Raygan and Migration Agents Registration Authority
[2020] AATA 1164
•6 May 2020
Raygan and Migration Agents Registration Authority [2020] AATA 1164 (6 May 2020)
Division:GENERAL DIVISION
File Number(s): 2018/3100
Re:Ryan Raygan
APPLICANT
Migration Agents Registration AuthorityAnd
RESPONDENT
DECISION
Tribunal:Deputy President P Britten-Jones
Date: 6 May 2020
Place:Adelaide
The Tribunal affirms the decision under review.
[Sgnd]
…………………………………………
Deputy President P Britten-JonesCATCHWORDS
Migration Agent Registration Authority – migration agent – code of conduct breached under Migration Agents Regulations 1998– cancellation of registration – failure to comply with code of conduct – not a person of integrity – not a fit and proper person to give immigration assistance – decisions affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
CXXXVIII v Honourable Justice Richard Conway White [2020] FCAFC 75
Shi v Migration Agents Registration Authority [2008] HCA 31SECONDARY MATERIALS
Migration Agents Regulations 1988 (Cth) Schedule 2 Code of Conduct
REASONS FOR DECISION
Deputy President P Britten-Jones
The applicant’s registration as a migration agent was cancelled by a delegate of the respondent (“MARA”) on 11 May 2018 after considering numerous complaints from previous clients. The delegate was satisfied that the applicant was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance, and that the applicant had not complied with the applicable Code of Conduct.
The applicant gave oral evidence. I was not impressed with him as a witness. He failed to answer questions directly, instead often providing an explanation for his behaviour when not asked. This explanation often included blaming his clients for changing their story. The applicant failed to make appropriate concessions and there were numerous inconsistencies in the explanations he provided for his conduct.
The most significant failing as a witness of the applicant was when he was asked to explain why passages of the written statements of claim prepared by the applicant on behalf of different clients were often almost word for word the same. It was apparent from a quick comparison of the documents that the applicant had used the copy and paste function available when drafting a document on a computer. Examples of the similar passages are referred to below.
Under cross-examination the applicant denied fabricating any story of a client. He said that he listened to the client’s story and then wrote it down. He denied copying any passages from a previous client’s statement of claim and denied using those passages in a new client’s statement of claim. This evidence is clearly false. Counsel for the respondent put to the applicant numerous examples of replicated passages from the statements of claim of different clients. The applicant maintained his denial. I raised my concern that it was apparent from the face of the documents that passages had been copied. The applicant maintained his denial. There was then a break for lunch after which the applicant offered an explanation for his earlier evidence and said that he was confused when he had been asked whether he had copied and pasted passages of statements of claim. He explained that he never fabricated a client’s story but that he did copy and paste from previous clients’ statements of claim where their stories were the same. He said that as a migration agent he saw many clients whose stories had a common theme, for example being persecuted as a Christian in Iran and being arrested or shot at. This was the reason for the similarity of the passages. The applicant maintained that he accurately recorded the instructions given to him by clients. This is obviously false, and I reject this evidence from the applicant.
The conduct of the applicant in the witness box together with the conduct set out below of the applicant as a migration agent indicates that he is not a person of integrity and that he is not a fit and proper person to give immigration assistance. The decision of MARA to cancel his registration was the correct and preferable decision.
LEGISLATIVE FRAMEWORK
The relevant legislation in this matter is the Migration Act 1958 (Cth) (“the Act”), particularly Part 3, Division 3 of that Act.[1] This legislation was considered by the High Court in Shi v Migration Agents Registration Authority[2] in which Kirby J said:
Responsibility for administering the Register of Migration Agents is reposed in the Authority. It may cancel or suspend an agent's registration, or caution an agent, if it becomes satisfied, for example, that the agent is not a person of integrity, or is otherwise not a fit and proper person to give immigration assistance, or if the agent has breached the Code of Conduct prescribed under the Act. Registration as an agent is important because only a registered agent may lawfully charge a fee to provide immigration assistance to visa applicants and sponsors.
[1] All references to legislation are to the Migration Act unless otherwise stated
[2] [2008] HCA 31 at [6]
Section 303 of the Act provides for the disciplining of registered migration agents. It states:
(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:
(d)the agent’s application for registration was known by the agent to be false or misleading in a material particular; or
(e)the agent becomes bankrupt; or
(f)the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g)an individual related by employment to the agent is not a person of integrity; or
(h)the agent has not complied with the Code of Conduct prescribed under section 314.
Section 314(1) of the Act provides that the Migration Agents Regulations 1988 (Cth) (“the Regulations”) may prescribe a Code of Conduct (“the Code”) for migration agents. Section 314(2) of the Act provides that a migration agent must conduct him or herself in accordance with the Code. The Code is set out in Schedule 2 of the Regulations.
The Code includes the following relevant clauses:
Part 1 – Introduction
1.11The Code does not list exhaustively the acts and omissions that may fall short of what is expected of a competent and responsible registered migration agent.
1.12 However, the Code imposes on a registered migration agent the overriding duty to act at all times in the lawful interests of the agent’s client. Any conduct falling short of that requirement may make the agent liable to cancellation of registration.
