Rozsy and Migration Agents Registration Authority
[2005] AATA 420
•11 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 420
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/188
GENERAL ADMINISTRATIVE DIVISION ) Re PETER ROZSY Applicant
And
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal MJ Allen, Member Date11 May 2005
PlacePerth
Decision The decision made by the respondent on 7 April 2003 to issue the applicant with a caution pursuant to s 303(h) of the Migration Act 1958 is varied by adding a condition that the caution is to be lifted and to cease to have effect on the date of this decision. ............(sgd MJ Allen)........
Member
CATCHWORDS
Migration agent – agent cautioned for contraventions of a number of provisions of the Act and Code of Conduct – consideration of whether the applicant contravened one or more provisions of the Code – findings that the applicant has contravened clauses 2.1, 2.4, 2.8(c), 6.1, 8.1 and 8.2 of the Code – findings that the applicant has not contravened clauses 2.15 and 2.23 of the Code – conclusion that a caution is appropriate but that a condition be added that the caution be lifted on the date of the Tribunal’s decision – decision under review varied
Migration Act 1958 ss 287, 303, 304A, 305A, 305B, 306, 309, 311, 314,
Judiciary Act 1903 ss 55ZF, 55ZG
Migration Agents Regulations 1998 rr 3X, 7, 9
Briginshaw v Briginshaw (1938) 60 CLR 336
Hanna v Migration Agents Registration Authority [1999] FCA 1657
REASONS FOR DECISION
11 May 2005 MJ Allen, Member 1. On 7 April 2003 the respondent made a decision, pursuant to s 303(c) of the Migration Act 1958 (“the Act”), to caution the applicant because it was satisfied that the applicant had not complied with the Code of Conduct (“the Code”) prescribed under s314 of the Act, in accordance with which registered migration agents must conduct themselves. The applicant now seeks review of that decision pursuant to section 306 of the Act.
2. At the hearing of the matter the applicant was represented by his solicitor, Mr Eastoe, and the respondent was represented by Mr Blades, an officer of the Australian Government Solicitor. The Tribunal received into evidence the documents filed pursuant to section 37 of the Administrative Appeal Tribunal Act 1975 (T1-T15 and S1-S18). The Tribunal also received in evidence exhibits A1 – A4 tendered by the applicant and R1 – R5 tendered by the respondent. Exhibit R3 is a bundle of numbered pages, each of which will be referred to as R3.1 – R3.162. Oral evidence was given by the applicant and by Mr Easaw Mathew, who was called to give evidence by the respondent.
Legislative Framework
3. Section 303 of the Act gives the respondent the discretionary power to suspend or cancel the registration of a registered migration agent, or to caution the agent, if “it becomes satisfied” that a number of grounds specified in the section are made out. Of particular relevance in the present case is section 303(h), which enables suspension, cancellation or caution if “the agent has not complied with the Code of Conduct prescribed under s 314” of the Act. Section 314 relevantly provides that the regulations may prescribe a Code of Conduct for migration agents and that registered agents must conduct themselves in accordance with it. The Code that was in effect at the relevant time in these proceedings was that contained in Schedule 2 of Statutory Rules 1998 Number 53 as amended from time to time. The parties agreed that a compilation made in July 2001, which took into account amendments up to Statutory Rule 2001 No 143 was the applicable version.
4. Section 309 of the Act relevantly provides that if the respondent is considering cautioning an agent it must inform the agent of that fact and the reasons for it and invite the agent to make a submission on the matter. Section 311 relevantly provides that when considering a possible disciplinary action under s 303 the respondent is not bound by technicalities, legal forms or rules of evidence, and must act according to substantial justice and the merits of the case.
Background
5. The applicant has been registered as a migration agent by the respondent since May 1999 and his registration has been renewed annually since that time. The applicant initially traded as a sole trader under the business name AAA Australian Migration (“AAA”), but since 2001 his business has been conducted by a proprietary limited company under the same trading name. Between mid-2001 and February 2002 another registered migration agent, Ms Celia Borshoff, was a fifty per cent shareholder and director of the company that carries on the AAA business. Ms Borshoff resigned as a director of the company in January 2002 and her shares were transferred to the applicant sometime after March 2002.
6. In mid-November 2001 AAA was approached by Mr Mathew, a citizen and resident of Singapore, for advice about possible migration to Australia and with a view to obtaining AAA’s services for that purpose. Some preliminary advice was provided at that time (T pp 93-95) and a written agreement between Mr Mathew and AAA was signed on 12 December 2001(T pp 108-109). On 9 May 2002 Mr Mathew gave notice of termination of that agreement because of dissatisfaction with the services rendered (T p 152) and on 26 June 2002 the respondent received a written complaint from Mr Mathew concerning the applicant’s conduct (T pp 81-196). On 22 July 2002 the respondent wrote to the applicant informing him of the complaint and identifying various clauses of the Code that were said to be raised by the complaint (T pp 197-199). The applicant was invited to respond to the matters raised by 13 August 2002 and the respondent also required the applicant to provide, pursuant to s 308(1) of the Act, the original of the file for Mr Mathew maintained by AAA, copies of bank statements for what was described as the business’ “clients’ account” for the period 1 July 2001 to 1 July 2002, and a variety of other documents and information. The applicant, by letter dated 8 August 2002, provided various documents and information as requested (T pp 200-284). The respondent thereafter obtained Mr Mathew’s response to the information provided by the applicant. By letter dated 18 February 2003 (T pp 7-13) the respondent wrote to the applicant advising that it was considering taking disciplinary action under s 303 because “it is open to [the respondent] to be satisfied that you may have breached s 308(1)(c) of [the Act] and clauses 2.1, 2.3, 2.4, 2.8(c), 2.15, 2.23, 6.1 and 6.2 of the Code of Conduct as at 1 July 2001”. The applicant was invited to make a submission by 12 March 2003. The applicant made such a submission (dated 24 February 2003, T pp 465-472) and on 7 April 2003 the respondent decided to issue a caution. The applicant was advised of that decision by letter dated 8 April 2003 (T p473) and provided with a document entitled “Notice of Decision” (T pp 7-13). That document set out that the respondent had found that the applicant had contravened the following:
·s 308(1)(c) of the Act – failure to provide the respondent with specified documents or records relevant to the agent’s continued registration;
·clause 2.1 of the Code – failure to act in accordance with the law and the legitimate interests of his client;
·clause 2.3 of the Code – failure to demonstrate a sound working knowledge of the Act and regulations and other legislation relating to migration procedures, and a capacity to provide accurate and timely advice;
·clause 2.4 of Code – failure to have due regard to his client’s dependence on his knowledge and experience;
·clause 2.8(c) of the Code – failure to keep his client fully and regularly informed in writing of the progress of the application that he undertook for the client;
·clause 2.15 of the Code – attempted to coerce his client for his benefit through undue pressure;
·clause 2.23 of the Code – failed to take all reasonable steps to maintain the reputation and integrity of the migration industry;
·clause 5.1 of the Code – set and charged a fee that was not reasonable in the circumstances of the case;
·clause 6.1 of the Code – failed to maintain proper records that could be made available for inspection on request by the respondent;
·clause 6.2 of the Code – failed to keep all documents to which his client was entitled securely and in a way that would ensure confidentiality while the agent was giving services to the client.
7. Having stated that it had found the above contraventions to have occurred, in the section of the decision headed “Reasons for the Decision of the Authority” the respondent set out the reasons why the caution decision had been made and specified all of the above provisions except for clause 5.1 of the Code. Nevertheless, when setting out in detail the reasons the respondent did refer to clause 5.1 and stated why it considered the clause had not been complied with.
8. On 13 May 2003 the applicant applied to the Tribunal for a review of the decision of 7 April 2003 and was granted an extension of time for the making of that application.
9. In the Statement of Facts and Contentions filed by the respondent in the Tribunal on 2 December 2003 the respondent contended (at para 40) that the applicant had contravened all of the provisions referred to in [6] above except for clauses 5.1 and 6.2 and also contended that the applicant had contravened clause 2.18 of the Code – “failing to act in a timely manner when the client has provided all the necessary information and documentation in time for statutory deadlines …”.
10. In a Supplementary Statement of Facts and Contentions filed by the respondent on 18 March 2004 the respondent abandoned the alleged breach of s 308(1)(c) of the Act but contended that the applicant had failed to comply with clause 5.1 of the Code, clause 8.1 of the Code (failing to exercise effective control of his office for the purpose of giving immigration advice and assistance), and clause 8.2 of the code (failing to properly supervise the work carried out by staff). At the commencement of the hearing I gave oral reasons why I was prepared to allow the respondent to rely on, and adduce evidence concerning, these additional alleged contraventions and the matter proceeded on the basis of alleged breaches by the applicant of clauses 2.1, 2.3, 2.4, 2.8(c), 2.15, 2.18, 2.23, 5.1, 6.1, 8.1 and 8.2 of the Code.
