Re Feng and Migration Agents Registration Authority - [2002] AATA 709

DECISION AND REASONS FOR DECISION [2002] AATA 709

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1822

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SIMON FENG
  Applicant
           And    MIGRATION AGENTS REGISTRATION AUTHORITY
  Respondent

DECISION

Tribunal The Hon R N J Purvis Q.C, Deputy President

Date20 August 2002
PlaceSydney

Decision The decision under review is affirmed.
[sgd] The Hon R N J Purvis Q.C Deputy President
CATCHWORDS
Professions and trades – registration – migration agent – cancellation of registration – refusal to register applicant as a migration agent – whether applicant failed to comply with designated clauses of the relevant codes of conduct for migration agents – if applicant failed to comply, whether such failure is sufficient to warrant cancellation of registration – whether applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance

Migration Act 1958 sections 290, 290(1)(a), 303(h), 303(f), 314
Migration Agents Regulations1998
Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Lilienthal and Migration Agents Registration Authority [2001] AATA 797;(2001) 66 ALD 249
Hughes and Vale Proprietary Limited and Anor and The State of New South Wales and Ors (No.2) (1955) 93 CLR 127
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 34 ALD 324
Cunliffe and Anor v Commonwealth of Australia (1944) 182 CLR 272

REASONS FOR DECISION

20 August 2002 The Hon R N J Purvis QC, Deputy President
the application

This is an application made by Mr Simon Feng ("the Applicant") under date 28 November 2001 seeking review of a decision made by a delegate of the Migration Agents Registration Authority ("the Respondent") on 27 November 2001. By such decision the Respondent declined to re-register the Applicant as a migration agent.
In its reasons for arriving at the decision to refuse registration the Respondent inter alia stated (T2 p5-27):
"…
The Authority has considered all the available evidence, and pursuant to section 303(f) of Migration Act 1958 (the "Act"), the Authority is satisfied that the Agent is not a person of integrity and/or are not a fit and proper person to give immigration assistance.
The Authority has considered all the available evidence, and pursuant to section 303(h) of the Act, the Authority is satisfied that the Agent has not complied with the applicable Codes of Conduct prescribed under section 314 of the Act.
…
The Authority concludes that the Agent may have acted for some clients who submitted applications that the Agent would appear to have known were likely to have been misleading.
The concern of the Authority is that the Agent may knowingly submit applications that are either inaccurate, stand no prospects of success, or are fraudulent.
These issues go to the Agent's integrity as a migration agent and bring the migration advice industry into disrepute…
The Authority finds that the Agent has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] AATA 709
Decision Date: 20 August 2002

CaseChat Overview and Summary

In the case of Re Feng and Migration Agents Registration Authority, the Applicant, a former migration agent, appealed against the decision of the Migration Agents Registration Authority to refuse his application for the renewal of his registration. The primary concern of the Authority was that the Applicant had failed to comply with various designated clauses of the relevant codes of conduct for migration agents, specifically clauses 2.8(a), 2.8(c), 6.1(b), 6.1(c) and Part 7 of the relevant Code. This case required the court to determine whether these failures warranted the cancellation of the Applicant's registration, and whether the Applicant was a person of integrity or otherwise fit and proper to give immigration assistance.

The legal issues addressed by the court included whether the Applicant's failure to adhere to the codes of conduct constituted a breach sufficient to warrant the cancellation of his registration, and if his actions demonstrated a lack of integrity or unfitness to provide migration services. The court needed to weigh the Applicant's admissions of poor record-keeping and deficiencies in the preparation of applications against his claims of honesty and integrity. It was also necessary to consider the impact of these deficiencies on the clients and the integrity of the migration advice industry.

The court's reasoning and outcome were based on the totality of the evidence presented. The court found that the Applicant's preparation of protection visa applications often did not reflect circumstances sufficient to warrant the claims made and could prejudice due consideration by the Department. Although the Applicant admitted to deficiencies in record-keeping and application preparation, the court concluded that his participation in the preparation of applications that lacked merit was significant. The court determined that the Applicant's actions demonstrated a lack of integrity, regardless of whether there was a lack of knowledge of migration law. The court also considered the financial hardship and distress experienced by the Applicant but found these factors insufficient to outweigh the primary concern of maintaining the integrity of the migration advice industry.

The final orders of the court upheld the decision of the Migration Agents Registration Authority to refuse the renewal of the Applicant's registration, confirming that the Applicant was not a fit and proper person to provide migration assistance.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