Part 2–Standards of professional conduct
2.1A registered migration agent must always:
(a)act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client; and
(b)deal with his or her client competently, diligently and fairly.
However, a registered migration agent operating as an agent in a country other than Australia will not be taken to have failed to comply with the Code if the law of that country prevents the agent from operating in compliance with the Code.
…
2.4A registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.
…
2.6To the extent that a registered migration agent must take account of objective criteria to make an application under the Migration Act or Migration Regulations, he or she must be frank and candid about the prospects of success when assessing a client’s request for assistance in preparing a case or making an application under the Migration Act or Migration Regulations.
…
2.9A registered migration agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.
…
2.17If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) a registered migration agent:
(a)must not encourage the client to lodge the application; and
(b)must advise the client in writing that, in the agent’s opinion, the application is vexatious or grossly unfounded; and
(c)if the client still wishes to lodge the application–must obtain written acknowledgement from the client of the advice given under subparagraph (b).
Note:Under section 306AC of the Act, the Minister may refer a registered migration agent to the Authority for disciplinary action if the agent has a high visa refusal rate in relation to a visa of a particular class.
…
Part 5–Fees and charges
…
5.5A registered migration agent must be aware of the effect of section 313 of the Act, and act on the basis that:
(a)the agent is not entitled to be paid a fee or other reward for giving immigration assistance to a client unless the agent gives the client a statement of services that is consistent with the services, fees and disbursements in the Agreement for Services and Fees mentioned in clause 5.2; and
Note:the statement of services may be an itemised invoice or account. See clauses 7.2 and 7.4.
(b)a statement of services must set out:
(i)particular of each service performed; and
(ii)the charge made in respect of each such service; and
(c)a client is entitled by the Act to recover the amount of a payment as a debt due to him or her if he or she:
(i)made the payment to the agent for giving immigration assistance; and
(ii)did not receive a statement of services before making the payment; and
(iii)does not receive a statement of services within 28 days after a final decision is made about the visa application, cancellation review application, nomination or sponsorship to which the immigration assistance related.
…
Part 6–Record keeping and management
6.1A registered migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing:
(a)a copy of each client’s application; and
(b)copies of each written communication between:
(i)the client and the agent; and
(ii)the agent and any relevant statutory authority; and
(iii)the agent and the Department regarding the client; and
(c)file notes of every substantive or material oral communication between:
(i)the client and the agent;
(ii)the agent and any relevant statutory authority; and
(iii)the agent and the Department regarding the client.
6.1AA registered migration agent must keep the records mentioned in clause 6.1 for a period of 7 years after the date of the last action on the file for the client.
…
Part 7–Financial duties
…
7.4A registered migration agent must keep records of the clients’ account, including:
(a)the date and amount of each deposit made to the clients’ account, including an indication of the purpose of the deposit and the client on whose behalf the deposit is made; and
(b)the date and amount of each withdrawal made in relation to an individual client, and the name of each recipient of money that was withdrawn; and
(c)receipts for any payments made by the client to the agent; and
(d)statements of services; and
(e)copies of invoices or accounts rendered in relation to the account.
…
Part 9–Complaints
9.1A registered migration agent must respond properly to a complaint by a person (whether or not the person is a client) about the work or services carried out by the agent or the agent’s employee.
…
Part 10–Termination of services
…
10.4A registered migration agent must not withhold a document that belongs to a client, as part of a claim that the agent has a right to withhold a document by a lien over it, unless the agent holds a current legal practising certificate issued by an Australian body authorised by law to issue it.
10.5On completion of services, a registered migration agent must, if asked by the client, give to the client all the documents:
(a)given to the agent by the client; or
(b)for which the client has paid.
10.6If the client terminates the instructions, a registered migration agent must take all reasonable steps to deliver all documents quickly to the client or any other person nominated by the client in writing. If the agent claims a lien on any documents, the agent must take action to quantify the amount claimed and tell the client in a timely manner.
ISSUES
There are two elements to this matter that I need to consider. The first is whether the applicant has conducted himself in a way that would warrant a sanction to be imposed under s 303 of the Act. Second, if I am satisfied of the first element, I need to determine the appropriate sanction under s 303.
CONTENTIONS
The respondent’s first contention is that the Tribunal should be satisfied that the applicant has conducted himself in a manner that warrants the imposition of a sanction under s 303. The basis for this contention is that the applicant:
(a)pursuant to s 303(1)(h) of the Act, has failed to comply with the Code; and/or
(b)pursuant to s 303(1)(f) of the Act, is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance.
If the Tribunal agrees with the first contention, the respondent contends that the appropriate sanction under s 303 is for the applicant’s registration to be cancelled, and for the respondent’s decision dated 11 May 2018 to be affirmed.
The applicant contends that he is a person of integrity and fit and proper to give immigration assistance. He does concede that, on occasion, he has breached certain clauses of the Code. However, he disputes that the appropriate sanction under s 303 is a cancellation of his registration. It is the applicant’s position that a caution under s 303(1)(c) of the Act is sufficient.
