Re Griffiths and Migration Agents Registration Authority - [2002] AATA 247

DECISION AND REASONS FOR DECISION [2002] AATA 247

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/1226

GENERAL ADMINISTRATIVE DIVISION          )          Q2001/358
           Re      DAMIAN GERARD GRIFFITHS
  Applicant
           And    MIGRATION AGENTS' REGISTRATION AUTHORITY
  Respondent

DECISION

Tribunal Mr DW Muller, Senior Member

Date15 April 2002
PlaceBrisbane

Decision      The Tribunal sets aside the decisions under review and in substitution suspends the registration of Damian Gerard Griffiths as a migration agent under the Migration Act 1958, for two years from the date of this decision.
  (Sgd) DW Muller
  Senior Member
CATCHWORDS
MIGRATION AGENT – suspension – Code of Conduct – fit and proper person – protection of public – not punishment
Migration Act 1958 ss 287, 290, 303 (a), (c), (f), (h), 314 287

REASONS FOR DECISION

15 April 2002 Mr DW Muller, Senior Member

The Applicant, Damian Gerard Griffiths, seeks review of three decisions, namely:
Q2000/1226: A decision made on 21 December 2000, to cancel the Applicant's registration as a migration agent under the Migration Act 1958 ("the Act"):
Pursuant to section 303(a) of the Act, the Agent is advised that, following consideration of the facts before it, the Authority has determined to cancel the registration of the Agent by removing his name from the register as it was satisfied pursuant to section 303(h) of the Act that the Agent has not complied with the Code of Conduct applicable from time to time and, further, as it was satisfied under section 303(f) of the Act that the agent is not a person of integrity or he is otherwise not a fit and proper person to give immigration assistance.
Findings on Material Questions of Fact by the Authority
Clause 1.12 of the Migration Agents Code of Conduct as at 1 April 1998, 1 July 2000 states that the Code imposes on a 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.
Q2001/358: A decision made on 21 March 2001, to issue a caution to the Applicant.
Pursuant to section 303(c) of the Act, the Agent is advised that, following consideration of the facts before it, the Authority has determined to issue the Agent with a caution as it was satisfied that pursuant to section 303(h) of the Act, the Agent has not complied with the Code of Conduct prescribed under section 314 of the Act. The caution is to be shown on the register.
Q2001/659: A decision made on 13 July 2001 to cancel the registration of the Applicant as a migration agent under the Act.
On 13 July 2001 the Migration Agents Registration Authority ("the Authority") decided that:
(a)it was satisfied that Damian Griffiths ("the Agent") was not a fit and proper person to give immigration assistance within s 303(f) of the Migration Act:
(b)It was satisfied the Agent had not complied with the Code of Conduct prescribed under s 314(1) of the Migration Act as in force from time to time; and
(c)To exercise the powers given to the Authority by s 303(a) of the Migration Act to cancel the registration of the Registered Agent by removing his name from the Register kept by the Authority under s 287(1) of the Migration Act.
By agreement, the three reviews were heard together.
The above decisions were stayed pending the outcome of proceedings at the Tribunal. Mr Griffiths has been able to operate as a migration agent up until the present time.
Mr Griffiths was born on 23 October 1972.
Mr Griffiths was admitted as a solicitor of the Supreme Court of Queensland in 1996. He was first registered as a migration agent on 3 April 1996 and was continuously registered until the decision of 21 December 2000.
Within a very short time of being registered as a migration agent, Mr Griffiths established offices in Brisbane, Johannesburg, Harare, Hong Kong, Singapore, Durban, Nairobi, Kuala Lumpar, Jakarta and Sydney. As at December 2000 he employed 13 staff directly, plus others in various capacities, and he had successfully processed approximately 2000 cases, with a further 500 files in various states of readiness.
The business of Mr Griffiths quickly expanded, in particular in Zimbabwe, Kenya and South Africa. The Tribunal accepts Mr Griffiths evidence when he said, in effect, that he was overwhelmed with clients and that in trying to service them all, he became extremely disorganised.
The Tribunal also accepts the evidence of a former employee of Mr Griffiths, Erica Leesa Murray, that it was a regular occurrence for Mr Griffiths to return from overseas trips with suitcases full of documents, statements, money in various national currencies and unsigned applications all thrown in together. Mr Griffiths would often appear to be exhausted. He would instruct the staff to sort it all out while he went away to recover. Ms Murray often filled in applications and signed on behalf of applicants because the documents had not been completed overseas.
The legislation relevant to the regulation and monitoring of migration agents and the giving of "Immigration Assistance" is contained in the Migration Act 1958, the Regulations and the Code of Conduct prescribed under s 314 of the Act. In particular the following sections and paragraphs are of particular relevance to this case.
" S 287 Register of Migration Agents
(1)       The Migration Agents Registration Authority must keep a register, to be known as the Register of Migration Agents, listing individuals who are registered as migration agents.
S 290 Applicant must not be registered if not a person of integrity or not fit and proper
(1)       An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:
(a)the applicant is not a fit and proper person to give immigration assistance; or
(b)the applicant is not a person of integrity; or
(c)the applicant is related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship.
S303 Discretionary cancellation or suspension of registration etc.
The Migration Agents Registration Authority may:
(a)cancel the registration of a registered 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.
S 314 Code of Conduct for migration agents
(1)The regulations may prescribe a Code of Conduct for migration agents.
(2)A registered agent must conduct himself or herself in accordance with the prescribed Code of Conduct.
CODE OF CONDUCT
(from 1/7/1999 to 10/8/2001
2.6To the extent that a migration agent must take account of objective criteria to make an application under the Migration Act or Migration Regulations, he or she should 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.
2.7An agent who is asked by a client to give his or her opinion about the probability of a successful outcome for the client's application should not hold out unsubstantiated or unjustified prospects of success when advising clients on applications under the Migration Act or Migration Regulations.
2.8A migration agent must:
(a)       within a reasonable time after agreeing to represent a client, confirm the client's instructions in writing; and
(b)act in accordance with the client's instructions; and
(c)keep the client fully and regularly informed in writing of the progress of each case or application that the agent undertakes for the client; and
(d)within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client's case or application.
2.9While a migration agent cannot be responsible for misinformation provided by a client, an 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.
2.10A migration agent must not engage in false or misleading advertising including advertising in relation to:
(a)the agent's registration as a migration agent; or
(b) the implications of Government policy for the successful outcome of an application under the Migration Act or Migration Regulations; or
(c)guaranteeing the success of an application.
2.11A migration agent must, when advertising, include in the advertisement the words Registered Migration Agent Number, followed by the agent's individual registration number.
2.12A migration agent must not, when advertising, imply the existence of a relationship with the Department of Immigration and Multicultural Affairs (the Department) or the Authority, for example by using terms such as:
(a)Australian Government registered; or
(b)Migration Agents Registration Authority registered; or
(c)DIMA registered.
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) the agent:
(a)must not encourage the client to lodge the application; and
(b)must advise the client 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 of the client of the advice given under paragraph (b)
2.18A migration agent must act in a timely manner if the client has provided all the necessary information and documentation in time for statutory deadlines. For example, in most circumstances an application under the Migration Act or Migration Regulations must be submitted before a person's visa ceases to be in effect.
2.20A migration agent must:
(a)find out the correct amount of any visa application charge (9) and all other fees or charges required to be paid for a client's visa application under the Migration Act or the Migration Regulations; and
(b)tell the client the amount of each fee and charge; and
(c)if the agent is to pay an amount for the client – tell the client the date by which the amount must be given to the agent so that the interests of the client are not prejudiced; and
(d)give the client notice of each amount paid by the agent for the client.
2.21A migration agent should not submit an application under the Migration Act or Migration Regulations without the specified accompanying documentation. For example, in a marriage case, threshold documentation would include a marriage certificate and evidence that the sponsor is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, without which assessment of the case could not proceed (unless the agent has a reasonable excuse or the client has requested the agent to act despite incomplete documentation).
7.1A migration agent must keep separate accounts for:
(a)the agent's operating expenses (the operating account); and
(b)money paid by clients to the agent for fees and disbursements (the clients' account).
7.2a migration agent must hold fees paid by a client in the client's account until the work that the agent has been contracted to do for that client has been completed.
7.3The agent may, at any time, withdraw money from the client's account for disbursements that are required to be paid to the Department, or any other agency, for the client.
7.4A migration agent must keep records of the clients' account, including:
(a)the date and amount of each deposit made to the client's account, including an indication of the purpose of the deposit and the client on whose behalf the deposit is made; and
(b)each withdrawal made from the clients' account; and
(c)receipts for any payments made by the client to the agent; and
(d)copies of invoices or accounts rendered in relation to the account.
Whilst most of the allegations against Mr Griffiths relate to breaches of the Code of Conduct, there were some other matters which, it was suggested, related to his integrity. I will deal with the other matters first.
(i)It was alleged that he clogged the system at the Fortitude Valley office of DIMA, by regularly lodging a large number of applications late in the day. The Tribunal finds that there is nothing to support this allegation.
(ii)It was alleged that his personal cheques, which accompanied the applications, were often not met on presentation at the bank. The Tribunal finds that this allegation was completely unfounded. Mr Griffiths had a deposit of $25,000 in a special account to cover any discrepancy which might arise in his cheque account. No discrepancy was demonstrated to the Tribunal. Mr Griffiths usually paid application fees by Diners credit card. Three of the cheques of Mr Griffiths' clients, whose cheques accompanied their applications, bounced but Mr Griffiths cannot be held accountable for them.
(iii)It was alleged that Mr Griffiths kept a large amount of cash in a biscuit tin in a safety deposit box at a bank, for the purpose of hiding it from the Commissioner of Taxation. The Tribunal accepts the evidence of Mr Griffiths' office manager, Mr Phaik Seng Tan, that he became aware of Mr Griffith having a large amount of cash in Singapore. Mr Tan advised Mr Griffith to bring the cash to Australia and to declare it. Mr Griffiths claims to have declared the cash, approximately $75,000, to the Commissioner. The Tribunal is in no position to find one way or the other whether that happened, and takes no account of this allegation in deciding the outcome of this case.
The allegations against Mr Griffiths that he failed to comply with the Code of Conduct relate mainly to specific clients but there were other allegations which did not relate to specific clients. I will deal with those more general allegations now.
(i)Evidence was given by Ms Trudy Bostock, Senior Migration Officer, based in Pretoria. She said that Mr Griffiths regularly put in applications which were defective in that they did not contain basic threshold material which was essential for the success of the application. For example between July 2000 and June 2001, Mr Griffiths lodged 64 Business Skills Visa applications of which 41 were incomplete, and required at least one request for outstanding documentations to be made. Ms Bostock said that whilst it was true that most of Mr Griffiths' clients were ultimately successful, it was mainly because of the diligence of her officers who kept chasing Mr Griffiths for the required material. The Tribunal accepts the evidence of Ms Bostock that Mr Griffiths was less than efficient when dealing with her office in Pretoria, and does not accept any inference that Ms Bostock was particularly difficult to please or excessively zealous.
(ii)The Applicant admits that there were many cases in the year 2000 where copies of invoices had not been retained on the files of the clients of the Applicant.
(iii)The majority of fees paid to the Applicant were by way of telegraphic transfer from clients overseas to the Applicant's bank account. In those instances, no receipts were issued by the Applicant.
(iv)Prior to 13 June 2000, the Applicant did not keep a separate client account.
(v)In an advertisement placed by the Applicant in the Chinese Yellow Pages, the advertisement made reference to '100% success rate'.
The advertisement did not include the Applicant's migration agent number.
The advertisement included the words 'this company has a very good relationship with DIMA and embassy/embassies … a close relationship is maintained with accountants, government departments and professional organisations, well informed of the latest immigration information'.
The allegations of Mr Griffiths' failure to act within the ambit of the Act, Regulations and Migration Agents' Code of Conduct, in relation to individual clients, will be set out in the following paragraphs. I will make use of the document compiled by the Applicant's legal representatives for this purpose. Mr Griffiths admits the greater proportion of the allegations. Where the allegations have been put in issue, the Tribunal will attempt to resolve the matter.
The most serious allegation against Mr Griffith relates to a client, Christopher John Morris, a South African national. The case of Mr Morris was so badly handled that Mr Morris and his family went from living in Brisbane and running a convenience store, with a realistic chance of eventually obtaining Australian citizenship, to being deported and ending up back in South Africa. Mr Morris gave evidence to the Tribunal by phone from Johannesburg. The Tribunal has no reason to doubt the evidence of Mr Morris. Not only was Mr Morris' case badly handled by Mr Griffiths but Mr Griffith lied to Mr Morris about the progress of the matter.
At no time after the meeting between the Applicant and Mr MMorris on 22 September 1999 did the Applicant: (a) confirm Mr Morris' instructions in writing; (b) obtain written evidence from Morris of the terms of the work to be done; and (c) give Morris written confirmation of the terms of the service to be rendered. 1. (a) Admitted: (b) Admitted; (c) Admitted:

The Applicant did not inform Mr Morris that his and his family's current 456 visas would be cancelled upon lodgement of the 457 skilled business visa application. 2. Admitted.
The Applicant did not provide the supporting documentation with Morris' application despite: (a) having received the material from Morris and his sponsor on 5 November 1999; (b) being reminded by DIMA on 22 November 1999 that the supporting documents had not been received; and (c) being reminded again by DIMA on 39 November 1999 that the material had not been received. 4. On 8 December 1999, DIMA proceeded to determine and refuse Morris' application (and his family's) on the basis of a lack of documentation to support the stated applications. 3 (a) Admitted; (b) In issue; (c) In issue . 4. Admitted
On 23 December 1999, the Applicant met with Morris and advised him that the visa application had been refused on the basis that DIMA did not consider the position skilled enough to warrant a visa. This is contrary to DIMA's records which advised that the reason for the refusal was a lack of documents in support of forms 1067 and 1068 or in support of the visa Applicant, Mr Christopher John Morris. 5. In issue
the Applicant made no attempt to alert Morris to the consequences of a late application to appeal the decision 6. Admitted
The Applicant lodged the application for review 1 day outside the statutory time limit. 7. Admitted
After Morris' 457 visa application had been refused on 8 December 1999 and the application for review was lodged out of time, Morris' bridging visa ceased on 12 January 2000. 8. Admitted