11. The hearing of the matter proceeded over a number of days. The respondent abandoned several of the alleged contraventions and its final position was that the applicant had breached clauses 2.1 (a) and (b), 2.4, 2.8(c), 2.15, 2.23, 6.1, 8.1 and 8.2 of the Code (see para 2 of the respondent’s written submissions dated 6 December 2004).
12. The first issue to be determined in the proceedings is whether the Tribunal is satisfied that the above contraventions of the Code have occurred to the required degree in accordance with the principles established in Briginshaw v Briginshaw (1938) 60 CLR 336: see also Hanna v Migration Agents Registration Authority [1999] FCA 1657 per Tamberlin J at [20]. If all or any of the contraventions are found to have occurred then the second question to be determined is what is the appropriate penalty to be imposed on the applicant.
Evidence
13. Although a great deal of oral and documentary evidence was adduced before the Tribunal, by the end of the matter much of the factual material was not in dispute between the parties - and the following is a summary of the events in question and findings of fact can be made to that effect. Some factual matters remained in dispute and will be referred to below.
14. On 16 November 2001 Mr Mathew provided AAA (via its internet website) with various items of information about his and his wife’s tertiary qualifications and work experience in order to obtain advice about the possibility of obtaining a visa for permanent residence in Australia (R3.1). The applicant on behalf of AAA provided preliminary advice by email on the same day, advising that both Mr Mathew and his wife may be eligible for an independent skilled visa and outlining the services that AAA could provide and the professional fees and out-of-pocket expenses that would be involved in such representation (R3.2 – R3.3.).
15. Over the next week the applicant and Mr Mathew exchanged a number of emails concerning the possible arrangements, and on 28 November 2001 Mr Mathew made a first payment to AAA for its services.
16. On 5 December 2001 Ms Borshoff emailed an agreement to Mr Mathew and over the next week Ms Borshoff and Mr Mathew exchanged various emails regarding that document and other documents sent to Mr Mathew by Ms Borshoff. The other documents were various forms devised and used by AAA to obtain from clients all the information about the intending migrant family in order to, in due course, complete the necessary application forms to be used in the visa application process. In the course of that exchange the possibility of Mr Mathew’s wife being the main applicant for a visa was again mentioned (R3.18 – R3.29).
17. On or about 18 December 2001 Ms Borshoff met Mr Mathew in Singapore, gave him hard copies of various documents, and received from him copies of a number of documents that were to be used in the visa application process. On her return to Australia Ms Borshoff prepared a letter dated 31 December 2001 (R3.39) addressed to the Australian Computer Society (“ACS”) – which is the Australian body responsible for assessing the overseas qualifications of intending migrants with information technology qualifications. For reasons that remain unclear that letter and the application form for ACS assessment signed by Mr Mathew were not despatched to ACS at that time.
18. In early January 2002 (although when precisely remained a matter in dispute) Ms Borshoff stopped working for AAA. On 2 January 2002 a Miss Edwards (who described herself as Ms Borshoff’s administration assistant) sent an email to Mr Mathew seeking copies of a number of documents (one of which was the ACS application form) so that the ACS application could be submitted (R3.42). Mr Mathew informed Ms Edwards (R3.43) that he had already given these documents to Ms Borshoff and on 8 January 2002 Ms Edwards confirmed by email to Mr Mathew that the relevant documents had been received and advised Mr Mathew that “we will send off your skills assessment today and will keep you updated on the progress” (R3.45). Once again, the ACS application was not submitted at that time.
19. On 28 January 2002 Mr Mathew sent the applicant an email asking questions about the impact on their migration position if he and his wife were to have a second child. The applicant responded on the same day and advised Mr Mathew to forward any other questions he had directly to the applicant (R3.48). On the same day Mr Mathew sent an email to the applicant querying the whereabouts of Ms Borshoff and enquiring about the status of his ACS application. The applicant replied to Mr Mathew on the same day, advising that Ms Borshoff had “completed the consultancy contract with our firm” and that “we as yet have had no answer from the ACS” (R3.49).
20. On 30 January 2002 Mr Mathew emailed the applicant expressing some concern about Ms Borshoff’s absence because she had certified as true copies various documents to be used in the application process, and expressing the concern that the application to ACS might not have been properly completed. On the same day the applicant allayed the concerns of Mr Mathew (R3.51 and R3.53).
21. It was at about this time that the applicant established that Mr Mathew’s ACS application documents had not been submitted and he instructed a Ms Adams (an administrative assistant with AAA) to copy the relevant documents and despatch them to ACS, which Ms Adams appears to have done on 1 February 2002 (R3.55).
22. By letter dated 19 March 2002 (R3.61) ACS advised AAA that Mr Mathew’s application had been successful in that his qualifications had been assessed as suitable for migration. When that letter was in fact received by AAA was in dispute in the proceedings and I address that issue below.
23. By email on 27 March 2002 Mr Mathew asked the applicant about the status of his ACS application as it was then “ … about 2 months since the application was submitted”. Mr Mathew also sought advice about any change in immigration rules or policy (R3.62).
24. On 28 March 2002 the applicant forwarded Mr Mathew’s email of 27 March 2002 to Miss Adams with the notation “Please tell me what you know about the status of this one” (R3.63). No reply was sent to Mr Mathew by the applicant or anyone else at AAA and Mr Mathew sent emails dated 4 April and 15 April 2002 repeating his request for information and advice (R3.64 and R3.65).
25. On 20 April 2002 the applicant sent an email to Mr Mathew advising that the ACS assessment had “arrived back” and that it was positive – and that AAA could now process the visa application and would be in touch soon (R3.66).
26. On receipt of that advice Mr Mathew responded to the applicant with an email (R3.67) apologizing for having been persistent in his enquiries but noting that he was “… getting a little worried [especially] since there is also a points factor in the age group [I] fall in. I will get the other forms filled in by the end of this week-end. Let me know what the next steps are.” The reference to the age group that Mr Mathew fell within is a reference to the fact that to obtain an independent skills visa an applicant must “earn” a certain number of points based upon personal, education and work factors. One of the factors is age and an applicant aged 34 years gets 5 points more than an applicant who has turned 35. Mr Mathew was to turn 35 later in April. The reference to the other forms is a reference to the various AAA forms delivered to Mr Mathew by Ms Borshoff in December 2001 and which would contain the information needed to complete the formal visa application forms.
27. By email of 29 April 2002 (R3.68 and the pages that follow) Mr Mathew sent the completed application forms and provided some additional information, noting that he had arranged for his family members to have medical examinations on 30 April 2002 but asking the applicant to let him know if they should be cancelled. He said that he wanted the application lodged by “… end-May at the latest” and noted again that he had “just moved into the next age bracket and lost 5 points as a result”. On the same day Miss Adams emailed Mr Mathew confirming that the documents previously sent had been received and had been referred to the applicant (R3.110).
28. The applicant and Mr Mathew had a telephone conversation on the evening of 29 April 2002 in order to clarify the question of the medical examinations. On the same day Mr Mathew sent an email to the applicant referring to that conversation.
29. On 1 and 2 May 2002 Mr Mathew sent emails to the applicant asking a number of other questions and noting that he had not had replies to earlier emails to the applicant. He asked whether the applicant was awaiting further information and emphasised that the family was serious about migrating to Australia and asked whether he could communicate with another member of AAA staff, if that would help make the process quicker (R3.114).
30. On 3 May 2002 the applicant sent to another migration agent who worked for AAA (Mr Thorniley) Mr Mathew’s email of 29 April 2002 (to which was attached the various information forms completed by Mr Mathew) and Mr Mathew’s email of 29 April 2002 (R3.116 and 117). Precisely when Mr Thorniley commenced work on the preparation of Mr Mathew’s visa application documents is not clear but I am satisfied that the applicant had arranged for Mr Thorniley to be involved in the preparation of those documents by no later than 3 May 2002.
31. On 9 May 2002 Mr Thorniley sent an email to Mr Mathew (R3.118) advising that he was preparing the visa application forms and endeavouring to answer some of the queries that Mr Mathew had previously raised with the applicant. He advised that there had been a change to the visa system only a few days prior to the date of the email, namely, an increase in the points required for a visa of the type that Mr Mathew wished to obtain and mentioning that this may not affect Mr Mathew’s position (because he would probably have enough points) or, an alternative might be to have Mr Mathew’s wife become the principal applicant for the visa because she had relevant qualifications obtained in Australia and hence may achieve a higher points score. Mr Thorniley noted that he had requested the Department of Immigration, Multicultural and Indigenous Affairs (“the Department”) to clarify an aspect of Mr Mathew’s work experience and that he would let Mr Mathew know as soon as he had an answer. Document R3.118 shows that it was despatched by Mr Thorniley at 10.57am on 9 May 2002 and R3.119 is a further email that was despatched at 11.41am on 9 May 2002 from Mr Thorniley to an officer in the Department seeking advice about Mr Mathew’s work experience and the points that he might be awarded.