The task of the Tribunal on this review was stated by the High Court in Shi:[3]
In reviewing MARA's decision to cancel the appellant's registration, the Tribunal was empowered (by s 43(1) of the AAT Act) to exercise all the powers and discretions conferred by the Migration Act on MARA. The questions for the Tribunal in reviewing the cancellation decision were first, whether the Tribunal was satisfied that either of the s 303(1) grounds said to be engaged in this case was made out, and secondly, whether the Tribunal should exercise the powers given by s 303(1) to cancel or suspend the appellant's registration or to caution him. That is, the first questions for the Tribunal were whether it was satisfied that the appellant "is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance" and whether it was satisfied that the appellant had not complied with the Code of Conduct.
MARA's contention, in this Court and in the courts below, that the question for the Tribunal was whether the correct or preferable decision when MARA made its decision was to cancel the appellant's registration, should be rejected. It finds no footing in the relevant provisions. To frame the relevant question in the manner urged by MARA would treat the Tribunal's task as confined to the correction of demonstrated error in administrative decision-making in a manner analogous to a form of strict appeal in judicial proceedings. But that is not the Tribunal's task.
It has long been established that:
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.”
(footnotes removed)
[3] [2008] HCA 31 at [96] to [98]
It is apparent from Shi that I am entitled to consider the applicant’s behaviour in the period after the cancellation of his registration as a migration agent. In particular, I am entitled to rely on his conduct in responding to allegations and complaints made against him including his conduct as a witness before the Tribunal. The fact that the applicant gave false and inconsistent evidence goes directly to his integrity and his fitness to operate as an immigration agent.
BACKGROUND
The applicant first registered as a migration agent on 20 July 2015.
Between November 2016 and December 2017, MARA received nine complaints concerning the applicant’s conduct from both the applicant’s clients and the Department of Immigration and Border Protection (“the Department”).
On 17 February 2017, MARA provided the applicant with a notice under s 308 of the Act concerning three complaints received by MARA between 5 November 2016 and 8 February 2017 and one complaint in February 2017. On 10 April 2017, the applicant provided MARA with a response to the notice.
On 3 May 2017, MARA provided the applicant with a second notice under s 308 of the Act concerning a complaint received by MARA on 1 March 2017. On 30 May 2017, the applicant provided MARA with a response to this second notice.
On 25 July 2017, MARA made a further request for information, to which the applicant responded on 11 August 2017.
On 13 December 2017, pursuant to s 309 of the Act, MARA provided the applicant with a notice advising that MARA was considering cautioning, suspending or cancelling the applicant’s registration under s 303(1) of the Act. The applicant was invited to provide MARA with a written response to this notice, and did so on 13 April 2018.
On 11 May 2018, MARA decided to cancel the applicant’s registration as a Migration Agent pursuant to s 303(1)(a) of the Act.
The delegate from MARA was satisfied that the applicant had failed to comply with clauses 2.1, 2.4, 2.6, 2.9, 2.9A, 2.17, 2.23, 5.5, 6.1, 6.1A, 7.4, 9.1, 10.4, 10.5(a) and 10.6 of the Code.
Pursuant to s303(1)(f) and s303(1)(h) of the Act, MARA was satisfied that the applicant:
(a)has not complied with the Code; and/or
(b)is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance.
On 6 June 2018, the applicant lodged his application for review with the Tribunal. On 18 April 2019 the applicant made an application for a stay of the cancellation decision, but he verbally withdrew that application on 3 June 2019. Consequently, the applicant has not been practising as a migration agent since the date of the cancellation decision on 11 May 2018.
BREACHES OF THE CODE OF CONDUCT
I will first consider the conduct of the applicant that was found by the delegate of MARA to breach those clauses of the Code which deal with administrative failures. I will then separately deal with those clauses relating to professional conduct.
Administrative Failures
The administrative failures of the applicant for non-compliance with clauses 3.2A, 5.5, 7.4, 6.1, 6.1A, 10.4, 10.5(a) and 10.6 of the Code relate to fees and charges, record keeping and management, financial duties and obligations upon termination of services. The applicant concedes that there were some administrative failures which are apparent from the files provided by the applicant for his clients – Mr Shafee, Mr Far, Mr Irani, Mr Alimi and Mr Barshahi. In his statutory declaration dated 14 November 2018[4] the applicant explained:
… Before I did my job practice ready course … I had over 100 clients. I started this course about one year after I started practising as MARA allowed migration agents to do so.
7. Looking back on my practice I think I grew too quickly and struggled to keep up. I learned a lot in the job practice ready course and if I was allowed to practice again I’d not take on as much work. I think I was just so happy to be providing for my family again that I let my practice get on top of me.
