Russell and Migration Agents Registration Authority

[2008] AATA 22

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 22

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1628

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL RUSSELL

Applicant

And MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly

Date10 January 2008

PlaceSydney

Decision The reviewable decision is affirmed

.......................[sgd]...................

Senior Member
Mrs Josephine Kelly

CATCHWORDS

MIGRATION – migration agent – created false positive vetassess assessment – false assessment referred to Migration Agents Registration Authority by Department of Immigration and Citizenship – authority suspended registration for 3 years with conditions – whether person of integrity or otherwise not a fit and proper person to give immigration assistance – whether length of suspension should be reduced - held conduct intentional and  ongoing – reviewable decision affirmed

Migration Act 1958 ss 303, 304, 304A, 309

Migration Agents Regulations 1998 Schedule 2

Allinson v General Council of Medical Registration and Education [1894] 1 QB 750

Davies v Australian Securities Commission (1995) 59 FCR 221

Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12

Shi v Migration Agents Registration Authority (2007) 158 FCR 525

Shi v Migration Agents Registration Authority [2007] HCATrans 601 (5 October 2007)

REASONS FOR DECISION

10 January 2008 Senior Member, Mrs Josephine Kelly     

SUMMARY

1.      Mr Michael Russell has been a practising lawyer since 1999 and a migration agent since 1997.   He seeks the review of the decision made on 20 November 2006 by the Migration Agents Registration Authority (“MARA”) to suspend his registration for three years, subject to conditions, because he had not complied with the applicable Code of Conduct and was not a fit and proper person to provide immigration assistance or a person of integrity at the time of the decision.

2.      The issues in the proceedings were narrow.  They were:

a) Whether Mr Russell is a person of integrity or is otherwise a fit and proper person to give immigration assistance; and

b) Whether the length of suspension should be reduced to allow Mr Russell to resume practice as a Migration Agent.

3.      I have decided to affirm the reviewable decision for the reasons that follow.

THE LEGISLATION

4.      The relevant provisions of the Migration Act 1958 (“the Act”) are ss 303, 304 and 304. They provide: 

303  Disciplining registered migration agents

(1)      The Migration Agents Registration Authority may:

(a)cancel the registration of a registered migration agent by removing his or her name from the register; or

(b)      suspend his or her registration; or

(c)       caution him or her;

if it becomes satisfied that:

(d)      the agent’s application for registration was known by the agent to be false or misleading in a material particular; or

(e)      the agent becomes bankrupt; or

(f)        the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or

(g)      an individual related by employment to the agent is not a person of integrity; or

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

.

304  Period of suspension

(1)      If the Migration Agents Registration Authority suspends the registration of a registered migration agent under section 303, the Migration Agents Registration Authority may:

(a)      set a period of suspension of not more than 5 years; or

(b)      set a condition or conditions for the lifting of the suspension.

(2)      If 2 or more conditions are set under paragraph (1)(b), one of them may be that at least a set period of suspension has ended.

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.

THE REVIEWABLE DECISION

5.      On 20 November 2006 MARA issued a decision suspending Mr Russell’s registration as a migration agent, with conditions. The decision stated:

The Authority has decided to suspend the Agent with conditions in accordance with section 303(1)(b) of the Act as the Agent has not complied with the Code of Conduct applicable from time to time, is not a fit and proper person to provide immigration assistance nor a person of integrity at this time. The suspension will remain in force for a minimum of 3 years and until the Authority is satisfied that the following conditions have been met:

The Agent provides documentation of the following, and sufficient time has been allowed for the Authority to consider the documentation provided:

(1) The successful completion of private tuition in ethics for a minimum of 4 hours conducted by an individual or individuals approved by the Authority who is either an immigration law specialist or a migration agent with a minimum seven years’ experience; and

(2) The successful completion of a minimum of 10 CPD points for every 12 months of the suspension; and

(3) A statutory declaration in Commonwealth form stating that the Agent has not made immigration representations for a fee or given immigration assistance as defined in the Act while suspended.

MR RUSSELL’S CONDUCT

6.      Following is a summary of the Mr Russell's conduct upon which MARA based its decision and which is not in dispute. 

7.      In 1999, Mr Xue Jun Yuan (“the brother”) applied for a Skilled Migration Visa ((Class AJ Migrant) Sub-Class 105 (Skilled Australian Link)) on behalf of his brother, Mr Xue Long Yuan (“Mr Yuan”).  The Department of Immigration and Citizenship (“DIAC”) refused the application in February 2000.  In late 2002 or early 2003 the brother sought assistance from Mr Russell in relation to a further application for a Skilled Migration Visa for Mr Yuan.

