Rozsy and Migration Agents Registration Authority
[2008] AATA 434
•26 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 434
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600170
GENERAL ADMINISTRATIVE DIVISION ) Re PETER ROZSY Applicant
And
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Mr S Penglis, Senior Member Date26 May 2008
PlacePerth
Decision 1. Within 14 days of the date of this decision, the respondent to lodge with the Tribunal an Outline of its Submissions as to whether, in light of these reasons for decision, the applicant ought to be barred from being a registered migration agent pursuant to s311B of the Migration Act, 1958 and, if so, for what period, and to serve a copy on the applicant within the same period.
2. Within 14 days of the date of being served with a copy of the respondent’s Outline of Submissions, the applicant to lodge with the Tribunal an Outline of Submissions as to whether, in light of these reasons for decision, he ought to be barred from being a registered migration agent pursuant to s311B of the Migration Act 1958 and, if so, for what period, and to serve a copy on the respondent within the same period.
3. Within 7 days of the date of this decision, both parties are to advise the Tribunal, in writing, of their unavailable dates in June and July for the further hearing of this matter.
4. Thereafter the matter be listed for further hearing as to whether in light of these reasons for decision the applicant ought to be barred from being a registered migration gent pursuant to s311B of the Migration Act 1958 and, if so, for what period.
....(sgd) Mr S Penglis...........
Senior Member
CATCHWORDS
Immigration – various breaches of code of conduct by migration agent – consideration of the proper construction of clauses 2.1, 2.3 and 2.23 of the Code of Conduct – relevant principles to be applied in determining whether to make barring order and, if so, for what period.
LEGISLATION
Migration Act 1958 (Cth) ss 5(1), 311A, 311B, 313(1) and 314(1)
Migration Regulations, 1.15A
Code of Conduct, clauses 2.1(a), 2.1(b), 2.3, 2.4, 2.8, 2.23, 5.2 and 5.5(a)
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Donald and Australian Securities and Investments Commission [2001] AATA 66
Hannah v Migration Agents Registration Authority [1999] FCA 1657
Khan v Migration Agents Registration Authority [2005] AATA 13
Kzi and Migration Agents Registration Authority [2006] AATA 42
Mohammed and Migration Agents Registration Authority [2004] AATA 1401
Narayanan and Migration Agents Registration Authority [2006] AATA 353
Rich v Australian Securities and Investments Commission [2004] HCA 42
Rozsy and Migration Agents Registration Authority [2005] AATA 420
Sosrohadipoespito and Migration Agents Registration Authority [2001] AATA 293
Ex Parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357
REASONS FOR DECISION
26 May 2008 Mr S Penglis, Senior Member INTRODUCTION
1. By decision dated 22 May 2006 the respondent, acting pursuant to s 311B of the Migration Act 1958 (“the Act”), decided to bar the applicant from being a registered migration agent for a period of 4 years on the stated basis that the respondent was “satisfied that (the applicant) had not complied with the code of conduct prescribed under s 314(1) of the Act, is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance”.
2. That is the reviewable decision which the applicant now seeks this Tribunal to review.
3. In reaching its decision, the respondent considered and made adverse findings against the applicant in respect of 6 complaints by former clients of the applicant. It is therefore necessary to identify and analyse those complaints (insofar as they were maintained by the respondent before the Tribunal).
LEGISLATION AND POLICY
4. S 311A of the provides as follows:
(1) The (respondent) may decide to bar a former registered migration agent from being a registered migration agent for a period if, after investigating a complaint about him or her in relation to his or her provision of immigration assistance while he or she was a registered migration agent, it is satisfied that the subject matter of the complaint is made out.
(2) The period must not be more than 5 years starting on the day of the (respondent’s) decision.
5. S 314 of the Act provides that the regulations may prescribe a code of conduct for migration agents and that a registered migration agent must conduct himself or herself in accordance with the prescribed code of conduct.
6. The Code of Conduct is prescribed by Regulation 8 of the Migration Agents Regulations 1998 and is set out in Schedule 2 of those Regulations.
7. For the purpose of this application, the relevant provisions of the Code of Conduct are as follows:
· Clause 2.1 - A registered migration agent must always:
(a)act in accordance with the law and the legitimate interests of his or her client; and
(b)deal with his or her client competently, diligently and fairly.
· Clause 2.3 - A registered migration agent’s professionalism must be reflected in a sound working knowledge of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.
· Clause 2.4 – A registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.
Clause 2.8 – A registered migration agent must:
(a) within a reasonable time after agreeing to represent a client, confirm the client’s instruction in relation to the client: and
(b) …..
(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…”.
· Clause 2.23 – a registered migration agent must take all reasonable steps to make maintain the reputation and integrity of the migration advice profession.
· Clause 5.2 – A registered migration agent must:
(a) before starting work for a client, give the client
(i)an estimate fees in the form of charges for each hour or each service, and disbursements that the agent is likely to incur as part of the work: and
(ii)an estimate of the time likely to be taken in performing a service: and
(b) as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of the terms of the work to be done: and
(c) give the client written confirmation of the terms of the service to be rendered: and
(d) give the client written notice of any material change to the estimated cost of providing the service, and the total likely cost because of the change, as soon as the agent becomes aware of the likelihood of a change occurring.
· Clause 5.5(a) – A registered migration agent must be aware of the effect of section 313 of the Act, and act on the basis that:
(a)the agent is not entitled to be paid a fee or other reward for giving immigration assistance to a client unless the agent gives the client a statement of services.
The complaints
8. In the reviewable decision, each of the complainants was ascribed a letter to identify them. As none of the complainants provided a witness statement which was tendered during the course of the Tribunal hearing, and as nothing turns on their identities, I too will refer to each complainant by the letter ascribed to them by the respondent.
9. Set out below under this section are the non-contentious facts relating to each of the complaints. All relevant contentious evidence is dealt with elsewhere in these Reasons for Decision.
Complainant A
10. On or about 19 February 2005, Complainant A executed a written “Migration Services Agreement” with the applicant’s company AAA Australian Migration Pty Ltd (“AAA”). The Agreement described the “services to be rendered” as follows:
“3.1 Assess and research for visa options.
3.2If appropriate, prepare the visa application (‘the Application’) for the visa sub-class selected by you for you and your family members with all relevant submissions, application forms and associated documentation.
3.3Monitor the progress of the application through the Department.
3.4Advise you if we become aware of any delays with the Department’s processing of the Application.
3.5In due course to advise you in writing whether the Department has accepted or rejected the application.
3.6Provide advice and direction on a skills assessment, where applicable.”
Under the heading of “Costs”, the Agreement provided as follows:
“4.1Our agreed professional fee for performing the services is $AUD3700 subject to paragraph 4.4.
4.2Payment of our fees is to be made as follows:
(a)first payment of $AUD1850 on execution and return to us of this Agreement.
(b) second payment of $AUD1850 when the application is completed and ready for lodgement.
4.3You also agree to pay the following disbursements:
(a) the Department’s lodgement fee prior to lodgement of the Application. As presently advised this is $AUD1845, but is subject to change;
(b)all costs incurred in medical examinations;
(c)any costs incurred in translating any supporting documentation into English;
(d)any accounting or auditing fees relating to your business(es).
4.4All costs referred to in paragraph 4.2 are calculated on the basis of the value of advice provided and work required. You agree that if AAA Australian Migration Pty Ltd employees are required to spend any extra time as a result of you requiring advice and assistance that is considered, by AAA Australian Migration Pty Ltd employees, to be above a reasonable amount of advice and assistance, then extra charges and costs may be applicable.
4.5All costs referred to herein (fees and disbursements) do NOT include a Goods and Services Tax (‘GST’) pursuant to Goods and Services Tax Act 1999. GST is payable by you on professional fees only at the rate of ten per cent (10%) if you are in Australia when the service is provided”.
11. Complainant A subsequently paid to AAA the sum of $1,850 in accordance with clause 4.2(a) of the Agreement (plus GST thereon of $185). In her “Details of Complaint” to the respondent, Complainant A said that her initial consultation with the applicant “lasted less than an hour and I was also promised to be delivered via email any relevant application forms and documents ….. to start the application process”. She said that she gave to the applicant 2 email addresses by which he could contact her and that the applicant said “he will email me the information pack, forms and documents and I was promised that I will receive it at the latest, Monday, (21/2/05)”.
12. The Details of Complaint then went on to note various attendances by Complainant A on the applicant’s office, seeking to speak to the applicant, being notified that the applicant was unavailable and, in response, notifying the applicant’s office that Complainant A had not received the information pack she had been promised, had not heard from the applicant and wished to be contacted by the applicant.
13. Tendered in evidence were various emails passing between Complainant A, the applicant and other migration agents within AAA.
14. On 21 May 2005 Complainant A emailed the applicant stating as follows:
“I do not wish to wait long and waste more time. Now, I need to know answers to these questions, please advise
has my application been lodged already or are you still waiting for me?
If so, when was my permanent residency application lodged?
What is the next step for my application? I have received no word/monitoring from you since I have paid?
How long will the application take? And how is the situation with my application process?
When can we meet to discuss the next step?
15. That email was sent to AAA’s general email address. There is no evidence that it was then read by the applicant. To the contrary, the evidence is that the email was dealt with by Ian Lattimore, the Office Manager of AAA, by forwarding it by email to Tracy Terrill, a migration agent to whom work was sub-contracted by AAA.
16. By email dated 23 May 2005 to Complainant A, Tracy Terrill noted that Complainant A’s email had been forwarded to her to be followed up, noting
“From the information provided on our system, you were sent an electronic pack with all appropriate forms and document lists some time ago now. Could you please return the completed forms and all of your documentation to our office ASAP to enable preparation of your submission for lodgement …”.
17. That resulted in an email dated 4 May 2005 from Complainant A to Ms Terrill in which Complainant A wrote:
“Your system has recorded wrongly. I have not received any email or information packs or forms as you have mentioned. I have waited patiently for more information/steps since (sic) beginning of March on how to proceed. Your email is the first response I’ve had from AAA Migration. Also, the last time I had anything signed or filled out, was my contract with AAA Migration in early March and I have (sic) also paid half of the fees then. Peter Roszy was the last person I spoke to about permanent residency. When he last spoke to me, I was also promised of (sic) application forms and more paperwork to come, but nothing came. I’ve also called AAA Migration a few times and left several messages with the receptionist. But still no response. I’ve been waiting for email/phone response since.
Please email me the application forms or information pack again. This time, please verify via email or phone (yourself or somebody) to ensure I have received the information pack which AAA Migration promised.
It is critical that I get the permanent residency application done with asap. Otherwise, I may not be eligible for it, if and when the point system or requirements changes. (sic) ….
Patiently waiting.”
18. The same day Ms Terrill emailed Complainant A, with a copy to Mr Lattimore, stating that she was
“…referring you back to Peter Roszy and our Office Manager to assign another agent to your case. Unfortunately, I am not in a position to process your application quickly and it would be in your best interests to have someone else to handle the application. Ian will be in touch with you during the next day or two. His email address is ….”.