Clauses 3.2A and 5.5 – Consumer Guide and statement of services
[4] Exhibit 5, Statutory Declaration dated 14 November 2018 [6]
The respondent received complaints from Mr Far, Mr Irani, Mr Shafee and Mr Alimi that the applicant failed to provide them with the Consumer Guide, as required by clause 3.2A of the Code. The applicant denied this breach and said that he provided the Consumer Guide to all his clients. He said it was a one page document which he kept at his office. At the first meeting with clients he would place the Consumer Guide in front of them on the desk. With respect to Mr Irani, the applicant produced a client contact summary sheet[5] which recorded that at a meeting on 24 November 2015 the client received a copy of the Consumer Guide with his contract. However, there is no similar record for the other complainants, and I note that the client contact summary sheet for Mr Far,[6] Mr Shafee[7] and Mr Barshahi[8] did not mention that a Consumer Guide had been provided. I reject the applicant’s evidence that he gave them the Consumer Guide. I note that in the appellant’s submissions[9] provided on 28 January 2019 there was a concession that the applicant failed to provide Mr Alimi with a Consumer Guide, but in oral evidence the applicant retracted the concession. However, there is no record before the Tribunal that it was provided so I accept the complaint from Mr Alimi.[10] I find that the applicant failed to comply with clause 3.2A(a) by not giving these complainants a Consumer Guide. The file records show a breach of clause 3.2A(b) which requires the applicant to ‘make a record that the copy has been provided.’
[5] Exhibit 1,T417
[6] T377
[7] Exhibit 2, ST985
[8] ST1015
[9] Exhibit 6, appellant submissions
[10]T391
The applicant conceded that his standard services agreement did not meet the requirements of the Code for a statement of services.[11] The applicant confirmed in his oral evidence that he did not provide clients with a statement of services but he considered that his conduct was compliant with the Code because he had provided his clients with a document entitled Agreement of Services and Fees.[12] This suggests a fundamental miscomprehension of his obligations because the Code requires that a first document be provided to the client soon after receiving instructions (namely the Agreement for Services and Fees referred to in clause 5.2(c)) and that a second document be provided to the client after services have been performed (namely the statement of services referred to in clause 5.5). There is no entitlement to be paid until the provision of a statement of services which is consistent with the services, fees and disbursements set out in the Agreement for Services and Fees. The statement of services may take the form of an invoice or account, but it must include itemisation consistent with the Agreement for Services and Fees; namely it must include details of the services performed, the fees for those services and the disbursements.
[11] T901 Letter from the solicitor of the agent dated 28 February 2018
[12] See for example T396 and T307
The applicant did not issue clients with a statement of services but he did render them an invoice. The invoices to Mr Far[13] and Mr Shafee[14] are for ‘Instalment of agreement of services and fees signed by the client’. They include a generic description of the services provided, namely ‘Consultation fee, professional migrant advice, assistance and representation for visa …’. The issue for consideration is whether these invoices satisfied the requirements of clause 5.5 of the Code. I find that they do not.
[13] T376
[14] T320
With respect to the invoice to Mr Far, the ‘instalment’ amount invoiced is $470 plus GST of $47 being a total of $517. I do not consider that this invoice is ‘consistent with the services, fees and disbursements in the Agreement for Services and Fees’. The inconsistencies are apparent from a comparison of the Agreement with Mr Far dated 25 November 2015[15] and the invoice to Mr Far dated 29 February 2016.[16] The Agreement was a ‘Lump Sum Agreement’ for a total estimate of $1,535 which provided for a deposit of $200 to be paid on 25 November 2015 and the balance of $1,335 upon lodgement. There was no provision for payment by instalment and yet the invoice was for an instalment amount. The Agreement said that no GST was payable but the invoice included GST.
[15] T307
[16] T376
Further, it would appear that a separate invoice or statement of services was not provided for payments totalling $1030 paid on 25 November 2015, 1 and 2 February 2016.[17] The applicant had no entitlement to be paid that amount without a separate invoice or statement of services detailing the services provided.
[17] See applicant’s lawyer’s letter at T 371
Mr Far said[18] that the applicant offered him a 10% deduction for each client referral and that was why he was not invoiced the full amount of $1535. The applicant’s lawyer[19] claimed that Mr Far only paid $1,030 and that the balance of $505 remained owing. The applicant denies any referral agreement in his statutory declaration dated 7 April 2017[20] but has only provided the one invoice dated 29 February 2016 for $517. The figures do not reconcile, and I am not in a position to resolve the issues between the applicant and Mr Far. However, I am able to conclude that the applicant’s invoice dated 29 February 2016 is not sufficiently itemised and does not comply with the requirements for a statement of services in clause 5.5 of the Code. The invoice was not itemised and did not include details of the service provided with respect to this instalment. Mr Far was entitled to know what services were covered by this instalment. Clearly it was not all the services referred to in the Agreement, but the reader of the invoice has no way of knowing what services were covered by this invoice.
[18] T313
[19] T371
[20] T374. See also letter from applicant’s lawyer at T371
There are similar issues with the invoice to Mr Shafee. This is apparent from the letter from the applicant’s lawyer dated 10 April 2017.[21] Mr Shafee paid an amount of $900 after entering into the Agreement for Services dated 1 March 2016. There was no separate invoice or statement of services as required by clause 5.5 of the Code. On 29 March 2016 the applicant rendered an invoice for an instalment amount of $660 with only a generic description of the services provided. This invoice does not comply with clause 5.5 for the same reasons as the invoice for Mr Far (which is in a similar form).
