SALEEM TEJANI and MIGRATION AGENTS REGISTRATION AUTHORITY
[2009] AATA 240
•9 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 240
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3948
GENERAL ADMINISTRATIVE DIVISION ) Re SALEEM TEJANI Applicant
And
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date9 April 2009
PlaceSydney
Decision The Tribunal affirms the decision under review.
……[sgd]……………………………………
Ms G Ettinger
Senior Member
catchwords
Migration agent – suspension of registration with Conditions - Applicant failed to comply with designated clauses of the relevant Code of Conduct for migration agents – certain breaches admitted – whether such failure is sufficient to warrant suspension of registration with Conditions – knowledge of immigration procedures deficient – issues of credit – Applicant is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance – decision under review affirmed.
Migration Act 1958 – ss 4, 303, 314
Migration Agents Regulations1998 – Schedule 2 Code of Conduct
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Re Narayanan and Migration Agents’ Registration Authority (2006) 43 AAR 5
Briginshaw v Briginshaw (1938) 60 CLR 336
Re Peng and Department of Immigration and Multicultural Affairs [1998] (AATA 12543, 19 January 1998)
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Lilienthal and Migration Agents Registration Authority (2001) 66 ALD 249
Allinson v General Council of Medical Education and Registration [19894] 1 QB 750
Hughes and Vale Pty Ltd v The State of New South Wales [No.2] (1955) 93 CLR 127
Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558
Re Hakaoro and Minister for Immigration and Multicultural Affairs (1998) 26 AAR 534
Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321
REASONS FOR DECISION
9 April 2009 Ms G Ettinger, Senior Member 1. Mr Saleem Tejani was born in India in 1975. He qualified in Australia as a legal practitioner, holds a restricted practising certificate, and is in sole practice. He was first registered as a migration agent in April 2006, and practises almost exclusively in that jurisdiction.
2. Mr Arvind Suri who was completing a Masters of Engineering Management in Australia in 2006, was referred to Mr Tejani in 2006 because he wanted to obtain a Skilled – Independent Overseas Student (Class DD Subclass 880) visa with a view to obtaining permanent residence in Australia. Mr Tejani claims he took Mr Suri on as a pro bono client under his policy of “No Cost for Needy People”, and gave Mr Suri certain immigration advice. Mr Suri returned to India and married, and was then living in Australia with his wife.
3. In 2007, Mr Suri complained to the Migration Agents Registration Authority (MARA) about Mr Tejani. He complained that the immigration advice he was given by Mr Tejani was incorrect, and that applications for visas had been handled incorrectly, further that he had suffered financial loss, and problems in his marriage as a result. As a result of MARA’s investigation, MARA found on 13 August 2008, that Mr Tejani had not complied with the Code of Conduct for migration agents applicable from time to time, and that he was not a person of integrity or a fit and proper person to provide immigration assistance. MARA suspended Mr Tejani’s registration for 24 months, and imposed Conditions.
4. I found that the suspension of registration with Conditions should be continued for the period MARA specified, and affirmed the decision under review. My reasons follow.
ISSUES FOR DETERMINATION
5. The issues for determination before me were the appeal by Mr Tejani against:
·The decision of MARA to suspend his registration as a migration agent for 24 months, and impose Conditions; and
·MARA’s findings that Mr Tejani is not a person of integrity, or a fit and proper person to give immigration assistance.
6. In making the correct or preferable decision regarding whether Mr Tejani is a person of integrity or a fit and proper person to provide immigration assistance, and whether the decision under review should be affirmed, varied or set aside, I had to decide:
·Whether the Applicant failed to comply with designated clauses of the relevant Code of Conduct for migration agents made pursuant to section 314(1) of the Migration Act 1958, (the Act), prescribed by the Migration Agents Regulations1998, as they applied from time to time;
·If the Applicant did so fail, (noting that certain breaches, a list of which follows, were admitted), whether the Applicant is not a person of integrity, and is otherwise not a fit and proper person to give immigration assistance; and
·If so, whether the correct or preferable decision is that the Applicant’s registration as a migration agent be suspended with Conditions for a certain period, or whether another decision would be the correct or preferable one, either setting aside or varying MARA’s decision.
7. The parties produced a list of breaches of the Code of Conduct which Mr Tejani admitted, others which were in dispute, and other documentation. I am indebted to Mr N Poynder who appeared for Mr Tejani, and Mr L Leerdam who represented the Respondent, for their efforts in producing a joint chronology.
THE LEGISLATIVE CONTEXT
8. The object of the Migration Act 1958 is stated in section 4 as follows:
“(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens.
(2) To advance its object, this Act provides for visas permitting non‑citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non‑citizens to so enter or remain.
(3) To advance its object, this Act requires persons, whether citizens or non‑citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non‑citizens so entering.
(4) To advance its object, this Act provides for the removal or deportation from Australia of non‑citizens whose presence in Australia is not permitted by this Act.”
9. The Codes of Conduct which apply from time to time are made pursuant to section 314 of the Act.
“314 Code of Conduct for migration agents
(1)The regulations may prescribe a Code of Conduct for migration agents.
(2)A registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.”
10. The aims and object of the Code are as follows:
“1.10 The aims of the Code are:
(a)to establish a proper standard for the conduct of a registered migration agent;
(b)to set out the minimum attributes and abilities that a- person must demonstrate to perform as a registered migration agent under the Code, including:
(i) being of good character;
(ii)knowing the provisions of the Migration Act and Migration Regulations, and other legislation relating to migration procedure, in sufficient depth to offer sound and comprehensive advice to a client, including advice on completing and lodging application forms;
(iii)completing continuing professional development as required by the Migration Agents Regulations 1998;
(iv) being able to perform diligently and honestly;
(v) being able and willing to deal fairly with clients;
(vi)having enough knowledge of business procedure to conduct business as a registered migration agent, including record keeping and file management;
(vii)properly managing and maintaining client records;
(c)to set out the duties of a registered migration agent to a client, an employee of the agent, and the Commonwealth and its agencies;
(d)to set out requirements for relations between registered migration agents;
(e)to establish procedures for setting and charging fees by registered migration agents;
(f)to establish a standard for a prudent system of office administration;
(g)to require a registered migration agent to be accountable to the client;
(h)to help resolve disputes between a registered migration agent and a client.”
ONUS & STANDARD OF PROOF
11. The parties made submissions regarding the onus of proof and standard of proof in these proceedings, being disciplinary proceedings.
12. Section 303 of the Migration Act 1958 deals with the disciplinary action in relation to migration agents. As relevant the section follows:
“(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:
…
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
…
(h) the agent has not complied with the Code of Conduct prescribed under section 314.”
13. I am mindful that the hearing before me is a hearing de novo, and that whilst I may, for example, in my Reasons for Decision refer to the decision of the Consumer, Trader and Tenancy Tribunal (CTTT) which is in the materials before me, and concerns the parties before me, I am not bound by that decision, neither am I reviewing it.
14. I have noted Mr Poynder’s views regarding findings made by the Respondent, such as the date of the first meeting between Mr Tejani and Mr Suri, or whether Mr Suri paid the Applicant for his services. I am satisfied that I am not bound by findings made by the Respondent and published in its Reasons for Decision, and can, in coming to the correct or preferable decision pursuant to the Administrative Appeals Tribunal Act 1975, and Shi v Migration Agents Registration Authority (2008) 235 CLR 286, take into account fresh evidence which is available to me, and inform myself on any matter in such manner as I consider appropriate.
15. I am mindful that Senior Member Penglis in Re Narayanan and Migration Agents’ Registration Authority (2006) 43 AAR 5 stated back in 2006, that:
“ … when reviewing the respondent’s decision to bar the applicant, the Tribunal finds that the only limitation upon the Tribunal is that it may not take into account anything beyond the ‘subject matter’ of a complaint (of a nature referred to in section 311A of the Act.
This conclusion is consistent with previous decisions of the this Tribunal; Rozsy v Migration Agents Registration Authority (W2003/188; Griffiths v Migration Agents Registration Authority [2001] AATA 240 and Hannah v Migration Agents Registration Authority [2000] AATA 821….”
16. I agree with Senior Member Penglis’ view, and am satisfied that I can take into account all the issues surrounding Mr Suri’s Complaint, and issues such as payment for services, provided they are limited to the subject matter of the Complaint.
