Podger and Migration Agents Registration Authority - [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

The Applicant is a migration agent registered under the Migration Act 1958 (Cth) (Act).
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).
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 by an individual or individuals approved by the Authority and who are accredited immigration law specialists and for which the Agent is not to accrue CPD points:
- three hours of private tuition in relation to the current Code of Conduct
- two hours of private tuition in Ethics and Professional Practice
- one hour of private tuition on client money and statement of service
·A Commonwealth statutory declaration from the Agent and supporting evidence to demonstrate that the Agent has implemented robust arrangements to cover periods where he may be absent or unable to provide immigration assistance to his clients due to ill health or otherwise. The arrangements must also include details of how any temporary transfer of clients will be managed.
·A Commonwealth statutory declaration form stating that the Agent has not made immigration representations for a fee, has not advertised the provision of immigration assistance and has not given immigration assistance while suspended.
The Applicant applied for review of the Decision by application filed 22 April 2025 (application).
HEARING
The Tribunal made directions for hearing and the matter was heard on 10 July 2025.
An application for stay of the Decision was not pursued by the Applicant.
At the hearing, the Applicant was represented by Dr Donnelly of Counsel. The Respondent was represented by Mr Swan of Counsel.
The parties filed a bundle of documents entitled “Joint Hearing Bundle” (agreed bundle/AB). The agreed bundle included the following:
(a)the application;
(b)the Decision and Reasons;
(c)documents required by s 23 of the Administrative Review Tribunal Act 2024 (Cth);
(d)the Applicant’s “additional evidence”;
(e)Statements of Facts, Issues and Contentions (SFICS); the Applicant’s SFICS dated 3 June 2025 and the Respondent’s SFICS dated 23 June 2025; and
(f)a bundle of documents extracted from documents produced by third parties on summons.
In addition, a further report from the Applicant’s treating psychiatrist dated 27 October 2022, produced on summons, became Exhibit A.
The Applicant gave oral evidence and was cross examined.
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 97-102
Applicant
I'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,
Client
Good 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.
Applicant
I'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,
Client
Good 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.
Applicant
That's fine. Let me know if you change your mind
Kind regards,
Applicant
Can 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
Applicant
I'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,
Applicant
If they pay in full sure you can have a full refund.
It'll probably be resolved by the end of the week.
Kind regards,
Applicant
Are 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,
As is apparent from the above, the email chain appears incomplete.
In accordance with s 308 of the Act, by notice dated 12 June 2024 (308 Notice), the Respondent required the Applicant to provide it with information concerning the complaint.[4] The notice stated:[5]
1. I am writing to advise you that the Office of the Migration Agents Registration Authority (the Authority) has received an allegation about your conduct as a registered migration agent (RMA).
2. In order to enable a full assessment of the facts relevant to the allegation, the Authority needs information and documents from you. Pursuant to section 308 of the Migration Act 1958 (the Act) you are required to:
·answer the Authority’s questions in a statutory declaration; and
·provide copies of specified documents.
3. In accordance with your duties under Section 32 of the Code of Conduct, you are also required to provide your response within the specified time frame set out in this notice.
[4] AB p 47 and following.
[5] AB p 48.
The allegations in the complaint were summarised in the 308 Notice as follows:[6]
[6] AB p 48-9.
·On 21 August 2023, [the Client] engaged your service and paid you a total of $3300 to lodge a partner visa application.
·After some correspondence back and forth, on 8 February 2024, [the Client] contacted you via email asking you how to proceed with the application.
·On the same day [the Client] sent you a message via WhatsApp asking how to proceed with the application.
·Between 9 to 11 February 2024, [the Client] received three emails advising that her email to you could not be sent.
·On 19 February, after receiving no response from you, [the Client] sent you an email and a WhatsApp message requesting a refund.
·Later that day, [the Client] posted a one star Google review against your business.
·After posting the review, you contacted [the Client] via WhatsApp and advised her that you had been arrested and were in hospital.
·You refused to provide [the Client] with a refund.
A response was provided by two emails from the applicant on 4 July 2024.[7]
[7] see documents at AB p 107 and following; p 110 and following.
Following a request for further documents, particularly relating to his hospital admission in February 2024, the Applicant sent the following email dated 5 August 2024 to the Respondent:[8]
I have no information available to me regarding my hospital admission.
Doing so would require a Freedom of Information request to Queensland Health and as you would or should know, this information is exempt from the Queensland Right to Information Act.
Therefore it cannot be obtained. My admission was for 21 days in I believe February.
I shall go to the Commonwealth Ombudsman if you continue to pursue this frivolous complaint and take legal action at the Queensland Civil and Administrative Tribunal against the authority for my time at $650 an hour.
Kind regards,
[8] AB p 129.
The Respondent then gave the Applicant notice under s 309(2) of the Act that the Respondent was considering cautioning, suspending or cancelling the Applicant’s registration as a migration agent pursuant to s 303 of the Act. The notice was dated 22 November 2024 (309 Notice).[9] The conduct of concern identified in the 309 Notice was substantially similar to that set out in the 308 Notice. The Respondent also provided documentation which it had received from the Client as part of the investigation process.
[9] AB p 131 and following.
The Applicant was invited to provide a response.
Prior to providing a formal response through his lawyers, the Applicant sent a number of emails to the Respondent. They included the following:
Email dated 23 November 2024:[10]
[10] AB p 153.
As this relates to a health condition from covid, I have once again referred your agency back to the Human Rights Commission for investigation.
You came to an agreement to leave me alone and I have been working with this condition fine for over 4 years.
Kind regards,
Email dated 28 November 2024 (sent at 5:59 PM):[11]
[11] AB p 159-160.
It seems that you are accusing me of sending emails that don't exist.
I never emailed the client in November 2023.
Can you supply the emails you are referring from or is this simply hearsay from the client?
Please provide all emails from the client to the authority, a copy of her initial complaint, and a copy of all emails alleged to have been sent to her by myself.
Alternatively withdraw the complaint on the basis it is defamatory and without lawful basis.
Kind regards,
Email dated 28 November 2024 (sent at 7:10 p.m.):[12]
Please await my lawyer's submissions or else withdraw the complaint.
It is frivolous, vexatious, and defamatory.
I will be seeking costs against the Department as they are accruing rapidly.
Kind regards,
[12] AB p 157-158.
Subsequently, on 17 January 2025, the Applicant’s lawyers provided a response to the 309 Notice (Applicant’s 309 submission).[13]
[13] AB p 201 and following.
I note at this point, that the content of this submission was said by the Applicant to be true in his statutory declaration affirmed 17 January 2025.[14] I also note that the statutory declaration incorrectly identifies the Applicant’s 309 submission as being dated 17 January 2024. However, the Applicant confirmed in his oral evidence to the Tribunal that this was an error, the correct date being 2025.