19. By email dated 24 May 2005, Geoff Dullard of AAA wrote to Complainant A stating that he was from “Australian Immigration and Employment” and that he was now to be the “Migration Consultant preparing your spouse visa application, replacing Tracy”. Mr Dullard stated his belief that Complainant A was “recently asked by Tracy to return the forms and documents for your application to the AIAE office”.
20. On 26 May 2005 Complainant A emailed Mr Dullard agreeing that she had been notified by
“…Tracy to return documents, but I was not even sent the forms and application in the first place!! I’ve been pushing you guys to send me the application and forms since March. I have also highlighted this to Tracy in a previous email, did she not tell you?”
21. In that email, Complainant A made the following further observations and requests:
“Please send a written copy of the breakdown of costs so far. You guys don’t even know what you are doing so far. I will pay for what AAA Migration has done so far and I am getting the rest of my money back”.
22. The next email to Complainant A was from Ms Terrill, with a copy to Mr Dullard and the applicant. In an email dated 26 May 2005, Ms Terrill stated that she had
“confirmed that an electronic pack was sent to you shortly after your agreement was signed and I suspect that as you have a hotmail address that you did not receive them, the last email I have received from you had a virus attached so could you please run a scan or change your email to allow receipt of attachments without problems. Geoff Dullard has only just been allocated your file and from the sound of your email you do not wish to continue with the process so could you please contact Peter Rozsy and advise of your decision? Until this week, no messages, emails or documentation have been received by you to commence work on the application – if you have left messages with the office or tried contacting Peter by email I was unaware of this until you emailed me directly and you will see that I responded very promptly, as has Geoff. I will also advise Peter of your instructions so he can arrange a refund for you”.
23. In a second email on 26 May 2005, Ms Terrill stated that she had
“…been advised that a hard copy of the forms and information was requested by you and that you were to pick up (sic) from our office some time ago”.
24. Complainant A answered that email by her own email of 27 May 2005 addressed to Ms Terrill taking issue with the advice referred to by Ms Terrill in her 26 May email to Complainant A, making further complaints about the handling of her matter and requesting “a full refund, or a breakdown of the work done by AAA Migration so far”.
25. On 27 May 2005 Ms Terrill emailed Complainant A noting that she had forwarded her email to, inter alia, the applicant for his information, stating:
“I cannot understand what has happened as Anna has advised that the pack was ready for you to pick up from the office. I apologise for the inconvenience caused to you and hope that Peter is able to refund your payment promptly. I will not be making any charges to AAA and I hope that you will be contacted quickly. Please let me know if you have not received a response by early next week so I can contact Peter again as a matter of urgency”.
26. On 28 May 2005 the applicant emailed Complainant A in the following terms:
“Tracy has passed this email to me to look after. Please firstly confirm that you have received this email as you seem to have some email problems. You are entitled to stop the process whenever you wish to and we assess you (sic) account to see if there is a refund due to you. We of course keep records of our time and costs. If there is a refund due, we will of course provide that. Please read the agreement you signed for details. Tracy has correctly used the email address that you provided us… I suggest that you come in and see me so we can discuss this and work out the best way forward …”.
27. By email dated 29 May 2005, Complainant A wrote to the applicant as follows:
“From the start, I have correctly presented your side (sic) both primary and secondary email addresses of mine to email to … You company can choose to send to either one, which is the very reason why you have been provided with both email addresses in the first place. Yes, Tracy has correctly sent her emails to me but I cannot say the same for any emails from your side that I have ‘presumably’ received before Tracy took over.
I can also verify that both email addresses are working well as I use my email accounts every day, and nobody else is complaining to me about my email accounts.
I suggest you give me a breakdown of costs and deliver it to my mailing address as soon as possible. According to MARA legislation, I am entitled to a genuine breakdown of costs. You will need to set out particulars of each service performed and the charges made in respect of each service …”.
28. On 30 May 2005 the applicant emailed Complainant A in the following terms:
“Come in and see me and we will go over the breakdown on the whole situation. Call me on … to make a time”.
29. On the same day, Complainant A emailed the applicant stating that she did not need to meet with him to get a breakdown of costs and that there was nothing to go over with the applicant as she had “already explained the whole situation to you and Tracy on email”.
30. The applicant responded by email dated 31 May 2005 stating that he would “happily provide … a breakdown of our costs, intellectual property, professional services and time spent …”.
31. The applicant subsequently provided Complainant A with a breakdown of costs which included the following items:
· “Consultation”: this was recorded as 90 minutes at a rate of $US150/hour, thus giving rise to a charge of $US225;
· “Research/preparation of documents/email”: this was recorded as 60 minutes at the same rate of $US150/hour, thus giving rise to a charge of $US150;
· “Administration fees/charges/stationary/posting/courier/phone”: for which there was no time or date entry, but a charge of $US10;
· “Intellectual property and documents”: for which there was no time or date entry, but a charge of US$320.
32. This was said to give rise to a total of US$705 which, at a stated exchange rate of 0.7217, gave rise to an $AUD equivalent of $976.98.
33. It was the respondent’s case that this evidence established the following contraventions by the applicant of the following clauses of the Code of Conduct:
(a) Clause 2.1(a) by:
· invoicing Complainant A for “Intellectual Property and documents” which were not specified in the service agreement;
· invoicing Complainant A for “Research and Preparation” when in fact no substantial work of this nature had been done on the file.
(b)Clause 2.1(b) by failing to provide Complainant A with the necessary forms in a timely manner and not responding to the telephone calls, emails and attendances in a diligent manner.
(c)Clause 5.2 by:
· failing to provide Complainant A with written notice of a material change to the estimated cost in terms of “Intellectual Property and Documents”, a charge not authorised by the service agreement (Clause 5.2(g)); and
· failing to provide Complainant A with a correct estimate of fees (Clause 5.2(a)). In this regard the respondent referred to Complainant A being charged for a 90 minute consultation when Complainant A claims it should have been free.
(d)Clause 2.23 by not dealing with Complainant A’s request in a timely manner and passing the file to a number of colleagues who appear to have done no or little work on the application. The respondent contends that the applicant’s actions brought migration agents into disrepute and did not convey a professional image.
34. When questioned by the Tribunal with respect to how the applicant could be found professionally responsible should a finding be made that “a number of his colleagues … have done no or little work on the application”, Mr Macliver, Counsel for the respondent, submitted, in essence, that it was the applicant’s professional responsibility to supervise those to whom he had “passed the file” to ensure that they did the work and on a timely basis.
Complainant B
35. Complainant B met the applicant at a migration seminar in Singapore. She signed a service contract on 6 April 2004 appointing the applicant as her migration agent. It was common cause before the Tribunal that the applicant was informed by Complainant B that she held a Master of Applied Finance, being a qualification she obtained in Melbourne, Australia.
36. At the time, to qualify for a business skills visa, an applicant needed to obtain a minimum of 115 points. That was increased to 120 points as from 14 April 2004.
37. The applicant calculated that Complainant B ought be eligible for at least 110 points (exclusive of points that might be obtained for a “sponsor”) and, upon being informed that Complainant B had a prospective “sponsor”, advised Complainant B (and her partner) to apply for an Australian Sponsored Visa.
38. It was common cause before the Tribunal that had the Department accepted that Complainant B was an “accountant” for the purpose of the Migration Regulations, she would have garnered an additional 10 units to those identified by the applicant and therefore would have satisfied the points requirement for a business skills visa, both before and after the minimum number of points for such a visa increased in April 2004.
39. It was also common cause before the Tribunal that the applicant had handed Complainant B’s file to Tracy Terrill to work on.
40. By email dated 16 April 2004, an administrative assistant employed by AAA, Genelle Surace, emailed Complainant B stating, amongst other things, that:
“… We also require some additional information about the Australian qualifications that you and your husband have obtained. Please confirm where the course was studied: at which institute was it studied at and whether you were physically present in Australia while studying the course, and the duration of the course. Please also confirm what both your (and your husband’s) undergraduate level course was, and where it was studied”.
41. By email dated 19 April 2004, Complainant B wrote to Ms Surace of AAA and stated, amongst other things, “both of us completed a one year Master of Applied Finance Course at the University of Melbourne in 1999. We did the course there. My basic degree is awarded by Nanyang Technological University (in Singapore) and it was a Bachelor of Accountancy. …”.
42. On 15 December 2004 Complainant B wrote to the applicant expressing “my unhappiness with your handling of my case for the purpose of migration” and stating:
“Just yesterday, I found out that I could have my skill assessed as an accountant. If I had my skill assessed as an accountant, I would have met the pass mark for the general skill migration.
Right from the start of our encounter during the briefing session at Hotel Phoenix in March/April this year, I informed you about my basic degree which was a Bachelor of Accountancy from NTU, although I have not practised as an accountant”.
43. By email dated 17 December 2004, the applicant emailed Complainant B in the following terms:
“I have now had a chance to discuss your situation with Tracy and can respond. Please see our agreement that explains the process of ceasing the application. Basically we calculate our costs and charges, to assess any refund due or any amount that is outstanding.
… Your situation was complex in that changes to Migration Regulations have taken place along the way. …
… From the discussions I had with you, you advised that you are in fact not a fully qualified accountant. If you are, then using you as the main applicant would be an excellent idea. Having an accounting degree is not enough to qualify as an accountant. If you would like me to investigate whether in fact you do qualify as an accountant, meeting the Australian standards, I can look into it. At the time I spoke with you accounting was not a MODL occupation. It is now but you will not receive any advantage from MODL if you are not a fully qualified accountant.
So, in summary, would you like me to look into the accounting issue or would you prefer to cease the process and me assess the situation with regard to your account …”.
44. It was the respondent’s case that this evidence established the following contraventions by the applicant of the following clauses of the Code of Conduct:
(a) Clause 2.1(b), by failing to competently deal with Complainant B in not advising her of the possibility of applying for skilled migration from the beginning;
(b) Clauses 2.3 and 2.4, as the evidence establishes that the applicant did not have a sound working knowledge of migration law and “consequently, he failed to have due regard to Complainant B’s dependence on his knowledge and experience. He did not take steps to mitigate his lack of knowledge”.
Complainant C
45. In June 2003 Complainant C and her partner approached the applicant for immigration assistance in order to obtain employment in Australia. By letter dated 24 June 2003, AAA confirmed payment of Complainant C’s initial payment. The letter also stated that the applicant would contact Complainant C and her partner.
46. By email dated 26 August 2003 from Complainant C to the applicant, Complainant C described her husband’s occupation as follows:
“… Industrial Door Surveyor/Engineer. 17yrs in the industry, On-the-job trained, trained in all aspects of industrial doors, roller shutters, folding doors, security/fire doors, dockbase/dock levellers. Originally engineer now a surveyor/technical sales advisor, assessing sites, measuring, ordering parts, instructions to staff, pricing and invoicing jobs, supervisionary duties, health and safety issues. Have got certificates within the industry, for the industry.”