17. I am also mindful that pursuant to Shi, I am required to review any breaches of the Code of Conduct referable to Mr Suri’s Complaint to the time of the reviewable decision on 13 August 2008, whilst any issues of character, and whether or not Mr Tejani is not a person of integrity or a fit and proper person to give immigration assistance, must be decided taking into account events up to the date of my decision. Shi [146]:
“[146]… That part of the decision which comprises the finding, that the ground in para (h) had been made out, was referable to conduct which had occurred to a point in time. That is the nature of the finding required by the provision. It follows that the tribunal was restricted to a consideration of events to that point and not those occurring later, in determining for itself whether there had been non-compliance with the Code. …”
18. The standard of proof in this matter, is that decided in Briginshaw v Briginshaw (1938) 60 CLR 336. Accordingly I am obliged to be “reasonably satisfied” that any allegation against Mr Tejani is made out before I can find against him. In that regard the Respondent has a duty to put relevant material before the Tribunal. The following passage from the judgment of Dixon J in Briginshaw (supra) is authority for the correct approach to be adopted.
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.
…
Except upon criminal issues to proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.”
THE DECISION OF MARA TO SUSPEND MR TEJANI’S REGISTRATION
19. Mr Tejani came before me appealing the decision of MARA made on 13 August 2008 to suspend his registration for 24 months with Conditions, pursuant to section 303(1)(b) of the Act. He was a registered migration agent at the time, and has been required to comply with the Act and the Code of Conduct for migration agents since he was registered in April 2006. I have reproduced MARA’s decision and the Conditions it imposed below.
“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 and is not a person of integrity or a fit and proper person to provide immigration assistance. The suspension will remain in force until for 24 months and until the Authority is satisfied that the following conditions have been met:
The Agent provides documentation that indicates that he has met the following conditions, and sufficient time has been allowed for the Authority to consider the documentation provided:
1.the successful completion of private tuition in file management 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 private tuition in ethics for a minimum of 6 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
3. the successful completion of private tuition in Skilled visas 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 of seven years’ experience;
AND
4.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 whilst suspended;
AND
5.evidence that the Agent has completed a total of 10 Continuing Professional Development Points for every twelve months of the suspension.”
20. The breaches MARA found, and conclusions at which it arrived, arose out of a complaint made by Mr Arvind Suri to MARA on 11 September 2007. It is not in dispute that Mr Suri was introduced to Mr Tejani by Mr J Duggal in 2006. Mr Suri sought advice from Mr Tejani, and engaged him to assist with his application to obtain a Skilled – Independent Overseas Student (Class DD Subclass 880) visa with a view to obtaining permanent residence in Australia. At the time he was also in the process of seeking to marry, and was interested in a visa for his future wife.
21. Taking into account the clauses Mr Tejani acknowledged he had breached, I had to decide whether he failed to comply with the clauses of the relevant Code of Conduct for migration agents which MARA found he had breached, and if applicable, any further clauses related to Mr Suri’s Complaint. I also had to decide whether Mr Tejani is not a person of integrity or is otherwise not a fit and proper person to provide immigration assistance.
22. I noted that Mr Tejani acknowledged he had breached clauses 2.8, 3.2A(b), 5.2 and 6.1 of the Code of Conduct, but argued that the breaches were relatively minor, and that they were administrative, easily rectified and related to file management.
(i) Clause 2.8, relating to confirmation of client’s instructions in writing.
(ii)Clause 3.2A(b), relating to making a record of having provided a client with a copy of Information on the Regulation of the Migration Advice Profession.
(iii) Clause 5.2, relating to written confirmation of terms of services.
(iv) Clause 6.1, relating to maintenance of file records.
23. Mr Tejani denies that he breached the following clauses of the Code which MARA found he had breached, and which led to the suspension of his registration with conditions.
(i) Clause 2.1, relating to the manner of dealing with clients.
(ii) Clause 2.3, relating to knowledge of the migration legislation and procedures
(iii) Clause 2.3A, relating to financial loss to a client.
(iv)Clause 2.4, relating to client’s dependence on the agent’s knowledge and experience.
(v) Clause 2.9A, relating to misleading or deceiving MARA.
(vi)Clause 2.23, relating to maintaining the reputation and integrity of the migration advice profession
(vii) Clause 3.2A(a), relating to the keeping of a record of having provided an IRMAP
In coming to a decision, I have dealt with further breaches of the Code of Conduct being Clauses in Part 7 of the Code of Conduct in relation to financial duties.
Language Issue
24. Under the heading “DISCUSSION OF THE EVIDENCE” at paragraphs 17 – 20 of Mr Poynder’s written submissions, which were also given orally at the hearing, Mr Poynder submitted that English is neither the Complainant’s nor the Respondent’s first language. That is undisputed. He led into the “credit argument” concerning Mr Tejani with submissions regarding what the Complainant and Respondent may or may not have understood or replied in cross-examination.
25. I have noted Mr Poynder’s submissions on language as well as all the evidence and documentation which I had to take into account in coming to a decision. I am satisfied that I have taken into account any nuances necessary in order to make the correct or preferable decision.
WHETHER MR TEJANI FAILED TO COMPLY WITH DESIGNATED CLAUSES OF THE CODE OF CONDUCT
The First and/or Second Meetings
26. Mr Tejani’s evidence and that of Mr Duggal was that the first meeting between Mr Tejani and Mr Suri was in September 2006, and not in July 2006 as claimed by Mr Suri. Mr Tejani’s evidence was that the three men met at a food court near Town Hall Station on 20 September 2006. Mr Duggal gave oral evidence by telephone from Port Hedland. His written unsigned statement dated July 2008 was before me at T43, and his further statements were Exhibits A4 and A5.
27. Mr Duggal corroborated that he introduced Mr Suri to Mr Tejani. He stated that he knew Mr Suri was five bonus points short for the visa. He said that he and Mr Suri had only met once with Mr Tejani, at about five pm for 15 - 20 minutes in September 2006, but not at the Three Wise Monkeys Pub (where he, (Duggal) had formerly worked). He said that no money was paid at that meeting. Mr Duggal also expressed satisfaction in regard to the immigration work Mr Tejani had done in obtaining a visa for him.
28. Mr Suri agreed that he was first introduced to Mr Tejani by his friend Mr Duggal, but insisted that it had been on 17 July 2006 at the Three Wise Monkeys Pub in Sydney. He agreed that he wanted to seek out Mr Tejani for immigration assistance, as he wanted to lodge an application for a subclass 880 visa and obtain permanent residence in Australia.
29. Mr Suri said that the second meeting which took place at Mr Tejani’s office, was on 21 January 2007 with Priya, his wife, two days after she arrived in Australia. Mr Tejani’s evidence, however, was that he was overseas from 19 December 2006 to 2 February 2007, and that he could not have met with Mr Suri and Priya on 21 January 2007. He indicated that the so-called second meeting to which Mr Suri referred, took place between 17 and 23 February 2007.
30. Mindful of the evidence given regarding the date of the first meeting between Mr Tejani and Mr Suri, and having noted the email correspondence dated 28 September 2006, on pages 168 & 169 of the T-Documents, I am satisfied that it is more likely than not, that the first meeting between Mr Suri and Mr Tejani took place on or about 20 September 2006. I have taken into account Mr Suri’s email dated 28 September 2006, which was as follows:
“Hello Sam. I am the guy who met you in the food court last wednessday (sic) with jaspreet and was enquiring about Visa 880 with spouse skills … plz also confirm me that is it mendatory (sic) that my spouse will have clear ielts for her skills assessment, or she can send her documents to us and we will process it further…Also I read about the fience (sic) visa on internet, it’s clearly mentioned that I should be pr for that. Now plz tell me how it gone work… (sic)”.
31. I preferred Mr Tejani’s evidence regarding the dates of the first two meetings, and accept that if he was overseas, the second meeting with Mr Suri, the date of which is not material to the matters being reviewed, is not likely to have taken place on 21 January 2007.
32. Mr Poynder’s submissions regarding research Mr Suri did on the internet about immigration which he made in relation to several of the issues raised, were to the effect that because the Complainant undertook such research, he was not relying on Mr Tejani’s immigration advice. I am satisfied to the requisite standard from the information in the emails before me, including the one at page 169 of the T-Documents, part of which is quoted in the paragraph above, that Mr Suri conducted research on the internet in regard to immigration during the time he was consulting Mr Tejani. However, that does not satisfy me that Mr Suri did not consult Mr Tejani and rely on his advice in his capacity as a migration agent. I accept from the evidence that Mr Suri agreed he had done online research into what was required for a visa, but that he sought Mr Tejani’s specialised advice and assistance, and relied on it.
The First Meeting, Records - Advice Mr Tejani gave Mr Suri
33. It appears not to be in dispute that Mr Tejani spoke with Mr Suri about the general requirements for an 880 visa application at their first meeting, including the options available to obtain the five points he was missing for his permanent residence application. Mr Tejani also told me that he raised the issue of the $100,000 which could be used to satisfy the five points Mr Suri was seeking in order for him to qualify for the subclass 880 visa application. Mr Suri denied that the payment of $100,000 to obtain the five points was initially an option for him, stating that in 2006 he was an impecunious student, and such funds were just not available to him.
