Shi v Migration Agents Registration Authority

[2005] AATA 851

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 851

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1157

GENERAL ADMINISTRATIVE  DIVISION		)               N2003/1596                 N2004/475                 N2004/1079
Re		NELSON SHI

Applicant

And MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly

Date2 September 2005

PlaceSydney

Decision

Proceedings N2003/1157
The reviewable decision is set aside and substituted for that decision is the decision that Mr Shi is cautioned. The caution will be lifted on 1 September 2008 if:  

I. Mr Shi is supervised by a registered migration agent until 1 September 2008. That supervising registered migration agent must satisfy the requirements set out in clause 7B(3) of the Migration Agents Regulations 1998; and

    II.    Mr Shi does not provide immigration assistance with respect to protection visas before 1 September 2008.

Proceedings N2003/1596
The reviewable decision is set aside and substituted for that decision is the decision that Mr Shi’s repeat registration is approved. 

Proceedings N2004/475
The reviewable decision is set aside and the decision is made not to suspend Mr Shi’s registration.

Proceedings N2004/1079
The reviewable decision is set aside and the decision is made to renew Mr Shi’s repeat registration.  

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS

MIGRATION – migration agent registration authority – respondent seeking cancellation of Applicant’s registration – Applicant had not complied with the Code of Conduct – Tribunal not satisfied that the Applicant is not a person of integrity or otherwise not a fit and proper person to give immigration assistance – Applicant disciplined through caution – conditions on caution that Applicant must be supervised by a registered migration agent for a further period of three years and Applicant not to provide immigration assistance with respect to protection visas for a period of three years – decisions set aside

LEGISLATION
Migration Act 1958 ss 290, 300, 303, 304A and 417
Migration Agents Regulations 1998 Clause 7B(3)

CASELAW
Lilienthal and Migration Agents Registration Authority [2001] AATA 797
Griffiths and Migration Agents’ Registration Authority [2002] AATA 247

REASONS FOR DECISION

2 September 2005   Senior Member, Mrs Josephine Kelly

Background

1.      Mr Shi is a registered migration agent under the Migration Act 1958 (“the Act”). There were four different proceedings before me concerning decisions made by the Migration Agents Registration Authority (“MARA”) under s 303 of the Act, which relates to disciplining migration agents. On 6 April 2005 I published my findings on alleged non-compliances with of the Code of Conduct prescribed by s 314 of the Act by Mr Shi. The parties have had an opportunity to make submissions about appropriate orders based on those findings and on the question whether I should be satisfied that Mr Shi is not a person of integrity, or otherwise not a fit and proper person to give immigration assistance pursuant to s 303(f) of the Act.

The Proceedings

2.      The proceedings before me were:

Proceedings N2003/1157

3. On 14 July 2003 MARA decided to cancel Mr Shi’s registration as a migration agent pursuant to 303(a) of the Act because it was satisfied pursuant to s 303(h) that he had not complied with the Code of Conduct (“the Code”) and also that he was not a person of integrity or otherwise not a fit and proper person to give immigration advice pursuant to s 303(f) of the Act. Since 31 July 2003, a stay has operated in relation to that decision and is subject to the condition that Mr Shi is supervised by another migration agent and his undertaking not to engage in any business relating to protection visas.

Proceedings N2003/1596

4. On 8 October 2003 MARA refused Mr Shi’s application for repeat registration, which had been lodged on 6 November 2002, pursuant to s 290 of the Act. A stay was granted following a decision by the Federal Court of Australia on 4 December 2003.

Proceedings N2004/475

5. On 19 April 2004 MARA suspended Mr Shi’s registration for a period of 3 years, or until certain conditions had been satisfied pursuant to s. 303(b). That decision was stayed by the AAT on 5 May 2004.

Proceedings N2004/1079

6. On 16 August 2004 MARA refused to renew Mr Shi’s repeat registration pursuant to s 290. That decision was stayed by the AAT on 30 August 2004.

The Legislation

7. Section 303 of the Act provides relevantly:

Disciplining registered migration agents

(1)  The Migration Agents Registration Authority may:

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

(b)   suspend his or her registration; or

(c) caution him or her;

if it becomes satisfied that:

…

(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.

Legal Principles

8. The power conferred by s 303 may be exercised where there has been non-compliance with the Code (s 303(h)). Where a positive finding is made pursuant to either limb of s 303(f), the individual must not be registered (s 290) which I understand means that the registration must be cancelled. The two limbs of s 303(f), that is “integrity” and “fit and proper person” have been succinctly and helpfully discussed in Lilienthal and Migration Agents Registration Authority [2001] AATA 797, paragraphs 18 to 25. I do not repeat what was said in that case, but adopt the principles there set out.