47. By email 31 August 2003, Complainant C was requested by the respondent to
“Please have a look at the list of occupations attached. Which occupation best identifies Mark’s occupation?. It is most likely to be a TRA skill, so could you identity more than one that is okay – the next step is for me to send you some descriptions of the occupation(s) you nominate to see (sic) ultimately select the best occupation to nominate”.
48. The next communication was an email from the applicant to Complainant C on 19 October 2004 (ie over a year later) as follows:
“I just tried to phone but the phone went through to a fax machine. I am in the UK currently and my mobile phone number is …. . … The last record of communication we have between us was an email to you select (sic) Mark’s occupation (skill) from a list. As I am in the UK I don’t have your file but can of course check with our Australian Office. First I want to talk to you and find out about your latest circumstances. I look forward to having a chat”.
49. The next day the applicant again emailed Complainant C as follows:
“Nice to have a chat. As I said, we want you to first select an occupation from the list that best suit Mark’s (sic) background, you may select more than one. I will then send you a description that the Australian authorities use to confirm. Then, I will send you the TRA information, for you to judge what information you can provide to demonstrate Mark’s trade. We will discuss the option of using a TRA specialist, who can prepare the application and another person who can check your TRA application. We recommend these people if the occupation Mark is in looks to be difficult to place in a category and demonstrate. You do have other migration options as we discussed – receiving a job offer, studying etc, but this skilled permanent visa path is the best to first try.
Keep in touch and don’t hesitate to call me.”
50. Attached to that email was another list of “Skilled Occupations” which, on its face, appears to have been downloaded from the Department’s website.
51. On 21 October 2004 the applicant emailed Complainant C thanking her for “the call” and noting that he had set out “below”
“…descriptions for the two skills you identified. Mark does not need to have performed ALL of the tasks but most. If you want to send me any other ones to look at, fell (sic) free”.
52. Thereafter followed two descriptions, one for “4111-11 General Mechanical or Engineering Tradesperson” and the other for “4111-01 Supervisor, General Mechanical Engineering Tradespersons”.
53. Complainant C responded that day by email stating:
“The best TRA description we have found seems to be general mechanical engineering tradesperson – supervisor 41111-11 or 4111-01”.
54. On 26 October 2004 the applicant emailed Complainant C and her partner advising that:
“The first step in the process is the skills assessment, where we have an Australian Authority(Trades Recognition Australia – TRA) consider the written information you provide them to assess whether you meet the Australian Standard in a trade. You explain that you have worked for at least six (sic) (including training), so we need you to show some detailed evidence of that.
The TRA have become especially stringent in their skills assessments, so I would like you to carefully read what they ask for and follow the instructions carefully. As we are obviously not experts in your trade, we need you to make sure you have followed their instructions and provided what they have asked for. Attached is a TRA application form, with some useful information guidance”
55. The email goes on to provide a link on the TRA website to some “Frequently asked questions about skills assessment process” and a link to the TRA Application Guide for migration purposes, which the applicant said was “useful in looking at what the TRA want”.
56. The email concluded
“this part of the process is probably the most daunting for you. Take your time and read what is required – post all to us and we will then send it to the TRA once you are confident you have supplied what is requested and you ask us to send it on.
As always, please ask if you have any questions”.
57. Complainant C (and her partner) emailed the applicant that same day as follows:
“We have filled all these forms in, in (sic) March, they are the same as we have done already. We have sent many pages of info in July and again in September (2 more lots) and we cannot provide any further info. We have sent about 30 sheets of info on what training/qualifications, industry, what they are involved in etc. Without repeating what we have already done, what else can we do?”
58. By email dated the same date, the applicant responded as follows:
“The reason I sent it ALL again is that the forms and instructions from the TRA have changed. Basically, go through it all again and if there is something you have already sent just indicate that. It probably seems like a pain, but the TRA have changed their assessment policy and things are so different and they are tougher. They do however have much better guidelines than they did have. Let me know if you are still unsure. If you think there is nothing you can add and want to go with what you have sent, that is fine – I do urge you to have a look though”.
59. Complainant C then emailed the applicant requesting that he send her and her partner the descriptions of the following jobs codes
“2129-19, 2126-11, 4112-11 and 4999-79 just to compare with the one we have to see if any are more suiting”.
The applicant did that on 27 October 2004.
60. By a further email dated 27 October 2004 to Complainant C and her partner, the applicant referred to a telephone conversation that “you have confirmed that you have provided all you can and we can send off the TRA application”.
61. By letter dated 18 January 2005 the Department wrote to Complainant C’s husband, care of the applicant, advising that his application had not been accepted and attaching a copy of the TRA Application Assessment and audit sheet. A hand written comment on that sheet was in the following terms:
“Evidence of training and employment experience does not establish that (Complainant C’s partner) is undertaking the full range of duties as a ‘fitter’ or any other trade assessed by TRA”.
62. By handwritten facsimile dated 25 January 2005, Complainant C acknowledged receipt of the “failed TRA assessment”, making the comment “that we are obviously not getting the right job title for the industry”. Complainant C noted that the reason “we came to yourselves (was) for help on coding Mark’s industry”.
63. By email dated 31 January 2005 to Complainant C and her partner, the applicant noted that:
“The TRA have unfortunately not accepted your application. They say that your work experience did not match any of the occupations assessed by the TRA. They claim that your training and work experience does not meet the full range of duties as a fitter or any other trade assessed by the TRA… you do have an option of engaging a skills assessment ‘expert’ to handle the TRA application and try again. This charge for doing so is $AUD1500 which includes the TRA application fee.
As I explained in my email of 20 October, you do have some other options. The skills assessment and a subsequent skilled visa application was the best path to start with. Now that the TRA assessment was a No, would you like to look at other options?”
64. After canvassing various other potential options, the email concluded as follows:
“You are obviously welcome to abandon the process and we then assess any refund due to you. As there is a significant amount of work which has been done in your case, it is unlikely that there would be any refund, but we can look at that if you decide to abandon the process.
The TRA not accepting Mark’s experience and training is unfortunate.
Please get back to me with any questions or comments”.
65. It was the respondent’s case that this evidence established the following contraventions by the applicant of the following clauses of the Code of Conduct:
(a) Clause 2.1(b) by:
· carelessly lodging a TRA application without due consideration to adequate skill matching;
· failing to respond to Complainant C’s enquiries;
· failing to request information from Complainant C in a timely manner so as not to cause undue delay and hardship to Complainant C and her partner.
(b) Clause 2.3 by:
· failing to provide sound advice in relation to the skills assessment of Complainant C’s partner;
· failing to refer the skills assessment on to a competent agent and instead leaving it to someone who was not qualified to provide immigration assistance.
(c) Clauses 5.2(a)-(c) by:
· failing to Complainant C an estimate of fees, charges and disbursements;
· failing to obtain written acceptance by Complainant C of any terms of work to be done.
Complainant D
66. In January 2001, Complainant D completed an on-line free visa assessment form provided on AAA’s website. It was common cause that, at the time, Complainant D, to the applicant’s knowledge, was residing in the United Kingdom.
67. A day later, after having been informed by the applicant that she may be eligible for a partner visa and requesting further information, Complainant D emailed the applicant stating, amongst other things, that “we have lived together for a period of 13 months in total, including a 4 month period in which we travelled together and also a 3 week holiday where I visited him in Australia”.
68. By email dated 29 January 2001, the applicant replied by stating, amongst other things:
“We will explore which visa suits you best and explain the advantages of an application from within Australia as part of the process. A de facto application will be quickest via ourselves – the processing time via the UK is currently about 9 months. We will explain the advantages of arriving in Australia and then applying as part of the process.”
69. On the same day Complainant D emailed the applicant stating that she was interested in applying for a visa through him, but had another question, namely:
“What is your success rate for de facto applications? I have heard that it is really hard to pass on this category”.
70. The next day, the applicant emailed Complainant D in the following terms:
“We do not submit an application if it has a poor chance of success. De facto visas are difficult and require lots of work. We have never had a de facto visa which we have submitted fail, when we have advised clients it is worth proceeding”.
71. On the same day, Complainant D emailed the applicant asking him to tell her “what my next step is to make an application with you”.
72. On 6 February 2001 Complainant D emailed the applicant, noting that she had tried to telephone him and that:
“I’ve a couple more questions, again, just wanted to know if once the application has gone through and it fails what are the procedures for renewed application, if any? And if a failure of application, are any of your fees returned?”
73. On the same day, the applicant emailed Complainant D in the following terms:
“I totally understand your apprehension. It is a big decision and I respect that fact. We did not receive any phone messages – did you leave any?
We will not submit an application that has little chance of success.
You have the security of knowing that as registered Australian migration agents, I am subject to strict Australian government control…
If an application did fail, that would not stop you from applying again.
All fees are non-refundable.
We have many happy people who now live in Australia who were initially apprehensive, so don’t hesitate to ask more questions if you need to”.
74. On 22 February 2001 the applicant emailed Complainant D in the following terms:
“Please provide a time-line of your relationship”.
75. On 28 February 2001, Complainant D emailed the applicant in the following terms:
“Thanks for your reply, here is the information you requested.
Evidence showing we were together or kept in touch, details of where we both lived
Both met perth 25 feb 99
MARCH 15-MAY99 newcastle street perth, lived together in hostel
(ref from manager of hostel)
MAY99-JULY 19 99, stayed at friends accommodation, perth, [REF FROM FRIEND]
JULY 19-28 SEPT, separated due to work commitments, [e,mails,]
SEPT 28 99-JAN 28 2000, met up in Sydney and arranged travel 2 weeks then travelled the rest of the time together. [travel confirmations of our flights] photos of travels
28 JAN-13 MARCH 2000, separate travel plans but continued to stay in touch via internet and phone.
13 MARCH-29 JULY, lived together in long don, [ref from landlord]
29 –JULY-30 DEC 2000, work and visa commitments do not enable us to work and be together so we both work to pay off travel debt and save to spend time together after Christmas for new year, [emails, phone calls but none on record]
30 DEC-19 JAN 2001, met for holiday, spent 3 weeks together in perth Australia, both resumed work after jan 19. [receipts from hostels, car hire, photos]
ref, can be obtained from brads brother, as we attended his wedding as a couple whilst living in England in april 2000
ref, from brads mum who I am in contact with, we haven’t actually met as she lives in queensland
ref, from my sister who I am very close to and has spent time with us as a couple.
ref from friends we have known whilst together
please let me know if I can help you further” (sic)
76. On 17 March 2001 the applicant emailed Complainant D acknowledging receipt of her email of 28 February 2001 and stating “we will be in touch shortly”.
77. By email dated 26 April 2001 Complainant D emailed the applicant in the following terms:
“I am shortly to arrive to in Australia, can you please let me know what progress you have made to my visa application as I have not heard from you since 17 March!”.
78. The applicant replied to that email by an email dated 17 May 2001 in which he provided a check list and said that it
“…explains what documents we need you to provide. Importantly, I also need you to provide as much evidence of the relationship as you can – see the attachment which will help you.