34. In that regard I noted on page 69 of the T-Documents a document with the header “TEJANI CONSULTANCY SERVICES” with the address Suite 312, 250 Pitt St, Sydney and a further heading “NO COSTS POLICY FOR NEEDY PEOPLE” which Mr Tejani said he gave Mr Suri. It is incongruous that if Mr Tejani understood Mr Suri to be impecunious, and decided accordingly to deal with him in the context of a “NO COSTS POLICY FOR NEEDY PEOPLE” policy, that he would also be advising him about paying $100,000 to obtain points for his visa. Accordingly, I prefer Mr Suri’s version of events, and am satisfied that the issue of paying $100,000 to obtain five points for the visa may have been mentioned, but that it was not an option at the time of their first meeting, and was not pursued by the parties until much later. I note in passing also from the statement (headed Statutory Declaration) of Mr Duggal dated 30 October 2007 that he indicated Mr Tejani did not charge Mr Suri for his advice because “Mr Arvind Suri was in financial difficulty and not in a condition to pay any such fees”.
The IRMAP Document
35. Mr Tejani stated that at the first meeting with Mr Suri, he gave him a copy of the document “Information about the Migration Advice Profession” (IRMAP), which he was required to do. He said that he usually carried copies of the document with him when he attended such meetings, but admitted that he had forgotten to record in his notes that he had given Mr Suri a copy. By way of excuse for not putting a copy in any file or making a record of having given the document to Mr Suri, Mr Tejani told me that because Mr Suri was not yet a client at the time of the first meeting, he filed a copy of the IRMAP in Mr Suri’s file when he became a client after December 2006.
36. Part 3 of the Code of Conduct deals with obligations to clients.
“ Part 3 Obligations to clients
…
3.2AOnce a registered migration agent has agreed to work for a client, but before commencing that work, the agent must:
(a)provide the client with a copy of Information on the Regulation of the Migration Advice Profession; and
(b) make a record that the copy has been provided.
Note Information on the Regulation of the Migration Advice Profession is a document produced by the Authority with information about the migration advice profession, the functions of the Authority, the legislation regulating the profession, what a client can reasonably expect from a registered migration agent, and complaint procedures….”
37. I noted Mr Suri denied he had received a document such as the IRMAP at the first or subsequent meetings.
38. Mr Tejani acknowledged he had not confirmed his client’s instructions in writing in breach of Clause 2.8, and he did not give written confirmation of the terms of his services or keep adequate records.
2.8 A registered migration agent must:
(a) within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing to the client; and
(b) act in accordance with the client’s instructions; and
(c) keep the client fully informed in writing of the progress of each case or application that the agent undertakes for the client; and
(d) within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client’s case or application.
39. I have preferred Mr Suri’s evidence over that of Mr Tejani in this regard, particularly given that on several occasions Mr Tejani did not record further important occurrences such as when he says he gave advice to Mr Suri which the Complainant did not follow, or did not agree with. I have found that Mr Tejani breached Clause 2.8 in regard to record keeping in that he did document Mr Suri’s instructions or confirm those with his client, and particularly that he did not record any problems with the subclass 880 application.
40. I prefer Mr Suri’s evidence that he did not provide a copy of the IRMAP to Mr Suri at their first meeting. I rely on Mr Tejani’s admitted breaches of Clause 2.8 and his poor record keeping in 2006 to satisfy me that he breached Clause 3.2A.
“Client Sheet/Progress Report”
41. One of the central issues in this matter was Mr Tejani’s keeping of suitable records. Mr Tejani told me that he was aware of the requirements of keeping appropriate records, and acknowledged he had breached certain clauses of the Code of Conduct in that regard. Mr Poynder accepted on his behalf that “there was virtually no written record of his discussions with the complainant”. Mr Poynder also submitted that the breaches of the Code were minor, that they were related to proper file management, and that they could be addressed by further training and experience which Mr Tejani had already undertaken. I have noted further on in these Reasons for Decision which courses Mr Tejani told me he has completed. He admitted he breached the following clauses of the Code of Conduct.
(i) Clause 2.8, relating to confirmation of client’s instructions in writing.
(ii)Clause 3.2A(b), relating to making a record of having provided a client with a copy of Information on the Regulation of the Migration Advice Profession.
(iii)Clause 5.2, relating to written confirmation of terms of services.
(iv)Clause 6.1, relating to maintenance of file records.
42. I am satisfied that Mr Tejani acknowledged he did not confirm his client’s instructions in writing in breach of Clause 2.8, and did not give written confirmation of the terms of his services (Clause 5.2), nor keep adequate records in breach of Clause 6.1 of the Code of Conduct. I have already found a breach of Clause 3.2A(a) and (b) in the paragraphs above.
43. In regard to record keeping, I noted a document at page 68 of the T-Documents entitled “Client Sheet/Progress Report” which had Mr Suri’s personal details on it, and some notes made by Mr Tejani. Mr Tejani presented that as his record of meetings and progress of Mr Suri’s case in keeping with the requirements of the Code of Conduct. During the hearing, he also tendered as part of his Further Statement, (Exhibit A2, Attachment A), which consisted of three yellow post-it notes on which he had written, and which he said he had located in another file. They purported to record three events.
44. Part 6 of the Code of Conduct relates to record keeping and management.
“Part 6 Record keeping and management
6.1A registered migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing:
(a) a copy of each client’s application; and
(b) copies of each written communication between:
(i) the client and the agent; and
(ii) the agent and any relevant statutory authority; and
(iii)the agent and the Department regarding the client; and
(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; and
(iii) the agent and the Department regarding the client.”
45. Mr Leerdam submitted on behalf of the Respondent that the document at page 68 was a reconstruction which was discovered during Mr Tejani’s MARA interview, (T-Documents pp397 & 398). Mr Tejani vigorously denied that the document had been reconstructed.
46. I noted that Mr Tejani is recorded at page 398 of the T-Documents as telling the MARA investigators: “This is the client sheet and cover notes which is stuff I have given to you.” Mr Leerdam submitted that the course of that questioning changed when the investigator did a right click on the properties of the document, and found that it had been created on 21 October 2007 rather than at the time of transactions with Mr Suri in 2006.
47. I noted from the transcript of interview on that topic that Mr Tejani explained as follows:
“Mr Tejani: Yeah, but there are so many folders, we I mean I change my documents so many times so I created new folders all the time if something is deleted and I have to keep updating to new folders …
MARA: Okay, that’s not a folder that that document was created on 21st of October 2007.
Mr Tejani: That’s a new folder there because of this situation I have got. It was an old folder, it was transferred to create a new folder. …
MARA: So that was created 21st of October 2007.
Mr Tejani: Yes, yes.
MARA: That was just after we published the complaint to you and just before you responded to the complaint.
Mr Tejani: Yeah, that’s because I had to go through the system now that what you required exactly, so many things are there which I understand, I put in my own writing so I understand but someone I have to give instructions, I have to give you in full writing what happened….
MARA: Okay, so what happened to that original document that would have been created on 21st of September 2006.
Mr Tejani: I changed my lap top a couple of times because one was broken, one, the hard drive was corrupt. So I tried to record the megabites, my hard drive is there at my home …”
(T20)
42. Mr Tejani’s evidence to MARA and to this Tribunal was that his brother Mr Sameer Tejani who works in IT, recovered the document after his hard drive was corrupted. Mr Sameer Tejani who gave oral evidence before the Tribunal also produced a Statutory Declaration (Exhibit A6 & T38), and described how he had recovered the relevant document for his brother in October 2007.
48. In his oral examination (Transcript p108), Mr Sameer was shown the document at page 68 of the T-Documents headed “Client Sheet/Progress Report”. He did not recall having previously seen that document. Mr Leerdam submitted that the document before the Tribunal was a fabrication which was prepared for Mr Tejani’s interview with MARA. He submitted that adverse inferences should be drawn because Mr Sameer did not recognise the document. I reject that latter submission because Mr Sameer may not have looked at the document if indeed he had ever seen it.
49. However I was disquieted by Mr Tejani’s evidence of his record keeping and communications to his client when, as recorded in the transcript of the CTTT hearing, he told the Member that: “I put each and everything in writing in my file but that file is with at MARA right now”. I also noted the following exchange with the CTTT Member at the hearing:
“Member: As soon as possible after receiving instructions, it says a migration agent must before starting work for the client, give the client … obtain written acceptance from the client of the terms of the work to be done. Give the client written confirmation of the terms of the service to be rendered. When did you do that?
Tejani: Same day your Honour, when he came to my office, I explained to him finally what is the case, what do you want to do. I gave a copy of all the instructions I had written down in my computer when he gave me instructions on the phone. He confirmed he took it from me.
Member: Have you got those instructions?
Tejani: The instruction is in MARA’s file, I can give you a copy of it.”
50. As it turned out, there was no written record of instructions in relation to Mr Suri, neither had he been provided with any such copy. I am satisfied therefore that Mr Tejani misled the CTTT as to his record keeping.