[21] T314
Similarly, with respect to Mr Barshahi, the applicant received payments after entering into the Agreement for services and before issuing an invoice for an instalment amount.[22]
[22] See letter from applicant’s lawyer at T321, the Statutory Declaration at T324 and the Invoice at T369
I accept and adopt the finding made by the delegate of MARA in her decision on 11 May 2018 at [143]:
In responding to this matter in the section 309 notice submission, the Agent conceded that he failed to issue Statements of Service in accordance with the requirements of the Code. Consequently, I am satisfied that the Agent failed to issue Statements of Service to Mr Shafee, Mr Barshahi, Mr Maghsoudi Far, Mr Irani and Mr Alimi, and based on the Agent’s concession, that this practice extended to the Agent’s broader client caseload. I am also satisfied that, given the Agent’s concession and the significant period of time since the Agent received payments from the identified clients, the Agent was not entitled to the payments made without issuing his clients a Statement of Service, in accordance with clause 5.5(c)(iii) of the Code.
Part 5 of the Code makes a clear distinction between the Agreement for Services and Fees in clause 5.2 and the statement of services in clause 5.5. The first document is forward looking and includes details of the services that the agent expects to provide with an estimate of the cost to be charged for those services. The second document is backward looking and includes details of the services actually provided and the amount charged for them. The services and fees charged in the second document must be consistent with what was set out in the first document. No fee may be charged until a statement of services is provided notwithstanding that an Agreement for Services and Fees may have only recently been provided. For example, if the agent wished to charge a deposit then it is not merely sufficient to state the amount of the deposit in the Agreement for Services and Fees; it is also necessary to render a compliant invoice so as to be entitled to be paid for that deposit.
The applicant’s failure to comply with Part 5 of the Code was twofold because, first, he received payments without issuing a statement of services or an invoice and, second, because the invoice he later issued was not itemised and failed to provide the necessary details of the services performed. The Code provides a mechanism for consumer protection to ensure that clients, who may often be vulnerable and of limited means, receive sufficient details of the services they are receiving before they are required to pay for them. The first and second documents are equally important to provide transparency in a complex legal process where the client needs and relies upon the agent acting in good faith on behalf of the client. Consequently, the obligation to issue a Statement of Services which is consistent with the Agreement for Services and Fees is of substantial importance and the failings by the applicant must be viewed seriously.
Clauses 10.4, 10.5(a) and 10.6 – failure to return documents
There were numerous complaints that the applicant had failed to return documents to clients. The applicant has conceded a breach with respect to Mr Barshahi and said that he withheld the documents because he had not been paid.[23] The breach is serious because Mr Barshahi first requested the return of his documents on 31 December 2016 and again on 26 January 2017. It was only on 22 February 2017 that the documents were returned after a delegate of MARA had become involved. The applicant displayed his ignorance of the Code by saying in his statutory declaration that he was ‘unaware that Registered Migration Agents did not have a right of lien over client documents in the same way that solicitors do.’[24] The applicant was wrong to pressure the client into paying his fees by withholding his documents. The prohibition in clause 10.4 of the Code is very clear and it is of concern that the applicant claimed that he was unaware of it.
Clauses 6.1 and 7.4 – duty to maintain proper administrative and financial records
[23] T901 at [9] and T902 at [12.2] and Exhibit 7, Applicant’s Supplementary Submissions at [21]
[24] T326 at [10.2]
The applicant has admitted a failure to maintain proper records.[25] The applicant provided the complete files that he maintained for numerous complainants and it is apparent from these files that his record keeping was poor and in breach of the Code. There were very few file notes of communications with clients and numerous errors in the written receipts provided to clients. The applicant stated in evidence he would dispose of any original notes once they had been typed into the computer.[26] There is little evidence before the tribunal to support the applicant’s claim that he contacted clients adequately in order to carry out his role as a migration agent.
[25] Exhibit 7 at [41] and T902 at [12.3]
[26] Exhibit 5 at [10].
The applicant has failed to comply with clauses 6.1 and 7.4 of the Code. This failure was widespread because all the files for complainants indicate that the applicant did not make or keep records as required by the Code.
Clause 9.1 – failure to respond properly to the respondent
There was an incident on 14 February 2017 when the applicant responded rudely to an officer of the respondent in a telephone conversation. The applicant has conceded that his dealings with the respondent were inappropriate and he has apologised in writing and orally for his conduct. It was aggressive behaviour which caused offence to the officer. I find that this conduct constituted a breach of clause 9.1 of the Code, but I take into account that the applicant apologised soon after the incident.
Professional conduct failures
Clauses 1.12, 2.6 and 2.9 – obligation to act in the interests of the client and obligation to be frank and candid about prospects of success and to not make misleading or inaccurate statements
The applicant had an obligation to give frank and candid advice when acting as a migration agent for clients. With respect to Mr Far, the applicant said in his statutory declaration dated 7 May 2017 that Mr Far did not request, and that the applicant did not provide, an assessment of the prospects of success of his application. Later, in a letter from his solicitor dated 28 February 2018 the applicant admitted that he failed to test the veracity of inconsistent or incredible information provided by Mr Far, including the inconsistencies instructed by him regarding his religion. This was a breach of the Code which had very real consequences for Mr Far because the inconsistencies were relied upon by the delegate of the Minister for Immigration and Border Protection to conclude that he lacked credibility and to ultimately reject his application for a temporary protection visa. The Minister’s delegate said in her reasons dated 20 January 2017:[27]
I advised the applicant that there were a few inconsistencies in his application which needed to be discussed further. … I advised him I had noticed that in his current visa application, he had directly substituted the word “Christianity” where in his previous written statement, [in] the same paragraph the word “Baha’i” had been referenced. I read out an example section from the invalid 866 application and contrasted this with his current visa application, where the word “Baha’i” had been directly substituted by the word “Christian/Christianity”. … I advised the applicant I was required to consider whether these claims had been made for the sole reason of obtaining a visa to enable him to remain in Australia.
