Tanari and Migration Agents Registration Authority

[2005] AATA 1091

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1091

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/264

GENERAL ADMINISTRATIVE DIVISION

Re:         VENKATA TANARI

Applicant

And:MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:             3 November 2005

Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes a decision that the applicant’s registration as a migration agent be suspended from 14 March 2005 to 11 May 2005.

(sgd) G.D. Friedman

Senior Member

MIGRATION - migration agent - cancellation of registration - preparation of protection visa applications - breach of Code of Conduct - whether a fit and proper person - appropriate sanction 

Migration Act 1958 ss 290, 303

Allinson v General Council of Medical Education &  Registration (1894) 1QB 750
Re De Vere and Migration Agents Registration Board (AAT 13278, 11 September 1998)
Re Feng and Migration Agents Registration Authority (2002) AATA 709

Re Griffiths and Migration Agents Registration Authority (2002) AATA 247

REASONS FOR DECISION

3 November 2005  G.D. Friedman, Senior Member

1. Venkata Tanari originally migrated to Australia from India and became a registered migration agent in 2002. On 14 March 2005 the Migration Agents Registration Authority (MARA) cancelled his registration for breaching the Code of Conduct for migration agents (the Code), which is contained in Schedule 2 to the Migration Agents Regulations 1998.

2.      MARA’s decision was made under s 303 of the Migration Act 1958 (the Act), for breaches of the following clauses of the Code: clause 2.1 (failure to act in clients’ interests), clause 2.5 (failure to maintain a professional library), clause 2.17(c) (failure to obtain written acknowledgment of advice), clause 2.19 (failure to provide information to relevant Department), clause 2.23 (failure to uphold the reputation of the profession), clause 6.1 (failure to maintain proper records) and clause 11.3 (failure to refer to the Code in contracts).  

3.      Mr Tanari maintains that he was inexperienced in handling protection visa applications at the time and did not deliberately breach the Code.  He said that since the breaches occurred he has demonstrated that he has acted properly as a migration agent. He submits that the appropriate penalty is a caution.

4.      The Tribunal has to decide whether Mr Tanari breached the Code and whether he is a fit and proper person to give immigration assistance; and if applicable, the appropriate sanction to be imposed.

DID MR TANARI BREACH THE CODE?

5.      In evidence to the Tribunal Mr Tanari explained that in 2002 he was approached by a group of 11 Malaysian clients seeking protection visas.  He said that he had been in practice for only seven months at the time, and was inexperienced in this type of visa and in file and records management.  He acknowledged that the clients provided almost identical statements of their claims which he did not attempt to verify, but he said he explained to each that further information would be necessary for the applications to succeed, and that there was no guarantee of success.

6.      Mr Tanari told the Tribunal that nine of the clients could speak English, and the other two were accompanied by friends who acted as interpreters when required.  He said that he prepared statements which each client initialed. He conceded that he did not keep a copy of all file notes or a copy of each application.  He said that he had reservations about lodging the applications but the clients had insisted, and at the time he believed that they were truthful.

7.      Mr Tanari stated that he was aware of his obligations to maintain a current knowledge of migration law, and he used the internet and library facilities to obtain copies of relevant legislation and regulations.  He agreed that at the time of the decision to cancel his registration he did not have a complete set of the required material. He said this was because of the cost of subscribing to a professional online service.  He said he has since made arrangements with another migration agent to obtain access to all the required material.

8.      Mr Tanari admitted that he may have breached clauses 2.5, 2.17(c), 2.19, 2.23, 6.1 and 11.3. He submitted, however, that any breaches were inadvertent, were due to inexperience and were minor to the extent that, although important, they were at the lower end of the scale of possible breaches.  He said that from 15 March 2005, the date he was notified of the cancellation of his registration, until the Tribunal granted a stay of the cancellation on 11 May 2005, he was unable to work as a migration agent and this caused hardship to him and his family.   

9.      On hearing the oral evidence and in considering the written material the Tribunal acknowledges that Mr Tanari was inexperienced in protection visa applications.  However, the Tribunal finds that his handling of the 11 applications in 2002 was grossly unsatisfactory and fell far below the standard expected of a registered migration agent.  He did not seek to verify the claims, he made inadequate file notes, he did not provide proper advice and he failed to keep a copy of the applications.  The similarity of the claims should have alerted him to the possibility that the claims were fraudulent and that the clients had collaborated in their applications.  Despite receiving instructions to proceed, Mr Tanari allowed the claims to be forwarded to the Department of Immigration and Multicultural and Indigenous Affairs when he knew that the claims lacked merit, and he did not provide proper advice about the consequences of refusal of the applications.  The contracts that he used did not refer to the existence or purpose of the Code.  The Tribunal finds that he breached clauses 2.1, 2.17(c), 2.19, 2.23, 6.1 and 11.3 of the Code.

10.     On Mr Tanari’s own evidence he did not maintain a professional library as defined in the Act, and the Tribunal finds that he also breached clause 2.5 of the Code.  He did not ensure that a professional interpreter was made available, and by failing to provide proper advice he did not have due regard to the clients’ dependence on him.  For these reasons the Tribunal also finds that the applicant breached clauses 2.4 and 3.6 of the Code.

IS MR TANARI A PERSON OF INTEGRITY OR OTHERWISE A FIT AND PROPER PERSON TO GIVE IMMIGRATION ASSISTANCE?