[14] AB p 497-498.
Both the statutory declaration and the submission were relied on as part of the Applicant’s evidence in these proceedings.
In the Reasons, the Respondent’s delegate was satisfied that the Applicant:
·has engaged in conduct in breach of his obligations under sections 13(1), 14(1), 14(2)(a), 17, 18(1)(a), 33(c), 33(d), 33(e), 35, 50(1)(d)(i) and 52(3)(a) of the Code.
·is not a person of integrity or otherwise not a fit and proper person to provide immigration assistance as per paragraph 303(1)(f) of the Act.
The reference to ‘Code’ is a reference to the Migration (Migration Agents Code of Conduct) Regulations 2021 as at 1 March 2022 (Code). The Code is prescribed under s 314 of the Act. Failure to comply with the Code enlivens the power to impose disciplinary sanctions under s 303 (1) of the Act.[15]
[15] The Act, s 303(1)(h).
In general terms, the obligations under the Code about which the Respondent made findings are:
(a)a general duty to act professionally and ethically (cl 13(1));
(b)a duty to treat all persons with appropriate respect (cl 14(1));
(c)a duty not to harass or coerce any person (cl14(2)(a));
(d)a duty to comply with migration law (cl 17);
(e)a duty not to undermine the migration law, in particular to defeat the purpose of the migration law (cl 18(1)(a));
(f)a duty, in giving immigration assistance to a client or in performing other work or services for a client under a service agreement, to:
(i)respond to the client in a timely manner (cl 33(c));
(ii)be aware of the times by which, under law, any relevant application must be made, any relevant response must be given, or any other relevant thing must be done (cl33(d)); and
(iii)have regard to the consequences of an application not being made, a response not being given, or any other thing not being done by the relevant time (cl 33(e));
(g)a duty to maintain confidentiality of client information (cl 35);
(h)a duty not to pay client’s money to the agent if not permitted to do so under s 313 of the Act (cl 50(1)(d)(i); and
(i)to ensure there are sufficient funds available to cover any refunds that become payable under a service agreement (cl 52(3)(a)).
Section 313 of the Act provides:
313 Persons charged for services to be given detailed statement of services
(1)       A registered migration agent is not entitled to be paid a fee or other reward for giving immigration assistance to another person (the assisted person) unless the agent gives the assisted person a statement of services.
(2)       A statement of services must set out:
(a) particulars of each service performed; and
(b) the charge made in respect of each such service.
(3)       An assisted person may recover the amount of a payment as a debt due to him or her if he or she:
(a) made the payment to a registered migration agent for giving immigration assistance; and
(b) did not receive a statement of services before making the payment; and
(c) does not receive a statement of services within the period worked out in accordance with the regulations.
The Respondent also determined that the Applicant was not a person of integrity, or otherwise a fit and proper person to give immigration assistance (s 303(1)(f)). This was the second basis upon which the disciplinary powers in s 303 of the Act were enlivened.
Act professionally and respectfully
In respect of a failure to act professionally and respectfully, conduct identified by the respondent included:
(a)referring to the Client as self-absorbed and threatening to “block” the Client following her request for refund;
(b)threatening to take legal action if the Google review about his business was not removed;
(c)threatening the Respondent with legal action if it pursued the Client’s complaint.
While acknowledging the Applicant’s hospitalisation and medical condition at that time, the Respondent also noted the Applicant’s 309 submission did not deny these facts. Consequently, a finding was made of a failure to comply with the duties under clauses 13(1), 14(1) and 14(2)(a) of the Code.
Timeliness in communications
In relation to timeliness, the Respondent noted the failure of the Applicant to respond to communications from the Client in the period February 2024 and to correspondence from the Department regarding visa applications, which went unanswered. The Respondent noted the Applicant said he had been hospitalised and that his email account had been hacked. At the time of the Decision, the Respondent said no supporting evidence of these matters had been provided. However, the statements were accepted.
The Respondent also noted that the Applicant communicated with the Client within an hour of her posting a review on Google, which indicated the Applicant had access to internet and that the messages sent by the Client had been received and read by the Applicant.

Notwithstanding personal unavailability of the Applicant and having regard to his history of mental illness, the Respondent concluded “it would have been reasonable for him to have arrangements in place for such occurrences”.[16] In addition, the Respondent noted the Applicant’s lack of availability caused the Client unnecessary stress and led her to believe she was the victim of a scam.[17]
[16] Reasons at [86] – AB p 243.
[17] Reasons at [85] – AB p 243.
As to communications with the Department of Home Affairs (Department), and the time sensitive nature of migration work, again the Respondent noted there was no backup arrangements in place by the Applicant which “put the legitimate interest of his clients at risk”.[18]
[18] Reasons at [88] – AB p 243.
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
In relation to failure to maintain client confidentiality, this concerned erroneously sending to the Client an email intended for another client. Here, the Respondent concluded the error was not intentional but said the Applicant had nonetheless failed in his duty of confidentiality contrary to s 35 of the Code.
Statement of service and dealing with client monies
In relation to providing a statement of service, dealing with client money and refunds the Respondent made a number of findings.
First, having reviewed the Applicant’s file for the Client, the Respondent found it did not contain a statement of service as required by s 313 of the Act.
Secondly, it appeared from a WhatsApp message to the Client dated 19 February 2024, that a charge was to be made for the preparation of a statement of service which the Respondent said does not appear to be justifiable.
Thirdly, contrary to cl 52(3)(a) of the Code, the Applicant did not have sufficient funds available “to cover any refunds that may be payable under the agreement”. In this regard, on 19 February 2024 the Applicant advised the Client that he only had $6 in his account and that he did not have the money to refund the client because she had paid him a long time prior. Bank statements provided by the Applicant indicated a zero balance in the Applicant’s bank account at that time.
Having noted that the Applicant did not lodge the partner visa application for the Client, and that he had not issued the Client a statement of service, the Respondent concluded the Applicant was not entitled to be paid the $3300 he had received from the Client. This money, the Respondent said, should have remained in his account irrespective of how long ago she had paid him.
As to the document which the Applicant said was a statement of service, being an invoice for $3300, the Respondent says this document did not itemise work completed by the agent and a statement of service was required to be issued to the Client prior to appropriation of any funds. Further, the Respondent concluded any work performed was not reflective of the amount charged and, in any event, the amount received from the client was a fee proposed for completion of all work up to the lodgement of the partner visa application. This work had not been completed.
Consequently, contraventions of cl 50(d)(i) and 52(3)(a) of the Code were established.