9. During the course of the proceedings, the word “penalty” has arisen from time to time. I emphasise that the purpose of disciplinary proceedings under the Act is to protect the public and to maintain proper standards amongst migration agents, not to punish an agent (Griffiths and Migration Agents’ Registration Authority [2002] AATA 247 at paragraph 28).

Relevant matters

10.     I did not uphold all the breaches of the Code alleged at the hearing by MARA.  MARA also did not argue before me each breach it had found. Mr Poynder appearing for Mr Shi carefully stated that whereas 98 breaches were found by MARA, I found 51, 47 of which related to protection visa cases during the period September 1998 and October 2001 and four which relate to subclass 457 visas filed between October 1997 and January 2000. He also emphasised that the more serious non-compliances that had been alleged were not sustained, including that Mr Shi had encouraged applications that had little chance of success. He provided a detailed analysis of the various non-compliances to support his argument that they were not so significant as to justify cancellation or suspension of Mr Shi’s registration.  

No disadvantage to clients

11.     I accept Mr Poynder’s argument there was no proven disadvantage to any of Mr Shi’s clients. That is a relevant matter and I take that into consideration.

Finding relating to non-compliance with the Code

12.     Whilst individually the various non-compliances with the Code that I have found may not be of great significance, when considered as a whole they indicate that Mr Shi did not appreciate his obligation to know what the Code required and to comply with its terms as they existed from time to time. The requirements of the Code protect the client and the agent and enable MARA to determine what has happened in a particular case.  For example, in the absence of proper file notes, Mr Shi’s evidence was speculative and unconvincing at times because he did not remember what had happened and provided various possible explanations.   

13.     If Mr Shi’s practice satisfied the requirements of the Code that was coincidental rather than intentional.

Most breaches relate to protection visas

14. Mr Poynder emphasised that 94% of the breaches found related to a class of visas which Mr Shi no longer handles and which took place over four years ago. While Mr Shi may have ceased dealing with protection visas voluntarily, the stay in proceedings N2003/1157 was conditional upon an undertaking to that effect. The difficulty I had with that submission was an implication that I could impose a condition on Mr Shi’s registration such that he could not undertake such work. Following discussion, both parties accepted that is not the case, and in my opinion that is quite clear on the face of s 303.

Mr Shi’s Current Practice

15.     Mr Poynder emphasised that Mr Shi’s current practice was most relevant when considering the issues of public protection and maintenance of proper standards. He pointed to the compliance with the requirements for file notes and also said:  “In addition, he is now complying with the requirement that he notify clients in writing of the progress and outcome of each case” and referred to the file of Ainong Zhang.    

16. That Mr Shi is complying with requirements of the Code which have been the subject of intense scrutiny by MARA and this Tribunal in the context of disciplinary action taken pursuant to s 303 which threatens his livelihood as an agent, and which he was obliged to comply with in any event, seems to me to deserve little praise. Rather, I would be astonished if he were not complying. It is, however, a relevant consideration.

Mr Shi’s Current Success Rate

17.      Mr Poynder pointed to figures prepared by Mr Shi showing a success rate of between 74.5% and 98.1% in the years 2003 and 2004. He argued this was of “critical importance” and “reflects a well-operated and successful migration advice agency which is vastly different to that which was operating up until about 2000”. I accept that that material is relevant.  It was not challenged by MARA.

References

18.     I have a number of references which support Mr Shi (Exhibits A11 to A16).  In particular, Mr Poynder referred to the “glowing” reference from Mr Paul Fergus, a solicitor and registered migration agent (Exhibit A4).  Mr Fergus also gave evidence.   He has known Mr Shi in a number of different capacities, including as Mr Shi’s “professional mentor” pursuant to an undertaking to this Tribunal. What the mentoring involved is reflected in the following evidence: (Transcript of Proceedings, 1 October 2005, p 20)

Q:  Are you aware of what his practices are now in terms of file

notes and so on? ---

A:  Well, not - not in detail, Senior Member, no, because I

didn't feel that the obligations I were accept - I was accepting required me to

go into his office and ask to examine files or anything like that.  My

understanding was that the obligations essentially fell on him to consult me

when and as he felt it necessary.  And what I've tried to convey to you is that

we have - I believe that he has done that both by telephone and by personal

meetings which, as I said, he actively arranged.

