Shi v Migration Agents Registration Authority
[2005] AATA 904
•6 April 2005
Administrative
Appeals
Tribunal
FINDINGS MADE ON THE ALLEGED BREACHES OF THE CODE OF CONDUCT [2005] AATA 904
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1157
GENERAL ADMINISTRATION DIVISION ) N2003/1596
N2004/475
N2004/1079Re NELSON GUANG LAI SHI Applicant
And
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
Tribunal Senior Member, Mrs Josephine KELLY Date6 April 2005
PlaceSydney
[sgd] Senior Member, Mrs Josephine KELLY
CATCHWORDS
MIGRATION AGENT REGISTRATION – immigration assistance – Code of Conduct – whether requests to minister fall within the Code - whether Applicant has breached designated clauses of the Code of Conduct – meaning of “vexatious or grossly unfounded applications” – meaning of “encouraged” in cl. 2.17 –obligations to clients – fees and charges – record keeping and management – financial duties – duties of migration agents to employees - findings made on the alleged breaches of the Code of Conduct - whether there is an onus of proof in relation to breaches – principles of interpretation applicable
LEGISLATION
Migration Act (Cth) 1958 ss 36, 48, 275, 276, 280, 281, 282, 290, 303, 303(a), 303(b), 303(f), 308(1)(b), 313, 314, 391, 351, 417, 454, 501, 501J,
Migration Regulations (Cth) 1998, Schedule 2, Code of Conduct
Clauses of Code of Conduct 2.1, 2.3, 2.4, 2.5, 2.8(a),(c) and (d), 2.9, 2.17, 2.19, 2.21, 3.6, 4.1, 5.2(b), 6.1, Part 7 – Financial Duties, 8.1, 8.2Freedom of Information Act, 1982, s 61
Industrial Relations Act 1988, s 347(1)
Conciliation and Arbitration Act 1980, s 197A
Supreme Court Act (NSW) 1970
CASELAW
Briginshaw v Briginshaw (1938) 60 CLR 336
Hanna v Migrations Agent Registration Authority (1999) 94 FCR 358
Re Keane and Australian Postal Commission (1977) 1 ALD 53
Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303
Re Holbrook and Australian Postal Commission (1983) 5 ALN N46
Jones v Dunkel (1959) 101 CLR 298
Re Perring and Australian Postal Corporation (1993) 31 ALR 693
Re Rodger and Secretary, Department of Social Security (1991) 24 ALD 720
Re Bessey and Australian Postal Corporation (2000) 60 ALD 529
Browne v Dunn (1893) 6 R 67
Marelic v Comcare 32 ALD 155
Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168
Dolan v Australian and Overseas Telecommunications Corporation (1993) 114 ALR 231
Hartnett v Migrations Agents Registration Authority [2004] FCAFC 269
Geneff v Peterson (1986) 19 IR 40
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470
Marsh v Adamson (1985) 5 FCR 124
NAQVI v MBP (1981) 36 ALR 379
Attorney General v Wentworth (1988) 14 NSWLR 481
VTAO v MIMIA [2004] FCA 927
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 206 ALR 242
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1
Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559NELSON GUANG LAI SHI AND MIGRATION AGENTS REGISTRATION AUTHORITY
INTRODUCTION
1. The applicant, Mr Shi, has four proceedings before the Tribunal in which he seeks the review of decisions made by the Migration Agents Registration Authority (“MARA”). The following is a summary of each of those decisions.
(a) Proceedings N2003/1157 - on 14 July 2003 MARA decided to cancel Mr Shi’s registration as a migration agent pursuant to the Migration Act 1958 (“the Act”), s 303(a). 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.
(b) Proceedings N2003/1596 - 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.
(c) Proceedings N2004/475 - 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.
(d) Proceedings N2004/1079 - 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.
2. The parties agree that the issues in proceedings N2003/1157, N2003/1596 and N2004/1079 are virtually identical. I adopt the approach taken by both parties and refer primarily to the earliest decision in time (N2003/1157) and refer to the s 37 documents using the “T” prefix and the page number. I address the issues in N2004/475 separately. To the extent necessary, I adopt the other references to documents proposed on behalf of the applicant at paragraph 2 of the Applicant’s Statement of Facts and Contentions. The supplementary s 37 documents produced in N2003/1597 are referred to by the prefix “ST” and the page. Reference to documents in N2003/1596 use the prefix “2T” and the page and in the matter of Zhang (N2004/475) use the prefix “ZT” before the page number. Any reference to the s 37 documents in N2004/1079 used the prefixs “3T” followed by the page number.
3. Mr Shi was interviewed by officers from MARA pursuant to s 308(1)(b) of the Act on three occasions. The first interview with Mr Cope on 14 December 2001 was about 457 (business (long stay)) visas (the first interview).The second interview with Mr Robinson was held on two days, 25 September 2002 (T3267 - 3404) and 1 October 2002 (the second interview) which was about Mr Shi’s Protection Visa cases.
PROCEEDINGS N2003/1157, N2003/1596 and N2004/1079
Issues
4. The issues in the proceedings are:
(i)Has Mr Shi complied with various provisions of the Code of Conduct (“the Code”) prescribed by s 314 of the Act, applicable from time to time?
(ii)Is Mr Shi not a person of integrity or otherwise not a fit and proper person to give immigration assistance within the meaning of s 303(f) of he Act?
5. A direction was made on 30 August 2004 that the hearing on “penalty” will take place after findings had been made on the alleged breaches of the Code. This decision is therefore confined the alleged breaches of the Code. The Code of Conduct is referenced throughout these findings, however, for ease of reference the relevant provisions of the Code is contained in an annexure attached to these findings. After the parties have had time to consider these findings, the matter will resume to hear submissions on the second issue (whether Mr Shi is not a person of integrity or is otherwise not a fit and proper person pursuant to s 303(f) of the Act) which is dependent in part on the present findings (see Exhibit R1), and to determine the final decision to be made in each proceeding. I note that during the hearing evidence was given that will be relevant to those matters but not to the breaches of the Code. I have therefore not made findings on that evidence at this stage.
6. My decision is concerned with the breaches of the Code alleged in the Statements of Facts and Contentions submitted by MARA (Exhibit R1) and some additional breaches that were raised and addressed during the proceedings. My task is to review the decisions the subject of the proceedings before me on the basis of the case as argued before me.
The legislation
7. Section 48 of the Act limits the kinds of visa a non-citizen in the migration zone can apply for where either after entering Australia that person was refused a visa (with certain exceptions) or held a visa which was cancelled in specified circumstances.
8. Section 276 currently provides:
"Immigration assistance
(1) For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:
(a) preparing, or helping to prepare, the visa application or cancellation review application; or
(b) advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or
(c) preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or
(d) representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.
(2) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:
(a) preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or
(b) advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or
(c) representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.
(2A) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:
(a) preparing, or helping to prepare, a request to the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J in respect of a decision (whether or not the decision relates to the other person); or
(b) advising the other person about making such a request.
(3) Despite subsections (1), (2) and (2A), a person does not give immigration assistance if he or she merely:
(a) does clerical work to prepare (or help prepare) an application or other document; or
(b) provides translation or interpretation services to help prepare an application or other document; or
(c) advises another person that the other person must apply for a visa; or
(d) passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.
(4) A person also does not give immigration assistance in the circumstances prescribed by the regulations."
9. Section 276(2A) was introduced on 1 July 2004.
10. Section 280 provides that only a registered migration agent may provide immigration assistance, subject to certain exceptions set out in that provision. Section 281 creates an offence for any person “who is not a registered migration agent” to receive any fee or other reward for giving immigration assistance, subject to exceptions in s 281(3).
11. Section 282 of the Act provides that a person who is not a registered migration agent must not ask for or receive any fee or other reward for making immigrations representations. Subsection (4) provides
(4) For the purposes of this section, a person makes immigration representations if he or she makes representations to, or otherwise communicates with, the Minister, a member of the Minister's staff or the Department:
(a) on behalf of a visa applicant about the application for the visa; or
(b) on behalf of a cancellation review applicant about the cancellation review application; or
(c) on behalf of a person nominating (or seeking to nominate) a visa applicant for the purposes of the regulations, about the nomination; or
(d) on behalf of a person sponsoring (or seeking to sponsor) a visa applicant for the purposes of the regulations, about the sponsorship
e) on behalf of a person who has made (or is proposing to make) a request to the Minister to exercise his or her power under section 351, 391, 417, 454 or 501J in respect of a decision (whether or not the decision relates to that person), about the request.
12. Subsection (4)(e) was inserted as of 1 July 2004.
13. Section 303 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.
14. Section 351 provides that if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Migration Review Tribunal (“MRT”) and provide another decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. The Minister is not bound by specified provisions of the Act.
15. Section 417 is a similar provision empowering the Minister to substitute a decision for a decision of the Refugee Review Tribunal (“RRT”).
16. Section 501 empowers the Minister to refuse to grant a visa or to cancel a visa if the person does not satisfy the Minister that the person passes the character test. A person does not pass the character test in various circumstances which take account of the person’s criminal record, association with people involved in criminal activity, and if having regard to the person’s past and present general conduct the person is not of good character.