Acting with integrity, fit and proper person
As to whether the Applicant was a person of integrity or otherwise a fit and proper person to give immigration assistance, the Respondent referenced a number of cases said to set out the test to be applied:[21]
[21] Reasons at [125] and following – AB p 247.
(a)Broadly, the enquiry involves consideration of honesty, knowledge and competency: Hughes and Vale Pty Ltd v New South Wales (No 2) [22] (Hughes); Kraues v Migration Agents Registration Authority;[23]
[22] (1955) 93 CLR 157; [1955] HCA 28 at 156-157.
[23] [2016] AATA 1086 at [104].
(b)The statement of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond[24] (Bond) where they said at 380:
[24] (1990) 170 CLR 321; [1990] HCA 33.
‘[D]epending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.’
(c)The need to consider the legislative context in which the expressions are used: Frugtniet v Australian Securities and Investments Commission[25] at [40]-[45]. In this regard the Respondent said the context included;
·the Act, which creates offences for misleading statements and advertising, practicing when unregistered and misrepresenting a matter; and
·section 290(2) of the Act, which provides that in considering whether it is satisfied that an applicant is not a fit and proper person or not a person of integrity, the Authority must take into account specified matters, including the person’s knowledge of migration procedure; and any other matter relevant to the person’s fitness to give immigration assistance.
·the Code which refers to (among other matters) an RMA acting diligently, ethically, honestly and with integrity, treating persons with appropriate respect, and properly managing and maintaining client records and maintaining client confidentiality.
(d)As to fitness, key elements are:[26]
·the honesty of the person (Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12); and
·the person's knowledge of the migration scheme and ability to fulfill the position of a migration agent (Mottaghi and Migration Agents Registration Authority [2007] AATA 60; Patel v Migration Agents Registration Authority [2018] AATA 4277).
[25] [2022] AATA 295.
[26] Reasons at [130] – AB p 248.
The Respondent then continued:[27]
Having regard to the body of case law cited above, a consideration of whether the Agent is a fit and proper person or a person of integrity to provide immigration assistance can legitimately include the following:
·that the Agent’s past conduct can be an indicator of the likelihood of the improper conduct occurring in the future;
·the Agent’s honesty and competency towards clients, the Department and the Authority;
·a consideration of the context in which the agent works, for example whether or not the Agent is an employee or owner of the business through which immigration assistance is provided;
·the Agent’s knowledge and competency in immigration law and practice;
·the reputation of the Agent as a result of their conduct and the public perception of that conduct; and
·the perception of the conduct by the Agent’s ‘professional colleagues of good repute and competency’.
[27] Reasons at [132] – AB p 248.
The Respondent then noted:
(a)the Applicant’s medical history, that, as reported by his doctor, the Applicant’s symptoms of schizophrenia and depression remain in remission and his “capacity to work as an immigration lawyer is intact”;[28]
(b)the Applicant’s medical condition is uncertain, requiring consideration being given to arrangements “in the event he becomes unwell or is unavailable”[29] ;
(c)the fact that the Applicant stated he had a business partner (said to be an Australian legal practitioner) but the Respondent was not satisfied that person was currently registered to practice law in Australia nor was there any evidence of a “formalised business partnership”.[30] Consequently, the Respondent was not satisfied the Applicant had appropriate arrangements in place to deal with his clients in the event he became unwell or unavailable.
[28] Reasons at [133] – AB p 248 and treating Doctor's report dated 16 December 2026 (sic) – AB p 227.
[29] Reasons at [134] – AB p 249.
[30] Reasons at [135] and following - AB p 249.
The Respondent then continued:[31]
[31] Reasons [139]-[140] – AB p 249.
139. Having regard to the totality of the matters discussed within this decision, I am satisfied that the Agent:
·Acted without regard for the vulnerability of his client in her reliance on him to provide the immigration service for which he was engaged.
·Withdrew his client’s money from the client account before he was entitled to claim it.
·Acted without regard for the adverse impact the conduct would have on the reputation of the migration advice industry.
·Has a diagnosed mental illness that has impacted on his ability to practice as an RMA and does not have suitable arrangements in place to ensure his clients are adequately serviced if he becomes unwell and unavailable.
·Acted in manner not consistent with the principles of integrity nor of a person who is fit and proper to provide immigration assistance.
140. In consideration of the discussion on the Agent's conduct in this decision and my findings above, I am satisfied that the Agent is not a person of integrity and is not a fit and proper person to give immigration assistance.
The Respondent then concluded:[32]
[32] Reasons at [142] and following – AB p 250 and following.
(a)the conduct of the Applicant, including in respect of matters predating the complaint by the Client and his non-compliance with the migration law was serious. This was so despite the Applicant suffering from a mental illness;
(b)aggravating factors included not having appropriate arrangements in place in the event he became unwell or unavailable and advising he had a business partner who could assist, even though that person was not lawfully able to provide immigration assistance in Australia;
(c)mitigating factors included:
(i)the Applicant’s mental illness contributing to the events which have occurred. While the Applicant is undergoing involuntary treatment, there is not “appropriate arrangements in place to cover any potential future absences”;
(ii)the Applicant has shown “some accountability by expressing regret and accepting that his communication with [the Client] is not aligned with his obligations under the Code”;
(iii)the impact on the Applicant’s future livelihood.
(d)The Applicant posed a risk to consumers of migration services and in maintaining confidence in the integrity of the Australian migration program.
For these reasons, a suspension of six months and conditions were imposed by the Respondent as a sanction for the conduct found.
THE APPLICANT’S SFICS
The Applicant “distilled” the issues raised by his application as follows:[33]
(a) Whether the Agent acted without regard for the vulnerability of his client in her reliance on him to provide the immigration service for which he was engaged.
(b) Whether the Agent withdrew his client’s money from the client account before he was entitled to claim it.
(c) Whether the Agent acted without regard for the adverse impact the conduct would have on the reputation of the migration advice industry.
(d) Whether the Agent’s diagnosed mental illness has impacted on his ability to practice as an RMA and whether the Agent has suitable arrangements in place to ensure his clients are adequately serviced if he becomes unwell and unavailable.
(e) Whether the Agent acted is not a person of integrity and is not a fit and proper person to give immigration assistance.
(f) If necessary, what is the appropriate discipline of the Agent for the purposes of s 303 of the Migration Act 1958 (Cth).
[33] Applicant's SFICS paragraph 7 – AB p 490.
As to the findings of the Respondent, the Applicant put forward the following contentions:
Act professionally and respectfully
The Applicant accepted his conduct fell short of cl 13(1), 14(1) and 14(2)(a) of the Code. His acknowledges some of his communications with the Client were inappropriate and unprofessional and that the offer of a partial refund on condition that the Google review and complaint created an impression of coercion. He accepts his personal circumstances does not excuse his behaviour and he expresses regret for distress caused and undertakes to fully comply “with the Code’s requirements for professionalism, respect, and the avoidance of harassment or coercion”.