[27] ST19 at p 1054
Mr Far’s complaint to the respondent was that the applicant had advised him to change his claims from Baha’i to Christianity, but the applicant denies this and says that he was acting in accordance with instructions from Mr Far. The applicant produced no records of the instructions allegedly given by Mr Far. This highlights the need to keep records of discussions with the client. The failure to make and retain records is a breach of the Code, and it creates doubt about the applicant’s version of events.
Even if the applicant was acting in accordance with instructions when drafting the application, he should not have copied and pasted the previous written statement and should not have merely substituted ‘Baha’i’ for ‘Christianity’ into that previous statement because that necessarily resulted in a misleading statement in the application in breach of clause 2.9 of the Code. Further, he should have advised the applicant about the obvious inconsistency in his statements. In failing to do so, the applicant failed to comply with the requirements in clause 1.12 of the Code to act in the interests of the client and the requirement in clause 2.6 of the Code to give frank and candid advice about the prospects of success.
With respect to Mr Irani, the applicant conceded at [16] of his statutory declaration dated 14 November 2018[28] that he included inaccurate information in his protection visa application. There was also a dispute as to the instructions given, but once again, there were no notes or records made or kept by the applicant (in breach of the Code).
[28] Exhibit 5
With respect to Mr Keshavarz, there were inconsistencies between his entry interview and what the applicant wrote in his protection visa application. Breaches of the Code arise because the applicant failed to test the inconsistencies or to give advice about them, resulting in his advice being less than frank and candid and not in the best interests of the client. Further, the information in the application appeared to have been copied and pasted from another client’s application and therefore was inaccurate and misleading.
Templates used in claims for protection
The respondent received complaints from the Department relating to the inclusion of ‘template’ wording in responses contained in protection visa applications and statements of claim prepared by the applicant. The respondent conducted a review of 40 applications prepared by the applicant in which repeated instances of duplicated wording were found. Examples of the use of templates are included in the decision of the delegate of the Department.
I set out above in paragraphs 3 and 4 the response of the applicant when questioned about the template wording which was evident from the statements of claim of different clients. I will not replicate all the examples of duplication. The most egregious examples relate not to a generic statement about the situation in Iran (for example) but to a factual situation particular to a client. It is utterly implausible to suggest that the facts with respect to both clients were accurate. I have placed in bold the words which appear in both clients’ statement of claims.
Mr Irani statement of claims Q 89:[29]
Once when in the mooring I was walking with dog around the road police caught me and threatened me. When I was taking my beloved dog to the vet, because it was so sick, they stopped me on the road, they said I should be at the masque, not carrying a dog …
[29] T658
Mr Naeimaei statement of claims Q 89:[30]
Once when in the mooring I was walking with dog around the road as I was taking my beloved dog to the vet, because it was so sick. They stopped me on the road, they said I should be at the masque, not carrying a dog …
[30] T787
Mr Asakereh statement of claims Q 89:[31]
They were giving me warnings to “freeze”. The shot blanks too. As soon as I reached the street, I hailed a private car. An elderly man who was driving the car stopped for me. In the car, he asked me what had happened and I asked him to save me from the Ettela’at agents.
[31] T799
Mr Naeiaei statement of claims Q89:[32]
They were giving me warnings to “freeze”. While I escaping from them I heard that they shot two times. As soon as I reached the other street, I hailed a private car. An elderly man who was driving the car stopped for me. In the car, he asked me what had happened and I asked him to save me from them.
[32] T787
The passages in bold above provide clear evidence of the use of templates and even contain duplications of spelling errors. It is highly unlikely that two clients told the applicant the same story about being stopped on the road when taking their dog to the vet. The same can be said for the story about being shot at and hailing a car driven by an elderly man who asked what had happened. There is no acceptable explanation for the same passages of words appearing in different statements of claims. Despite this, the applicant maintained to the end that he never fabricated a client’s story. I reject this contention and consider that it indicates a lack of integrity on the part of the applicant.
