Reptis and Migration Agents Registration Authority
[2006] AATA 41
•20 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 41
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/197-198
GENERAL ADMINISTRATIVE DIVISION ) Re YINI AND LADISLAV REPTIS Applicant
And
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Senior Member B J McCabe Date20 January 2006
PlaceBrisbane
Decision The decisions under review are set aside. In substitution, the Tribunal decides the registration of Mr Ladislav Reptis is suspended for 12 months commencing on 14 March 2005. The registration of Ms Yini Reptis is suspended for 18 months commencing on 14 March 2005 ..................[Sgd]............................
SENIOR MEMBER
CATCHWORDS
ADMINISTRATIVE LAW – migration agents – person cannot give immigration assistance unless they are a registered migration agent – only fit and proper persons to be a registered migration agent - suspension
Administrative Appeals Tribunal Act 1975 s 37
Migration Act 1958 ss 279; 280; 303; 314
REASONS FOR DECISION
20 January 2005 Senior Member B J McCabe
introduction
1. The applicants in these proceedings, Mr Ladislav (Les) Reptis and Ms Yini Reptis, are a married couple. They carry on business as registered migration agents in Brisbane. The Migration Agents Registration Authority (MARA) is the respondent. It received a complaint from a family member of a former client of Mr and Ms Reptis on 22 May 2002. MARA concluded the complaint was made out and decided to cancel the registration of both applicants on 14 March 2005. The applicants have asked the Tribunal to reconsider MARA’s decision.
2. MARA’s decision was made pursuant to s 303 of the Migration Act 1958. The section permits MARA to cancel or suspend the registration of an agent or caution him or her in circumstances defined in the section. In this case, MARA has acted because it claims the applicants are not persons of integrity, nor are they fit and proper persons to give immigration assistance: s 303(1)(f).
3. MARA says Ms Reptis was providing immigration assistance within the meaning of s 276 before she was registered as a migration agent. Section 280 says it is an offence for a person who is not a registered migration agent to provide immigration assistance. Ms Reptis says she was merely assisting her husband in his work as a migration agent. MARA says Mr and Ms Reptis have misled MARA (and the Tribunal) in their explanations offered in response to the complaint. MARA says the decisions to cancel the registrations of Mr and Ms Reptis ought to be affirmed on that basis.
the material before the tribunal
4. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also tendered in evidence and taken into consideration for the purposes of this decision:
·Statement of Ladislav Reptis dated 22 July 2005 (exhibit 3);
·Statement of Yini Reptis dated 22 July 2005 (exhibit 4);
·Statement of Mrs Wu Fong Yin Liu dated 3 November 2005 (exhibit 5);
·Statement of Mr Te Chuan Liu dated 3 November 2005 (exhibit 6);
·Table of clients of Ladislav Reptis (exhibit 7);
·Table of clients of Yini Reptis (exhibit 8).
5. Mr and Ms Reptis both gave evidence at the hearing. Mrs Liu-Wu Fong-Yin (Mrs Liu) – whose son made the original complaint – gave evidence through an interpreter. The respondent proposed to call Mrs Liu’s son, Te-Chuan Lin, to give evidence by telephone. Mr Lin resides in Taiwan. The applicants took objection to this course: it was argued that credit was an issue and Mr Lin ought to be required to give his evidence in person. The respondent agreed to rely on the evidence of Mrs Liu.
6. Mr Nevison of counsel represented the applicants. Mr Lo represented the respondent.
the facts
7. Mr Reptis was born in Slovakia on 11 October 1953. He migrated to Australia in 1983 and subsequently became an Australian citizen. He is an educated man: he holds degrees in linguistics and arts. He met his future wife on 11 October 1990 – his birthday. The future Ms Reptis was born in Taiwan on 28 April 1971. She arrived in Australia to study English in 1990, when she met her future husband. They subsequently married in Taiwan.
8. Mr Reptis decided to become a registered migration agent. He completed the required course of study and was registered in February 1995.
9. Mr and Ms Reptis lived together in Taiwan between 1996 and 1999 before returning to Australia in 1999. Mr Reptis worked as a migration agent while he resided in Taiwan. He operated out of premises belonging to his wife. He continued his business in Australia until his registration was cancelled in 2005.