Timeliness requirements for in communications
The Applicant accepts as a fair record the respondent’s chronology of an 11-day gap in communications between 8 February 2024 19 February 2024, including him not receiving messages from the Department.
However, the Applicant says this was “an isolated interruption in an otherwise prompt pattern of communication”, the Respondent replying to the request for a refund within an hour of becoming aware of the request and maintain timely correspondence in the periods before and after his February hospital admission.
While accepting his obligations under the Code concerning timeliness, the Applicant said that him being uncontactable was a “brief lapse” and “did not ultimately jeopardise any statutory deadline, nor is there evidence of lasting detriment to the client’s visa prospects.”
The Applicant accepts ss 33(c)-(e) of the Code required stronger safeguards and says he has “introduced practical measures – including secondary email recovery protocols, and out of office delegation, and secure cloud access – to ensure uninterrupted coverage for all clients should an emergency re-occur”. As such the incident should be regarded as a “discrete lapse arising from exceptional personal circumstances rather than a systemic failure to manage client matters in a timely fashion”.
Comply with migration law
The Applicant accepts he did not fully meet his obligations under s 308(1)(a) of the Act or ss 17-18 of the Code. However, he says “his non-compliance stemmed largely from health-related limitations and misapprehension of procedural requirements rather than deliberate disregard for migration law”.
In this regard, when the 308 Notice was issued in June 2024, the Applicant says he was still recovering from his hospital stay in February 2024. The consequences of previous sedation and ongoing medical issues left his memory “unreliable for the relevant period”, a matter he says he candidly explained to the Respondent.
The Applicant says that his provision of detailed written submissions instead of a statutory declaration did not strictly satisfy the requirements of s 308 of the Act and cl 55 of the Code. However, he says his conduct demonstrates a willingness “to be transparent without inadvertently misleading the regulator”.
As to advice given to the Client in connection with the ETA, the Applicant said:[34]
19. Regarding advice to [the Client], the [Applicant] confirms he recommended entry on an ETA and, if appropriate, lodgement of an onshore partner-visa application. This reflected her genuine wish to visit her partner and is a pathway commonly used when personal circumstances make an offshore application impractical.
20. His 24 November 2023 email suggesting that she need not volunteer future migration intentions to ABF officers was intended to avoid confusion at the border rather than to subvert legal requirements. The delegate correctly observes, however, that this advice risked contravening visitor-visa genuineness criteria and could have enlivened cancellation powers under s 116. The [Applicant] accepts this point and recognises the need to emphasise frank disclosure when advising on visa strategies.
[34] Applicants SFICS paragraph 19 and following – AB p 492.
The Applicant concludes:[35]
21. Taken together, these matters constitute non-compliance, yet they arose from ill health, administrative oversight and an overly narrow reading of permissible border-entry advice rather than from any intent to defeat the migration scheme. The [Applicant] has acknowledged the shortcomings, expressed remorse, and implemented corrective measures to ensure strict adherence to the Act and the Code in future engagements.
[35] Applicant's SFICS paragraph 21 – AB p 492-493.
Confidentiality
Incorrectly sending the Client a communication relating to another client is acknowledged as a breach. However, it was due to a mistake and corrective action was immediately taken. It was an isolated error, the Applicant indicating that he will implement “tighter email-checking protocols to prevent any recurrence”.
Statement of service and dealing with client monies
The Applicant accepts non-compliance with s 313 of the Act and cls 50(1)(d)(i) and 52(3)(a) of the Code.
However, the Applicant says he provided a tax invoice that “listed the agreed fixed professional fee of $3300 for preparation and lodgement of a Partner (Subclass 820/309) visa and he forwarded a service agreement containing a refund clause”.
The SFICS then continues:[36]
27. The [the Applicant] appears to have believed—albeit mistakenly—that the invoice summary satisfied the statement-of-service requirement, and he promptly produced his client-account statements when requested. While these measures did not meet the statutory standard, they indicate the [the Applicant] was not acting covertly and had taken at least some steps to document the work and funds received.
[36] Applicant's SFICS paragraph 27 – AB p 494.

It is unclear from this statement whether the Applicant in fact held the mistaken belief.
In any event, the Applicant continues that the non-compliances “stem from a misunderstanding of procedural obligations rather than deliberate misconduct”. He says he cooperated with the Department, disclosed relevant banking records and was ready to issue invoices and a written agreement, all of which “demonstrate a willingness to comply, albeit imperfectly, with the regulatory framework”.[37]
[37] Applicant's SFICS paragraph 29 – AB p 494.
Acting with integrity, fit and proper person
The Applicant says that a “six-month suspension, coupled with extensive conditions, overstates the seriousness of the proven breaches and undervalues the weight of the uncontested mitigation”.[38]
[38] Applicant's SFICS paragraph 30 – AB p 495.
A three-month suspension with conditions would provide adequate protection of consumers and maintain confidence in those providing migration advice.
Section 303(1)(f) is concerned with the public’s future confidence that misconduct will not recur. The uncontested medical evidence shows the Applicant’s mental health conditions are in remission and that his capacity to work as a migration agent is intact. This is relevant to the present risk, the Applicant contending that a disciplinary response should not be calibrated to past incapacity.
The Applicant’s ill health is a factor which reduces personal culpability, the Applicant engaging “responsibly with treatment”. In this regard the Applicant says the Respondent’s treatment of his health conditions as an aggravating factor is inappropriate.
The Applicant then says the misconduct found is confined to the following:[39]
·delayed responses due to a short period of hospitalisation;
·premature withdrawal of client funds in breach of trust-account rules; and
·one inadvertent email that disclosed another client’s details.
[39] Applicant's SFICS paragraph 34 – AB p 495.
This conduct, the Applicant submits, is well below the gravity of other cases that have attracted 6 months or longer suspensions – for example cases of deliberate fraud, forging documents or repeated non-lodgement of visa applications. Consequently, the Applicant says:
36. A three-month suspension, with conditions that directly address the identified risk areas—namely (i) completion of additional CPD in ethics, trust accounting and file management, and (ii) the filing of a statutory declaration attaching a signed, verifiable arrangement for client cover during any future absences— would align with typical regulatory outcomes for comparable conduct.
Any longer period of suspension would be punitive, not protective.
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 during
the 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.
I should note at this point, when asked questions about his continuing position on the enquiry then being conducted by the Respondent, the Applicant said he thought that the communication was without prejudice and could not be relied upon. However, Counsel for the Applicant confirmed the document had been included in the agreed bundle by consent and no claim was made that the document was in some way a protected communication.