From your time-line, there are a few issues I need to explore.
Please tell me when you do intend to marry, if at all? Whilst we have dealt with this before, sometimes plans change.
Please ask if you have any questions or cannot open the attachments”.
79. On 25 June 2001 Complainant D emailed the applicant stating that she had not heard from him since providing the time-line notwithstanding her endeavours to contact him.
80. By email dated 3 July 2001, the applicant wrote:
“We have tried to contact you via email and phone on several occasions. The phone has rung out and emails have not been answered. I am working from our office – we have recently moved to a new address but all previous contact details will reach us.
Would you like us to use post? What is the postal address? Please give us all of your contact details as we need information from you asap to meet your deadline”.
81. On 4 July 2001 Complainant D emailed the applicant that she would email the forms to him as soon as possible “but I did mention to you 2 months ago the difficulty of email – it’s not very good out here!” She went on to note that she was in the middle of moving house “so I cannot give you an address at the moment, so please try and phone me on Friday morning or Saturday. If not I will check my email again soon, if possible”.
82. On 5 July 2001 the applicant emailed Complainant D in the following terms:
“We have tried to phone you and there has been no answer – so we tried email. Yesterday you left a message with no phone number. Unless we can contact you and have an address, it is impossible to assist you. I suggest you focus on your visa otherwise you may become an illegal citizen in 4 weeks. Please provide contact details as soon as possible …”.
83. On 9 July 2001 Complainant D emailed the applicant asking him to note that her phone number “has been the same for the past 2 months, the one that you have already supposedly called me on”. She then stated the phone number and said “so I am awaiting your call”.
84. The email communications continued between the applicant and Complainant D, culminating in the applicant writing to Complainant D at an address in Australia, enclosing forms which needed to be completed by her partner and then signed and returned to the applicant as soon as possible.
85. That was eventually done and an application lodged by Complainant D with the Department on 15 August 2001, the day before Complainant D’s Electronic Travel Authority (pursuant to which Complainant D had travelled to Australia) expired.
86. By letter dated 28 August 2001 addressed to Complainant D (care of the applicant), the Department requested that she provide additional material in support of her application as stated in the letter.
87. Certain information was provided to the applicant by Complainant D who in turn, on 19 October 2001, forwarded the same to the Department.
88. By decision dated 25 October 2001 the Department refused Complainant D’s application. The reasons for decision included the following:
“You lodged your application with this office on 15 August 2001 and you indicated on your application that you wished to apply for a spouse visa. You claim that you are the de facto spouse of an Australian citizen or permanent resident and that a de facto spouse relationship commenced from 15 March 1999.
Migration Regulation 1.15A (a copy of which is attached) defines the term spouse and further defines the term de facto spouse at Regulation 1.15A(2).
On 28 August 2001 you were requested to provide the level of proof required that you had been in a genuine and ongoing de facto relationship for the required one year but have not been able to do so. In assessing your application I have formed the opinion that since 1 September 2000, you have been apart for a total of around 7 months and even though you communicated during that time, there has been no convincing or satisfactory evidence presented to show that you were anything other than friends.
Having considered all aspects I find that on balance the requirements of Regulation 1.15A have not been met and that you are in no more than a boyfriend/girlfriend relationship.”
89. I pause here to note that Migration Regulation 1.15A(2)(d) relevantly provides that persons are in a de facto relationship if the Minister is satisfied that, for the period of 12 months immediately preceding the date of the application of the party relying on the existence of the relationship:
(i)they had a mutual commitment to a shared life as husband and wife to the exclusion of all others:
(ii) the relationship between them was genuine and continuing: and
(iii) they had:
(A) been living together: or
(B) not been living separately and apart on a permanent basis ….”
90. It is the respondent’s case that this evidence established the following contraventions by the applicant of the following clauses of the Code of Conduct:
(a)Clause 2.1(a) by failing to obtain written acceptance of the work to be done;
(b)Clause 2.1(b) by:
· failing to reply to Complainant D’s questions and requests in a timely manner;
· failing to have due regard to Complainant D’s email dated 28 February 2001 which indicated that she had not been living together for a period of 13 consecutive months;
(c) Clause 2.3 by:
· failing to provide accurate and timely advice;
· failing to recognise and alert the Complainant D about the issue of co-habitation upon receiving the timeline of her relationship;
· failing to adequately address Complainant D’s concerns regarding her application in light of her statements about other agents’ opinions
(d) Clause 2.4 by failing to keep Complainant D informed “knowing full well that she was living in the United Kingdom and anxious to migrate to Australia”;
(e) Clause 2.8 by:
· failing to confirm Complainant D’s instructions in writing;
· failing to keep Complainant D up to date regarding the progress of her application;
(f)Clause 5.2(b) by failing to obtain acceptance by the client on the terms of the work to be done;
(g) Clause 5.5(a) by failing to provide Complainant D with a Statement of Services for the first payment.
Complainant E
91. In July 2003 Complainant E and her future husband engaged the applicant to advise on how to migrate to Australia.
92. In her written complaint to the respondent, Complainant E wrote:
“We contacted Peter Roszy at AAA Migration Agents to discuss our options and thought that we were taking the best course of action based on (her partner’s) prior history. On Peter’s advice we decided the best option was to apply for a bridging visa and at the same time a spouse’s visa”.
93. On 25 August 2003, AAA sent a letter of acknowledgement of appointment, together with an “AAA Australian Migration Information Pack” to Complainant E’s partner.
94. On 29 August 2003 Complainant E married.
95. The following were agreed facts:
· On 26 September 2003 AAA lodged an application for a sub-class A20 visa with the Department. Complainant E’s husband nominated the applicant as his appointed migration agent. The applicant also signed the form;
· On 13 October 2003, Radmila Paznovea of AAA sent a letter to the Department enclosing an application to change the conditions of the bridging visa of Complainant E’s husband. Again the applicant was nominated as an appointed migration agent and signed the form;
· On 16 October 2003, the Department requested further information from the applicant in relation to Complainant E’s husband.
96. On 28 October 2003, AAA sent a letter to the Department enclosing Parts E and F of Form 47SP and other documents.
97. In response to question 68 in Part F (which enquired if the visa applicant had ever “been convicted of a crime or offence in any country”), Complainant E’s husband marked the box “Yes”.
98. At the end of question 68 in Part F, the form stated that if “Yes” had been answered to any of the above questions, the visa applicant was required to state to whom it applied and give all relevant details, and that if the matter related to a criminal conviction, to give the nature of the offence, full details of the sentence and dates of any period of imprisonment or other detention. Complainant E’s husband stated “Full details in UK Police Clearance Statement”.
99. The Thames Valley Police Record of Convictions for Complainant E’s husband included a conviction on 27 October 2000 for the offence of wounding/inflicting grievous bodily harm, for which he had been sentenced to 18 months imprisonment.
100. On 4 November 2003, the Department sent AAA a Notice of Intention to consider refusing Complainant E’s husband’s visa.
101. On 13 November 2003, this was copied by AAA, by facsimile, to Complainant E’s husband.
102. In her written complaint to the respondent, Complainant E wrote:
“On the 4th November 2003 (we received a copy of this fax on the 13th November) we were advised by a migration agent that DIMMIA (sic) was considering a refusal of (her husband’s) visa under section 501 of the Migration Act 1958. After many phone calls endeavouring to contact Peter Roszy he advised us that this was normal procedure and was due to my husband’s prior criminal record things (sic) and it would be fine. Peter told us to provide more character references to support (her husband’s) good character …”.
103. On 2 December 2003 the applicant submitted a short statement about the character of Complainant E’s husband and attached several character references. Further character references were provided by AAA to the Department on 18 December 2003.
104. Again in her written complaint to the respondent, Complainant E wrote that at Christmas that year she and her husband travelled to Perth and met with the applicant on 23 December 2003, at which meeting “we were again assured things were going in the right direction”.
105. Complainant E further wrote in her complaint:
“This was the status quo) until (her husband) received a phone call from the (sic) Peter Roszy on the 16th April 2004 to inform us that he had received a letter from DIMMIA (sic) advising us that the visa had been refused and that we had 28 days left, on a bridging visa, to consider our options, to appeal or not”.
106. If such advice was given (which the applicant denied) it was wrong, as Complainant E’s bridging visa ceased to have effect immediately upon the Department’s refusal of the primary application.
107. Consequently, on 21 April 2004, Complainant E’s husband was detained in Broome by officials of the Department on the grounds of being an unlawful citizen and was returned to the United Kingdom on 24 April 2004.
108. S 501(7)(c) of the Act specifies that a term of imprisonment of 12 months or more is considered a “substantial criminal record”.
109. S 501(6)(a) of the Act specifies that a person does not pass the requisite character test if he or she has a substantial criminal record.
110. The respondent therefore contended that, at the latest, the applicant was aware or should have been aware from the time Complainant E’s husband provided Part F of Form 47SP and the Thames Valley Police record of his convictions that Complainant E’s husband had been sentenced to 18 months imprisonment and that therefore Complainant E’s husband’s visa application was likely to be refused on character grounds.
111. It is the respondent’s case that this evidence established the following contraventions by the applicant of the following clauses of the Code of Conduct
(a) Clause 2.1(b) by:
· failing to advise Complainant E and her husband about the requirements of subsections 501(6) and (7) of the Act and failing to advise them of the likelihood of the visa being refused on character grounds;
· misleading Complainant E and her husband about the prospects of the application after the Department had issued a notice of intention to consider refusal on character grounds;
· failing to read the Department notice of decision to refuse the visa properly;
· advising Complainant E’s husband that he had 28 days to lodge an appeal or depart Australia, when in fact his bridging visa ceased to be in effect immediately upon refusal.
(b) Clause 2.3 by:
· failing to properly understand the character test out in s 501 of the Act. The respondent contends that the applicant should have known that the visa application of Complainant E’s husband was likely to be refused on character grounds;
· failing to acknowledge the likelihood of the visa of Complainant E’s husband being refused after the Department had issued a notice of intention to consider refusal on character grounds;
· advising Complainant E’s husband that he had 28 days to lodge an appeal or depart Australia when in fact his bridging visa ceased to be in effect immediately upon refusal;
· failing to properly understand the nature of visa cancellation under s 501 of the Act, especially in relation to the cessation of any bridging visas upon such refusal.
(c) Clause 2.4 by:
· failing to keep Complainant E informed about the likelihood of refusal when he clearly knew about her and her husband’s concerns regarding his criminal history.
(d) Clause 2.6 by:
· failing to advise Complainant E and her husband about the likelihood of refusal, in light of the husband’s failure to pass a character test;
· failing to take into account the objective criteria of s 501 of the Act.
(e) Clause 2.23 by failing to correctly advise Complainant E about the prospects of success of the application. The respondent contends that the applicant’s actions brought migration agents into disrepute and did not convey a professional image.