32. On the same day Mr Mathew faxed to the applicant (R3.120) a letter advising that he wished to immediately terminate the agreement with AAA and asking that all documents be returned to him immediately by courier. That document was received by AAA at 1.40pm, and at 1.45pm the applicant sent an email to Mr Mathew referring to receipt of the fax and Mr Thorniley’s earlier emails. He sought confirmation from Mr Mathew as to whether he did wish the agreement to terminate (R3.121). At 2.27pm on 9 May 2002 Mr Mathew confirmed that he did wish to terminate the arrangement (R3.122).
33. At 3.02pm on 9 May 2002 the applicant sent Mr Mathew an email advising that he documents would be despatched to him as soon as possible. That email stated in part “We are sorry that you have made this decision but understand that you are unhappy with the service. Should you wish to reconsider, we will provide you with a discount of 20% from our fees as compensation. Given that aside from some information we require from you, we are ready to lodge the application, you may wish to reconsider. The changes to legislation are constant and of course we cannot be responsible for changes. … if you engage another migration agent, that agent has a legal obligation with regard to notification” (R3.122).
34. Mr Mathew responded to that email at 4.50pm on 9 May 2002 (R3.123) confirming that he wished the documents to be sent to his home and on the same day at 5.17pm the applicant emailed Mr Mathew confirming that the documents would be despatched and noting that: “If you do engage another agent, we will happily let them no (sic) a few important issues about your application that need to be addressed when the application is lodged – there have been significant changes which govern the applications MUST be presented and if these issues are not addressed, applications are refused” (R3.123).
35. On 21 May 2002 the applicant sent an email to Mr Mathew in which he advised that AAA was “… not used to having unhappy clients and will have a case meeting about the situation next week. Please provide what information you can and confirm you have received all that you have requested and advise if there is anything else we can do to assist you”. (R3.130)
36. On 26 May 2002 Mr Mathew sent an email to the applicant (R3.132) confirming that the documents had been received and expressing disappointment that the ACS assessment letter was dated 19 March 2002, but that he had been notified by AAA of the successful outcome only on 20 April 2002, notwithstanding his persistent attempts before then to establish the position. Mr Mathew said that AAA’s “… procrastination has cost us a net loss of 10 points on the points test …” and that it appeared that very little time had been spent on addressing the family’s applications as the forms had all been filled in by him. The applicant’s “… subsequent inaction and failure to keep me informed on the status of our application and reply to my numerous emails or return my calls has caused so much distress and upset all our plans over the next year (ie career, financial, education etc)”. Mr Mathew stated that in view of the applicant’s “… breach of the MARA Code of Conduct, I am hereby requesting that you return my initial deposit. However, to be fair to AAA I will accept that you return [Australian dollars] 1100 as a fair compensation for this disgusting mismanagement of our application. You should realise that you are, in many ways, a steward of the Australian cause and that your actions can sometimes be at your clients’ expense, and also tarnishes the image of Australia and Australians alike. Furthermore, it casts a poor image on all migration agents not to say MARA and may make potential applicants to doubt an agent’s honesty or credibility. Hence, the reason for the Code of Conduct as laid out by MARA. …”.
37. At 4.29pm on 27 May 2002 the applicant responded to Mr Mathew (R3.133), defending AAA’s record and stating that “the second point is that it is important you lodge an excellent application and we are happy to assist by providing you or your agent with information that assists. If you have appointed a new agent they have very strict guidelines as per the Code of Conduct and how they must manage the transfer of the file from ourselves”. The email also advised that AAA would now assess the time and costs associated with working for Mr Mathew, and that these would be identified and a further response would be provided shortly. On the same day Mr Mathew responded, repeating his request that $1100 be returned to him by 29 May 2002 (R3.135).
38. On 28 May 2002 at 10.51am the applicant sent an email to Mr Mathew commenting upon the amount of work done on his behalf by AAA and noting that the agreement specified the times to be calculated at US $100 per hour. That email again stressed that AAA would discuss the case at a meeting because it did not have unhappy custonmers and that further information would be provided to Mr Mathew regarding the amount of any refund of money. The email stated “We have sound records of our work and costs which we are more than happy to have scrutinised. We are interested in a satisfactory resolution, however, should you choose to take any alternative action, we are satisfied with the state of your file and records” (R3.136).
39. On the same day, at 12.23pm, the applicant sent a further email to Mr Mathew (R3.137) to which was attached a statement of the services provided between 28 November 2001 and 9 May 2002 (R3.138) which amounted to US$ 595, on the basis of which Mr Mathew would be entitled to a refund of A$527.32. However, in the email the applicant stated that AAA’s “… assessment team has decided to offer you a refund of A$1200 as a full and final refund, however it was clear that you do not understand the work, diligence and effort that has gone into your case”. The email stated that “a refund beyond that which AAA was legally obliged to make was because AAA does not have unhappy customers and whilst we believe your complaints are unfounded, we wish to remain positive”. An offer was made to discuss with Mr Mathew AAA’s procedures and the work performed on his behalf. The email went on to say the following:
“In order for us to make the payment of A$ 1200, we require the following: a letter from you accepting the payment as full and final payment with an acknowledgment that the fee of $505.22 is a fair payment for the services [AAA] has provided. The letter must also acknowledge that [forms sent by AAA to Mr Mathew] are the property of [AAA]. Any copies of these forms must be sent to us immediately and not provided to any other person or organisation. As soon as this letter, to our satisfaction is received at our Perth office, a payment of A$1200 will be refunded to a credit card, the details of which are to be provided by you … . We also need an acknowledgment from you that you understand and accept that the staff of [AAA] have worked in your best interests and adhered to the MARA Code of Conduct at all times. If you like, you can email a draft of the letter to me for acceptance before posting the letter. I again stress that it is in our interest to resolve this situation positively and again invite further comment”.
40. On the same day Mr Mathew emailed the applicant (R3.139) referring to the fact that the Code did not mention any requirement about providing a letter in order to obtain a return of a deposit. Mr Mathew said he could not understand why AAA needed a letter of the type suggested because if AAA had done nothing wrong then it would have nothing to worry about and it would not need Mr Mathew to “… absolve you of any wrongdoing that you are not guilty of”. However, Mr Mathew said that he would be happy to acknowledge in writing that he had received agreed amounts once he had received them and that he would be happy to write a letter stating that A$1500 is acceptable to him as a final payment. Mr Mathew disputed AAA’s claims of the amount of time spent on the case, including the claim of monitoring legislation because Mr Mathew had been disadvantaged by the loss of 10 points. He asked for documentary evidence of work done and out-of-pocket expenses. Mr Mathew said that if AAA disputed his claims then he “… would be more than happy to proceed to the MARA Tribunal for a fair arbitration of this case. In that event, I will call on all who have worked on my case to give evidence under oath. You can be assured that by no means will I leave any stone unturned for a fair settlement of this case and there will be a full and complete investigation into your performance and procedures as a migration agent”. It remained unclear whether the reference to A$1500 was a mistaken reference by Mr Mathew to the A$1200 offered by the applicant or whether Mr Mathew was seeking a higher sum.
41. The applicant responded on 29 May 2002 (R3.142), stating that “… we have made you an offer greater than that which you requested – we simply need you to provide an acceptance in writing. If you are not satisfied with writing a letter as I suggested perhaps you would like to complete the form attached and post that instead. My aim is to resolve this situation. We are not asking you to make any statements that are not true. I have tried but do not seem to be able to convey to you that we have worked with your best interests at heart. We obviously need you to provide something in writing – I have suggested a letter from you, however, you may prefer the document attached.”
42. The “form of release” that was attached to the applicant’s email (R3.145) stated that in consideration of $1200 Mr Mathew would “… release and forever discharge and agree to indemnify and keep [AAA] … from all actions, claims, demands and costs whatsoever by us (particularly on account of all known, unknown and unanticipated damages) arising out of and in consequence of loss in respect of work undertaken by [AAA] between 28.11.01 and 9.5.02 regarding a skilled visa application. I furthermore agree that the foregoing sum is voluntarily accepted as a full and final compromise payment of all claims and the payment of the said amount shall never be construed as an admission of liability by the party or parties hereby released and indemnified. I acknowledge that the terms of this release have been read and are thoroughly understood and this release may be pleaded as an absolute defence to any proceedings in respect of this incident which may be commenced in my name or on my behalf in any court or tribunal”.
