mr Gunadirdja applied for and was granted a sub class 128 visa in or about April 1999, having been assisted in the application by Goodland Migration Services.
79. The applicant said that Mr Gunadirdja was a Senior Executive at “quite a big property development company in Jakarta”, knew Mr Wijona and came into the offices of Goodland Properties when he was in Australia.
80. As with his brother, Mr Gunadirdja became interested in the Ezy Storage project after discussing it with Mr Wijona who had provided Mr Gunadirdja with a copy of the Ezy Storage Information Memorandum.
81. Between October 2000 and August 2001, Mr Gunadirdja invested $410,000.00 into Ezy Storage.
82. Before and at that time, Mr Gunadirdja expressed an “intention to myself and Eddie that he wanted to be involved in the operations of the business. He did on occasions when he was in Perth at our office state that he intended residing in Perth on a more permanent basis and that he would bring his expertise to the business. At the time his children were living in Perth and he said he wanted to spend more time with them”.
83. The applicant said that Mr Gunadirdja was involved in Ezy Storage during the construction phase “being responsible for the supervision of the project’s design and the selection of the building contractor” and that once construction was complete he took on the position of “Executive Director – Facitities Management”, this making him the director responsible for overseeing maintenance of the project facilities, compliance with the property lease and involvement in planning for the expansion of the project. He said that over the life of the project Mr Gunadirdja had also became involved in the overall strategic planning of the growth of the company. A particular focus of his involvement was the company’s plan to acquire “the Ezy Move transport operation”.
84. The applicant made representations to the Department on behalf of Mr Gunadirdja in respect of his 24 and 36 month surveys, a service for which the applicant did not charge “because of his involvement in Ezy Storage”.
85. With respect to Hendra Kusuma, the applicant said Mr Kusuma was introduced to him by Mr Sucipo. Mr Kusuma expressed interest in investing in Ezy Storage Pty Ltd close to the time when his 24 month survey was due, as he had been unable to find a suitable business investment to meet his visa requirements.
86. The applicant said that Mr Kusuma “made enquiries and spent some time investigating Ezy Storage … he was also taken to the site of the business and I am aware that he performed his own due diligence”.
87. The applicant said that he provided Mr Kusuma with a copy of the Ezy Storage Information Memorandum and that Mr Kusuma invested $55,000 in Ezy Storage between October 2000 and October 2001.
88. The applicant assisted Mr Kusuma with his 24 and 36 month surveys, for which he did not charge.
89. Mr Kusuma sold his shares in Ezy Storage Pty Ltd to Mr Widjornarko in January 2003.
90. With respect to Yew Nien Nee Hau Leong Fah, the applicant said that Ms Yew and her husband initially arrived in Australia under a 127 Business Skills visa. The applicant had acted for them in regard to the original application.
91. Ms Yew’s husband passed away in March 2002 and her 24 month survey coincided close to the time of her husband’s death.
92. The applicant said that in late 2001 Ms Yew enquired if the applicant had any projects she could become involved in for the purpose of meeting the requirements of the visa. He informed her of the Ezy Storage project and provided her with an Information Memorandum.
93. Ms Yew invested $55,000 in January 2002 and an additional $55,000 in January 2003.
94. The applicant said “it was my impression that Ms Yew was a very active and astute business woman who was quite interested in becoming involved with the operations of Ezy Storage. During 2003 Ms Yew spent time at the business premises familiarising herself with the operations of the project and becoming more involved in the actual administration of the project”.
95. The applicant said that over time Ms Yew became involved in other matters so that her involvement with Ezy Storage eventually declined (although she continued to be a shareholder and director).
96. The applicant assisted Ms Yew with her 24 month survey and her reply to the Department’s Notice of Intention to Cancel her visa but he did this without fee “because of her involvement in Ezy Storage and the fact that I had prepared her original visa application”.
97. With respect to Linda Majuki the applicant said Ms Majuki was in Australia pursuant to a subclass 127 visa. She was introduced to the applicant and Mr Wijono “by other clients of Goodland Properties Pty Ltd who were aware of the proposed Ezy Storage project”. Ms Majuki expressed an interest in investing in the project. She was provided with an Information Memorandum and she spent time considering the investment. She also attended at the building site.
98. Between October 2000 and July 2001 Ms Majuki invested $55,000 in Ezy Storage and became a director.
99. At the time of her initial investment she indicated to the applicant and Mr Wijono that she was keen to become involved in the day to day activities of the business. She had stated that in addition to her duties as director of the company “she also wanted to take on the responsibility of the projects office”.
100. In April 2001 Ms Majuki had become involved in another business operation with some of her family. In due course she decided to devote most of her efforts to that business, although she did “continue to remain a director and shareholder of Ezy Storage and maintained an interest in the activities of the business”.
101. The applicant acted for Ms Majuki in regard to her 24 and 36 month surveys, but did not charge for those services.
102. With respect to Diki Permana, the applicant said that Mr Permana was in Australia pursuant to a subclass 127 visa and learned of the Ezy Storage project. The applicant said “Mr Permana was interested in Ezy Storage from the point of view of being a business which would help him through his 24 month survey process”.
103. The applicant gave Mr Permana an Information Memorandum and Mr Permana invested $110,000 in May 2002. Thereafter, according to the applicant “he made a concerted effort to become involved in the activities of the business. He was involved in regular consultations with Eddie and myself and attended a number of meetings. He also assisted in the plans for Ezy Storage to take over another company, Ezy Move. That plan eventually fell through”.