Complainant F
112. The facts with respect to this matter were agreed as follows:
· On 28 November 2003 Complainant F decided to apply for a skilled migration visa through AAA;
· Complainant F signed a service agreement with AAA on 18 December 2003;
· The application was lodged on 30 January 2004. The applicant signed the form as an appointed migration agent;
· On 27 January 2004 Complainant F’s partner also engaged the services of the applicant to lodge an application for a skilled migration visa;
· On 3 March 2004, Complainant F’s partner applied for a sub-class 497 visa;
· On 16 March 2004, Complainant F was granted a sub-class 497 visa valid until 11 June 2004;
· On 29 April 2004 Complainant F’s partner was granted a sub-class 497 visa valid until 9 June 2004;
· In June 2004 the applicant suggested that when they came to apply for permanent residence, Complainant F and his partner should apply jointly. They agreed and Complainant F’s partner was added as a dependant on his visa application;
· It was imperative that the applicant submit an application for permanent residency on or before 9 June 2004 to ensure that the criteria in Schedule 1 of the Migration Regulations for making a valid application were met.
· Someone from AAA advised Complainant F that his application would be lodged on 4 June 2004;
· Complainant F’s visa application was in fact lodged on 11 June 2004, 2 days after the expiry of his partner’s visa;
· On 15 July 2004, the Department wrote to the applicant, stating that Complainant F’s application was valid, but that his partner’s was not. This was because at the time of application on 11 June 2004, Complainant F’s partner’s visa had expired. She had to leave Australia;
· On 11 November 2004, Complainant F was granted a sub-class 880 visa;
113. It is the respondent’s case that the above facts establish the following contraventions by the applicant of the following clauses of the Code of Conduct:
(a) Clause 2.1(b) by:
·failing to monitor the expiration of the visa of Complainant F’s partner;
·failing to lodge an application for permanent residence in time;
·failing to recognise the seriousness of not lodging an application on time, especially given that invalid applications are not merits reviewable.
(b)Clause 2.4 by failing to recognise Complainant F and his partner’s dependence on him, especially in light of his advice to lodge the applications jointly.
(c)Clause 2.23 by carelessly processing applications and missing an essential deadline. The respondent contends that the applicant’s actions brought migration agents into disrepute and did not convey a professional image.
114. In respect of this matter, the applicant conceded that the agreed facts established a contravention by him of Clause 2.1(b) of the Code by failing to lodge or causing to be lodged an application for permanent residence in time. No concessions were made by the applicant with respect to the other contentions advanced by the respondent.
THE APPLICANT’S EVIDENCE
Complainant A
115. In his written statement the applicant said that he met Complainant A on 21 February 2005 and that she was interested in a partner visa (subclass 820). He said in order to process the application certain forms were required, including documentary evidence to establish
·a genuine, continuing relationship with an Australian citizen or permanent resident;
·that the relationship had been in existence for at least 12 months at the time of application;
·that the applicant and her partner had the intention to continue that relationship.
116. The applicant said he explained to Complainant A what AAA’s charges were and presented her with a standard form agreement with those charges set out in the document. He also explained to her that he would not personally be handling the work and that it would be done by a registered migration agent, stating that his partner, Dan Engles, was responsible “for that side of the business”. The applicant said Complainant A paid a deposit and that he then handed the file over to Tracy Terrill, a registered migration agent to whom he subcontracted work, on 21 February 2005.
117. He then had no involvement with the matter until 28 May 2005 when Complainant A complained that she had not received the forms and a list of required documents.
118. After making some observations with respect to emails on AAA’s files, in his Statement the applicant said
“one of Complainant A’s complaints is that she was promised that the first consultation would be free. This actually occurred. The first consultation was with Mr Rozsy and was not charged. The only charges for consultations related to work done by Tracy Terrill”.
119. As for whether or not Complainant A received the information pack, the applicant stated “ it should be noted that Tracy Terrill has informed Mr Rozsy that (Complainant A) actually collected the forms from the AAA office in North Perth.”
120. As for the calculation of fees provided to Complainant A, the applicant’s evidence in his Statement was as follows:-
“fees quoted by AAA were, for a period, quoted in US$ dollars because many, if not most, overseas people regarded this as a currency that they can easily convert in terms of their own country’s currency. The same cannot be said of $AUD”.
It is repeated that the first consultation with Mr Rozsy was not charged. The 90 minute consultation was, to the best of his knowledge, time spent by Tracy Terrill. In Mr Rozsy’s opinion 90 minutes would have been the amount of time properly required by Ms Terrill to assess the information provided, research then current legislation and assess the best visa option.
Clause 5.3 of the Migration Services Agreement deals with the issue of charges if the engagement is terminated prior to completion.
Mr Rozsy considers that $320 is a reasonable fee for the pack of documents prepared and sent to (Complainant A). He and his staff and sub-contracted migration agents spent a considerable amount of time developing and refining their forms for a whole range of visa application and it must be borne in mind that migration regulations constantly change and, as a result, the forms require constant refinement. This time (or rather its cost as a business operating expense) can only really be recovered by some approximate apportionment over the number of clients likely to use the forms.
No accurate mathematical apportionment can be made.
There is also the potential for clients taking the form and intellectual property therein and information to a competitor to seek a cheaper price.
Mr Rozsy considers that that the AAA documentation is far superior to documentation used by almost all other migration agents. Effectively AAA have no means of protecting that intellectual property”.
121. In cross-examination the applicant said that, when he met Complainant A, he told her that a registered migration agent would be handling her matter and that, thereafter, he made a decision to give the file to Tracy Terrill. When further questioned about what he actually said to Complainant A when he met with her on 19 February 2005, he could not recall whether he actually named Tracy Terrill as the registered migration agent who would be dealing with the matter.
122. In answer to questions put to him by the Tribunal, the applicant stated that, in respect of cases sub-contracted by AAA to another registered migration agent, the applicant did not remain involved in the cases and relied upon the skill and expertise of the registered agents to whom he had sub-contracted the work. He only got involved if problems arose. As to the database notes, the applicant confirmed that these are notes made of the more important matters on a client’s file. He agreed that if Complainant A had called in to AAA’s office on a particular date and physically collected a pack of documents, that would be something that ought to have been noted on the data base notes for Complainant A’s file “but in many cases the notes aren’t made”.
123. As to whether or not Complainant A received the document pack, the applicant said
“So in other words, Tracy would have sent – done her research and sent her information and then AL prints a hard copy of the pack. Now, the – Tracy Terrill tells me that she also emailed the pack. She hasn’t put a file note in there, which is something that Tracy’s not very good at doing, keeping notes”.
124. Cross-examined with respect to the fee document presented to Complainant A, the applicant accepted that the reference to “consultation” could have possibly been by read by Complainant A as being the consultation with the applicant, but reaffirmed his evidence in chief that it was not. He said
“Sir, it’s not a bill, it’s a fee record and I – that was as a result of me contacting Tracy Terrill to say ‘OK, we now need – we’re now electing to give (Complainant A) a refund. We now need to work out what fees we need to charge and what was done and how much time did you record having worked on the case’ etc etc and I came up with the document, fee record”.
125. When asked whether people who work on AAA’s files keep records of the time spent on a particular client’s matter, the applicant said that they were instructed to but that they did not always do so.
126. When cross-examined with respect to the charge for research and preparation of documents, the applicant said
“There’s a lot of research that happens. It’s all involved with the different visas that are available, so Tracy Terrill would have had a look at the visa that I had recommended, she would have looked at other visa options that could be applicable. She would look into the regulations and the Act and make decisions on whether my assessment was correct and whether that was the application to go for, from my notes whether she thought that she was going to meet the criteria. So according to Tracy Terrill, she did research related to the pathway for (Complainant A)”.
127. In respect of the reference to “documents”, the applicant referred to the document pack that Tracy Terrill caused to prepare.
128. In answer to a question put to him by the Tribunal, the applicant said
“It is our standard procedure to email the packs and all the information, so that, and unless there was some reason on this occasion that she didn’t, it would be highly unusual. But she says she sent out an email pack – to me she claimed she did, and all I can assume that there’s also a pack that was printed as well. On a rare occasion there are people who don’t want it emailed or can’t receive the email”.
129. The Tribunal also asked the applicant about the email from Ms Terrill to Complainant A stating that she would not be making any charges to AAA. The applicant was asked to explain how that sat with his evidence that the consultation referred to in the fee document was in respect of Ms Terrill’s work. To that the applicant said:
“That’s right, Sir. I was aware of that email later, but when – and also Ms Terrill told me about it, so I was well aware of it. But I insisted that she did get paid for what she did. So that was her comment to (Complainant A) on that date and, subsequently, when it got to doing the fee record and deciding on a refund, I insisted that Tracy Terrill get paid for her time …”.
130. In answer to a question from Counsel for the respondent dealing with the same issue, the applicant said:
“So Tracy Terrill is instructed to keep records such as the email sent, the work done in my understanding is that Tracy Terrill keeps records. Now, Tracy Terrill is a person who does not necessarily write down the time that she spent on it, but would have all of the emails and all of the work done, so she can make an assessment of the time that was spent”.
131. When challenged by Counsel for the respondent that there was no basis for any charges made for “research”, the applicant said that there is “a significant amount of work that is done by a migration agent before the pack can be sent out”, totalling in the applicant’s estimation “some 120-140 minutes work”.
132. The applicant further said:
“… part of the expertise, Sir, is looking up the current legislation, and – to make sure that it does meet the current legislation, and significantly, the legislation – one of the change dates in the legislation is 1 January as a rule, which could potentially make it a bit longer, so, then, so – I’ve told the client if we perceive the later application is better, we will recommend that. So ok, if a later application is better, what she would have to research – how or what the current visa is that the client has got, how late the later application could be made, and go through and put some thought into that. They keep studying bits – it’s not going to take any time. So Peter suggests client look at, one, the general nature of the relationship, so Tracy Terrill would go and look at one on the genuine and continuing nature of the relationship. We’d use our forms that we have that relate to that and we would research that and send it out …”.
133. It was put to the applicant that there was nothing in his agreement with Complainant A which permitted charges to be made in US Dollars. The applicant responded by stating that Complainant A had in fact been charged in Australian Dollars and that:
“Our system was using US dollars because of the fact that it was international and convenient, and that was our policy at the time, but it made no difference because it was just converted back to Australian dollars”.
134. It was put to the applicant that his agreement with Complainant A did not entitle a charge to be levied with respect to administration fees, charges, stationery, postage, etc. The applicant agreed and said
“I would say for the sake of $10 that, perhaps, yes, perhaps the literal reading of the agreement is that we shouldn’t have charged that $10, and I really have nothing to add”.
135. The applicant was then taken to the final item in the fee document, being the charge of $320 for “intellectual property”. When it was put to the applicant that there was nothing in the agreement with Complainant A entitling him to render a charge for “intellectual property”, he said:
“Sir, I believe they’re covered in services to be rendered, because I believe that’s part of the process of applying for a visa”.
136. Thereafter there occurred the following exchange between Counsel for the respondent and the applicant:
“Well, let’s turn to the services to be rendered, which is at paragraph 3, Mr Rozsy?‑‑‑Yes.