43. Mr Mathew responded later on 29 May 2002, stating that he would “… consider signing the document if you can indicate to me exactly where in either our contract or the MARA Code of Conduct that requires me to provide you or AAA such a disclaimer. If that is not forthcoming, I may have to take the unfortunate step of registering a complaint with the relevant authorities on the manner of your practices”. (R3.146).
44. On 30 May 2002 the applicant emailed Mr Mathew (R3.147) stating that “It is normal business practice for any payments to have appropriate documentation … the document simply assures us that you have accepted the payment and we have completed our obligations to you. We must have something in writing from you. It is not my desire to cause you any ill, but to simply move on. We have offered you more than you requested, explained what we have done and asked you to confirm this refund will end the service and we can move on. I have suggested you write a letter, offered you a standard form, so now simply need you to forward one or the other in writing. Of course the form we sent you is not to be provided to any other individual or company and we need confirmation of this from you. An email stating this fact will satisfy us”. On the same day Mr Mathew replied to the applicant (R3.148), stating that he would mention in a letter that “as per my termination of your services … I … discharge AAA … of all future representations relating to my application for a skilled visa application. I accept the return of $1200 to my account as final payment for all services that were not rendered by way of termination of the agreement”.
45. On the same day the applicant emailed Mr Mathew stating that he would prefer Mr Mathew to state that “… I accept that the figure of $505.22 is a fair payment for services provided by AAA … and therefore I will take no action or make any complaint against representatives of AAA …” (R3.149).
46. Later on 30 May 2002 Mr Mathew made (R3.150) what he described as his “last offer”, the relevant part being “I accept the return of $1200 to my account as final payment for all services that were not rendered by way of termination of the agreement. I consider the amount of $505.22 as payment for all services rendered by AAA for the period 28 November 2001 to 9 May 2002”. The applicant sent a further email on 30 May 2002 (R3.151) to Mr Mathew, stating that “We need an assurance from you that there will be no complaint, so please include that in the statement and we will be satisfied”. Mr Mathew responded by repeating his previously offered terms and stating that “failure to agree to these terms would leave me little choice but to pursue this case with the relevant authorities. In that event, I am sure that the damage to your reputation and business would be far more worth your offer. … I would kindly suggest that you indicate immediate acceptance and we can both pursue other more important and pertinent matters “ (R3.152).
47. Later again on 30 May 2002 the applicant emailed Mr Mathew (R3.153) stating: “I also need you to confirm that you will not lodge a complaint. … Do you not see that the whole point about making a payment to you is for you to accept that we have provided a service at a fair price and wish to avoid the time involved with taking this further. So all I can do is make suggestions to satisfy you – I have made many suggestions and if you are still not satisfied I am afraid that I am at a loss at what else to suggest. The reason I wish you to make the statement is that I am concerned there are issues with your case and the new legislation that if not addressed will result in a visa refusal and I want it to be very clear about the fact that this is not our responsibility. You may recall that we have offered to submit your application at no further charge. … I can only assume by you not making the statement about the complaint that you will in fact make a complaint after having received a refund above the amount we are obliged to give you which is not fair practice – something we pride ourselves on. I implore you to include the simple statement, provide your credit card details and we can both continue with our work.”
48. Mr Mathew responded later the same day (R3.154) saying that he was sad that the applicant had “… chosen to force me into unnecessary action” and advising that the applicant had to accept the offer previously made by Mr Mathew by noon on 31 May 2002.
49. On the morning of 31 May 2002 the applicant emailed Mr Mathew (R3.156) noting that the Department had become very strict regarding applications and emphasising that Mr Mathew address all issues with any future application. He urged Mr Mathew to use a reputable migration agent who understands that. He said that if Mr Mathew stated that “… a complaint will not be made we are satisfied – that is all we require. We have acted in your best interests. If you do choose to complain we will happily show what we have done to MARA – it will take time and effort from both of us which I would prefer to avoid”. Mr Mathew responded the same day, making it “absolutely clear” that the applicant had to accept his “unconditional version” and his “non-negotiable stand”. He stated that this was to be his last email message to the applicant (R3.158). On the same day the applicant emailed Mr Mathew saying that “ … I accept this and your word that you will not make a complaint”.(R3.159)
50. On 7 and 14 June 2002 and 27 July 2002 the applicant sent further email messages to Mr Mathew requesting credit card or bank details so that a refund could be made – but received no reply. The last of those emails (R3.162) referred to “… our phone conversation and agreement of 4 weeks ago”. Mr Mathew said in his oral evidence that he could not recall such a telephone conversation or any agreement. In his oral evidence the applicant said that he could not recall the conversation referred to and that he made no record at the time of it. However, the applicant said that he “perceived” that there was some sort of agreement reached and that by 27 July 2002 his position was that he was willing to refund money to Mr Mathew without the latter being required to sign any documentation. The applicant said that he could not recall whether, when he sent the email of 27 July 2002, he had received the letter dated 22 July 2002 from MARA regarding Mr Mathew’s complaint (T8) – but his position by that time was that he was prepared to reimburse Mr Mathew unconditionally. On the evidence before me I am satisfied that there was no telephone conversation, nor any agreement, between the applicant and Mr Mathew in the period of four weeks prior to 27 July 2002 and that the applicant had received the letter of 22 July from the respondent by 27 July.
51. It was also not in dispute that on 8 May 2002 (i.e. the day before the agreement with AAA was terminated) Mr Mathew made contact (by email) with Ms Borshoff at her then place of employment and subsequently appointed her as his migration agent. Ms Borshoff lodged visa applications with the Department in June 2002 and visas were granted to Mr Mathew and his family in May 2003 (Exhibit A4).
Consideration of Alleged Contraventions
52. Before dealing with the specific alleged contraventions by the applicant some general comments about the approach towards the interpretation of the Code are appropriate. Although the decision in Hanna (supra) concerned principally the interpretation of Clause 17 of the Code, the remarks of Tamberlin J are of assistance in understanding the general approach to be taken towards the interpretation of provisions in the Code. At [20 – 23] His Honour said:
“20. When deciding the correct interpretation of a clause such as Clause 17, it is appropriate to bear in mind the severity of the sanctions which can be imposed under s 303 of the Act. These include cancellation of the agent’s registration by removing the name from the Register, and alternatively, suspending the agent’s registration or cautioning the agent. Of course, the action which MARA … may take is a matter of discretion, and the provision clearly contemplates that the steps taken will vary according to the seriousness of non-compliance with the Code of Conduct: see Briginshaw … . However, the exposure to these sanctions under s 303 as a result of failure to comply with the professional standards may be severe and this indicates that caution should be exercised before introducing language which the legislature has not chosen to use: …
21. In addition, where a provision is directed to the prescription of standards of conduct, which, if breached may be visited with severe consequences, the duty should be clearly spelt out. The necessity to add any words or qualification to the language used may well produce uncertainty as to the circumstances in which the clause operates.
22. This approach is encapsulated by Bennion, Statutory Interpretations 3rd Edition 1997 at page 637 as the principle against doubtful ‘penalisation’ which the learned author describes in the following terms:
‘It is a principle of legal policy that a person should not be penalised except under clear law (in this Code called the Principle against Doubtful Penalisation). The court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle. It should therefore strive to avoid adopting a construction which penalises a person where the legislator’s intention to do so was doubtful, or penalises him or her in a way which was not made clear’.
23. Although the present Code of Conduct is in the nature of delegated legislation, the above principles, in my view are apposite. Bennion points out at the foot of that page that the expression ‘penal’ need not be given a strictly criminal meaning, but that a law which inflicts severe detriment, hardship or deprivation of any kind is in essence penal. He also later notes that the principle against doubtful penalisation applies where there is statutory interference with economic interest or with status or reputation: see page 652, 657. In the present case, the exposure of an agent, as a consequence of breach, may affect him significantly in the practice of his profession, the gaining of his livelihood and in his reputation”.
Clause 2.1
53. Clause 2.1 of the Code is in the following terms: “A 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, fairly and without any conflict of interest that would affect the legitimate interests of the client”.
54. In its reasons for the original decision the respondent dealt with Clauses 2.1, 2.3, 2.4 and 2.8(c) of the Code together and found that the applicant “… failed to manage [Mr Mathew’s] case professionally and failed to communicate in a timely manner with [Mr Mathew]”. Specifically, the respondent found that the applicant had not responded to requests for information promptly and satisfactorily, did not prepare an assessment of Mr Mathew’s possible points score at various times, and did not do sufficient work to ensure that applications could be lodged in a timely manner once the ACS recognition had been received (T1 pp 10 -12).
55. In its original Statement of Facts and Contentions the respondent alleged only that the applicant had failed to act in accordance with the legitimate interests of his client and failed to deal with the client competently, diligently and fairly. However, in the respondent’s post hearing submission it was alleged that the applicant had also failed to “… act in accordance with the law” as required by Clause 2.1(a).