104. The applicant assisted Mr Permana to respond to a Notice of Intention to Cancel his visa and provided evidence on behalf of Mr Permana in his proceedings before the Administrative Appeals Tribunal. He charged Mr Permana as he had not acted for him in regard to his initial visa application.
105. With respect to Wibowo Tausan Satyawardjaja, the applicant said Mr Satyawardjaja was in Australia pursuant to a subclass 128 visa and approached the applicant at the time of his 24 months survey, seeking assistance in becoming involved “in an appropriate entity”. The applicant understood Mr Satyawardjaja to have known Mr Wijona from when he was living in Indonesia. He understood that Mr Wijona had provided to Mr Satyawardjaja a copy of the Ezy Storage Information Memorandum and provided him information with respect to the project.
106. Mr Satyawardjaja invested $55,000 in August 2001 and a further $55,000 in May 2003.
107. The applicant said that “at the time of his original investment, Mr Satyawardjaja indicated to me that he planned to be actively involved in Ezy Storage at a senior level. On or about late 2003 he indicated that he was keen to be involved in the feasibility study with regard to the expansion of Ezy Storage. During 2003 he did in fact participate in this process”.
108. The applicant said that “based on his intentions and his actions” he made representations to DIMIA in respect of Mr Satyawardjaja’s 24 month survey and replied to a Notice of Intention to Cancel Mr Satyawardjaja’s visa.
109. With respect to Hendra Herjadi Widjonarko, the applicant said Mr Widjonarko was in Australia pursuant to a 128 Senior Executive visa when he “became interested in Ezy Storage after speaking to Eddie Wijono about viable business options that would allow him to satisfy the requirements of his visa”. He said that Mr Wijono had informed the applicant that he had given Mr Widjonarko a copy of the Ezy Storage Information Memorandum.
110. Mr Widjonarko invested $55,000 in Ezy Storage between October 2000 and July 2001 and a further $55,000 in about January 2003.
111. The applicant said “like many of the other investors, Mr Widjonarko initially showed a strong interest in being involved in the company. Though his initial enthusiasm did wane he was involved in matters such as the feasibility study of the expansion of the project whilst also providing executive guidance on the financial operations of the company”.
112. The applicant said that “based on his intended and actual involvement in Ezy Storage” he made submissions to DIMIA in respect of Mr Widjonarko’s 24 month and 36 month surveys and DIMIA’S Notice of Intention to Cancel Mr Widjonarko’s visa.
113. With respect to Tio Poh Hok, the applicant said Mr Hok was granted a subclass 128 visa in November 2000. He approached the applicant about possible businesses he could become involved in. He said he was interested in being involved in property development. Accordingly, the applicant informed him about the RealSun project and provided to him “the necessary information about the project including an Information Memorandum”.
114. Mr Hok invested $100,000 in December 2002 and became a director of RealSun.
115. With respect to Shui Khyan Chee, the applicant said that he completed the initial subclass 127 visa application for Ms Chee in February 2000, having been introduced to her by Mr Kevin Koh who subsequently became a registered migration agent and took over the conduct of the matter.
116. The applicant said that at around the time of Ms Chee’s 24 month survey in 2002, Mr Koh informed the applicant that Ms Chee had not been able to find any suitable business in Australia and that she was interested in investing into a property project.
117. The applicant informed Mr Koh about the RealSun project (which was then being set up) and understood that Mr Koh subsequently discussed the matter with Ms Chee and her husband. Ms Chee and her husband subsequently invested $100,000 in RealSun.
118. The applicant assisted Ms Chee with her 24 and 36 month surveys, and a Notice of Intention to Cancel her visa. The applicant said “at all times Mr Koh dealt with Ms Chee though I did sign off on some of the work performed”.
119. With respect to Suharjono Sutanto, the applicant said Mr Sutanto was granted a subclass 127 visa in February 2001 and established a company called Star World Enterprises Pty Ltd for the purposes of meeting his visa requirements. The applicant said that in discussions with himself and Mr Wijono, Mr Sutanto “expressed an interest in diversifying his business investments in Australia. In particular he wanted to become involved in property development”.
120. At that time the applicant said that “Goodland Properties was in the process of planning the property development project to be run by Kingscourt Holdings Pty Ltd.” He said that Mr Sutanto obtained a copy of the Information Memorandum and invested through Star World Enterprises in the project. He said Mr Sutanto was “active in his involvement with his project. He often attended and participated in the meetings with shareholders of the project”.
121. The applicant acted for Mr Sutanto in regard to his 24 month survey and a reply to a Notice of Intention to Cancel his visa.
122. In regard to the reviewable decision generally, as part of his evidence, the applicant made the following “general comments”:
“Alleged Breaches of Clause 2.2
As I have stated above, all those who invested in entities in which I was involved were always provided with a copy of the relevant Information Memorandum at or close to the time that they made their enquiry about the investment.
Normally I was not the one who would discuss business investments with the individual concerned. A number of those who invested were associates of Eddy Wijono, and as such, all business/investment discussions were usually done by him. I would in turn provide the necessary migration assistance.
For those whom I spoke to about the investment opportunities, I recall that I always provided them with a copy of the Information memorandums.