The services which you were providing, given by your company, AAA Australian Migration, is assess and research visa options. There’s no basis for any charge for intellectual property there, is there? Three point two, “If appropriate, prepare the visa application for the particular visa subclass, with all relevant submissions, application forms and associated documentation”?‑‑‑Well, I believe it would come under that, sir.
Now, Mr Rozsy, that’s the fee for the service that you are providing to this client, the service for your professional time spent in relation to her visa application. You can’t construe that as allowing a separate charge for intellectual property for documents?‑‑‑Sir, my assessment is that that does come under that paragraph appropriately.
And none of the other paragraphs or subparagraphs 3.3 to 3.6 could possibly be applicable?‑‑‑That’s correct, yes, sir.
Yes. And Mr Rozsy I suggest to you that the fees for professional services in preparing for a visa application for a client and which requires the submissions to the department of the necessary application forms and associated documentation could not include any fee for intellectual property. It’s not reasonable to include a fee for that?‑‑‑I think it is reasonable, sir.
Well, Mr Rozsy, you’ve certainly charged this fee, US$320, but I suggest to you that that simply was a figure that you plucked out of the air and you’ve had – there was no rational basis for charging that particular amount?‑‑‑Sir, it’s not a figure I plucked out of the air. I believe there is a rational basis on charging those, and that’s why they were charged in that way. I mean it’s reflected by the total charge that is made for the visa application, so as a percentage of the total fee, it’s appropriate”.
137. Cross-examination of the applicant with respect to whether Ms Terrill emailed the document pack to Complainant A was in the following terms:
“And I refer you to the second sentence where you state this, ‘It should be noted that Tracy Terrill, who informed Mr Rozsy that (Complainant A) actually collected the forms from the AAA office in North Perth’: --- Sorry, sir, what paragraph? I’ve got 1.12.
I’m sorry, 2.21? --- I beg your pardon. Okay. Can I please read that?
Yes. Second sentence? --- Yes. Yes.
Now, so you’re asserting there that Ms Terrill has informed you that (Complainant A) had actually collected the forms from AAAs North Perth office? --- That’s right.
I’ll refer you to Ms Terrill’s emails of 26 May and 27 May. The one on 26 May appears at folio 123, and the one I’m referring to is the one at number 7. Ms Terrill’s email to (Complainant A) saying:
‘I’ve been advised that a hard copy of the forms and information was requested by you and that you were to pick up from our office some time ago’.
Can you see that said that there? --- Yes.
And then in her subsequent email of 22 May, at folio 131, to (Complainant A), number 9, in the second sentence – third sentence – that she states:
‘I cannot understand what has happened as Anna has advised that the pack was ready for you to pick up from the office’.
So, Mr Rozsy, in neither of those emails does Ms Terrill make the assertion to (Complainant) A that (Complainant A) had collected the forms from the AAA office. She only says that that they were available for collection and that she was to pick them up? --- So Ms Terrill has advised me that she prepared the pack and the forms for (Complainant A). They were sent to the office for her to pick up and as far as she is aware that they were picked up. Ms Terrill also claims that she sent emails with that information”.
138. The applicant was also taken to Ms Lim’s note “print out copy of the note and give to client in the office”. It was put to the applicant that did not necessarily mean Anna Lim gave the pack to the client in the office on that date. The applicant agreed.
139. It was put to the applicant that it could simply be a statement of a future intention, namely to give the client the pack, to which the applicant said “as I explained before, Anna Lim is Singaporean, and that is confusing me, you know, did she print it and give it to her, did she print it and have it to give to her – I am not certain”.
140. The re-examination of the applicant occurred some three weeks after he was cross examined. Re-examined in respect to his belief as to what Anna Lim meant by the filenote “could print hard copy of the pack and give to client in the office”, the applicant said that Ms Lim was Singaporean-Chinese and that her English ability was not perfect and that she made “syntax and spelling mistakes”. He said that he believed what Ms Lim was saying was that she had printed a hard copy of the pack and had given it to the client in the office. The applicant said he did not know for certain that was a fact but was “very confident” of it given that he knew the sort of mistakes Ms Lim made and that he could not “see why she would say “I am going to give it to the client””.
141. The applicant also said that he was told by Tracy Terrill and Anna Lim that Complainant A had come into the office and picked up the information pack.
142. The applicant had also prepared a document setting out what he believed Ms Terrill would have done in regard to Complainant A’s matter. This was received into evidence.
Complainant B
143. In paragraph 3.1 of his Statement, the applicant said
“It is correct that Mr Rozsy met (Complainant B) at a migration seminar on 03/04/04. The seminar was held in Singapore. (Complainant B) filled in one of the AAA forms providing background information which Mr Rozsy then reviewed. Based on the information supplied Mr Rozsy discussed all options which he thought were available to her. MARA’s classification of 3 options is incorrect. The options discussed were:-
Business Visa sub-class 163
Business Visa sub-class 162
Business Visa sub-class 457
Business Visa sub-class 856
These options were only lightly covered because there were better options available:-
Skilled – Independent Visa sub-class 136
Skilled – State/Territory Nominated Independent sub-class 137
Regional Skilled Visa options (2 sub-classes considered and the regulations were in the process of change)
Skilled Australian Sponsored Visa sub-class 138.”
144. Further in that regard, at paragraph 3.25 of his Statement, the applicant said
“At the meeting on 03/04/04 (Complainant B) indicated that there was a strong possibility that she would not be able to qualify as an accountant. Given the degree of uncertainty (compared to the relative certainty of 15 points for sponsorship with an apparently willing sponsor) clearly the best option, at that time and on the information provided, was to follow the sub-class 138 visa option”.
145. The applicant said that the option of a Skilled Australian Sponsored visa (subclass 138) was selected because it was the most advantageous to Complainant B on the basis of information given to the applicant “that she had an Australian relative who would sponsor her. This would give her 15 points to start with”.
146. In his Statement the applicant noted that shortly prior to 19 April 2004, one of the AAA employees, Genell Surace, sent to Complainant B a skilled occupations list and that on 19 April Complainant B acknowledged receipt of the list and informed AAA that her occupation was “training officer”.
147. The applicant noted that the skills occupation list also contained “accountant” as a skilled occupation and, whilst it was open to Complainant B to nominate that as an occupation, she did not do so.
148. As to the procedure for assessing an accountant’s skills, the applicant said that the relevant accounting qualifications (i.e. the relevant degree) are assessed by an independent body such as the National Institute of Accountants, the Institute of Chartered Accountants of Australia or CPA Australia. He said the independent assessing body does not allocate points. Rather, it certifies whether or not the qualifications meet Australian standards and, in the case of the accounting assessment bodies, whether sufficient work experience exists. The certification (issued by the assessing body) is then sent to the Department which then allocates points. In the case of an accountant the relevant points are 60.
149. The applicant also said that “at the time when (Complainant A) had her shift in direction to accounting as an occupation” – which, on the applicant’s evidence, was December 2004 – “Mr Rozsy telephoned each of the assessing bodies for accountants and was told that work experience as an accountant was required for positive skills assessment”.
150. In cross-examination the applicant agreed that, having been informed that Complainant B had a Masters degree, he would have realised that she must have had some undergraduate degree as well. When it was put to the applicant that Complainant B had in fact told him at the meeting on 3 April what her Bachelor degree was, namely that she had a Bachelor degree in Accounting, the applicant denied the same.
13. If, as the applicant maintains, Ms Bridgford was given a contract setting out the charges and fees which she signed and returned with her initial payment of UK £715 (see paragraph 4.2 of Applicant’s Statement of Facts and Issues), the applicant was required to keep that document so that it could be made available for inspection in accordance with Clause 6.1 of the Code of Conduct.
14. The applicant has been well aware since the respondent’s decision that breaches of Clause 5.2 of the Code of Conduct was an issue he had to deal with in these proceedings: see Exhibit “R28” at paragraph 99.
324. If, as asserted by Mr Eastoe, there was in fact no evidence suggesting any failure on the part of the applicant to comply with these clauses of the Code, I accept that no adverse finding ought made against the applicant if the applicant does not produce positive evidence to establish compliance with the Code. That would effectively constitute a reversal of the onus of proof.
325. In this regard, by way of example, reference may be made to the decision of the Court of Appeal of New South Wales in Ex Parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357 where, at the p358, in respect of a provision in the Medical Practitioners Act (NSW) 1938 requiring that no person shall be registered as a medical practitioner unless the Medical Board was satisfied that such person “is of good character”, Walsh JA said
“in so far as the decision of the question of fact which the court has to determine may depend upon the onus of proof, I think it is clear that the onus is on the applicant. This does not mean that, if some particular act or conduct has been alleged as indicating that the applicant is not a good character, but no evidence at all is given in support of the allegation, the applicant has the onus of disproving that particular allegation”.
326. If, however, there is an evidentiary basis by which it could be found that the relevant clauses of the Code were not complied with and the applicant adduces no evidence to establish satisfaction of the clauses, then it is open to the Tribunal to make a finding of contravention.
327. Here, the only evidence adduced on behalf of the respondent to suggest that the applicant had not complied with clauses 5.2(a) and (b) was Complainant C’s formal complaint to the respondent in which in response to the question “did the agent give you a contract” Complainant C wrote “no”.
328. As I have already noted, Complainant C was not made available for cross examination on the part of the applicant. This statement therefore must be given little weight.
329. In response, although not producing the document itself, the applicant gave evidence as to AAA’s standard procedures and referred to the applicant’s email of 3 July 2003 to Complainant C in which Complainant C’s is requested to read the agreement and notify AAA’s Australian office if she did not understand or accept any part of the agreement.
330. Accordingly, on both sides, the evidence was unsatisfactory. In the end, there is simply insufficient evidence to satisfy me to the Briginshaw standard of a contravention of Clause 5.2(a) of the Code.
331. As paragraph 5.2(b) of the Code, the evidence produced on behalf of the respondent did not extend to any written acceptance by Complainant C of the terms of the work to be done. However, nor is there anything in Complainant C’s complaint to suggest that she did not do so. There is therefore no evidence produced on behalf of the respondent which the applicant was required to rebut. There is simply a complete absence of evidence on this point. In the circumstances, no adverse finding can properly be made against the applicant.
332. I therefore make no findings of any contravention by the applicant of clauses 5.2(a) or (b) in regard to Complainant C.
Complainant D
332. The respondent contends that the applicant contravened clause 5.2(b) of the Code by failing to obtain acceptance by complainant D of the terms of the work to be done.
333. There is nothing in the documentary evidence before the Tribunal that is capable of constituting a written acceptance by Complainant D “of the terms of the work to be done”.
334. However, nor was there any evidence produced on behalf of the respondent to suggest that Complainant D did not provide written acceptance “of the terms of the work to be done”.
335. The position therefore is the same with respect to Complainant C and, for the reasons therein given, I am not prepared to make any finding adverse to the applicant in this regard in the absence of such evidence.
