RKYP and Migration Agents Registration Authority

RKYP and Migration Agents Registration Authority [2021] AATA 2871 (22 June 2021)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )              No: 2020/3766
GENERAL DIVISION  )
Re: RKYP
Applicant

And: Migration Agents Registration Authority
Respondent
CORRIGENDUM
TRIBUNAL: Senior Member Katter
DATE OF CORRIGENDUM: 23 June 2021
PLACE: Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the written statement of reasons for the decision, to remove the parentheses and the words within the parentheses in the third line of paragraph 41.

................................[SGD].............................
Senior Member Katter
Division:GENERAL DIVISION
File Number: 2020/3766
Re:RKYP
APPLICANT

MIGRATION AGENTS REGISTRATION AUTHORITYAnd
RESPONDENT

DECISION
Tribunal:Senior Member Katter
Date:22 June 2021
Place:Brisbane

The decision under review is affirmed.
.................................[SGD]......................................
Senior Member Katter
Catchwords
MIGRATION – migration agent registration – refusing to renew migration agent’s registration – whether the Applicant is a fit and proper person to provide immigration assistance – whether the agent is a person of integrity – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Legal Profession Act 2007 (Qld)
Migration Act 1958 (Cth)
Migration Agents Regulations 1998 (Cth)
Migration Regulations 1994 (Cth)
Cases
Australia Broadcasting Tribunal v Bond (1990) 170 CLR 321
Shi v Migration Agents Registration Authority [2008] HCA 31
REASONS FOR DECISION
Senior Member Katter
22 June 2021