Alleged Breaches of Clause 2.1A and 2.1B
I did not accept any of the above mentioned persons as clients after the date those clauses came into effect. These persons were already clients.
It was not apparent to me that I had a conflict of interest mentioned in Clause 2.1A of the Code of Conduct as none of these clients were accepted as clients after 1 March 2003, which is the date Clauses 2.1A and 2.1B came into existence.
If I have misinterpreted what I regard as the clear meaning of those clauses and it is found that these clauses are breached (which is denied) then I sincerely regret such breaches.
Alleged breach of Clause 2.8(a) and Clause 5.2
I acknowledge that most of the client files provided to the MARA do not contain written confirmation or acceptance required by these clauses.
For the most part, the files which were provided to the MARA were the files that I had available in the office at that time. These files invariably were for the client’s 24 month and 36 month surveys. Most of the files did not relate to the applicant’s original visa application. I have been searching to see if there are any other records but have not located any.
The normal practice in my office was the client would enter into a consultancy agreement only for the original visa application. Any additional work performed after that, such as 24 month surveys, no further agreement would be entered into. This was so especially if those were done at no cost.
In many cases if I developed a strong personal or business relationship with the individual that arose as a result of interactions I had with the client after the original visa application, I normally did not charge the client for the additional work.
The T Documents show at page 2482 that a letter was sent from Mr Koh to Ms Chee advising her of the cost of Pilkington & Associates attending to the 24 month survey. The letter asks for Ms Chee’s signature as confirmation of acceptance of the terms of the contract.
T Document 2847 is a copy of the returned letter with Ms Chee’s signature.
My review of the client files also shows that there did exist a client agreement between Pilkington & Associates and Mr Tio Poh Hock. The contract was entered into on 14 April 1999 for an application to be made for a Business Skills Visa. See Annexure A being a copy of the agreement.
Alleged breach of Clause 2.9
The MARA have contended that I never intended for the directors of Ezy Storage to in any way have a meaningful opportunity to be involved in the senior management of the company and therefore all the statements made about “active” involvement were misleading.
This contention is incorrect. Ezy Storage was set up in a way that would make all shareholders directors. This was to provide them the opportunity to “have an active input into the business of Ezy Storage Pty Ltd” (I refer to the 6th paragraph of the last page of the Information Memorandum “as at October 5th 2001”). All directors had this opportunity and the power through their shareholding to impact directly on the direction and control of the company. The extent to which they did was dependent upon each investor.
It was always intended that their involvement in Ezy Storage may (not would) assist with their visa requirements. As far as I was aware, if the investment was in an eligible business and their involvement was sufficient, then they may have been able to satisfy their migration requirements. Even if they did not, the investment may (as has been the case in real Sun) have proved financially beneficial.
To my knowledge, most of the investors have continued their involvement in Ezy Storage as an investment.
With regards to what the directors did or proposed to do in the role as director, I at all time believed that the statements I was making on their behalf were correct.
I also believed by stating that a director was playing an “active” role as a director by contributing to strategic planning and discussions that this was not misleading in any way.
I did not state that a director was doing (or did) something that he or she had in fact not done.
Alleged breach of Clause 11.4
I set up the web page ausimmigration.com.au during the very early stages of the internet and prior to the existence of the Code of Conduct requirements to have a link to the Code of Conduct.
Over time I found the web page to be of very little assistance and so I ceased to spend time and money maintaining it.
Though I understand the requirements of the Code of Conduct that a link be placed on the sites, from my recollection I did not make use of or make changes to the website since the introduction of that specific requirement.
I acknowledge that it was a breach to not have link on the website and that I should have had the website taken down. I regret not having done so and apologise for this.
The web page by the name of goodland.com.au was at all times owned and operated by Goodland Properties Pty Ltd. This webpage was unrelated to my migration practice.
The web page was and is used by Goodland Properties to advertise its property development and constructions practice.
As it is unrelated to my migration practice I do not believe that it requires a link to the Code of Conduct to be displayed.
Additional Comments
The MARA have contended that I am not a person of integrity or fit and proper to give migration assistance.
Whilst I acknowledge that I have breached elements of the Code of Conduct, I dispute the finding as to my integrity and my being not fit and proper.
I do believe that I have always acted honestly and with integrity and I have at all times tried to act in the best interest of the client. I point out that none of the clients that were involved with me in the previously mentioned business have in any way suffered a financial loss as a result of their investments. Nor has any client over my 17 years of practice ever complained about the services rendered, my integrity or whether I was a fit and proper person.
Many of the clients in question are still known to me and I have a personal relationship with a number of them.
I would ask that the Tribunal also take into consideration the fact that I have for a period of 17 years worked in the migration industry and at no time have I ever had a complaint made against me by a client.
I was also active in trying to improve the quality of the profession acting for a period time on executive on the Migration Institute of Australia (“MIA”) and I was also involved in various advisory groups that worked with DIMIA to improve the industry.
For my service to the industry, the MIA awarded me the title of Fellow of the MIA, the highest level of membership awarded by the MIA.
Because of my other business activities I have retired from working as a migration agent and I do not intend to recommence acting in such a capacity.”
123. The applicant’s evidence in chief was also to be found in a supplementary witness statement, which the applicant confirmed as true, in which the applicant said, amongst other things:
·“I reiterate what I have said in my first statement namely that in the 17 years that I had practiced in this profession (from 1988 to 2005) not one complaint had been made about the services rendered or my credibility.”