10. The couple returned to Australia in 1999 and commenced business in Brisbane. They operated out of offices shared with GS International Pty Ltd, which conducted a business called AMET Consultancy. AMET has many Chinese clients. AMET would refer clients to Mr Reptis if they required the services of a migration agent.
11. Mr Reptis speaks several European languages apart from English. He does not speak any Chinese languages. That is obviously a disadvantage when dealing with potential clients from the Chinese community. Ms Reptis speaks Mandarin. Ms Reptis quickly became very important to her husband’s business. She assumed a prominent role in the firm’s advertising and tended to handle the clients because of her language skills. She was not a registered migration agent at that time.
12. Ms Reptis became a registered migration agent in May 2002. The events in question in this case had their genesis at a meeting on 11 October 2001, before Ms Reptis was registered to provide migration assistance in her own right.
13. Mr Reptis said he was having the day off to celebrate his birthday and the anniversary of meeting his wife on 11 October 2001. He had lunch with his wife at a Chinese restaurant that day. Ms Reptis had to go into the office to meet a client sometime after 2pm. Mr Reptis said he did not accompany her because he was not dressed for the office. He said he settled down in a coffee shop near the office because he anticipated she would return quickly. As it happened, he says she was away some time. He says he was not carrying a phone. When she found him at the café, Mr Reptis says his wife mentioned a potential client had arrived and asked for some advice about a visa. His wife recounted the details of the meeting and Mr Reptis instructed her to advise that a particular subclass of visa was appropriate. He also instructed his wife to have the client sign one of the firm’s standard-form retainer agreements. He said his wife departed to communicate his advice, and returned some time later when the task was completed.
14. Ms Reptis gives a similar account of what happened that day. She says she went into the office without her husband for a meeting. While she was there, she became aware that Mrs Liu and her son wanted to see her. Ms Reptis says they did not have an appointment but she agreed to talk to them anyway.
15. Ms Reptis says the meeting was a very relaxed affair. She obtained some relevant details from Mrs Liu and her son. There was some discussion about which subclass of visa might be appropriate for Mrs Liu. Ms Reptis agreed she commented that her husband enjoyed a great deal of success with a subclass 127 visa but acknowledged Mrs Liu seemed to be interested in a subclass 131 visa. Mr Liu’s son left after about 20 minutes and Mrs Liu and Ms Reptis spoke for another ten minutes or so. At that point, Mr Reptis says Mrs Liu’s grandchild (who accompanied Mrs Liu to the meeting) was becoming restless. She allowed Mrs Liu to go out on the balcony of the office. Mrs Liu then went to the reception area to await the return of her son.
16. Sometime after the meeting broke up, Ms Reptis says she returned to the coffee shop to speak with her husband. She agrees she did not take any notes from the meeting. She says she memorised facts and figures that she recounted to her husband, who gave her brief oral instructions as to how she should proceed.
17. Ms Reptis says she returned to the office and spoke with Mrs Liu and her son when he returned. She says she conveyed her husband’s advice and asked Mrs Liu to sign the retainer agreement, which was in Mandarin.
18. Mr and Ms Reptis say things did not go smoothly after that. They said they had some difficulty obtaining all of the necessary documentation from Mrs Liu, but Mrs Liu and her family were becoming impatient with the delay. The application documents were lodged some time later. Mrs Liu approached another migration agent to deal with the matter before the application was processed. The application was subsequently granted.
19. Ms Reptis insisted she did not say or do anything in the meeting that might give Mrs Liu the impression she was a registered migration agent. She says she referred to her husband as the principal and explained she had to seek his advice. She says her role was purely secretarial: she acted as an interpreter who collected information to be considered by her husband. She insists she did not offer or give advice – she merely passed on her husband’s advice.
20. Mrs Liu tells a different story. She says she and her son did have an appointment to see Ms Reptis on 11 October 2001. Mrs Liu said in her oral evidence that Ms Reptis claimed she was a registered migration agent. She says Ms Reptis expressed the strong view from the outset that a subclass 131 visa was inappropriate, and that she could ensure Mrs Liu would be granted a subclass 127 visa within a month. Mrs Liu says she questioned whether a subclass 127 visa was appropriate because it was for businesspeople. Her friends had advised her to seek a subclass 131 visa. Mrs Liu says Ms Reptis offered to arrange a company with books that would show transactions that would satisfy the requirements of a subclass 127 visa in return for a monthly payment of $500.