The use of templates by the applicant had very real and adverse consequences for Mr Naeimaei because it was relied upon by the delegate of the Minister for Home Affairs when his protection visa application was rejected. In a passage of the delegate’s reasons headed ‘Duplication of claims from another Protection visa applicant’ the delegate wrote:
I advised the applicant that I had read his IMA Arrival and Introduction Interview and his SHEV application, including his statement of claims, and that I had noticed a considerable difference between the reasons he claimed to have left Iran when he initially presented to the Department, and the reasons given in his Statement of Claims. …
…
I advised the applicant one of the reasons I had asked about the construction of the statement of claims was because whole paragraphs of his written statement had been lifted from previous Protection visa applications the Department had assessed. I identified to the applicant visually, and also verbally, which sections of his statement of claims had come from one other Protection visa applicant and which section had come from another Protection visa applicant. …
When I read the copied text, one highlighted in green, the other in orange, the applicant stated “it is not related to my case at all”. …
The applicant’s migration agent [Mr Raygan] demanded that I divulge the identity of the other two protection visa applicants from whose written statement the text had been plagiarised. Following a Natural Justice break, the applicant’s migration agent said that as there had been 30,500 people arriving in Australia, “most of them have the same situation”. …
…
… No valid explanation was given as to why large tracts of the applicant’s written statement had been plagiarised from two other Protection visa applicants. No acknowledgement was given of this having occurred. The closest indication to an acknowledgement of the plagiarism was when the applicant contradictorily stated that on the one hand, the statements I had read out did not relate to his case, while on the other hand confirming that everything in the written statement was 100 per cent his own words … . I conclude that the use of the plagiarised material was intentional, and undertaken in order to bolster the applicant’s claims for protection.
I further contend that the negative finding with relation to the applicant’s credibility extends to his claim to having converted to Christianity.
A competent migration agent would not have put his client in the position that the applicant did for Mr Naeimaei. The applicant should not have used the templates which resulted in Mr Naeimaei’s credibility being doubted more generally. The applicant should have explained and given advice with respect to any apparent inconsistencies and should have kept records of that advice. No records of that nature were found.
The use of a template or duplicate response means the response given will not fully reflect an applicant’s personal circumstances with the consequence that it is likely to be inaccurate and misleading. The applicant justified his conduct on the basis that ‘persecution and torture are common themes to applicants and it may be appropriate to describe these matters generally in the same or similar ways, for different clients.’[33] That shows a fundamental misunderstanding of the nature of a protection visa and the need for the visa applicant to establish why he or she faces a real chance or real risk of harm on return to their country, on account of their own personal circumstances. A protection visa application should closely reflect the personal circumstances of each visa applicant, and their own individual claims. A failure to do that will reduce the chances of the visa being granted.
[33] T902 at [11]
Conclusion as to breaches of the Code
The applicant has failed to conduct himself in accordance with the standards of professional conduct in Part 2 of the Code and he failed to comply with the record-keeping and management and financial duties in Parts 6 and 7 of the Code. These breaches of the Code are sufficient to enliven the Tribunal’s power to impose sanctions on the applicant.[34]
[34] See s 303(1)(h)
A PERSON OF INTEGRITY OR A FIT AND PROPER PERSON
The power to sanction the applicant is also enlivened if the Tribunal is satisfied that the applicant is ‘not a person of integrity or is otherwise not a fit and proper person to give immigration assistance’: s 303(1)(f).
The approach to statutory construction has been recently summarised by the Full Court of the Federal Court in CXXXVIII v Honourable Justice Richard Conway White [2020] FCAFC 75 at [30]:
Statutory construction must begin with the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at [47] per Hayne, Heydon, Crennan and Kiefel JJ. While the language employed is the surest guide, its meaning may require consideration of the context which includes the general purpose and policy of the provision: Alcan at [47] per Hayne, Heydon, Crennan and Kiefel JJ citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [69] per McHugh, Gummow, Kirby and Hayne JJ; in particular the mischief it is seeking to remedy: Alcan at [47] per Hayne, Heydon, Crennan and Kiefel JJ. More recently it has been emphasised that the starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is to be had to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ, citing Project Blue Sky at [69]-[71], and [35]-[39] per Gageler J; cited by BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall [2019] HCA 45; (2019) 94 ALJR 51 at [48].
The High Court considered the meaning of ‘fit and proper person’ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 where Toohey and Gaudron JJ said at 380:
The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending 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.
Toohey and Gaudron JJ said later in their reasons:
The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.[35]
[35] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 388
The High Court in Shi[36] considered s 303(1)(f) and said:
The ground in s 303(1)(f) involves the Tribunal in considerations of a different kind. The ordinary meaning of a person's "integrity" is plain enough. The expression "fit and proper" is one traditionally used with reference to an office or vocation, "fit" being referable to a person's honesty, knowledge and ability. A person's knowledge of migration procedure is one of the matters listed in s 290(2) of the Migration Act, as necessary to be taken into account by the Authority in determining whether a person is not fit and proper or not a person of integrity. That section provides that a person must not be registered as a migration agent if the Authority is not satisfied that they have those characteristics.
[36] [2008] HCA 31 at [148] to [149]
The meaning of ‘a fit and proper person’ must be considered in the context of a person who is giving immigration assistance and who is governed by the Code of Conduct. The objects or ‘aims’ of that Code in clause 1.10 should be considered, namely:
(a) to establish a proper standard for the conduct of a registered migration agent;
(b)to set out the minimum attributes and abilities that a person must demonstrate to perform as a registered migration agent under the Code, including:
(i)being a fit and proper person to give immigration assistance;
(ia) being a person of integrity and good character;
(ii)knowing the provisions of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, in sufficient depth to offer sound and comprehensive advice to a client, including advice on completing and lodging application forms;
(iii)completing continuing professional development as required by the Migration Agents Regulations 1998 ;
(iv)being able to perform diligently and honestly;
(v)being able and willing to deal fairly with clients;
(vi)having enough knowledge of business procedure to conduct business as a registered migration agent, including record keeping and file management;
(vii)properly managing and maintaining client records;
(c)to set out the duties of a registered migration agent to a client, an employee of the agent, and the Commonwealth and its agencies;
(d)to set out requirements for relations between registered migration agents;
(e)to establish procedures for setting and charging fees by registered migration agents;
(f)to establish a standard for a prudent system of office administration;
(g)to require a registered migration agent to be accountable to the client;
(h)to help resolve disputes between a registered migration agent and a client.