·“The complaints, the subject of these proceedings in the Administrative Appeals Tribunal are the first and only complaints made.”
·“In those instances where migration clients invested in any of the business ventures in which I was they were at all times aware of my involvement and that I would derive a profit.”
·“To my knowledge not one of those persons who invested in any of the business ventures in which I was involved and from which I derived a benefit were in any way prejudiced by virtue of such dealings.”
·“No advantage of any nature was ever taken of the migration clients who invested in one of my business projects.”
124. The applicant’s evidence in chief was also supplemented orally as a result of questions put to him by his Counsel and the Tribunal.
125. In cross examination, the applicant disavowed any suggestion that, if he be found to have contravened the Code, it was as a result of inexperience or a lack of awareness of the Code on his part. The applicant acknowledged that the website ausimmigration.com was referred to on his letterhead and invoices. When asked whether he was aware that the website should have provided a link to the Code of Conduct, the applicant said:
“Yes, I - well, I am now, yes. To be honest with you, it wasn't something that I - as I said, that I took much notice of or was really involved with as far as the business was concerned. I was probably told that it should have links to the code of conduct at some time, but it was not something that I ever sort of knew how to actually do or prepare. So whilst I regret it, it was just sort of a minor part of my business that got very little of my attention, and that was an oversight for which I'm very regretful, to be honest. “
126. It was put to the applicant “that there weren’t specific roles set out for these people, you weren’t looking for a marketing director, or a security director specifically, were you?” To which the applicant said:
“No, that’s fair to say. No, we weren’t specifically looking for those people, but when they came we could see where they could fit in and could help us”.
127. The applicant said that Ezy Storage was not established for the purpose of creating a venture in which persons seeking to immigrate could invest, but rather it was “set up first and foremost as a business that we believed was a sound business”.
128. As to the investment levels, the applicant said and this was a follows:
“Yes, there was two elements to that. One was we had costed out the original business construction and set up and working capital, so we knew approximately that we needed about $1.1 million. We felt that a figure of about $110,000 was a fair and reasonable figure to put before people, given that most of these people were taking their first or second step into a business activity in Australia, but we also realised that some of those people might not wish to put in $110,000 so we made another tranche of $55,000, so they had a choice of both, either a $55,000 tranche, or $110,000 tranche. But, it wasn't really turned to the fact that the definition of a substantial business was $100,000, because at that point of time that definition hadn't been promulgated by the Department, as far as I'm aware.”
129. The applicant confirmed that every shareholder was made a director, irrespective of whether they invested $55,000 or $110,000.
130. When it was put to the applicant that the investors were made directors even though they may not have actually been involved in the management of the businesses, the applicant said:
“Well, Mr Gerrard, as I've sort of said in my statement, it was always our belief, from firstly discussing this at some length with these people and making it clear that they were committed to - have to commit themselves to becoming involved in the business, that these people had a genuine intention to do so, so it wasn't a matter of them sort of taking that position as a director, just thinking that that would be sufficient, they were also made to understand clearly that not only as becoming directors, but they needed to do more than just sit there as a passive director, that it was expected that they - by the Immigration Department, that they would become involved in the business and we also expected that they would become involved in the business and they were the representations that were made to them and they always responded to me in the positive that they would, for various reasons. A number of those reasons related to the fact that these people saw themselves as having more of a future in Australia, than they did in Indonesia, as a result of the trouble.”
131. When asked whether he saw providing migration advice to someone with whom was he was involved in a significant business constituted a conflict of interest the applicant said as follows:
“I didn't ever perceive this to be a conflict of interest, because I knew that everything that I had done was completely transparent. My understanding of a conflict of interest, and, please, you know, it's just my understanding, was a conflict of interest where one is deliberately trying to set something up, whether it be by business or behaviour or whatever, where one person is not aware of what you are doing and where it might to some extent jeopardise either an investment or some other form of their life involvement. I always made absolutely sure that my professional behaviour towards these people was as transparent as it possibly could be. They knew everything about what we were doing and they were working with me to build the business, I believe, in the case of Ezy Storage, and where I could assist them to get over their immigration issues as an immigration - as a migration agent, that that was simply a service that I was providing them, and that the two matters, whilst they may appear to be related to my clients, it was a separate issue altogether. There was the business and then there was the migration, and the - you know, the two - in my daily operation and in the way I managed my practice, there was never ever any conflict.”
132. In answer to a question from the Tribunal, the applicant said that if he told them he was involved in the business activity in which they invested, then as they also knew he was a migration agent, “I could not see any conflict of interest”.
133. The applicant said that he did not see any potential for a conflict of interest by making representations on behalf of clients to the Department where the outcome of those representations may impact on whether or not the clients continue to invest in projects in which the applicant had an interest.
134. As for the connection between Ezy Storage and Goodland Properties, the applicant said that Goodland Properties, a company owned by himself and Mr Wijono, was the appointed manager of the Ezy Storage project, but with no further role to play once the project had been completed and the business became operational.
135. Cross examined as to the role played by the directors in light of Ezy Storage in light of the project management arrangement with Goodland Properties, the applicant said:
“the role of the directors was never to manage. I mean, directors don't normally manage the company or they do in small companies but in this case these people were, as I've explained earlier, people who were both investors and directors and who also brought skills to the business and who did involve themselves in the management of the business in the role of managing the business.
