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…
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- Re Griffiths and Migration Agents Registration Authority [2002] AATA 247
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CaseChat Overview and Summary
The court was tasked with determining the legal validity of the respondent's suspension and whether it was an appropriate measure under the Migration Act. Specifically, the court examined if the authority had correctly applied the criteria for suspension and whether the action was proportionate to the respondent's alleged breaches of the Code of Conduct. Furthermore, the court considered whether the suspension was punitive or if it served the public interest by ensuring the integrity of migration agents.
In its reasoning, the court examined the statutory provisions and the prescribed Code of Conduct, finding that the Migration Agents Registration Authority had the discretion to suspend registration if it was satisfied that the agent was not a fit and proper person. The court found that the respondent's actions, which included misleading clients about the prospects of success in their visa applications and making false statements, justified the suspension. The authority's decision to suspend the respondent's registration was not considered punitive but rather a measure to protect the public and uphold the integrity of the immigration system.
The court upheld the decision to suspend the respondent's registration, affirming that the action was taken in accordance with the law and served the public interest. The suspension was deemed a valid measure to ensure that only fit and proper persons provided immigration assistance.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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 10/8/20012.6To 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.