51. In light of the other breaches of record keeping, (some of which Mr Tejani has accepted), including not confirming client instructions, I am satisfied that it is more likely than not that Mr Tejani did not keep a record of the interviews with Mr Suri, or advice given to him. Notwithstanding Mr Poynder’s submissions that I was not entitled to make such a finding, I do not accept the argument that the document “Client Sheet/Progress Report” had to be recovered because Mr Tejani’s computer had crashed. Based on the date of the document and the conclusions I have drawn with regard to Mr Tejani’s credit in relation to record keeping, I prefer the submissions of the Respondent that the document had been prepared a short time before the MARA interview. I find that in relation to the document “Client Sheet/Progress Report”, Mr Tejani has breached clauses of the Code of Conduct in relation to record keeping, (Clauses 2.8 and 6.1), but has also misled MARA (Clause 2.9A), and this Tribunal. I have also found in the paragraphs above that Mr Tejani misled the CTTT in regard to his record keeping. That goes to his integrity and fitness and propriety to give immigration advice.
The Subclass 880 Visa Application
52. I have already noted in the paragraphs above that in Mr Tejani’s statement (Exhibit A1, [11]), he stated that he told Mr Suri at their first meeting on 20 September 2006 what the requirements for a subclass 880 visa application were, including the option to gain five bonus points, the requirement that the spouse must have a positive skills assessment, pass the IELTS test, have three years work experience, and must be added to the application at the time of application.
53. The issue with regard to the subclass 880 visa was whether Mr Tejani had adequate knowledge of the immigration laws and procedures at the time he made the application for Mr Suri on 16 December 2006, particularly that Priya could not be added as a migrating spouse because she was not in Australia at the time. Further that Mr Suri could not, accordingly, claim the five bonus points outstanding in relation to his application. Further there was an issue of whether Mr Tejani informed Mr Suri correctly what he had done in relation to the application, and what his later evidence regarding the subclass 880 visa was to MARA and to this Tribunal.
54. Mr Suri told me that he already knew about the options available from his research on the internet, that the payment of $100,000 was out of the question, and that he had informed Mr Tejani that his parents were looking for a bride with educational qualifications in order to meet the extra five points he required for the subclass 880 visa.
55. In replies to questions asked by Mr Poynder, Mr Suri agreed that Mr Tejani had told him that his wife would have to be added to the visa application at the time of the application. He said: “he told me, like, we going to put our names together. I going to be the primary applicant and she going to be the secondary applicant.”(Transcript p217).
56. Mr Poynder submitted those replies established that the Applicant had correctly advised Mr Suri, who either ignored or did not understand the significance of the advice given, namely that the spouse had to be added at the time of the application. Mr Poynder also submitted that when Mr Suri telephoned Mr Tejani to advise he had married a girl who had the qualifications for bonus points, the Applicant told him he could not claim those as his wife had not been added as a dependent spouse when the application for Mr Suri’s current visa was made, (Exhibit A1, para 27). I noted that Mr Suri denied this.
57. Mr Tejani explained that when he was filling in the online subclass 880 visa application for Mr Suri, he came to the part of the form where spouse details had to be entered. He admitted that he had tried to enter Priya’s details there, but said that the computer would not accept those details. His evidence was that this was because it was the section dealing with “migrating spouses” only, and that once he realised that, he entered Priya’s details into a following screen which was for “non-migrating spouses”. There was a lot of evidence given and submissions surrounding that point, and I have dealt with it below.
58. When questioned at the hearing, Mr Tejani replied as follows:
“Mr Tejani: In relation to the application I recorded Priya as a non-migrating spouse. As I previously told Arvind I would need to do.
Mr Leerdam: Now, in fact, Mr Tejani, you actually tried to add Priya in as a migrating spouse didn’t you?
Mr Tejani: I do not agree with that.
Mr Leerdam: Well, I’m putting to you that you tried to add Priya in as a migrating spouse. What do you say to that?
Mr Tejani: Not a migrating spouse
Mr Leerdam: Well, you tried. Did you try?
Mr Tejani: During the online applications there are so many forms – not the forms, but you know, the screens coming on, one by one, so I was just putting the details.
Senior Member: Did you try to add her as that?
Mr Tejani: No, I was just filling out the form online about Priya, details about Priya and it says you can’t – I mean you can’t process further. So then after I go to another page of the form and put all there….”
(Transcript pp36 & 37)
59. Mr Poynder submitted that it was a question of intention, stating that Mr Tejani had attempted to enter Priya’s name in the section for migrating spouses, but emphasising that he had not intended to do so. Mr Poynder submitted that Mr Tejani was fully aware that Priya could only be added as a non- migrating spouse at the time the application was made. He also submitted that Mr Tejani had informed Mr Suri that Priya could only be included in the application at the time of the application, and not afterwards, adding that Mr Suri had acknowledged that when giving his evidence. In this context, Mr Poynder also raised the issue of the telephone call by Mr Tejani to Ms Appleton, Compliance Officer, Department of Immigration and Citizenship (DIAC).
60. In coming to a decision regarding the lodgment of the subclass 880 visa application, I considered the evidence of the Applicant and Mr Suri, and the submissions made. I also had before me pages 748/9 of the T-Documents which consisted of an email dated 25 July 2008 between Ms I Appleton, Mr Tejani’s case officer from March 2007, and Mr B Abbott, Professional Conduct Manager of MARA discussing Mr Tejani’s request for information from Ms Appleton.
61. I am mindful of Mr Poynder’s reservations regarding the emails between Ms Appleton and Mr Abbott because they were written in the context that MARA was conducting an investigation into Mr Tejani’s conduct, and because Ms Appleton had not kept file notes of each and every communication with Mr Tejani. I noted that Mr Abbott stated to Ms Appleton: “The background to this is that Mr Tejani claims he knew that Suri’s wife could not be added, but was merely trying to get written evidence for his client. Seems very far-fetched, given the contents of the emails.” (T-Documents p758).
62. Ms Appleton wrote in an email to Mr Abbott dated 25 July 2008:
“From memory when I spoke to Mr Tejani and advised him that his spouse was entered as non-migrating I remember checking with another officer to confirm that the spouse could not be changed to migrating. He also sounded surprised when I told him that spouse skills could not be used in the application. Mr Tejani may have felt that the information I was providing him was not correct and wanted to confirm with my manager.”
63. As written at page 749, Ms Appleton recalled on 25 July 2008, (but had not recorded in file notes):
“On 29/3/07 I requested documents which were required to continue the assessment of his (Tejani’s) client’s application. This included a request to indicate if bonus points were being claimed as the pass mark had not been met for this application … Around 16/4/07 the migration agent rang me to enquire about the request letter, particularly about my request to indicate if bonus points were being claimed. The migration agent said to me that his clients were intending to obtain 5 points for spouse skills. I informed the agent that the spouse was entered in the application as non-migrating and therefore this was not an option. I also said to him that the spouse was not onshore at the time the application was made and therefore could not be entered on the application as a migrating spouse. The migration agent asked me to send him a quick email to confirm that the spouse was entered on the application as non-migrating.”
64. In the note reproduced above, Ms Appleton was referring to Mr Tejani telling her that Mr Suri intended to claim the bonus points for his spouse. When she gave her oral evidence, she said that Mr Tejani asked her for a confirmation of what was in the application, but she said that she did not recall anything about Mr Tejani wanting a confirmation email because he wanted it to support Mr Suri’s wife’s request for a waiver of condition 8503, (which is what Mr Tejani claimed). She stated at Exhibit R3: “From my recollection Mr Tejani sounded very doubtful of the information I had provided him regarding the fact that the spouse could not be changed to migrating on the application and also that spouse skills were not available as an option for 5 points.” In replies to questions by Mr Poynder, Ms Appleton agreed that there was nothing in her records about Mr Tejani sounding doubtful about the information she gave him by telephone on 16 April 2007. I noted this exchange between Mr Poynder and Ms Appleton when he asked her:
“Mr Poynder: What I might suggest to you is that the conversation you had with Mr Tejani on 16 April 2007 was a short uneventful telephone call in which Mr Tejani asked for confirmation that Mr Suri’s wife was in the visa application as a non-migrating spouse, and in which he also mentioned that Mr Suri proposed to include her in his 880 visa application; and that’s all it was.
…
Ms Appleton: No. He was very repetitive in his questioning as if he did not believe the information I was giving to him. He believed it was a system error and could not understand why it didn’t accept it … the system did not accept her as being migrating.”