The Applicant did not notify Morris or his family: (a) that the bridging visa would cease on that date; (b) that Morris and his family would become unlawful non-citizens if they remained in Australia after that date and did not obtain valid visas: (c) of the effect on any future visa applications if Morris or his family became unlawful non-citizens by remaining in Australia after 12 January 2000 without valid visas. 9. (a) Admitted (b) Admitted; (c) Admitted.
The Tribunal finds that any matters set out above which have been put in issue by Mr Griffiths between him and Mr Morris or DIMA, are resolved in favour of the versions put forward by Mr Morris or DIMA.
John and Mary-Ann Geary
Following the meeting on 2 April 1998 between John Geary, his daughter Nicole and the Applicant at the offices of Woodroffe & Kleyn in Durban, South Africa, the Applicant did not: (a) confirm the Gearys' instructions in writing: (b) obtain written acceptance from the Gearys of the terms of the work to be done; (c) give the Gearys written confirmation of the terms of the service to be rendered 1. (a) Admitted; (b) Admitted; (c) Admitted.
On or about 24 May, the Applicant asked the Gearys to sign blank application forms (forms 457 and 1066) and told them that he would fill in the documents. 2. In issue.
The Gearys alleged that they signed the forms and gave them to the Applicant. 3. Admitted
Following notification by the Australian High Commission on 16 March 1999 by letter and email that the Gearys' 457 visa had been granted, the Applicant did not notify the Gearys in writing that their application had been granted. 4. Admitted
The application and supporting documentation stated that Mr Geary "intends to acquire in Australia a spring and coil manufacturing business to be based in South East Queensland, in particular Toowoomba". 5. Admitted.
This statement is not in accordance with the Gearys' instructions. 6. In issue.

Mr Geary is now a permanent resident in Australia. He runs a small business, installing roller doors, from premises at Acacia Ridge. He gave evidence in person to the Tribunal. Mrs Geary has gone back to South Africa to live. She gave evidence by phone from England. They were both extremely vague about the details of their meeting with Mr Griffiths. Mr Geary left all the details to his wife to fix up. He gave evidence that he was adamant that he did not want to engage in spring and coil manufacturing in Australia because although he had experience in it, he wanted a change. It was difficult for the Tribunal to assess whether or not he made his intentions clear to Mr Griffiths. Mrs Geary was clearly wrong about some significant matters relating to the way in which the meeting was set up with Mr Griffiths. Although it is clear that the Gearys signed blank forms which were later filled in by Mr Griffiths, the Tribunal is not satisfied that Mr Griffiths necessarily asked the Gearys to do so – nor that Mr Geary made it clear to Mr Griffiths that he would not want to be involved in a spring and coil manufacturing business.

Sucahya Santosa Tjoa
The Applicant did not advise Tjoa that he had to be outside Australia at the time the 457 visa application was lodged. 1. Admitted
Tjoa wrote to the Applicant advising him that the submission the Applicant had prepared contained incorrect details. 2. Admitted.
On 1 February 2000, the Applicant sent a copy of the submission that accompanied Tjoa's application to DIMA to Tjoa himself who identified a number of mistakes in the submission. 4. Admitted.
Despite the Applicant's submission that the document was only a draft and had not been submitted to DIMA incorrectly, the submission sent to Tjoa on 1 February 2000 is identical to the submission filed by the Applicant on 27 January 2000. 4. Admitted.
The Applicant failed to advise Tjoa that the application could not be finalised while he was in Australia. 5. Admitted.