8.      A new Skilled Migration Scheme had come into effect.  It was necessary to lodge an assessment from an authorised vocational assessor with any DIAC application.  Therefore Mr Russell lodged an application for a skills assessment with Vocational Education Training and Assessment Services (“Vetassess”) on 14 April 2003, before applying to DIAC.  He conveyed his optimism about the outcome to the brother.

9.      On 31 July 2003 Mr Russell received a letter from Vetassess showing a negative assessment.   The brother demanded an explanation from Mr Russell as to why he had been so confident that the application would be successful.   Mr Russell caused the brother to believe that there was a positive assessment and that this new negative assessment was a new decision.  In fact it was the only decision.

10.     Mr Russell created a fraudulent undated Vetassess positive assessment and gave a copy to the brother in the period September to December 2003.

11.     Mr Russell lodged a further application with Vetassess around 14 July 2004.  A negative result was received on 23 December 2004.

12.     Mr Yuan wrote to the Minister for Immigration on 14 January 2005 complaining about the Vetassess report, stating that the initial assessment report had been approved by Vetassess, but that his lawyer had not received it until after September 2003.

13.     On 4 February 2005 Mr Russell responded to a letter from DIAC wrongly suggesting that he had received the positive assessment when in fact he had not.

THE CASE FOR MR RUSSELL

14.     Mr Russell accepted that he has been guilty of professional misconduct in the sense discussed in Allinson v General Council of Medical Registration and Education [1894] 1 QB 750; that is, his conduct would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency. He also acknowledged that he had breached clauses 2.1 and 2.23 of the Migration Agent's Code of Conduct (Schedule 2 of the Migration Agents Regulations 1998), contrary to s 303 (1) (h) of the Act. 

15.     Clause 2.1 provided, relevantly:

A migration agent must always:

(a) act in accordance with the law… and the legitimate interest of his or her client; and

(b) deal with his or her client competently, diligently and fairly.

16.     Clause 2.23 provided:

A registered agent must take all steps to maintain the reputation and integrity of the migration advice profession.

17.     It was argued on behalf of Mr Russell that MARA had conflated the questions of whether he was guilty of professional misconduct and whether he was a person of integrity and a fit and proper person to be a migration agent.  Further, while it was accepted that Mr Russell's misconduct warranted a disciplinary response, it was argued that, when all the evidence was taken into account, a three year suspension went beyond what is necessary to protect the public.   Mr Russell did not dispute the conditions that had been imposed.

18.     The following matters were put in support of Mr Russell's case.  He explained that he found himself in a situation where he was pressured and intimidated.  He panicked and was not thinking clearly.  He stuck his head in the sand and did not consider seeking the advice of colleagues.  He hoped it would go away.  He explained the period of almost 12 months delay from his receipt of MARA's first letter because he had told his employer who suggested he seek advice which lead to issues arising in relation to the confidentiality of client's records. 

19.     Mr Russell was sure he would never do such a thing again.   He expressed his remorse and stated that he was devastated by his conduct. He has not sought to deny or minimise his conduct.   The dishonest conduct was limited to one case and did not indicate a pattern of behaviour. 

20.     The reports of Dr Hampshire, psychiatrist, outline the pressures that Mr Russell faced and which operated to overcome his normal sense and judgment. In essence, Dr Hampshire found that Mr Russell does not have a psychiatric illness or a vulnerable personality but because of his family history, Mr Russell is vulnerable to bullies.  According to Dr Hampshire, Mr Yuan's brother behaved towards Mr Russell in a bullying fashion demanding to see documentation, and Mr Russell finally forged the document.  The brother did not physically threaten Mr Russell, but was aggressive.

21.     Mr Russell sought to rectify or mitigate the effect of his misconduct by arranging for his client's fees to be refunded and apologising for his conduct.  However, the client had suffered no financial loss and Mr Russell's conduct did not affect the client's migration case.  His only previous failures were not significant and no action was taken by MARA.  He is regarded as hardworking and trustworthy by all his professional supervisors from 1997 (when he was registered as a migration agent) to 2007, and they consider his behaviour out of character.   In particular, Mr Russell's current employer, for whom Mr Russell has worked since November 2001, strongly supported him. 

22.     It was said that Mr Russell has cooperated with MARA.  The period of suspension has been a sufficient deterrent to others and in the circumstances of the medical and character evidence a three year suspension went beyond what was necessary to protect the public.

23.     It was noted also that MARA conceded that Mr Russell did not appear to be motivated by malicious intent or ill will and did not obtain monetary or other benefit.  He also did not intend to submit the false document to the Department.