This is an application to review a decision by the Respondent as to the re-registration of the Applicant as a migration agent.
BACKGROUND
The Applicant was first registered as a migration agent on 17 October 2000[1].
[1] Exhibit 1, T3, page 59. Migration Agent Registration Number: Exhibit 1, T12, page 407.
The Applicant’s registration as a migration agent was renewed annually until October 2019[2].
[2] Exhibit 1, T3, page 59.
On 2 October 2019 the Applicant lodged an application for repeat registration as a migration agent[3], noting on the form the business details of “[RKYP] and Associates Pty Ltd”[4]. The form included the following[5]:
[3]           Exhibit 1, T4, pages 74-81.
[4]           Exhibit 1, T4, page 75.
[5]           Exhibit 1, T4, pages 74-80.
Review My Profile
Please remember that it is an offence under the Criminal Code Act 1995, to make a statement or give information or a document to a Commonwealth entity that is false or misleading and that a penalty of up to 12 months imprisonment may apply.
…
Your primary business details
Entity name     [RKYP] AND ASSOCIATES PTY LTD
…
Are the following statements true and correct?
…
iii.        to the best of my knowledge and belief I have not been (other than previously       declared by me to the Migration Agents Registration Authority) and am not   currently the subject of an inquiry or investigation (I understand that I must   declare any current investigations) by;
·     a department or agency of the Commonwealth; or
·     a department or agency of a State or Territory of Australia; or
·     a professional association; or
·     a corporate regulatory agency; or
·     a consumer protection organisation; and
iv.       no disciplinary action is being taken (I understand that I must declare any              current actions), or has been taken against me (other than previously   declared by me to the Migration Agents Registration Authority); and …
vi.       I have not been a director or executive officer of a corporation that became           insolvent whilst I held one of these positions (other than previously declared   by me to the Migration Agents Registration Authority).
vii.       I am not aware of any finding, conduct, or events or fact which would affect   my fitness and propriety to provide immigration assistance or which goes to               my integrity (other than that which is disclosed herewith or previously   disclosed)
viii.      There are no other relevant matters which would cause the Authority to                 consider that I am not a fit and proper person or a person not of integrity, to   provide immigration assistance.
Note: Some of these matters are notifiable events under Section 312 and migration agents are required to advise the Authority in writing within 14 days of any of these events occurring.
No
…
I [RKYP], … on 6/29/2020 declare that the statements, information and documents I have provided are complete, correct and up to date in every detail. In making this declaration:
1.        I confirm that the information I have provided on this form, including the                 attachments, is complete, correct and up to date in every detail; and
…
3.        I agree that if any of my circumstances change, such that an answer in this           application or information given to the Authority is no longer correct, I will   inform the Authority as soon as possible but no more than 14 days later, I   will continue to advise the Authority of any changes in my circumstances until                   a decision is made on my application; and
4.        I understand that I must inform the Authority in writing within 14 days of any          notifiable events as required by section 312(1) of the Migration Act 1958 (the Act); and
…
10. I am aware that it is an offence under the Commonwealth Criminal Code Act 1995 for a person to give information or to make a statement to a Commonwealth entity, knowing that the information or statement is either false, misleading or omits any matter of thing without which the information or statement is misleading (sections 136.1 and 137.1 of the Criminal Code Act 1995). I am aware that the penalty for this is imprisonment for up to 12 months; and
…
12.      I have read and understood the Code of Conduct for Migration Agents and I   have complied with it, and will continue to comply with it, in its entirety.
I agree Yes[.]
On 29 October 2019 the Respondent stated in correspondence to the Applicant[6]:
On the 20 June 2019 your legal practice was placed into receivership. In order for the Authority to consider your repeat registration application we require information regarding this action and the out come on your present circumstances. Please submit documentation regarding the receivership. …
[6] Exhibit 1, T4, page 93.
The Respondent sent further correspondence to the Applicant on 29 November 2019[7] as to the request for information made on 29 October 2019[8], requesting that the information be submitted by 4 December 2019.
[7] Exhibit 1, T4, page 95.
[8] Exhibit 1, T4, page 93.
On 5 December 2019 the Applicant provided to the Respondent information which referred to the appointment of receivers to RKYP Legal Pty Ltd[9]:
Please find attached the notice of appointment of receivers to [RKYP] Legal Pty Ltd as required.
I confirm QLS investigation is currently still on going and the matter has not been concluded. I further confirm I have registered [RKYP] and Associates … effective 12 July 2018 and [RKYP] and Associates Pty Ltd … effective, 25 March 2019. I am currently trading under [RKYP] and Associates Pty Ltd. …
[9] Exhibit 1, T4, page 97.
On 11 December 2019 the Respondent sent to the Applicant a notice under section 308 of the Migration Act 1958 (Cth) (the “Act”) requesting a response to questions in the form of a statutory declaration[10]:
[10] Exhibit 1, T6, page 245.
Notice under Section 308 of the Migration Act 1958
I refer to your application for registration as a migration agent, which was received by the Office of the Migration Registration Authority (the Authority) on 3 October 2019.
In assessing any application for registration a delegate must consider the applicant’s fitness and proprietary to give immigration assistance, as provided under subsection 290(1) of the Migration Act 1958 (the Act). Pursuant to subsection 290(1) of the Act, this matter must be considered as part of your assessment of your registration application. …
Background
…
3. The Authority’s records also state that you were associated with [RKYP] Legal Pty Ltd (“[RKYP] Legal”) between 27 August 2015 and 10 May 2019 in the capacity of Director. There were no other registered migration agents connected to [RKYP] Legal.
4. On 21 June 2019 the QLD Law Society (QLS) wrote to the Authority to advise the Authority of resolutions passed on 20 June 2019 in relation to [RKYP], formerly practicing as [RKYP] Legal: The Council Executive Committee considers it may be appropriate that the provision of legal services by the practice be wound up and terminated. In this correspondence, the QLS notified the Authority of the receivers appointed to your law practice.
5. However, the correspondence that the Authority received from the QLS was the first that we were aware of the appointment of receivers to a corporation where you previously provided immigration assistance.
6. In your registration application, received by the Authority on 3 October 2019, you gave no indication of the fact that receivers had been appointed to [RKYP] Legal. You did not declare the investigation, nor did you submit supporting documentation in relation to any decision of the QLS. You did not advise the Authority of the status of your practising certificate, although you have been registered on the basis of holding your practising certificate for a decade. …
Response Required
In order to continue to assess your application, I require that you answer the following questions in the form of a statutory declaration, as provided per section 308(1)(a) of the Act:
a. Please explain why you did not declare the investigations of the QLS or the appointment of receivers to [RKYP] Legal to the Authority, either when you became aware of these matters as required by section 312(1)(h) of the Act or when submitting your repeat registration to the Authority.
b. Please advise if and when your QLD Practicing Certificate was cancelled.
c. Please advise if you have applied for renewal of your Practicing Certificate for 2019/2020 and, if so, the status of this application.
d. Please provide a copy of the QLS decision including finances and/or the reasons that led to receivers being appointed to [RKYP] Legal.
e. Please provide the details of any further disciplinary actions or investigations being taken against you. …
On 28 January 2020 the Applicant swore a statutory declaration including the following[11]:
[11]          Exhibit 1, T7, page 252.
…
2. On 21 June 2019, the Queensland Law Society has decided to put [RKYP] Legal into receivership and the details has been provided to the Authority in my last submission on 5 December 2019;
3. I have decided to become a non-practising solicitor after the above event, and I continue to practice as [RKYP] and Associates Pty Ltd;
4. I have completed my repeat registration on 3 October 2019 and I did not provide indication of the fact of the receivership because I was not aware that I was required to. I offer my sincere apology to the Authority;
5. I did, however, inform the Authority that I was a [sic] no longer practising as a solicitor on an online enquiry for[m] completed and sent on 22 July 2019 at 2:11 PM, Your Reference No: ENQ-45819. I submit that I did not and would not mislead the Authority on such an issue.
...
11.      Please see below my respond [sic] to your questions:
a. With respect to the explanation – please refer to the above paragraphs;
b. My Queensland Practising Certificate was cancelled subsequent to [RKYP] Legal Receivership on 24 June 2019;
c. I did not apply to renew my Queensland Practising Certificate due to require [sic] a law firm or legal practice to do so. I have decided to remain as a non-practising solicitor. I may look for an in-house legal counsel [role] in the future. …
d.With respect to the receivership for [RKYP] Legal, QLS has provided the two letters dated 21 June 2019 to me and I have forwarded the same to Mr Sean Ayrton at the Authority on 5 December 2019;
e.        There is no further disciplinary action against me. …
[bold in original]
On 29 January 2020 the Respondent made a request to the Applicant by email[12]: “The information you have submitted does not clarify the reasons for the business solvency. The documentation explains the process of the solvency but does not specify the reasons for the Business solvency. I believe the Management will need clarification of this to consider your application further.”
[12] Exhibit 1, T8, page 266.
On 4 February 2020 the Applicant replied to the Respondent’s email of 29 January 2020, stating[13]: “The main reason for the insolvency was due to the Company continued [sic] trading without the professional indemnity insurance from Lexon Insurance which we could not afford at the time.”
[13] Exhibit 1, T9, page 267.
On 25 February 2020[14] the Respondent issued the Applicant with a notice (referring to section 309 of the Act), stating that the Respondent was considering refusing the Applicant’s application for registration lodged on 2 October 2019[15].
[14] Exhibit 1, T10, pages 389-397.
[15] Exhibit 1, T4, pages 74-81.