336. I therefore do not find clause 5.2(b) of the Code to have been contravened with respect to Complainant D.
337. The respondent also contended that Applicant contravened Clause 2.1(a) of the Code by “failing to obtain written acceptance of the work to be done”. As has been noted, Clause 5.2 of the Code expressly deals with what a registered migration agent must do in connection with “fees and charges”, including “as soon as possible after receiving instructions, obtain(ing) were in acceptance by the client, if possible, of the terms of the work to be done”. There is no specific obligation in the Code requiring a migration agent to “obtain written acceptance of the work to be done” (as distinct from “the terms of the work to be done”. Given that the Code addresses in great detail specific matters of which a migration agent is required to obtain written acceptance, and that written acceptance of the work to be done is not one of them, the Tribunal must, of necessity, be slow to impose such an obligation in the form of a general obligation such as Clause 2.1, and ought do so only if the alleged omission clearly constituted a failure to comply with the general duty imposed by clause 2.1 (either because it is self-evident or, if not self-evident, is a result of evidence adduced before the Tribunal entitling the Tribunal to reach such a conclusion).
338. Nothing in Clause 2.1(a) on its face suggests that it would be contravened by an agent failing to obtain written acceptance of the work to be done. There is no legal requirement for a written acceptance to be obtained from a client and there is no evidence before the Tribunal (such as expert evidence) to suggest that failing to obtain written acceptance of the work to be done constitutes a failure to act in accordance with the legitimate interests of a client.
339. It therefore follows that I do not consider the respondent’s allegation of a contravention of Clause 2.1(a) with respect to Complainant D to have been made out.
340. The respondent contended that the timeliness of the applicant’s dealings with Complainant D established a contravention of Clause 2.1(b), 2.3 and 2.8 of the Code.
341. On 22 February 2001 the applicant requested a timeline from Complainant D. Complainant D provided the timeline 6 days later, namely on 28 February 2001. The applicant did not respond to that email until 17 March 2001, (and then only to state “we will be in touch shortly”. The applicant was not “in touch” until 17 May 2001 (2 months later) when he provided a checklist and requested Complainant D provide additional information.
342. The applicant did not offer any particular reason as to why the email he ultimately sent on 17 May 2001 was not provided to Complainant D significantly earlier, namely within days or weeks (rather than months) after Complainant D provided her email of 28 February 2001. In the absence of any explanation for the delay (let alone an acceptable reason), I find that the delay in providing a substantive response to Complainant D’s email, having regard to the length of the delay and the absence of any explanation of the same, constituted a failure by the applicant to “always…deal with his…client…diligently”. I therefore find Clause 2.1(b) to have been contravened with respect to Complainant D.
343. It follows that I also consider this to be evidence to which I may properly have regard in determining whether or not, on the totality of the evidence before the Tribunal, the applicant contravened Clause 2.3 of the Code.
344. I do not, however, consider the facts to constitute a contravention of Clause 2.8(c) of the Code; I do not consider the applicant’s failure to revert to Complainant D after she had provided the timeline requested of her by the applicant to be capable of being categorised as a failure on the part of the applicant to keep complainant D “fully and regularly informed…of the progress” of her matter. Clause 2.8 of the Code imposes upon a migration agent an obligation to keep a client informed of what is in fact happening (or not happening): it does not impose upon an agent to actually progress the case (which is what I consider the province of clauses such as 2.1(b)). It therefore follows that I do not find the applicant to have contravened Clause 2.8(b) with respect to Complainant D.
345. The next issue to be considered is whether the applicant contravened Clauses 2.1(b), 2.3 and/or 2.4 of the Code as a result of not qualifying any of the previous statements he had made to Complainant D upon receipt of Complainant D’s email dated 28 February 2001 (which indicated that she had not been living together with her partner for any significant period).
346. The initial information provided by Complainant D to the applicant suggested that she and her partner would be able to satisfy Regulation 1.15A by having been living together for a 13 month period. Whilst fully appreciating that the relevant period under the Regulations is the 12 months immediately preceding the date of the application, there was nevertheless every reason for the applicant to believe and advise Complainant D that she had a good prospect of success (which he did).
347. However, when the applicant received the timeline, it became evident to him that they had not been living together for any significant period: certainly nothing approaching that which “if the application were made in the foreseeable future, would establish that, for the preceding 12 months, they had been living together”.
348. Accordingly, it became evident to the applicant that Complainant D would need to establish that, for the period of 12 months immediately preceding the date of the application, she and her partner, inter alia, had “not been living separately and apart on a permanent basis”.
349. It is self-evident that this is a more difficult criteria to establish than to simply establish that two persons have been living together for a period of 12 months. This is particularly so given the frequency and periods when Complainant D and her partner were not living together and, even when they had been together, the transient nature of the same (e.g. holidays).
350. It is not to the point that Complainant D may well have been able to satisfy that requirement. Nor is it to the point that Complainant D was ultimately unable to satisfy the requirement based on what evidence she in fact provided to the applicant. The point is the fact that a careful and competent migration agent would not only have realised that Complainant D’s case would be more difficult to establish than had previously been anticipated, they would have also informed Complainant D of that fact given the previous statements made to Complainant D.
351. The applicant did neither of these things.
352. I am therefore satisfied that the applicant failed to deal with Complainant D competently and thus contravened Clause 2.1(b) of the Code.
353. I further find that this is a matter that may properly be taken into account in determining whether the applicant has contravened Clause 2.3 of the Code.
354. I do not, however, consider Clause 2.4, properly construed, to have been contravened on the evidence before me.
355. The final matters to be considered in respect of Complainant D are whether, as alleged by the respondent, the applicant contravened Clause 5.2(b) of the Code by failing to obtain acceptance by the client on the terms of the work to be done and Clause 5.5(a) of the Code by failing to provide Complainant D with a Statement of Services for the first payment.
356. Again there was a complete lack of any probative evidence in regard to these alleged contraventions. For the reasons previously given, I am not prepared to find to the satisfaction of the Briginshaw requirement the contravention of either of these clauses with respect to Complainant D.
Complainant E
357. Although said to manifest contraventions of numerous clauses of the Code, the case against the applicant with respect to Complainant E is in three parts.
358. The first complaint is with respect to the initial advice provided to Complainant E and her partner. Secondly, there is a complaint with respect to the applicant’s conduct and advice provided to Complainant E upon receipt of the Department’s letter advising that consideration was being given to refusing the visa application on the grounds of serious criminal convictions. Thirdly, complaint is made with respect to the advice given by the applicant’s partner that he had 28 days to lodge an appeal before departing Australia when in fact his bridging visa ceased to be in effect immediately upon the Department’s refusal of the visa application.
359. The applicant’s evidence was that he was well aware that a serious criminal conviction, being one which involved a custodial sentence (of 12 months or more) ,would most likely be fatal to any visa application. He said that if he had been made aware of such a conviction, he would not accept instructions to act. His evidence was that he informed Complainant E and her partner of that fact and that they did not inform him of the existence of a serious criminal conviction.
360. The only evidence which directly contradicts the applicant’s evidence is the written complaint of Complainant E. Neither Complainant E nor her partner gave evidence before the Tribunal. In particular, they were not made available for cross-examination by Counsel for the applicant. Nor (unlike with respect to Complainant A) was there anything said by the applicant (in his evidence before the Tribunal or in emails) from which any adverse inferences may be drawn.
361. In these circumstances, and having regard to the decision in Briginshaw, I find that the evidence falls short of satisfying the Tribunal that:
·the applicant did not appreciate the consequence of a potential visa applicant having a serious criminal conviction;
·the applicant did not know that a serious criminal conviction involved conviction of an offence for which a term of imprisonment of 12 months or more was imposed; and
·the applicant did not properly and fully advice Complainant E and her partner with respect to what a serious criminal conviction constituted and its likely consequences on a visa application.
362. As for what the applicant did upon receipt of the Department’s notification that it was considering refusing the application, again there was no reason why I ought not accept the applicant’s evidence as again there is no evidence to which the Tribunal can attach any weight that contradicts the applicant’s evidence in this regard.
363. One would ordinarily expect a person who has effectively been misled by a client to write to the client when he or she has learnt of the misleading conduct and complain of the fact (and to even possibly refuse to continue to act). The applicant did neither. The fact that he did neither of those things does not however entitle the Tribunal to reject his evidence, and I do not do so.
364. As to the advice which the applicant gave to Complainant E and her partner after the visa application had been refused, it was incorrect: the bridging visa expired immediately upon the Department’s refusal of the visa application – the applicant’s partner did not have 28 days before facing deportation.
365. The respondents submitted that this resulted in contraventions of clauses 2.1(b), 2.3 and 2.23 of the code.
366. As to clause 2.1(b), does the applicant’s erroneous advice constitute a failure to deal with his client “competently”? It was submitted by Mr Eastoe that “an honestly held wrong opinion, based on departmental advice does not indicate any lack of diligence (particularly given the urgency of the situation), particularly where the agent also provided the client with a recommendation to obtain legal advice”.
367. Again, no expert evidence was adduced as to whether or not a careful and competent migration agent, particularly one of the applicant’s experience, ought reasonably to have known that the bridging visa would expire immediately upon the department’s decision, and not some period thereafter.
368. In this instance, there is simply nothing in the evidence to enable me to form a view in that regard. In those circumstances, applying the Briginshaw standard, I am not satisfied that the applicant’s erroneous advice reflected a failure by the applicant to deal “competently” with Complainant E.
369. For the same reason, I do not consider it a fact that can be taken into account when later determining whether or not the applicant has a “sound working knowledge” of the Migration Act and Migration Regulations or a “capacity” to provide “accurate” advice within the meaning of clause of 2.3 of the Code> Nor can it be taken into account in determining whether or not the applicant has taken “all reasonable steps to maintain the reputation and integrity of the Migration industry” within the meaning of clause 2.23 of the code.
Complainant F
370. The applicant conceded, and I find, that the applicant contravened Clause 2.1(b) of the Code by failing to lodge or cause to be lodged Complainant F’s partner’s application for permanent residence in time.
371. The respondent contends that the applicant further contravened Clause 2.1(b) because he failed to monitor the expiration of the visa of Complainant F’s partner and failed to recognise the seriousness of not lodging an application on time, especially given that invalid applications are not merits-reviewable.
372. The evidence establishes that the applicant was well aware of when Complainant F’s partner’s visa expired. It also establishes that he well recognised the seriousness of not lodging an application on time. I therefore do not find Clause 2.1(b) to have been further contravened in either of these respects.
373. The respondent contends that the facts give rise to a contravention of Clause 2.4 by failing to recognise Complainant F and his partner’s dependence on him, especially in light of his advice to lodge the applications jointly.
374. Given my views as to the proper operation and meaning of Clause 2.4 of the Code previously stated, I do not consider the Clause to have been contravened merely by reason of the fact that the applicant failed to lodge or cause to be lodged the necessary application in time. There is nothing else in the evidence which, either alone or in conjunction with the failure to lodge or cause to be lodged the application on time, causes me to conclude that Clause 2.4 has been contravened. Indeed, to the contrary, the applicant’s evidence clearly establishes that, in connection with Complainant F and his partner, he had due regard to the client’s dependence on his knowledge and experience.