Similarly, the Applicant was asked questions about an email to the Client, sent the previous year, dated 3 March 2024. In that email the Applicant said:[45]
Can 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.
[45] AB p 99.
In cross examination, the Applicant expressed regret he sent this email. Despite some questions concerning whether he was still in hospital at time, it is apparent that he had been recently discharged. Of this email, the Applicant said he was still affected by the treatment he had been receiving. The Applicant accepted in cross examination that he had no basis for writing what was said and that it was an appropriate complaint and that the Client was unhappy with the work.
In re-examination, the Applicant was asked what he meant by the use of the word “silly”:
When I say silly, I think it's something that you shouldn't do and it's not professional and it's regrettable.
Medical evidence
The Applicant acknowledged that the most recent medical report of his treating psychiatrist, dated 16 December 2026 (December Doctors Report), was in fact prepared in December 2024. That report said:[46]
This is to kindly inform you that [the Applicant] is a current client of our service and I have been his treating psychiatrist since October 2022. [The Applicant] is a very nice and pleasant person who is suffering from chronic paranoid schizophrenia and major depressive disorder.
I reviewed [the Applicant] this morning at my clinic. [The Applicant] seems to be doing remarkably well on the combination of his psychotropic medications. The symptoms of schizophrenia and depression remain in remission. He is having this treatment on voluntary basis and remains insightful with regards to need for ongoing treatment. He is not at risk to himself or others.
In my opinion, [the Applicant’s] capacity to work as an immigration lawyer is intact. He has agreed to keep his follow up with me and in case of any concerns I will let the relevant people know.
[46] AB p 518.
Advice given to Client
The Applicant was asked questions about the advice he gave the Client concerning arriving in Australia on an ETA. That advice was given in circumstances where the Client had initially sent the applicant the following email dated 18 August 2023:[47]
… I am a UK citizen based in Spain.
I would like to see what my possibilities are of going to Australia, probably stay there.
My boyfriend is an Australian citizen based in Queensland and I would like to work there apart from being with him.
I am visiting in January, my trip is for a month, but I would like to see if I could stay.
Could we talk and see what you can offer me?
Thank you in advance
[47] email dated 18 August 2023 at 11:35 – AP p 310.
On 22 August 2023, the Applicant noted in an email to the Client:[48]
As you are not married yet, we might need to consider the prospective marriage visa, or you can make arrangements to get married as soon as possible. In the alternative, your partner can register your relationship in Queensland to meet the requirements.
[48] AB p 306.
Thereafter, there were various emails concerning the type of visa for which the Client should apply. The email evidence indicates that, during this time, the Client was still married and was seeking a divorce.[49]
[49] email from the Client to the Applicant dated 23 November 2023 – AB p 318-319.
Then, on 24 November 2023, the Applicant sent the Client the following email:[50].
We were going to do subclass 300 prospective marriage from offshore as I haven’t received a huge amount of relationship evidence yet.
If you onshore on a tourist visa we can do a subclass 820 partner visa but you will have to register relationship or get married first to apply.
I would recommend going for the offshore route. You can still visit prior to it being granted on the tourist fees are available to you (ETA).
Let me know what you would like to do.
[50] AB p 319-320.
Following a question concerning different types of visa, the Applicant then said:[51]
You can’t stay longer than 3 months at a time on a 651 or an ETA.
If you have a British passport you are better off applying for an ETA 601 using the ETA app.
…
I was going to do a prospective marriage visa then later the 820 once you’ve married and onshore.
But if you prefer, we can do the 820 right away after you arrive on ETA. Don’t mention it to the border officer though that is your intention.
820 is onshore partner visa 309 offshore that is the only difference.
[51] email dated 24 November 2023 sent at 14:41 – AB p 321.
In response, the Client said “I will do the ETA visa”.[52]
[52] email dated 24 Nov 2023 at 14:51 – AB p 322.
The advice about not disclosing intentions to the border officer was the subject of the following oral evidence:
Dr Donnelly:
[Quoting from the Decision at paragraph 98]
So in response to the question in the Section 308 notice regarding what immigration advice the agent gave, he stated that he advised her to make an onshore partner visa via arriving on an ETA visa using a British passport.
Applicant:
Yeah, that's correct. A lot of people do it and it's quite normal. But the thing is that she had to register her relationship or get married before she could apply. So she couldn't make a valid application on the documents that she supplied. So I wasn't able to make the application anyway, as OMARA stated.
Dr Donnelly:
But you accept that a visitor visa is for a temporary purpose?
Applicant:
I accept that it's for a temporary purpose. But I think in my submission to from Dane Locke, I think I said that there could be other circumstances in which case a visitor visa would be to visit a partner and you would use it as such.
Dr Donnelly:
So when you gave the advice to your client, did you have any intention to defeat the purpose of the migration provisions?
Applicant
No, I didn't. I don't like to, you know, try to get people to go around the law. I just try to do the paperwork.
At the conclusion of examination in chief, the Tribunal asked the applicant the following question about the advice given to the Client:
Tribunal:
Some of the answers that you gave suggested, I thought, that it was OK to have people come in and sort of not disclose to a border official the reason why they're coming and any of the circumstances. Is that what you were saying?
Applicant:
That wasn't really what I was saying. I was just saying that people do it all the time. I wasn't saying that you should do it. I told her the wrong thing. I shouldn't have told her not to disclose her intention. She should have been honest.
CONSIDERATION
As noted above, the substantial difference between the parties is whether a six-month suspension is appropriate or whether the period of suspension should be shorter.
In general terms, the Applicant did not dispute the contraventions said to have occurred or the conditions which were imposed. However, Counsel for the Applicant did suggest an additional condition concerning providing evidence from a mental health practitioner concerning the treatment of, and mental health plan for the Applicant might be appropriate.
The application raises a difficult question as to how the protective powers under the Act are to be exercised where it is said the migration agent:
(a)is not a fit and proper person to give immigration assistance, or
(b)has contravened the Code,
in circumstances where that person is and/or has been suffering from mental illness.
Legal principles
Section 303 of the Act relevantly provides:
303 Disciplining registered migration agents
(1) The Migration Agents Registration Authority may:
(a) cancel the registration of a registered migration agent by removing his or her name from the register; or
(b) suspend his or her registration; or
(c) caution him or her;
if it becomes satisfied that:
…
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
…
(h) the agent has not complied with the Code of Conduct prescribed under section 314.
In the present case, that requires the Tribunal to be satisfied that the conditions in s 303(1)(f) or (g) are satisfied before the power to impose a sanction is enlivened.