56. The basis of the allegation that the applicant had not acted in accordance with the law is that the applicant “failed to act in accordance with the law by seeking from Mr Mathew an agreement that he will take no action or make any complaint against representatives of AAA …”. This was not acting in accordance with the law because the Code granted a person such as Mr Mathew the right to make a complaint to the respondent and it was improper of the applicant to seek such an undertaking from Mr Mathew – because as a matter of public policy the right to make a complaint is one that should be protected and not able to be bargained away. It was contended for the respondent that the right to make a complaint by a client of a migration agent is an important consumer protection measure and reflects a commitment by the government and the respondent to ensure that migration agents operate ethically, professionally and competently when assisting people to come to or stay in Australia. The right to complain is given under the Code as a matter of public policy and not merely as a private benefit and hence any provision in an agreement foregoing that right would be invalid and unenforceable. In seeking to conclude such an agreement the applicant did not act in accordance with the law.
57. In relation to whether the applicant had failed to act in Mr Mathew’s legitimate interests the respondent contended that, because clause 6.3 of the agreement between the applicant and Mr Mathew obliged the applicant to refund any excess fees due to Mr Mathew within 7 days of rendering a detailed account, any attempt to withhold the legitimate refund whilst attempting to negotiate additional terms regarding complaints or other matters was a failure to act in accordance with Mr Mathew’s legitimate interest. In addition, it would have been in Mr Mathew’s legitimate interests to be able to seek the respondent’s assistance had the dispute between Mr Mathew and the applicant continued, and it was not in Mr Mathew’s legitimate interests to become bound by an agreement by which his rights to complain to the respondent were lost.
58. The applicant’s obligation to act in accordance with the law and in the legitimate interests of his client included, at least, obligations to act in accordance with any written law and the terms of the contractual arrangements between himself and his client. Although I will refer below to my assessment of the full relationship between the applicant and Mr Mathew and the “negotiations” between the two of them regarding the terms on which the applicant’s services were to be terminated, I am satisfied in the context of clause 2.1(a) that the applicant had an obligation to act in accordance with the agreement that existed between himself and Mr Mathew. That included an obligation to provide a detailed account that would establish the amount of professional charges and disbursements for which the client was responsible and thereafter to refund within 7 days any excess that may be found to be due to the client. In addition, I accept the contention of the respondent that the existence of a right to complain is an important aspect of the respondent’s regulatory regime. Clients of migration agents will often be located overseas and therefore less able to have access to professional advice in this country or to take steps to enforce the terms of an agreement. In addition, the respondent has an interest in being made aware of alleged departures from acceptable standards by migration agents so that it may exercise the powers available to it to enquire into such allegations and to take appropriate action where that is considered necessary. In this context it is relevant to note that s 316(c) of the Act makes it one of the functions of the respondent to investigate complaints about the provision of services by migration agents and that r 9 of the Migration Agents Regulations 1998 (“the Regulations”) provides that, for the purposes of s 316, complaints can be made to the respondent by a wide range of persons and organisations – including parliamentarians, tribunals or courts, and various other persons with official status, apart from the client of the agent.
59. In the circumstances I accept the respondent’s contention that an agreement of the kind sought by the applicant from Mr Mathew was one that, as a matter of public policy, would not be enforced and the applicant’s attempt to negotiate such an agreement, and his failure to refund the amount that was by the applicant’s own calculations due to Mr Mathew within the time specified in the agreement, a failure by the applicant to act in accordance with the law and in the legitimate interests of his client. In addition, it would also have been in Mr Mathew’s legitimate interests that his case be handled competently and diligently – and for the reasons set out below there are aspects of how the applicant managed Mr Mathew’s affairs that fell short of that requirement. Accordingly, I am satisfied that the applicant contravened clause 2.1(a) of the Code for these reasons.
60. In relation to clause 2.1(b) the respondent alleged that the various aspects of the applicant’s handling of Mr Mathew’s affairs demonstrated a failure to act competently, diligently, fairly and without a conflict of interest that would affect the legitimate interests of the client.
61. In relation to the obligation to act competently, the respondent ultimately relied on alleged failures to respond to requests for advice made by Mr Mathew in emails sent on 4 April, 15 April and 29 April 2002 (see paras. 24 – 30 above) and also because of alleged failures to properly assess Mr Mathew’s likely point score and failure to identify the importance of his 35th birthday, and to identify that Mr Mathew’s occupant (as an information technology manager) was an “occupation in demand” for the purposes of the relevant regulations.
62. In relation to the obligation to act diligently, not surprisingly there is some overlap between this and the obligation to act competently. The respondent contends that the applicant was not diligent in dealing with Mr Mathew because he did not draw the age qualification criterion (and hence the need to lodge an application before Mr Mathew’s 35th birthday) to Mr Mathew’s attention; did not forward the skills assessment application to ACS until 1 February 2002 rather than in early January; failed to inform Mr Mathew of receipt of the favourable assessment from ACS for some weeks; and did not respond to a number of requests from Mr Mathew for updates on progress and advice about future steps.
63. In relation to the delay in posting the ACS application form, as I have noted above there has been no convincing explanation as to why the documents were not posted to ACS at about the end of December 2001 when Ms Borshoff prepared the letter dated 31 December 2001. It is apparent that on 2 January 2002 Ms Edwards incorrectly believed that not all the relevant documents were at hand but it is apparent that by 8 January 2002 Ms Edwards was in a position to post the assessment. It is apparent that Ms Borshoff remained at AAA until at least 3 January 2002 and perhaps longer (see Exhibit R4 paras 7 and 8 and a letter dated 18 April 2002 from Ms Borshoff to the respondent which forms part of Exhibit A3). In any event, it is apparent from Exhibit R4 that Ms Borshoff was to be principally responsible for the processing of visa applications in AAA (Exhibit R4 paras 4 and 5) and any obligation that was on the applicant to ensure the ACS application form was submitted in a timely fashion was shared at least equally by Ms Borshoff up until the time there was a definite handover of files. At that handover there was, in my opinion, an equal obligation on the applicant and Ms Borshoff to see that there was a clear understanding about what steps remained to be taken on each file for which Ms Borshoff passed responsibility to the applicant when they went their separate ways.
64. I am satisfied that Ms Borshoff played no significant part in AAA operations affairs after 7January and certainly by 28 January 2002 she had ceased to have any day-to-day involvement in AAA. On that day the applicant informed Mr Mathew that no reply had been received from ACS but did not become aware that the documents had not been sent to ACS until about 30 January 2002. The statement made on 28 January 2002 was one that the applicant was in no position to make if he had examined Mr Mathew’s file – in which case he would have established that the ACS application had at that stage never been submitted. In the circumstances I am satisfied that the applicant did not inform himself adequately when Ms Borshoff ceased to be responsible for Mr Mathew’s file as to what steps were to be taken and that, consequently, the failure to ensure the despatch of the ACS documents between about 8 January 2002 and 1 February 2002 demonstrated a lack of diligence on the part of the applicant.
65. In relation to the delay in informing Mr Mathew of the result of the ACS assessment, the issue turns essentially on when AAA received the letter dated 19 March 2002 from ACS. In his oral evidence the applicant said that the letter was received about 10 days after the 19 March 2002, which would have put it at approximately Easter time in 2002 (Good Friday was 29 March 2002), although he could point to nothing that demonstrated that. The applicant also said that he was overseas for about 10 days from 14 March. T10 p 285 is the index from AAA’s file for Mr Mathew and contains no entry after 1 February 2002 (when the ACS application was despatched) until 20 April 2002 (when an entry was made by the applicant to the effect that the ACS reply had been received and that the applicant had emailed Mr Mathew). As noted at para 24 above the applicant had, on 28 March 2002 asked Ms Adams to establish the position regarding the ACS application as a result of receiving Mr Mathew’s email of 27 March 2002. There is no documentary or oral evidence to indicate that Ms Adams did establish the position or that the applicant followed up his referral of the question to Ms Adams. What is clear is that nobody at AAA responded to Mr Mathew’s request for an update until 20 April 2002 – approximately 4 weeks after the ACS letter may have been received by AAA (if it was received a few days after 19 March 2002) or approximately 3 weeks after the letter was received on the applicant’s evidence. Such a delay demonstrates a lack of competence or diligence on the part of the applicant.
66. In relation to the alleged failure to respond to the many emails sent by Mr Mathew from about the middle of March 2002, I have reached a similar conclusion. For reasons that were not acknowledged at the hearing, nobody at AAA responded in a timely way, or in some cases at all, to Mr Mathew’s requests. There is no doubt Mr Mathew demonstrated a degree of persistence and questioning of what AAA was doing on his behalf that may or may not have been justified – but, regardless of that, in my opinion there was no good reason why his requests should not have been answered and that failure to answer contributed materially to his increasing concerns about the handling of his case.