Where were they employing their skills?‑‑‑Well, I thought we'd ‑ ‑ ‑
I'm not saying what skills they have. I'm just saying where are they actually employing them?‑‑‑Well, I spoke to this - I spoke to this matter earlier, Mr Gerrard. The position with each of these people was that as they came on to the board, you know, they took up interests in certain areas of the business's activities and I've defined those, I've explained those earlier. If the person had, say, some specific skill in construction management, which in the case of Mr Glenn Hendra he did, he became involved, you know, looking at our plans, looking at the costings, looking at the methods for construction, providing advice.
But your company was being paid a project management fee for doing that work?‑‑‑Yes but I mean, we were also utilising the skills of the board of directors. I mean, that has always been my understanding of the role of a director, to offer their knowledge.”
136. The applicant was then challenged with respect to his denial that Ezy Storage was primarily established as a vehicle in which persons could invest to satisfy their visa requirements. He was taken to the October 2001 Information Memorandum and his attention taken to the statement that:
“All the shareholders are directors of Ezy Storage Pty Ltd. The principal reason for this is the requirement of investors to demonstrate to the Department of Immigration Australia that they are actively involved in the business. An advantage of this is that all shareholders/investors have an active input into the business of Ezy Storage Pty Ltd”.
137. The questioning of the applicant, and his evidence in response, was as follows:
“So this is a project that is aimed squarely at visa holders, holders of 127 visas who need to establish to the Department ‑ ‑ ‑?‑‑‑No, no, I - I didn't -we didn't set it up for that and once again, I - I spoke to you earlier about that. All the shareholders are directors of Ezy Storage Pty Ltd. As I demonstrated earlier or it was said earlier, it was shown earlier, there were a number of reasons for it, the principal reason was that as directors and shareholders of the company it was - we were able to demonstrate that they had a - an involvement in the business and that - that was important, as was the fact that they had ownership of the business and that they had access to the - to the - all the information relating to the business and that they had the ability to control the business as a group. So all of those issues were - were important but the principal reason, as - as I say there, was that it also demonstrated to the Department of Immigration that this business, which was an eligible business, demonstrated that they had an involvement in that eligible business.
MR PENGLIS: Except you can be a director and not have an active involvement, can't you?‑‑‑You could be, sir, yes, yes.
MR GERRARD: Mr Pilkington, what my question was, and I think you've answered it, but it is aimed at this group of people, that is the reason you've said that the principal reason for them being directors are that they can demonstrate to the Department of Immigration that they are actively involved in the business?‑‑‑Yes.
This is, if you like, your target group or for investors in Ezy Storage, isn't it or why else would you have this paragraph?‑‑‑Well, I think what I was trying to show them there, Mr Gerrard, is that - that as directors of Ezy Storage they would be able to demonstrate to the Department that they had an involvement in the business and that was always a requirement of the ‑ ‑ ‑
But that is only going to be?‑‑‑ ‑ ‑ ‑ of the business .....
So was this document drafted for overseas investors or holders of 127 ‑ ‑ ‑?‑‑‑No, not specifically, no, not specifically.
Because if you showed me this memorandum it wouldn't make any difference to me whether or not ‑ ‑ ‑?‑‑‑No, that's true, that's true.
‑ ‑ ‑ I could demonstrate to the Department of Immigration?‑‑‑That's true but ‑ ‑ ‑
It is only a certain group of people?‑‑‑Yes, but it wasn't - the intention was not that, to just target that particular group of people.
Did you have different information memorandums for other people, other types of people?‑‑‑No, we only wrote - we only prepared the two information memorandums that are - that are in the T documents and which you have access to.
254. I do not accept the submission made on behalf of the respondent that the language of clause 2.1A applies to an existing migration agent/client relationship as at 1 March 2003 given, as I have said, the conduct to which clause 2.1A is addressed is accepting a person as a client.
255. I therefore do not find the applicant has contravened clause 2.1A of the Code.
256. It may have been open for the respondent to have pursued a case against the applicant to the effect that, when he accepted the various persons as clients, he contravened the relevant provision of the Code at the time dealing with conflicts of interest, namely clause 2.1. The respondent did not do so.
257. Clause 2.1B, on the other hand, is not so limited. It may well be that the circumstances giving rise to the conflict of interest became “apparent” prior to the introduction of clause 2.1B, but I find that it has a continuing operation so that it was incumbent upon a migration agent to comply with its terms upon its introduction notwithstanding that the circumstances giving rise to the conflict may have become apparent prior to the introduction of clause 2.1B.
258. I do not accept the submission made on behalf of the applicant that the words “mentioned in Clause 2.1A” impose a temporal limitation on the operation of clause 2.1B by limiting the operation of clause 2.1B to conflicts to which clause 2.1A apply i.e. where after 1 March 2003 a migration agent accepts a person as a client and had any of the conflicts of interest therein stated. Rather, the clear meaning of the words “mentioned in Clause 2.1A” is to refer to the specific conflicts of interests set out in subclauses (a),(b),(c) and (d) of clause 2.lA.
259. Nor do I accept the submission advanced on behalf of the applicant that clause 2.1B is not contravened if the migration agent is not actually aware of the conflict of interest, the submission being that whilst at the time of the hearing the applicant was aware that he had operated in a conflict of interest, he was not aware of that at the time. I do not accept the submission as a matter of law or as a matter of fact.