On 25 May 2020 the Applicant responded to the notice issued on 25 February 2020, including with submissions the following in a statutory declaration[16]:
[16] Exhibit 1, T12, pages 400-461.
… 7. … I say that I was a partner of [redacted] working from both the Brisbane office and an office I set up for the firm in Shanghai, China until 12 July 2018 when I was summarily ousted from that position and the firm. This is when my life began to spiral out of control.
8. The reason for this action was that I had taken instructions from a client to hold on her behalf the sum of $80,000 instead of depositing it into the firm’s trust account. I did not [n]or did I intend to misappropriate these monies.
…
11. On or about 21 June 2019 I was advised that the QLS had appointed a receiver to [RKYP] Legal Pty Ltd and on 24 June 2019 my practicing certificate was cancelled. Between 17 July 2019 and 31 July 2019, the QLS collected all my files from my office and home, including migration files, and contacted all those clients advising them of the receivership.
…
18. All this was occurring during a time of extreme stress and financial hardship not to mention my embarrassment as the situation which I had put myself in coupled with poor health both mentally and physically clouded my judgment to the point where I felt I was no longer myself and experienced occasions of poor thinking processes.
19.This impairment led me not disclosing that I was a director of a company that was being wound up and that I was the subject of a disciplinary act by the QLS as I know now I should have when seeking re-registration in September 2019. …
On 22 June 2020[17] the Respondent stated to the Applicant[18]:
[17]          Exhibit 1, T3, page 58.
[18]          Exhibit 1, T3, page 66-67.
Findings …
22.The QLS decision calls into question the applicant’s integrity, honesty and fairness to be a registered migration agent. It demonstrates that he cannot be trusted to appropriately manage clients’ money, which is an important competency for registered migration agents as specified in the Occupational Competency Standards for Migration Agents. …
26. The Applicant’s submission does not dispute that his failure to manage client money in accordance with section 255 of the Legal Profession Act 2007. Initially he held client money in a safe at [redacted] rather than a bank account and it was later moved to a safe deposit box for [RKYP] and [redacted] Lawyers Pty Ltd. … The Applicant’s motive for this is not clear, but the Applicant’s willingness to participate in such an act in breach [of] his obligations as a legal practitioner is clear. …
29.In cancelling the Applicant’s [practicing certificate] the [Queensland Law Society] found that the Applicant has shown a “blatant, ongoing failure to comply with regulatory requirements”. I find that the Applicant has also shown similar disregard towards the requirements of being a registered migration agent as he:
·     failed to hold the required PII for the period 4 September 2018 and 1 May 2019;
·     failed to notify that he was a Director of a company that was being wound up as required by section 312 of the Act; and
·     failed to declare on the 2019 registration application that he had been the subject of disciplinary action by the QLS. …
31. For the reasons outlined above, I find that the Applicant is not a fit and proper person to give immigration assistance or a person of integrity.
Decision
32.Accordingly, I have decided to refuse to register the Applicant as a migration agent, on the basis that he has failed to meet the registration requirements specified in sections 290(1)(a) and (b) of the Act. …
On 24 June 2020[19] the Applicant applied to the Tribunal for a review of the decision of 22 June 2020[20]. As to the ‘reasons for the application’, the Applicant stated:
The Applicant is a fit and proper person to hold a licence and is a person of integrity. The Assessment at the time of the decision, as to whether or not an Applicant is fit and proper must be made based on evidence at the current time.
The MARA Decision is based predominately upon findings by QLS, based on events that occurred sometime prior to that.
The concept of being fit and proper, as explained in the excerpt cited by MARA relates to character generally, which might be informed by a single incident, but it is a much broader concept that merely a single incident.
The event in relation to handling of trust money as a lawyer relate to a single incident. They involve no element of dishonesty or an attempt to mislead the client.
There has been no evasive conduct at all. Since the events, the Applicant has undergone a training course with QLS and has a more recent better understanding of the trust accounting obligations. There is no danger to consumers.
[19] Exhibit 1, T1, pages 8-10.
[20] Exhibit 1, T3, page 58.
SECTION 290
Section 290 of the Act[21] relevantly states[22]:
[21] Act No. 62 of 1958 as amended, taking into account amendments up to Migration Amendment (Regulation of Migration Agents) Act 2020, registered 26 March 2021, start date 22 March 2021.
[22]s. 290................................... ad. No. 85, 1992, rs. No. 205, 1997, am. No. 48, 2004. Section 290 has not changed since Act No. 48 of 2004.
(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
…
(2) In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:
…
(e) any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and
(f) any disciplinary action that is being taken, or has been taken, against the applicant that the Authority considers relevant to the application; and
…
(h) any other matter relevant to the applicant's fitness to give immigration assistance.
…
(4) To avoid doubt, this section applies to all applicants (not just first time applicants).