PRELIMINARY MATTERS
The Standard of Proof
17. Mr Poynder appearing for Mr Shi put several propositions which need to be determined before the evidence is considered. He argued that the standard of proof is that enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336:
In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proof or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion” (per Rich J at 350)
And:
This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained (per Dixon J at 362-363).
18. In Hanna v Migration Agents Registration Authority (1999) 94 FCR 358, Tamberlin J accepted that Briginshaw was the appropriate standard to apply in a case involving complaints against a migration agent.MARA did not oppose that submission. I accept that it is correct.
Is there an onus on MARA?
19. Mr Poynder argued that an onus lies on MARA in relation to each allegation. In the absence of a statutory provision imposing an onus of proof on MARA, such as s 61 of the Freedom of Information Act, 1982, I do not consider that there is an onus on MARA to establish that its decision was justified. However, as a matter of practicality and common sense, if MARA is seeking to have the Tribunal affirm its decisions, it has to put before me the evidence to enable me find that is the correct or preferable decision. See Re Keane and Australian Postal Commission (1977) 1 ALD 53; Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303, and Re Holbrook and Australian Postal Commission (1983) 5 ALN N46.
Does Jones v Dunkel apply?
20. Next, Mr Poynder argued that as MARA called no evidence, but relied on cross-examination of Mr Shi, a Jones v Dunkel inference will arise. He said that there were witnesses who could have been called, for example some of Mr Shi’s clients and Ms Huang, a staff member who provided a statutory declaration. Mr Poynder did not specify which clients of Mr Shi’s should have been called. He said that all the evidence is “one way” and if a witness is not called, I should assume that the witness’s evidence would not have assisted MARA’s case.
21. I accept that a Jones v Dunkel inference may arise in some circumstances in this Tribunal. Some examples are where there is a failure to call a witness by the party whom the witness might be expected to favour (Re Perring and Australian Postal Corporation) (1993) 31 ALR 693 at 694); where there is a well-advised party with the resources of the Commonwealth (Re Rodger and Secretary, Department of Social Security) (1991) 24 ALD 720 at 721); and where there was a medical-legal consultant not called whose report presented some difficulties for the respondent (Re Bessey and Australian Postal Corporation (2000) 60 ALD 529 at 537).
In my view it depends on the circumstances of the case and that is how I have approached these matters
Principles to apply to interpret the Code of Conduct
22. I accept Mr Poynder’s submission that the principles set out by Tamberlin J in Hanna v Migration Agents Registration Authority [1999] FCA 1657 at paragraphs 20-32 guide the interpretation of the provisions of the Code. Exposure to serious sanctions pursuant to s 303 of the Act for breaches of the professional standards set out in the Code indicates that “caution should be exercised before introducing language which the legislature has not chosen to use” when interpreting the provisions setting out those standards. “The duty should be clearly spelt out.”
No findings unless put specifically to Mr Shi
23. Mr Poynder submitted that I should make no findings on matters not specifically put in issue in the proceedings, “that is, allegations that have not been put to Mr Shi in cross-examination to enable him to provide a response”. For example, Mr Poynder submits that I must accept what Mr Shi says about his file notes because it was not put to him that he did not do what he said he did. Although not referred to by Mr Poynder, I understand this to be a submission based on the principle in Browne v Dunn. I accept that the principle applies in the Tribunal as discussed by Mr Pearce in his book Administrative Appeals Tribunal, at 7.4 and in the cases referred to. In particular, I note the remarks of Beazley J in Marelic v Comcare 32 ALD 155 at 161:
The rule in Browne v Dunn is a procedural rule grounded in fairness, and its application must depend upon the circumstances of each case. In Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168; 55 ALR 527 Toohey J held (at FCR 181) that in the circumstances where the respondent’s legal advisers were fully alerted before and during the hearing to the allegations made against the company and the evidence upon which the Commission relied, it was unnecessary to consider the operation of the rule in Browne v Dunn. A similar approach was adopted by Spender J in Dolan v Australian and Overseas Telecommunications Corporation (1993) 114 ALR 231 where his Honour held (at 236) that in the circumstances of that case, the failure to put the contents of a video produced no unfairness to the applicant. …
24. The Tribunal is bound to observe the rules of procedural fairness and in that regard, the rule in Browne v Dunn, with the qualifications to which I have referred, is a convenient statement of the content of that aspect of procedural fairness which requires that a party be given adequate opportunity to meet the case which is put against him or her.
25. I have confined my consideration to the issues raised in the Respondent’s Statements of Facts and Contentions and additional matters which arose and were dealt with during the hearing.
THE CODE
26. Section 314 of the Act provides that the regulations may prescribe a Code of Conduct for migration agents and requires a registered migration agent to conduct himself with that prescribed Code. At all relevant times, the Code has included a provision saying that it is intended to regulate the conduct of migration agents. Various clauses are alleged to have been breached. They are set out where they are dealt with.
Clause 2.17
27. Prior to 1 July 1999 clause 2.17 provided:
A migration agent must not encourage the lodgement of vexatious or grossly unfounded applications under the Migration Act or Migration Regulations, for example, applications under the Migration Act or Migration Regulations which have no hope of success.
28. Relevantly from 1 July 1999, cl. 2.17 provided:
If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) the agent:
(a) must not encourage the client to lodge the application; and
(b) must advise the client that, in the agent’s opinion, the application is vexatious or grossly unfounded; and
(c) if the client still wishes to lodge the application - must obtain written acknowledgement of the client of the advice given under paragraph (b).
Application of the Code to Ministerial requests
29. Counsel for Mr Shi argued that requests made to the Minister pursuant to s 417 of the Act were not subject to cl. 2.17 of the Code at the relevant time. His argument was as follows. “Immigration assistance” is defined by s 276. Section 276(2A) was inserted into the Act on 1 July 2004. That provision explicitly includes for the first time, requests to the Minister pursuant to various sections including ss 351 and 417. The role of a migration agent is to provide immigration assistance as defined in s 276. The purpose of the Code is to regulate the conduct of migration agents. It followed that as Mr Shi was not providing “immigration assistance” as defined when he prepared and sent the requests to the Minister he was not acting as a registered migration agent. As Mr Shi was not acting as migration agent when he dealt with the requests to the Minister then cl. 2.17 did not apply to that conduct.
30. I note that this submission did not refer to section 282 which has the effect that only a migration agent may charge a fee for making “immigration representations”, as well as “immigration assistance”. For completeness, I note that that section was also amended at the same time as s 276 to specifically include in subsection 4(e) a provision which included s 417 and similar sections which confer a discretion on the Minister to substitute his decision for that of another body. Therefore, in my opinion, under the Act a migration agent’s role is limited to providing immigration assistance and making immigration representations
31. Ms Watson appearing for the Department argued that cl. 2.17 does not refer to immigration assistance but refers to “applications”. A request pursuant to s 417 is therefore an “application” within the meaning of cl. 2.17.
32. In my opinion, the decision of the Full Court of the Federal Court, Hartnett v Migration Agents Registration Authority [2004] FCAFC 269 (7 October 2004) is the binding authority on this issue (see paragraphs 62 and 63).
33. Clause 2.9 of the Code was considered in that case which uses the same language as cl. 2.17 with which I am concerned, that is “an application under the Migration Act or Migration Regulations”. An application is confined to “applications” authorized by the Act or Regulations. The process of asking the Minister to exercise his discretion pursuant to s 417, and the similar provisions in s 351, 391, 417, 454 of 501J, is not an “application under the Migration Act or Migration Regulations”.
34. Although Mr Shi’s conduct in relation to requests made pursuant to s 417 are not caught by cl. 2.17, that conduct may be relevant when considering the second issue in these proceedings which is whether I am satisfied that pursuant to s 303(f) of the Act that Mr Shi is not a person of integrity or is otherwise not a fit or proper person to give immigration assistance in relation to which submissions will be made.
35. It was implicit in MARA’s case that a s. 417 request otherwise fell within the Code, that is other provisions of the Code such as those which required the keeping of file notes and documents, applied to requests made under that provision. It is my view that before the amendments in July 2004, making a request pursuant to s 417 was not “immigration assistance”. Such requests were also not ”immigration representations”. Following the amendments, “representations” may be made in relation to an “application” or a request to the Minister.
36. Section 314 provides for the regulations to prescribe a code of conduct for “migration agents”. As stated above, at all relevant times, the Code included a provision stating that it is intended to regulate the conduct of “migration agents”. The Code cannot operate to extend the operation of the statute. The only conduct it regulates is that undertaken by a “migration agent” which by the operation of Part 3 of the Act is confined to providing “immigration assistance” as defined in s 276 or making “immigration representations” as defined in s 282 of the Act
37. Accordingly, prior to the amendment in 2004 , the Code of Conduct did not apply at all to requests pursuant to s 417 of the Act.
Is an application to the RRT subject to cl 2.17 of the code?
38. A further matter that needs to be addressed is whether or not an application to the RRT is an “application” within the meaning of cl. 2.17. Section 276(1) specifically refers to the visa applications and cancellation review applications (subsection (a)), preparing for proceedings before a court or a review authority in relation to such applications (subsection (c), and representing the applicant in such proceedings (subsection (d)). “Review authority” is defined in s 275 as the MRT or RRT. In accordance with Hartnett v Migration Agents Registration Authority [2004] FCAFC 269 an “application” to the RRT is an application under the Act (s 412). In my opinion, making an application to the RRT is relevantly preparing for proceedings before a review authority and therefore falls within the role of a migration agent and is subject to the Code.