21. Ms Reptis suggested Mrs Liu did “not have enough points” to qualify for a subclass 131 visa but Mrs Liu disagreed. Mrs Liu says Ms Reptis rang someone in Taiwan to make inquiries about a subclass 131 visa because she said she knew little about them. Ms Reptis agreed she rang a number in Taiwan that afternoon but cannot recall why.
22. Mrs Liu said Ms Reptis did not leave the office at any point during the course of their interaction that afternoon. Mrs Liu said she could see Ms Reptis talking to other clients while she was in the waiting room of the office, waiting for her son to return. Under cross-examination, Mrs Liu conceded she could not guarantee that Ms Reptis did not slip out of the office while Mrs Liu was distracted by her grandson on the balcony.
23. Mrs Liu said she was reluctant to agree to a subclass 127 visa despite pressure from Ms Reptis. Mrs Liu said she became frustrated by the delays because she had been told it would only take one month to obtain the visa. She sought different representation and her son complained to MARA. Her visa was approved in the meantime.
24. Te-Chuan Liu’s statement confirmed his mother’s account of the meeting prior to his departure. He said Ms Reptis did not leave the room during the time he was present, and he said she took a strong view that a subclass 127 visa was appropriate for Mrs Liu in preference to a subclass 131 visa. He also agreed with his mother that Ms Reptis offered to arrange for books and other business records to be brought into existence that would satisfy the authorities in relation to the subclass 127 visa in return for a monthly payment of $500 to her.
25. That last allegation is deeply troubling. If it were true, it would certainly constitute grounds for cancelling the applicants’ registration. But Mr Lo (for the respondent) told me at the hearing that MARA was not pursuing the allegation. After the hearing adjourned, I began to consider my decision and concluded that I could not leave the matter on that basis. I resumed the hearing by telephone and advised MARA that I thought it should look into the allegation.
26. The respondent declined to investigate the matter any further. Its solicitors explained in a letter to the Tribunal dated 23 November 2005:
The respondent was of the view that the information that it had before it in relation to the fake company allegation was inconclusive in proving that action against Ms Reptis was warranted in respect of that particular allegation. As such, the respondent decided that it would not pursue that particular allegation any further.
27. The applicants deny the allegation. The respondent’s decision to repeat the allegation before the Tribunal while expressly declining to investigate it may leave the applicants in a difficult position. It is almost impossible to determine whether there is any substance to the claims in the absence of further evidence. In circumstances where the respondent declines to investigate the matter any further, I do not think it is appropriate to hold the allegation against the applicants.
28. I am satisfied Ms Reptis did not merely provide administrative assistance to her husband before she was registered as a migration agent. Her own evidence suggests she played a central role in the business and took an active role in dealing with clients and answering their queries about substantive matters. While she insisted she merely acted as a conduit for the advice of her husband, I am satisfied she played a more extensive role given the level of interaction with clients. That is the clear effect of the evidence of the respondent’s witnesses as well.
29. I am also satisfied Ms Reptis failed to take proper notes of meetings and the advice she communicated to clients. She claimed in her evidence that she remembered all of the relevant facts she was provided by the respondent’s witnesses before presenting them orally to her husband. I think the notes do not exist because she did not seek her husband’s counsel in a meaningful way. While I am prepared to accept she did speak with her husband after meeting the respondent’s witnesses, I am not satisfied she did so in order to obtain and communicate his advice. At best, I think she was merely confirming with her husband the advice she had already given to the respondent’s witnesses.
30. Mr Reptis, for his part, appears to have taken a lax approach to the supervision of his staff. He did not insist on systems or procedures for ensuring that Ms Reptis did not overstep her limited role. Even if I accepted his wife’s evidence that she faithfully consulted her husband before rendering advice, Mr Reptis’s practice of hearing a brief oral account of the client’s story before issuing verbal instructions and advice from the table of a coffee shop after a long lunch seems an extraordinary way of doing business. It certainly does not appear to be consistent with the record-keeping obligations outlined in the Code of Conduct.