375. Finally, the respondent contends that the applicant contravened Clause 2.23 of the Code in that the failure to do something as crucial and basic as lodging an application in time, and having regard to the ramifications of not doing so (both potentially and in fact), the applicant’s failure was such as to bring the industry into disrepute.
376. This is a matter that must be taken into account when determining whether or not, on the whole of the evidence, a contravention of Clause 2.23 is made out.
Clause 2.3 of the Code
377. Insofar as they have been upheld in these Reasons for Decision, the matters contended for on behalf of the respondent as given rise to a contravention of Clause 2.3 of the Code are;
·With respect to Complainant B, the failure to appreciate that she did not need to have worked as an accountant in order to potentially qualify for 60 points by way of a skilled occupation;
·with respect to Complainant D, the applicant’s failure to qualify the advice he had previously given Complainant D upon receipt of Complainant D’s timeline.
378. What Clause 2.3 requires a migration agent to possess is a “sound working knowledge” of both the Act and the Migration Regulations and other relevant legislation “and a capacity to providing correct and timely advice”.
379. I am of the view that the provision of incorrect advice per se does not necessarily establish a contravention of Clause 2.3. Clause 2.3 does not require a perfect knowledge of Migration Act and Regulations and other legislation: it merely requires a “sound” “working” knowledge. This requires a migration agent to have a competent general familiarity and understanding of the Act, Regulations and other legislation. It requires a competent - not necessarily a scholarly or academic -understanding.
380. The second limb of Clause 2.3, rather than focusing on the migration agent’s knowledge, deals with the migration agent’s “capacity”. The capacity to provide accurate and timely advice must include satisfaction of the first limb – it is difficult to see how an agent would have the capacity to provide accurate and timely advice if he or she did not have a sound working knowledge of the relevant legislation -, but further extends to the ability to utilise that knowledge to provide accurate and timely advice.
381. In order to determine whether or not a migration agent possesses the qualities required by Clause 2.3, it is necessary to consider any occasions where the agent’s knowledge of the Migration Act, Regulations or other legislation in relation to migration procedure has been found to be lacking, and where the migration agent has failed to provide accurate and timely advice, against the circumstances in which they have occurred. It is also necessary to have regard to the quantity and quality of such failures.
382. Put simply, the fact that an agent has shown to lack knowledge in a particular respect or is shown to have provided inaccurate or untimely advice does not necessarily mean that the agent does not have the requisite “sound working knowledge” of the Act, Regulations and related legislation or the “capacity” to provide accurate and timely advice.
383. In regard to Complainant B, the evidence does not warrant a finding that the applicant’s knowledge of the Act, Regulations or related legislation was somehow unsound. The finding that I have made in this regard relates to the applicant’s knowledge of how the regulations are applied in practice in respect to accountants. I find that is not something caught by the first limb of Clause 2.3.
384. However, I find that insofar as the applicant has discounted in his own mind the ability of Complainant B to qualify for 60 points because she had not worked as an accountant, and had thus closed his mind to possibility of a subclass 136 visa being a possible alternative pathway, the advice proffered to Complainant B was to that extent inaccurate.
385. It therefore becomes necessary to consider the quality and nature of that inaccurate advice to determine whether or not of itself it establishes the lack of a capacity to provide accurate advice.
386. Turning then to Complainant D, I find the fact that the applicant did not qualify his previous advice to Complainant D after the provision by her of the timeline is not a result of any defect in him knowledge of the Act, Regulations or related legislation, or constituted inaccurate advice. Accordingly, no finding with respect to Complainant D is capable of constituting evidence, either alone or in conjunction with other facts, of any contravention of Clause 2.3.
387. It therefore follows that, on balance, I am not satisfied that those of the matters relied upon by the respondent as allegedly establishing a contravention of clause 2.3, and which I have upheld, either alone or in combination, establish a contravention by the applicant of clause 2.3.
Clause 2.23 of the Code
388. Counsel for the respondent referred me to various decisions in which a registered migration agent was held to have contravened Clause 2.23 of the Code. They included (in no particular order) Khan and Migration Agents with Discretionary Authorities [2005] AATA 13, Mohammed and Migration Agents Registration Authority (ibid), Russell and Migration Agents Registration Authority [2008] AATA 22, Kazi and Migration Agents Registration Authority [2006] AATA 42 and Sosrohadipoespito and Migration Agents Registration Authority [2001] AATA 293.
389. In each of those decisions, a finding was made, either in express terms or to the effect, that the migration agent concerned was not a “fit and proper person” or was not a person “of integrity”. It is hardly surprising that where the facts of the matter warrant such a finding, a contravention of Clause 2.23 of the Code is also made out.
390. In the matter before me, and as further discussed later in these reasons for decision, whilst such findings were made by the respondent, counsel for the respondent accepted that it was not open to the Tribunal to make such findings on the evidence, and no such findings are made.
391. For there to be a contravention of Clause 2.23 of the Code where there is no suggestion of the migration agent not being a fit and proper person or a person of integrity, the conduct in question would need to be of such quality and/or quantity as to elevate the conduct from conduct merely reflecting upon (a) the migration agent’s reputation, to conduct reflecting upon the reputation of the migration advice profession; and/or (b) the migration agent’s integrity, to conduct reflecting upon the integrity of the migration advice profession.
392. Moreover, it must be held firmly in mind that Clause 2.3 does not impose upon a migration agent an absolute duty to maintain the reputation and integrity of the migration advice profession, but rather a duty to “take all steps” to do so: for an example of this distinction in operation,: see Rozsy and Migration Agents Registration Authority (ibid) .
393. Turning then to the matters relied upon by the respondent as establishing a contravention of Clause 2.23 (insofar as I have upheld them in these Reasons for Decision), they are:
· in respect of Compliant A, by not dealing with Compliant A’s matter in a timely manner;
· in respect of Compliant F, by “carelessly processing applications and missing an essential deadline”.
394. I do not find either of these occasions, either alone or when taken together, to establish a failure on the part of the applicant to “maintain the reputation and integrity of the migration agent industry”, let alone failing to “take all reasonable steps” to do so. In the latter regard, as the Tribunal stated in Rozsy and Migration Agents Registration Authority at [90]:
“What Clause 2.23 requires is only the applicant ‘must take all reasonable steps’ to achieve that result” In my opinion, AAA’s business procedures were not adequate in the present case, there is nothing to indicate that its procedures were otherwise not up to an acceptable standard”.
395. I therefore do not find the evidence to establish a contravention of Clause 2.23 of the Code.
summary of established contraventions
396. For the reasons which I have given, I have found the applicant to have contravened the following clauses of the Code:
·failing to act diligently and in accordance with Complainant A’s legitimate interests, in contravention of clause 2.1(a) and (b) of the Code;
·failing to deal with Complainant B competently, in contravention of clause 2.1(b) of the Code;
·failing to deal with Complainant C diligently, in contravention of clause 2.1(b) of the Code;
·failing to deal with Complainant D diligently and competently, in contravention of clause 2.1(b) of the Code;
·failing to deal with Complainant F competently, in contravention of clause 2.1(b) of the Code.
Barring Order
397. It is well established that, although punishment is not an irrelevant consideration, the primary purpose of a power such as that given by s 311A of the Act is to protect the public from wrongdoing: see, for example, the decision of this Tribunal in Donald and Australian Securities and Investments Commission [2001] AATA 66 and the various authorities referred to therein at paragraphs 111-115 (inclusive), and Rich v Australian Securities and Investments Commission [2004] HCA 42.
398. As I noted in Narayanan and Migration Agents Registration Authority at [141]:
“In fixing the appropriate period in which to ban the applicant, one needs to take account of the fact that Parliament has indicated that the maximum period is 5 years. That is obviously reserved for the most severe cases. The most severe cases would inevitably involve an element of fraud, dishonesty or incompetence”.
399. The Tribunal notes that, in the reviewable decision, consideration was given by the respondent to the applicant’s integrity, as well as his fitness and propriety to give immigration assistance. In doing so, the respondent referred to s 290(2)(h) of the Act, a section which deals with registration of a person as a migration agent.
400. The respondent also concluded that the applicant’s “acts or omissions demonstrated:
· incompetence or lack of diligence;
· the absence of integrity; and
·(the applicant) was not a fit and proper person to give immigration assistance”.
401. In reaching its decision to bar the applicant for 4 years, the respondent specifically referred to numerous factors, including its view that “the totality of the breaches gave rise to a finding of lack of integrity, honesty, incompetency (sic) and financial probity or accountability with respect to the use of client fees and disbursements”.
402. Contrary to the course adopted by the respondent in the reviewable decision, it is not open to the Tribunal to consider concepts such as whether or not the applicant is a fit and proper person to give immigration assistance or whether the applicant is a person of integrity, as such matters are not elements of the clauses of the Code of Conduct which the respondent contends have seen breached.
403. With the possible exception of the alleged contravention of Code of Conduct with respect to the cost breakdown given to Complainant A, none of the complaints against the applicant, let alone those which the Tribunal has upheld, raise questions of the applicant’s honesty or integrity.
404. Moreover, on the evidence before the Tribunal, no finding could properly be made, and therefore no finding is made, that the applicant is not a person of integrity or is not a fit and proper person to give immigration assistance.
405. It therefore follows that insofar as the respondent had regard to such factors when determining whether or not to bar the applicant and, if so, for how long, it was in error.
406. Accordingly, unless the totality of the contraventions which the Tribunal has upheld can properly be said to establish that the applicant is generally incompetent, the matters cannot collectively be said to be in the upper range of seriousness.
407. As the Tribunal does not find that the complaints which it has upheld warrant any finding to the effect that the applicant is generally incompetent, it follows that the Tribunal concludes that a period of barring of 4 years cannot be justified.
408. Indeed, Counsel for the respondent informed the Tribunal on the fourth day of the hearing that his instructions were not to press the Tribunal to find that the applicant is not a person of integrity or is not a fit and proper person to give immigration assistance and thereby accepted that a period of barring of 4 years could not stand.
409. Having determined that a period of barring of 4 years cannot be justified, the issue to be determined is whether, having regard to the Tribunal’s findings, a period of barring is required at all and, if so, what period is appropriate.
410. It was agreed that the Tribunal would receive the parties’ submissions in that regard at a separate hearing to be held after these Reasons for Decision had been delivered and the parties had been given an opportunity to consider them and prepare their submissions as to what ought flow from them. That is what will now occur.
I certify that the 410 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member
Signed: ..(sgd) C Skinner.......
AssociateDates of Hearing 18, 19 & 20 February, 11 & 12 March and 2 April
Date of Decision 26 May 2008
Counsel for the Applicant Mr J Eastoe
Solicitor for the Applicant Mr J Eastoe
Counsel for the Respondent Mr P Macliver
Solicitor for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
-
Immigration & Refugee Law
Legal Concepts
-
Code of Conduct
-
Barring Order
-
Migration Act 1958
5
12
0