There had been a change in the regulations which required 457 visa applicants to be outside Australia at the time of lodgement. Mr Griffiths was unaware of the change. He eventually lodged a new application which was ultimately successful on 3 July 2000.

Liana Sulaeman
The Applicant had included false and incorrect information in Sulaeman's visa application by making reference to her dealings with the French government and her involvement with aviation related matters. 5. In issue.
The Applicant failed to discuss her application with her. 2. In issue.

The Tribunal finds that there is no satisfactory evidence before the Tribunal to substantiate these allegations against Mr Griffiths.

Teh Choong Beng
The Applicant submitted Teh's visa application on 11 January 1999 with the following deficiencies: (a) failed to submit the Statement of Assets and Liabilities for the previous 3 years and supporting evidence of those assets held at each of these years; (b) incorrect allocation of points under the points score test; (c) photographs of the applicant and his family were omitted 1. (a) Admitted. (b) Admitted. (c) Admitted.
By letter dated 15 March 1999, the AHC wrote to the Applicant informing him of the deficiencies in the Application and allowed 49 days for submission of additional documentation. 2. Admitted.
The Applicant failed to provide the additional documentation within the 49 days allowed (ie by 5 May 1999). 3. Admitted.
On 19 July 1999, further documents were received by the Commission including: A Statement of Assets and Liabilities; Statement of the client's bank accounts; documents to confirm his ownership of investment properties 4. Admitted.
By 24 February 2000 some supporting documentation was still outstanding and medical certificate had expired. 5. Admitted.
By 27 March 2000 client advised AHC that he wanted to withdraw application for a visa. 6. Admitted.

As a result the client's file was closed and no visa granted. 7. Admitted.

Mr Teh withdrew his application for a visa because his accountant advised him that it was against his financial interest to become a tax resident of Australia.

Lee Koi Tin
On 18 April 2000, the Applicant lodged Lee Koi Tin's visa application. On 19 April 2000 the AHC advised Applicant in writing of the following deficiencies and allowed 49 days to submit additional information: (a) form 47BU – question 1, incorrect details as to the number of people migrating; (b) form 47BU – part 9, details of children not provided; (c) questions 67 and 68 not answered; (d) form 47A not submitted for child over 18 years; (e) form 80 not submitted; (f) incorrect reference to Applicant's sex; (g) incorrect reference to form 1136 – should have been form 1139; (h) form 1139 – question 11 not sufficiently completed; (i) form 1139 – question 12 incomplete; (j) properly certified translations not submitted. 1. (a) In issue; (b) In issue; (c) Admitted (d) In issue; (e) Admitted; (f) Admitted: (g) Admitted; (h) In issue; (i) In issue; (j) Admitted.
On 16 June 2000, AHC received letter from Applicant dated 13 June 2000 responding to his letter of 19 April 2000. The Applicant's letter enclosed further documents and indicated that further documents would be provided. 2. Admitted.
The Applicant's letter stated 'we take this opportunity to thank you for providing the guidelines for submitting business skills applications and will in future adhere to them.' 3. Admitted.
On 6 July 2000, the AHC wrote to the Applicant requesting further information: Certified true copy in English – translation of birth certificate for Bock Leong Oo Confirmation that the client is prepared to make investment of $1 million Evidence of the sale of client's property in Singapore; 4. Admitted.
On 13 July 2000, Lee provides material to AHC during interview. 5. Admitted.
On 21 August 2000, AHC wrote to Lee c/o of the Applicant re making a designated investment in Australia including evidence of liquidation of the assets used to make the investment. 6. Admitted.

On 20 November 2000 AHC repeats its request for evidence of the source of funds as per letter of 21 August 2000. 7. Admitted.
On 23 November 2000, the Applicant purported to provide evidence of the source of the funds but the AHC requested further evidence. 8. Admitted.
This was provided on 28 November 2000. 9. Admitted

Mr Griffiths blamed his staff in Kuala Lumpur for the problems. The deficiencies were eventually cured and Mrs Lee's application was subsequently approved.

