Raygan and Migration Agents Registration Authority

Case [2020] AATA 1164

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-Jones

CATCHWORDS

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 31

SECONDARY MATERIALS

Migration Agents Regulations 1988 (Cth) Schedule 2 Code of Conduct

REASONS FOR DECISION

Deputy President P Britten-Jones

  1. 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.

  2. 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. 

  3. 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.

  4. 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…

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AGLC
Raygan and Migration Agents Registration Authority [2020] AATA 1164
Case
[2020] AATA 1164
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by a registered migration agent against a decision by the Migration Agents Registration Authority (MARA) to cancel his registration. MARA had cancelled the agent's registration based on findings that he had failed to comply with numerous clauses of the Migration Agents Code of Conduct, and that he was not a person of integrity or otherwise a fit and proper person to provide immigration assistance. The agent had received multiple complaints from clients and the Department of Immigration and Border Protection between November 2016 and December 2017, leading to MARA issuing notices and requests for information before ultimately making the cancellation decision.

The primary legal issues before the court were whether the agent had breached the specified clauses of the Code of Conduct, and whether these breaches, or other conduct, demonstrated that he was not a person of integrity or a fit and proper person to provide immigration assistance, thereby justifying the cancellation of his registration. The court was also required to consider whether the agent's conduct in responding to allegations and complaints, including the evidence he gave before the Tribunal, was relevant to assessing his integrity and fitness to practice.

The court applied principles of statutory construction, commencing with the text of the relevant provisions of the *Migration Act 1958* (Cth) and the Migration Agents Regulations 1998, and considering their context and purpose. It found that the agent had indeed failed to comply with various administrative and professional conduct clauses of the Code, including those relating to fees, record-keeping, and the provision of accurate client information. The court specifically noted that the agent's use of template responses for visa applications, which failed to address individual client circumstances, demonstrated a fundamental misunderstanding of the requirements for protection visa applications and was likely to be inaccurate and misleading. Furthermore, the court considered the agent's conduct in responding to MARA's investigations and his evidence before the Tribunal, concluding that his provision of false and inconsistent evidence directly impacted his integrity and fitness to operate as an immigration agent.

The court affirmed MARA's decision to cancel the applicant's registration as a migration agent.

Orders

Orders of the court

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Background

Background to the litigation

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]

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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].

Ratio Decidendi

Legal Principle Established

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