Podger and Migration Agents Registration Authority

Case [2025] ARTA 1148

Podger and Migration Agents Registration Authority [2025] ARTA 1148 (28 July 2025)

Applicant/s:  Tristan Jon Podger

Respondent:  Migration Agents Registration Authority  

Tribunal Number:                2025/3313

Tribunal:Senior Member M Harrowell  

Place:Sydney

Date:28/07/2025  

Decision:The Tribunal affirms the decision under review.

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

Senior Member M Harrowell

Catchwords

Migration Agents – Migration Agents Registration Authority – registration as a migration agent – fit and proper person – breach of Code of Conduct – suspension of registration – period of suspension

Legislation

Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration (Migration Agents Code of Conduct) Regulations 2021

Cases
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 157; [1955] HCA 28
Frugtniet v Australian Securities and Investments Commission [2022] AATA 295
Kishore and Tax Practitioners Board [2017] AATA 271
Kraues v Migration Agents Registration Authority [2016] AATA 1086
Kraues v Office of the Migration Agents Registration Authority and Another [2018] FCA 664; [2018] 158 ALD 493
Mottaghi and Migration Agents Registration Authority [2007] AATA 60
Mukiza and Minister for Home Affairs [2019] AATA 44
Patel v Migration Agents Registration Authority [2018] AATA 4277
Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12
Shi v Migration Agents Registration Authority 235 CLR 286; [2008] HCA 31
Sleiman and Australian Securities Investment Commission [2007] AATA 1383

Ta and Migrations Agents Registration Authority [2023] AATA 500

Statement of Reasons

  1. The Applicant is a migration agent registered under the Migration Act 1958 (Cth) (Act).

  2. On 22 April 2025, pursuant to s 303(1)(b) of the Act, the Respondent decided to suspend the registration of the Applicant for a period of 6 months on certain conditions (Decision). This action was taken in consequence of a complaint received by the Respondent on 21 February 2024 in the circumstances set out below. The Respondent provided reasons for its decision (Reasons).

  3. The Reasons recorded the terms of the Decision as follows:[1]

    [1] Reasons at [158]-[159].

    158. Following consideration of the information before me, I have decided to suspend the Agent from being registered as a migration agent from the date of this decision for a period of six months, and until the Agent has met the below conditions.

    159. The conditions are to be completed within the period of suspension or no more than four years from the date of suspension. The suspension cannot be lifted until all the conditions are met. Failure to meet the conditions within the specified timeframe may result in cancellation of the Agent’s registration.

    Conditions

    ·Evidence that the Agent has completed a total of 10 Continuing Professional Development (CPD) points for each 12 months that the suspension is in force. The CPD activities should cover:

    - Ethics and Professional Practice

    - Code of Conduct

    - Client money

    - Visitor visas

    - File management

    ·Evidence that the Agent has successfully completed the following private tuition sessions which are conducted…

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AGLC
Podger and Migration Agents Registration Authority [2025] ARTA 1148
Case
[2025] ARTA 1148
Decision Date

CaseChat Overview and Summary

The case of Podger and Migration Agents Registration Authority involved a dispute between the Applicant, a registered migration agent, and the Migration Agents Registration Authority (MARA) regarding the appropriate duration of a suspension of the Applicant's registration. The Applicant contested the six-month suspension period imposed by MARA, arguing that a suspension of no more than three months was appropriate. The dispute was heard and determined by the Administrative Appeals Tribunal.

The central legal issues before the Tribunal were whether the six-month suspension period was justified and whether an alternative, shorter suspension period was more appropriate. The Tribunal had to consider the Applicant's conduct, the nature and severity of the breaches of the Code of Conduct, and the principles of proportionality and fairness in disciplinary matters. Additionally, the Tribunal examined whether the Applicant's conduct warranted a suspension at all or if other forms of discipline would be more suitable.

The Tribunal found that the Applicant had indeed breached several provisions of the Code of Conduct, including failing to comply with migration law, providing misleading advice, and acting in a manner that was not in the best interests of the client. The Tribunal considered the severity of the breaches, the Applicant's previous history of complaints, and his conduct following the complaints. The Tribunal determined that the six-month suspension period was appropriate as it balanced the need to protect the public, deter future misconduct, and consider the Applicant's cooperation and remorse. The Tribunal rejected the Applicant's argument for a shorter suspension period, finding that the more extended suspension was necessary to achieve the objectives of the disciplinary process.