260. As to the proper interpretation of clause 2.1B, I do not consider it requires actual recognition on behalf of the migration agent that a conflict of interest exists. Importantly, the notion of it becoming “apparent” is not directed solely to the migration agent. To whom it becomes “apparent” is not addressed. The proper construction is that the question of whether or not it becomes “apparent” is one to be determined objectively having regard to what reasonably ought to have been apparent to a reasonable migration agent having regard to all of the facts. It would be an odd result if ignorance could provide an excuse when it comes to the professional obligations of migration agents dealing with conflicts of interest.
261. I find that not only would it have become apparent to a reasonable migration agent acting reasonably that the applicant had a conflict of interest in respect to various of his clients, but that the applicant was well aware of the same. The applicant knew that he had both a direct and indirect financial interest in projects in which clients of his were to and eventually did invest. He knew that he had a duty to give advice to his clients unaffected by any personal interest he may have. He was therefore aware of the existence of conflicting interests. That is all that is needed. The applicant considered there was nothing inappropriate in what he was doing because his interests in the projects were disclosed to the clients. He was wrong. It does not excuse his conduct.
262. I therefore find the applicant contravened clause 2.1B in respect of clients Tjong, Djaja, Gunadirdja, Satyawardjaja, Widjonarko, Hock, Chee and Sutanto.
Clause 2.2
263. I find that with respect to clients Fong, Tjong, Bong, Djaja, the brothers Gunadirdja, Kusuma, Fah, Majuki, Permana, Satyawardjaja, Widjonarko, Hock and Chee that the fact that the applicant had a financial interest in the companies in which his clients were to invest had been disclosed to the clients in the form of the Information Memorandum. That, however, does not end the matter.
264. As was submitted on behalf of the respondent, it is not sufficient for a migration agent to simply provide to the client information from which the client may or may not conclude that the agent may receive a financial benefit from the non- immigration advice given by the agent. What clause 2.2 requires is that the agent must expressly inform the client, in writing, that he or she may receive a financial benefit. The Information Memoranda did not do so.
265. Further, clause 2.2 requires that writing is provided by the agent in his or her capacity as the clients’ agent, and not in some other respect. The Information Memoranda were not prepared or provided by or on behalf of the applicant in his capacity as a registered migration agent.
266. However, I accept the submission advanced on behalf of the applicant that clause 2.2 is only triggered where a migration agent:
(a) has a client;
(b) to whom the agent is giving immigration assistance;
(c) in the course of which the migration agent gives further advice to the client of a non-immigration nature.
267. I therefore accept the submission made on behalf of the applicant that clause 2.2 was not triggered in respect of clients in respect of whom the discussion regarding an investment in one of the projects in which the applicant had a financial interest was not with the applicant, but rather was with Mr Wijono (in the case of the clients Tjong, Djaja, the brothers Gunadirdja, Satyawardjajaj and Widjonarko) or Mr Koh (in the case of Ms Chee).
268. I therefore find that the applicant contravened clause 2.2 of the Code with respect to his clients Fong, Bong, Kusuma, Fah, Majuki, Permana and Hock.
Clauses 2.8(a) and 5.2
269. With the apparent exception of Mr Hock, none of the applicant’s client files obtained by the respondent contained writing in compliance with clause 2.8(a) or clause 5.2 of the Code. As I recently said in Rozsy and Migration Agents Registration Authority [2008] AATA 434 at [324] [325] and [326], there ought not be a finding made against a migration agent that the agent did not comply with clauses 3.2(a) and 5.2 simply because the migration agent does not produce such documents in defence of an assertion by the respondent that such documents were not created. As I said in Rozsy, that would effectively constitute a reversal of the onus of proof.
270. In this case, however, there are two matters which constitute evidence requiring rebuttal. First there is the applicant’s concession that he did not create such documents with respect to the clients for whom he did not act “from inception”. Secondly, there was the evidence of Mr Gunadirdja who doubted that a written agreement with the applicant existed, saying “I just did it based on trust”.
271. I consider that evidence not only sufficient to make findings against the applicant in respect of those clients, but to further infer that, in the absence any other explanation, the explanation as to why such documents are not on the other client files is the same explanation as why the documents are not on the files of the clients in respect of which the applicant has made concessions, as well as Mr Gunadirdja, namely no such documents were in fact created.
272. I am not prepared to accept the applicant’s bald assertion that such documents were created given not only the evidence to which I have just referred, but further given that the applicant was unable to produce such documents when given an opportunity to do so when the matter was adjourned for some weeks and without being able to given any real explanation as to why he could not do so (let alone why they weren’t on the client files in the first place).
273. I therefore find that the applicant did not provide the confirmation required by clause 2.8(a), the receipt of written acceptance as required by clause 5.2(b) or the confirmation required by clause 5.2(c) in respect of the applicant’s clients Fong, Tjong, Bong, Djaja (as to clause 2.8(a) only) the brothers Gunadirdja, Kusuma, Fah, Majuki, Permana, Satyawardjaja, Widjonarko, Sutanto (as to clause 5.2 only), Chandra, Sucipto and Tirtawidjaja.