Admissions by Mr Shi
39. Mr Poynder argued that admissions by Mr Shi that a particular application, to use the word in a general sense, (whether to the Department, the RRT or the Minister) had no hope of success was not conclusive. I accept that is correct. Whether a particular application fell within cl. 2.17 is a matter for me to determine on the evidence.
Did Mr Shi “encourage” applicants contrary to cl. 2.17?
40. Neither party addressed the meaning of the word “encourage” in cl. 2.17, however, in my view the answer to that question is important to determine whether Mr Shi breached the clause as it was prior to the amendment in July 1999. There is no definition of the term within the Code. What is the ordinary meaning of the word? The following definitions from the Oxford English Dictionary are helpful:
2. Const. to with n. as obj. or with inf.
a. To inspire with courage sufficient for any undertaking; to embolden, make confident.b. To incite, induce, instigate; in weaker sense,, to recommend, advise.
3. To stimulate (persons or personal efforts) by assistance, reward, or expressions of favour or approval; to countenance, patronize; also, in bad sense, to abet.
b. To allow or promote the continuance or development of (a natural growth, an industry, a sentiment, etc.); to cherish, foster.
41. Bearing in mind Justice Tamberlin’s injunction that “the duty should be clearly spelt out”, it is my view that there must be evidence of some positive act by the migration agent beyond lodging the application for the client. I would have to be satisfied that Mr Shi “incited” and made the applicant “confident” that the application had reasonable prospects of being successful.
42. During Mr Shi’s second interview, (commencing from T3278) he was asked about his procedure with the protection visa applicants. He said that he would look at their passport and the visa conditions on it and ask them a lot of questions about their background. He would tell them what options they had and the fee charged for those options.
“And then they select one option”.
43. Where the person chose the protection visa option he would tell them at the outset that the success for the whole procedure, including RRT review, Federal Court review and submissions to the Minister, was very low (T3290). His view was based on statistical material indicating that the success rate for Chinese protection visa applicants was low and was decreasing further “because of the human situation in China, you know, is continuously improving”. He assessed the client’s claims against the criteria of the regulation and from his experience in previous cases of what the Department would say. His experience was that no matter what sufferings a person had had in China, the standard for the Department was how the person came to Australia - by boat or aeroplane. If it was by aeroplane it meant that the person had applied for a passport from the Authority.
44. When asked whether he considered that the sample protection visa applications which were the subject of the interview had no hope of success, Mr Shi responded:
This is a very complicated question. In the beginning of my practice as a migration agent I believed not say most of them but some of them have very good reason for the refugee applications, but their application refused. And as I told you before the Department has a standard, it’s just about how you came to Australia. So they just draw a line. Basically, if you come here with a passport there’s no hope for them to be granted. And but it’s hard to say. One of my cases was successful, and he came here on an airplane with a passport and he was granted protection visa. So to me I think it’s more a question of how the particular immigration officer thinks about the case. So I cannot the hundred per cent no hope, I cannot say that. It’s up to the immigration officer. But I tell them it’s highly unlikely. And also, I have noticed you know, different edition of Code of Conduct has different stipulation. (T3331)
45. Mr Shi said that he charged protection visa applicants a lower amount than other visa applicants as ‘is consistent with my claim that I told them that “Your case is highly unlikely to be successful”. Because, you know, for hopeful case I would charge them more.’ (T3332). Mr Shi’s oral evidence was to similar effect.
46. On the evidence and given the standard of proof applicable, I find that in no protection visa application put before me did Mr Shi relevantly “encourage” the applicant to lodge an application. It is therefore unnecessary to address whether the applications he made before 1 July 1999 were “grossly unfounded” as the only obligation under cl. 2.17 as it was at the time was not to encourage such applications.
47. However, Mr Shi’s handling of these applications is relevant to other alleged breaches of the Code and a determination pursuant to s 303(f) of the Act. It is necessary to consider whether the applications made on or after 1 July 1999 were grossly unfounded because of the additional requirements in cl. 2.17 from that date.
Vexatious or grossly unfounded
48. Clause 2.17 defines the applications to which it applies as those that are “vexatious or grossly unfounded (for example, an application that has no hope of success)”. In this case, MARA relied specifically on the phrase “grossly unfounded” which was variously expressed during the course of the proceedings as “groundless” or “hopeless”, or had “no hope of success”. The whole of the definition is similar to language arising in cases which consider whether a person is a vexatious litigant or proceedings are vexatious. I had the benefit of extensive written submissions on this point from Mr Shi’s counsel. A similar phrase was found in s 347(1) of the Industrial Relations Act 1988 which permitted a costs order only where a party instituted proceedings “vexatiously or without reasonable cause”. In Geneff v Peterson (1986) 19 IR 40, Gray J considered the meaning of that phrase in s 197A of the Conciliation and Arbitration Act 1980, the predecessor of s 347(1). His Honour said:
The choice of the expressions “vexatiously” and “without reasonable cause”, with the disjunctive “or” between them is of some interest. The word “vexatious” is often found in rules of court in company with expressions such a “frivolous” and “an abuse of process of the court”. The authorities do not normally distinguish between these expressions. See, for instance Dey v Victorian Railways Commissioners (1949) 78 CLR 62, especially at 91 per Dixon J (as he then was), and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, especially at 128-130 per Barwick CJ…[T]he focus of the section is on the institution of the proceedings, and the court should not allow itself to be influenced unduly by the result. Further, the use of the word “vexatiously” must have been with the intention that the court should take a view similar to that taken by courts considering whether to strike out proceedings on the ground that they are frivolous, vexatious, or an abuse of the process of the court concerned. For this reason, it must be doubted whether the phrase “without reasonable cause” has a meaning significantly different from the word “vexatiously.
49. His Honour held that s. 197A was not applicable to that part of the proceedings which was at least “arguable”. However, other parts of the proceedings which were “baseless in fact” and barred by the legislation were vexatious and without reasonable cause. On balance, his Honour did not consider that the whole of the proceedings had been instituted vexatiously or without reasonable cause.
50. The case of General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, which was cited in Geneff, involved an application for summary dismissal of a claim on the ground that it could not possibly succeed and was therefore frivolous, vexatious and an abuse of process. After referring to the authorities, Barwick CJ noted (at 129):
It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action...is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless";" so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense.
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".
51. Chief Justice Gibbs considered s 197A in the case of R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470, at 473:
In my opinion a party cannot be said to have commenced a proceeding "without reasonable cause", within the meaning of that section, simply because his argument proves unsuccessful. In the present case the argument presented on behalf of the prosecutor was not unworthy of consideration and it found some support in the two decisions of this Court to which I have referred. The fact that those decisions have been distinguished, and that the argument has failed, is no justification for ordering costs in the face of the prohibition contained in s. 197A.
52. R v Moore was cited by St John and Wilcox JJ in granting an application for costs in the decision of Marsh v Adamson (1985) 5 FCR 124. Their Honours considered, at 125-126, that the provision was applicable where the application had been wholly incompetent. A similar approach was taken by Evatt J in NAQVI v MBP (1981) 36 ALR 379. His Honour cited Barwick J in General Steel Industries, found, at 383-384:
Being of the opinion that the court had no jurisdiction to hear the present matters at the time when they were instituted as they were then statute barred and applying the principles referred to above I am of the opinion that the present proceedings were instituted vexatiously and without reasonable cause within the meaning of the phrase as used in s. 197A of the Act.
53. I respectfully adopt the view of Justice Gray in Geneff. In cl. 2.17 it must be doubted whether the phrase “grossly unfounded” has a meaning significantly different from the word “vexatious”. Although dealing with the Supreme Court Act (NSW) 1970, the language of Roden J in Attorney General v Wentworth (1988) 14 NSWLR 481 at 491 is a useful summary of the meaning of “vexatious”. Proceedings are “vexatious” if they:
“1. are instituted with the intention of a annoying or embarrassing the person against whom they are brought.
2. are brought for collateral purposes and not for the purpose of having the Court adjudicate on the issues to which they give rise.
3. are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
4. In order to fall within the terms of s 84 of the Act:
(a) proceedings and categories 1 and 2 must also be instituted without reasonable ground (proceedings in category 3 necessarily satisfy that requirement).
(b) proceedings must have been “habitually and persistently” intstituted by the litigant.”
MARA did not allege that the applications were vexatious within the meaning of 1 or 2 above. Assuming that “grossly unfounded” is to be separately interpreted, it is my view on that authorities that it can be summarily expressed in terms of the third meaning of “vexatious” given by Roden J. The purpose of cl. 2.17 is to constrain the lodging of applications which fall within the definition. Adapting the language used by Barwick J in General Steel, an applicant ought not to be denied access to the customary tribunal which deals with applications of the kind he brings, unless his lack of a case is clearly demonstrated. In my opinion, “grossly unfounded” refers to applications which are known to the agent to be baseless in fact or which do not satisfy the criteria for a particular visa class on their face. Such an interpretation of clause 2.17 is consistent with the Government’s publicly stated view of the provision. In a recent document produced by the Department of Immigration and introduced by the Minister for Citizenship and Multicultural Affairs, “Information Kit on Migration Agents” (July 2004), the heading, “Vexatious or grossly unfounded applications” (at p. 46), gives the following examples of conduct which would constitute a breach of clause 2.17:
If an agent:
·lodges applications where the client clearly does not meet the objective criteria for the particular visa class – usually for the purpose of delaying the client’s departure from Australia; or
·encourages the lodgement of applications containing statements the agent knows to be misleading or inaccurate.