The Tribunal affirmed the decision of MARA to impose a six-month suspension on the Applicant's registration. The Tribunal concluded that the evidence supported the finding that the Applicant's conduct warranted such a significant disciplinary action. The Tribunal also noted that the Applicant had the opportunity to seek renewal of his registration in the future, subject to MARA's consideration of the relevant matters at that time.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

As necessary, I will refer to this evidence below.THE DECISION OF THE RESPONDENT AND BACKGROUND OF THE APPLICATION The substantial dispute concerns the period of suspension. While the Applicant agrees that the Conditions were appropriate, the Applicant contends that a suspension for a period of six months was not appropriate. The Applicant says an appropriate period of suspension would be no more than three months. The Reasons record the factual matters on which the Decision was based, and details of prior complaints received by the Respondent in connection with the Applicant’s conduct as a migration agent. The Applicant was first registered as a migration agent on 8 February 2016. He had subsequently renewed his registration as permitted under the Act. He is also a solicitor, having been admitted in Queensland. He does not currently hold a practising certificate in Queensland, but previously did. As indicated above, the Decision was made in consequence of a complaint received by the Respondent on 21 February 2024. The complainant was a former client of the Applicant (Client) who, on 21 August 2023, engaged the Applicant’s services and paid him a total of $3300 to lodge a partner visa application. Between that date and February 2004, the Client and the Applicant corresponded about how she was to proceed with her visa application and issues relating to her coming to Australia which she did on an Electronic Travel Authority (ETA). The ETA was for entry as a visitor. Between 8 February 2024 and 19 February 2024, the Client unsuccessfully attempted to contact the Applicant and various emails and WhatsApp communications went unanswered. On 19 February 2024, because she had not received a response, the Client requested a refund of the monies paid and posted a “one star” Google review against the Applicant’s business. Following the review, the Applicant contacted the Client and advised her that he had been in hospital. At this time, the Applicant initially refused to provide a refund. Emails sent by the Applicant included him advising the Client “I don’t have the money”, “can you stop harassing me” and describing the Client as “self absorbed”.[2][2] see emails at AB p190-1 On 2 and 3 March 2024 the following email exchanges occurred:[3][3] AB p 97-102ApplicantI've managed to remove your reviews.Did you want to come to an agreement on nondisclosure and nondisparagement and my insurance company will probably pay you your fees to be refunded following the hacking?You'll have to remove the reviews properly before I pay you and sign an agreement.Kind regards,ClientGood morning Tristan,If you are offering to refund us the whole amount of what we paid, we are open to talk.Thank you.Best regards.ApplicantI'm not refunding you all the fees.I'm happy to refund you half if reviews removed which are not accurate anyway and you sign a nondisclosure agreement and withdraw any complaints.You paid over 6 months ago actually.Are you happy with this outcome? I don't give advice for free and whether you have decided not to apply for the visa that is not my fault.Kind regards,ClientGood morning Tristan,Yesterday you offered to refund our fees (plural).You continue going back and forward with every new email, or text you send us.As we said since the beginning, since you disappeared, we want the full refund.If you are not willing to accept this we will continue with the reports.Thank you.ApplicantThat's fine. Let me know if you change your mindKind regards,ApplicantCan you send me a copy of your complaint to OMARA?I'm just unsure aside from being hacked and in hospital what you are complaining about precisely.It seems to be a personal vendetta which is harassment and unlawful.Kind regards ApplicantI'm not refunding your fees you paid LAST August.The insurance company might. I am waiting on them to process the claim re hacking.But if you come to an agreement regarding removal of the disparaging reviews. They seem to be quite personal and I'm not sure why they're so beyond reality.Kind regards,ApplicantIf they pay in full sure you can have a full refund.It'll probably be resolved by the end of the week.Kind regards,ApplicantAre you able to take your reviews down because obviously I haven't disappeared with your money.Also stopping me making an income stops you getting refunded sooner actually.Kind regards,