The applicant has failed to conduct himself in accordance with the proper standards of a registered migration agent. I do not consider that he possesses the minimum attributes and abilities that a person must demonstrate to perform as a registered migration agent. The applicant has engaged in conduct that breaches the Code in relation to almost all areas of practice - administrative functions; financial obligations; consumer protection obligations; dealings with the authority; dealings with his clients; and the need to act in the best interests of clients. Breaches of the Code were often repeated, and the applicant showed a lack of insight into his conduct by not making appropriate concessions and by maintaining a defence to his actions even where not plausibly available. A competent agent of integrity and good character would not have prepared visa applications using templates containing information borrowed from other clients. The applicant must have known or at least should have known of the disastrous consequences for his clients as a result of his conduct. By charging a fee without a statement of services and by rendering non-compliant invoices, the applicant displayed a lack of understanding of the legal requirements of an agent.
Some clients of the applicant provided written and oral evidence before the Tribunal indicating that the applicant was competent in providing migration assistance. There was oral testimony of the applicant being helpful, professional and supportive. I have taken that evidence into account, but it is outweighed by the applicant’s serious and widespread contraventions of the Code and general poor behaviour.
I am satisfied that the applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance, and that the agent has breached the Code. It follows that I am satisfied that the applicant has conducted himself in a way that would warrant a sanction to be imposed under s 303 of the Act. I will now consider the appropriate sanction under s 303.
THE SANCTION
Pursuant to s 303(1) I may cancel or suspend the applicant’s registration or give him a caution.
The applicant concedes that there were breaches of the Code but says that the nature of the breaches suggest that the appropriate sanction is a caution. The applicant contends that his breaches were commensurate with those in the case of Shi in which the Tribunal imposed a caution.
I do not consider that a caution is an appropriate sanction in this case. As I have set out above, the applicant has shown himself to be a person lacking integrity and who is otherwise not a fit and proper person to give immigration assistance. Further, he has breached a wide variety of clauses in the Code relating to both professional conduct and administrative requirements.
The applicant was a registered migration agent for less than three years from July 2015 until his registration was cancelled in May 2018. Twelve complaints from aggrieved clients were received in this period. Investigations by the Department revealed contravening conduct beyond these clients. The applicant’s response to the complaints demonstrate a lack of insight into the seriousness of the contravening conduct. It is of concern that the applicant denied engaging in conduct which has been found on the evidence to have taken place; for example, the failure to provide a Consumer Guide and the failure to properly record a client’s story in his statement of claim. It is of further concern that the applicant misunderstood that other conduct was a breach; for example, when he charged a client without giving a statement of services and when he rendered non-compliant invoices. The greatest concern relates to the use of templates and duplicating stories in the statements of claim which involved the applicant:
(a)not giving proper advice;
(b)failing to act in the best interests of the client;
(c)providing misleading and inaccurate information in the statement of claim;
(d)misunderstanding the relevant legal principles;
(e)failing to keep records of instructions or dealings generally with clients;
(f)being responsible for adverse credibility findings being made against the client in their protection visa applications;
(g)maintaining a denial throughout despite incontrovertible evidence.
The applicant asserts that he changed his practice so as to no longer breach the Code, but he has not been able to demonstrate this to my satisfaction. A contrast can be made with the agent in Shi who, after having his registration cancelled, obtained a stay and then practised under supervision and demonstrated improved practices which were testified to by his supervisor. The applicant in this case has not practised since the cancellation of his registration in May 2018 and did not pursue a stay application. The applicant relies on a 12 month period after the receipt of the complaints when the applicant appears to have practised without there being any complaints, but there is very little evidence of this except for some positive statements of a general nature by other clients. I do not give much weight to the absence of complaints from other clients in this period. The fact remains that there were numerous serious breaches of the Code during the nearly three-year period of the applicant’s practice as a migration agent. Further, the applicant’s conduct in response to the complaints, and in particular his conduct giving evidence before the Tribunal, demonstrates a lack of insight into his contravening conduct. In these circumstances, the decision to cancel the applicant’s registration is the correct and preferable decision.
The decision of the Tribunal is to affirm the decision made by the delegate of MARA.
74. I certify that the preceding one hundred and seventy three [73] paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.
[sgnd]
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Administrative Assistant Legal
Dated 6 May 2020
Dates of hearing: 10 and11 September 2019
Applicant’s Representative: Mr David Nyamirandu on instructions from Morgan and Freeman Lawyers
Respondent’s Representative: Mr N Swan (counsel on instructions from the Australian Government Solicitor.
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