For the purpose of s 303(1)(f), whether the agent is not a person of integrity or is otherwise not a fit and proper person is to be assessed at time when the Tribunal makes its decision.[53]
[53] Shi v Migration Agents Registration Authority 235 CLR 286; [2008] HCA 31 per Kirby J at [50]
In my opinion, the mental health of a migration agent may be a relevant consideration in determining the question of whether that person is a fit and proper person.
The authorities identified above make clear the wide nature of the enquiry to be made in respect of fitness and propriety.
The reasons of Senior Member Taylor SC in Sleiman and Australian Securities Investment Commission[54] explain why mental illness may be relevant to that enquiry. Having considered various decisions of the Courts including Hughes and Bond, the Senior Member continued:[55]
[54] [2007] AATA 1383.
[55] at [90]-[92].

90. Against this background, which both emphasises the width of the “fit and proper” criterion and acknowledges the relevance of “capacity” (using that expression to include knowledge, qualification and competence) it is perhaps not surprising that there appears to be few reported cases dealing with the relevance of mental illness to an assessment of a whether a person is “fit and proper”. Nevertheless a person’s mental health is clearly potentially relevant to any proper assessment of their capacity.
91. In Re B (a solicitor) [1986] VicRp 69; [1986] VR 695 Brooking J dealt with the question whether mental incapacity provided a proper basis for removing a solicitor’s name from the roll of admitted practitioners. The solicitor had been acquitted, on the ground of insanity, on a charge of shooting with intent to murder. He was still in custody when an application was made for his name to be removed from the roll of practitioners. Brooking J held that whilst the solicitor remained in custody, pending a determination by the Crown of his current mental health, it was appropriate to suspend the solicitor from practice. On the more general question as to whether proven current mental incapacity could justify an order removing a practitioner’s name from the roll His Honour said (at [1986] VR 699 and 702):
... it would be a serious error to suppose that the court’s power to strike off the roll is confined to cases of misconduct. No court would knowingly admit a lunatic to the practice of the law, for lack of mental capacity renders him unfit to enter the profession. It is altogether too clear to require the citation of authority, but let me refer to the examples given by Starke J and Dixon J in Re Davis (1947) and [1947] HCA 53; 75 CLR 409 at 418 and 424. .... if a lawyer who is mentally ill intends to practice his profession, or to make some indirect use of his status as a person admitted to practice, the protective jurisdiction may well have to be invoked against him. And if it is, the court will then consider, not whether he has been guilty of “misconduct”, but whether he is a proper person to be continued on the roll, whether “having regard to the circumstances” or “on the facts disclosed” or “for any reason” - phrases perfectly general – he is shown not to be a fit and proper person to practise the law; Re Weare [1893] 2 QB 439 at 448 per Lindley LJ; Southern Law Society v Westbrook [1910] HCA 31; (1910) 10 CLR 609 at 612 & 627; re Davis [1947] HCA 53; (1947) 75 CLR 409 at 416 & 427, 429; Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 at 288 & 297-8.
...
In my opinion a legal practitioner may be struck off the roll or suspended if he is shown for any reason not to be a fit and proper person to practise the law. The ground may be misconduct. It may be mental unfitness to practise. It may be physical unfitness to practise. The ground may even relate to the situation in which the practitioner finds himself. For in my view a man’s situation - by which I mean the position in which he finds himself, as opposed to some aspect of his character or personality or physical or mental condition- may make him unfit to practise, or may at all events be taken into account in determining whether he should be regarded as unfit to practise.
92. In the light of the preceding general discussion, and fortified by the approach taken by Brooking J in Re B (a solicitor) [1986] VicRp 69; [1986] VR 695 it is proper to conclude that MrSleiman’s psychotic illness is directly relevant to an assessment of whether he is “otherwise a fit and proper person to remain registered as a liquidator”. The question whether his illness leads to satisfaction that he is not fit and proper depends on a proper understanding of the duties and functions of a registered liquidator.
That is, the simple fact of mental illness is not of itself determinative of fitness and propriety. Rather, it is the effect any illness has upon the ability of a migration agent to perform the role of a migration agent and the duties and functions imposed on the migration agent by the Act which is the relevant enquiry when considering whether the person is fit and proper in the sense used in the Act.

In this context, mental illness is not properly classified as an “aggravating factor”. But it may be a matter which supports the conclusion that a particular person is not fit and proper.
Further, the circumstances in which mental illness manifests itself may be exculpatory of contraventions of the Code or breach of obligations which have occurred.
Counsel for the Applicant referred to the decision of Mukiza and Minister for Home Affairs (Muzika).[56] In that case, when examining the need for protection of the Australian community under the then Direction No. 79 of the Act in the context of whether to cancel the revocation of a visa under s 501CA of the Act, the Tribunal said:
44. …, it is proper to conclude, in accordance with well accepted principles of criminal justice, the criminal behaviour of a person who is affected by mental illness and whose mental health contributed to his offending in a material way, should be regarded as less culpable than an ordinary person so unaffected: R. v Hemsley [2004] NSWCCA 228 at [33] per Sperling J. The Tribunal takes the view that this is the proper approach to take when considering the seriousness of the Applicant’s offending.
45. In this regard, the Tribunal, overall, considers the seriousness of the Applicant’s offending should be regarded as considerably diminished for that reason. That is to say, the mental health condition contributed to his offending. Furthermore, the Tribunal considers the offences suggest behaviour that was largely personal to the Applicant rather than offending which involved and affected other people at large. For example, it was not suggested the Applicant was a drug dealer. He gave evidence denying to that effect and the Tribunal is satisfied that evidence was correct.
[56] [2019] AATA 4445.
While Muzika was concerned with culpability for criminal conduct, in my opinion such an approach is relevant in deciding whether the culpability to be attached for particular conduct being examined in any disciplinary process under the Act should be reduced by reason of mental illness. In this sense, it may be a mitigating factor when considering the seriousness of the impugned conduct and the need for protection of the public and the maintenance of trust in the migration system.
The second matter relevant to determination of these proceedings is the nature of the power granted by s 303 of the Act and how it should be exercised.
Of this power, Perry J said in Kraues v Office of the Migration Agents Registration Authority and Another:[57]
[57] [2018] FCA 664; [2018] 158 ALD 493 at [14]-[17].
[14] Following registration, registered migration agents are subject to ongoing monitoring and regulation by the Authority: Shi v Migration Agents Registration Authority (2008) 235 CLR 286; 248 ALR 390; 103 ALD 467; [2008] HCA 31 (Shi) at [149] (Kiefel J). Registration is for a twelve month period only (s 299(1)) and continued registration is subject to meeting annual requirements for continuing professional development (s 290A) and to maintaining professional indemnity insurance (s 292B). A registered migration agent is also under an obligation to conduct herself or himself in accordance with the prescribed Code by virtue of s 314(2): see further at [92] below. Further, s 308 arms the Authority with compulsive powers to require a registered migration agent to make a statutory declaration in answer to questions in writing, to appear before the Authority to answer questions, and to provide the Authority with documents or records. That power is in its terms unconfined and therefore subject only to such limitations as may be implied from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; 66 ALR 299 at 309; 10 ALN N109 at N112 (Peko-Wallsend) (Mason J).