(Transcript p85)
65. I noted that Mr Tejani also sent a further email with regard to the subclass 880 visa application to Ms K Till of DIAC on 3 July 2007. Mr Poynder submitted that Mr Tejani contacted Ms Till at Mr Suri’s request, because Mr Suri having done his own online research, insisted to Mr Tejani that he should be able to claim bonus points for his wife, even though Mr Tejani had informed him otherwise. The Applicant wrote to Ms Till as follows:
“… We applied for 880 visa subclass. When I applied online, because of such technical reason, system didn’t allow me to put applicant’s spouse name under ‘Migrating Spouse’ he (Applicant) married to a girl during his overseas visit when he was on ‘Graduate skill-temporary visa’. The spouse is at overseas and was never included in applicant’s student visa application.
Applicant claimed 5 points in his application from spouse skill (spouse satisfied all basic requirement as needed to claim 5 points). The case officer suggested that applicant can’t claim 5 points as the spouse is under the head of ‘non migrating’ spouse.”
Can you please kindly advice (sic) on this issue…”
66. On 4 July 2007 Ms Till replied:
“In order for the applicant’s spouse to be included in the application, she would have needed to be in Australia at the time of lodgement and have held a student visa within the last 6 months. That is why the online form did not allow you to enter her as migrating, as she cannot lawfully do so.
The case officer is correct, you are unable to claim spouse points for a spouse who is not migrating. …”
67. Mr Leerdam submitted that it was clear Priya could not be a migrating spouse on the subclass 880 application at the time it was made, and that Mr Tejani wrongly believed that even if she was a non-migrating spouse she could still claim the five bonus points. Mr Leerdam’s submission was that Mr Suri had not been informed and that he understood Priya had been included in the subclass 880 visa application. The following is from page 83 of the transcript, where Mr Leerdam asked Mr Suri:
“Mr Leerdam: What was your understanding up to that point as to the status of your wife and your subclass 880 application?
Mr Suri: My understanding was that my wife is included in that application and me and my wife would get residency in the same application at the same time. …
Mr Leerdam: Where did you get that understanding from?
Mr Suri: In the second meeting.
Like if I’m going to get five bonus points, for my wife, my wife will get 115 bonus points from me and we’re both going to be at 120, which is the requirement for permanent residency because we both want to be in the same application, so that we will get the visa at the same time.”
68. Mr Poynder submitted that the Applicant had provided the correct advice to Mr Suri. By way of confirmation of Mr Tejani’s knowledge of immigration law and procedures, he drew attention to Mr Tejani’s handling of Mr K Patel’s application in 2006, which he said confirmed the Applicant’s knowledge of immigration law and procedures. In that regard I noted Mr Patel’s evidence that at their first meeting Mr Tejani gave him a document, which he said looked perhaps like a legal document, but which he said he did not inspect. Mr Patel also indicated that Mr Tejani did not charge him at the first meeting, but that at a later meeting, he paid Mr Tejani $500, (probably in cash), and that from then on he considered himself a formal client. I have noted Mr Patel’s written and oral evidence which indicated he was satisfied with Mr Tejani’s services. I am also mindful that it was given to satisfy me that Mr Tejani operates in compliance with the rules and regulations for migration agents. I have no particular comment in regard to Mr Patel’s evidence, and find it of little assistance in reviewing the matter before me.
69. I am satisfied from the evidence before me, including that of Ms Appleton and Ms Till, as well as Mr Tejani’s own evidence, that the Applicant attempted to enter Priya as a migrating spouse in the subclass 880 visa application. Mr Tejani’s case was of course as stated above, that he had attempted to do so when filling in the application electronically, but that he had no intention of committing such an error, and had moved onto the following screens to enter Priya as a non-migrating spouse as was appropriate. I am satisfied that Mr Tejani not only attempted to add Priya as a migrating spouse as Mr Poynder submitted, but that he intended to do so, and only moved onto another screen when the system rejected his attempt. I am satisfied on the basis of the evidence and submissions on the critical point of the subclass 880 visa application Mr Tejani made, and the advice given to Mr Suri, that the Applicant’s knowledge of the requirements for the subclass 880 visa which is amongst the most important issues in this case, was wanting. Priya simply could not be added to Mr Suri’s application because she was not in Australia at the time, and did not satisfy the requirements for such an application. Mr Suri could not accordingly claim the five bonus points he was seeking in the addition of Priya as a migrating spouse.
70. I am satisfied that Mr Tejani did not at first disclose to Mr Suri that he had entered Priya as non-migrating, that he advised Mr Suri incorrectly, and misled him about the status of his wife’s application. I am satisfied to the requisite standard that Mr Tejani has misled this Tribunal as to what he knew, and what he intended to do when he lodged the subclass 880 application for Mr Suri. The undisputed fact that Mr Suri had been researching the issue on the departmental website and internet does not alter my conclusion that Mr Suri was relying on Mr Tejani for immigration advice.
71. Accordingly I am satisfied that Mr Tejani has breached:
· Clause 2.1 of the Code of Conduct in not dealing honestly in informing Mr Suri that he could not add Priya as a migrating spouse in the subclass 880 application;
· Clause 2.3 and 2.4 in regard to his knowledge of immigration law and the giving of advice to an immigration client who was dependent on him;
· Clause 2.23 in relation to maintaining the reputation and integrity of the migration advice profession by the giving of incorrect advice which led to adverse consequences for Mr Suri; and
· Clause 2.3A in relation to financial loss (unquantified), to Mr Suri in having delayed the application, and caused other applications such as the fiancee visa, the tourist visa, the 497 visa and the VETASSESS to later be lodged. Mr Suri has also claimed that due to the handling of his immigration applications by Mr Tejani he has suffered personal loss in relation to his relationship with Priya.
Whether Mr Tejani Charged for his Services- Whether he should have
72. The Code states that a registered migration agent must set and charge a fee that is reasonable in the circumstances of the case. As relevant, Part 5 and Part 7 follow:
“Part 5 Fees and charges
5.1There is no statutory scale of fees. However, a registered migration agent must set and charge a fee that is reasonable in the circumstances of the case.
5.2 A registered migration agent must:
(a) before starting work for a client, give the client:
(i)an estimate of fees in the form of charges for each hour or each service, and disbursements that the agent is likely to incur as part of the work; and
(ii)an estimate of the time likely to be taken in performing a service; and
(b)as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of the terms of the work to be done; and
(c)give the client written confirmation of the terms of the service to be rendered; and
(d)give the client written notice of any material change to the estimated cost of providing a service, and the total likely cost because of the change, as soon as the agent becomes aware of the likelihood of a change occurring.
5.3 A registered migration agent:
(a)must not carry out work in a manner that unnecessarily increases the cost to the client; and
…
5.5 A registered migration agent must be aware of the effect of section 313 of the Act, and act on the basis that:
(a) the agent is not entitled to be paid a fee or other reward for giving immigration assistance to a client unless the agent gives the client a statement of services; and
(b) a statement of services must set out:
(i) particulars of each service performed; and
(ii) the charge made in respect of each such service; and
(c) a client is entitled by the Act to recover the amount of a payment as a debt due to him or her if he or she:
(i) made the payment to the agent for giving immigration assistance; and
(ii) did not receive a statement of services before making the payment; and
(iii) does not receive a statement of services within 28 days after a final decision is made about the visa application, cancellation review application, nomination or sponsorship to which the immigration assistance related.
Part 7 Financial duties
7.4A registered migration agent must keep records of the clients’ account, including:
(a)the date and amount of each deposit made to the client’s account, including an indication of the purpose of the deposit and the client on whose behalf the deposit is made; and
(b)the date and amount of each withdrawal made in relation to an individual client, and the name of each recipient of money that was withdrawn; and
(c)receipts for any payments made by the client to the agent; and
(d)copies of invoices or accounts rendered in relation to the account.
7.5A registered migration agent must make available for inspection on request by the Authority:
(a) records of the clients’ account; and
(b)records of each account into which money paid by a client to the agent for fees and disbursements has been deposited.
……”
73. I note by way of completeness although I am not bound by its findings, that Mr Suri lodged a claim at the CTTT against Mr Tejani for the refund of $2,600 he claims to have paid him. There were no receipts issued or obtained, and Mr Suri’s claim was dismissed as the Member could not be satisfied on the balance of probabilities that the money had been paid. I mention the CTTT case only by way of noting that there was quite an amount of conflict of evidence in the case before me, and in the context of careful consideration of the standard of proof which I am required to consider when making findings.
74. I am mindful also that the Respondent held in its decision that it was not satisfied the Complainant paid the Applicant for his services, rather that there was an arrangement in place for the payment of commissions for the introduction of new clients by Mr Suri. Mr Poynder submitted that the issue was therefore no longer before the Tribunal. I preferred Mr Leerdam’s submissions in that regard which is that I have the power to consider the issue of payment for services, and I am mindful that I have already stated my opinion of that in the paragraphs above.
75. There can be no dispute that the hearing before me is de novo. Further I agree with Senior Member Penglis’ view in Narayanan, and am satisfied that I can take into account all the issues surrounding Mr Suri’s Complaint, and issues such as payment for services, provided they are limited to the subject matter of the Complaint. Accordingly I am entitled to, and have dealt with the issue of payment of moneys by Mr Suri to Mr Tejani.