CONSIDERATION

24.     I accept that Mr Russell has breached the Code of Conduct as agreed by the parties.

25.      Mr Lindsay SC appeared for Mr Russell. I accept his submission that the majority approach in Shi v Migration Agents Registration Authority (2007) 158 FCR 525 does not make evidence that comes into existence after the date of decision inadmissible. Rather it is relevant if it throws light on the circumstances at the time of the decision. In this case, I take into account the evidence of Dr Hampshire and the various referees to the extent that "it bears on the merits of the decision as at the time that it was required to be made" (Shi at 532, per Nicholson J)).  I did not accept Mr Lindsay's submission that I should follow the dissenting decision of Justice Downes in Shi.  Although the High Court has granted special leave to appeal,[1] I am bound by the majority decision in the Federal Court. 

[1] Shi v Migration Agents Registration Authority [2007] HCATrans 601 (5 October 2007).

26.     It is unnecessary for me to deal with the question of whether MARA conflated the issue to be addressed pursuant to s 303 (f) and professional misconduct at common law.   I am hearing the case afresh.  I am concerned with  the provisions  of the statute.   

27.     In my opinion, taking into account all of the evidence, I am satisfied that, as at the date of MARA's decision, Mr Russell  was not a person of integrity or was otherwise not a fit and proper person to give immigration assistance.  In coming to that conclusion, I have considered  the discussion of "fit and proper person" in a professional context set out in Davies v Australian Securities Commission (1995) 59 FCR 221, and the discussion of "integrity" in Re Peng and Department of Immigration and Multicultural Affairs [1998] AATA 12.

28.     Mr Russell deliberately altered details on a Vetassess document belonging to another of his clients, but his conduct was not confined to one act of creating a false document.  Rather Mr Russell persisted with an intentional course of conduct maintaining that there had been a positive assessment, to Mr Yuan, his brother, and finally to DIAC. It began when Mr Russell first advised the brother that there had been a positive assessment in about July 2003 and continued until Mr Russell's letter to the Department on 4 February 2005.

29.     The Department complained to MARA in a letter dated 26 August 2005  alleging that Mr Russell was involved in the creation of a false Vetassess certificate for Mr Yuan using the assessment of a former client.  On 17 October 2005 MARA collected Mr Russell's files relating to Mr Yuan and to the former client.   Mr Russell was requested to comment on the complaint in a letter dated 27 October 2005.  On 7 November 2005 Vetassess advised MARA that Mr Yuan had never received a positive skills assessment.  

30.     On 29 November 2005 Mr Russell wrote to MARA claiming legal professional privilege and requesting that the material in the clients' files not be used until he had obtained the clients' consent.  He requested an extension of time to respond to the letter until 15 December 2005.    After further delays, Mr Russell responded on 27 February 2006.    In the admissions made he did not state that he had advised the Department on 4 February 2005 that the positive skills assessment had been made.

31.     On 28 March 2006 MARA issued a notice under s 309(2) of the Act advising that disciplinary action was being considered and asking for Mr Russell’s comment by 3 May 2006.  Mr Russell requested, and was granted, several extensions because he was waiting for DIAC to respond to his freedom of information request for his records as a migration agent.  On 20 and 25 October 2006, Mr Russell sent responses.  They included a copy of his record as a migration agent to demonstrate that he had had no other complaints of significance.  He included several references and a request for a further extension to respond fully, and to obtain a psychiatrist's report.

32.     While the explanation of vulnerability to bullying might apply to Mr Russell's conduct in relation to Mr Yuan and his brother, I do not find it a compelling explanation for the letter written to the Department in February 2005.  Further, that Mr Russell was still seeking a reference, had only recently sought psychiatric advice, and wished a further extension to respond fully when he wrote his letter dated  25 October 2006 in response to the s 309 notice after several extensions were sought for other reasons, shows a failure even at that time to appreciate the seriousness of his conduct and the need to address it.      

33.     I take into account the references before me, and the evidence of his current employer to the extent that they are relevant to the circumstances at the date of the reviewable decision.  I am not persuaded that each of the referees appreciated the totality of Mr Russell's conduct, or if they did, they clearly do not  consider it to be as serious as I do.  

IS THE THREE YEAR SUSPENSION APPROPRIATE?

34.     I appreciate that a three year suspension will have a serious effect on Mr Russell's professional life and I have taken into account all the other matters raised to support a shorter suspension.  However, in my opinion, the seriousness of Mr Russell's conduct warrants a three year suspension.  The conditions imposed have not been challenged and I think they are appropriate.

DECISION 

35.     The reviewable decision is affirmed.

I certify that the preceding 35 paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly.

Signed: Steven Mulipola

Associate

Date of hearing:                  5 October 2007

Date of decision:                 10 January 2008

Counsel for Applicant:       Mr GC Lindsay SC

Solicitor for Applicant:        Horowitcz & Bilinsky

Solicitor for Respondent:    DLA Phillips Fox