274. With respect to Ms Chee, tendered into evidence was a letter from Mr Koh on the applicant’s letterhead to Ms Chee dated 22 April 2002 which contained the following “a service fee to assist you to complete your survey form is A$1,500.00 payable immediately. Will charge another A$1,500.00 for the preparation of business proposals to assist you in setting up your business in Perth. Please sign and return the copy of this letter as an indication that you accept our proposed fee and services”.
275. The letter then provides for the signature of Ms Chee. It appears Ms Chee has placed her signature on the letter and returned the copy to the applicant’s office. I consider that letter is sufficient for the purposes of clauses 2.8(a) and 5.2 of the Code. I therefore do not find the applicant contravened either of those clauses with respect to Ms Chee.
Clause 2.9
276. The respondent’s case was that the applicant contravened clause 2.9 with respect to his dealings with the Department for clients Fong, Tjong, Gunadirdja, Majuki, Permana, Satyawardjaja, and Widjonarko.
277. The respondent’s contention was that the applicant made statements to the Department on behalf of those clients “in an attempt to convince the Department that his clients were satisfying the requirements section 134 of the Act” when “the applicant knew that these statements were misleading or inaccurate”.
278. For a migration agent to knowingly make misleading or inaccurate statements to the Department on behalf of the client goes to the core of the agents capacity to properly discharge his or her duties as a registered migration agent. Just as Courts rely on legal practitioners not to knowingly mislead them, so too does the Department rely upon migration agents not to knowingly mislead it. On the face of it, a migration agent who contravenes clause 2.9, given that it includes a mental element of knowledge or belief that the statements are misleading or inaccurate, would not be a person of integrity or a fit and proper person to be a migration agent.
279. It is therefore not surprising that whether or not the applicant was such a person occupied much of the hearing time and of the written submissions provided by the parties. Also, it is for that reason that I have gone to considerable lengths to record the substance of the evidence and submissions in this matter more fully than I generally would.
280. There is no doubt that the applicant was walking a very fine line in this matter. Representations which he was making to the Department on behalf of his clients were in respect of matters in which he had a direct and indirect financial interest. It was in his interests to have people invest in his projects and it was therefore in his interests for those who invested in his projects to obtain, if possible, benefits there from in connection with their visa applications. He therefore put himself in a position in which he ought not to have been.
281. It is against that background that what he wrote to the Department needs to be considered.
282. It is true that many of the representations made by the applicant on behalf of clients did not come to pass. That, however, does not cause them to be misleading or inaccurate. The fact that virtually all of the represented intentions did not come to pass is a matter which is without more capable of giving rise to an inference that, at the time they were made, there was no intention on the part of the clients to do that which was being represented to the Department.
283. However, in this case the relevant former clients of the applicant gave evidence. There was nothing in the evidence which was given that gives rise to any reason not to accept their evidence in its entirety. Of course, given that most of the evidence was by telephone, and in some cases moreover through an interpreter, it was not possible for me to form any views, favourable or adverse, of the witnesses by reference to their demeanour when giving evidence.
284. In those circumstances, I find as fact the matters the subject of the evidence given by the business partner and each of the former clients of the applicant.
285. The evidence of those witnesses substantially fortifies the evidence given by the applicant.
286. Of course, I had the benefit of observing the applicant for some time during the course of his evidence. There was nothing about his demeanour, the manner in which he gave his evidence or the evidence itself which causes me to conclude that he is not, generally speaking, a witness of truth (save for those specific matters which I have already addressed, namely the applicant’s compliance with clauses 2.8(a) and 5.2 of the Code).
287. Having said that, however, I must admit to harbouring reservations about the applicant, largely arising from his evidence that he did not apprehend that what he was doing should have excited the interest of the respondent.
288. Nevertheless, applying the test enunciated by the High Court in Brigenshaw v Brigenshaw (1938) 60 CLR 336, given the gravity of this aspect of the matter, the harbouring of reservations is insufficient to justify an adverse finding against the applicant.
289. I therefore find that the applicant did not make statements which he knew or believed to be misleading or inaccurate. This includes the letter which the applicant sent to the Department on behalf of Mr Permana in respect of which I accept the applicant’s evidence (namely, that whilst inaccurate and potentially misleading, it was not intentionally so).
290. I therefore do not find the applicant to have contravened clause 2.9 of the Code.
Clause 11.4
291. The applicant accepted that the ausimmigration.com.au website should have but did not provide a link to the Code. The contravention of clause 11.4 in regard to that website was thus acknowledged.
292. As for goodland.com.au, I accept the applicant’s submission that this web page was unrelated to the applicant’s migration practice and that the fact he did not provide a link to the Code of Conduct was not a contravention of 11.4 of the Code.
Clause 2.23
293. In Rozsy, I said ”for their to be a contravention of clause 2.23 of the Code where there is no suggestion of a migration agent not being a fit and proper person or a person of integrity, the conduct in question would need to be of such quality and/or such quantity as to elevate the conduct from conduct merely reflecting upon (a) the migration agent’s reputation, to conduct reflecting upon the reputation of the migration advice profession or (b) the migration agent’s integrity, to conduct reflecting upon the integrity of the reputation of the migration advice profession”. [391]
294. I also said “Moreover, it must be held firmly in mind that clause 2.23 does not impose upon a migration agent an absolute duty to maintain the reputation and integrity of the migration advice profession, but rather a duty to ‘take all steps” to do so…”[392]
295. There is nothing in the conduct which I have held to have contravened the Code that render the applicant not a person of integrity or not a fit and proper person to be a migration agent.