Walter Seiner
The Australian High Commission wrote to the Applicant noting the following deficiencies in Walter Seiner's business skills visa application lodged on 7 June 1999 and was granted 49 days to submit the additional information: (a) copies of documents provided not certified as being a true copy of the original; (b) no supporting evidence provided for certain amounts stated in the Statements of Assets and Liability, position document/stated amounts did not match figures in attached documents; (c) no evidence of Applicant's recent employment in terms of being relevant to Seiner's source of funds and his overall successful record of business; (d) no form 80 submitted for Ms Voo-Seiner. 1. (a) Admitted; (b) Admitted; (c) Admitted; (d) Admitted.
On 19 October 1999 the Applicant provided: a detailed Statement of Assets and Liabilities for financial years ended 30 June 1999, 1998 and 1997; supporting documentation for Seiner's Statement of Assets and Liabilities certified copies of documents previously submitted. 2. Admitted
The Applicant also indicated in letter dated 19 October 1999 that letters of confirmation of employment of the client would be provided. 3. Admitted.
The Commission wrote to Seiner on 23 November 1999 inviting him to make a designated investment in Australia and to provide evidence of the source of assets to make the investment. 4. Admitted.
The information was provided on 30 November 1999. 5. Admitted.
By letter dated 1 March, the AHC wrote to Seiner indicating that the application would likely be granted subject to a completion of change in circumstances declaration. 6. Admitted.
This declaration was completed and the visa was granted on 8 March 2000. 7. Admitted.

Khoo Yung Num
The Australian High Commission wrote to the Applicant on 24 November 1999 in relation to deficiencies in the visa application of Khoo Yung Num lodged on 3 November 1999; (a) insufficient information to satisfy criteria under regulations 457.223(7)(a),(b) or (c); (b) insufficient information submitted to determine whether client would be considered principal of the proposed franchise business; (c) no information submitted to satisfy capacity for or commitment to providing staff training; (d) insufficient information regarding the client's experience to demonstrate he possesses the attributes and background relevant to the nature of the proposed franchise business (Valentines Restaurant); (e) company accounts for client's business were not submitted prior to ceasing business activity in 1998 nor was there an explanation for ceasing operation; (f) insufficient documentation to verify claimed assets; (g) details regarding any liabilities including company debt were not provided. (a) In issue; (b) In issue; (c) In issue; (d) In issue; (e) Admitted; (f) In issue; (g) In issue.

Mr Griffiths claims that Mr Khoo specifically instructed him to lodge his application in the manner submitted. There was eventually a dispute between Mr Griffiths and a Senior Migration Officer as to whether or not the information supplied satisfied the legal requirements for a visa. This matter is now being re-assessed.

Tham Wai Choong
Applicant assisted in preparing application for general skilled migration. 1. Admitted.
The Applicant asserted that Tham satisfied the requirements for the subclass skilled independent visa. 2. Admitted.
The client had a degree of Bachelor of Laws from an approved University but had not served Articles of Clerkship for a period of 2 years or undertaken the Legal Practice Course. 3. Admitted.
The letter accompanying the application from the Solicitors Board, Queensland set out the requirements for admission to practice and advised that, while the client had satisfied the academic requirement, he had not undertaken the practical training. 4. Admitted.
Post 11 January 2000, the Applicant has not provided any records of subsequent contact with the client in Kuala Lumpur. 5. Admitted
On 19 April 2000 the AHC refused the visa because the Applicant did not satisfy both requirements of the Solicitors Board for admission to practice. 6. Admitted.
On 22 April 2000, the client wrote to the Applicant. 7. Admitted.

The letter indicated that the client had informed the Applicant prior to him signing the visa application that he needed to do his articles of Clerkship in Australia. 8. In issue.

This application should never have been made. Subsequently, Mr Griffiths arranged for Mr Tham to attend the appropriate course at Bond University and then to make a second application for a visa, free of charge.

Wong Ling Ping
On 10 February 1999, the Australian High Commission wrote to the agent expressing concerns in relation to the client's parent (migrant) (class AX) visa application and sponsorship application lodged on 29 September 1998: (a) The sponsorship form listed the client's child who was under 2 years old as the client's sponsor; (b) In the covering letter accompanying the application, the Applicant stated that, as the client's child is a minor, the client's aunt signed the sponsorship form, however, both the sponsorship form and the application have been signed by the client. 1. (a) Admitted (b) Admitted, in part
The great aunt of the client's child was ineligible to act as sponsor because she did not meet regulation 1.03 – definition of a 'close relative'. 2. Admitted

The AHC gave the Applicant 49 days to submit reasons why the application should not be refused (ie until 31 March 1999). 3. Admitted
There is no record on the Applicant's file indicating that he brought the Australian High Commission's letter of 10 February 1999 to the client's attention, nor that he obtained further instructions. 4. Admitted
The Australian High Commission refused the visa application when it had not heard from the Applicant by 10 May 1999. 5. Admitted

At the time, Mr Griffiths believed that a child could be a sponsor and that a guardian could sign on behalf of the child.