54. I have found that Mr Shi did not “encourage” the lodging of applications which he conceded had little of chance of success. MARA did not suggest or prove that Mr Shi knew that any of the information provided by his clients was misleading or inaccurate when an application was lodged. The question in respect of each application is whether on its face it satisfied the criteria for the visa class.
55. Section 36 of the Act sets out the principal criteria for a subclass 866 Protection visa. An applicant must be a person to whom Australia has protection obligations under the Refugees Convention as amended b the Refugees Protocol. The applicant has to make specific claims under the Refugees Convention (Schedule 2, Part 866.211(a)). In summary, the person must be outside the country of nationality owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or who, not having a nationality and being outside the country of former habitual residence, is unable, or, owing to such fear unwilling to return to it.
56. The argument in the protection visa cases was confined to whether the application established a “well-founded” fear of being persecuted in relation to the particular race, religion, nationality, membership of a particular social group or political opinion that was asserted. Except in the case of China’s one child policy, MARA did not argue that one of the five grounds of the Refugees Convention had not been raised. In my opinion, unless a migration agent knew that the claim was factually baseless, a determination of whether a claim is well-founded is a merit assessment for the decision-maker. I consider shortly each of the cases upon which MARA relied.
RRT APPLICATIONS WHERE NO FURTHER INFORMATION WAS PROVIDED
57. MARA pressed Mr Shi during evidence about 15 protection visa applications in which applications were made to the RRT and where no further information was provided to support them. MARA’s argument was that they were bound to fail and therefore fell within cl. 2.17. This was a separate argument from that directed to specific cases which I consider shortly. Mr Shi did not agree that they were bound to fail because if further information was provided after lodgement that may not have been so. He said he did advise clients that if no further information was provided there was very little chance of success but he had no file notes and no written acknowledgements of the advice. Mr Shi also acknowledged that applications were highly unlikely to succeed without additional information
58. Mr Shi cited two successful cases as supporting his position. One was where a lady from China with Russian citizenship, although never having lived there, was successful at the Ministerial level although no additional information was provided. Similarly, in the case of an East Timorese, not much more information was provided to the RRT, but the Minister allowed it.
59. Mr Shi emphasised that when he told applicants the information was not enough to support a claim and that they must supply more, they always told him they would provide further information. He said some did and they had good case, however most clients never did. He said he felt obligated to represent them because they promised the additional information. He said he had four successful refugee claims, none of which was at the primary level or from the RRT. The applications were successful in the Federal Court or with the Minister, and took three to four years. The client continually supplied additional information about experience in China and Australia. Some cases were approved because of the client’s activities in Australia. He concluded therefore that an application could succeed even if initially there was little information. There was a chance of succeeding if an application was lodged, but none if you do not.
60. The assumption underlying MARA’s approach was that because the matter had failed at the primary stage and that no additional information had been given at the RRT stage, therefore the application was bound to fail and therefore fell within cl. 2.17, being “grossly unfounded”. Given my findings about the purpose of cl. 2.17 and the meaning of “grossly unfounded”, MARA’s argument does not follow. It fails to address the real question of whether a particular application was relevantly “grossly unfounded”, that is whether on its face it satisfied the criteria for the visa class.
ALLEGED BREACHES OF THE CODE IN SPECIFIC CASES
61. On behalf of MARA, a number of protection visa cases were relied upon before me to establish that Mr Shi had breached cl. 2.17, in that being aware that protection visa applications were grossly unfounded, he:
·encouraged clients to lodge the applications (in force before and after 1 July 1999);
·failed to advise each client that, in his opinion, the application was grossly unfounded; (in force from 1 July 1999);
·failed to obtain from clients written acknowledgement of his advice that, in his opinion, the visa application was grossly unfounded (in force from 1 July 1999).
62. The files referred to are found in the T documents volumes 1 to 11. They are:
·Shui Ji CHEN
·Gang NAN
·Hong Mei MIAO
·Mei MIAO
·Wen Yu CHI
·Ming ZHOU
·Li Qui CONG
·Li Yu JIANG
·Qing TAO
·Zeng Qi HU
·Qiao Zhen HUANG
63. MARA also alleged that the application was “grossly unfounded” in the spouse visa application in ZHANG Ainong (application no. N2004/475), and the applications by Yan XU, Rui Hua SHEN and Ming ZHONG, which were skilled visa applications. These are dealt with later.
64. A further suggestion was made on the morning of 1 October 2004 that the applicant’s fifteen subclass 457 temporary business visa applications were also “hopeless” and should have attracted the obligations under clause 2.17. (per Poynder)
Hong Mei Miao and Mei Miao
65. Mr Shi took instructions from Hong Mei MIAO (T940) to apply for a protection visa on 16 February 2000. He took instructions from Mei MIAO on the same day (T1003).
66. At T3367, Mr Shi conceded that these applicants had no hope of success. In oral evidence, he said that in these two cases hopes were very slim and that they were hopeless, and that he did advise that the applications were highly unlikely to succeed but he failed to get written acknowledgement of the advice he gave. He also said that they had a small chance of success and therefore you could not say they had no hope of success. There was a possibility of success before the RRT and the Minister also approved applications.
67. Mr Shi admitted that he was unaware of the requirement of cl. 2.17 for written acknowledgement from the client that was introduced in 1999. He said “yeah, but somehow I just didn’t have that edition of the Code of Conduct” (T3371). At the hearing it became clear that he first became aware of the written acknowledgment requirement on 25 September 2002 during the interview with Mr Robinson, more than two and a half years after that obligation came into effect.
68. This is a very serious breach of cl. 2.3 of the Code and it follows in my view, of cl. 2.1. Clause 2.3 provided relevantly:
A migration agent’s professionalism should be reflected in a sound working knowledge of the Migration Act and the Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.
Clause 2.1 provided relevantly:
A migration agent must always;
(a) act in accordance with the law and the legitimate interests of his or her client; and
(b) deal with his or her client competently, diligently, fairly and without any conflict of interest that would affect the legitimate interests of the client.
69. Mr Shi did not have a sound working knowledge of the Act and regulations and was not diligent if he was unaware of provisions of the Code so long after they came into force.
70. The submission lodged on behalf of Hong Mei MIAO contains the following statements that are specific to her. She has practised Falun Gong for several years and is a senior member. She often held Falun meetings at her home and took charge of spreading Falun ideas. She practised Falun Gong for health reasons and had no political intent. She was afraid of going back to China where she might be arrested and imprisoned for the rest of her life. (p 994) There was no copy of statement made by Hong Mei MIAO on Mr Shi’s file.
71. An application for a spouse visa was made on-shore for Hong Mei MIAO. She complained to MARA but it made no finding. Mr Shi said in oral evidence he told people about the effect of s 48 of the Act if they “chose” to apply for a protection visa but that they cannot digest that information immediately. Section 48 limits the type of visa for which an application may be made when the applicant has been refused a visa or has had a visa cancelled. He said he had a lot of cases where protection visa applicants later formed a relationship and made spouse applications and therefore he had to warn them about s 48. This evidence is to be contrasted to Mr Shi’s statement in his statutory declaration dated 21 May 2004 at paragraph 97 where he states that s 48 was not an issue as none of his clients ever suggested that they would be making a further application for a visa in Australia.
72. The statement lodged on behalf of Mei MIAO (T1006) contains the following statements specific to her. She is a Falun Gong practitioner, “just for my health and a peaceful mind. I do not have any political intention”. She is afraid of staying in China as she is afraid of being arrested by Chinese authorities.
73. In the absence of any further statements or supporting documents, were those applications “grossly unfounded”? MARA argued that no claim was made by either applicant that the authorities were aware of their alleged activities either while they were in China or after they had left China, or that their activities were such that they would come to the attention of the authorities some time in the future should they be returned to China, that is there was no evidence of persecution. In my view, accepting that the applications did not include the information MARA pointed to, that does not mean that they were “grossly unfounded” within the meaning of cl. 2.17. What MARA points to are matters going to a merit assessment of a claim that prima facie satisfies the criteria of a protection visa application, that is a fear of persecution on the basis of religion.
74. Mr Shi admitted that requests to the Minister pursuant to s 417 in relation to both Ms MIAOS did not disclose matters rendering them either unique or exceptional despite the requirements of MSI 225 that a case officer be satisfied that a matter involved unique or exceptional circumstances before they may fall within the category of cases where it is in the public interest for the Minister to intervene under s. 417 (p 3379-80). This submission was made on the basis that s 417 requests fell within cl. 2.17 which I find they do not. The extent to which this is relevant to s 303(f) is a matter for further submissions.