67. In relation to the allegations that the applicant did not pay sufficient regard to Mr Mathew’s approaching 35th birthday or to his potential points entitlement, I am satisfied on the evidence that the applicant did prepare an informal assessment of Mr Mathew’s possible points score, and those of his wife if it turned out that she needed to be the principal applicant. I accept the applicant’s evidence that it is not wise to rely too heavily on a preliminary assessment of points based on information given by a prospective client at the outset of a relationship and that it is important to wait until all the needed information and verification is at hand before forming a definite opinion about a likely points score. I am satisfied that the applicant did conduct a preliminary assessment of Mr Mathew and formed the view that it was likely that he would meet the required number of points even after his 35th birthday. However, in my opinion, it would have been highly desirable for the applicant to say to Mr Mathew in no uncertain terms that his possible points score would be reduced by 5 on his 35th birthday so that Mr Mathew could have judged how quickly he needed to lodge his application. As it turned out, if the applicant had explicitly informed Mr Mathew of the 35th birthday impact and advised Mr Mathew as soon as the ACS clearance was received – so that Mr Mathew could have provided all of the information needed for the application to the Department to be prepared immediately upon receipt of the ACS clearance – it would have been possible for the application to be submitted prior to the 35th birthday. As noted at para 26 above, by 20 April 2002 Mr Mathew was aware of the age issue and at that time wanted the application lodged by the end of May. I consider that the applicant failed to advise Mr Mathew explicitly of the significance of the birthday at a sufficiently early time to enable the matter to proceed with that birthday in mind. That failure by the applicant constituted a failure of competency and diligence in my opinion.
68. I do not accept the respondent’s contention that the applicant failed to identify that Mr Mathew’s occupation was one of those listed as being in demand. Although there may not have been anything on the applicant’s files to that effect I am satisfied that the applicant was at all times aware of Mr Mathew’s occupation and indeed, right from the start, it was identified that Mr Mathew needed ACS assessment for his application to proceed.
69. In relation to the applicant’s obligation to act fairly and to act without a conflict of interest that would affect the legitimate interests of the client, the respondent relied on the arrangements that the applicant tried to agree with Mr Mathew concerning the refund of money – in particular, the undertaking not to make a complaint. The Shorter Oxford English Dictionary relevantly defines the adverb “fairly” as meaning ‘by proper means, legitimately, impartially, justly”.
70. Although I am satisfied from the sequence of events described above from 9 May 2002 onwards that the applicant did not initially seek to extract an undertaking that no complaint would be made, I remain of the view that the approach adopted by the applicant of not immediately repaying to Mr Mathew the amount due to him but, rather, attempting to negotiate terms that the applicant thought were to his commercial advantage in return for paying Mr Mathew an amount of money greater than that which the applicant thought he was entitled, was not a process that was permissible under the terms of the agreement. It was one that could have had the effect of harming Mr Mathew’s legitimate interests and interfering with the respondent’s ability to regulate the industry. In those circumstances I am not satisfied that the actions of the applicant were legitimate or impartial or proper and I conclude, therefore, that the applicant did not act fairly. I am also satisfied that the applicant acted in a way that put his own interest ahead of those of the client in a way that adversely affected the client’s legitimate interests. For those reasons I am satisfied that the applicant did not act fairly and without a relevant conflict of interest.
71. For all of the above reasons I am satisfied that the applicant contravened clause 2.1(b) of the Code.
Clause 2.4
72. Clause 2.4 provides that: “A migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience”. The respondent relies on the failures of the applicant referred to in the earlier contraventions, particularly the failure to arrange for Mr Mathew’s application to be lodged with the Department prior to his 35th birthday.
73. It is apparent, in my opinion, from the oral evidence in the proceedings and from the email evidence referred to above that Mr Mathew was a very intelligent and well organised man. He sought professional advice from the applicant but he also made his own enquiries regarding migration rules and procedures and was, consequently, well informed about many aspects of the process to obtain migration approval. At the same time, his persistent questioning of the applicant reflects, in my opinion, that he was to a considerable degree concerned to obtain information and advice – or at least reassurance – about the many questions that he had. It is true that Mr Mathew did not return the various AAA forms until the end of April 2002 and that no application could therefore be finalised prior to that time, but in my opinion this is entirely explicable by the obvious point that until the ACS assessment had been received it was not possible to submit an application and it made good sense not to complete the AAA forms until the outcome of the ACS application was known. This was particularly the case given that on several occasions the applicant had indicated to Mr Mathew that if his ACS application was not successful, then it might have been possible for his wife to be the principal applicant.
74. It is also true that Mr Mathew on several occasions referred to personal issues that needed to be resolved and that could affect the timing of the family’s possible migration to Australia. It was reasonable for the applicant to bear those things in mind in making, as he said in his oral evidence, the judgement that one should not pressure a client to proceed with an application. To that extent I would not find fault in the applicant not “chasing” Mr Mathew to have an application prepared and lodged as soon as the ACS clearance was obtained – which may well have been prior to Mr Mathew’s 35th birthday. It remains the case, however, that the applicant did not provide Mr Mathew with answers to the questions that he raised, which would have demonstrated that he had a concern to keep Mr Mathew informed fully of the progress of his matter and that Mr Mathew’s situation was always under review so that it could progress as quickly as possible. On a number of occasions Mr Mathew made it plain to the applicant that he did wish to proceed and, in my opinion, it was encumbent upon the applicant to keep Mr Mathew informed in a way that enabled Mr Mathew to weigh up the various options as they presented themselves and to make judgements about the timing of a migration application. In my opinion, the applicant did not do that to a sufficient degree and to that extent I am satisfied that the applicant did not have due regard to Mr Mathew’s dependence upon the applicant’s knowledge and experience.
Clause 2.8(c)
75. Clause 2.8 relevantly provides that “a migration agent must …(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.” It is in my opinion quite clear that obtaining the ACS assessment was an integral step in the process of lodging visa applications with the Department. For the reasons set out above I am satisfied that the applicant, from approximately the end of January 2002, did not keep Mr Mathew “fully and regularly” informed of the progress of the matter. At times the information that was provided to Mr Mathew was, intentionally or otherwise, ambiguous and capable of misinterpretation by Mr Mathew. Examples include the advice of 28 January 2002 that Ms Borshoff had completed a consultancy contract with AAA and that no answer had been received from ACS - when in fact no application had been made to them.
76. For these reasons I am satisfied that the applicant contravened clause 2.8(c) of the Code.
Clause 2.15
77. This clause provides that: “A migration agent must not intimidate or coerce any person for the benefit of the agent or otherwise. For example, an agent must not engage in any of the following:
(a) undue pressure;
(b) physical threat;
(c) manipulation of cultural or ethnic anxieties;
(d) threats to family members in Australia or overseas;
(e) untruthful claims of department sanctions;
(f)discrimination on the grounds of religion, nationality, race, ethnicity, politics or gender”.
78. The respondent alleges that the applicant breached clause 2.15 by, firstly, requiring the applicant to provide a written statement saying he would not make a complaint to the respondent and, secondly, by making statements to Mr Mathew regarding the engagement of another migration agent that were false and/or misleading or exaggerated concerning relations between migration agents and changes to lodgement requirements for visa applications. The matters relied on by the respondent are set out in some detail in paras 19 – 31 of the respondent’s final outline of submissions.
79. I agree with the applicant’s comment (at para 4.7.1 of the applicant’s submissions of 17 November 2004) that this is the most serious of the charges laid against the applicant. The applicant’s position is that at no time could it be said that Mr Mathew was in fact intimidated or coerced by the applicant, and clause 2.15 should not be interpreted to cover “attempted” intimidation or coercion – but even if it were interpreted in that way the applicant did not attempt to intimidate or coerce Mr Mathew. In support of the contention that Clause 2.15 should not be interpreted so as to include attempted intimidation or coercion, the applicant relies on the comments of Tamberlin J in Hanna (supra) as quoted in para 52 above.
80. The Shorter Oxford English Dictionary defines “coerce” as ‘1. to restrain or constrain by force, law, or authority; force or compel, as to do something. 2. to compel by forcible action; coerce obedience’. The same dictionary defines “intimidate” as “1. to make timid, or inspire with fear; overawe; cow. 2. to force into or deter from some action by inducing fear”.
81. The respondent, in its original decision, found that the applicant “attempted to coerce his client for his benefit through undue pressure in contravention of clause 2.15”. In the respondent’s post hearing submissions an attempt was made to throw light on the meaning of these words by referring to a definition of “pressure” as including harassment and then considering judicial consideration of the word “harassment”.