Section 306[23] of the Act states that, subject to the Administrative Appeals Tribunal Act 1975 (Cth), application may be made to the Tribunal for review of a decision made by the Respondent under the particular Division.
[23] s. 306................................... ad. No. 85, 1992, am. No. 205, 1997.
ISSUE
The issue is whether the Applicant is ‘a fit and proper person to provide immigration assistance’ and ‘a person of integrity’, pursuant to sub-section 290(1)(a) and (b) of the Act.
As referred to above, the Respondent made the decision on 22 June 2020[24] to refuse to register the Applicant as a migration agent, referring to the following specifically:
(a)The Queensland Law Society decided to cancel the Applicant’s practising certificate and appoint receivers to RKYP Legal;
(b)The Applicant did not manage client money in accordance with section 255 of the Legal Profession Act 2007 (Qld);
(c)The Applicant did not hold the required professional indemnity insurance for the period 4 September 2018 to 1 May 2019;
(d)The Applicant did not notify the Respondent in accordance with section 312 of the Act; and
(e)The Applicant did not declare any disciplinary action by the Queensland Law Society in the October 2019[25] application.
[24] Exhibit 1, T3, page 58.
[25] Exhibit 1, T4, pages 74-81.
Disciplinary action by the Queensland Law Society
The Queensland Law Society cancelling the Applicant’s practising certificate and appointing receivers to RKYP Legal Pty Ltd
It is not in contention that the Queensland Law Society had cancelled the Applicant’s practising certificate, prior to the completion of the form on 2 October 2019 by the Applicant[26]. It was also not in contention that the Queensland Law Society ‘appointed a receiver’ to RKYP Legal Pty Ltd[27], prior to the completion of the form by the Applicant on 2 October 2019.
[26] Exhibit 1, T4, pages 74-81.
[27] Transcript, page 14, lines 43-44.
The Applicant stated that the Queensland Law Society[28] “[b]etween 17 July 2019 and 31 July 2019 … collected all my files from my office and home, including migration files, and contacted all those clients advising them of the receivership”.
[28] Exhibit 1, T12, page 408, paragraph 11.
The Applicant stated that his reason for not communicating to the Respondent the receivership, the Queensland Law Society investigation and/or a decision by the Queensland Law Society, was ‘[j]ust because, simply because there were too many things happening in between’[29]. Where the form of 2 October 2019 required the Applicant to declare to the best of his knowledge and belief that he had not been or was not currently the subject of an inquiry or investigation by a professional association, the Applicant by the form was required to refer to the investigation as to his practising certificate. The Applicant relevantly stated that[30]: “This … led to me not disclosing that I was a director of a company that was being wound up and that I was the subject of disciplinary act by the [Queensland Law Society] as I know now I should have when seeking re-registration … ”.
[29] Transcript, page 64, lines 31-45.
[30] Exhibit 1, T12, page 409.
Management of client money
In August 2016 the Applicant became a partner of a law firm[31]. In late 2016, the Applicant received a sum of $80,000 in cash from a client for the purposes of ‘a business venture’[32]. The Applicant placed those funds in a safe at the office of the firm[33]. The funds were later placed in a bank safe deposit box, which deposit box was held in the name of RKYP and [Another] Lawyers Pty Ltd and which was used by the Applicant to store personal items[34].
[31]          Transcript, page 15, lines 13-14.
[32]Respondent’s Statements of Issues, Facts and Contentions, dated 20 November 2020, page 3, paragraph 12.
[33]          Exhibit 8, SM1, page 305.
[34]          Exhibit 1, T12, page 402.
Section 255 of the Legal Profession Act 2007 (Qld)[35] states:
[35]          Exhibit 1, T Documents, T12, page 402; Transcript, page 20, lines 37-40.
Trust money received in the form of cash
(1)       A law practice must deposit general trust money received in the form of   cash in a general trust account of the practice.
Maximum penalty—100 penalty units.
(2)       If the law practice has a written direction by an appropriate person to deal            with general trust money received in the form of cash otherwise than by first                 depositing it in a general trust account of the practice—
(a)       the money must nevertheless be deposited in a general trust account                    of the practice under subsection (1); and
(b)       after it is deposited in the general trust account, the money is to be    dealt with under the applicable terms of the direction so far as those   terms are not inconsistent with paragraph (a).
(3)       Controlled money received in the form of cash must be deposited in a                    controlled money account under section 251.
(4)       A law practice must deposit transit money received in the form of cash in a            general trust account of the practice before the money is otherwise dealt with                  under the instructions relating to the money.
Maximum penalty—100 penalty units.
(5)       A law practice must deposit trust money that is received in the form of cash   and is the subject of a power in a general trust account, or a controlled money            account in the case of controlled money, of the practice before the money is                 otherwise dealt with under the power.
Maximum penalty—100 penalty units.
(6)       This section has effect despite anything to the contrary in any relevant                   direction, instruction or power.
(7)       In this section—
appropriate person, in relation to trust money, means a person who is       legally entitled to give the law practice concerned directions in relation to      dealings with the money.
general trust money means trust money, other than—
(a)       controlled money; and
(b)       transit money; and
(c)       money that is the subject of a power.
The Applicant states relevantly[36]: ‘I do not deny this conduct. Having now reflected on s 255 of the Legal Profession Act 2007, I can see I have breached the section. The money ought to have been placed in trust. It was a misjudgment on my part’.