His conduct in relation to the applications to the AAT and s 417 of the Act

19. I consider that Mr Shi’s actions in relation to requests to the Minister pursuant to s 417 of the Act and the attempts to seek review in this Tribunal are relevant to the issue of s 303(f). His actions in the cases I dealt with, reflect a lack of understanding of the relevant law but more importantly, a lack of judgment on his part. He seemed to just keep doing something to seek a review of a decision, whether or not there was any real chance of success. In the case of Li Qui Cong he made two requests to the Minister, one of which should have specified a different basis for seeking intervention. In relation to the applications to this Tribunal, Mr Shi had no idea whether the Tribunal had jurisdiction. In my opinion, he should have told his clients that he could not assist them further or referred them to someone with greater expertise.

Mr Shi’s credibility as a witness

20. I criticised Mr Shi’s evidence in relation to a number of matters (see paragraphs 77, 81, 82, 89, 90, 93 97, 103, 108, 109, 141, 146 ,173 and 232). This is also relevant to my consideration of s 303(f) of the Act.

“Integrity” and “fit and proper person”

21. Mr Poynder raised the following as a preliminary argument in relation to s 303(f). According to the MARA website, Mr Shi’s registration had been renewed. It followed he said that MARA must have formed the opinion that it was satisfied as to his integrity and that he was a fit and proper person to give immigration assistance. Therefore, I would have to be satisfied that since then there has been a change of circumstances or supervening event which would change that assessment. I accept MARA’s submission that Mr Shi’s registration continues by operation of s 300(1) and (4) and that there has been no determination such as Mr Poynder argued must have occurred. I therefore do not consider his submission further.

The public interest

22.     Mr Poynder argued that suspension of cancellation of Mr Shi’s registration would punish him by depriving him and his family of their income and deter others from taking the risk of undertaking the practice of providing migration assistance. He said that it would not be in the public interest because Mr Shi’s business would close down and the Chinese-speaking community would be deprived of a skilled and highly regarded practitioner. Several hundred files would have to be transferred to other agents with possible detrimental effects on the applications. 

What is the appropriate order to make?

23. Whether Mr Shi’s continuing to practice is in the public interest depends in my opinion on my findings in relation to s 303(h) and s 303(f).

24. Having considered all the evidence, I conclude that I am not satisfied that Mr Shi is not a person of integrity or otherwise not a fit and proper person to give immigration assistance within the meaning of s 303(f). My critical findings about his evidence were one factor to consider. However, there was no evidence that he had acted dishonestly in his practice and he has a number of very favourable references. His attitude to the Code and the consequential non-compliances are relevant is also of concern. However, I take into account that he has had a supervising migration agent for over two years who is a knowledgeable and experienced migration agent and who holds Mr Shi in high regard. There has been no evidence of breaches since the first decision was made in 2003 and his rate of success has been very high in recent years.  Most of the non-compliances with the Code related to protection visas which he has not dealt with since early in 2003.   

25. In my opinion, cancellation or suspension is not appropriate in this case in relation to s 303(h). I consider that there is another course which protects the public interest sufficiently but will allow Mr Shi to continue to practice as a migration agent with appropriate constraints. It is to issue a caution pursuant to s 303(c) subject to conditions imposed pursuant to s 304A. The caution will appear on the MARA web-site until it is lifted, pursuant to the Act.

26.     The conditions I impose will have the effect:

(a)      That Mr Shi continues to be supervised by a registered migration agent for a further period of 3 years from the date of this decision.

(b)   That Mr Shi does not provide immigration assistance with respect to protection visas for a period of three years from the date of this decision.

27.     I therefore make the following decisions

Decisions

Proceedings N2003/1157

28.     The reviewable decision is set aside and substituted for that decision is the decision that Mr Shi is cautioned.  The caution will be lifted on 1 September 2008 if:  

(i) Mr Shi is supervised by a registered migration agent until 1 September 2008. That supervising registered migration agent must satisfy the requirements set out in clause 7B(3) of the Migration Agents Regulations 1998; and

(b)   Mr Shi does not provide immigration assistance with respect to protection visas before 1 September 2008.

Proceedings N2003/1596

29.     The reviewable decision is set aside and substituted for that decision is the decision that Mr Shi’s repeat registration is approved. 

Proceedings N2004/475

30.     The reviewable decision is set aside and the decision is made not to suspend Mr Shi’s registration.

Proceedings N2004/1079

31.     The reviewable decision is set aside and the decision is made to renew Mr Shi’s repeat registration.  

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly

Signed: Miss Sacha Keady
  Associate

Date/s of Hearing  8 June 2005
Date of Decision  2 September 2005
Counsel for the Applicant         Mr N. Poynder
Solicitor for the Respondent     Australian Government Solicitor