File Management
75. In the case of Hong Mei MIAO Mr Shi acknowledged that the date of 28/2/00 was the date of the letter refusing the application rather than the date when the client was advised of that decision and therefore there was a missing entry. This is a breach of cl. 6.1(c)(i) of the Code which requires file notes of every substantive or material oral communication between the client and the agent. I give my detailed reasons for my interpretation of cl. 6.1 later.
76. This is a case where no additional information was provided for the RRT review or before the decision refusing the application was given. I have addressed the argument in relation to the RRT above.
77. A request pursuant to s 417 was sent to the Minister but there was no evidence of instructions being given to do that. Mr Shi said he was instructed to proceed and obviously she later changed her mind but “we failed to make an entry”. He pointed to there being no record of charging the client to support that suggestion. He said a possible explanation was that the client had already advised him to stop acting and he just sent her file to storage and later she came back and he did some work, set up a new file and when he was audited he failed to put the files together. He withdrew that possible explanation when a later application for a bridging visa was drawn to his attention. While not subject to the Code this evidence may be relevant to the consideration of s 303(f). This is an example of Mr Shi’s evidence altering as he became aware of material that contradicted what he had previously said.
78. Mr Shi accepted that the fact the client had come to Australia twice on a visitor visa on her own passport was not sufficiently addressed in the statement provided with the application. I agree and find that this is a breach of cll. 2.1 (above) and 2.19 of the code which provided:
Subject to a client’s instructions, a registered migration agent has a duty to provide sufficient relevant information to the Department to allow a full assessment of all the facts against the relevant criteria. For example a registered migration agent must avoid the submission of applications under the Migration Act or Migration Regulations in a form that does not fully reflect the circumstances of the individual and prejudices the prospect of success.
79. In the case of Mei MIAO, Mr Shi acknowledged that her statement was drafted by a staff member. She had visited Australia twice on own passport and Mr Shi acknowledged that that issue was not sufficiently addressed. That is also a breach of cll. 2.1 and 2.19. The decision refusing the application was made on 28/2/00 and the file note of notification was the same day. Mr Shi admitted that was a mistake. It does not accurately reflect the date of notification and is a breach of cl. 6.1(c)(i)..
80. In relation to the RRT hearing notification dated 9/10/2000 that was the date of the letter and not the date when advice given to the client. This is again a breach of cl. 6.1(c)(i).
81. The request to the Minister in Mei MIAO’s case is missing from Mr Shi’s file (T1003 and ff). It was declined by a letter dated 9/4/01 (T1062). The file note indicates that she was advised that day which must be incorrect. The next and last entry was on 1/11/01. Mr Shi had two possible explanations. One was the he had given her the request without photocopying it, and the other was that she may have later joined a class action but that the Department sent the letter to him. The latter explanation did not make sense given the earlier entries noting the dates of instructions to lodge the request, payment, posting the request, the lodgment of a bridging visa application, receipt of the Minister’s acknowledgment and the grant of the bridging visa. I find Mr Shi’s explanation speculative and unconvincing. He did not know. This is a matter relevant to s 303(f) of the Act.
82. Mr Shi said that Hong Mei MIAO and Mei MIAO changed their minds all the time but that the progress forms did not reflect that and also that perhaps he was not told of the change of mind. This is speculative and seeks to minimise Mr Shi’s responsibility for failing to keep accurate file notes and records.
Gang Nan (Or Na)
83. Gang NA, or NAN as he is referred to in Mr Shi’s client file, was a citizen of China of Korean descent. Mr Shi received instructions from him on 18 March 1999. He claimed to be discriminated against in China due to his Korean ancestry, but made no claims of having personally experienced discrimination or harassment due to his Korean ethnicity. Mr Shi’s progress notes indicate that the client had advised that he “suffered discrimination in politics, economics and culture” (T365), however, the statement accompanying the application referred neither to politics nor culture.
84. Mr Shi suggested that the reason why Gang NA had not suffered persecution was his youth and therefore he was seeking to establish a link between what his parents had suffered and what he would suffer in the future. Mr Shi acknowledged that he should have advised the client that there was no hope of success and said that he did so. No note appears on the file that such advice was given nor is there any evidence that advice was given as to the kind of material or information which should be supplied by way of supplementary material. While the case may be judged to have had little prospect of success, I do not find that it was grossly unfounded. There was a claim of persecution on the basis of race and therefore the grounds of the Convention had been raised. The assessment of the factual basis of the fear of persecution was for the decision-maker, not Mr Shi.
85. Mr Shi sought to excuse the lack of information supporting the application by claiming that the client came to him with only a few days left on his visa. When it was pointed out to Mr Shi that Gang NA had been in the country unlawfully for 15 months, he said that this one was an exception and that usually clients come “to us” with a few days left before their visa expires and then and we have only a day to get instructions and for them to start to recall information to establish refugee status. As in other instances, Mr Shi’s first response to a question was to provide an excuse for the poor handling of an application or file keeping.
86. Mr Shi said Gang NA had not fully prepared until “he came to us” which included not having researched protection visas. Mr Shi sought to cast on Gang NA the responsibility for not having the necessary information rather than considering his and his employees’ role in preparing the application.
87. Gang NA had an added difficulty, having been unlawfully in Australia 15 months following the lapsing of his 456 (short term business) visa which he extended once. When it was suggested to Mr Shi that this should have been addressed and an explanation given as to why he had not applied earlier, Mr Shi said it had been addressed but then conceded that he had not advised the client to explain why it took him over 12 months to apply because he (Mr Shi) did not see that that would cause damage. Mr Shi seemed to have some difficulty accepting that this should have been addressed in the application or in advice on the prospects of success. He believed the Department would rely on the merits of the application. Once again Mr Shi’s evidence changed in response to matters brought to his attention. In my opinion, this was clearly a matter that needed to be addressed. This is a clear breach of cll. 2.1, 2.3, 2.4 and 2.19 of the Code.
88. Mr Shi became aware at some point, although he was not sure if he knew at the time of that application, that departmental officers believed that if someone had arrived in Australia with a passport, then their situation was not serious because the government had authorised them to leave. Mr Shi pointed out that is not necessarily the case. Persecution can occur at the local government and police levels, not just national government which controls airports and ports, and there is corruption at all levels of government. That there was no explanation for his being in Australia without applying was a factor taken into account in the decision (T395). A covering letter was not submitted, in accordance with Mr Shi’s practice. He said it is the Department’s role to link the claim with the relevant law. His role was to provide the facts. The only documents submitted were the application form and statement which were drafted by his staff. His only role was to check what had been done. Notes taken during conversations with the client were thrown away and an entry made in the progress form if it were important. Mr Shi agreed that he translated the material to the client when completed. Mr Shi’s explanation of his role deflects responsibility from him. I accept he was concerned to obtain the facts, however, to be of assistance to the applicant he had to know the criteria which was to be satisfied and matters which would be relevant to the consideration of the application.
89. After refusal on 6 May 1999, Mr Shi’s progress notes record that a telephone number was called and there was no answer. Mr Shi said it was likely “we advised him on that number” but failed to put an entry to reflect that. Mr Shi also suggested the client may have got a copy of the decision from the Department or by coming into his office. Mr Shi said his response was not based on speculation, “more likely we were able to contact him”. I find that Mr Shi simply did not know. Clearly, no written communication of the outcome was provided as required by cl. 2.8(d).
90. On 13 May 1999 payment was recorded for review but there was no record of separate advice being given. Mr Shi said he did give advice but did not get a written acknowledgment. This was prior to the amendment to cl. 2.17 and I therefore make no finding on the grossly unfounded point. There was no additional information provided on the RRT application (T402). Again Mr Shi said the client had promised to provide additional information although he could not recall what that would have been and denied no such discussion had occurred. There is no file note of any conversations at any time which refer to the provision of additional information. I do not accept Mr Shi’s evidence. I do not know on the evidence what if any advice Mr Shi gave about the prospects of success or the need for additional information.
91. The file note recording the RRT decision of 17 November 1999 (T415) states that the client was advised that day. Mr Shi’s comment about the progress note was that that was a “typical mistake – date of decision not when done”.
92. I find the following breaches of cl. 6.1(c)(i). Mr Shi failed to record oral advice about the application at all, in relation to prospects of success of the application at either the primary decision or RRT review stage, including whether or not further information was necessary, and the nature of such information. The file note purporting to record notification to the client of the RRT decision is inadequate because it does not reflect the correct date and does not indicate how the client was advised, if he was. There were also breaches of cll. 2.8(c) and (d) in failing to keep the client informed in writing of the progress of the application and of the outcome.
93. The letter to the Minister (T432) is substantially identical to the original statement with minor amendments necessary to update relevant matters. The sum of $250 was charged for it. It was drafted by staff members. Mr Shi said he takes 1½ to 2 hours to provide advice on the relevant procedure and to ask whether there have been new experiences in Australia. He said that if nothing was added to the original statement he would advise that there was little chance of success but if the client insisted on lodging it, he would do so. There was no file note referring to such advice being given about this application. This is not covered by the Code. I do not accept that Mr Shi spent the time he said he did providing advice in this case and I do not accept that he recalled providing advice as to the prospects of success as he described.