296. The question thus becomes whether the conduct I have found to contravene the Code is of such quality and/or quantity as to elevate the conduct from conduct merely reflecting upon the applicant’s reputation, to conduct reflecting upon the reputation of the migration advice profession as a whole.
297. I do not find the contraventions of clauses 2.2, 2.8(a), 5.2 or 11.4 to themselves have such quality. The position with respect clause 2.1B, however, is an entirely different issue.
298. The applicant’s conduct in this regard was extremely serious. He allowed and sometimes encouraged persons to invest in companies in which he had both direct and indirect financial interests without clearly informing them of that interest in writing and indeed continued to act for them in a situation where he had a clear conflict of interest. The nature of that conduct, compounded by the frequency with which it was repeated, is conduct which I find was capable of seriously damaging the reputation of the migration industry. There were obvious and reasonable steps he could have taken to avoid that: namely not to have put himself in a position of conflict. The conduct is therefore conduct in contravention of clause 2.23 of the Code.
299. Even if I had maintained some reservation with respect to whether or not such conduct of itself contravened clause 2.23, when one has further regard to the other conduct which I have held to constitute contraventions of the Code, particularly not providing a link on the ausimmigration.com website to the Code of Conduct so as to allow clients and potential clients to access the Code and inform themselves of its content, the totality of such conduct is both of a quality and quantity as to elevate the conduct from conduct merely reflecting upon the applicant’s reputation, to conduct reflecting upon the reputation of the industry as a whole, and thus in contravention of clause 2.23.
Should the applicant be barred and, if so, for what period?
300. As I stated in Narayanan and Migration Agents Registration Authority [2006] AATA 353, it is well established that the purpose of a power such as that provided in s 311 of the Act is not to punish for wrongdoing, but is to protect the public from wrongdoing: see, for example, the decision of this Tribunal in Donald and Australian Securities and Investments Commission [2001] AATA 66 and the various authorities referred to therein at paragraphs 111 to 115 (inclusive), as well Rich v Australian Securities and Investments Commission [2004] HCA 42.)
301. In Narayanan’s case I accepted and applied a submission to the effect that where a professional person is found to have acted in breach of the duties to a client, the following factors are often considered when determining what sanction should be imposed:
· “The nature of the professional’s breach, particularly whether the professional is acting in good faith during the commission of the breach;
· whether there were any factors that were beyond the professional’s control and could have reasonably contributed to the professional’s breach;
· the professional’s willingness to accept that a breach may have occurred;
· the professional’s efforts to rectify or mitigate the effect of the breach, were possible;
· whether the client sustained any loss as a result of the professional’s breach;
· the professional’s actions, if any, to compensate the client for any loss arising out of the possible breach;
· the professional’s record of prior disciplinary breaches;
· the professional’s community and professional reputation;
· the extent to which any sanction may be harsh, unjust or oppressive in the circumstances taking into account the extent to which such a sanction would affect the professional’s financial earning capacity and livelihood;
· the professional’s co-operation with the disciplinary authority;
· whether a sanction, if any, would deter other professionals from similarly breaching their duties to a client; and
· whether a sanction, if any, will ensure that the public’s confidence in the professional’s industry will be maintained”.
302. The same factors ought to be applied in this matter.
303. Having regard to those factors, I am in no doubt that the public interest requires a barring order to be made against the applicant. Factors which particularly cause me to reach a conclusion are as follows:
·although they do not raise issues of the applicant’s honesty or integrity, the applicant’s contraventions of the Code were numerous and serious;
·none of the matters giving rise to the contraventions were beyond the applicant’s control;
·with limited exceptions, the applicant did not accept that he had contravened the Code;
·other than the evidence of Mr Hodder (which was general in the extreme), no evidence was led to suggest that the conduct evidenced by the findings made against the applicant were inconsistent with the applicant’s general conduct and reputation;
- the making of a barring order ought to deter other migration agents from breaching the Code and also ensure that the public’s confidence in the industry will be to maintain.
304. However, as a consequence of not upholding the respondent’s findings of an alleged contravention of Clause 2.9 of the Code, I accept the applicant’s submission that a period of barring of 5 years cannot be maintained. It is very difficult to see how the maximum period of barring could be imposed upon a person where the evidence does not establish that the person is not one of integrity or otherwise not a fit and proper person.
305. However, having regard to the contraventions I have found to have occurred and the numerous matters to which I have referred in these reasons, I find the public interest requires a period of barring in the upper range to be imposed.
306. In all the circumstances, I have concluded that the appropriate period for which the applicant should be barred is somewhere between one half and two thirds of the maximum 5 years.
307. Accordingly, the reviewable decision is to be set aside, but in lieu thereof a decision made that the applicant be barred for a period of 3 years commencing at the date of the reviewable decision, namely 12 September 2005.
I certify that the 307 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member
Signed: .....(sgd) T Freeman.......
Date of Hearing 26, 27, and 28 March and 1 and 4 May 2007
Date of final Oral Submissions 8 November 2007
Date of Decision 19 September 2008
Counsel for the Applicant Mr M Rothstein
Solicitor for the Applicant M.Rothstein & Co
Counsel for the Respondent Mr A Gerrard
Solicitor for the Respondent Australian Government Solicitor
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