Pawanna Leelasangsai
On 25 May 2000 the applicant lodged Pawanna's sub class 457 Business Visa and forms 1067 and 1068 for the sponsor Ace Image Trading Pty Ltd. 1. In issue.
On 25 May 2000 DIMA telephoned Vivianne Towsend regarding the need for Pawanna to show that she has demonstrated substantial compliance with the conditions of the student visa granted on 28 July 1999. 2. Admitted.

Vivianne was told by DIMA that no decision would be made on the 457 visa application pending outcome of the notice of cancellation issued to Pawanna on 5 May 2000 due to Pawanna's failure to re-enrol at Central Queensland University. 3. Admitted.
There is no record appearing on the applicant's file of this telephone contact. 4. Admitted.
There is no record of the applicant notifying Pawanna of the effect of this telephone conversation. 5. Admitted.
Attached to form 1066 was a submission prepared by the applicant and signed by Vivianne Townsend which stated that 'we submit that our client is eligible for the sub-class 457 business (long stay) visa based on the standard business sponsorship stream'. 6. In issue

Miss Leelasangsai had been working in a restaurant whilst in Australia on a student visa. The owner of the restaurant wanted her to stay in Australia to manage his restaurant. Her application for a Business Visa had no realistic chance of success.

Richard Forsyth
On 30 March 1999 DIMA received the visa application and supporting documentation for Forsyth. 1. Admitted.
Question 22 of the Application required details of qualifications and the Applicant directed DIMA to 'refer to submission'. 2. Admitted.
The submission claimed Forsyth possessed the qualifications necessary but did not provide any material to substantiate the formal qualifications. 3. Admitted.
On 21 April 1999 DIMA phoned the Applicant and made reference to the absence of necessary documents to substantiate Forsyth's qualifications. 4. Admitted.
The Applicant told DIMA he would contact Forsyth and request the evidence of his qualifications. 5. Admitted.
On May 1999 the Applicant sent DIMA a letter requesting a 14 day extension to obtain the required documents from overseas. 6. Admitted.
In a submission dated 19 May 1999 DIMA received a request from the Applicant that Forsyth be granted a work permit pending the approval of Forsyth 457 visa application. 7. Admitted.
the Applicant advised DIMA that Forsyth had 'now obtained from his South African office all the supporting documentation necessary to finalise his application.' 8. Admitted.
On or about 2 June 1999, DIMA received a fax from the Applicant advising that Forsyth was experiencing difficulty in obtaining the necessary documentation and also that Forsyth's former South African employer would provide a detailed reference relating to Forsyth's educational background within a week. 9. Admitted.
The Applicant failed to furnish to DIMA the necessary documentation by 15 June 1999 and as such DIMA refused Forsyth's 457 visa application because there was insufficient documentation to support/substantiate his formal education/qualifications associated with the position of senior engineer. 10. Admitted.
On or about 14 July 1999 DIMA received fresh 457 visa application and fresh form 1067 and 1068 on behalf of the sponsor Hatch Australia Pty Ltd. 11. Admitted.
DIMA was again referred to submission in respect of the question concerning details of qualifications and training. 12. Admitted.
Accompanying the application was a letter dated 11 June 1999 from Hatch Africa Pty Ltd advising that they could not locate his original certificate of qualification but advised that he holds a T2 electrical qualification. 13. Admitted.
On 2 August 1999 Ros Gillam – Chambers of the Applicant's office emailed DIMA requesting that it withhold any decision on Forsyth's visa application pending a formal meeting between DIMA and the Manager of Hatch Australia. 14. Admitted.
By fax 13 August 1999 DIMA informed applicant that 'it was noticed that the second form 1066 was signed as 28 June 1999 (the date appears to be tampered with) while the applicant was not in Australia. Further checking revealed that firstly the signature on the forms did not appear being signed by the same person and secondly it seemed that the same pen was used as the hand written information on the second application and supposedly signed by Mr Forsyth.' 15. In issue.

On 23 August 1999 DIMA arranged a meeting with the Applicant. No file note or other record of this meeting appears on the Applicant's file. 16. Admitted.
On 24 August 1999 DIMA telephoned the sponsor advising it of DIMA's concern at the lack of necessary documentation. Sponsor indicated that it would no longer support Mr Forsyth's application. 17. Admitted.
By fax dated 30 August 1999, DIMA was advised by the Applicant that: (a) Forsyth had been asked to undergo a skill assessment with the Institute of Engineers (b) It will be 6-9 weeks before the Institute of Engineers approved the decision (c) DIMA would not make an assessment of the application until the outcome of the assessment was obtained (d) an assessment certificate would be forwarded to DIMA as soon as it was received (a) Admitted; (b) Admitted; (c) Admitted; (d) Admitted.
On 2 September 1999 DIMA refused the second 457 visa application on the basis that there was insufficient documentation to substantiate Forsyth's education/ qualifications associated with the position of senior engineer. 19. Admitted.