11.     Mr Tanari stated that he is now a fit and proper person to give immigration assistance.  He said he recognises the limitations of his knowledge of protection visas and has made a decision to cease practising in the refugee area.  He now concentrates on skilled migration and temporary business visas, areas in which he has been highly successful (Exhibit A3), with a claimed success rate of nearly 70 per cent since 2002.  Mr Tanari called supporting oral and written evidence from two clients (Exhibits A1 and A4), who spoke highly of his competence and professionalism in their dealings with him; and from the Secretary of the Telugu community organisation (Exhibit A5), representing former residents of the Indian state of Andhra Pradesh, who reported positive feedback from the members of the community on Mr Tanari’s handling of their applications.

12.      Mr Tanari said that since the complaints against him in 2002 he has improved his file and records management skills, there have been no further complaints about any aspect of his work as a migration agent, and his registration has been renewed three times by MARA.  He noted that he has complied with MARA’s requirements to attend professional development sessions, and has now complied with all clauses of the Code.  His current supervising migration agent gave evidence that Mr Tanari seems genuine, has taken advice where necessary and has access to an online service that contains all material required by MARA.

13.     On hearing the oral evidence and in considering the written material the Tribunal notes that In Re Feng and Migration Agents Registration Authority (2002) AATA 709 the Tribunal stated (at paragraph 67) that:

…questions as to whether the person is a fit and proper person or a person of integrity to be registered as a migration agent are to be considered in the context of requiring a finding of probity on the part of the person in addition to honesty, knowledge and competence in performing the duties of such an agent...

14.     The Tribunal concludes that because of his handling of the protection visa applications in 2002 and his breaches of the Code Mr Tanari was not a fit and proper person to give immigration assistance at that time.  However, the Tribunal also accepts that since 2002 his registration has been renewed three times by MARA, and that any delay in investigating the complaint against him was not in any way attributable to him.  The Tribunal accepts that there have been no further complaints, and the Tribunal gives weight to the evidence of witnesses who were prepared to attend the Tribunal to attest to his competence in his chosen areas of migration assistance.  He has been successful in a high proportion of the applications that he has lodged on behalf of clients; and where appropriate he refers clients to migration agents who are specialists in particular visa subclasses.

15.     The Tribunal accepts that Mr Tanari recognises that his performance in 2002 was unsatisfactory and that he has taken positive steps to rectify the deficiencies that led to the complaint against him.  He has cooperated with the migration agent appointed as his supervisor.

16.     On balance the Tribunal concludes that at the date of the decision under review the applicant’s overall conduct would not …be reasonably regarded as disgraceful or dishonourable by his professional colleagues of good repute and competency... (Allinson v General Council of Medical Education & Registration (1894) 1QB 750) (at page 761). The Tribunal finds that he is a person of integrity or is otherwise a fit and proper person to give immigration assistance.

WHAT IS THE APPROPRIATE SANCTION?

17. In finding that Mr Tanari has not complied with the Code, the Tribunal is satisfied that he has breached s 303(h) of the Act, so the Tribunal must consider whether to cancel or suspend his registration as a migration agent or to caution him. The Tribunal accepted in Re Griffiths and Migration Agents Registration Authority (2002) AATA 247 (at paragraph 28) that:

…the object of disciplinary proceedings in relation to professional people is to protect the public and to maintain proper standards in the relevant profession and not to take action by way of punishment…

In Re De Vere and Migration Agents Registration Board (1998) AATA 767 the Tribunal stated (at paragraph 100) that:

…the purpose of the provisions in s 303 of the Act is to ensure that a person registered as a migration agent can be relied upon to fulfil the functions and responsibilities of that position…

18.     The Tribunal accepts that Mr Tanari was not an experienced migration agent when he breached the Code and that he did not deliberately fail to comply with the Code.  Three years have elapsed since the breaches.  No further breaches have occurred and MARA has received no further complaints about Mr Tanari.  Mr Tanari has taken a responsible decision to cease practising in the refugee area.  He has been successful in lodging applications in the skilled/business visa field, and is complying with the Code.  Witnesses gave evidence of his competence in the giving of immigration advice.

19.     For these reasons, together with its finding that at the time of the decision under review Mr Tanari was a person of integrity and was otherwise a fit and proper person to give immigration assistance, the Tribunal does not believe that cancellation of his registration as a migration agent is appropriate.  However, the Tribunal considers the breaches of the Code in 2002 to be a serious departure from the standards expected of a registered migration agent, and Mr Tanari’s actions may have resulted in serious consequences for his clients.  To maintain the integrity of the profession the Tribunal concludes that a period of suspension is appropriate. However, the Tribunal takes the view that the suspension should not interfere with Mr Tanari’s ability to continue his practice. Therefore, the period of suspension should be from the date of cancellation of his registration until the date of the stay of the decision under review by the Tribunal.  In view of Mr Tanari’s demonstrated recent compliance with the Code no conditions are necessary.

DECISION

20.      The Tribunal sets aside the decision under review and substitutes a decision that the applicant’s registration as a migration agent be suspended from 14 March 2005 to 11 May 2005.

I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd):      Lydia Zozula

Associate

Dates of hearing:  17 and 18 October 2005

Date of decision:  3 November 2005
Counsel for applicant:                  Mr A. O’Donoghue
Solicitor for applicant:                  Mantoo & Co. Lawyers
Advocate for respondent:            Ms K. Miller
Solicitor for respondent:              Australian Government Solicitor