[15] Provision is made for disciplining registered migration agents under s 303 relevantly as follows:
(1) The [Authority] may:
(a) cancel the registration of a registered migration agent by removing his or her name from the register; or
(b) suspend his or her registration; or
(c) caution him or her; if it becomes satisfied that:
…
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
…
(h) the agent has not complied with the Code of Conduct prescribed under section 314.
[16] A Code of Conduct is prescribed by Sch 2 to the Migration Agents Regulations 1998 (Cth) (Regulations): see further below at [92]–[98].
[17] Importantly, the purpose of the disciplinary powers conferred by s 303 is protection of the public and not punishment as such: Shi at [50] (Kirby J); see also by analogy Smith v New South Wales Bar Association (1992) 176 CLR 256 at 270; 108 ALR 55 at 66 (Deane J).
[18] The Act does not, however, prescribe any particular process whereby the Authority becomes seized of the question whether action should be taken against a migration agent under s 303, by contrast, for example, with the process in Div 3AA of Pt 3 for disciplining migration agents engaging in vexatious activity, which is commenced by a referral from the Minister. It is not necessary, in other words, for there to be a complaint before the Authority may consider whether to take action under s 303. However, once the Authority is considering taking action under s 303, it must inform the migration agent of that fact and the reasons for it, and invite the migration agent to make submissions (s 309(2) of the Act). If the invitation to make a submission is taken up, the person making the submission may be afforded the opportunity to appear before the Authority: s 310(3). Where it is considering making an adverse decision under s 303, the Authority also has power, by written notice under s 305C, to require the migration agent concerned to provide it with prescribed information or documents within a specified period. A failure to comply with a s 305C notice is an offence of strict liability: s 305C(4) and (5).
As to how the power under s 303 of the Act should be exercised, the observations of Deputy President Frost in Kishore and Tax Practitioners Board(Kishore),[58] regarding the imposition of a sanction, are equally applicable in the context of migration agents. In Kishore, the Deputy President said:[59]
[58] [2017] AATA 271
[59] Kishore at [18]-[19].
18. The imposition of a sanction is not for the purpose of punishing the individual, but for the protection of the public and the maintenance of proper standards within the regulated industry. A sanction may also serve the purpose of personal deterrence (to encourage the individual to comply with standards in the future) or general deterrence (to encourage others to comply).
19. In deciding on the appropriate sanction, a decision-maker should take into account the following:
·the seriousness of the conduct warranting the sanction;
·the likelihood that the conduct will be repeated and the potential harm to the public if it is;
·the impact of a particular sanction on the individual (and especially where the sanction may inhibit or prevent the individual’s capacity to earn a living);
·the interest of the public in seeing appropriate sanctions applied;
·the extent to which the individual has acknowledged the breaches and the seriousness of them; and
·the extent to which the individual has demonstrated genuine contrition or remorse.
This approach is consistent with the observations of Deputy President McCabe in Ta and Migrations Agents Registration Authority[60] as to the nature of the power and its objectives.
[60] [2023] AATA 500 and [21].
The appropriate sanction
I am satisfied that the conduct of the Applicant constitutes a failure to comply with the Code of Conduct and that the jurisdiction under s 303 of the Act to impose a sanction is enlivened.
The Applicant has admitted the contraventions concerning the following obligations:
(a)cl 13(1), 14(1) and 14(2)(a) of the Code. This included that some of his communications with the Client were inappropriate and unprofessional;
(b)cl 33(c)-(e) of the Code, including acting in a timely manner. In this regard, the Applicant accepted the need for “stronger safeguards” “to ensure uninterrupted coverage for all clients should an emergency re-occur”;
(c)s 308(1) of the Act and cls 17-18 of the Code. This admission relates to failing to provide a statutory declaration and providing inappropriate advice to the Client concerning communication with border officials. There is also an acknowledgement of failing to keep proper records of oral communication with clients as required by cl 55 of the Code;
(d)cl 35 of the Code. This concerned erroneously sending an email to the Client which was intended for another client, thereby disclosing confidential information concerning that other client;
(e)s 313 of the Act and cl 50(1)(d)(i) and 52(3)(a) of the Code. This contravention related to the failure to provide a statement of service and appropriating client funds contrary to the provisions of the Act. It also concerned having insufficient available funds to meet any obligations under the refund policy.
Some of these contraventions were sought to be explained:
(a)by reference to the Applicant’s ill-health,
(b)in the case of fees transferred contrary to the Act on the basis of “misapprehension” or “misunderstanding of procedural obligations rather than deliberate misconduct”, and
(c)in the case of breach of confidentiality – human error in respect of a one-off occasion.
Through his submissions and in his evidence the Applicant expressed remorse.
As to s 303(1)(f) of the Act and the matters of integrity and fitness and propriety, the Applicant concedes “these are serious”.[61] The Applicant does not contend such conduct does not demonstrate a lack of integrity or a lack of fitness and propriety. Rather, submissions were made concerning:
(a)the gravity of the conduct,
(b)the comparative seriousness in the context of other matters which have attracted a six-month suspension,
(c)the subsequent conduct of the Applicant in addressing the various contraventions and his health issues,
and the requirement that the assessment to be made is at the date of the hearing by the Tribunal having regard to the evidence before it.
[61] Applicant's SFICS paragraph 35 – AB p 495.
Notwithstanding these concessions and accepting that the need for a sanction or the extent of the sanction to be imposed may be mitigated by reason of ill-health and/or by reason of action subsequently taken to address the likelihood of recurrence, in the present case I have come to the view that a sanction by way of suspension is appropriate and that conditions should be imposed in connection with that suspension.
In doing so, I have formed the opinion that the Applicant is not presently a fit and proper person to be a migration agent.
My reasons are as follows.
As noted above, contraventions of the Code are conceded.
Relevant evidence concerning fitness and propriety includes the conceded Code breaches as well as the following:
(a)the Applicant’s diagnosis of schizophrenia and his hospitalisation and treatment in connection therewith at various times;
(b)the reports of the Applicant’s treating psychiatrist, including the most recent report prepared December 2024, indicating the Applicant was “in remission” and that the Applicant’s “capacity to work is intact”;
(c)the Applicant’s communications with the Client after he left hospital;
(d)the Applicant’s correspondence to the Respondent in connection with the complaint, by the Client, the 308 Notice and 309 Notice (set out above) 2024 and, more recently, the Applicant’s email dated 15 April 2025. In that email the Applicant wrote:[62]
[62] AB p 229.
