Reptis and Migration Agents' Registration Authority

[2005] AATA 35

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 35

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/368

GENERAL ADMINISTRATIVE DIVISION		)
Re		YINI REPTIS

Applicant

And MIGRATION AGENTS’ REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal  Ms M J Carstairs, Member

Date 17 January 2005

Place Brisbane

Decision  The decision under review is affirmed

................[Sgd]........................

M J Carstairs
  Member          

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 35

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/368

GENERAL ADMINISTRATIVE DIVISION		)
Re		YINI REPTIS

Applicant

And MIGRATION AGENTS’ REGISTRATION AUTHORITY

Respondent

CORRIGENDUM [2005] AATA 35

Tribunal  Ms M J Carstairs, Member

Date 17 January 2005

Place Brisbane

In the above decision Mr M Steele was referred to as being a solicitor with “Sparke Helmore” in para 2 and also in the certification stamp.  This should read “Mr M Steele solicitor, Blade Dawson Waldron”.

……………………….

M J Carstairs
  Member

CATCHWORDS

MIGRATION AGENTS’ – Code of Conduct – applicant cautioned – advertisement referred to “success guaranteed” -  Tribunal found advertising misleading - applicant in breach of Code of Conduct

Migration Act 1958 s303, 314

REASONS FOR DECISION

17 January 2005 Ms M J Carstairs, Member

1.      This is an application by Yini Reptis (the applicant) for review of a decision made by the Migration Agents Registration Authority (the respondent) to issue a caution to the applicant on 19 April 2004.

2.      At the hearing the applicant represented herself. The respondent was represented by Mr M Steele, solicitor with Sparke Helmore Solicitors.

3.      The Tribunal had before it three volumes of documents lodged under s37 of the Administrative Appeals Tribunal Act 1975, numbered T1 - T61 as well as exhibits marked A1 - A3 for the applicant and R1 - R2 for the respondent.

BACKGROUND

4.      The applicant was registered as a migration agent on 3 May 2002.  In December 2002 an advertisement appeared in the Mandarin language in an issue of Bridge Magazine.  The respondent obtained a translation of the advertisement from Chinese into English and then sought clarification from the applicant about the contents of the advertisement.

5.      The applicant provided a submission to the respondent dated 5 March 2003 (T22).  On 23 October 2003 the respondent wrote to the applicant (exhibit R1) stating that it was considering cautioning her, suspending or cancelling her registration because of concerns that the advertisement breached the Migration Agents Code of Conduct (the Code).  The letter invited the applicant to make submissions on the issue of whether, by allowing her name to be used in an advertisement promoting immigration assistance, she was responsible for the contents of the advertisement which might demonstrate breaches of the Code.

EVIDENCE

6.      In a written translation dated 14 January 2003 (T20) Mr D Huang, a NAATI accredited translator, certified the following translation from the Chinese language of an advertisement by AMET Consultants in Bridge Magazine dated 5 December 2002: 

MANDARIN TRANSLATING & INTERPRETING CENTRE

PO Box 317  Tel:  [phone]

Beverley Hills NSW 2209            Fax: [phone]

AMET Consultants

Free telephone consultation in the Chinese language: 1800 735 357 (in Australia) Miss LIN Yini

MIA Member of Migration Institute of Australia (AMET is a member of MIA)

Brisbane:        Tel:[phone]            Fax:     [phone]

(Situated opposite Sunnybank MacDonald)

Gold Coast:     Tel: [phone]            Fax:     [phone]

AMET Immigration Law Consultation Company (AMET Consultants)

Immigration Services

Experienced packaged service in business migration

Business Investment Immigration

-   127 entrepreneur migration

-   128 senior manager migration

-   131 government bonds investment migration

-   845 business establishment in Australia migration (whole process for 18 months, success guaranteed)

-   Help you complete 24 and 36 months’ business report forms

Independent Skill Category

-   overseas skill migration

-   employer’s nomination sponsorship migration

-   Australian family sponsorship migration

Family reunion category

-   spouse visa from marriage

-   retirement immigration visa

-   dependent parents’ visa

AMET Education Centre (AMET Education)

Overseas Students Training Services

-   free service in school enrolment and school transfer

-   free service in visa extension

-   application to enrol into language centres

-   without IELTS can study for a Master’s course

-   tertiary qualification without a degree can study for a Master’s course

We are looking for partner(s) in China

-   organize youth and children’s summer and winter camps

-   15 days’ tour $1950

21 days’ tour $2950

-   all types of training and investigation visiting groups

Free orientation for immigration and overseas students at 7:00-8:00 every evening at the Gold Coast.

Brisbane       3A/12 Zamia St. Sunnybank Q 4109

Gold Coast     2^nd Floor, 3063 Gold Coast Hwy, Surfers Paradise Q 4217

Website:         [email protected]

Education:      [email protected]

7.      In a written submission to the respondent dated 5 March 2003 (T22) the applicant stated that AMET Consultants placed her name in the advertisement to provide an initial contact point for people who might wish to discuss their matters in the Mandarin language.  She stated that employees of AMET Consultants would take the telephone calls but a migration matter could be passed on to any migration agency, including to her own which she conducted independently on the Gold Coast.  She said that she was not an employee or office holder of AMET Consultants, and bore no responsibility for the contents of the AMET Consultant’s advertisement.  She pointed out that the advertisement did not state that she was a migration agent and there was no need for her migration agent number to appear in the advertisement.