Wen Yu CHI
94. Ms CHI, a citizen of China, advised Mr Shi that her parents were both scientists, who suffered during the Cultural Revolution. She went to the countryside with her parents at age 7 and also suffered a lot (Volume 2 T434). Her statement, (T437-8) repeats the claim that her parents suffered during the Cultural Revolution and that she was forced to go to the countryside with them. Ms CHI’s statement consisted of general claims including being fearful of persecution but she did not indicate why she would be subjected to persecution. Mr Shi claimed the application was based on a political movement and that China launches persecutions against such groups and it was based on her parent’s situation, there being no statement of her involvement in a political or social group. No attempt was made to address the well known country information that the policies of the Chinese Government during the Cultural Revolution had long been abandoned. There are no file notes relating to any conversation in which advice was given as to the prospects of success.
95. The application was made in March 1999 and therefore, cl. 2.17 applied in its form before amendment on 1 July 1999. For the reasons given earlier, I do not consider whether or not the application was “grossly unfounded”. Ms CHI had arrived in Australia on a 456 (short term business) visa on 23 August 1997. She departed Australia on 28 December 1998 on a Class WB bridging visa and returned on 16 January 1999.
96. Mr Shi conceded that her statement contained no explanation of how she could return to China and then back to Australia. His failure to address this in the application is a breach of cll. 2.1, 2.3, 2.4, 2.19 of the Code.
97. He said that at the time of her application it could be said to be hopeless but that he would have advised her to provide more information and she had promised to do so. I am not satisfied that this was the case. Rather, as with other aspects of his evidence, I find that Mr Shi provided a possible explanation rather than what actually happened. I also find that explanation unsatisfactory. If Ms CHI could not tell Mr Shi at the outset from her own knowledge sufficient information about what had happened to her to make a case which was better than hopeless in Mr Shi’s opinion, the promise to provide further information or documentation would be unconvincing.
98. There was no file note that Mr Shi advised her that her case was hopeless. Mr Shi said that he did develop a practice of clients having to sign an acknowledgment in English of such advice (eg Vol 11, T3660 dated 6 August 2001) but that he stopped preparing protection visa applications at the beginning of 2003.
99. The absence of a file note of what happened when Mr Shi was instructed to lodge the application is a breach of cl. 6.1(c)(i). Whatever the communication was it was “a substantive or material oral communication”.
100. Mr Shi acknowledged that the correspondence with the client was oral (Volume 2 T436). There was no additional information supplied for the review application lodged on 31 May 1999 (T469 and T472). There is a file note dated 13/9/99 that a lady promised to tell the client of the hearing. Mr Shi said his records showed that she had come back and signed confirmation for the hearing and that she would attend (T480). She did and was unsuccessful (T483).
101. Mr Shi conceded he did not comply with the Code requirement (cl. 2.8(c) and (d)) to keep the client informed of progress and outcome in writing. He said that there may have been more than one telephone call to the client as the file note was not reliable and there were lots of missing entries of things done and not recorded, although he could not say what they were. I simply do not know whether there were lots of missing entries or not.
102. He acknowledged that the only address the RRT had was his, and therefore his client was relying on him to keep her informed. There was no file note of his advising her of the outcome. Mr Shi relied on a record of her contacting his office personally and signing a form as being when she was advised. He said he did sometimes advertise to find people, for example in the case of Xiang Hua ZHAO (Exhibit A5; vol. 11 T3670). Mr Shi conceded his file notes were terrible but maintained that he did everything he was supposed to do in terms of correspondence with clients.
103. Mr Shi had no record of the s 417 request apparently made on 1 February 2000 or a receipt for it although he maintained he did issue one. The request did not address unique / exceptional circumstances. Mr Shi acknowledged it had very little chance of success and had nothing to engage the discretion under the section. He said he advised his client that it was bound to fail, although there was no written acknowledgement of such advice and no file note. The refusal was dated 22 May 2000 (T497) and the file note was the same date, which was clearly incorrect. There was no file note that the client had been advised of the outcome. Although the Code is not applicable, the handling of this request is relevant to s 303(f). I do not accept Mr Shi’s evidence of the advice he gave.
Ming ZHOU
104. Mr ZHOU, a citizen of China, also claimed to fear persecution based on the experiences of his parents during the Cultural Revolution and his treatment as their son when he was a child. The claims advanced by him in his statement are based on speculation that there would be a change in Government policy some time in the future and that he was fearful of the repercussions of such a change. His application was lodged on 26 May 1999. On being advised of the result (on the same day as the date of the refusal according to the file note, 15 June 1999), Mr ZHOU “intended to do the review on 18/07/1999”. That file note precedes two others dated 27 June (payment of the review application) and 19 July 1999 (the date the review application was lodged).
105. Given the date of the primary application, I do not make a finding whether or not that application were grossly unfounded. In relation to the application for review, apparently instructions were given before 1 July 1999 although payment and lodgement were in July.
106. Mr ZHOU had already been in Australia for two years on a business visa (Volume 2, T578). Mr Shi accepted that there was no record of advice being given. The review application was made with no further information being provided in support of it. Mr Shi repeated that he had three or four protection visa applications approved by the RRT and he said he did advise this applicant that the application was bound to fail but again there was no file note or acknowledgement of that.
107. That application being made after the introduction of the amended cl. 2.17, I find that the application for review was grossly unfounded. The weight to be given to the finding must take into account that instructions were given before 1 July and is a matter for further submissions. While there was an assertion of fear of persecution, that was based on an objectively highly speculative future event. The client did not express any political opinions that might be considered to link his and his parents’ difficulties during the Cultural Revolution with a current threat of persecution.
108. Both the primary decision and RRT decision were missing from Mr Shi’s file. He provided a couple of explanations for that. First, he said the client came back to the office and required a copy of claim and maybe he was given it. Secondly, when the files were photocopied for MARA it was missed as he had a few thousand pages to copy and so a few were missing. Once again, Mr Shi’s evidence was speculative and unconvincing. These are breaches of cl. 6.1(a) of the Code.
109. A file note dated 1 June 2000 stated that the s 417 request had been declined and a telephone call was made to advise the client of the result but “nobody answered the phone” (T579). No further call is recorded. Mr Shi’s evidence was that the client had agreed to telephone contact. He said the clients moved too quickly and frequently to advise them in writing and he “advises them to keep us updated with their new telephone numbers”. He also said that “if we could not reach them we regarded the contract as broken”. He also stated that “normally the Department sent letter to us and client”. This explanation seemed to be directed to minimising Mr Shi’s responsibility. On 8 October 2000 the client went to his office and was advised of the result. He had already been unlawfully in Australia for three months. Mr Shi said this was the only file where he failed to advise the client effectively. I do not accept that evidence. I consider that Mr Shi simply does not know.
110. When a comparison was made of the client’s statement which accompanied the primary application (T583) and the s 417 request (T629) they are relevantly identical. Mr Shi agreed no attempt had been made to address the exercise of the Minister’s discretion under 417. These matters may be relevant to consideration of s 303(f) of the Act.
Li Qui CONG
111. This matter was not referred to specifically in the Department’s Statement of Facts and Contentions but was referred to during the hearing. It is included in Volume 1 from T74 to T149. The basis of the application for a protection visa was fear of persecution because of Russian ethnicity. The progress note held by Mr Shi only deals with an application for a protection visa, although Mr Shi believed he was instructed to apply for a 457 business visa which was never lodged. He could not remember the work he did for the various sums of money paid to him and said that the receipt appearing at T77 was not an accurate receipt (it refers to an 866 visa category). He speculated that the fee could have been for a sponsorship application and that the application may have been withdrawn. There was no attempt to comply with Code in terms of documenting amounts of money paid. There is a clear breach of Part 7 of the Code.
112. A request to the Minister pursuant to s 417 was unsuccessful. A second application was made to the Minister’s office which Mr Shi claimed misconceived the application to be an s 417 request rather than one pursuant to s 48B. That is, he was seeking to file a further protection visa application because circumstances had changed with membership of Falun Gong having arisen as an issue. This is not consistent with the file note which records “Instructed to do the second Minister request and paid $250”. Mr Shi acknowledged he should have advised the Minister’s office of the basis of the application. He also said that he needed to advise his client on this issue and get instructions but in the absence of a file note he cannot remember. These matters may be relevant to a consideration of s 303(f) of the Act.
Qing TAO
113. Ms TAO claimed to fear persecution based on her involvement in pro-democracy activities and, more recently, had been part of an organisation intending to stage activities to commemorate the 10th anniversary of the pro-democracy demonstrations. She claimed that members of her organisation had been arrested and she had fled as the authorities were searching for her (T638). Her application was lodged on 8 June 1999. No explanation was provided with her application as to why she was able to leave China using her own passport when the authorities were searching for her. She arrived on a visitor’s visa. There is no indication on the file that Mr Shi gave any advice to Ms TAO about anything, including the prospects of success of an application for review lodged on 15 July 1999 or the possible difficulty arising from her having come to Australia on her own passport. Mr Shi should have had some file note of what happened when he took instructions from Ms TAO and accordingly cl. 6.1(c) Code is breached. He should also have addressed the fact that she had left China on a visa. On that basis I find a breach of cll. 2.1, 2.3 and 2.4.
114. Payment was made for the review application on 28 June 1999 but lodged in July. I find that this application was not grossly unfounded. It raised a fear of persecution on the basis of political opinions.
Mr Shi believed the claims were credible as he did in the case of Qiao Zhen HUANG which is almost identical.
