Sanders and Migration Agents Registration Authority

[2024] AATA 3028

Sanders and Migration Agents Registration Authority [2024] AATA 3028 (23 August 2024)

Division:                  GENERAL DIVISION

File Number(s):2024/1365      

Re:Troy Mathew Sanders

APPLICANT

And Migration Agents Registration Authority

RESPONDENT

DECISION

Tribunal: Deputy President I Hanger AM KC

Date:23 August 2024

Place:Brisbane

Pursuant to section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Reviewable Decision dated 19 February 2024 and in substitution decides that the applicant must:

(1)successfully complete, within three months of the date of this decision, the following private tuition sessions which are conducted by an individual or individuals approved by the respondent and who are accredited immigration law specialists:

(i)six hours of private tuition in relation to the current Code of Conduct;

(ii)three hours of private tuition in Ethics and Professional Practice.

(2)in relation to the above, Continuing Professional Development Points are not to be accrued from the private tuition sessions.

(3)provide the respondent with a report from the accredited immigration law specialist that the applicant has successfully completed the above sessions.

.................................[SDG].............................

Deputy President I Hanger AM KC

Catchwords

PRACTICE AND PROCEDURE - Where applicant failed to provide an agreement for fees and services to client hotel – where applicant made assumptions as to the authority of an employment agency  to act on behalf of the client hotel  –– where applicant failed to ascertain instructions directly  from the Director of the client hotel -   where applicant failed to test the veracity of documents sent by the employment agency purporting to provide confirmation the hotel client had nominated a visa applicant - whether applicant is a  person of integrity or otherwise a fit and proper person to give immigration assistance – where breaches of the Code of Conduct did not involve dishonesty

REASONS FOR DECISION

Deputy President I Hanger AM sKC

23 August 2024

1. The applicant seeks review of a decision of the respondent to suspend for a period of 12 months the applicant’s registration as a migration agent pursuant to section 303(1)(b) of the Migration Act 1958 (Cth) (the Act) on the basis that the applicant was not a person of integrity or otherwise a fit and proper person to give immigration assistance.

2. The applicant has been a registered migration agent since 2003. In 2019 a complaint was made to the respondent relating to the standard of assistance provided to Mr Singh, an applicant for a visa. At the time of the complaint, the applicant was the sole director of Troy Migration Pty Ltd (Troy Migration). The respondent was also concerned about a nomination applicant, Byrne Hotels Qld Pty LTD trading as Club Hotel Chinchilla (Byrne Hotels). Byrne Hotels was an entity which purportedly was to employ Mr Singh as a restaurant manager. The visa and nomination applications were made under the Regional Sponsored Migration Scheme and in relation to a RSMS Nomination (Direct Entry) (Subclass 187) visa. 

3. The respondent’s complaint was that a number of documents provided to the Department purportedly in support of the nomination application lodged by Byrne Hotels had not been provided by the director of the Byrne Hotels nor on his instructions and that the application appeared to be fraudulent.

4. That is correct. It arose in the following way.

5. Mr Singh attended his offices for an initial consultation with a registered Migration Agent named Ms McNaught who had worked for Mr Singh for a couple of years at the time. She handled files independently but had regular meetings with the applicant in relation to her matters. Ms McNaught advised Mr Singh about obtaining a Subclass 187 Visa. Mr Singh signed an agreement for fees and services on 22^nd of June 2016.

6. Mr Singh had provided provisional information about a purported employer, Byrne Hotels. On 27 June 2016 a Ms Sabine emailed Ms McNaught on an unsolicited basis providing documentation and information on behalf of the purported employer in the matter and indicated that her employer Global Skills and Business Services (Global Skills) was representing Byrne Hotels. The applicant never contacted Byrne Hotels in the period between the initial consultation with Mr Singh and the day the visa application was withdrawn on 15 November 2018. The applicant admits that his business made assumptions as to the authority of Global Skills to represent the potential employer, and he concedes that he should have taken positive steps to determine, either that Global Skills did in fact represent the employer, or that his business should have made direct contact with the intended employer. To put it simply, the applicant genuinely thought that Sabine on behalf of Global was acting for the purported employer and had the authority to provide instructions on behalf of the employer. He has frankly accepted that neither he nor Ms McNaught completed the necessary checks to ensure the appropriate agency. The reality of the situation was that the intended employer knew nothing about the proposal. He accepts that Troy Migration did not enter into a service agreement with the nominating employer and that it should have done so. He has deposed to the fact that he should have known better and that there is a duty on him to test the veracity of instructions.  He accepts that his conduct fell short of what it should have been. There is no suggestion that he personally acted dishonestly.

7. He has been a registered migration agent since 2003 and has an untarnished record. He has disclosed several matters involving complaints over his 20-year practice, but those matters were resolved. They are neither here nor there given the fact that he has acted successfully for thousands of clients.

8. The integrity of the applicant is supported by references from 15 individuals which I take into account.

9. There is no doubt that the applicant did fail to comply with the Code of Conduct. He was held to have breached clauses 2.1, 2.4, 2.6, 2.8, 2.9 and 5.2 of the Code of conduct as it was on 18 April 2017. 

10. Having regard to the purposes and objectives of the Office of the Migration Agents Registration Authority, the most important aspect of registration as a migration agent relates to the character of the person involved.  There is no evidence of dishonesty or a lack of integrity on the part of the applicant. He has been negligent in a particular area. He concedes that he has been in breach of clause 5.2 of the code in failing to provide an agreement for fees and services with Byrne Hotels and awaiting receipt of a signed copy of the agreement before commencing work.

11. I am not satisfied that it is appropriate as submitted by the respondent to suspend the applicant’s registration for 12 months. I take into account his long unblemished career, the references provided to this tribunal, and the fact that his conduct did not involve dishonesty on his part and can more appropriately be categorised as negligent even though it was in breach of the Code of Conduct. I’m satisfied that he should undergo a period of education to ensure that he is up-to-date with contemporary standards.

12. Section 43(1)(c)(i) Administrative Appeals Tribunal Act 1975 (Cth) allows me to set aside a decision under review and substitute it with the correct and preferable decision. I will allow the appeal against the decision, but:

    (1)  the applicant must successfully complete, within three months of the date of this decision, the following private tuition sessions which are conducted by an individual or individuals approved by the Authority and who are accredited immigration law specialists:

    (i)     six hours of private tuition in relation to the current code of conduct

    (ii)    three hours of private tuition in Ethics and Professional Practice

    (2)  in relation to the above, Continuing Professional Development Point points are not to be accrued from this private tuition.

    (3)  the applicant is to provide the Authority with a report from the accredited immigration law specialist that the applicant has successfully completed the above sessions.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President I Hanger AM KC

.................................[SGD].......................................

Associate

Dated: 23 August 2024

Date of hearing:

24 July 2024

Solicitors for the appliant:

Mr Glenn Ferguson

Ms Zoe Naylor

FC Lawyers

Counsel for the respondent:

Mr Nicholas Swan

Solicitor for the respondent:

Mr Jake Kyranis

Sparke Helmore