[36] Exhibit 8, SMI1, page 305.
The Applicant stated that the requirement for a migration agent to keep a separate client account under Part 7 of the Code of Conduct is ‘similar’ to the obligation imposed on a solicitor to keep a trust account[37]. In the Migration Agents Regulations 1998 (Cth)[38], regulation 8 states: ‘For subsection 314(1) of the Act, the Code of Conduct is set out in Schedule 2’. The Respondent referred specifically to the Code of Conduct for Registered Migration Agents (“the Code”)[39] as at 18 April 2017, clauses 7.1 and 7.2[40]:
[37]          Transcript, page 21, line 46 to page 22, line 4.
[38]SR 1998 No. 53 Regulations as amended, taking into account amendments up to Migration Agents Amendment (Regulation of Migration Agents) Regulations 2020 (Cth), registered 1 April 2021, start date 22 March 2021.
[39]The Code of Conduct in Schedule 2 was previously amended by Act No. 106 of 2012: Schedule     2................................am No 69, 1999; No 64, 2000; No 309, 2000; No 143, 2001; No 346, 2002; No         129, 2004; No 391, 2004; No 131, 2005; No 249, 2006; No 250, 2011; No 106, 2012; F2017L00437;           F2020L01000.
[40]Respondent’s Closing Submissions, dated 15 December 2020, page 5. There has been no change to the relevant Code of Conduct provisions (2.3A, 2.9A, 7.1 and 7.2).
Part 7 – Financial duties
7.1      Subject to clause 7.1B, a registered migration agent must keep    separate accounts with a financial institution 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). …
7.2      A registered migration agent must hold, in the clients’ account, an    amount of money paid by a client for an agreed block of work until:
(a)       the agent has completed the services that comprise the block    of work; and
(b)       an invoice has been issued to the client for the services    performed in accordance with the Agreement for Services   and Fees mentioned in clause 5.2, showing:
(i)        each service performed; and
(ii)       the fee for each service. …
The Respondent submits that the Applicant was not upfront and truthful with the liquidators of RKYP and [Another] Lawyers Pty Ltd regarding the true ownership of the $80,000[41]. The Applicant submits that the failure to deposit the cash into the law firm’ss trust account was ‘a serious but honest mistake’ which ‘arose in an unusual set of circumstances which are unlikely to ever be repeated again’[42]. The Applicant further submitted that the act of ‘holding the cash’, referred to above, should be considered in the context of an ‘inherent distrust in financial institutions which exists’ culturally[43].
[41]          Respondent’s Closing Submissions, dated 15 December 2020, page 14, paragraph 59.
[42]          Applicant’s Closing Submissions, page 2, paragraph 6.
[43]          Applicant’s Closing Submissions, pages 1-2, paragraph 5; Transcript, page 36, lines 40-45.
On the form lodged by the Applicant on 2 October 2019, the ‘holding of cash’ as referred to above, was conduct which would affect the fitness and propriety to provide immigration assistance or which goes to integrity (vii in the form) or are other relevant matters which would cause the Respondent to consider that the Applicant is not a fit and proper person or a person not of integrity to provide immigration assistance (viii in the form).
The Applicant referred to subsequently attending a refresher course with the Queensland Law Society as to trust accounting[44]. The Applicant stated that he did not pass that particular trust accounting course[45]:
My question is did you not think it relevant to tell the tribunal that you failed the     course that you’re relying on?
Because I disagree with the marks that’s why I did not raise the questions that I did         not fail the course but I did …
Do you agree that you have in your affidavit you have not told the tribunal the entire        truth?
Yes, I do. Yes, I agree.
[44]          Exhibit 6, Applicant Affidavit, dated 7 August 2020, paragraph 36.
[45]          Transcript, page 23, lines 35-45; Exhibit 8, SM1, page 400.
Professional indemnity insurance from 4 September 2018 to 1 May 2019
The Applicant does not contend that for the period 4 September 2018 to 1 May 2019[46] that he had the required professional indemnity insurance[47]. The Applicant stated that no legal work was performed during that period[48]. The Applicant also stated that RKYP Legal did not conducted any legal work in that period[49].
[46]          Exhibit 1, T3, page 67.
[47]          Applicant’s Closing Submissions, page 3, paragraph 9.
[48]          Transcript, page 18, lines 19-27; Applicant’s Closing Submissions, page 3, paragraph 10.
[49]          Transcript, page 18, line 42.
The Applicant submitted that the ‘temporary lapse’ in professional indemnity insurance was ‘causally connected’ with events relevant to the facts referred to above as to s 255 of the Legal Profession Act[50]. Specifically, the Applicant contends that the failure to hold professional indemnity insurance during this period was a result of focussing on other legal and personal issues with the law firm in question, as well as health, financial and marital issues[51]. The Applicant further referred to ‘unusually high personal and professional stressors, including significant financial pressures culminating in a stroke’[52]. The Applicant did agree that these problems were of the Applicant’s ‘own making’[53]. When asked if this was ‘sufficient justification for not holding professional indemnity insurance’ the Applicant replied, ‘I just can’t afford it … financially’[54].
[50]          Applicant’s Closing Submissions, page 3, paragraph 9.
[51]          Exhibit 6, Applicants Affidavit, dated 7 August 2020, paragraph 26.
[52]          Applicant’s Closing Submissions, page 11.
[53]          Transcript, page 54, lines 35-39.
[54]          Transcript, page 54, lines 41-43.
The Code of Conduct[55] (the “Code”) at clause 2.3A states[56]:
[55] Section 314 of the Act.
[56]Respondent’s Closing Submissions, dated 15 December 2020, page 5. There has been no change to the relevant Code of Conduct provisions (2.3A, 2.9A, 7.1 and 7.2).
Part 2 – Standards of profession conduct
2.3A A registered migration agent’s professionalism must be reflected in the