76. Mr Tejani maintained that he did not charge Mr Suri for his services, that he had given him the document “NO COSTS POLICY FOR NEEDY PEOPLE”, and accordingly had not recorded any fee structure in his records. Unfortunately for him, I am satisfied that that was simply an excuse by Mr Tejani for not having made any file note or record of his discussions with his client which he was required to keep.
77. When I considered the evidence, I found I was satisfied that there were several communications between Mr Tejani and Mr Suri which confirmed that certain fees were to be paid. Mr Tejani told me that the only fee he required was $50 or $55 for his assistance to Mr Suri in regard to Priya’s 8503 waiver application. He also told me that by way of explanation of his email of 9 April 2007, in which he wrote reminding Mr Suri of the payment of “pending fees”.
78. A further email dated 13 December 2006 from Mr Tejani to Mr Suri mentioned “our pending payment”. Mr Poynder submitted that the email was in relation to Mr Suri’s pending payment of fees for the subclass 880 visa, and that it was because Mr Tejani was concerned Mr Suri did not have sufficient funds in his credit card account in order to pay the $1,990 due to DIAC. Mr Suri tendered documents which satisfied me that he did have the capacity to pay those fees.
79. Mr Suri’s evidence regarding fees for services was that he had paid Mr Tejani in three instalments, and he lodged a claim at the CTTT for refund of $2,600. He explained that the fee was set in the following terms, that Mr Tejani would charge the usual $2,000 for the visa work for him, and an extra $600 for Priya to be added to the application so that they could obtain permanent residence in the same visa application.
80. I was not satisfied as to any exact amount paid, but noted that Mr Suri referred to a meeting with Mr Tejani in a pub in Homebush in March 2007. He told me that the purpose of that meeting was to discuss the procedure for lifting the condition in the 8503 visa for Priya who had entered the country on a tourist visa, and that it was at that meeting that Mr Tejani asked for an instalment payment of $750. Mr Suri said that the $750 which he paid, and for which he did not receive a receipt, was the second of three instalments he had to pay Mr Tejani for his services, the second being due when a case officer from the Department was allocated to his case. That occurred during March 2007, Mr Suri said. Mr Suri said:
“Mr Suri: But there was also like this 8503, this case was going and he asked like give me more moneys because 8503 needs more money and he call Adelaide processing centre, he called Parramatta, he has got big bills for this thing. I said ok, don’t give me my commission, keep it with you, don’t give me my commission for the student I get for you. That $750 was due …
Senior Member: You’re saying the $750 was to pay Mr Tejani for his time, not to deal with the visa - … not to pay for the visa application?
Mr Suri: No no no. Visa application was paid in December 2006.”
(Transcript p257)
81. There is a further aspect to whether fees were paid to Mr Tejani. Mr Suri told me Mr Tejani arranged for Mr Suri and other people to refer immigration clients, for which they would be paid a commission. Mr Poynder asked Mr Suri as follows:
“Mr Poynder: … and you don’t have any money, but you could refer friends who are international students and looking for a migration agent. Do you agree that you said that to him and then you asked whether he could help you without any charge?
Mr Suri: No, it was not like – it wasn’t like – Mr Tejani told me just refer five, 10 friends to him, you will get 10 percent off the commission off – the migration charge, he will charge from them. And say if I refer 10 students and I’ll get $200 per each, so I will get what I paid him, on the other hand. That was a commission.”
(Transcript p218)
82. Mr Poynder also put to Mr Suri:
“Mr Poynder: Well I suggest to you that there was never any agreement for a commission with Mr Tejani?
Mr Suri: It was a verbal, not a written one. He said, like, I’ll pay you the commission if you’re going to refer students to me. … that’s why I sent him an email, when he remind me the first payment is due.”
83. I noted that the email from Mr Tejani to Mr Suri was sent on 13 December 2006 (T-documents p331), and states: “You can send student on Friday any time. No probs. How abt our pending payment?...” Mr Suri’s evidence was that question related to the $2,600 fee he had negotiated with Mr Tejani for supplying immigration services for him and his wife. It was in reply to Mr Suri’s email in which Mr Suri referred to sending a student wanting to apply for permanent residence, and describing him as follows: “he is a very needy person and a freind (sic) of mine, so ple don’t tell anything regarding our commission. …”
84. Mr Leerdam submitted that the evidence regarding commissions was corroborated by an email on page 313 of the T-Documents which showed that not only was there a fee arrangement in place, but there was a peripheral agreement as to how commissions would work in relation to it. In that regard I noted an email from Mr Suri to Mr Tejani in the T-Documents at page 313 as follows:
“Actualy (sic) there is one student from tafe adn (sic) he wats (sic) to apply for PR adn (sic) want soem (sic) guidence (sic) from u, actually I convienced him to apply his case from u,so he needs to talkto u on friday morning,so if u can please give us some (sic) time in the friday mornign (sic) or afternoon gone be great to me.he is a very needy person adna (sic) friend of mind, so ple (sic) don’t tell anyhting (sic) regarding our commission. ….”
85. There was also evidence in regard to the $100,000 which Mr Suri may have paid in order to complete the five points for his visa. He gave evidence of being introduced to a financier by Mr Tejani so that he could obtain a loan, and for which he implied, although he did not know, that Mr Tejani would receive a commission.Mr Suri agreed when asked, that he had not raised this issue with MARA, saying he did not think at the time that it was relevant:
“Mr Poynder: Mr Suri you don’t think it was relevant that your migration agent referred you to a financier who met you in a suspicious place, (Gloria Jean’s) who was apparently going to lend you some money and give a cut to the migration agent that referred you. You don’t think that was relevant to this case?
Mr Suri: I don’t know. How do I know whether it’s relevant or not. The commission was starting from the beginning of this case. Mr Doogal (sic) took commission from my fees which I paid to him. There is a commission everywhere.
Mr Poynder: And if you thought Mr Tejani was going to get some sort of financial kickback because of the referral you would have raised that with MARA?
Mr Suri: “But MARA going to ask for my – the proof. From where I going to get the proofs? Everything is not written in the cases. In everyday life you can’t write everything. There are some verbal things."
86. I was satisfied from the evidence of conversations and emails referred to above, and in the T-Documents, that in contravention of the Code of Conduct, Mr Tejani did not document any arrangements regarding payment for the work he carried out on Mr Suri’s behalf. I did not accept Mr Tejani’s evidence regarding his policy of doing pro bono work for “needy people”, and Mr Suri in particular. I am satisfied from the documentation including emails noted above, and prefer the evidence of Mr Suri to that of Mr Tejani. I am satisfied to the requisite standard that that the Applicant arranged to pay commissions to Mr Suri for introducing other immigration clients. I am not satisfied from the evidence, and make no decision regarding whether Mr Suri paid Mr Tejani any fees.
87. Mr Tejani appears to have ignored the requirements of Part 5 of the Code of Conduct in this matter, and in regard to fees and account keeping. I am satisfied therefore that Mr Tejani has breached Clauses 5.1, 5.2, 5.3 and 5.5 of the Code of Conduct. I am also satisfied that Mr Tejani breached Clauses of Part 7 of the Code of Conduct in relation to financial duties. I make no finding in relation to commissions from the introduction of a financier to supply the $100,000 loan.
497 Visa Application & Tourist Visa Application, 8503 Waiver Application & Fiancee Visa Application
88. Mr Tejani and Mr Suri both gave evidence about applying for the abovenamed visa applications, Mr Tejani denying that he advised Mr Suri about them. I am mindful that Mr Poynder made submissions regarding Mr Suri researching online, and not acting in reliance on Mr Tejani’s advice in regard to the various visas.
89. Mr Suri gave evidence that he followed the Applicant’s advice, and said that the Applicant told him he could lodge the 497 visa application himself. It appeared to me that Mr Suri was confused about exactly when he received such advice, as he gave one date for the lodgment of the 497 visa application in his statement, and provided another during his oral evidence.
90. I was also mindful of Mr Poynder’s submissions regarding the tourist visa application, stating that it was Mr Suri’s own initiative, and that Mr Tejani had correctly informed him that he could not bring Priya out on the subclass 880 visa as applied for. Mr Suri on the other hand maintained he had been advised by Mr Tejani to bring Priya to Australia on a tourist visa, because the tourist visa was the only visa for which he did not need to be a permanent resident, and he wanted her to be with him. He said that he was told by Mr Tejani that he could then seek an 8503 waiver.