8.      The applicant gave oral evidence that since about 1995 she had worked as a translator for Chinese clients with her husband, Mr L Reptis, who is also a migration agent.  She said that she successfully undertook study as a migration agent herself and was registered in 2002.  She said that in her practice she receives referrals because she is well known and active in the Brisbane and Gold Coast Chinese communities.  However when she was newly registered she preferred to retain the role of a liaison person and translator, until she gained more experience as a migration agent.  She said that this was the role intended by the advertisement although AMET Consultants might choose to refer clients to her as a migration agent, just as they might choose any migration agent.  She said that she had other qualifications, including business expertise, relevant to AMET Consultants.

9.      The applicant said that she had no employment contract with AMET Consultants but she had assisted with ideas including recommending the use of 1800 telephone numbers for client contact.  She said that having her name on the advertisement helped to brand the company as she could assist with telephone enquiries because AMET Consultants had no other employees who spoke Mandarin.

10.     Under cross-examination the applicant agreed that her name was the only name appearing in the advertisement, and that a Chinese person telephoning to enquire about migration matters would be likely to be directed to her.  The applicant said that she understood that she was required to use her migration registration number when advertising and that advertisements must not guarantee the success of an application.

CONSIDERATION OF THE ISSUES

11.     The legislation relevant to the regulation and monitoring of migration agents is contained in the Migration Act 1958 (the Act), the Regulations and the Code prescribed under s314 of the Act. Section 303 of the Act provides for cancellation suspension and caution in the following circumstances:

303     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:

…….

(h)  the agent has not complied with the Code of Conduct prescribed under section 314.

12.     The Code is prescribed under s134 and s134 prescribes that a registered agent must conduct himself or herself in accordance with the Code.  The Introduction to the Code sets that the Code regulates the conduct of migration agents.  The relevant provisions of the Code in this case are:

2.10     A registered 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.

2.11     A registered migration agent must, when advertising, include in the advertisement the words Registered Migration Agent Number, followed by the agent's individual registration number.

2.23   A migration agent must take all reasonable steps to maintain the reputation and integrity of the migration industry.

13.     The applicant submitted that the penalty of issuing a caution was too harsh and had damaged her reputation.  She said that while she was involved with the advertisement there had been no intention to promote her services as a migration agent, and she did not make the decision to place the advertisement, nor did she pay for the advertising.  The applicant submitted that she was mainly a liaison person in her role with AMET Consultants and later became involved in business advice to students.  She said that the respondent had not been helpful to her when she sought clarification of what was acceptable in advertising.

14.     Mr Steele submitted that the applicant’s evidence demonstrated that she was closely involved with AMET Consultants and had provided advice about its operations including recommending the use of 1800 numbers when advertising.  He noted that the applicant’s telephone number and address on her business card (exhibit A2) was the same as that of AMET Consultants in the advertisement that appeared in Bridge Magazine.  He said the applicant had agreed that she knew about the advertisement and acknowledged that a Chinese person could be misled by the advertisement, as the advertisement primarily deals with migration services.  He submitted that her obligation as an accredited migration agent was to comply with the Code at all times.

15.     The Tribunal reached its decision taking into account the written and oral evidence and submissions.  The Tribunal agrees with Mr Steele that the advertisement primarily advertises migration services.   The Tribunal considers that it is significant that the applicant is the only person named in the advertisement.  The Tribunal agrees with Mr Steele that a Chinese person contacting AMET Consultants would be misled by the contents of the advertisement.  The Tribunal also agrees that the applicant’s name, being the only name in the advertisement, would readily connect her with the migration services advertised.   

16.     The Tribunal is satisfied on the basis of her evidence that the applicant was aware of the contents of the advertisement.  The Tribunal is also satisfied that the applicant is sufficiently closely connected with AMET Consultants to discuss such matters as advertising and contacting clients and therefore she was not simply in the role of someone who might be contacted when a translator was needed and who had no close connection with AMET Consultants.  The Tribunal accepts that the applicant understood the obligations of the Code in relation to advertising migration services and that she should not have allowed her name to be used in an advertisement of this kind without providing her registered migration agent number and individual number.  The Tribunal finds that the applicant did not comply with clause 2.11 of the Code.

17.     The Tribunal notes that the advertisement refers to success guaranteed in relation to business visas.  The Tribunal is satisfied that the applicant knew the contents of the advertisement and that even though she was not an employee of AMET Consultants, or an office holder, she has engaged in misleading advertising within the meaning of the Code.  The Tribunal finds that the applicant did not comply with clause 2.10 of the Code.   

18.     On the question of penalty, the Tribunal accepts that the applicant has given an assurance that a similar error in advertising would not happen again and that at the time she did not fully understand what was acceptable and what was not.  The Tribunal takes into account that there have been no prior proceedings of this nature involving the applicant and that she has shown remorse for her actions.  There is no evidence that any person has suffered a loss as a consequence of the applicant’s breaches of the Code.

19.     On balance, and taking into account, the nature of the two breaches of the Code, the Tribunal is satisfied that in the circumstances a caution is the appropriate penalty to be imposed.

DECISION

20.     The Tribunal affirms the decision under review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member  

Signed:         Denise Burton
  Administrative Assistant

Date/s of Hearing  28 October 2004
Date of Decision  17 January 2005
The Applicant appeared in person
Solicitor for the Respondent     Mr M Steele, Sparke Helmore