31. I did not find Mr and Ms Reptis to be impressive witnesses. I would not go so far as to make a finding of dishonesty against either of them, but I am satisfied Ms Reptis in particular was capable of putting a gloss on her evidence – most obviously in the self-serving characterisation of her role as a provider of basic administrative assistance. Mr Reptis’s evidence was vague, although that may have accurately reflected his level of understanding of what was going on in the business at the time.
the legislation
32. Section 280 of the Migration Act 1958 prohibits a person who is not a registered migration agent from giving immigration assistance. That expression is defined in s 276(1):
For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:
(a) preparing, or helping to prepare, the visa application or cancellation review application; or
(b) advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; …
33. Section 303 empowers MARA to discipline migration agents. In appropriate cases, MARA may cancel or suspend an agent’s registration, or administer a caution. The grounds for disciplinary action are set out at s 303(1)(d)-(h). Section 303(1)(f) is relevant here. It refers to situations where the agent “is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance”. Section 303(1)(h) also refers to a failure on the part of the agent to comply with a Code of Conduct prescribed under s 314.
34. The expression “fit and proper person” has been considered in many cases, most obviously in Hughes and Vale Pty Ltd v State of New South Wales (No 2) (1955) 93 CLR 127. In that case, the High Court observed (at 156) that in determining “fitness” for an office one must have regard to the office-holder’s “honesty, knowledge and ability”. Honesty is particularly important in a job like this. Agents are in a position of trust with respect to their clients and the Department of Immigration: see Feng and Migration Agents Registration Authority [2002] AATA 709.
35. I have found as a matter of fact that Ms Reptis was providing substantive advice to the respondent’s witnesses. It follows she provided immigration assistance within the meaning of the Act without being registered. But the respondent does not seek her disqualification on the basis of a breach of s 280. It relies principally on the argument that Ms Reptis and her husband are not fit and proper persons to be migration agents.
36. The legislation provides for an array of disciplinary measures. Cancellation of registration is presumably appropriate for the more serious cases of misconduct. It will in any event be appropriate where cancellation is the only way to protect the public from someone who cannot be trusted to act as a migration agent. But the legislation appears to contemplate the possibility that a decision-maker would acknowledge a person has engaged in conduct that suggests he or she is not a fit and proper person - but still stop short of cancelling that person’s registration. The decision-maker will presumably be justified in not cancelling registration where a penalty other than cancellation might lead to a reform of the applicant’s character.
37. I am satisfied Ms Reptis’s conduct in providing immigration assistance when she was unregistered and then seeking to downplay her role when questioned by MARA investigators and the Tribunal suggests she is not a fit and proper person. I note she has previously been the subject of disciplinary action as a result of a breach of the Code of Conduct with respect to her advertising, although I do not think the breach in question was a particularly serious one and does not suggest a pattern of disregard for the law. I also note Ms Reptis has been registered since the incidents in question in this case, and there is no evidence to suggest she has not performed her work competently.
38. I think suspension for a period of 18 months is appropriate in Ms Reptis’s case. I am satisfied the period of suspension will allow Ms Reptis the opportunity to reflect on the importance of carefully observing the immigration laws. She will also have the opportunity to reflect on the importance of being completely frank with the regulator. The period of suspension should be taken to have commenced on 14 March 2005, the date of the original decision.
39. Mr Reptis’s lax approach to the management of his business and the supervision of his employees suggests he is not a fit and proper person to be a migration agent. In his case, it was not so much a want of honesty as a want of competence in dealing with his staff that is a cause of concern. That shortcoming could be rectified with relative ease by introducing systems and procedures for running the business. In the circumstances, I think a suspension of 12 months (commencing on 14 March 2005) will provide him with the opportunity to reflect on how he should alter his behaviour.
40. I note Mr Reptis will effectively be able to re-establish his practice before the end of Ms Reptis’s period of suspension. If Ms Reptis is involved in the business in any way before she is entitled to resume her practice, she must be especially conscious of her obligation to avoid providing immigration assistance.
conclusion
41. The decisions under review are set aside. In substitution, the Tribunal decides the registration of Mr Ladislav Reptis is suspended for 12 months commencing on 14 March 2005. The registration of Ms Yini Reptis is suspended for 18 months commencing on 14 March 2005.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
Associate Adam RyanDate/s of Hearing 9-10 November 2005
Date of Decision 20 January 2006
The applicants were represented by Mr Nevison of counsel.
The respondent was represented by Mr Lo.
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