82. I am satisfied that the actions set out in paras (a) to (f) of clause 2.15 are intended to be examples of what could be considered intimidation or coercion. To that extent I do not accept the applicant’s submissions (para 4.7.8) that the examples do not constitute prohibited behaviour unless actual coercion or actual intimidation occurs.
83. However, in my opinion it is clear from all the evidence before me that at no time was Mr Mathew ever actually intimidated or coerced by the applicant. He was certainly never made timid or inspired with fear or overawed, nor was he forced into or deterred from some action by fear. Equally, he was never restrained or constrained, or forced or compelled to do something or not do something by anything that the applicant did in the exchanges that occurred from 9 May 2002 onwards. That leaves the question to be answered of whether the applicant intended or attempted to influence Mr Mathew in a way that could be said to be undue pressure, and therefore able to be characterised as intimidation or coercion.
84. I am not satisfied that the applicant did ever have that intention or attempt to achieve that. I accept the applicant’s evidence that at continuing education programmes promoted by the respondent that he attended migration agents were encouraged to resolve disputes between themselves and clients in an informal way. Such an approach would be entirely consistent with good complaint handling practices in any organisation. It is important, in my opinion, that the initial communications between the applicant and Mr Mathew after 9 May 2002 did not specify that the applicant wished Mr Mathew to make no complaint. That did not emerge until 28 May 2002 when Mr Mathew said in an email that he would be happy to proceed to the respondent for an arbitration of the case. The form of release sent by the applicant to Mr Mathew on 29 May 2002 did not explicitly refer to Mr Mathew not being able to make a complaint, but did refer to a release that could be “pleaded as an absolute defence” in any court or tribunal.
85. The respondent has referred to the large number of emails that the applicant sent to Mr Mathew over short periods of time and I have no doubt that in some circumstances such exchanges might amount to pressure – undue or otherwise. However, my assessment of the exchanges is that the applicant’s motives, albeit misplaced and somewhat clumsily expressed at times, were at no timed to place Mr Mathew under undue pressure. I am satisfied that at no time did the applicant ever consider or appreciate that there was or might be anything improper about asking Mr Mathew to agree not to make a complaint to the respondent.
86. In the light of the comments made by Tamberlin J in Hanna referred to above, I am left in considerable doubt that it would be appropriate to widen the interpretation of clause 2.15 in a way that extends to an attempt to intimidate or coerce. However, regardless of how that question is determined, on the evidence before me I am satisfied that the applicant did not attempt to intimidate or coerce Mr Mathew insofar as he sought to obtain an agreement that Mr Mathew would not make a complaint.
87. The second aspect of the alleged contravention of clause 2.15 relates to the comments made by the applicant concerning the transfer of responsibility from himself to another migration agent. The four specific matters referred to by the respondent are set out in para 26 of the respondent’s final outline of submissions and it is unnecessary to set them out in full in these reasons. I am satisfied that the relevant statements by the applicant in those emails exaggerated the requirements of Mr Mathew appointing another agent and the transfer of responsibility between agents, but I am not satisfied to the relevant standard that he intended to mislead Mr Mathew or to somehow intimidate or coerce him into changing his mind about terminating AAA’s engagement.
88. Having regard to the above I am not satisfied that the applicant has contravened clause 2.15 of the Code.
Clause 2.23
89. This clause provides that “A migration agent must take all reasonable steps to maintain the reputation and integrity of the migration industry”. The respondent in its Statement of Facts and Contentions relied on the previously asserted contraventions of clauses 2.1, 2.3, 2.4, 2.8, 2.15 and 2.18 of the Code in support of this alleged contravention. Overall, the respondent’s position was that it was not contended that the applicant was incompetent or was not a person of integrity. However, it was asserted that it was reasonable for Mr Mathew to expect the applicant to act in Mr Mathew’s lawful interests at all times and in accordance with migration industry standards. The respondent asserted that the applicant did not meet the required standard because he did not offer a sufficient apology to Mr Mathew for delays in handling his case; he vigorously pursued a legally unenforceable promise from Mr Mathew that he would not make a complaint; and repeatedly refused to refund money without the extraction of a promise that there would be no complaint.
90. In my opinion it can fairly be said that the breakdown in the processing procedures within AAA and the applicant’s failure to respond to Mr Mathew’s request for information and advice in a timely way reflect adversely upon the applicant and his business. At least so far as Mr Mathew was confirmed, they reflect adversely on the migration agent profession and regulation in this country. Even though it might be said that Mr Mathew’s standards were set at a very high level, I see no reason why a person such as Mr Mathew should not be entitled to expect a reasonable degree of service from an agent and, in my opinion, he did not receive that from the applicant. Although I consider that the views expressed by Mr Mathew on 26 May 2002 (see para 36 above) were somewhat exaggerated, they are a reasonable statement of the importance of high standards in the migration advice industry. To that extent it can be said that the applicant did not maintain the reputation and integrity of the migration industry, but what clause 2.23 requires is only that 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, but there is nothing to indicate that its procedures were otherwise not up to an acceptable standard. It is also clear on the evidence that the business and personal relationship between the applicant and Ms Borshoff was coming to an end at the relevant time and that may explain some of the deficiencies that were encountered. In all the circumstances I am not prepared to conclude that the applicant did not take reasonable steps to maintain the reputation of the industry and I am not satisfied that he has contravened clause 2.23 of the Code.
Clause 6.1
91. This clause relevantly provides that: “A migration agent must maintain proper records that can be made available for inspection on request by [the respondent] including files containing:
(a) …
(b) copies of each written communication between
(i) the client and the agent; and
(ii) …
(c) file notes of every substantive or material oral communication between
(i) the client and the agent; and
(ii) the agent and an official of any relevant statutory authority “.
92. The respondent contends that the applicant failed to keep a number of emails sent by Mr Mathew, did not have on the file a copy of the agreement of appointment signed by both parties (although at T pp 441 and 442 there is a copy of the agreement signed by Mr Mathew from the AAA file), records of phone conversations between Mr Mathew and the applicant (in particular, conversations in December 2001 - see para 11.8 of Exhibit A1 and 29 April 2002 - and with Ms Edwards on 8 January 2002). The respondent also says that the applicant’s file was not maintained in chronological order.
93. In relation to the telephone conversation between Mr Mathew and Ms Edwards on 8 January 2002, I am not satisfied that this was a substantive or material conversation, but in any event Ms Edwards confirmed the basic contents of the conversation via email (R3.45).
94. In relation to the telephone conversation that was said to have occurred in December 2001 between the applicant and Mr Mathew, I am not satisfied that it was a substantive or material conversation.
95. However, the conversation between the applicant and Mr Mathew on 29 April 2002 was indeed a material conversation because of Mr Mathew’s concern about cancelling appointments for medical examinations. This conversation obviously left Mr Mathew feeling dissatisfied with his dealings with the applicant and it may well have been the conversation at which the breakdown of the relationship commenced. The failure of the applicant to record the contents of that conversation in a file note constitute a breach of clause 6.1 of the Code.
96. In relation to the complaint that the applicant’s file was not maintained chronologically, I am not satisfied that Clause 6.1 of the Code requires the maintenance of a file in that fashion. However, even if the clause can be interpreted in that way, it is apparent that the copy of the file provided to the respondent by the applicant has been through many hands within the respondent for the purpose of investigating and determining the complaint, and I am not satisfied to the required standard that any such failure by the applicant has been made out.
97. Taken overall, I am satisfied that the applicant has contravened clause 6.1 by virtue of not creating a file note recording the terms of the telephone conversation between himself and Mr Mathew on 29 April 2002.
98. It is also to be observed that in his email to Mr Mathew on 29 May 2002 in relation to the fees chargeable by AAA (R3.142 and R3.143) the applicant referred to telephone calls that were made to “[the Department], ACS, visa processors etc]”. No records of any kind exist in relation to any such phone calls amongst the documentary evidence in these proceedings and I conclude that, if such communications occurred, no records concerning them were kept by the applicant.
Clauses 8.1 and 8.2
99. These clauses provide, respectively, that “a migration agent has a duty to exercise effective control of his or her office for the purpose of giving immigration advice and assistance” and that “a migration agent must properly supervise the work carried out by staff for the agent”.