The Tribunal is satisfied that although Mr Forsyth had worked for Hutch Africa Pty Ltd for many years as an Engineer, and it had been assumed by his employers that he was duly qualified for the job he was doing when they intended that he come to Australia to work for their Australian subsidiary, he was not in fact qualified at all. Everyone was duped by a person who, in all probability, was a con man. I make no finding of impropriety against Mr Griffiths in this case.

Raymond Vonder and Riana Ollewagen
The main complaint against Mr Griffiths in this case relates to the fact that DIMA received an application from Vonder for a 457 Visa Application, Business Nomination and Sponsor Applications, and that the address on the application was care of the staff quarters at a well-known tourist resort. The suggestion is that Mr Griffiths should have had his suspicions raised that Mr Vonder and his claimed defacto wife (Ollewagen) may have been working on the resort prior to making the application. Mr Griffiths gave evidence that this mater was handled by Mr Pugh whose suspicions were indeed raised and he rang the manager of the resort. Mr Griffiths claims that the manager told Mr Pugh that Mr Vonder and his wife were cooks, he was desperate to find a cook, he gave them free accommodation pending the outcome of their application. Mr Pugh wrote to the manager to tell them they must not work in the meantime. The Tribunal does not hold any of these matters against Mr Griffiths.
Richard Murgatroyd
On or about 22 September 1999 DIMA received from the Applicant, an 845 business skills visa application on the grounds of an established business namely, a vehicle paint and panel repair business at Rocklea. Accompanying the application were financial statements up to the period ending 30 June 1998.
The thrust of the complaint against Mr Griffiths in this case is that the application was made with significantly deficient supporting documentation, and that the necessary documentation was never received in full – with a consequent rejection of the application.
Mr Murgatroyd's application was lodged on the day before his 50th birthday, 23 September 1999, which was important because of the way in which assessment points were allocated on an age basis. Mr Murgatroyd never produced the necessary documentation.
The Tribunal makes no finding adverse to Mr Griffiths in this case.
This hearing was conducted over seven days during which the Tribunal saw, heard from and observed the Applicant plus a large number of other witnesses give their evidence in chief and under cross-examination. I make the following general observations:
(i)Mr Griffiths' office management and handling of clients' money and accounts was absolutely appalling until he employed Mr Tan. After Mr Tan took over in about September 1999, the accounting aspect of Mr Griffiths' business improved. Mr Griffiths further improved his office efficiency when he employed Ms Athina Stephanou in September 2000, as his Office Manager. She is still so employed.
(ii)Mr Griffiths' character, integrity and general lack of compliance with the Code of Conduct is not as bad as it would have seemed to the Authority when it cancelled his registration. A significant number of the complaints and allegations against Mr Griffiths have not been substantiated during these proceedings.
(iii)Nevertheless, there are a large number of significant serious allegations of breaches of the Code of Conduct which have been substantiated. They have been set out at great length above and will not be repeated.
The Tribunal accepts the submission by counsel for the Respondent that the object of disciplinary proceedings in relation to professional people is to protect the public and to maintain proper standards in the relevant profession and not to take action by way of punishment. The Act requires a person who is registered as a migration agent to be a "fit and proper person to give immigration assistance" and to be "a person of integrity". The migration agent should therefore be a person who has a good knowledge of the migration laws, is able to prepare applications competently and should be a person of such reputation and ability that officers of the relevant Department may proceed upon the footing that the applications lodged by the agent have been prepared honestly and competently.
I am satisfied that Mr Griffiths has fallen well short of the standard required but that he has shown that he is beginning to improve. He is a relatively young man and I believe that he should be given an opportunity to rehabilitate himself and to revive his career. I do not believe that his status is so poor that, in protecting the public, it is necessary to cancel his registration. Nevertheless he needs a significant time out to prepare himself for the time when he may be allowed to re-enter the profession of Migration Agent. I believe that an appropriate rehabilitation period would be two years.
The decisions under review are set aside and in substitution the Tribunal determines that the registration of Damian Gerard Griffiths as a Migration Agent be suspended for two years.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr DW Muller, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  24,25,29 January - 1 February 2002
Date of Decision  15 April 2002
For the Applicant  Mr Byrnes of Counsel
For the Respondent                 Mr Bickford of Counsel