I would like to know why you have placed a notice on my registration without a letter that I cannot be registered and will be unemployed after 2026 despite being a migration agent for nearly 10 years now.
Can you explain the regulations and legislation that justifies this notice as I do feel that the agency has targeted me over the last few years and particularly recently with a $9000 costs bill?
I will be seeking costs now you have taken no action in many months since I responded to that notice via my lawyer.
Please respond promptly. Thank you.
I note the email of 15 April 2025 was sent after the Applicant had engaged lawyers to act on his behalf to make submissions in response to the 309 Notice and before the respondent made the Decision.
(e)the oral evidence of the Applicant concerning:
(i)advice given to the Client and his statement in evidence in chief that it was “quite normal” for a person to arrive on an ETA (which permits a maximum stay of 3 months) and make an onshore Visa application to stay longer;
(ii)his response to the Tribunal’s question concerning not disclosing information to border officials to which he said, inter-alia, “I told her the wrong thing”;
(iii)the cross-examination of the Applicant where he described his recent communications with the respondent in November 2024 and, more recently, in April 2025 as “silly”, those communications variously asserting the applicant:
o   was being harassed and defamed;
o   was being targeted;
o   would go to the ombudsman;
o   would claim for compensation.
As will be apparent from the above, conduct supporting a finding the Applicant is not a fit and proper person is broader than that identified in paragraph 34 of the Applicant’s SFICS which I set out at [85] above. It includes inappropriate communications to the Client and to the Respondent.
The evidence also included a statement in the Decision concerning the diagnosis of schizophrenia[63] which Counsel for the Applicant relied upon in closing submissions in the context of how the Applicant’s oral evidence was to be evaluated in light of the opinion of his treating psychiatrist that his condition was in remission. Here, Counsel referred to the “negative symptoms (i.e. diminished emotional expression or avolition)” which is part of the standard diagnosis criteria for schizophrenia.
[63] Reasons at [80]-[81] – AB p 242.
The Tribunal was provided with little medical evidence as to his current state of mental health. The last report from his treating psychiatrist was in December last year. No up-to-date report or witness statement was provided in respect of events since that time.
My observation of the Applicant when giving evidence gives rise to my continuing concern about his understanding of his obligations and duties as a migration agent, his appreciation of errors previously made and his ability to act appropriately in the future.
If I accept the December Doctors Report as reflecting the Applicant’s current state of mental health and capacity to act in a professional manner, then his communications with the Respondent, particularly since November 2024 until April 2025, and his evidence about these matters in cross examination shows a lack of capacity to comply with the Code, for example in a manner required by clauses 13 and 14.. In this regard, while the Applicant described these communications as “silly” in the sense they were “something that you shouldn't do and it's not professional and it's regrettable”, the fact is such communications have continued even where disciplinary action was being taken and where the Applicant had engaged lawyers to represent him in those proceedings.
Further, his answers concerning compliance with migration law and the appropriateness of advice previously given also left me with a view that the Applicant thought it was acceptable to withhold information from those exercising power under the migration legislation, something that he described in examination in chief as “quite normal”. In making this observation, I note the Applicant gave evidence that he did not intend to defeat the purpose of the migration law but then continued “I don’t like to, you know, try to get people to go around the law. I just try to do the paperwork”.
On the other hand, accepting the lifelong nature of his medical condition, and the negative symptoms that might manifest in a person suffering from schizophrenia, these answers might properly be understood as an incapacity to meet his obligations as a migration agent because of his medical condition as opposed to a continuing disregard of his obligations and failure to modify his conduct appropriately.
Considering the evidence as a whole, I have formed the view that presently, the Applicant is not a fit and proper person to be a migration agent. This lack of fitness and propriety arises in part from his medical condition for which he has received and continues to receive treatment. However, despite three months having passed since the Decision was made and a suspension imposed, the Applicant has not yet demonstrated a capacity to regulate his himself or his affairs to avoid the recurrence of contravening conduct.
As provided by the authorities, sanctions are both protective and provide specific and general deterrence. While a sanction is not imposed to punish the person subject to disciplinary action, it should be appropriate to meet the objectives of the legislation having regard to the evidence before the Tribunal of matters both past and present.
Where a period of suspension is imposed, it may be for a period of not more than 5 years and it may include “a condition or conditions for the lifting of the suspension”.[64] Where two or more conditions are imposed, “one of them may be that at least a set period of suspension has ended”.[65]
[64] The Act s 304(1).
[65] The Act s 304(2).
In the present case, I am satisfied that the nature of the protective jurisdiction requires that the period of suspension should continue. The question is for how long and on what conditions.
The effect of the Decision is that the suspension is imposed for a minimum of six months and is not lifted until all conditions are satisfied. If the conditions are not satisfied within a period of four years then the registration may be cancelled.
It was not suggested that a suspension could not be imposed under the Act in accordance with the above terms.
As noted above, there is no stay of the Decision.
The conditions imposed by the Decision seek to address the contravening conduct, avoid future recurrence and ensure compliance with the terms of the suspension by requiring the Applicant:
(a)to undertake education on topics relevant to the contravening conduct;
(b)to provide a statutory declaration setting out the arrangements in place to protect the interests of clients in the event of future illness, incapacity or unavailability of the Applicant; and
(c)to provide a statutory declaration confirming the Applicant is not undertaken work as a migration agent in contravention of the suspension.
No evidence has been provided by the Applicant as to the steps taken to comply with the conditions which have been imposed. As such, it is unclear what, if any, progress has been made by the Applicant toward having the suspension lifted.
However, I am satisfied that the conditions meet the objectives of the legislation by requiring the applicant to undertake further education and to put in place arrangements for third-party support to provide continuity of service to his clients in the event he is unavailable.
In relation to the potentiality that the suspension will operate longer than a six-month period, whether or not this occurs is within the control of the applicant in that satisfaction of the conditions within the 6-month period will result in the suspension being lifted.
Finally, I have considered the question of whether an additional condition should be imposed requiring the Applicant to obtain a medical report from his treating psychiatrist concerning his capacity to carry out work as a migration agent.

I have formed the view such additional condition is not necessary. The requirements for continuing education and the implementation of a plan to protect clients if the Applicant becomes unavailable or incapacitated are intended avoid the recurrence of contraventions and ensure clients are not put at risk by reason of delay or other inattention to their migration affairs. As the conditions contemplate, this will include arrangements being put in place for an alternative person, suitably qualified, to step in and manage casework should the need arise.
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.