making of adequate arrangements to avoid financial loss to a client, including the holding of professional indemnity insurance mentioned in regulation 6B^[[57]] for the period of the migration agent’s registration.
[57] Note: Regulation 6B of the Migration Regulations 1994 (Cth) No 268, 1994 states that the amount of
professional indemnity insurance required is for at least $250,000.
Sub-section 314(2) of the Act states: ‘(2) A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct’. The Applicant specifically agreed that a failure to hold professional indemnity insurance was a breach of code 2.3A of the Code of Conduct and section 314 of the Act[58]. On the form lodged by the Applicant on 2 October 2019, the Applicant specifically stated (at 12 in the form) that he had read and understood the Code of Conduct for Migration Agents and had complied with it, and would continue to comply with it, in its entirety.
[58] Transcript, page 55, lines 40-46 (extracted at lines 24-29).
Notification Requirements
Section 312 of the Act, which is expressly referred to in the application form of 2 October 2019, relevantly states[59]:
[59]s 312.................................... ad No 85, 1992, am No 205, 1997; No 97, 2001; No 48, 2004; No 8, 2007; No 71, 2020.
312 Notification obligations
(1)       A registered migration agent must notify the Migration Agents Registration Authority in writing within 14 days after any of the following events occurs:
…
(f)he or she becomes an employee, or becomes the employee of a new employer, and will give immigration assistance in that capacity;
…
(h)if he or she is an executive officer or an employee of a corporation and gives immigration assistance in that capacity:
(i)        a receiver of its property or part of its property is appointed; or
(iii)       it begins to be wound up.
Penalty: 100 penalty units.
(2)       An offence against subsection (1) is an offence of strict liability.
…
(4)       A registered migration agent must notify the Migration Agents Registration Authority in writing within 28 days after the agent becomes:
(a)       a restricted legal practitioner; or
(b)       an unrestricted legal practitioner.
Penalty: 100 penalty units.
(5)       An offence against subsection (4) is an offence of strict liability.
The Applicant stated that in March 2019 he ‘had written to all the clients to facilitate transfer of all migration matters from [RKYP] Legal Pty Ltd to [RKYP] and Associates Pty Ltd’[60]. The Applicant submitted that as a result of that ‘transfer’ of migration clients, section 312(1)(h) of the Act was not relevant, as the receivers were not appointed to a company that was providing immigration advice[61]. The Applicant submitted that ‘for that reason, [he] did not [need] to provide a report to [the Respondent]’ as to the appointment of receivers to RKYP Legal Pty Ltd[62].
[60]          Exhibit 6, Applicant Affidavit, dated 7 August 2020, paragraphs 10-11.
[61]          Exhibit 6, Applicant Affidavit, dated 7 August 2020, paragraph 15.
[62]          Exhibit 6, Applicant Affidavit, dated 7 August 2020, paragraph 15.
As to whether section 312 of the Act required that the Applicant notify the Respondent in writing within 14 days of the appointment of a receiver to RKYP Legal Pty Ltd, the Applicant submitted, as referred to above, that there was not a notification obligation in accordance with s 312(1)(h) of the Act, in that that entity was no longer ‘giving immigration assistance’. The Applicant did not submit as to whether or not the 14 day written notification requirement in section 312(1)(f) was applicable, where it was submitted that s 312(1)(h) was not applicable: if the Applicant ‘becomes an employee, or becomes the employee of a new employer, and will give immigration assistance in that capacity’.
The Respondent submits that the Applicant should have disclosed disciplinary investigations by the Legal Services Commission, Queensland. Specifically, the Respondent refers to a Legal Services Commission, Queensland, investigation into the $80,000[63] cash (referred to above) and another investigation in September 2019[64] as to, inter alia, the professional indemnity insurance (referred to above)[65].
[63]          Respondent’s Closing Submissions, dated 15 December 2020, page 19, paragraph 73.
[64]          Respondent’s Closing Submissions, dated 15 December 2020, page 19, paragraph 76.
[65]          Respondent’s Closing Submissions, dated 15 December 2020, page 19, paragraph 76.
The Applicant did not provide any notification prior to the completion of the form on 2 October 2019 as to these investigations, where the form required the Applicant to declare to the best of his knowledge and belief that he had not been or was not currently the subject of an inquiry or investigation by a professional association.
DECISION ON REVIEW
39.In considering whether the Applicant is not a fit and proper or not a person of integrity, the Tribunal must take into account the relevant matters prescribed by section 290(2) of the Act: ‘ … (e) any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; (f) any disciplinary action that is being taken, or has been taken, against the applicant that the Authority considers relevant to the application; … and (h) any other matter relevant to the applicant’s fitness to give immigration assistance.’
In Australia Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 340, Toohey and Gaudron JJ stated:
The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
Kirby J in Shi v Migration Agents Registration Authority [2008] HCA 31 at [48] stated that ‘not a person of integrity’ and ‘fit and proper person’ are both ‘expressed in the present tense’. At [148]-[149] in Shi, Kiefel J relevantly stated:
The ordinary meaning of a person’s “integrity” is plain enough. The expression “fit and proper” is one traditionally used with reference to an office or vocation, “fit” being referable to a person’s honesty, knowledge and ability.
The inquiry posed by the paragraph is a general one, and it may be considered by the tribunal in that way. It does not limit an assessment of an agent’s integrity and fitness to what has been conveyed by any breaches. There is no reason why the tribunal’s review should not extend to any information which sheds light upon the presence or absence of the necessary characteristics in the migration agent.