Qiao Zhen HUANG
115. Ms HUANG’s claims are almost identical to the claims of Qing Tao (see T679 and following). She arrived in Australia with Ms Tao on a visitor visa. The application to the Department and the state of the client file is identical with that matter. I make the same findings as for Qing TAO.
Zeng Qi HU
116. Ms HU (Volume 11 T3716 to T3782), first saw Mr Shi on 23 February 2001. The progress form records that she practised Falun Gong and feared persecution. However, the application records her religion as Christian (T3774), as does the statement which supported her application dated 27 February 2001 (Volume 7 T2335) and which claims persecution on the basis of that religion. Mr Shi offered two possible explanations for this disparity, as he did not specifically recall the circumstances. Firstly, she may have changed her claim after the registration form had been filled out. Secondly, it may have been that at the time she instructed him briefly and said she had a religious fear and he understood that to be on the basis of Falun Gong which is more popular than Christianity and has 100 million Chinese followers but that when she came back and gave further instructions that was clarified. There is no file note to show what did actually happen and accordingly, I find there is a breach of cl. 6.1(c)(i).
117. Mr Shi acknowledged that the file note dated 10/04/02 (T3717) which indicated the date of receipt of a letter from the RRT and advice being given to the client about ministerial intervention was “mistaken” as the date of the RRT’s decision was 16 April 2002 (T3723).
118. Approximately half of the statement of LIU Zhuling (dated 24/0/00, T2334) is identical to the statement of Ms HU (27/02/01, T2336). I understand that MARA was only reinforcing the point that the practice in Mr Shi’s office was to “cut and paste” information and no particular breach of the Code is established.
Li Yu JIANG
119. Mr Shi agreed that there was no original statement from Li Yu JIANG on his file (T498 to T576). His explanations were that the client was concerned about her next application and so he gave it to her or failed to put a photocopy back on the file. He did not know. As the statement formed part of the application, this is a breach of cl. 6.1(a) of the Code.
120. The Minister refused her request for review pursuant to s 417 on 15/6/02 (T576). The file note of the same date reflects that decision and that a landline telephone number had been disconnected and “the case if closed” (T498). There was nothing on the file to indicate that a mobile was listed for that client or contacted. Mr Shi said the file note was very bad and that it was more accurate to say they contacted all numbers. He said that they never failed to contact a client. He said it was “not our habit to write down if disconnected” and “don’t know why this time number put”. I do not find those explanations convincing. On the evidence in this case Mr Shi did fail to advise Ms JIANG which may have had very serious consequences for her.
BREACHES OF THE CODE IN OTHER CASES
Breach of Clause 2.1 of the Code
Clause 2.1 stated at all relevant times:
A migration agent must always:
a) act in accordance with the law and the legitimate interests of his or her client; and
b) deal with his or her client competently, diligently, fairly and without any conflict of interest that would affect the legitimate interests of the client.
121. Mr Shi was questioned about his procedure when advising a client about a protection visa application (T3278 ff). At T3287 the issue of the consequences and the procedure adopted once an application for a protection visa is refused was discussed. Up until that point, Mr Shi had not indicated that there had been any prior discussion concerning the consequences of a failed protection visa application. He stated:
And we receive the decision and then we tell the client. We call the client to come to have a meeting and we let them know that their application is refused and we interpret the contents of the refusal letter. We tell them what they should do next - to go back to China or to lodge a review application. If they want to lodge the review application I tell them the procedure for RRT and the charge.
Section 313
216. Prior to 21 March 1998 s. 313 of the Act provided:
SECT 313 Persons charged for services to be given detailed statement of services
(1) A registered agent is not entitled to be paid a fee or other reward for giving immigration assistance to an entrance applicant or cancellation review applicant unless the agent gives the entrance applicant or cancellation review applicant a statement of services.(2) A statement of services must set out:
(a) particulars of each service performed; and
(b) the charge made in respect of each such service.
(3) Where:
(a) an entrance applicant or cancellation review applicant has paid a registered agent for giving immigration assistance without the entrance applicant or cancellation review applicant having received a statement of services; and
(b) the entrance applicant or cancellation review applicant does not receive a statement of services within 28 days after the making of the final decision about the entrance application;
that entrance applicant or cancellation review applicant may recover the amount of the payment as a debt due to the entrance applicant or cancellation review applicant.
(4) This section does not apply to the giving of immigration legal assistance by a lawyer.
217. The section was amended on 21 March 1998 and read as follows, up to 1 July 2004:
SECT 313 Persons charged for services to be given detailed statement of
services
(1A) This section deals with fees and rewards for giving immigration assistance to a person (the assisted person) who is:(a) a visa applicant; or
(b) a cancellation review applicant; or
(c) a person nominating (or seeking to nominate) a visa applicant for the purposes of the regulations; or
(d) a person sponsoring (or seeking to sponsor) a visa applicant for the purposes of the regulations.
(1) A registered agent is not entitled to be paid a fee or other reward for giving immigration assistance to an assisted person unless the agent gives the assisted person a statement of services.
(2) A statement of services must set out:
(a) particulars of each service performed; and
(b) the charge made in respect of each such service.
(3) An assisted person may recover the amount of a payment as a debt due to him or her if he or she:
(a) made the payment to a registered agent for giving immigration assistance; and
(b) did not receive a statement of services before making the payment; and
(c) 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 that the immigration assistance related to.
(4) This section does not apply to the giving of immigration legal assistance by a lawyer.
218. MARA found and asserted in these proceedings that in the 457 applications Mr Shi failed to provide a statement of service which set out the particulars of each service performed and the charge made in respect of each such service. Mr Shi said that his practice in relation to the 457 visa applicants was to provide a statement at the beginning of the matter in the form such as that found at T1149. No such statement was issued upon payment of subsequent instalments and no reconciliation appears to have occurred in relation to the issue of the refundable deposit. MARA submitted that the statement relied upon by the applicant does not comply with the requirements of s. 313 in that there is no attempt to specify what charge is being made in relation to the services being provided by the applicant. Rather there is a lump sum specified for a number of services, which appears to have been arbitrarily determined and which is fictional in any event, as the client is only required to pay the lower of the two amounts unless the application is successful, and in such circumstances a bonus payment is made to the applicant.
219. The first point to note is that the purpose of s 313 is to disentitle a migration agent from payment unless a statement of services as described has been provided to the client as required by the section and to permit a client to recover payment where a statement of services has not been provided. That is, if the migration agent does not comply with the section, his payment is at risk. MARA relied on this alleged breach for finding that “for the purposes of section 303(f) of the Act” Mr Shi failed to possess a sound understanding of the financial duties of the requirements of the provision. I need not deal with that aspect of the submission in this part of the proceedings. However, to assist the parties for the next part of these proceedings, I make the following findings.
220. The exercise that I am undertaking is artificial because this question would arise in practice where there was a dispute between the client and a migration agent as to the work done and payments charged and/or made. However, I find that Mr Shi charged for 457 visas on a lump sum basis, part of which was refundable if the application was unsuccessful. MARA did not assert that such an arrangement was impermissible, but suggested that for each item listed on the receipt an amount should have been shown. In my opinion, the “Receipt” (T1149) sets out the work to be done for which the sum of $1,000 was payable, which included the primary and bridging visa application, a review and associated work. If the application was unsuccessful, $500 was refundable. The question is, would a client know what charge was to be made and for which services? In my opinion the answer is yes. The structure of the lump sum charge was such that if the primary application was successful Mr Shi’s profit would be higher than if it were successful at the review stage or if it failed at either stage. I find that the “receipt” did comply with the requirement of s 313.
BREACHES RELATING TO Ainong ZHANG N2004/475
221. The case of Ainong ZHANG was an application for a spouse visa on-shore. (References in this case are to the s 37 documents relevant to the case and are referred to using the letter “Z” and the page number). The husband had been in Australia illegally for more than 1½ years. Mr Shi sent a letter to the Minister for Immigration dated 2 December 2002 seeking the Minister’s intervention under s. 417 of the Migration Act (Z54). That provision allows the Minister to substitute a decision which is more favourable to the applicant for a decision of the RRT in certain circumstances. As noted in the reply on behalf of the Minister dated 12 February 2003 (Z207) no protection visa application had been lodged by the client and there was no decision of the RRT for which the Minister may have substituted his own decision.
222. Mr Shi then wrote to the clients stating that the reference to s. 417 was “a wrong article of the law. This is my negligence at work” (Z209). In his oral evidence he said that there had been a typographical error in his office and that he did not intend to lodge a s 417 submission. This is a further example of Mr Shi’s evidence changing to reduce his culpability. He subsequently wrote a second letter to the Minister noting that he had mistakenly referred to s. 417 and instead requesting that the Minister ”give his special consideration for the applicant to lodge his spouse application onshore for compelling circumstances” ( Z211).
223. A letter dated 3 March 2003 was forwarded to the applicant from the Minister’s office advising that if his client did not hold a substantive visa, he could apply for a spouse visa on-shore if she had not been refused a visa but must show he has been in a relationship with an Australian citizen or permanent resident for a period of 2 years or less if there is a child of the marriage. It is clear from the material that Mr Shi was aware at the time the request was made to the Minister that his client did not satisfy these requirements.