Evidence

Evidence Before The Court

In conclusion, the Applicant says:[40]39. If the Tribunal ultimately finds the breaches substantiated, it should impose:• suspension of the Agent’s registration for three months;• within that period, completion of at least ten CPD points covering ethics,trust accounting, and file management;• lodgement of a statutory declaration confirming a formal, documented arrangement with a currently-registered migration agent to manage client files during any future incapacity; and• confirmation that no immigration assistance is given for reward duringthe suspension.[40] Applicant's SFICS paragraph 39 – AB p 496.APPLICANT’S ORAL EVIDENCE As noted above, the Applicant was asked various questions by his Counsel, Dr Donnelly and the Tribunal and cross examined by Mr Swan about the matters dealt with in the Decision and other evidence before the Tribunal. For convenience, I will refer to aspects of this evidence under various headings.Respectful dealings The Applicant was cross examined concerning communications with the Respondent in June and following in connection with the Client’s complaint and responses to the Respondent’s enquiries. Having accepted that his medical condition has resolved or at least improved by June 2024, the Applicant was asked questions concerning emails he sent about the conduct of the Respondent which he variously described as “ridiculous”, “frivolous”, “vexatious” and “defamatory” and claims for compensation. [41] Of these communications he said in his oral evidence they were “not serious”, that “he didn’t mean it”. He also sought to explain the reason for writing some of these emails as he was annoyed.[41] see emails at AB p 51 (15 June 2024) and AB p 129, AB p 157 (28 November 2024), AB p 159-160 (28 November 2024). The Applicant also said that he thought the conduct of the Respondent was unfair. In giving this evidence, there was a degree of evasiveness in answers to questions from the respondent’s Counsel concerning the Applicant’s views at the time he wrote the emails and his present view of his past conduct in connection therewith.[42] In this regard, the Applicant ultimately conceded some of his emails were “silly”.[42] n Oral evidence in Hearing, 10 July 2025. The Applicant was also asked questions about his email of 15 April 2025,[43] sent after his lawyer had provided a response to the 309 Notice. That email contained an assertion “that the agency [Respondent] has targeted” the Applicant. In relation to the word “targeted”, the Applicant gave the following evidence:[44][43] AB p 224. [44] Oral evidence in Hearing, 10 July 2025. Mr Swan:And how exactly had the agency targeted you?Applicant:I don't know if that's true, but I just wrote that at the time. It's probably another one of those silly emails.Mr Swan:So this is an example again, is it, you've just written something, even if it's not true, but it was just silly.Applicant:I'm not sure. You can decide whether it's silly or not. But I'm saying it’s silly.Mr Swan:OK. Because this email's from April this year. Do you see that?Applicant:I can see that.Mr Swan:So that that's less than three months ago, isn't it?Applicant:Yeah,Mr Swan:Yeah. So this, this silly communication, to use your word is, is actually continuing up until quite recently, isn't it?Applicant:Possibly. Mr Swan:Well, no, not possibly.Applicant:It hasn't been since then, because I'm obviously, I hired a lawyer at one point and then I got another lawyer. So I, I didn't really write to you since then.Mr Swan:Well, well, Mr Podger, this e-mail was after you'd hired a lawyer.

Decision

Reasons for decision

Otherwise, the Respondent will no doubt consider any matters then relevant on each occasion on which the applicant seeks renewal of his registration in the future.CONCLUSION For these reasons I have decided to affirm the decision under review.

Ratio Decidendi

Legal Principle Established

Consequently, contraventions of cl 33(c), (d) and (e) were established.Comply with migration law The Respondent said the 308 notice required the Applicant to provide details of the immigration advice he provided to the Client. The Applicant did not do so indicating he would not be providing a statutory declaration as required. The Respondent records the reason given by the Applicant for non-compliance in providing a statutory declaration was the length of time that had passed, and that the memory of the Applicant was “hazy due to him being unwell and sedated at the time”. The Respondent noted that cl 55 of the Code requires a migration agent to make a contemporaneous record of oral communications between the agent and their client and to keep copies of all written communications with the client. The Respondent then continues:[19]In his response to the section 309 notice the Agent stated that he ‘…was not in a position to give a statutory declaration given his hazy memory at the time. He decided to give submissions instead.’ It was open to the Agent to write in a statutory declaration that his memory was hazy at the time in response to the questions asked relevant to this timeframe, but he chose not to do so. In his response the Agent accepted that this was not a valid reason for not providing his response via a statutory declaration.[19] Reasons at [95] – AB p 244. Consequently, the Respondent found that the Applicant did not comply with s 308(1)(a) of the Act. In addition, in connection with the Client’s application for an ETA to enter Australia as a visitor, the Applicant gave the Client advice not to disclose her intentions to apply for a partner visa when she was in Australia. Of this advice, the Respondent’s delegate said:[20] 101. I suspect that the Agent advised [the Client] to not disclose her intentions to the ABF because he knew that if she did, the grounds to consider her visa for cancellation under section 116 of Act would be enlivened as she was not a genuine visitor who intended to stay temporarily in Australia, but rather intended to stay and apply for a subclass 820 visa.102. In his response to the section 309 notice the Agent disputes this, stating that the two are not mutually exclusive as [the Client] ...can still be a genuine visitor at the time (with an intention to visit her partner) and have an overall intention for an 820 or 309 visa application at a later date.’103. In [the Client’s] case I do not agree that the intention was to come visit Australia temporarily and then depart but rather the intention was to use the subclass 601 to enter Australia as a means to apply for the subclass 820 onshore, circumventing the offshore partner visa pathway.[20] Reasons [101]-[103] – AB p 239-240. Based on this information, the Respondent was satisfied the Applicant failed to comply with the migration law and acted in a way that was intended to defeat the purpose of the migration law for the purpose of obtaining a benefit or advantage for his client, contrary to cl 17 and subcl 18(1)(a) of the Code. Confidentiality