The Applicant submits that: he is a fit and proper person; is a person of integrity; that the assessment of the Applicant is to be based on evidence at the current time; that the Respondent’s decision is based on findings by the Queensland Law Society which refers to events occurring prior; that the concept of being fit and proper relates to character generally; that the concept of being fit and proper might be informed by, but is a much ‘broader’ concept than, a single incident; that the handling of trust money as a lawyer relates to a single incident; that there was no dishonesty or attempt to mislead the client in the handling of trust money; that there has been no evasive conduct by the Applicant at all; that the Applicant has undergone a training course with the Queensland Law Society; that the Applicant has a better understanding of the trust accounting obligations now; and therefore, there is no ‘danger’ to consumers.
As referred to above, the Applicant was the subject of inquiries or investigations that were relevant to the application made on 2 October 2019, which were not referred to in that application. As also referred to above, the Applicant had also been the subject of disciplinary investigation by the Queensland Law Society as to the Applicant which was relevant to the application made on 2 October 2019, which was not referred to in that application. The Applicant does not contend that there had been prior communications to the Respondent as to any of the matters referred to above, prior to 2 October 2019. There are other matters relevant, negatively, to the applicant’s fitness to give immigration assistance, as referred to above. In considering whether there is satisfaction or not as to whether the applicant is not fit and proper or not a person of integrity, ‘account has been taken’ of sub-paragraphs (a)-(h) of s 290 of the Act.
44.The Respondent decided on 22 June 2020 that it was satisfied that the Applicant was not a fit and proper person and was not a person of integrity under sections 290(1)(a) and (b) of the Act respectively[66]. It is decided that the Applicant must not be registered in that there is satisfaction that the Applicant is not a fit and proper person to give immigration assistance (s 290(1)(a)). It is also decided that the Applicant must not be registered in that there is satisfaction that the Applicant is not a person of integrity (s 290(1)(b)). The decision under review of 22 June 2020 is therefore affirmed.
[66] Exhibit 1, T3, page 67.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter

................................[SGD]........................................
Associate
Dated: 22 June 2021

Dates of hearing: 14 and 15 December 2020

Date final submissions received: 18 December 2020

Counsel for the Applicant: Mr S. Taylor

Solicitors for the Applicant: Robinson Locke Litigation Lawyers

Counsel for the Respondent: Ms E. Hoiberg

Solicitors for the Respondent: Clayton Utz Lawyers

[2021] AATA 2871

22 June 2021

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Dates of hearing:	14 and 15 December 2020
Date final submissions received:	18 December 2020
Counsel for the Applicant:	Mr S. Taylor
Solicitors for the Applicant:	Robinson Locke Litigation Lawyers
Counsel for the Respondent:	Ms E. Hoiberg
Solicitors for the Respondent:	Clayton Utz Lawyers