224. MARA argued that Mr Shi did not appreciate that he should have lodged an application including a request to waive the criteria relating to on-shore, rather than making the request to the Minister.
225. Mr Shi said that his client wanted to lodge a claim in relation to undertaking an IVF program. They agreed that Mr Shi might apply for an off-shore spouse visa (309) or an on-shore one (820). That agreement was signed in October 2002. It was a matter of “what was available” according to Mr Shi. He said he advised her to leave and lodge a 309 application, as the process could be as quick as six months. However, being on an IVF program, the couple did not like the idea of the off-shore application. They wanted him to write a letter seeking a visa for a period of 2 years or until a baby is born. The matter would be referred to the Minister for waiver.
226. Mr Shi agreed that to obtain an on-shore spouse visa, if you did not have a substantive visa, it was necessary to satisfy the criteria in Schedule 3 or satisfy the Minister there was a compelling reason. He acknowledged that Schedule 3 was not satisfied in this case. However, Mr Shi did not agree that it was necessary to obtain acknowledgement of such advice pursuant to cl. 2.17. He was not sure whether the Code applied to such a request, “anyone can write to the Minister”, it has to be “an application” to breach the Code. MARA’S position was that item 820.211(d)(ii) required an application that included a submission addressing why the Minister should be satisfied there were compelling reasons for not applying the criteria.
227. Mr Shi’s response was that he was not sure whether IVF fell within the guidelines. There was a risk of lodging an application at a cost of $1,795 which was non-refundable and a review in the MRT which would be $1,400 plus the fees of a migration agent. The law was the same at both stages and therefore it could be refused twice and even at Minister’s intervention stage it might be refused. Even if it was approved, it would involve a lot of money and anxiety. He still did not follow the proper procedure. He did not lodge an application and a letter to the Minister. He said he should not have been involved but did what his clients wanted. He agreed the second letter was not “an application” and had no hope of success.
228. MARA relied on the letters to the Minister as founding breaches of cl. 2.17 of the Code. For reasons already given, I find that neither letter to the Minister was relevantly “an application”. It follows that it is unnecessary to consider the various breaches of cl. 2.17 alleged. However, Mr Shi’s conduct in this matter is relevant to a consideration pursuant to s 303(f) of the Act.
229. I find that Mr Shi did not appreciate the appropriate procedure in this case. He should not have written the letter relying on s 417 of the Act, nor the second letter to the Minister. He encouraged the client to lodge the second letter (Z209). I do not accept that the s 417 reference in the first letter was a typographical error. Rather, Mr Shi had no idea what to do.
230. MARA made findings of breaches of the Code in relation to clause 2.3 in that Mr Shi’s actions in relation to this matter demonstrated that he did not possess a sound knowledge of visa application procedures. For reasons also given earlier, I do not consider that the Code applies to the letters written to the Minister because those activities were not providing migration assistance or making migration representations. However, in terms of the consideration under s 303(f), I find that Mr Shi did not possess a sound knowledge of the Act and regulations as they related to the circumstances of his client.
231. MARA also alleged a breach of cl. 2.4 of the Code, being failure to have regard for his client’s dependence on his knowledge and experience as he failed to appreciate and supply the appropriate advice to his clients. Again, I find that there was no breach of the Code, but Mr Shi’s conduct may be relevant to consideration of s 303(f) of the Act.
GENERAL FINDINGS IN RELATION TO MR SHI’S EVIDENCE
232. At the beginning of the case, Mr Poynder argued that where there was no evidence to contradict Mr Shi’s evidence I must accept it. I do not agree. As is apparent from the findings I have made above, I did not find Mr Shi a reliable witness. His evidence changed on numerous occasions so as to reduce his responsibility for various breaches of the Code or other failures within his practice. He had some awareness that the Code existed but did not appreciate that he had to comply with it and did not try to. He adopted procedures without reference to the Code. Where the Code was met it was a coincidental rather than intentional.
THE NEXT STEP
233. It will be necessary to arrange a time with the parties for a directions hearing to decide appropriate directions and a hearing date for the balance of these proceedings. My Associate will contact the parties’ legal representatives to make a suitable time.
I certify that the 233 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine KELLY
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 27 September 2004, 28 September 2004, 29
September 2004, 30 September 2004 and 1
October 2004
Date of Decision 6 April 2005
Counsel for the Applicant Nicholas Poynder
Solicitor for the Respondent Australian Government Solicitor
ANNEXURE
THE CODE OF CONDUCT
(Extracts from Migration Agents Regulations 1998 – Schedule 2)
Clause 2.1 at all relevant times provided as follows:
A migration agent must always:
(a) act in accordance with the law and the legitimate interests of his or her client; and
(b) deal with his or her client competently, diligently, fairly and without any conflict of interest that would affect the legitimate interests of the client.
Clause 2.3 at all relevant times provides as follows:
A migration agent’s professionalism should be reflected in a sound working knowledge of the Migration Act and the Migration Regulations, and other legislation relating to migration procedure, and a capacity to provide accurate and timely advice.
Clause 2.4 at all relevant times provided as follows:
A migration agent must have due regard to a client’s dependence on the agent’s knowledge and experience.
Clause 2.5(a)(iii) at all relevant time provided as follows:
A migration agent must:
(a) take appropriate steps to maintain and improve his or her knowledge of the current versions of:
(iii) other legislation relating to migration procedure; and
Clause 2.8 (a), (c) and (d) at all relevant times provided as follows:
A migration agent must:
(a) within a reasonable time after agreeing to represent a client, confirm the client’s instructions in writing; and
(c) keep the client fully and regularly informed in writing of the progress of each case or application that the agent undertakes for the client; 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.
Clause 2.9 at all relevant times provided as follows:
While a migration agent cannot be responsible for misinformation provided by a client, an agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.
Clause 2.17 provided as follows:
Prior to 1 July 1999 clause 2.17 provided:
A migration agent must not encourage the lodgement of vexatious or grossly unfounded applications under the Migration Act or Migration Regulations, for example, applications under the Migration Act or Migration Regulations which have no hope of success.
Relevantly from 1 July 1999, cl. 2.17 provided:
If an application under the Migration Act or the Migration Regulations is vexatious or grossly unfounded (for example, an application that has no hope of success) the agent:
(a) must not encourage the client to lodge the application; and
(b) must advise the client that, in the agent’s opinion, the application is vexatious or grossly unfounded; and
(c) if the client still wishes to lodge the application - must obtain written acknowledgement of the client of the advice given under paragraph (b).
Clause 2.19 at all relevant times provided as follows:
Subject to a client’s instructions, a migration agent has a duty to provide sufficient relevant information to the Department to allow a full assessment of all the facts against the relevant criteria. For example, an agent should avoid the submission of applications under the Migration Act or Migration Regulations in a form that does not fully reflect the circumstances of the individual and prejudices the prospect of approval.
Clause 2.21 (or clause 20 in the Code pre 1 July 1998) provided as follows:
An agent should not submit applications under the Migration Act or Migration Regulations without the specified accompanying documentation. For example, in a marriage case, threshold documentation would include a marriage certificate and evidence that the sponsor is an Australian resident or citizen, [Australian permanent resident or an eligible New Zealand citizen, without which assessment of the case could not proceed (unless the agent has a reasonable excuse or the client has requested the agent to act despite incomplete documentation). NB the words in bold were inserted in the version of the code post 1July 1998 but are not material
Clause 3.6 at all relevant times provided as follows:
A migration agent must ensure that clients have access to an interpreter if necessary.
Clause 4.1 at all relevant time provided as follows:
Before accepting immigration work, a migration agent must consider whether he or she is qualified to give the advice sought by the client. If the agent is unsure, he or she should seek the appropriate advice or assistance, or refer the matter to another migration agent.
Clause 5.2(b) at all relevant times provided as follows:
A migration agent must:
(b) as soon as possible after receiving instructions, obtain written acceptance by the client, if possible, of the terms of the service to be done; and
Clause 6.1 at all relevant times provided as follows:
A 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
(c) files notes of every substantive or material oral communication between:
(i) the client and the agent;
(ii) the agent and an official of any relevant statutory authority.
Clause 7.1, 7.2 and 7,4 at all relevant times provided as follows:
7.1 A migration agent must keep separate accounts for:
(a) the agent’s operating expenses (the operating account); and
(b) money paid by clients to the agent for fees and disbursements (the clients’ account).
7.2 A migration agent must hold fees paid by a client in the clients’ account until the work that the agent has been contracted to do for that client has been completed.
7.4 A 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) each withdrawal made from the client’s account;
(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.
Clauses 8.1, 8.2 and 8.3 at all relevant times provided as follows:
8.1 A migration agent has a duty to exercise effective control of his or her office for the purpose of giving immigration advice and assistance.
8.2 A migration agent must properly supervise the work carried out by staff for the agent.
8.3 All immigration assistance must be given by a registered migration agent unless the assistance is permitted under section 280 of the Migration Act.
Clause 22 provided prior to 1 April 1998 as follows:
An agent must provide a signed declaration to be attached to the Departmental application form citing his or her full name, migration agent’s registration number and his or her entire fee for each immigration case. An agent must also sign the declaration or, where provisions exists, the application form which he or she assisted in preparing, citing his or her full name and migration agent’s registration number.
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