100. It is convenient to deal with these two clauses together. I am satisfied that until about 7 January 2002 the applicant and Ms Borshoff were jointly responsible for the conduct of the business of AAA. They were both migration agents, they were both directors of the company that ran the business and equal shareholders in that company. They had arrangements between them as to how the work of the office was to be apportioned. However, once Ms Borshoff resigned as a director and ceased to be involved in the business of AAA it became the principal responsibility of the applicant to ensure that he knew what work was on hand, what its present status was, and what steps needed to be taken in the interests of each client. It is apparent that Ms Edwards intended to despatch the ACS form on about 8 January 2002 but this did not occur. The applicant was prepared to advise Mr Mathew on 28 January 2002 that no answer had been received from ACS without, apparently, checking whether the papers had ever been despatched. Similarly, on 28 March 2002 the applicant sought advice about the status of the ACS application from Ms Adams but did not follow up to find out what the answer was to this question. More importantly, and notwithstanding that by March 2002 the applicant must have been aware that there had been considerable delay in despatching the ACS application, the applicant did not ensure that proper arrangements were in place to deal with the response from ACS as soon as it was received (whenever that was). The fact that the applicant was overseas during the second half of March made this need all the more important.
101. In relation to all of the above I am satisfied that the applicant did not exercise effective control of his office and did not properly supervise the work carried out by staff from about 8 January 2002. I am therefore satisfied that the applicant did not comply with clauses 8.1 and 8.2 of the Code.
The Appropriate Penalty
102. Having concluded that the applicant has contravened various clauses of the Code it is necessary to consider what would be an appropriate penalty to impose upon the applicant.
103. I have referred briefly to the terms of s 303 of the Act, which deals with the disciplining of migration agents by the respondent. Since the reviewable decision was made by the respondent a number of relevant sections of the Act have been amended by the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004. Section 303 was not amended in any material way but a new s 304A was inserted as follows:
“304A Conditions for lifting cautions
The Migration Agents Registration Authority may set one or more conditions for the lifting of a caution it gives to a registered migration agent.
Note: Particulars of cautions are shown on the Register: see section 287”
104. Section 305A of the Act was amended to provide as follows:
“305A Making disciplinary details publicly available
(1)If a registered migration agent is given notice of a decision under section 303, then the Migration Agents Registration Authority:
(a)must as soon as possible make available in the prescribed way a statement that sets out the decision and specifies the grounds for the decision; and
(b)may prepare a statement about the decision and make it available to one or more groups of persons, or to one or more persons, in any way the Authority thinks fit.
This subsection applies even if a stay order is made in relation to the decision.
(3)A statement under this section need not set out the findings on material questions of fact and need not refer to the evidence or other material on which those findings were based.
(4)No action or other proceeding for damages lies against a person for publishing in good faith:
(a) a copy of; or
(b) an extract from; or
(c) a summary of;
a statement under this section.
105. A new Section 305B permits the respondent to inform one or more of the clients of a migration agent about the making of a decision under s 303 and about the existence and status of any application by the agent for review of the decision.
106. Section 287 of the Act, which deals with the information that the respondent is to maintain on a register of migration agents (including information concerning any caution given to an agent), was also amended. A new ss 287(5) was inserted and provided relevantly that the respondent must remove from the register “…particulars of any caution given to such an agent (if the caution is no longer in effect) … within the period worked out in accordance with the regulations …” and that the regulations may prescribe different periods in relation to details about cautions.
107. Regulation 7 of the Regulations relevantly provides that for the purposes of the new s 305A(1)(a) the respondent must publish the statement in writing on its web site. Regulation 3X relevantly provides that for the purposes of s 287, where particulars of a caution that has ceased to have effect are recorded on the register, the respondent must remove the details from the register not later than 14 days after the caution has ceased to have effect.
108. The respondent referred to the Explanatory Memorandum circulated in relation to the 2004 amending legislation to explain the effect of the new s 304A of the Act. Item 71 of the Explanatory Memorandum deals with the new s 304A in the following terms:
“37.New Section 304A provides that [the respondent] may set one or more conditions for the lifting of a caution it gives to a registered migration agent. New Section 304A gives similar to existing paragraph 304(1)(b) of the Act, which deals with setting conditions for the lifting of a suspension.
38. For example, the [respondent] may set a condition that the caution is to apply for a certain period of time or that an agent is to complete a particular course before the caution may be lifted.
39.This item also inserts a note at the end of new Section 304A to point out that particulars of caution are shown on the register under section 287”.
109. These new provisions remove any uncertainty that there may have been prior to the amendments concerning the duration of a caution. It is now clear that the respondent, and this Tribunal, can in appropriate circumstances specify a period of time for which a caution is to apply and during which time it will appear on the respondent’s register. Other conditions for the lifting of the caution – such as the requirement that a migration agent complete relevant training courses – can also be included.
110. In the present case the respondent entered particulars of the caution issued to the applicant on its register and made a statement concerning the existence of the caution on its website. That statement remained on the website from April 2003 until 23 January 2004 – when Deputy President Hotop in these proceedings ordered that the operation of the respondent’s decision be stayed pending the outcome of the review proceedings. However, sometime in October 2004 details of the caution issued to the applicant were again publicised on the respondent’s website. It was not in dispute between the parties that the applicant drew this to the respondent’s attention on 23 October 2004 and that 2 days later an officer of the respondent informed the applicant that the posting on the register was an error that was the result of a transfer to the website of a new version of the respondent’s database. The applicant was advised that the information concerning the caution had appeared only for a period of two days – but the applicant is in no position to verify whether that is accurate.
111. It is well established that the exercise of disciplinary powers of the kind conferred on the respondent are for the purpose of protecting the public, even though the effect of such action may be to penalize the person concerned. The applicant’s position was that, even if the Tribunal were to find that various contraventions had occurred, no disciplinary action would be appropriate given the nature of any contraventions and the fact that the caution against the applicant had already been publicised for a period of about 11 months. For the respondent it was contended that a caution was appropriate given the extent and nature of the alleged contraventions and that such a caution should not be lifted until either the expiration of 2 years or the expiration of one year following the completion by the applicant of a short course on conflict resolution to be approved by the respondent. The respondent provided examples of possible courses of that kind.
112. I have concluded that the applicant has contravened a number of clauses of the Code, but not others, including that he has not contravened the clause relating to coercion or intimidation of his client. The respondent has expressly conceded that it is not alleged that the applicant was incompetent in a general sense, or lacking in integrity. A number of the allegations made against him were withdrawn by the respondent or were not made out. Taken overall, my assessment of the circumstances surrounding the contraventions that have occurred is that the applicant found himself in a situation where his business and personal relationship with Ms Borshoff had come to a messy and un-cooperative end and the applicant, for a period of time, failed or was unable to maintain an adequate degree of control over the operations of his office in relation to Mr Mathew’s case. There is no evidence that other clients were similarly affected. I have concluded that the applicant did not attempt to coerce or intimidate his client, but he did fail to manage the client’s affairs diligently and, in some respects, competently. I accept the applicant’s evidence that he has had very few other complaints made against him and that he has played an active part in the affairs of the professional association for migration agents, including being involved in the professional development programme conducted by that association. I do not consider that any training courses would be necessary to improve the applicant’s competence or ability to manage his business. I accept the applicant’s evidence that he has, since the time of the events in question in this case, put in place practice arrangements that should ensure that such a situation would never arise again.
113. In all the circumstances I am satisfied that a caution of the applicant was an appropriate disciplinary action to take by the respondent, but I am also satisfied that the existence of that caution and its publication on the respondent’s website up until the time when the order was stayed in January 2004 was a sufficient duration for the caution - and that no disciplinary purpose would be achieved by continuing the caution beyond that time. This result can be achieved by varying the decision under review by adding a condition that the caution is to be lifted and to cease to have effect on the date of this decision. That will be my decision.
114. One final matter needs to be mentioned, namely, a contention on behalf of the applicant that the respondent has failed to comply with a model litigant policy that forms part of a Legal Services Direction issued by the Commonwealth Attorney-General under s 55ZF of the Judiciary Act 1903. It is unnecessary to set out in any detail the various matters asserted by the applicant’s solicitor to demonstrate what was said to be non-compliance with that policy because I accept the contention made on behalf of the respondent that, by virtue of s 55ZG of the Judiciary Act compliance with such a policy is not enforceable except by, or on the application of, the Attorney-General and that “the issue of non-compliance with a Legal Services Direction may not be raised in any proceeding (whether in a court, tribunal or other body) except by, or on behalf of, the Commonwealth”: s 55ZG(3).
115. Notwithstanding the above, I should record that, although the respondent changed considerably on several occasions the provisions of the Act and Code that the applicant was alleged to have contravened, I am not satisfied that the matter was conducted by the respondent in a way that demonstrates a failure to comply with the policy referred to.
I certify that the 115 preceding paragraphs are a true copy of the reasons for the decision herein of Murray Allen, Member.
Signed: ................(sgd EM Jordan)................
AssociateDate/s of Hearing 29 April 2004, 6 May 2004, 5 July 2004 and 2 September 2004
Date of Decision 11 May 2005
Solicitor for the Applicant Mr J Eastoe
Counsel for the Respondent Mr D Blades
Solicitor for the Respondent Australian Government Solicitor
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