91. Mr Poynder dealt with the subject of the fiancee visa application by posing the question that if the Complainant was confident he could bring his wife to Australia on a subclass 880 visa, as he claimed he had been informed by Mr Tejani, then why would he want to lodge a fiancee visa. Mr Poynder also drew to my attention an email from Mr Suri to Mr Tejani dated 28 September 2006 at page 169 of the T-Documents in which Mr Suri wrote: “Also, I read about the fiancee visa on the internet. It’s clearly mentioned that I should be PR for that. Now please tell me how it’s going to work…”. I noted this was once again in the context of a submission by Mr Poynder that Mr Suri carried out his own research and did not rely on Mr Tejani’s advice, with which the Complainant disagreed. He agreed he had carried out online research with regard to his immigration matters, but told me more than once that he relied on Mr Tejani’s advice.
92. I have drawn no particular conclusions regarding the exchanges Mr Tejani and Mr Suri had with regard to the 497 visa, the tourist visa, the 8503 waiver, and the fiancee visa, except to say that there was conflict in the evidence given about those, and many other matters before me. That was of course exacerbated by the lack of records Mr Tejani kept, particularly in relation to matters where he says the Applicant did not follow his advice, and where he should particularly have kept a record. I have closely examined other aspects of Mr Tejani’s application which I consider more relevant to the issues to be decided in this case, and I have discussed them in more detail in these Reasons for Decision.
93. I am satisfied as I have already said, that Mr Suri relied on Mr Tejani for immigration advice.
The VETASSESS Application
94. Mr Tejani lodged a VETASSESS application for Priya in order to demonstrate that she met the requirements for the five points, which she ultimately did. The Applicant stated that he lodged the application at Mr Suri’s request. When asked by Mr Leerdam whether he lodged the application believing Mr Suri could add the five points from Priya to his own application, Mr Tejani replied: “I am not agree”. Mr Leerdam continued: “It was not going to succeed, it was not going to give him the five bonus points he was looking for?” Mr Tejani replied: “It was not my advice, so I can’t comment on that … I mentioned to you that I got instruction from my client to do so”.
95. Mr Poynder once again submitted that Mr Suri had carried out his own research online, and knew what he was doing rather then relying on Mr Tejani’s advice.
96. I am satisfied that Mr Tejani did not make a record of a request by Mr Suri or any other reason as to why he lodged the application, and he did not inform Mr Suri about the likely outcome. I am satisfied that there would have been even more reason than the normal recording of client instructions for record keeping purposes if Mr Tejani had merely lodged the VETASSESS application on Mr Suri’s instruction, and if he had considered that there was likely to be an unfavorable outcome.
97. I am satisfied that in the light of the result Mr Suri wished to achieve, it was inappropriate to lodge the VETASSESS application. Notwithstanding Mr Poynder’s reliance on Mr Suri having checked online, which I am satisfied he did from time to time, the surrounding facts demonstrated to my satisfaction that it was Mr Tejani who advised Mr Suri, and who thought the lodgment of the application might have a favorable result. I am not satisfied he lodged the application because Mr Suri instructed him to do so. If, as he alleges, Mr Suri insisted, and Mr Tejani had considered it inappropriate or undesirable to lodge the VETASSESS application, then it would have been appropriate to document that. However, there were no records upon which the Applicant could rely. As recorded in the transcript at pages 32 – 36, I was not impressed with Mr Tejani’s obfuscating replies to questioning about the VETASSESS application during the hearing.
98. I find that in connection with the VETASSESS application, Mr Tejani breached Clause 2.4 of the Code of Conduct because Mr Suri relied on his advice, Clause 2.8 in relation to confirming the client’s instructions, Clause 6.1 (as reproduced above), in relation to record keeping.
“2.4A registered migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.
……
2.8 A registered migration agent must:
(a)within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing to the client; and
(b) act in accordance with the client’s instructions; and
(c)keep the client fully informed in writing of the progress of each case or application that the agent undertakes for the client; and
(d)within a reasonable time after the case or application is decided, tell the client in writing of the outcome of the client’s case or application.”
CONCLUSIONS RE BREACHES OF THE CODE
99. As can be seen from the paragraphs above, I have found multiple breaches of the Code of Conduct, including Clauses which Mr Tejani admitted he breached, and Clauses of the Code of Conduct which MARA did not find Mr Tejani had breached. I find that in relation to the Complaint by Mr Suri, the Applicant has breached the following clauses of the Code of Conduct:
(i) Clause 2.8, relating to confirmation of client’s instructions in writing.
(ii) Clause 2.3 relating to his knowledge of migration legislation and procedures
(iii)Clause 3.2A, relating to making a record of having provided a client with a copy of Information on the Regulation of the Migration Advice Profession.
(iv) Clause 6.1, relating to maintenance of file records.
(v) Clause 2.1, relating to the manner of dealing with clients.
(vi) Clause 2.3A, relating to financial loss to a client.
(vii)Clause 2.4, relating to client’s dependence on the agent’s knowledge and experience.
(viii) Clause 2.9A, relating to misleading or deceiving MARA.
(ix)Clause 2.23, relating to maintaining the reputation and integrity of the migration advice profession
(x)Clauses 5.1, 5.2, 5.3, 5.5 in relation to fees and charges, and records in relation to charging
(xi)Clauses in relation to Part 7
100. I find from the abovementioned breaches of the Code of Conduct that Mr Tejani has breached section 303(1)(h) of the Act:
(h) the agent has not complied with the Code of Conduct prescribed under section 314.
WHETHER THE APPLICANT IS NOT A PERSON OF INTEGRITY & IS NOT A FIT AND PROPER PERSON TO GIVE IMMIGRATION ASSISTANCE
101. I have found in the paragraphs above that the Applicant breached important clauses of the Code of Conduct in relation to record keeping, (some of which he acknowledged), and that he gave incorrect advice to Mr Suri on which Mr Suri relied, to his detriment. I have noted that Mr Poynder referred to some of the breaches of the Code of Conduct as technical breaches. However, even if some of the breaches could be thus classified, and I do not find them to be so, I have, as detailed above, found them proven.
102. I am satisfied to the requisite standard that there are issues of credit in regard to Mr Tejani and that he misled MARA and this Tribunal in regard to the following:
Issues of Credit
“Client Sheet/Progress Report”
Notwithstanding Mr Tejani’s insistence, I am satisfied that his record of his transactions with Mr Suri, being the “Client Sheet/Progress Report” at page 68 of the T-Documents was a reconstruction, and further did not record the many transactions and the advice he gave Mr Suri in 2006/7. I have noted that pursuant to Clause 2.9A a migration agent must:
2.9AIn communicating with, or otherwise providing information to, the Authority, a registered migration agent must not seek to mislead or deceive the Authority, whether directly or by withholding relevant information.
I have found in the paragraphs above that Mr Tejani misled MARA as to the records he kept, and his actions in relation to the services he provided to Mr Suri, in particular in relation to the subclass 880 visa, and in regard to the arrangement for commissions. I also find that he misled the CTTT in relation to his records.
The IRMAP
Mr Tejani has continued to maintain that he gave Mr Suri a copy of the IRMAP at their first meeting as he was required to do. That sits uncomfortably with Mr Tejani’s evidence that it was only once Mr Suri became a client after December 2006, that he put a copy of the document on his file. I prefer Mr Suri’s evidence that Mr Tejani only gave him a business card at the first meeting rather than any IRMAP.
Financial Arrangements
As discussed above, I did not accept Mr Tejani’s evidence regarding the financial arrangements between him and Mr Suri.
The Subclass 880 Visa
I am satisfied that Mr Tejani did not understand the requirements and procedures for the subclass 880 visa, and that having unsuccessfully tried to add Priya as a migrating spouse, he then did not inform Mr Suri as he should have that she had been added as a non-migrating spouse, and that no bonus points could be gained by that application. Mr Tejani’s actions in not correctly informing Mr Suri what he had done were misleading, and further added to detriment and delay in regard to Mr Suri’s application. I find issues of credit in relation to Mr Tejani. On the basis of his evidence and that of the email exchanges of the Applicant, Ms Appleton, Mr Abbott and Ms Till, I did not accept his evidence and submissions that although he attempted to add Priya as a migrating spouse, he had not intended to do so.
INTEGRITY AND WHETHER MR TEJANI IS OTHERWISE NOT A FIT AND PROPER PERSON TO GIVE IMMIGRATION ADVICE
103. I next considered section 303(1)(f) of the Act which follows:
“(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or”
104. In coming to a decision in relation to section 303(1)(f) of the Act, I am mindful that “integrity” has been held to mean “soundness of moral principle and character, uprightness; honesty” (Re Peng and Department of Immigration and Multicultural Affairs [1998] (AATA 12543, 19 January 1998)). In Peng (supra), at [26], Deputy President McMahon stated:
“The use of the word "assistance," in my view, extends not only to help given to would-be applicants, but also help given to the Department in the administration of immigration programs. In that regard, frankness and truth are of primary importance...