To insure effective and proper administration of the Act, the Respondent is entitled to be able to rely upon the honesty of those registered with the Department.the factual background - generaly The Applicant was born in China on 22 October 1952. He attended university in Shanghai obtaining a tertiary diploma and a master's diploma in English. He first entered Australia in February 1988 on a student visa, obtaining permanent residence in 1994. The Applicant has worked in Australia as a part time teacher of English, as an interpreter and a translator. Following attendance at a three day course in Migration Law and Practice at the University of NSW, the Applicant became registered in 1995 as a migration agent and practised as such until his registration was not renewed in 2001. Over the time when he was in practice, the Applicant says that he gave advice and acted for and on behalf of clients in relation to various categories of visa applications, but mainly protection and "long stay" visas. Nearly two thirds of his practice related to protection visas and one quarter to "long stay" visas. The Applicant admitted, as hereinafter noted in more detail, that his clerical and administrative practices were deficient in many respects. He did not take and retain notes or keep notes on file in accord with the Code of Conduct. He did not keep notes of claims made by clients. He did not keep notes of telephone conversations. He says, when he considered applications for protection visas to be "hopeless", he informed the clients and had them sign a form pursuant to clause 2.17 of the relevant Code of Conduct. The Applicant admits that his file management and record keeping was poor and that as a result he breached various provisions of the Codes and especially clauses 2.8(a), 2.8(c), 6.1(b), 6.1(c) and Part 7 of the relevant Code. He does say however, that he had taken steps to rectify the deficiencies before the non-renewal of his registration and that he has undertaken and will undertake further courses to improve his office administration and ensure compliance with the relevant provisions of the Code. The Applicant denies any impropriety or lack of integrity in his dealings with any of his clients or in his relationship with the Respondent. The Respondent maintains that since the Applicant's registration as a migration agent in 1995, the Applicant has been the subject of a number of complaints. It was during the investigation of these complains that many of the matters now of concern to the Respondent became apparent. The Applicant in July and August 2001 appeared before an officer of the Respondent, was questioned and gave answers. He was also in June and July 2001 called upon to provide documents and records relating to his continued registration. On the 26 September 2001 the Applicant applied for a renewal of his registration. The Respondent, having indicated its concern, sought further information and submissions from the Applicant and considered the matter on 27 November 2001. The application for registration was refused. It is from the latter decision that the present appeal arises.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The totality of the evidence is such as to reveal the Applicant as one who utilised the Act and the procedural provisions in order to perfect the scheme sought to be put in place by his clients. In many instances, the material contained in the statements forming a part of an application did not reflect circumstances sufficient to warrant the case sought to be made and were such as could prejudice due consideration being given by the Department to the status alleged. It is said that legitimate entitlements of clients may have been so prejudiced. It was also maintained that the Applicant may have failed to advise clients on visa options. Whilst the contention made on behalf of the Respondent is one that is open on the material before the Tribunal, it is not satisfied that lack of knowledge of migration law in relevant respects as contended on behalf of the Respondent has been made out. The Applicant may well have acted regardless of his knowledge.submissions and decision Whilst the Applicant admits to the aforementioned deficiencies in the maintaining of appropriate records, notes and statements and defects in the preparation of applications, it was submitted that the similarity of claims may also result from such deficiencies and "similarity of experiences or in the clients themselves taking their claims from a common source." It was further maintained that there is no obligation on a migration agent to "investigate a client's character or to cease acting if not satisfied that the client is being truthful". The fact that "an agent acts for a person who is of questionable character, does not in itself reflect on the reputation and integrity of the migration advice industry". So it was maintained. The Tribunal however, whilst accepting that in a general sense these submissions have merit, is required to consider the totality of the material placed before it and the conclusion that may properly be drawn as to the participation of the Applicant in the preparation of applications that have no merit. It was submitted on behalf of the Applicant, that a finding as to a lack of integrity should not be made even be it that a finding referable to incompetence might be appropriate. It was submitted that the Applicant had been honest in answering questions put to him by an officer of the Respondent, that he had disregarded his own interests and did not hide or obscure his own wrongdoing. There was no evidence of enrichment. The attention of the Tribunal was drawn to the financial hardship experienced by the Applicant consequent on the registration refusal and the distress that he had experienced as the result of his marriage break-up. There was also said to have been an adverse effect on his two young children. These latter matters are to be taken into consideration. On behalf of the Respondent it is contended that there are now the separate issues to be considered, competence as a migration agent, the Applicant being a fit and proper person to give migration assistance and the Applicant being a person of integrity.

Ratio Decidendi

Legal Principle Established

The contentions made on behalf of the Respondent in relation to the nature of most of the protection visa applications prepared by the Applicant are justified.knowledge of migration law The totality of the evidence is such as to reveal the Applicant as one who utilised the Act and the procedural provisions in order to perfect the scheme sought to be put in place by his clients. In many instances, the material contained in the statements forming a part of an application did not reflect circumstances sufficient to warrant the case sought to be made and were such as could prejudice due consideration being given by the Department to the status alleged. It is said that legitimate entitlements of clients may have been so prejudiced. It was also maintained that the Applicant may have failed to advise clients on visa options. Whilst the contention made on behalf of the Respondent is one that is open on the material before the Tribunal, it is not satisfied that lack of knowledge of migration law in relevant respects as contended on behalf of the Respondent has been made out. The Applicant may well have acted regardless of his knowledge.submissions and decision Whilst the Applicant admits to the aforementioned deficiencies in the maintaining of appropriate records, notes and statements and defects in the preparation of applications, it was submitted that the similarity of claims may also result from such deficiencies and "similarity of experiences or in the clients themselves taking their claims from a common source." It was further maintained that there is no obligation on a migration agent to "investigate a client's character or to cease acting if not satisfied that the client is being truthful". The fact that "an agent acts for a person who is of questionable character, does not in itself reflect on the reputation and integrity of the migration advice industry". So it was maintained. The Tribunal however, whilst accepting that in a general sense these submissions have merit, is required to consider the totality of the material placed before it and the conclusion that may properly be drawn as to the participation of the Applicant in the preparation of applications that have no merit. It was submitted on behalf of the Applicant, that a finding as to a lack of integrity should not be made even be it that a finding referable to incompetence might be appropriate. It was submitted that the Applicant had been honest in answering questions put to him by an officer of the Respondent, that he had disregarded his own interests and did not hide or obscure his own wrongdoing. There was no evidence of enrichment. The attention of the Tribunal was drawn to the financial hardship experienced by the Applicant consequent on the registration refusal and the distress that he had experienced as the result of his marriage break-up. There was also said to have been an adverse effect on his two young children. These latter matters are to be taken into consideration. On behalf of the Respondent it is contended that there are now the separate issues to be considered, competence as a migration agent, the Applicant being a fit and proper person to give migration assistance and the Applicant being a person of integrity.