…
If these standards are important in relation to individual applications, how much more important are they in relation to those who will, in the course of their practice, make many representations to the Department on behalf of those seeking to deal with immigration matters. The requirement to display integrity and fitness in order to qualify for registration as a migration agent has an element of mutuality. The need for probity is not only for the protection of the clients, but also for the open, honest and efficient administration of immigration matters in which the agent is involved.”
105. I have agreed with, and rely on the statements made by Deputy President McMahon (as he then was), in Peng (supra).
106. In Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 at 155 – 156 Deputy President McMahon said:
“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.”
107. I am mindful as Deputy President Purvis stated in Re Lilienthal and Migration Agents Registration Authority (2001) 66 ALD 249 that the consideration of whether or not a person is one of integrity cannot be disassociated from the character of that person. It is on account of the above mentioned significant position occupied by a migration agent, that she or he is required to be a person of integrity or otherwise fit and proper to give immigration assistance. I find that in making statements to this Tribunal the truthfulness of which I could not accept, and in maintaining that position in relation to the subclass 880 visa, the financial arrangements in relation to Mr Suri, the provision of the IRMAP, and the “Client Sheet/Progress Report” document purportedly recording the progress of Mr Suri’s case, Mr Tejani demonstrated to my satisfaction that he is not a person of integrity. I have dealt with the issues of credit with regard to Mr Tejani’s evidence earlier in these Reasons for Decision, and find him not to be a witness of credit.
108. The case of Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 is still regarded as a leading case in regard to whether conduct would be reasonably regarded as disgraceful or dishonourable by fellow professionals of good repute and competency.
109. In Hughes and Vale Pty Ltd v The State of New South Wales[No.2] (1955) 93 CLR 127 at 156, the Court stated:
“... with respect to an office is said to involve three things, honesty knowledge and ability; honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it.”
110. As Deputy President Purvis said in Lilienthal, this concept of fitness and propriety is not however to be narrowly construed or confined. He cited Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 as follows:
“The expression "fit and proper person", standing alone carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaged in those activities. However, depending on the nature of the activities, the question maybe whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that will not occur. The list is not exhaustive, but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. (Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 at 380; Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 34 ALD 324 at 328).”
111. MARA found that Mr Tejani was not a person of integrity, and was not a fit and proper person to give immigration assistance, and as stated in the paragraphs above, I have also considered how those indicia apply in relation to Mr Tejani and section 303(f) of the Act.
112. In coming to a decision and with regard to the appropriate penalty, I have taken into account further relevant case law, including Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558, Hughes and Vale Pty Ltd v The State of New South Wales [No.2] (1955) 93 CLR 127 and Re Hakaoro and Minister for Immigration and Multicultural Affairs (1998) 26 AAR 534 and certain considerations taken into account in Narayanan.
113. I have considered the nature of the breaches of the Code of Conduct which I find are not technical, but serious, and covered the whole of the time from when Mr Tejani met Mr Suri in 2006 until the Complaint was made in 2007. I do not find that there were any factors beyond Mr Tejani’s control which could reasonably have contributed to the breaches, and I found that notwithstanding Mr Tejani admitted certain breaches in regard to record keeping, he maintained his position in regard to matters such as the “Client Sheet/Progress Report”, the IRMAP and the application for the subclass 880 visa. In relation to the latter, Mr Tejani has demonstrated that his knowledge of immigration law and procedure was deficient.
114. I have not been informed of any prior breaches of the Act or Code of Conduct by Mr Tejani, and I have further on in these Reasons for Decision, detailed the courses he has undertaken in connection with the Conditions imposed by MARA.
115. Mr Suri told me that due to the incorrect advice upon which he relied, he still does not have permanent residence in Australia, he has spent moneys in connection with that application, that he has experienced marital problems and that his wife has departed,.
116. I find from all the evidence before me, that Mr Tejani:
· Breached clauses of the Code of Conduct in regard to record keeping and admitted to some deficiencies in record keeping whilst maintaining they were minor. I noted that there were many meetings, many matters discussed, and according to Mr Poynder, “there was virtually no written record of his discussions with the complainant”. Instead, the Applicant gave misleading evidence to MARA and to this Tribunal regarding the existence of a “Client Sheet/Progress Report” and breached various clauses of the Code of Conduct in regard to record keeping in Mr Suri’s case.
· Misled the CTTT and MARA as well as this Tribunal in relation to what records he kept of instructions and actions taken on behalf of the Complainant.
· Gave evidence which I do not accept as truthful to this Tribunal regarding the IRMAP;
· Gave evidence which I did not accept in regard to the payment of fees;
· In addition to the breaches of the Code of Conduct found by MARA, I have found, as discussed in the paragraphs above, that Mr Tejani breached Clauses of Part 5 and Part 7 of the Code of Conduct.
· Demonstrated his knowledge of immigration procedures was inadequate and incorrect, particularly in connection with the lodgment of subclass 880 visa;
· Attempted on several occasions to deny he was giving immigration assistance at certain times and in relation to certain items by pointing to Mr Suri having researched matters online, and thereby failed to acknowledge Mr Suri’s dependence on him in his professional capacity;
· Lodged the VETASSESS application which could not succeed, maintaining that he had done so on the basis of the Complainant’s instructions without informing Mr Suri of that fact or recording it.
117. I have made no findings in relation to various issues which arose during the hearing, including when advertisements were placed, or when a suitable wife was found, the 497 visa application, fiancee visa application, the tourist visa application and the 8503 waiver application.
REFERENCES
118. There are two references for Mr Tejani in the T-Documents at T40 and T41. One is from an accountant, dated 10 October 2007, who claims that the Applicant assisted him with obtaining his permanent residence in Australia and did not charge him for his services. The second, from a member of a Masonic Lodge is dated 4 October 2007, and states that Mr Tejani has been a respected member there for four or five years. Neither person gave oral evidence, nor did either indicate he knew of any action being taken against Mr Tejani in relation to his registration as a migration agent. The references are accordingly of little assistance, and I have given them no weight in coming to my decision.
119. The issues of credit I have identified, and the breaches of the Code of Conduct which Mr Tejani made have led me to the conclusion that Mr Tejani is not a person of integrity, and not a fit and proper person to give immigration assistance, (Peng (supra), Hughes and ValePty Ltd (supra), Re Lilienthal (supra) (section 303(f) of the Act)).
THE CONDITIONS
120. As I have noted above, MARA imposed Conditions when it suspended Mr Tejani’s registration.
121. In regard to the Conditions, I am mindful that Mr Tejani tendered the following documents:
· Attachments C & D to the Further Statement of Mr Tejani (Exhibit A2), were letters (not signed or dated), to MARA, from Mr D Lloyd a registered migration agent with a London letterhead. Mr Lloyd described how he had spent 14 hours mentoring Mr Tejani in October & November. No year was given but if the mentoring was a result of the MARA conditions, then it is likely to have been 2008. Exhibit R4 was a letter of Mr Tejani to Mr Lloyd dated 4 November 2008 with regard to the tutoring he had undertaken with Mr Lloyd.
· Exhibit A7 consisted of copies of emails and copies of the following documents:
a) Certificate of Completion by Mr Tejani of a course conducted by The Migration Institute of Australia Ltd dated 14 May 2008, and entitled “Ethics and Professional Practice”.
b) Certificate of Completion by Mr Tejani of a course conducted by The Migration Institute of Australia Ltd dated 1 July 2008 and entitled “File Management”.
c) Certificate of Completion by Mr Tejani of a course conducted by Migration Seminars Australia, dated 26 September 2008, entitled Continuing Professional Development activities (MN39-08c of 2008) – 10 CPD points.
· Exhibit A10 consisted of a Certificate of Completion by Mr Tejani of a course conducted by Migration Seminars Australia Pty Ltd dated 31 January 2009. The Certificate certified the participant had earned four CPD points.
PENALTY
122. I have considered the appropriate penalty bearing in mind the legislation has been promulgated in connection with the protection of the public. The breaches I have found proven in relation to Mr Suri’s complaint, and the fact I have found that Mr Tejani is not a person of integrity and is otherwise not a fit and proper person to give immigration assistance satisfy me that a suspension with Conditions is appropriate. Mr Tejani’s knowledge of immigration procedures and his ability to give accurate immigration advice required rectification which MARA indicated by the Conditions it imposed on his registration.
123. I simply record, and make no comment upon the work Mr Tejani has undertaken in regard to the Conditions as MARA will no doubt want to review those at the appropriate time in the light of its imposition of the Conditions and the decision I make affirming the decision of MARA.
DECISION
124. The Tribunal affirms the decision under review.
I certify that the 124 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ..............[sgd]..................................................................
AssociateDates of Hearing 26 and 27 November 2008, 15 December 2008; 9 February 2009
Written Submissions 13 and 20 February 2009
Date of Decision 9 April 2009
Counsel for the Applicant Mr N Poynder
Solicitor for the Respondent Nr L Leerdam and Ms K Hooper, DLA Phillips Fox
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